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Exhibit 4.3
THIS WARRANT MAY NOT BE SOLD OR OTHERWISE TRANSFERRED BY ANY PERSON, INCLUDING A
PLEDGEE, IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE WARRANT
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE STATE SECURITIES
LAWS OR AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY, THAT AN EXEMPTION
FROM REGISTRATION IS THEN AVAILABLE.
No. W-1 For the Purchase
of 71,429 shares of
Common Stock
WARRANT TO PURCHASE COMMON STOCK
OF
EXELIXIS PHARMACEUTICALS, INC., (A DELAWARE CORPORATION)
VOID AFTER 5:00 P.M., EASTERN STANDARD TIME, ON JANUARY 27, 2005
EXELIXIS PHARMACEUTICALS, INC., a Delaware corporation (the "COMPANY"), for
value received, hereby certifies that CREATIVE BIOMOLECULES, INC. or its
registered assigns (the "HOLDER"), is entitled, subject to the terms set forth
below, to purchase from the Company, at any time or from time to time at or
before the earlier of 5:00 p.m. Boston, Massachusetts time on January 27, 2005
and the termination of this Warrant as provided in Section 9 hereof, 71,429
shares of Common Stock. $.001 par value per share, of the Company (the "COMMON
STOCK"), at a purchase price of $0.70 per share, subject to adjustment upon the
occurrence of certain events set forth in this Warrant. The shares of Common
Stock issuable upon exercise of this Warrant, and the purchase price per share,
are hereinafter referred to an the "Warrant Stock" and the "PURCHASE PRICE,"
respectively.
1. EXERCISE.
1.1 MANNER OF EXERCISE; PAYMENT IN CASH. This Warrant may be
exercised by the Holder, in whole or in part, by surrendering this Warrant,
with the purchase form appended hereto as Exhibit A duly executed by the
Holder, at the principal office of the Company, or at such other place as the
Company may designate, accompanied by payment in full of the Purchase Price
payable in respect of the number of shares of Warrant Stock purchased upon
such exercise. Payment of the Purchase Price shall be in lawful money of the
United States in cash or by certified or official bank check payable to the
order of the Company.
1.2 EFFECTIVENESS. 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 1.1 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 1.3 below shall be deemed to have become the holder or
holders of record of the warrant Stock represented by such certificates.
1.
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1.3 DELIVERY OF CERTIFICATE. As soon as practicable after the
exercise of this Warrant in full or in part, and in any event within ten (10)
days thereafter, the Company at its sole expense will cause to be issued in
the name of, and delivered to, the Holder, or, subject to the terms and
conditions hereof, as such Holder (upon payment by such Holder of any
applicable transfer taxes) may direct:
(a) a certificate or certificates for the number of full
shares of Warrant Stock to which such Holder shall be entitled upon such
exercise plus, in lieu of any fractional share to which such Holder would
otherwise be entitled, cash in an amount determined pursuant to Section 3
hereof, and
(b) 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 (without
giving effect to any adjustment therein) equal to the number of such shares
called for on the face of this Warrant minus the number of such shares
purchased by the Holder upon such exercise as provided in Section 1.1 above.
2. FRACTIONAL SHARES. The Company shall not be required upon the
exercise of this warrant to issue any fractional shares, but shall make an
adjustment therefor in cash on the basis of the fair market value of the
Warrant Stock as shall be reasonably determined by the Board of Directors of
the Company.
3. ADJUSTMENTS. The number of shares of warrant Stock shall be subject
to the following adjustments as contained in this Section 3.
3.1 SPECIAL DEFINITIONS. For purposes of this Section 3, the
following definitions shall apply:
(a) "OPTION" shall mean rights, options or warrants to
subscribe for, purchase or otherwise acquire either Common Stock or
Convertible Securities (as defined below).
(b) "ORIGINAL ISSUE DATE" shall mean the date on which a share
of the Company's Series A Convertible Preferred Stock, par value $.001 per
share (the "SERIES A CONVERTIBLE PREFERRED STOCK"), was first issued.
