Exhibit 4.1
THIS WARRANT AND THE COMMON STOCK ISSUABLE WITH RESPECT HERETO HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE BLUE
SKY ACTS AND MAY BE TRANSFERRED OR SOLO ONLY PURSUANT TO REGISTRATION UNDER SUCH
ACTS, OR TO EXEMPTIONS THEREUNDER.
TARGETED THERAPY, INC.
an Oklahoma corporation
(the "Company")
May 5, 2000
For the Purchase of 2,000 Shares of the
Company's Common Stock, $.01 par value
COMMON STOCK PURCHASE WARRANT
NO. 001
This certifies that Acceleration Venture Management LLC, an Oklahoma
limited liability company, or such person's registered assigns (the "Warrant
Holder"), is entitled, subject to the terms and conditions hereinafter set forth
at any time on or before May 5, 2005, to purchase from time to time up to a
total of Two Thousand (2,000) shares of the Company's common stock, $.01 par
value (the "Common Stock"), at a price per share of $7.50 (the "Purchase
Price"). The number of shares of Common Stock purchasable under this Common
Stock Purchase Warrant (the "Warrant") and the Purchase Price thereof shall be
subject to adjustment as hereinafter provided.
Upon presentation and surrender of this Warrant, together with payment
of the Purchase Price for the shares of Common Stock thereby purchased, at the
office of the Company's Transfer Agent for the transfer of such stock or, if at
any time there is no such Transfer Agent, at the principal office of the
Company, the Warrant Holder shall be entitled to receive a certificate or
certificates for the shares of Common Stock so purchased (the "Shares"). All
Shares that may be issued upon the exercise of this Warrant will, upon issuance,
be fully paid, nonassessable, and free from all taxes, liens, and charges with
respect thereto.
This Warrant is subject to the following additional terms and
conditions:
1. EXERCISE OF WARRANT.
1.1. AT WARRANT HOLDER'S OPTION. This Warrant may be exercised at
any time on or before May 5, 2005 (the "Termination Date"), and the purchase
rights represented hereby are exercisable solely at the Warrant Holder's option.
If the Warrant Holder does not exercise its right to purchase the number of
shares of Common Stock designated herein, this Warrant shall automatically
expire on the Termination Date. In the event the Warrant Holder purchases less
than all the shares purchasable under this Warrant, the Company shall cancel
this Warrant upon the surrender hereof and execute and deliver a new Warrant of
like tenor for the balance of the shares purchasable hereunder.
1.2. PAYMENT OF PURCHASE PRICE. The Purchase Price shall be payable
in any one of the following ways, or in any combination thereof:
(i) CASH. The Purchase Price is payable in cash or by
certified or bank cashier's check in lawful funds of the United States of
America.
(ii) CANCELLATION OF INDEBTEDNESS. The Purchase Price is
payable through the cancellation of indebtedness owed by the Company to the
Warrant Holder.
(iii) COMMON STOCK. The Purchase Price is payable by delivery
to the Company of shares of the Company's Common Stock owned by the Warrant
Holder. The shares of Common Stock constituting such payment shall be valued at
Fair Market Value on the date of delivery. For purposes of this Warrant, "Fair
Market Value" of a share of Common Stock on a given day means the average of one
of the following prices for the five trading days immediately preceding such
given day of valuation: (i) if the Common Stock is listed on an established
stock exchange or exchanges or the Nasdaq National Market System, the highest
closing sales price of Common Stock as reported thereon; or if not so reported,
(ii) the average of the bid and asked prices, as quoted on the Nasdaq Small Cap
Market, Nasdaq Bulletin Board, or by the National Quotations Bureau. If the
Common Stock shall not be so quoted, the Fair Market Value shall be determined
by the Board of Directors of the Company taking into account all relevant facts
and circumstances, but in no event shall the Fair Market Value so determined by
the Board of Directors be less than the price per share of Common Stock in the
Company's equity financing most recently consummated prior to the valuation
date, with total proceeds to the Company in excess of $1,000,000.
(iv) NET-ISSUANCE. In addition to the foregoing methods of
payment, the Warrant Holder may exercise this Warrant, or a portion thereof, and
the Purchase Price shall be payable in connection therewith, by relinquishing
the right under this Warrant to purchase an Exercise Block and, in exchange
therefor, the Warrant Holder shall receive that number of shares of Common Stock
equal to the number of shares constituting the Exercise Block, less a number of
shares equal to the quotient of (i) the aggregate Purchase Price for the
Exercise Block, divided by (ii) the Fair Market Value per share of Common Stock
(determined as of the date of relinquishment). For purposes of this Section
1.2(d), "Exercise Block" shall mean that total number of shares covered by this
Warrant for which the Warrant Holder desires to relinquish as provided herein.
