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Exhibit 4.1
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE
LAWS, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED, ASSIGNED, OFFERED,
PLEDGED OR OTHERWISE TRANSFERRED UNLESS THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS COVERING ANY SUCH
TRANSACTION OR SUCH TRANSACTION IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
SUCH ACT AND LAWS.
TARGETED GENETICS CORPORATION
COMMON STOCK PURCHASE WARRANT
This certifies that for value received, THE BURNHAM INSTITUTE, or
registered assigns, is entitled, upon the terms and subject to the conditions
hereinafter set forth, at any time on or after the date hereof (subject to the
provisions of Section 1) and at or prior to 11:59 pm, Pacific time, on March 15,
2004 (the "Expiration Time"), but not thereafter, to acquire from TARGETED
GENETICS CORPORATION, a Washington corporation (the "Company"), in whole or from
time to time in part, up to a maximum of 50,000 fully paid and nonassessable
shares of Common Stock ("Warrant Stock") at a purchase price per share (the
"Exercise Price") of $4.50. Such number of shares, type of security and Exercise
Price are subject to adjustment as provided herein, and all references to
"Warrant Stock" and "Exercise Price" herein shall be deemed to include any such
adjustment.
1. VESTING OF WARRANTS
The rights to purchase Warrant Stock pursuant to this Warrant shall vest
according to the following schedule:
(a) 16,667 shares of Warrant Stock immediately upon execution of a license
agreement for patent rights pertaining to (i) U.S. Patent Application, "Method
of Inhibiting Replication of Hyperproliferative Cells," Serial No. 07/960,112,
and Continuing Application 08/473,399, and (ii) U.S. Patent Application. "Method
of Sensitizing Tumor Cells with Adenovirus E1A," Serial No. 08/301,316;
(b) 16,666 shares of Warrant Stock upon successful completion of in vivo
animal studies (as described in Appendix A to the Sponsored Research Agreement,
dated as of March __, 1997, between the Company and the Burnham Institute)
demonstrating in vivo utility of E1A in non-HER-2/neu overexpressing tumor
cells; provided, however, that the right to purchase Warrant Stock pursuant to
this subsection (b) shall terminate if such studies are not completed by March
15, 1998; and
(c) 16,667 shares of Warrant Stock upon issuance of a U.S. Patent covering
in vivo applications of E1A in non-HER-2/neu overexpressing tumors cells, such
patent to be similar in scope with respect to in vivo claims as covered for in
vitro applications under U.S. Patent No. 5,516,631.
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2. EXERCISE OF WARRANT
Subject to the vesting requirements set forth in Section 1 hereof, the
purchase rights represented by this Warrant are exercisable by the registered
holder hereof, in whole or in part, at any time and from time to time at or
prior to the Expiration Time by the surrender of this Warrant and the Notice of
Exercise form attached hereto duly executed to the office of the Company at 1100
Olive Way, Suite 100, Seattle, Washington 98101 (or such other office or agency
of the Company as it may designate by notice in writing to the registered holder
hereof at the address of such holder appearing on the books of the Company), and
upon payment of the Exercise Price for the shares thereby purchased (by cash or
by check or bank draft payable to the order of the Company or by cancellation of
indebtedness of the Company to the holder hereof, if any, at the time of
exercise in an amount equal to the purchase price of the shares thereby
purchased); whereupon the holder of this Warrant shall be entitled to receive
from the Company a stock certificate in proper form representing the number of
shares of Warrant Stock so purchased.
3. SECURITIES ACT COMPLIANCE
As a condition of its delivery of the certificates for the Warrant Stock,
the Company may require the registered holder hereof (or the transferee, if any,
of the Warrant Stock in whose name the shares of Warrant Stock are to be
registered) to deliver to the Company, in writing, representations regarding the
purchaser's sophistication, investment intent, acquisition for his, her or its
own account and such other matters as are reasonable and customary for
purchasers of securities in an unregistered private offering and the Company may
place conspicuously upon each certificate representing shares of Warrant Stock a
legend substantially in the following form, the terms of which are agreed to by
the registered holder hereof (including any transferee of this Warrant or the
Warrant Stock):
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR APPLICABLE STATE LAW, AND NO INTEREST THEREIN MAY BE
SOLD, DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR OTHERWISE
TRANSFERRED UNLESS (i) THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS
COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES, (ii)
THIS CORPORATION RECEIVES AN OPINION OF LEGAL COUNSEL FOR THE
HOLDER OF THESE SECURITIES SATISFACTORY TO THIS CORPORATION
STATING THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION, OR
(iii) THIS CORPORATION OTHERWISE SATISFIES ITSELF THAT SUCH
TRANSACTION IS EXEMPT FROM REGISTRATION.
