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Exhibit 4.4
NO. PW-1
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR ANY
STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND ANY
APPLICABLE STATE SECURITIES LAWS.
WARRANT TO PURCHASE SHARES
OF PREFERRED STOCK OF
VERSICOR INC.
This certifies that HEALTHCARE VENTURES V or its assigns (the
"HOLDER"), for value received, is entitled to purchase from VERSICOR INC., a
Delaware corporation (the "COMPANY"), having a place of business at 34790
Ardentech Court, Fremont, California, the number and type of fully paid and
nonassessable shares of the Company's Preferred Stock, and at a per share
exercise price, to be determined as follows:
(i) This Warrant shall entitle the Holder to purchase the number of
shares of the Company's applicable Preferred Stock (as determined in (ii) below)
equal to $343,345 divided by the applicable per share exercise price (the "STOCK
PURCHASE PRICE") of the relevant Preferred Stock (as determined in (ii) below).
(ii) The type of Preferred Stock issuable upon exercise of this Warrant
and the Stock Purchase Price of this Warrant shall be determined as follows:
(A) If the Company sells and issues shares of its Series F
Preferred Stock (the "SERIES F STOCK") to investors with total gross
proceeds to the Company of not less than $15,000,000 (excluding the
conversion of the Notes, as such term is defined in the Note and
Warrant Purchase Agreement of even date herewith among the Company and,
INTER ALIA, the Holder) (the "EQUITY FINANCING") on or prior to the
exercise of the Warrant, then the Warrant shall be exerciseable for
shares of Series F Stock at a Stock Purchase Price equal to the price
per share paid by the investors purchasing the Series F Stock in the
Equity Financing.
(B) If the Company does not complete an Equity Financing on or
prior to the exercise of the Warrant, then the Warrant shall be
exerciseable for shares of Series C Preferred Stock at a Stock Purchase
Price equal to $5.00.
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Holder may purchase such shares of Preferred Stock for cash at any time
or from time to time after the Company has authorized and reserved adequate
shares of capital stock for issuance upon conversion of this Warrant and up to
and including 5:00 p.m. (Pacific time) on the earlier of (i) five (5) years from
the closing of the initial public offering of the Company's Common Stock
pursuant to a registration statement under the Securities Act of 1933, as
amended (the "INITIAL PUBLIC OFFERING") or (ii) ten (10) years from the date of
this Warrant, such earlier day being referred to herein as the "EXPIRATION
DATE", upon surrender to the Company at its principal office (or at such other
location as the Company may advise the Holder in writing) of this Warrant
properly endorsed with the Form of Subscription attached hereto duly filled in
and signed and, if applicable, upon payment in cash or by check of the aggregate
Stock Purchase Price for the number of shares for which this Warrant is being
exercised determined in accordance with the provisions hereof; provided,
however, that the Company shall have authorized and reserved adequate shares of
capital stock for which this Warrant is exerciseable. The Stock Purchase Price
and the number of shares purchasable hereunder are subject to adjustment as
provided in Section 3 of this Warrant.
This Warrant is subject to the following terms and conditions:
1. EXERCISE; ISSUANCE OF CERTIFICATES; PAYMENT FOR SHARES.
1.1 GENERAL. This Warrant is exercisable at the option of the
holder of record hereof, at any time or from time to time after the Company has
authorized and reserved adequate shares of capital stock for issuance upon
conversion of this Warrant and up to the Expiration Date for all or any part of
the shares of Preferred Stock (but not for a fraction of a share) which may be
purchased hereunder. The Company agrees that the shares of Preferred Stock
purchased under this Warrant shall be and are deemed to be issued to the Holder
hereof as the record owner of such shares as of the close of business on the
date on which this Warrant shall have been surrendered, properly endorsed, the
completed, executed Form of Subscription delivered and payment made for such
shares. Certificates for the shares of Preferred Stock so purchased, together
with any other securities or property to which the Holder hereof is entitled
upon such exercise, shall be delivered to the Holder hereof by the Company at
the Company's expense within a reasonable time after the rights represented by
this Warrant have been so exercised. In case of a purchase of less than all the
shares which may be purchased under this Warrant, the Company shall cancel this
Warrant and execute and deliver a new Warrant or Warrants of like tenor for the
balance of the shares purchasable under the Warrant surrendered upon such
purchase to the Holder hereof within a reasonable time. Each stock certificate
so delivered shall be in such denominations of Preferred Stock as may be
requested by the Holder hereof and shall be registered in the name of such
Holder.