(c) "CONVERTIBLE SECURITIES" shall mean any evidences of
indebtedness, shares (other than Common Stock and Series A Convertible
Preferred Stock) or other securities directly or indirectly convertible into
or exchangeable for Common Stock.
(d) "ADDITIONAL SHARES OF COMMON STOCK" shall mean all shares
of Common Stock issued (or, pursuant to Section 3.3, deemed to be issued) by,
the Company after the Original Issue Date, other than the following
(collectively, "EXCLUDED SHARES"):
(i) shares of common Stock issued or issuable upon
conversion of shares of Series A Convertible Preferred Stock; or
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(ii) shares of Common Stock issued or issuable upon
conversion of shares of Series A Convertible Preferred Stock outstanding on
the Original Issue Date; or
(iii) shares of Common Stock issued or issuable to
officers, employees or directors of, or consultants to, the company pursuant
to a stock purchase or option plan or other employee stock bonus arrangement
(collectively, the "PLANS") approved by the Board of Directors; or
(iv) shares of Common Stock issuable pursuant to warrants
outstanding as of the first Original Issue Date (notwithstanding any
subsequent transfer of all or part of such warrants); or
(v) shares of Common Stock issued or issuable pursuant to
warrants issued in connection with the establishment of credit facilities for
the company (including, without limitation, in connection with equipment
leasing arrangements); or
(vi) shares of Common Stock issued in connection with
corporate partnering relationships or joint ventures approved by the Board of
Directors.
3.2 NO ADJUSTMENT OF PURCHASE PRICE. No adjustment in the number of
shares of Warrant Stock into which a Warrant is convertible shall be made, by
adjustment in the Purchase Price in respect of the issuance of Additional
Shares of Common Stock or otherwise unless the consideration per share for an
Additional Share of Common Stock issued or deemed to be issued by the Company
is less than the Purchase Price in effect on the date of, and immediately
prior to, the issue of such Additional Shares of Common Stock.
3.3 ISSUE OF SECURITIES DEEMED ISSUE OF ADDITIONAL SHARES OF COMMON
STOCK.
(a) OPTIONS AND CONVERTIBLE SECURITIES. In the event the
Company at any time or from time to time after the Original Issue Date shall
issue any Options or Convertible Securities or shall fix a record date for
the determination of holders of any class of securities entitled to receive
any such Options or Convertible Securities, then the maximum number of shares
(as set forth in the instrument relating thereto without regard to any
provisions contained therein for a subsequent adjustment of such number) of
Common Stock issuable upon the exercise of such Options or, in the case of
Convertible Securities and Options therefor, the conversion or exchange of
such Convertible Securities, shall be deemed to be Additional Shares of
Common Stock issued as of the time of such issue or, in case such a record
date shall have been fixed, as of the close of business on such record date,
provided that Additional Shares of Common Stock shall not be deemed to have
been issued unless the consideration per share (determined pursuant to
Section 3.5 hereof) of such Additional Shares of Common Stock would be less
than the Purchase Price in effect on the date of and immediately prior to
such issue, or such record date, as the case may be, and provided further
that in any such case in which Additional Shares of Common Stock are deemed
to be issued:
3.
