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EXHIBIT 4.3
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT
WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO
SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL FOR THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.
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Warrant No. WA-1 Number of Shares: 58,500
Date of Issuance: December 9, 1997 (subject to adjustment)
VERSICOR INC.
SERIES C PREFERRED STOCK PURCHASE WARRANT
Versicor Inc. (the "COMPANY"), for value received, hereby certifies
that Healthcare Ventures V or its registered assigns (the "REGISTERED
HOLDER"), is entitled, subject to the terms set forth below, to purchase from
the Company, at any time after the date hereof and on or before December 9,
2002, up to 58,500 shares of Series C Preferred Stock of the Company
("PREFERRED STOCK"), at a purchase price of $5.00 per share. The number of
shares purchasable upon exercise of this Warrant, and the purchase price per
share, each as adjusted from time to time pursuant to the provisions of this
Warrant, are hereinafter referred to as the "WARRANT STOCK" and the "PURCHASE
PRICE," respectively.
1. EXERCISE.
(a) This Warrant may be exercised by the Registered
Holder, in whole or in part, by surrendering this Warrant, with the purchase
form appended hereto as EXHIBIT A duly executed by such Registered Holder or
by such Registered Holder's duly authorized attorney, at the principal office
of the Company, or at such other office or agency as the Company may
designate, accompanied by payment in full by cash, check or wire transfer of
the Purchase Price payable in respect of the number of shares of Warrant
Stock purchased upon such exercise.
(b) Each exercise of this Warrant shall be deemed to have
been effected immediately prior to the close of business on the day on which
this Warrant shall have been surrendered to the Company as provided in
Section 1(a) above. At such time, the person or persons in whose name or
names any certificates for Warrant Stock shall be issuable upon such exercise
as provided in Section 1(d) below shall be deemed to have become the holder
or holders of record of the Warrant Stock represented by such certificates.
(c) NET ISSUE EXERCISE.
(i) In lieu of exercising this Warrant in the manner
provided above in Section 1(a), the Registered Holder may elect to receive
shares equal to the value of this Warrant (or the portion thereof being
canceled) by surrender of this Warrant at the principal office of the
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(or the portion thereof being canceled) 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 a number of shares of Preferred
Stock computed using the following formula:
X = Y(A - B)
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A
Where X = The number of shares of Preferred Stock to be issued to
the Registered Holder.
Y = The number of shares of Preferred Stock purchasable
under this Warrant (at the date of such calculation).
A = The fair market value of one share of Preferred Stock
(at the date of such calculation).
B = The Purchase Price (as adjusted to the date of such
calculation).
(ii) For purposes of this Section 1(c), the fair
market value of Preferred Stock shall be the price per share which the
Company could obtain from a willing buyer for the shares sold by the Company
from authorized but unissued shares, as such price shall be agreed by the
Company and the Registered Holder.
(d) As soon as practicable after the exercise of this
Warrant in full or in part, and in any event within 10 days thereafter, the
Company at its expense will cause to be issued in the name of, and delivered
to, the Registered Holder, or as such Holder (upon payment by such Holder of
any applicable transfer taxes) may direct:
(i) a certificate or certificates for the
number of shares of Warrant Stock to which such Registered Holder shall be
entitled, and
(ii) in case such exercise is in part only, a
new warrant or warrants (dated the date hereof) of like tenor, calling in the
aggregate on the face or faces thereof for the number of shares of Warrant
Stock equal (without giving effect to any adjustment therein) to the number
of such shares called for on the face of this Warrant minus the number of
such shares purchased by the Registered Holder upon such exercise as provided
in Section 1(a) above.
2. ADJUSTMENTS
(a) If outstanding shares of the Company's Preferred
Stock shall be subdivided into a greater number of shares or a dividend in
Preferred Stock shall be paid in respect of Preferred Stock, the Purchase
Price in effect immediately prior to such subdivision or at the record date
of such dividend shall simultaneously with the effectiveness of such
subdivision or immediately after the record date of such dividend be
proportionately reduced. If outstanding shares of Preferred Stock shall be
combined into a smaller number of shares, the Purchase Price in effect
immediately prior to such combination shall, simultaneously with the
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required to be made in the Purchase Price, the number of shares of Warrant
Stock purchasable upon the exercise of this Warrant shall be changed to the
number determined by dividing (i) an amount equal to the number of shares
issuable upon the exercise of this Warrant immediately prior to such
adjustment, multiplied by the Purchase Price in effect immediately prior to
such adjustment, by (ii) the Purchase Price in effect immediately after such
adjustment.
