EXHIBIT 10.20
EXECUTION COPY
NEITHER THIS WARRANT NOR ANY SECURITIES THAT MAY BE ISSUED UPON EXERCISE
HEREOF HAVE BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR APPLICABLE FOREIGN OR STATE SECURITIES LAWS. THIS WARRANT
AND SUCH SECURITIES MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
THEY HAVE BEEN SO REGISTERED AND QUALIFIED OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION AND
QUALIFICATION IS NOT REQUIRED HAS BEEN DELIVERED TO THE COMPANY.
STOCK PURCHASE WARRANT
Englewood Cliffs, New Jersey
March 3, 2005
NO. B-2
EpiCept Corporation, a Delaware corporation (the "Company"), hereby
certifies that, subject to the terms and conditions set forth herein, (the
"Holder"), is entitled to purchase the Warrant Share Number of shares of Warrant
Stock (both as defined below) from the Company at any time or from time to time
before the earliest of (i) 5:00 p.m. (New York time) on March 3, 2008 (unless
extended pursuant to Section 2(c) hereof) or (ii) the effective time of a Sale
of the Company (as defined below), for the Exercise Price (as defined below),
subject to adjustments as set forth in Sections 5 and 7.
This Stock Purchase Warrant (this "Warrant") is being issued in connection
with the purchase by the Holder of a Senior Note (as amended and/or restated,
the "Note") of the Company in the principal amount set forth on the signature
page hereto. The Note is one of a series of notes issued to certain investors in
the aggregate maximum principal amount of $5,000,000 (collectively, the "Senior
Notes") and this Warrant is one of a series of related Stock Purchase Warrants
(collectively, the "Warrants") issued in connection with the issuance of the
Senior Notes all pursuant to the terms of the Note Purchase Agreement, dated as
of March 3, 2005, between the Company and the Purchasers listed on the signature
pages thereto (the "Note Purchase Agreement").
1. Determination of Warrant Stock, Warrant Share Number and Warrant Exercise
Price.
(a) Warrant Stock.
(i) The term "Warrant Stock" shall mean shares of the Company's
common stock, $0.0001 par value per share (the "Common Stock").
(ii) If the Company consummates a Qualifying Financing (as defined
in the Note), then (A) the term "Warrant Stock" shall mean shares of Common
Stock or Preferred
Stock ("Next Round Preferred Stock"), as the case may be, issued by
the Company in connection with the Qualifying Financing.
(iii) If a Sale of the Company (as defined below) is
anticipated to occur prior to a Qualifying Financing or an IPO, the term
"Warrant Stock" shall mean shares of the Company's Common Stock, unless and
until a Qualifying Financing occurs or occurs prior to the Sale of the Company.
(b) Warrant Share Number. This Warrant shall be exercisable for a
number of shares of Warrant Stock (the "Warrant Share Number") as follows:
(i) If the Warrant Stock is Next Round Preferred Stock, the
Warrant Share Number shall equal 35% of the original principal amount of
the Note (the "Principal Amount") divided by the Exercise Price described
in Section 1(c)(i) below, such Warrant Share number to be rounded to the
nearest whole number.
(ii) If the Warrant Stock is Common Stock, the Warrant Share
Number shall equal 35% of the Principal Amount divided by the Public
Offering Price described in Section 1(c)(ii) below, such Warrant Share
Number to be rounded to the nearest whole number.
(c) Exercise Price. The exercise price per share of Warrant Stock
(the "Exercise Price") shall be as follows:
(i) If the Warrant Stock is Next Round Preferred Stock, the
Exercise Price shall be the amount per share at which the Notes are
converted into Next Round Preferred Stock pursuant to the terms of the
Note.
(ii) If the Warrant Stock is Common Stock, the Exercise Price
shall be 75% of the Public Offering Price (as defined below); provided
that if a Qualifying Financing has occurred and Common Stock was issued in
the Qualifying Financing then the Exercise Price shall be the price per
share at which the Notes are converted into Common Stock pursuant to the
terms of the Note.