4. ISSUANCE OF SHARES; NO FRACTIONAL SHARES OR SCRIP
Certificates for shares purchased hereunder shall be delivered to the
holder hereof within a reasonable time after the date on which this Warrant
shall have been exercised in accordance with the terms hereof. The Company
agrees that the shares so issued shall be, and be deemed to be, issued to such
holder as the record owner of such shares as of the close of business on the
date on which this Warrant shall have been exercised in accordance with the
terms hereof. No fractional shares or scrip representing fractional shares shall
be issued upon the exercise of this Warrant. With respect to any fraction of a
share called for upon the exercise of this Warrant, an amount equal to such
fraction multiplied by the then current price at which each share may be
purchased hereunder shall be paid in cash or check to the holder of this
Warrant.
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5. CHARGES, TAXES AND EXPENSES
Issuance of certificates for shares of Warrant Stock upon the exercise of
this Warrant shall be made without charge to the holder hereof for any issue or
transfer tax or other incidental expense in respect of the issuance of such
certificate, all of which taxes and expenses shall be paid by the Company, and
such certificates shall be issued in the name of the holder of this Warrant or
in such name or names as may be directed by the holder of this Warrant;
provided, however, that in the event certificates for shares of Warrant Stock
are to be issued in a name other than the name of the holder of this Warrant,
this Warrant when surrendered for exercise shall be accompanied by the
Assignment Form attached hereto duly executed by the holder hereof.
6. NO RIGHTS AS SHAREHOLDER
This Warrant does not entitle the holder hereof to any voting rights or
other rights as a shareholder of the Company prior to the exercise hereof.
7. EXCHANGE AND REGISTRY OF WARRANT
This Warrant is exchangeable, upon the surrender hereof by the registered
holder at the above-mentioned office or agency of the Company, for a new Warrant
of like tenor and dated as of such exchange. The Company shall maintain at the
above-mentioned office or agency a registry showing the name and address of the
registered holder of this Warrant. This Warrant may be surrendered for exchange,
transfer or exercise, in accordance with its terms and subject to compliance
with applicable laws, at such office or agency of the Company, and the Company
shall be entitled to rely in all respects, prior to written notice to the
contrary, upon such registry.
8. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant, and (in the case of
loss, theft or destruction) upon receipt of indemnity or security reasonably
satisfactory to it, and upon reimbursement to the Company of all reasonable
expenses incidental thereto, and (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will make and deliver a new Warrant of
like tenor and dated as of such cancellation, in lieu of this Warrant.
9. SATURDAYS, SUNDAYS AND HOLIDAYS
If the last or appointed day for the taking of any action or the expiration
of any right required or granted herein shall be a Saturday or a Sunday or shall
be a legal holiday, then such action may be taken or such right may be exercised
on the next succeeding day not a legal holiday.
10. MERGER, SALE OF ASSETS, ETC.
If at any time the Company proposes to merge or consolidate with or into
any other corporation, effect any reorganization, or sell or convey all or
substantially all of its assets to any other entity, in a transaction in which
the shareholders of the Company immediately before the transaction will own
immediately after the transaction less than a majority of the outstanding voting
securities of the entity (or its parent) succeeding to the business of the
Company (each such transaction, a "corporate transaction"), then the Company
shall give the holder of this Warrant 20 days' prior written notice of the
proposed effective date of such corporate transaction. The holder of this
Warrant shall have the right, effective as
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of the consummation of such corporate transaction, to exercise this Warrant in
whole or in part whether or not the vesting requirements set forth herein have
been satisfied; provided, however, that this Warrant may not be exercised as to
any unvested portion if this Warrant is assumed by the successor entity (or its
parent) in the corporate transaction or replaced with a substantially equivalent
warrant (subject to the same vesting schedule as is contained in Section 1
hereof) for the purchase of an amount of securities of the successor entity (or
its parent) which the holder of this Warrant would have received in the
corporate transaction had the unexercised portion of this Warrant (including the
unvested portion) been exercised in full immediately prior thereto. If this
Warrant has not been exercised or assumed by or on the effective date of such
corporate transaction, it shall terminate.
