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EXHIBIT 4.5
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE OF
THIS WARRANT
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NO SALE OR
DISPOSITION MAY BE EFFECTED EXCEPT IN COMPLIANCE WITH RULE 144
UNDER SAID ACT OR
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR (IF
REASONABLY
REQUIRED BY THE COMPANY) AN OPINION OF COUNSEL FOR THE HOLDER,
SATISFACTORY TO
THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT
OR RECEIPT OF
A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION.
WARRANT TO PURCHASE 471 SHARES OF COMMON STOCK
June 28, 2005
THIS CERTIFIES THAT, for value received, GENERAL ELECTRIC CAPITAL
CORPORATION
("HOLDER") is entitled to subscribe for and purchase FOUR HUNDRED
SEVENTY
ONE(471) shares of the fully paid and nonassessable Common Stock
(the "SHARES"
or the "STOCK") of COMBINATORX, INC., a Delaware corporation (the
"COMPANY"), at
the Warrant Price (as hereinafter defined), subject to the
provisions and upon
the terms and conditions hereinafter set forth.
1. WARRANT PRICE. The
Warrant Price shall initially be $6.75 per share, subject
to adjustment as provided in Section 7 below.
2. CONDITIONS TO
EXERCISE. The purchase right represented by this Warrant may
be exercised at any time, or from time to time, in whole or in part
during the
term commencing on the date hereof and ending at 5:00 P.M. Eastern
time on the
tenth anniversary of the date of this Warrant.
3. METHOD OF EXERCISE;
PAYMENT; ISSUANCE OF SHARES; ISSUANCE OF NEW WARRANT.
(a) CASH EXERCISE. Subject to Section 2 hereof, the purchase right
represented
by this Warrant may be exercised by the Holder hereof, in whole or
in part, by
the surrender of this Warrant (with a duly executed Notice of
Exercise in the
form attached hereto) at the principal office of the Company (as
set forth in
Section 18 below) and by payment to the Company, by check, of an
amount equal to
the then applicable Warrant Price per share multiplied by the
number of shares
then being purchased. In the event of any exercise of the rights
represented by
this Warrant, certificates for the shares of stock so purchased
shall be in the
name of, and delivered to, the Holder hereof, or as such Holder may
direct
(subject to the terms of transfer contained herein and upon payment
by such
Holder hereof of any applicable transfer taxes). Such delivery
shall be made
within 30 days after exercise of the Warrant and at the Company's
expense and,
unless this Warrant has been fully exercised or expired, a new
Warrant having
terms and conditions substantially identical to this Warrant and
representing
the portion of the Shares, if any, with respect to which this
Warrant shall not
have been exercised, shall also be issued to the Holder hereof
within 30 days
after exercise of the Warrant.
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(b) NET ISSUE EXERCISE. Holder may also elect to receive shares
equal to the
value of this Warrant (or of any portion thereof remaining
unexercised) by
surrender of this Warrant at the principal office of the Company
together with
notice of such election, in which event the Company shall issue to
Holder the
number of shares of the Company's Common Stock computed using the
following
formula:
X =
Y (A-B)
------
A
Where X = the number of shares of Stock to be issued to Holder.
Y =
the number of shares of Stock purchasable under this Warrant (at
the
date of such calculation).
A =
the Fair Market Value of one share of the Company's Common Stock
(at
the date of such calculation).
B =
Warrant Price (as adjusted to the date of such calculation).
(c) FAIR MARKET VALUE. For purposes of this Section 3, Fair Market
Value of one
share of the Company's Stock shall mean:
(i)
In the
event of an exercise in connection with an Initial Public
Offering, the per share Fair Market Value for the Stock shall be
the
Offering Price at which the underwriters initially sell Common
Stock to
the;
or
(ii)
The average of
the closing bid and asked prices of Common Stock
quoted in the Over-The-Counter Market Summary or the last reported
sale
prices quoted on the Nasdaq National Market ("NNM") or on any
exchange on
which the Common Stock is listed, whichever is applicable, as
published in
the
Western Edition of the WALL STREET JOURNAL for the 21 trading
days
prior to the date of determination of Fair Market Value; or
(iii) In the event of an exercise in
connection with a merger, acquisition
or
other consolidation in which the Company is not the surviving
entity,
the
per share Fair Market Value for the Stock shall be the value to
be
received per share of Common Stock by all holders of the Common
Stock in
such
transaction as determined by the Board of Directors; or
(iv)
In any other
instance, the per share Fair Market Value for the Stock
shall be as determined in good faith by the Company's Board of
Directors.
In
the event of 3(c)(iii) or 3(c)(iv), above, the Company's Board
of
Directors shall prepare a certificate, to be signed by an
authorized
officer of the Company, setting forth in reasonable detail the
basis for
and method of
determination of the per share Fair Market Value of the
Stock. In the event of 3(c)(iii) above, the Board will also certify
to the
Holder that this per share Fair Market Value will be applicable to
all
holders of the Company's Common Stock. Such certification must be
made to
Holder at least ten business days prior to the proposed effective
date of
the
merger, consolidation, sale, or other triggering event as defined
in
3(c)(iii).