1.2 NET ISSUE EXERCISE. Notwithstanding any provisions herein
to the contrary, if the fair market value of one share of the Company's
Preferred Stock issuable upon exercise of this Warrant is greater than the Stock
Purchase Price (at the date of calculation as set forth below), in lieu of
exercising this Warrant for cash, the Holder may elect to receive shares equal
to the value (as determined below) of this Warrant (or the portion thereof being
canceled) by surrender of this Warrant at the principal office of the Company
together with the properly
2.
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endorsed Form of Subscription and notice of such election in which event the
Company shall issue to the Holder a number of shares of Preferred Stock computed
using the following formula:
X = Y (A-B)
-------
A
Where X = the number of shares of Preferred Stock to be issued to the
Holder
Y = the number of shares of Preferred Stock purchasable
under the Warrant or, if only a portion of the Warrant is
being exercised, the portion of the Warrant being canceled
(at the date of such calculation)
A = the fair market value of one share of the Company's
Preferred Stock (at the date of such calculation)
B = Stock Purchase Price (as adjusted to the date of such
calculation)
For purposes of the above calculation, fair market value of one share of
Preferred Stock shall be determined as follows:
(i) If this Warrant is exercised in connection with the Initial Public
Offering, then the fair market value shall be (A) the initial "Price to Public"
specified in the final prospectus with respect to such offering multiplied by
(B) the number of shares of Common Stock into which each share of Preferred
Stock is convertible in connection with the Initial Public Offering.
(ii) If this Warrant is exercised when the Common Stock is traded on a
securities exchange or the Nasdaq market, then the fair market value per share
shall equal (A) the average of the closing or last reported sale prices on such
exchange or market over the 30-day period ending fifteen (15) business days
prior to the date of exercise of this Warrant multiplied by (B) the number of
shares of Common Stock into which each share of Preferred Stock is convertible
at the time of such exercise,.
(iii) Otherwise, the fair market value shall be determined in good
faith by the Board of Directors of the Company.
2. SHARES TO BE FULLY PAID; RESERVATION OF SHARES. The Company
agrees to ensure, as soon as reasonably practicable after the date of this
Warrant and as requested by the Purchasers (as such term is defined in the
Note and Warrant Purchase Agreement of even date herewith, among the Company
and, INTER ALIA, the Holder), that all shares of Preferred Stock which may be
issued upon the exercise of the rights represented by this Warrant will, upon
issuance, be duly authorized, validly issued, fully paid and nonassessable
and free from all preemptive rights of any stockholder and free of all taxes,
liens and charges with respect to the issue thereof. The Company further
agrees, as soon as reasonably practicable after the date of this Warrant and
as requested by the Purchasers (as such term is defined in the Note and
Warrant
3.
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Purchase Agreement of even date herewith, among the Company and, INTER ALIA, the
Holder), to have authorized and reserved, for the purpose of issue or transfer
upon exercise of the subscription rights evidenced by this Warrant, a sufficient
number of shares of authorized but unissued Preferred Stock, or other securities
and property, when and as required to provide for the exercise of the rights
represented by this Warrant. The Company will take all such action as may be
necessary to assure that such shares of Preferred Stock may be issued as
provided herein without violation of any applicable law or regulation, or of any
requirements of any domestic securities exchange upon which the Preferred Stock
may be listed; provided, however, that the Company shall not be required to
effect a registration under Federal or State securities laws with respect to
such exercise.
