Exhibit 10.3
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “ACT”) OR ANY STATE SECURITIES LAWS,
AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, OR
HYPOTHECATED UNLESS AND UNTIL (I) REGISTERED UNDER THE ACT OR, (II)
THE TRANSACTION IS EXEMPT FROM REGISTRATION UNDER THE ACT AND AN
OPINION OF COUNSEL IN A FORM REASONABLY SATISFACTORY TO THE ISSUER
OF THESE SECURITIES HAS BEEN RENDERED.
WARRANT
TO PURCHASE COMMON STOCK
OF
NEUROLOGIX, INC.
(void
after November 19, 2014)
No.
W-____
THIS
CERTIFIES THAT, for value received, ____________________ or
its registered assigns (the “ Holder
”), from and after the date hereof, and subject to the
terms and conditions herein set forth, is entitled to purchase
from Neurologix, Inc., a Delaware corporation (the “
Company ”), at any time before 5:00
p.m. New York City time on November 19, 2014 (the “
Termination Date ”), _____________
shares (the “ Warrant Shares ”)
of the Company’s common stock, par value $0.001 per
share (the “ Common Stock ”), at
a price per share equal to the Warrant Price (as defined
below) upon exercise of this Warrant pursuant to Section 5
hereof. The number of Warrant Shares is subject to
adjustment under Section 2.
1.
Definitions . As used in this Warrant, the
following terms have the definitions ascribed to them
below:
|
(a)
|
“
Cash Shares ” shall have the meaning
ascribed to them in Section 5(a).
|
|
(b)
|
“
Issuance Date ” means November 19,
2007.
|
|
(c)
|
“
Offering Warrants ” shall have the meaning
ascribed to the term in Section 8.
|
|
(d)
|
“
Person ” means any individual, corporation,
partnership, limited liability company, trust, incorporated or
unincorporated association, joint venture, joint stock company,
governmental authority or other entity of any kind, and shall
include any successor (by merger or otherwise) of such
entity.
|
|
(e)
|
“Registration Rights Agreement” means that
certain Registration Rights Agreement dated as of November 19,
2007, by and among the Company, the initial Holder of this Warrant,
Corriente Master Fund, L.P., DaimlerChrysler Corporation Master
Retirement Trust and certain funds managed by ProMed Asset
Management LLC.
|
|
(f)
|
“
Subscription Agreement ” means that certain
Stock and Warrant Subscription Agreement dated as of November 19,
2007 between the Company and the initial Holder of this
Warrant.
|
|
(g)
|
“
Warrant Price ” means $1.39 per share
subject to adjustment under Section 2.
|
2.
Adjustments and Notices . The Warrant Price
and/or the Warrant Shares shall be subject to adjustment from
time to time in accordance with this Section 2. The
Warrant Price and/or the Warrant Shares shall be adjusted to
reflect all of the following events that occur on or after the
Issuance Date.
(a)
Subdivision, Stock Dividends or Combinations
. In case the Company shall at any time subdivide
the outstanding shares of the Common Stock or shall issue a
stock dividend with respect to the Common Stock, the Warrant
Price in effect immediately prior to such subdivision or the
issuance of such dividend shall be proportionately decreased,
and the number of Warrant Shares for which this Warrant may be
exercised immediately prior to such subdivision or the
issuance of such dividend shall be proportionately
increased. In case the Company shall at any
time combine the outstanding shares of the Common Stock, the
Warrant Price in effect immediately prior to such combination
shall be proportionately increased, and the number of Warrant
Shares for which this Warrant may be exercised immediately
prior to such combination shall be proportionately
decreased. In each of the foregoing cases, the
adjustment shall be effective at the close of business on the
date of such subdivision, dividend or combination, as the case
may be.
(b)
Reclassification, Exchange, Substitution, In-Kind
Distribution . Upon any reclassification (other
than a change in par value or from par value to no par value
or from no par value to par value or as a result of a stock
dividend or subdivision, split-up or combination of shares
covered in clause (a) above), exchange, substitution or other
event that results in a change of the number and/or class of
the securities issuable upon exercise or conversion of this
Warrant or upon the payment of a dividend in securities or
property other than shares of the Common Stock, the Holder
shall be entitled to receive, upon exercise of this Warrant,
the number and kind of securities and property that the Holder
would have received if this Warrant had been exercised
immediately before the record date for such reclassification,
exchange, substitution, or other event or immediately prior to
the record date for such dividend. The Company or
its successor shall promptly issue to the Holder a new warrant
for such new securities or other property. The new
warrant shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided
for in this Section 2 including, without limitation,
adjustments to the Warrant Price and to the number of
securities or property issuable upon exercise or conversion of
the new warrant. The provisions of this Section 2(b) shall
similarly apply to successive reclassifications, exchanges,
substitutions, or other events and successive
dividends.