(b) In case of any reclassification or change of the
outstanding securities of the Company or of any reorganization of the Company
(or any other corporation the stock or securities of which are at the time
receivable upon the exercise of this Warrant) or any similar corporate
reorganization on or after the date hereof, then and in each such case the
holder of this Warrant, upon the exercise hereof at any time after the
consummation of such reclassification, change, reorganization, merger or
conveyance, shall be entitled to receive, in lieu of the stock or other
securities and property receivable upon the exercise hereof prior to such
consummation, the stock or other securities or property to which such holder
would have been entitled upon such consummation if such holder had exercised
this Warrant immediately prior thereto, all subject to further adjustment as
provided in paragraph (a); and in each such case, the terms of this Section 2
shall be applicable to the shares of stock or other securities properly
receivable upon the exercise of this Warrant after such consummation.
(c) When any adjustment is required to be made in the
Purchase Price, the Company shall promptly mail to the Registered Holder a
certificate setting forth the Purchase Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment. Such
certificate shall also set forth the kind and amount of stock or other
securities or property into which this Warrant shall be exercisable following
the occurrence of any of the events specified in Section 2(a) or (b) above.
(d) In order to avoid doubt, it is acknowledged that the
holder of this Warrant shall be entitled to the benefit of all adjustments in
the number of shares of Common Stock of the Company issuable upon conversion
of the Preferred Stock of the Company which occur prior to the exercise of
this Warrant, including without limitation, any increase in the number of
shares of Common Stock issuable upon conversion as a result of a dilutive
issuance of capital stock.
3. TRANSFERS.
(a) Each holder of this Warrant acknowledges that this
Warrant, the Warrant Stock and the Common Stock of the Company have not been
registered under the Securities Act of 1933, as amended (the "Securities
Act"), and agrees not to sell, pledge, distribute, offer for sale, transfer
or otherwise dispose of this Warrant, any Warrant Stock issued upon its
exercise or any Common Stock issued upon conversion of the Warrant Stock in
the absence of (i) an effective registration statement under the Act as to
this Warrant, such Warrant Stock or such Common Stock and registration or
qualification of this Warrant, such Warrant Stock or such Common Stock under
any applicable Blue Sky or state securities law then in effect, or (ii) an
opinion of counsel, satisfactory to the Company, that such registration and
qualification are not required. Each certificate or other instrument for
Warrant Stock issued upon the exercise of this Warrant shall bear a legend
substantially to the foregoing effect.
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(b) Subject to the provisions of Section 3(a) hereof,
this Warrant and all rights hereunder are transferable, in whole or in part,
upon surrender of the Warrant with a properly executed assignment (in the
form of EXHIBIT B hereto) at the principal office of the Company.
(c) Until any transfer of this Warrant is made in the
warrant register, the Company may treat the Registered Holder of this Warrant
as the absolute owner hereof for all purposes; PROVIDED, HOWEVER, that if and
when this warrant is properly assigned in blank, the Company may (but shall
not be required to) treat the bearer hereof as the absolute owner hereof for
all purposes, notwithstanding any notice to the contrary.
(d) The Company will maintain a register containing the
names and addresses of the Registered Holders of this Warrant. Any Registered
Holder may change such Registered Holder's address as shown on the warrant
register by written notice to the Company requesting such change.
4. NO IMPAIRMENT. The Company will not, by amendment of its
charter or through reorganization, consolidation, merger, dissolution, sale
of assets or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but will at
all times in good faith assist in the carrying out of all such terms and in
the taking of all such action as may be necessary or appropriate in order to
protect the rights of the holder of this Warrant against impairment.
5. LIQUIDATING DIVIDENDS. If the Company pays a dividend or
makes a distribution on the Preferred Stock payable otherwise than in cash
out of earnings or earned surplus (determined in accordance with generally
accepted accounting principles) except for a stock dividend payable in shares
of Preferred Stock (a "LIQUIDATING DIVIDEND"), then the Company will pay or
distribute to the Registered Holder of this Warrant, upon the exercise
hereof, in addition to the Warrant Stock purchased upon such exercise, the
Liquidating Dividend which would have been paid to such Registered Holder if
he had been the owner of record of such shares of Warrant Stock immediately
prior to the date on which a record was taken for such Liquidating Dividend
or, if no record was taken, the date as of which the record holders of
Preferred Stock entitled to such dividends or distribution were determined.
6. TERMINATION. This Warrant (and the right to purchase
securities upon exercise hereof) shall terminate on December 9, 2002.