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(i) no further adjustment in the Purchase Price shall be
made upon the subsequent issue of Convertible Securities or shares of Common
Stock upon the exercise of such Options or conversion or exchange of such
Convertible Securities;
(ii) if such options or Convertible Securities by their
terms provide, with the passage of time or otherwise, for any increase in the
consideration payable to the company, or decrease in the number of shares of
Carmon Stock issuable upon the exercise. conversion or exchange thereof, the
Purchase Price computed upon the original issue thereof (or upon the
occurrence of a record date with respect thereto), and any subsequent
adjustments based thereon, shall, upon any such increase or decrease becoming
effective, be recomputed to reflect such increase or decrease insofar as it
affects such options or the rights of conversion or exchange under such
Convertible Securities;
(iii) upon the expiration of any such options or any
rights of conversion or exchange under such Convertible Securities which
shall not have been exercised, the Purchase Price computed upon the original
issue thereof (or upon the occurrence of a record date with respect thereto),
and any subsequent adjustments based thereon, shall, upon such expiration, be
recomputed as if:
(1) in the case of Convertible Securities or Options
for Common Stock the only Additional Shares of Common Stock issued were the
shares of Common Stock, if any, actually issued upon the exercise of such
Options or the conversion or exchange of such Convertible Securities and the
consideration received therefor was the consideration actually received by
the Company for the issue of all such Options, whether or not exercised, plus
the consideration actually received by the Company upon such exercise, or for
the issue of all such Convertible Securities which were actually converted or
exchanged, plus the additional consideration, if any, actually received by
the Company upon such conversion or exchange; and
(2) in the case of Options for Convertible
Securities only the Convertible Securities, if any, actually issued upon the
exercise thereof were issued at the time of issue of such Options, and the
consideration received by the Company for the Additional Shares of Common
Stock deemed to have been then issued was the consideration actually received
by the Company for the issue of all such Options, whether or not exercised,
plus the consideration deemed to have been received by the company
(determined pursuant to Section 3.5) upon the issue of the Convertible
Securities with respect to which such Options were actually exercised;
(iv) no readjustment pursuant to clause (i) or (iii)
above shall have the effect of increasing the Purchase Price to an amount
which exceeds the lower of (x) the Purchase Price on the original adjustment
date, or (y) the Purchase Price that would have resulted from any issuance of
Additional Shares of Common Stock between the original adjustment date and
such readjustment date;
(v) in the case of any Options which expire by their
terms not more than 30 days after the date of issue thereof, no adjustment of
the Purchase Price shall be made until the expiration or exercise of all such
Options, whereupon such adjustment shall be made in the same manner provided
in clause (iii) above; and
4.
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(vi) if such record date shall have been fixed and such
Options or Convertible Securities are not issued on the date fixed therefor,
the adjustment previously made in the Purchase Price which became effective
on such record date shall be cancelled as of the close of business on such
record date, and thereafter the Purchase Price shall be adjusted pursuant to
this Section 3.3 as of the actual date of their issuance.
(b) STOCK DIVIDENDS, STOCK DISTRIBUTIONS AND SUBDIVISIONS. In
the event the Company at any time or from time to time after the Original
Issue Date shall declare or pay any dividend or make any other distribution
on the Common Stock payable in Common Stock or effect a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in Common Stock), then and in any such event,
Additional Shares of Common Stock shall be deemed to have been issued:
(i) in the case of any such dividend or distribution,
immediately after the close of business on the record date for the
determination of holders of any class of securities entitled to receive such
dividend or distribution, or
(ii) in the case of any such subdivision, at the close of
business on the date immediately prior to the date upon which corporate
action becomes effective.
If such record date shall have been fixed and no part of such dividend
shall have been paid on, the date fixed therefor, the adjustment previously
made for the Purchase Price which became effective on such record date shall
be cancelled as of the close of business on such record date, and thereafter
the Purchase Price shall be adjusted pursuant to this Section 3.3(b) as of
the time of actual payment of such dividend.
3.4 ADJUSTMENT OF PURCHASE PRICE UPON ISSUANCE OF ADDITIONAL SHARES
OF COMMON STOCK.
(a) In the event the Company shall issue Additional Shares of
Common Stock (including, without limitation, Additional Shares of Common
Stock deemed to be issued pursuant to Section 3.3 but excluding Additional
Shares of Common Stock deemed to be issued pursuant to Section 3.3(b), which
event is dealt with in Section 3.6 hereof), without consideration or for a
consideration per share less than the applicable Purchase Price in effect on
the date of and immediately prior to such issue, then and in such event, such
Purchase Price shall be reduced, concurrently with such issue, to a price
(calculated to the nearest cent) determined by multiplying such Purchase
Price by a fraction, the numerator of which shall be (i) the number of shares
of Common Stock outstanding immediately prior to such issue plus (ii) the
number of shares of Common Stock which the aggregate consideration received
or deemed to have been received by the Company for the total number of
Additional Shares of Common Stock so issued would purchase at such Purchase
Price, and the denominator of which shall be (i) the number of shares of
Common Stock outstanding immediately prior to such issue plus (ii) the number
of Additional Shares of Common Stock so issued or deemed to be issued.