2. ADJUSTMENTS.
2.1. ADJUSTMENT TO PURCHASE PRICE. The Purchase Price of the Common
Stock issuable upon exercise of this Warrant shall be subject to adjustment,
from time to time, as follows:
(i) (A) If the Company shall issue any Additional Stock (as
hereinafter defined) after the date hereof for a consideration (the "New
Consideration") per shareless than the Purchase Price for the Common Stock
issuable upon exercise of the Warrant in
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effect immediately prior to the issuance of such Additional Stock, the Purchase
Price shall be reduced so as to be equal to such New Consideration.
(B) No adjustment of the Purchase Price for the Common
Stock issuable upon the exercise of this Warrant shall be made in an amount less
than one cent ($.01) per share, and (except to the limited extent provided for
in subparagraphs (i)(E)(y) and (i)(E)(z) of this Section 2.1) no adjustment of
such Purchase Price shall have the effect of increasing the Purchase Price above
the Purchase Price in effect immediately prior to such adjustment.
(C) In the case of the issuance of Common Stock for cash,
the consideration shall be deemed to be the amount of cash paid therefor before
deducting any reasonable discounts, commissions, or other expenses allowed,
paid, or incurred by the Company for any underwriting or otherwise in connection
with the issuance and sale thereof.
(D) In the case of the issuance of Common Stock for a
consideration in whole or in part other than cash, the consideration other than
cash shall be deemed to be the fair value thereof as determined by the Company's
Board of Directors irrespective of any accounting treatment.
(E) In the case of the issuance of options to purchase or
rights to subscribe for Common Stock, securities that by their terms are
convertible into or exchangeable for Common Stock, or options to purchase or
rights to subscribe for such convertible or exchangeable securities (which are
not excluded from the definition of Additional Stock):
(w) the aggregate maximum number of shares of Common
Stock deliverable upon exercise of such options to purchase or rights to
subscribe for Common Stock shall be deemed to have been issued at the time such
options or rights were issued and for a consideration equal to the consideration
(determined in the manner provided in subparagraphs (i)(C) and (i)(D) of this
Section 2.1), if any, received by the Company upon the issuance of such options
or rights, plus the minimum purchase price provided in such options or rights
for the Common Stock covered thereby;
(x) the aggregate maximum number of shares of Common
Stock deliverable upon conversion of or in exchange for any such convertible or
exchangeable securities or upon the exercise of options to purchase or rights to
subscribe for such convertible or exchangeable securities and subsequent
conversion or exchange thereof shall be deemed to have been issued at the time
such convertible or exchangeable securities were issued or such options or
rights were issued and for a consideration equal to the consideration, if any,
received by the Company for any such convertible or exchangeable securities and
related options or rights (excluding any cash received on account of accrued
interest or accrued dividends), plus the additional consideration, if any, to be
received by the Company upon the conversion or exchange of such securities or
the exercise of any related options or rights (the consideration in each case to
be determined in the manner provided in subparagraphs (i)(C) and (i)(D) of this
Section 2.1);
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(y) upon any change in the number of shares of Common
Stock deliverable upon exercise of such options or rights or conversion of or
exchange for such convertible or exchangeable securities, the Purchase Price as
then in effect shall forthwith be readjusted to such Purchase Price as would
have been obtained had the adjustment made upon the issuance of such options,
rights, or securities not convened prior to such change or options or rights
related to such securities not converted prior to such change been made upon the
basis of such change, but no further adjustment shall be made for the actual
issuance of Common Stock upon the exercise of any such options or rights or the
conversion or exchange of such securities;
(z) upon the expiration of any such options or
rights, the termination of any such rights to convert or exchange or the
expiration of any options or rights related to such convertible or exchangeable
securities, the Purchase Price shall forthwith be readjusted to such Purchase
Price as would have been obtained had the adjustment made upon the issuance of
such options, rights, or securities or options or rights related to such
securities been made upon the basis of the issuance of only the number of shares
of Common Stock actually issued upon the exercise of such options or rights,
upon the conversion or exchange of such securities, or upon the exercise of the
options or rights related to such securities.
(ii) "Additional Stock" for purposes of this Warrant shall
mean any shares of the Company's Common Stock issued by the Company in
conjunction with or after the determination of the Purchase Price as specified
hereinabove, other than:
(A) Common Stock issued pursuant to a transaction
described in Section (iii) hereof;
(B) Common Stock issuable or issued to officers,
directors, employees, or consultants of the Company, whether directly or
pursuant to the exercise of options, on terms that have been approved by the
Company's Board of Directors; and
(C) Common Stock issued or issuable upon conversion of
any shares of the Company's outstanding Preferred Stock or upon exercise of this
Warrant or any other stock warrants issued contemporaneously herewith or issued
and outstanding as of the date hereon.