(c)
Reorganization, Merger etc . In case of any merger or
consolidation of the Company (where the Company is not the
surviving Person or where there is a change in or distribution
with respect to the Common Stock), or sale, transfer or lease
(but not including a transfer or lease by pledge or mortgage
to a bona fide lender) of all or substantially all of the
assets of the Company, the Company, or such successor or
purchasing corporation, as the case may be, shall, as a
condition to closing any such reorganization, merger or sale,
duly execute and deliver to the Holder hereof a new warrant so
that the Holder shall have the right to receive, at a total
purchase price not to exceed that payable upon the exercise or
conversion of the unexercised portion of this Warrant, and in
lieu of the Warrant Shares theretofore issuable upon exercise
or conversion of this Warrant, the kind and amount of shares
of stock,
other
securities, money and property that would have been receivable
upon such reorganization, merger or sale by the Holder with
respect to the Warrant Shares if this Warrant had been
exercised immediately before the consummation of such
transaction. Such new warrant shall provide for
adjustments that shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section
2. The provisions of this subparagraph (c) shall
similarly apply to successive transactions of the type
described in this subparagraph (c).
(d)
Adjustment for Issuance of Shares of Common Stock Below
Warrant Price . If the Company shall issue, or
be deemed to issue (as provided below), any additional shares
of Common Stock other than Excluded Stock, as defined below
(“Additional Shares of Common Stock”), for a
consideration per share less than $1.16 (excluding
subdivisions, stock dividends, combinations, reclassifications
and reorganizations which are covered in Sections 2(a), 2(b)
and 2(c) above), the Warrant Price shall be reduced concurrent
with each such issuance to a price calculated as
follows:
Adjusted
Warrant Price = ( Outstanding
Stock x Warrant Price) + Additional Stock
Consideration
Outstanding
Stock + No. of Additional Shares of Common Stock
As
used herein:
“Additional
Stock Consideration” means the consideration received by
the Company upon the issuance of the Additional Shares of
Common Stock.
“Convertible
Securities” means any evidence of indebtedness, shares
or securities, in each case convertible into or exchange for
Additional Shares of Common Stock.
“Excluded
Stock” means (a) securities issued, or deemed issued (as
provided below), to directors, officers, employees or
consultants of the Company or a subsidiary of the Company in
connection with their service as directors of the Company or a
subsidiary of the Company, their employment by the Company or
a subsidiary of the Company or their retention as consultants
by the Company or a subsidiary of the Company under stock
option plans of the Company; (b) shares of Common Stock
issuable upon exercise of warrants outstanding as of the
Issuance Date; (c) shares of Common Stock issued, or deemed
issued (as provided below), pursuant to a merger,
consolidation or stock or asset acquisition approved by the
Company’s Board of Directors; (d) the issuance, or
deemed issuance, of securities of the Company for any purpose
and in any amount as approved by the holders of Offering
Warrants exercisable for seventy (70%) percent of the Warrant
Shares issuable upon exercise of the then outstanding Offering
Warrants; (e) shares issued, or deemed issued, to persons or
entities in connection with a strategic partnership, joint
venture or other similar agreement with the Company, provided
such issuances are primarily for other than equity financing
purposes and are approved by a two-thirds majority of the
members of the Board of Directors; (f) shares issued, or
deemed issued, pursuant to any equipment leasing arrangement
or debt financing from a bank or similar institution approved
by a two-thirds majority of the members of the Board of
Directors; provided such financing is primarily for non-equity
financing purposes; (g) shares of Common Stock issued or
issuable upon exercise of the Offering Warrants; and (h)
shares of Common Stock issued or issuable upon conversion of
the Series C Convertible Preferred Stock or the Series D
Convertible Preferred Stock.
“No.
of Additional Shares of Common Stock” means the number
of units of Additional Shares of Common Stock issued in
connection with the issuance of the same.
“Options”
means rights, options or warrants to subscribe for, purchase
or otherwise acquire shares of Common Stock or Convertible
Securities.
“Outstanding
Stock” means the total number of shares of Common Stock
outstanding plus the total number of shares of Common Stock
issuable upon conversion or exercise of outstanding
Convertible Securities (including this Warrant, all other
warrants and any Options) immediately prior to the issuance of
the Additional Shares of Common Stock; provided that
the number of shares of Common Stock outstanding at any given
time shall not include shares owned or held by or for the
account of the Company.
No
adjustment in the Warrant Price need be made if such
adjustment would result in a change in the Warrant Price of
less than $0.001. Any such adjustment which is not
made shall be carried forward and shall be made at the time of
and together with any subsequent adjustment which, on a
cumulative basis, amounts to an adjustment of $0.001 or more
in the Warrant Price. No adjustment in the Warrant
Price of this Warrant shall be made in respect of the issuance
of Additional Shares of Common Stock unless the consideration
per share for such Additional Shares of Common Stock issued or
deemed to be issued (as provided below) by the Company is less
than the Warrant Price then in effect on the date of, and
immediately prior to, such issue, for this
Warrant.
For
purposes of making any adjustment required under this Section
2(d), the consideration received by the Company for any issue
or sale of securities shall (a) to the extent that it consists
of cash be computed as the amount of cash received by the
Company without deduction of any underwriting or similar
commissions, co
|