(b) For the purposes of Section 3.4(a) hereof, (i) all shares
of Common Stock issuable upon conversion of shares of Series A Convertible
Preferred Stock, and upon exercise of options or conversion or exchange of
Convertible Securities which are part of the
5.
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Excluded Shares, outstanding immediately prior to any issue of Additional
Shares of Common Stock, or any event with respect to which Additional Shares
of Common Stock shall be deemed to be issued, shall be deemed to be
outstanding; and (ii) immediately after any Additional Shares of Common Stock
are deemed issued pursuant to Section 3.3, such Additional Shares of Common
Stock shall be deemed to be outstanding.
(c) Notwithstanding anything to the contrary contained herein,
the applicable Purchase Price in effect at the time Additional Shares of
Common Stock are issued or deemed to be issued shall not be reduced pursuant
to Section 3.4(a) hereof at such time if the amount of such reduction would
be an amount less than $0.01, but any such amount shall be carried forward
and reduction with respect thereto made at the time of and together with any
subsequent reduction which, together with such amount and any other amount or
amounts so carried forward, shall aggregate $0.01 or more.
3.5 DETERMINATION OF CONSIDERATION. For purposes of this Section 3,
the consideration received by the Company for the issue of any Additional
Shares of Common Stock shall be computed as follows;
(a) CASH AND PROPERTY. Such consideration shall:
(i) insofar as it consists of cash, be computed at the
aggregate amounts of cash received by the company excluding amounts paid or
payable for accrued interest or accrued dividends;
(ii) insofar as it consists of property other than cash,
be computed at the fair market value thereof at the time of such issue, as
determined in good faith by the Board of Directors; and
(iii) in the event Additional Shares of Common Stock are
issued together with ocher shares or securities or other assets of the
Company for consideration which covers both, be the proportion of such
consideration so received, computed as provided in clauses (i) and (ii)
above, as determined in good faith by the Board of Directors.
(b) OPTIONS AND CONVERTIBLE SECURITIES. The consideration per
share received by the company for Additional Shares of Common Stock deemed to
have been issued pursuant to Section 3.3(a), relating to Options and
Convertible Securities, shall be determined by dividing (i) the total amount,
if any, received or receivable by the company as consideration for the issue
of such Options or Convertible Securities, plus the minimum aggregate amount
of additional consideration (as set forth in the instruments relating
thereto, without regard to any provision contained therein for a subsequent
adjustment of such consideration) payable to the Company upon the exercise of
such Options or the conversion or exchange of such Convertible Securities or
in the case of options for Convertible Securities, the exercise of such
Options for Convertible Securities and the conversion or exchange of such
Convertible Securities, by (ii) the maximum number of shares of Common Stock
(as set forth in the instruments relating thereto, without regard to any
provision contained therein for a subsequent adjustment of such number)
issuable upon the exercise of such options or the conversion or exchange of
such Convertible Securities.
6.
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3.6 ADJUSTMENT FOR DIVIDENDS, DISTRIBUTIONS, SUBDIVISIONS,
COMBINATIONS OR CONSOLIDATIONS OF COMMON STOCK.
(a) STOCK DIVIDENDS, DISTRIBUTIONS OR SUBDIVISIONS. In the
event the company shall issue Additional Shares of Common Stock pursuant to
Section 3.3(b) in a stock dividend, stock distribution or subdivision, the
Purchase Price in effect immediately prior to such stock dividend. Stock
distribution or subdivision shall, concurrently with the effectiveness of
such stock dividend, stock distribution or subdivision, be proportionately
decreased.