(iii) If the number of shares of Common Stock outstanding at
any time after the date hereof is increased by a stock dividend payable in
shares of Common Stock or by a subdivision payable in shares of Common Stock or
by a subdivision or split-up of shares of the Company's Common Stock, then,
following the record date fixed for the determination of holders of Common Stock
entitled to receive such stock dividend, subdivision, or split-up, the Purchase
Price for the Common Stock issuable upon the exercise of this Warrant shall be
appropriately decreased so that the number of shares of Common Stock issuable
upon the exercise of this Warrant will be increased in proportion to such
increase in the number of outstanding shares of the Company's Common Stock.
(iv) If the number of shares of Common Stock outstanding at
any time after the date hereof is decreased by a combination or reverse stock
split of the outstanding
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shares of the Company's Common Stock, then, following the record date of such
combination or reverse stock split, the Purchase Price for the Common Stock
shall be appropriately increased so that the number of shares of Common Stock
issuable upon the exercise of this Warrant will be decreased in proportion to
such decrease in the number of outstanding shares of Common Stock.
2.2. ADJUSTMENT TO NUMBER OF SHARES PURCHASABLE UNDER WARRANT. Upon
any adjustment to the Purchase Price, the number of shares purchasable under
this Warrant shall be adjusted to equal the product of (i) the number of shares
of Common Stock purchasable under this Warrant immediately prior to such
adjustment to the Purchase Price and (ii) the quotient of (A) the Purchase Price
in effect immediately prior to such adjustment divided by (B) the Purchase Price
in effect immediately after such adjustment.
2.3. WARRANT NEED NOT BE CHANGED TO REFLECT ADJUSTMENTS. This
Warrant need not be changed to reflect any adjustment or changes in the Purchase
Price.
2.4. REORGANIZATION, MERGER, ETC. If any capital reorganization or
reclassification of the capital stock of the Company, or consolidation or merger
of the Company with another corporation or entity, or the sale or conveyance of
all or substantially all of the Company's assets to another corporation or
entity shall be effected, then, as a condition of such reorganization,
reclassification, consolidation, merger, sale, or conveyance, lawful and
adequate provision shall be made whereby the Warrant Holder shall thereafter
have the right to purchase and receive upon the basis and upon the terms and
conditions specified in this Warrant and in lieu of the shares of Common Stock
immediately theretofore purchasable and receivable upon the exercise of the
rights represented hereby, such shares of stock, securities, or assets as may be
issued or payable with respect to or in exchange for a number of outstanding
shares of such Common Stock equal to the number of shares of such Common Stock
immediately theretofore purchasable and receivable upon the exercise of the
rights represented hereby had such reorganization, reclassification,
consolidation, merger, sale, or conveyance not taken place, and, in any such
case, appropriate provision shall be made with respect to the rights and
interests of the Warrant Holder such that the provisions hereof (including,
without limitation, provisions for adjustment of the Purchase Price) shall
thereafter be applicable, as nearly as may be, to any stock, securities, or
assets thereafter deliverable upon the exercise hereof.
The Company shall not effect any consolidation, merger, or sale of
all or substantially all of its assets to any other corporation or entity,
unless prior to or simultaneously with the consummation thereof the successor
corporation or entity (if other than the Company) resulting from such
consolidation or merger, or the corporation or entity purchasing such assets,
shall assume, by written instrument executed and mailed or delivered to the
Warrant Holder at the address indicated in Section 7 hereof, the obligation of
such corporation or entity to deliver to such Warrant Holder shares of stock,
securities, or assets as, in accordance with the provisions of this Warrant,
such Warrant Holder may be entitled to purchase, and to perform and observe each
and every covenant and condition of this Warrant to be performed and observed by
the Company.
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2.5. NOTICE TO WARRANT HOLDER OR WARRANT HOLDERS.
(i) Upon any adjustment of the Purchase Price, the Company,
within thirty (30) days thereafter, shall give written notice thereof, pursuant
to Section 7 hereof, which notice shall state the adjusted Purchase Price
setting forth in reasonable detail the method of calculation and the facts
(including a statement of the consideration received or deemed to have been
received by the Company for any additional shares or convertible or exchangeable
securities or rights or options) upon which such calculations are based. Where
appropriate, such notice may be given in advance and be included as part of the
notice required to be mailed pursuant to the provisions of paragraph (b) of this
Section 2.5.