(d) AUTOMATIC EXERCISE. To the extent this Warrant is not
previously exercised,
it shall be automatically exercised in accordance with Sections
3(b) and 3(c)
hereof (even if not surrendered) immediately before its expiration,
involuntary
termination or cancellation.
(e) MANDATORY REDEMPTION. At any time, prior to the exercise of
this warrant,
the Holder may at its option require the Company to redeem this
Warrant for a
price of $XX (the "REDEMPTION PRICE"). Company shall remit the
Redemption Price
to the Holder in immediately available funds
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within ten days of receiving written demand of such redemption.
Upon Holder
receiving the Redemption Price, this Warrant, and the all rights of
Holder under
this Warrant to purchase any Shares of the Company shall
terminate.
4. REPRESENTATIONS AND
WARRANTIES OF HOLDER AND THE COMPANY.
(a) Representations and Warranties by Holder. The Holder represents and
warrants to the Company with respect to this purchase as
follows:
(i)
The Holder
has substantial experience in evaluating and investing in
private placement transactions of securities of companies similar
to the
Company so that the Holder is capable of evaluating the merits and
risks of
its
investment in the Company and has the capacity to protect its
interests.
(ii)
Except for
transfers to a Holder's affiliates, the Holder is
acquiring the Warrant and the Shares of Stock issuable upon
exercise of the
Warrant (collectively the "SECURITIES") for investment for its own
account
and
not with a view to, or for resale in connection with, any
distribution
thereof. The Holder understands that the Securities have not
been
registered under the Securities Act of 1933, as amended (the "ACT")
by
reason of a specific
exemption from the registration provisions of the Act
which depends upon, among other things, the bona fide nature of
the
investment intent as expressed herein.
(iii) The Holder
acknowledges that the Securities must be held
indefinitely unless subsequently registered under the Act or an
exemption
from
such registration is available. The Holder is aware of the
provisions
of
Rule 144 promulgated under the Act.
(iv)
The Holder is an
"accredited investor" within the meaning of
Regulation D promulgated under the Act.
(v)
The Holder
has had an opportunity to discuss the Company's business,
management and financial affairs with its management and an
opportunity to
review the Company's facilities. The Holder understands that
such
discussions, as well as the written information issued by the
Company, were
intended to describe the aspects of the Company's business and
prospects
which the Company believes to be material but were not necessarily
a
thorough or exhaustive description.
(b) Company hereby represents and warrants to Holder that, except
as set forth
in the schedule attached to this Warrant as EXHIBIT A (the
"DISCLOSURE
SCHEDULE"), the statements in the following paragraphs of this
Section 4(b) are
true and correct (x) as of the date hereof and (y) except where any
such
representation and warranty relates specifically to an earlier
date, as of the
date of any exercise of this Warrant.
(i)
CORPORATE ORGANIZATION AND AUTHORITY. Company (a) is a
corporation duly organized, validly existing, and in good standing
in its
jurisdiction of incorporation, (b) has the corporate power and
authority to own
and operate its properties and to carry on its business as now
conducted and as
proposed to be conducted; and (c) is qualified as a foreign
corporation in all
jurisdictions where such qualification is required.
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(ii) CORPORATE
POWER. Company has all
requisite legal and
corporate power and authority to execute, issue and deliver the
Warrant, to
issue the Common Stock issuable upon exercise or conversion of the
Warrant, and
to carry out and perform its obligations under the Warrant and any
related
agreements.
(iii) AUTHORIZATION;
ENFORCEABILITY. All corporate action on the
part of Company, its officers, directors and shareholders necessary
for the
authorization, execution, delivery and performance of its
obligations under this
Warrant and for the authorization, issuance and delivery of the
Warrant and
Stock issuable upon exercise of the Warrant has been taken and this
Warrant
constitutes the legally binding and valid obligation of Company
enforceable in
accordance with its terms.
(iv) VALID
ISSUANCE OF WARRANT AND COMMON STOCK The Warrant has
been validly issued and is free of restrictions on transfer other
than
restrictions on transfer set forth herein and under applicable
state and federal
securities laws. The Common Stock issuable upon conversion of this
Warrant, when
issued, sold and delivered in accordance with the terms of this
Warrant for the
consideration expressed herein, will be duly and validly issued,
fully paid and
nonassessable, and will be free of restrictions on transfer other
than
restrictions on transfer under this Warrant and under applicable
state and
federal securities laws. Subject to applicable restrictions on
transfer, the
issuance and delivery of the Warrant and the Common Stock issuable
upon
conversion of the Warrant are not subject to any preemptive or
other similar
rights or any liens or encumbrances except as specifically set
forth in
Company's Certificate of Incorporation or this Warrant. The offer,
sale and
issuance of the Warrant and Common Stock, as contemplated by this
Warrant, are
exempt from the prospectus and registration requirements of
applicable United
States federal and state security laws, and neither Company nor any
authorized
agent acting on its behalf has or will take any action hereafter
that would
cause the loss of such exemption.