(b) COMBINATIONS OR CONSOLIDATIONS. In the event the
outstanding shares of Common Stock shall be combined or consolidated, by
reclassification or otherwise, into a lesser number of shares of Common
Stock, the Purchase Price in effect immediately prior to such combination or
consolidation shall, concurrently with the effectiveness of such combination
or consolidation, be proportionately increased.
3.7 NO IMPAIRMENT. The Company shall not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed hereunder by the
Company but shall at all times in good faith assist in the carrying out of
all the provisions of this Section 3 and in the taking of all such action as
may be necessary or appropriate in order to protect the rights of the Holder
against impairment.
3.8 CERTIFICATE OF ADJUSTMENT. When any adjustment is required to
be made in the Purchase Price, the Company shall promptly mail to the 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 this Section 3.
4. COMPLIANCE WITH SECURITIES ACT.
4.1 UNREGISTERED SECURITIES. The Holder acknowledges that this
Warrant and the Warrant Stock have not been registered under the Securities
Act of 1933, as amended, and the rules and regulations thereunder, or any
successor legislation (the "SECURITIES ACT"), and agrees not to sell, pledge,
distribute, offer for sale, transfer or otherwise dispose of this Warrant or
any Warrant Stock in the absence of (i) an effective registration statement
under the Securities Act covering this Warrant or such warrant Stock and
registration or qualification of this Warrant or such Warrant 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. The Company may delay issuance of the Warrant
Stock until completion of any action or obtaining of any consent, which the
Company deems necessary under any applicable law (including without
limitation state securities or "blue sky" laws).
4.2 INVESTMENT LETTER. Without limiting the generality of Section
4.1, unless the offer and sale of any shares of Warrant Stock shall have been
effectively registered under
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the Securities Act, the Company shall be under no obligation to issue the
Warrant Stock unless and until the Holder shall have executed an investment
letter in form and substance satisfactory to the Company, including a
warranty at the time of such exercise that the Holder is acquiring such
shares for its own account, for investment and not with a view to, or for
sale in connection with, the distribution of any such shares.
4.3 LEGEND. Certificates delivered to the Holder pursuant to
Section 4.3 shall bear the following legend or a legend in substantially
similar form:
"The shares represented by this certificate have been
taken for investment and they may not be sold or
otherwise transferred by any person, including a pledgee,
in the absence of an effective registration statement
for the shares under the Securities Act of 1933, as
amended, and applicable state securities laws or an
opinion of counsel, satisfactory to the Company, that
an exemption from registration is then available."
5. LIQUIDATING DIVIDENDS. If the Company pays a dividend or makes a
distribution on the Common Stock payable other 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
Common Stock (a "LIQUIDATING DIVIDEND"), then the Company will pay or
distribute to the Holder, upon the exercise hereof, in addition to the
Warrant Stock issuable upon such exercise, the Liquidating Dividend which
would have been paid to such Holder if it had been the owner of record of
such shares of Warrant Stock immediately prior to the date on which a record
is taken for such Liquidating Dividend or, if no record is taken, the date as
of which the record holders of Common Stock entitled to such dividends or
distribution are to be determined.
6. NOTICES OF RECORD DATE. In case:
(a) the Company shall take a record of the holders of Common
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 (other than a dividend payable solely in
Common Stock or out of funds legally available therefor), 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, 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 with or into another corporation (other than a
consolidation or merger in which the Company is the surviving entity or of
which the sole purpose is to change the state of incorporation of the
Company), 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, then, and in each such case, the Company will
mail or cause to be mailed to the Holder 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,
8.
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reclassification. consolidation, merger, transfer, dissolution, liquidation
or winding-up is to take place, and the time, if any is to be fixed, as of
which the holders of record of Common Stock (or such other stock or
securities at the time deliverable upon the exercise of this Warrant) shall
be entitled to exchange their shares of Common Stock (or such other stock or
securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, transfer,
dissolution, liquidation or winding-up. 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; provided, however, that the failure to so mail such
notice shall not affect the legality or validity of any such action.