(ii) In case at any time:
(A) the Company shall declare any dividend upon its
Common Stock payable otherwise than in cash or in the Common Stock of the
Company or payable otherwise than out of net income for a twelve (12) month
period ending not earlier than ninety (90) days prior to the date of payment of
such dividend; or
(B) the Company shall offer for subscription to the
holders of its Common Stock any additional shares of stock of any class or any
other securities convertible into or exchangeable for shares of stock or any
rights or options to subscribe thereto; or
(C) there shall be any capital reorganization or
reclassification of the capital stock of the Company, or a sale or conveyance of
all or substantially all of the assets of the Company, or a consolidation or
merger of the Company with another corporation or entity; or
(D) there shall be a voluntary or involuntary
dissolution, liquidation, or winding up of the Company; or
(E) the Company intends to issue or has issued any Common
Stock or rights convertible into Common Stock for a per share consideration of
less than the Purchase Price, then, in any one or more of said cases, the
Company shall give written notice, pursuant to Section 7 hereof, at the earliest
time legally practicable (and, unless otherwise impossible for a legal reason,
not less than thirty (30) days before any record date or other date set for
definitive action) of the date as of which (y) the books of the Company shall
close or a record date shall be taken for such dividend, distribution, or
subscription rights or options, or (z) such reorganization, reclassification,
sale, conveyance, consolidation, merger, dissolution, liquidation, or winding up
shall take place, as the case may be. Such notice shall also specify the date as
of which the holders of the Common Stock of record shall participate in said
dividend, distribution, subscription rights, or options or shall be entitled to
exchange their Common Stock for securities or other property deliverable upon
such reorganization, reclassification, sale, conveyance, consolidation, merger,
dissolution, liquidation, or winding up, as the case may be (on which date, in
the event of voluntary or involuntary dissolution, liquidation, or winding up of
the Company, the right to exercise this Warrant shall cease and terminate).
2.6. CONDITIONS NOT SPECIFICALLY COVERED. In case at any time
conditions shall arise by reason of action taken by the Company, which, in the
good faith judgment of the
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Company's Board of Directors, are not adequately covered by the limited
antidilution provisions of this Warrant so as to potentially materially and
adversely affect the rights of the Warrant Holder or Warrant Holders, or, in
case at any time any such conditions are expected to arise by reason of any
action contemplated by the Company, its Board of Directors shall appoint a firm
of independent certified public accountants of recognized standing (which may be
the firm that regularly examines the Company's financial statements), who shall
give an opinion as to the adjustment, if any (not inconsistent with the
standards established in this Section 2 hereof), of the Purchase Price, which
is, or would be, required to preserve, without dilution, the rights of the
Warrant Holder or Warrant Holders to the extent provided herein. The Company's
Board of Directors shall make the adjustment recommended forthwith upon the
receipt of such opinion or the taking of any such action contemplated, as the
case may be.
3. STATUS OF WARRANT HOLDERS. This Warrant does not entitle the Warrant
Holder or Warrant Holders hereof to any rights as a shareholder of the Company.
4. REMEDIES. The Company stipulates that the remedies at law of the
Warrant Holder or Warrant Holders in the event of any default or threatened
default by the Company in the performance of or compliance with any of the terms
of this Warrant are not and will not be adequate, and that such terms may be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
5. RESERVATION OF SHARES. The Company shall reserve and keep available
a sufficient number of shares of Common Stock to satisfy the requirements of
this Warrant. Before taking any action that would cause a reduction of the
Purchase Price below the then current par value of the shares of Common Stock
issuable upon exercise of this Warrant, the Company will take any corporate
action that may, in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and nonassessable shares of
such Common Stock at such adjusted Purchase Price.
6. ASSIGNMENT. This Warrant shall be binding upon and inure to the
benefit of the Company, the Warrant Holder, and their respective successors and
assigns.
7. NOTICES. All notices, requests, consents, and other communications
hereunder shall be in writing and shall be deemed to have been given when
personally delivered, mailed first class (postage prepaid), or delivered to a
telegraph office:
(i) if to the Warrant Holder, at the address of such Warrant Holder
as shown on the books of the Company.
(ii) if to the Company, at 800 Research Parkway, Suite 200, Oklahoma
City, Oklahoma 73104, to the attention of the corporate Secretary, or at such
other address as may have been furnished to the Warrant Holder in writing.
8. HEADINGS. The headings of the Sections and subsections of this
Warrant are inserted for convenience only and shall not be deemed to constitute
a part of this Warrant.
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IN WITNESS WHEREOF, this Warrant has been duly executed by its duly
authorized officer as of the date first above written.
TARGETED THERAPY, INC.
an Oklahoma corporation
By: /s/ JOHN F. CROWLEY
-------------------------------------
John F. Crowley
President and Chief Executive Officer
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