11. RECLASSIFICATION, CONVERSION, ETC.
If the Company at any time shall, by reclassification of securities or
otherwise, change the Warrant Stock into the same or a different number of
securities of any class or classes, this Warrant shall thereafter entitle the
holder to acquire such number and kind of securities as would have been issuable
in respect of the Warrant Stock (or other securities which were subject to the
purchase rights under this Warrant immediately prior to such subdivision,
combination, reclassification or other change) as the result of such change if
this Warrant had been exercised in full for cash immediately prior to such
change. The Exercise Price hereunder shall be adjusted if and to the extent
necessary to reflect such change. If the Warrant Stock or other securities
issuable upon exercise hereof are subdivided or combined into a greater or
smaller number of shares of such security, the number of shares issuable
hereunder shall be proportionately increased or decreased, as the case may be,
and the Exercise Price shall be proportionately reduced or increased, as the
case may be, in both cases according to the ratio which the total number of
shares of such security to be outstanding immediately after such event bears to
the total number of shares of such security outstanding immediately prior to
such event. The Company shall give the holder prompt written notice of any
change in the type of securities issuable hereunder, any adjustment of the
Exercise Price for the securities issuable hereunder, and any increase or
decrease in the number of shares issuable hereunder.
12. REPRESENTATIONS AND WARRANTIES
The Company hereby represents, warrants and covenants to the holder hereof
that:
(a) during the period this Warrant is outstanding, the Company will
reserve from its authorized and unissued Common Stock a sufficient number of
shares to provide for the issuance of Warrant Stock upon the exercise of this
Warrant;
(b) the issuance of this Warrant shall constitute full authority to
the Company's officers who are charged with the duty of executing stock
certificates to execute and issue, or cause to be issued, the necessary
certificates for the shares of Warrant Stock issuable upon exercise of this
Warrant;
(c) the Company has all requisite legal and corporate power to execute
and deliver this Warrant, to sell and issue the Warrant Stock hereunder and
perform its obligations under the terms of this Warrant;
(d) all corporate action on the part of the Company, its directors and
shareholders necessary for the authorization, execution, delivery and
performance of this Warrant by the Company, the authorization, sale, issuance
and delivery of the Warrant Stock and the performance of the Company's
obligations hereunder has been taken; and
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(e) the Warrant Stock, when issued in compliance with the provisions
of this Warrant and the Company's Articles of Incorporation and Bylaws, will be
validly issued, fully paid and nonassessable, and free of any liens or
encumbrances (other than liens or encumbrances created by or imposed upon the
holder of the Warrant Stock), and will be issued in compliance with all
applicable federal and state securities laws.
13. COOPERATION
The Company will not, by amendment of its Articles of Incorporation or
through any reorganization, recapitalization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other 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 will at all times in good faith
assist in the carrying out of all the provisions of this Warrant and in the
taking of all such reasonable action as may be necessary or appropriate in order
to protect the rights of the holder of the Warrant against material impairment.
14. GOVERNING LAW
This Warrant shall be governed by and construed in accordance with the laws
of the state of Washington.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its duly authorized officer.
Dated: March 15, 1997
TARGETED GENETICS CORPORATION
By /s/ James A. Johnson
Title: Vice President, Finance
ACCEPTED: ____________, 1997
THE BURNHAM INSTITUTE
By /s/ Louis Coffman
Its Vice President
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NOTICE OF EXERCISE
To: Targeted Genetics Corporation
(1) The undersigned hereby elects to purchase __________ shares of
Common Stock of Targeted Genetics Corporation pursuant to the terms of the
attached Warrant, and tenders herewith payment of the purchase price in full,
together with all applicable transfer taxes, if any.
(2) Please issue a certificate or certificates representing said
shares of Common Stock in the name of the undersigned or in such other name as
is specified below:
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(Name)
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(Address)
(3) The undersigned represents that the aforesaid shares of Common
Stock are being acquired for the account of the undersigned for investment and
not with a view to, or for resale in connection with, the distribution thereof
and that the undersigned has no present intention of distributing or reselling
such shares.
(4) The undersigned accepts such shares of Common Stock subject to
the terms of the License Agreement, dated as of March 15, 1997, between Targeted
Genetics Corporation and The Burnham Institute.
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(Date) (Signature)
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ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required
information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby
are hereby assigned to
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whose address is
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Dated:
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Holder's Signature:
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Holder's Address:
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Guaranteed Signature:
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NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatever, and must be guaranteed by a bank or trust company. Officers of
corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.