7. RESERVATION OF STOCK. The Company will at all times reserve and keep
available, solely for 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.
8. 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.
9. TERMINATION UPON CERTAIN EVENTS. In the event of (a) a sale of
substantially all the assets of the Company to, or (b) a merger or
consolidation of the Company with or into, any other entity (other than (i) a
merger in which the stockholders of the Company immediately prior to the
transaction possess more than 50% of the voting securities of the surviving
entity (or parent, if any) immediately after the transaction, (ii) a merger
the sole purpose of which is to change the state of incorporation of the
Company) or (c) a dissolution or the adoption of a plan of liquidation of the
Company, this Warrant shall terminate on the effective date of such sale,
merger, consolidation, dissolution or adoption (the "EFFECTIVE DATE") and
become null and void; provided, however, that if this Warrant shall not have
otherwise terminated or expired, the Holder shall have the right until 5:00
p.m. Eastern standard time on the day immediately prior to the Effective Date
to exercise its rights hereunder to the extent not previously exercised.
10. TRANSFERS.
10.1 TRANSFERABILITY. This Warrant shall not be transferable by the
Holder and shall be exercisable only by the Holder. Without the prior written
consent of the Company, the Warrant shall not be assigned, pledged or
hypothecated in any way (whether by operation of law or otherwise) and shall
not be subject to execution, attachment or similar process. Any attempted
transfer, assignment, pledge, hypothecation or other disposition of the
Warrant or of any rights granted hereunder contrary to the provisions of this
Section 10.1, or the levy of any attachment or similar process upon the
warrant or such rights, shall be null and void.
10.2 WARRANT REGISTER. The Company will maintain a register (the
"Warrant Register") containing the names and addresses of the Holders of this
Warrant. Any Holder may
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change its, his or her address as shown on the Warrant Register by written
notice to the Company requesting such change.
10.3 WARRANT AGENT. The Company may, by written notice to the
Holder, appoint an agent for the purpose of issuing Warrant Stock (or such
other securities at the time deliverable upon the exercise of the Warrant),
exchanging or replacing the Warrant and maintaining the Warrant Register, and
thereafter any such issuance, exchange or replacement shall be made by such
agent.
10.4 RECOGNITION OF OWNERSHIP. Until any transfer of this Warrant
is made in the Warrant Register, the Company may treat the Holder 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
obligated to) treat the bearer hereof as the absolute owner hereof for all
purposes, notwithstanding any notice to the contrary.
11. NO RIGHTS AS STOCKHOLDER. Until the exercise of this warrant, the
Holder shall not have or exercise any rights by virtue hereof as a
stockholder of the Company.
12. NOTICES. All notices, requests and other communications hereunder
shall be in writing, shall be either (i) delivered by hand, (ii) made by
telex, telecopy or facsimile transmission, (iii) sent by overnight courier,
or (iv) sent by certified or registered mail, postage prepaid, return receipt
requested. In the case of notices from the Company to the Holder, they shall
be sent to the address furnished to the Company in writing by the last Holder
who shall have furnished an address to the Company in writing. All notices
from the Holder to the Company shall be delivered to the Company at its
offices at 246 Commonwealth Avenue, Boston, Massachusetts 02116, or such
other address as the Company shall so notify the Holder. All notices,
requests and other communications hereunder shall be deemed to have been
given (i) by hand, at the time of the delivery thereof to the receiving party
at the address of such party described above, (ii) if made by telex, telecopy
or facsimile transmission, at the time that receipt thereof has been
acknowledged by electronic confirmation or otherwise, (iii) if sent by
overnight courier, on the next business day following the day such notices is
delivered to the courier service, or (iv) if sent by certified or registered
mail, on the fifth business day following the day such mailing is made.
13. WAIVERS AND MODIFICATIONS. Any term or provision of this Warrant may
be waived only by written document executed by the party entitled to the
benefits of such terms or provisions. The terms and provisions of this
Warrant may be modified or amended only by written agreement executed by the
parties hereto.