3. ADJUSTMENT OF STOCK PURCHASE PRICE AND NUMBER OF SHARES. The
Stock Purchase Price and the number of shares purchasable upon the exercise
of this Warrant shall be subject to adjustment from time to time upon the
occurrence of certain events described in this Section 3. Upon each
adjustment of the Stock Purchase Price, the Holder of this Warrant shall
thereafter be entitled to purchase, at the Stock Purchase Price resulting
from such adjustment, the number of shares obtained by multiplying the Stock
Purchase Price in effect immediately prior to such adjustment by the number
of shares purchasable pursuant hereto immediately prior to such adjustment,
and dividing the product thereof by the Stock Purchase Price resulting from
such adjustment. In addition, in the event the outstanding Preferred Stock of
the Company converts into Common Stock in connection with the Initial Public
Offering (the "PREFERRED STOCK CONVERSION") and this Warrant remains
outstanding after such Initial Public Offering, then this Warrant shall be
exerciseable for the number of shares of the Company's Common Stock issuable
upon conversion of the Preferred Stock underlying this Warrant immediately
prior to the Preferred Stock Conversion, and the number of such shares of
Common Stock and the Stock Purchase Price shall be subject to adjustment in
the same manner as provided forth herein.
3.1 SUBDIVISION OR COMBINATION OF STOCK. In case the Company
shall at any time subdivide its outstanding shares of Preferred Stock which may
be issued upon the exercise of the rights represented by this Warrant into a
greater number of shares, the Stock Purchase Price in effect immediately prior
to such subdivision shall be proportionately reduced, and conversely, in case
the outstanding shares of Preferred Stock of the Company which may be issued
upon the exercise of the rights represented by this Warrant shall be combined
into a smaller number of shares, the Stock Purchase Price in effect immediately
prior to such combination shall be proportionately increased.
3.2 DIVIDENDS IN PREFERRED STOCK, OTHER STOCK, PROPERTY,
RECLASSIFICATION. If at any time or from time to time the Holders of Preferred
Stock which may be issued upon the exercise of the rights represented by this
Warrant (or any shares of stock or other securities at the time receivable upon
the exercise of this Warrant) shall have received or become entitled to receive,
without payment therefor,
(a) Preferred Stock or any shares of stock or
other securities which are at any time directly or indirectly convertible
into or exchangeable for Preferred Stock, or any
4.
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rights or options to subscribe for, purchase or otherwise acquire any of the
foregoing by way of dividend or other distribution.
(b) any cash paid or payable otherwise than as a cash
dividend, or
(c) Preferred Stock or additional stock or other
securities or property (including cash) by way of spinoff, split-up,
reclassification, combination of shares or similar corporate rearrangement,
(other than shares of Preferred Stock issued as a stock split or adjustments in
respect of which shall be covered by the terms of Section 3.1 above), then and
in each such case, the Holder hereof shall, upon the exercise of this Warrant,
be entitled to receive, in addition to the number of shares of Preferred Stock
receivable thereupon, and without payment of any additional consideration
therefor, the amount of stock and other securities and property (including cash
in the cases referred to in clause (b) above and this clause (c)) which such
Holder would hold on the date of such exercise had he been the holder of record
of such Preferred Stock as of the date on which holders of Preferred Stock
received or became entitled to receive such shares or all other additional stock
and other securities and property.
3.3 REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR
SALE. If any recapitalization, reclassification or reorganization of the capital
stock of the Company, or any consolidation or merger of the Company with another
corporation, or the sale of all or substantially all of its assets or other
transaction shall be effected in such a way that holders of Preferred Stock
shall be entitled to receive stock, securities, or other assets or property (an
"ORGANIC CHANGE"), then, as a condition of such Organic Change, lawful and
adequate provisions shall be made by the Company whereby the Holder hereof shall
thereafter have the right to purchase and receive (in lieu of the shares of the
Preferred Stock of the Company immediately theretofore purchasable and
receivable upon the exercise of the rights represented hereby) such shares of
stock, securities or other assets or property as may be issued or payable with
respect to or in exchange for a number of outstanding shares of such Preferred
Stock equal to the number of shares of such stock immediately theretofore
purchasable and receivable upon the exercise of the rights represented hereby;
provided, however, that in the event the value of the stock, securities or other
assets or property (determined in good faith by the Board of Directors of the
Company) issuable or payable with respect to one share of the Preferred Stock of
the Company immediately theretofore purchasable and receivable upon the exercise
of the rights represented hereby is in excess of the Stock Purchase Price hereof
effective at the time of a merger and securities received in such
reorganization, if any, are publicly traded, then this Warrant shall expire
unless exercised prior to such Organic Change. In the event of any Organic
Change, appropriate provision shall be made by the Company with respect to the
rights and interests of the Holder of this Warrant to the end that the
provisions hereof (including, without limitation, provisions for adjustments of
the Stock Purchase Price and of the number of shares purchasable and receivable
upon the exercise of this Warrant) shall thereafter be applicable, in relation
to any shares of stock, securities or assets thereafter deliverable upon the
exercise hereof.