7. NOTICES OF CERTAIN TRANSACTIONS. In case:
(a) the Company shall take a record of the holders of its
Preferred Stock (or other stock or securities at the time deliverable upon
the exercise of this Warrant) for the purpose of entitling or enabling them
to receive any dividend or other distribution, or to receive any right to
subscribe for or purchase any shares of stock of any class or any other
securities, or to receive any other right, to subscribe for or purchase any
shares of stock of any class or any other securities, or to receive any other
right, or
(b) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company, any consolidation or
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(b) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company any consolidation or merger of the Company with or
into another corporation (other than a consolidation or merger in which the
Company is the surviving entity), or any transfer of all or substantially all
of the assets of the Company, or
(c) of the voluntary or involuntary dissolution,
liquidation or winding-up of the Company, or
(d) of any redemption of the Preferred Stock or mandatory
conversion of the Preferred Stock into Common Stock of the Company,
then, and in each such case, the Company will mail or cause to be mailed to
the Registered Holder of this Warrant a notice specifying, as the case may
be, (i) the date on which a record is to be taken for the purpose of such
dividend, distribution or right, and stating the amount and character of such
dividend, distribution or right, or (ii) the effective date on which such
reorganization, reclassification, consolidation, merger, transfer,
dissolution, liquidation, winding-up, redemption or conversion is to take
place, and the time, if any is to be fixed, as of which the holders of record
of Preferred Stock (or such other stock or securities at the time deliverable
upon such reorganization, reclassification, consolidation, merger, transfer,
dissolution, liquidation, winding-up, redemption or conversion) are to be
determined. Such notice shall be mailed at least ten (10) days prior to the
record date or effective date for the event specified in such notice.
8. RESERVATION OF STOCK. The Company will at all times reserve
and keep available, solely for the issuance and delivery upon the exercise of
this Warrant, such shares of Warrant Stock and other stock, securities and
property, as from time to time shall be issuable upon the exercise of this
Warrant.
9. EXCHANGE OF WARRANTS. Upon the surrender by the Registered
Holder of any Warrant or Warrants, properly endorsed, to the Company at the
principal office of the Company, the Company will, subject to the provisions
of Section 3 hereof, issue and deliver to or upon the order of such Holder,
at the Company's expense, a new Warrant or Warrants of like tenor, in the
name of such Registered Holder or as such Registered Holder (upon payment by
such Registered Holder of any applicable transfer taxes) may direct, calling
in the aggregate on the face or faces thereof for the number of shares of
Preferred Stock called for on the face or faces of the Warrant or Warrants so
surrendered.
10. REPLACEMENT OF WARRANTS. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant and (in the case of loss, theft or destruction)
upon delivery of an indemnity agreement (with surety if reasonably required)
in an amount reasonably satisfactory to the Company, or (in the case of
mutilation) upon surrender and cancellation of this Warrant, the Company will
issue, in lieu thereof, a new Warrant of like tenor.
11. MAILING OF NOTICES. Any notice required or permitted
pursuant to this Warrant shall be in writing and shall be deemed sufficient
when delivered personally or sent by telegram
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or fax or forty-eight (48) hours after being deposited in the U.S. mail, as
certified or registered mail, with postage prepaid, addressed (a)if to the
Registered Holder, to the address of the Registered Holder most recently
furnished in writing to the Company and (b) if to the Company, to the address
set forth below or subsequently modified by written notice to the Registered
Holder.
12. NO RIGHTS AS STOCKHOLDER. Until the exercise of this
Warrant, the Registered Holder of this Warrant shall not have or exercise any
rights by virtue hereof as a stockholder of the Company.
13. NO FRACTIONAL SHARES. No fractional shares of Preferred
Stock will be issued in connection with any exercise hereunder. In lieu of
any fractional shares which would otherwise be issuable, the Company shall
pay cash equal to the product of such fraction multiplied by the fair market
value of one share of Preferred Stock on the date of exercise, as determined
in good faith by the Company's Board of Directors.
14. AMENDMENT OR WAIVER. Any term of this Warrant may be
amended or waived only by an instrument in writing signed by the party
against which enforcement of the amendment or waiver is sought.
15. HEADINGS. The headings in this Warrant are for purposes of
reference only and shall not limit or otherwise affect the meaning of any
provision of this Warrant.
16. GOVERNING LAW. This Warrant shall be governed, construed
and interpreted in accordance with the laws of the State of Delaware, without
giving effect to principles of conflicts of law.
VERSICOR INC.
By /s/ G. F. HORNER III
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Address:
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EXHIBIT A
PURCHASE FORM
To: VERSICOR INC. Dated:
The undersigned, pursuant to the provisions set forth in the
attached Warrant, hereby irrevocably elects to purchase _____ shares of the
Preferred Stock covered by such Warrant and herewith makes payment of $_____,
representing the full purchase price for such shares at the price per share
provided for in such Warrant.
Signature:
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Address:
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EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED, __________________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the attached
Warrant with respect to the number of shares of Series C Preferred Stock
covered thereby set forth below, unto:
NAME OF ASSIGNEE ADDRESS NO. OF SHARES
Dated: Signature:
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Witness:
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