14. HEADINGS. The headings in this Warrant are for convenience of
reference only and shall in no way modify or affect the meaning or
construction of any of the terms or provisions of this Warrant.
15. GOVERNING LAW. This Warrant will be governed by and construed in
accordance with and governed by the laws of the Commonwealth of
Massachusetts, without giving effect to the conflict of law principles
thereof.
10.
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This warrant certificate has been executed by a duly authorized officer
of the Company and is intended to be treated as an instrument under seal.
EXELIXIS PHARMACEUTICALS, INC.
By: /s/ Sherry Reynolds
-------------------------------------
Sherry Reynolds
President and Chief Operating Officer
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EXHIBIT A
PURCHASE FORM
To: Exelixis Pharmaceuticals, Inc.
246 Commonwealth Avenue
Boston, MA 02116
Dated:
--------------------------
The undersigned, pursuant to the provisions set forth in the attached
Warrant (No. W-1), hereby irrevocably elects to purchase shares of the Common
Stock, $.001 par value per share (the "COMMON STOCK"), of Exelixis
Pharmaceuticals, Inc. (the "COMPANY") 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.
The undersigned is aware that the Common Stock has not been registered
under the Securities Act of 1933, as amended (the "SECURITIES ACT") or any state
securities laws. The undersigned understands that reliance by the Company on
exemptions under the Securities Act is predicated in part upon the truth and
accuracy of the statements of the undersigned in this Purchase Form.
The undersigned represents and warrants that (1) it has been furnished with
all information which it deems necessary to evaluate the merits and risks of the
purchase of the Common stock; (2) it has had the opportunity to ask questions
concerning the Common Stock and the Company and all questions posed have been
answered to its satisfaction; (3) it has been given the opportunity to obtain
any additional information it deems necessary to verify the accuracy of any
information obtained concerning the Common Stock and the Company; and (4) it has
such knowledge and experience in financial and business matters that it is able
to evaluate the merits and risks of purchasing the Common Stock and to make an
informed investment decision relating thereto.
The undersigned hereby represents and warrants that it is purchasing the
Common Stock for its own account for investment and not with a view to the sale
or distribution of all or any part of the Common Stock.
The undersigned understands that because the Common Stock has not been
registered under the Securities Act, it must continue to bear the economic risk
of the investment for an indefinite period of time and the Common Stock cannot
be sold unless it is subsequently registered under applicable federal and state
securities laws or an exemption from such registration is available.
The undersigned agrees that it will in no event sell or distribute or
otherwise dispose of all or any part of the Common Stock unless (1) there is an
effective registration statement under the Securities Act and applicable state
securities laws covering any such transaction involving the Common Stock or (2)
the Company receives an opinion satisfactory to the company of the undersigned's
legal counsel stating that such transaction is exempt from registration. The
1.
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undersigned consents to the placing of a legend on its certificate for the
Common Stock stating that the Common Stock has not been registered and
setting forth the restriction on transfer contemplated hereby and to the
placing of a stop transfer order on the books of the Company and with any
transfer agents against the Common Stock until the Common Stock may be
legally resold or distributed without restriction.
The undersigned understands the restrictions on the right to transfer or
otherwise dispose of the Common Stock set forth in the Warrant, which the
undersigned has carefully reviewed. The undersigned consents to the placing
of a legend on its certificate for the Common Stock referring to such
restrictions and the placing of stop transfer orders until the Common Stock
may be transferred in accordance with the terms of such restrictions.
The undersigned understands that at the present time Rule 144 of the
Securities and Exchange Commission (the "COMMISSION") is not available for
the resale or distribution of the Common Stock. The undersigned understands
that the Company has no obligation to the undersigned to register the common
Stock with the Commission and has not represented that it will register the
Common Stock.
The undersigned has considered the federal and state income tax
implications of the exercise of the warrant and the purchase and subsequent
sale of the Common Stock.
Holder:
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Dated:
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2.