(v) NO
CONFLICT WITH OTHER INSTRUMENTS. The execution, delivery,
and performance of this Warrant will not result in any violation
of, be in
conflict with,
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or constitute a default under, with or without the passage of
time
or the giving of notice (a) any provision of Company's Certificate
of
Incorporation or by-laws; (b) any provision of any judgment,
decree, or order to
which Company is a party or by which it is bound or an event which
results in
the creation of any material lien, charge or encumbrance upon any
material
assets of Company; (c) any contract, obligation, or commitment to
which Company
is a party or by which it is bound; or (d) any statute, rule, or
governmental
regulation applicable to Company.
(vi)
CAPITALIZATION. As of
June 28, 2005 the authorized capital
stock of Company consists of 32,000,000 shares of Common Stock,
$0.001 par
value, of which 993,032 were issued and outstanding, and 23,162,386
shares of
Preferred Stock, $0.001 par value, of which 22,907,015 were issued
and
outstanding. The outstanding shares have been duly authorized and
validly issued
(including, without limitation, issued in compliance with
applicable federal and
state securities laws), are fully paid and nonassessable. Company
has reserved
471 shares of Common Stock for issuance upon exercise of this
Warrant. Except as
set forth in Section 4(b) of the Disclosure Schedule, there are no
outstanding
warrants, options, conversion privileges, preemptive rights or
other rights or
agreements to purchase or otherwise acquire or issue any equity
securities or
convertible Securities of Company, nor has the issuance of any of
the aforesaid
rights to acquire securities of Company been authorized.
( vii ) GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation,
declaration or
filing with, any federal, state or local governmental authority on
the part of
Company is required in connection with the offer, sale or issuance
of the
Warrant (and the Stock issuable upon the exercise of this Warrant),
or the
consummation of any other transaction contemplated hereby, except
for the
following: (a) the filing of a notice on Form D under the Act and
b) the
compliance with other applicable state securities laws, which
compliance will
have occurred within the appropriate time periods therefore. The
offer, sale and
issuance of the Warrant and the shares of Stock in conformity with
the terms of
this Warrant are exempt from the registration requirements of the
Act and any
applicable state laws.
5. LEGENDS.
(a) Each certificate representing the Securities shall be endorsed
with the
following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933 AND MAY NOT BE TRANSFERRED UNLESS COVERED BY AN
EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT, A "NO ACTION" LETTER FROM
THE
SECURITIES AND EXCHANGE COMMISSION WITH RESPECT TO SUCH TRANSFER,
A
TRANSFER MEETING THE REQUIREMENTS OF RULE 144 OF THE SECURITIES
AND
EXCHANGE COMMISSION, OR (IF REASONABLY REQUIRED BY THE COMPANY)
AN
OPINION OF COUNSEL SATISFACTORY TO THE ISSUER TO THE EFFECT THAT
ANY
SUCH TRANSFER IS EXEMPT FROM SUCH REGISTRATION.
The Company need not enter into its stock records a transfer of
Securities
unless the conditions specified in the foregoing legend are
satisfied. The
Company may also instruct its transfer agent
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not to allow the transfer of any of the Shares unless the
conditions specified
in the foregoing legend are satisfied.
(b) REMOVAL OF LEGEND AND TRANSFER RESTRICTIONS. The legend
relating to the Act
endorsed on a certificate pursuant to paragraph 5(a) of this
Warrant shall be
removed and the Company shall issue a certificate without such
legend to the
Holder of the Securities if (i) the Securities are registered under
the Act and
a prospectus meeting the requirements of Section 10 of the Act is
available or
(ii) the Holder provides to the Company an opinion of counsel for
the Holder
reasonably satisfactory to the Company, a no-action letter or
interpretive
opinion of the staff of the SEC reasonably satisfactory to the
Company, or other
evidence reasonably satisfactory to the Company, to the effect that
public sale,
transfer or assignment of the Securities may be made without
registration and
without compliance with any restriction such as Rule 144.
6. CONDITION OF TRANSFER OR EXERCISE OF WARRANT. It shall be a
condition to any
transfer or exercise of this Warrant that at the time of such
transfer or
exercise, the Holder shall provide the Company with a
representation in writing
that the Holder or transferee is acquiring this Warrant and the
shares of Stock
to be issued upon exercise for investment purposes only and not
with a view to
any sale or distribution. As a further condition to any transfer of
this Warrant
or any or all of the shares of Stock issuable upon exercis