3.4 CERTAIN EVENTS. If any change in the outstanding Preferred
Stock of the Company or any other event occurs as to which the other provisions
of this Section 3 are not strictly applicable or if strictly applicable would
not fairly protect the purchase rights of the
5.
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Holder of the Warrant in accordance with such provisions, then the Board of
Directors of the Company shall make an adjustment in the number and class of
shares available under the Warrant, the Stock Purchase Price or the application
of such provisions, so as to protect such purchase rights as aforesaid. The
adjustment shall be such as will give the Holder of the Warrant upon exercise
for the same aggregate Stock Purchase Price the total number, class and kind of
shares as he would have owned had the Warrant been exercised prior to the event
and had he continued to hold such shares until after the event requiring
adjustment.
3.5 NOTICES OF CHANGE.
(a) Immediately upon any adjustment in the number or
class of shares subject to this Warrant and of the Stock Purchase Price, the
Company shall give written notice thereof to the Holder, setting forth in
reasonable detail and certifying the calculation of such adjustment.
(b) The Company shall give written notice to the
Holder at least 5 business days prior to the date on which the Company closes
its books or takes a record for determining rights to receive any dividends or
distributions.
(c) The Company shall also give written notice to the
Holder at least 15 business days prior to the date on which an Organic Change
shall take place.
4. ISSUE TAX. The issuance of certificates for shares of Preferred
Stock upon the exercise of the Warrant shall be made without charge to the
Holder of the Warrant for any issue tax (other than any applicable income taxes)
in respect thereof; provided, however, that the Company shall not be required to
pay any tax which may be payable in respect of any transfer involved in the
issuance and delivery of any certificate in a name other than that of the then
Holder of the Warrant being exercised.
5. CLOSING OF BOOKS. The Company will at no time close its transfer
books against the transfer of any warrant or of any shares of Preferred Stock
issued or issuable upon the exercise of any warrant in any manner which
interferes with the timely exercise of this Warrant.
6. NO VOTING OR DIVIDEND RIGHTS; LIMITATION OF LIABILITY. Nothing
contained in this Warrant shall be construed as conferring upon the Holder
hereof the right to vote or to consent or to receive notice as a stockholder of
the Company or any other matters or any rights whatsoever as a stockholder of
the Company. No dividends or interest shall be payable or accrued in respect of
this Warrant or the interest represented hereby or the shares purchasable
hereunder until, and only to the extent that, this Warrant shall have been
exercised. No provisions hereof, in the absence of affirmative action by the
holder to purchase shares of Preferred Stock, and no mere enumeration herein of
the rights or privileges of the holder hereof, shall give rise to any liability
of such Holder for the Stock Purchase Price or as a stockholder of the Company,
whether such liability is asserted by the Company or by its creditors.
6.
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7. WARRANTS TRANSFERABLE. Subject to compliance with applicable federal
and state securities laws, this Warrant and all rights hereunder are
transferable, in whole or in part, without charge to the holder hereof (except
for transfer taxes), upon surrender of this Warrant properly endorsed. Each
taker and holder of this Warrant, by taking or holding the same, consents and
agrees that this Warrant, when endorsed in blank, shall be deemed negotiable,
and that the holder hereof, when this Warrant shall have been so endorsed, may
be treated by the Company, at the Company's option, and all other persons
dealing with this Warrant as the absolute owner hereof for any purpose and as
the person entitled to exercise the rights represented by this Warrant, or to
the transfer hereof on the books of the Company any notice to the contrary
notwithstanding; but until such transfer on such books, the Company may treat
the registered owner hereof as the owner for all purposes.
8. RIGHTS AND OBLIGATIONS SURVIVE EXERCISE OF WARRANT. The rights and
obligations of the Company, of the holder of this Warrant and of the holder of
shares of Preferred Stock issued upon exercise of this Warrant, shall survive
the exercise of this Warrant.
9. MODIFICATION AND WAIVER. This Warrant and any provision hereof may
be changed, waived, discharged or terminated with the written consent of the
Company and holders of at least 66 2/3% in interest of the outstanding Loan
Amounts (as such term is defined in the Note and Warrant Purchase Agreement of
even date herewith, to which the Company and Holder are parties, INTER ALIA).
Holder acknowledges that because this Warrant may be amended with the consent of
such 66 2/3% in interest, Holder's rights hereunder may be amended or waived
without Holder's consent.
10. NOTICES. Any notice, request or other document required or
permitted to be given or delivered to the holder hereof or the Company shall be
delivered or shall be sent by certified mail, postage prepaid, to each such
holder at its address as shown on the books of the Company or to the Company at
the address indicated therefor in the first paragraph of this Warrant or such
other address as either may from time to time provide to the other.
11. BINDING EFFECT ON SUCCESSORS. This Warrant shall be binding upon
any corporation succeeding the Company by merger, consolidation or acquisition
of all or substantially all of the Company's assets. All of the obligations of
the Company relating to the Preferred Stock issuable upon the exercise of this
Warrant shall survive the exercise and termination of this Warrant. All of the
covenants and agreements of the Company shall inure to the benefit of the
successors and assigns of the holder hereof.
12. DESCRIPTIVE HEADINGS AND GOVERNING LAW. The description headings of
the several sections and paragraphs of this Warrant are inserted for convenience
only and do not constitute a part of this Warrant. This Warrant shall be
construed and enforced in accordance with, and the rights of the parties shall
be governed by, the laws of the State of California.
13. LOST WARRANTS. The Company represents and warrants to the Holder
hereof that upon receipt of evidence reasonably satisfactory to the Company of
the loss, theft, destruction, or mutilation of this Warrant and, in the case of
any such loss, theft or destruction, upon receipt of
7.
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an indemnity reasonably satisfactory to the Company, or in the case of any such
mutilation upon surrender and cancellation of such Warrant, the Company, at its
expense, will make and deliver a new Warrant, of like tenor, in lieu of the
lost, stolen, destroyed or mutilated Warrant.
14. FRACTIONAL SHARES. No fractional shares shall be issued upon
exercise of this Warrant. The Company shall, in lieu of issuing any fractional
share, pay the holder entitled to such fraction a sum in cash equal to such
fraction multiplied by the then effective Stock Purchase Price.
8.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed by its officers, thereunto duly authorized this 25th day of June, 1999.
VERSICOR INC.,
a Delaware corporation
By: /s/ GEORGE F. HORNER
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George F. Horner
Chief Executive Officer
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EXHIBIT A
SUBSCRIPTION FORM
Date:____________,19____
Versicor Inc.
34790 Ardentech Court
Fremont, California 94555
Attn: Chief Executive Officer
Ladies and Gentlemen:
/ / The undersigned hereby elects to exercise the warrant issued to it by
Versicor Inc. (the "Company") and dated June 25, 1999 Warrant No. PW-_____
(the "Warrant") and to purchase thereunder ______________________ shares of
the Series ____ Preferred Stock of the Company (the "Shares") at a purchase
price of _________________________ Dollars ($____________) per Share or an
aggregate purchase price of ___________________________ Dollars
($__________) (the "Purchase Price").
/ / The undersigned hereby elects to convert _____________________________
percent (________%) of the value of the Warrant pursuant to the provisions
of Section 1.2 of the Warrant.
Pursuant to the terms of the Warrant the undersigned has delivered the
Purchase Price herewith in full in cash or by certified check or wire transfer.
Very truly yours,
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By:
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Title:
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