(d) Defined Terms. For purposes of this Section 1, the following
terms shall have the following meanings:
(i) "IPO" shall mean a Qualified Public Offering, as such term
is defined in the Certificate of Incorporation (as defined in Section 5
below).
(ii) "Public Offering Price" shall mean the price at which the
Common Stock is sold to the public in an IPO.
2. Exercise of Warrant.
(a) Mechanics of Exercise. This Warrant may be exercised by the
registered holder hereof by surrender to the Company of this Warrant, with
the attached form of subscription agreement duly executed by such holder,
accompanied by payment equal to the aggregate purchase price for the
securities for which this Warrant is then being exercised according to
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Section 4 hereof. Each Regulation S Purchaser (as defined in the Note Purchase
Agreement) wishing to exercise this Warrant must also deliver (i) a written
certification to the Company that such holder is not a U.S. person (as defined
in Regulation S under the Securities Act) and this Warrant is not being
exercised on behalf of a U.S. person or (ii) a written opinion of counsel to the
effect that this Warrant and the securities to be delivered upon exercise hereof
have been registered under the Securities Act or are exempt from registration
thereunder.
(b) Warrant Agent. In the event that a bank or trust company is appointed
as trustee for the holder of this Warrant pursuant to Section 4(b) hereof, such
bank or trust company will have all the powers and duties of a warrant agent
appointed pursuant to Section 9 hereof and will accept, in its own name for the
account of the Company or such successor entity as may be entitled thereto, all
amounts otherwise payable to the Company or such successor, as the case may be,
upon exercise of this Warrant.
(c) Expiration. This Warrant and the holder's rights hereunder will expire
on the earliest of (a) 5:00 P.M. (New Jersey time) on March 3, 2008 (the
"Expiration Date"); provided, however, that if an IPO has not been consummated
on or prior to the first anniversary of the date hereof, the Expiration Date
shall be extended to March 3, 2009 or (b) the effective time of a Sale of the
Company. If the Warrant Stock is Next Round Preferred Stock, then upon and after
the Automatic Conversion Effective Time (as defined in Section 6), the right to
purchase shares of Warrant Stock granted herein shall terminate, and this
Warrant shall represent the right to purchase shares of Common Stock, as
provided in Section 6 hereof. For purposes hereof, a "Sale of the Company" means
(a) a merger, consolidation, share exchange or other form of corporate
reorganization involving the Company in which the stockholders of the Company
immediately before such merger, consolidation, share exchange or other corporate
reorganization dispose of in excess of fifty percent (50%) of the issued and
outstanding capital stock of the Company; (b) any transaction or series of
related transaction in which (i) all or substantially all of the assets of the
Company are sold, or (ii) excess of fifty percent (50%) of the shares of Common
Stock (assuming conversion of all convertible securities) is issued transferred
to any person (other than in a Qualifying Financing); or (c) any event that
would trigger payments to the holders of any series of the Preferred Stock under
Section 1(c) of Article FOURTH of the Current Charter in the absence of the
prescribed vote of the holders of such series to the contrary. The Company will
mail or cause to be mailed to the holder a notice specifying the date on which
such Sale of the Company is scheduled to close. Such notice will be mailed at
least twenty (20) days prior to the date of such closing.
(d) Delivery of Certificates. As soon as is practicable after any exercise
of this Warrant, the Company, at its own expense, will deliver to the registered
holder hereof one or more certificates representing the securities to which such
holder is entitled in respect of such exercise, together, in the case of any
partial exercise, with a new Warrant representing the unexercised portion
hereof.
(e) Fractional Shares. In the event that any exercise of this Warrant
would, but for the provisions of this Section 2(e), result in the issuance of
any fractional share of capital stock, then in lieu of such fractional share the
registered holder hereof will be entitled to cash equal to the fair market value
of such fractional share, as determined in good faith by the Company's Board of
Directors.
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3. Payment of Exercise Price. The Exercise Price may be paid at the holder's
election either (a) by cash, certified or official bank check payable to the
order of the Company, or wire transfer to its account, or (b) by the net
issuance method as described below:
(i) If the Warrant Stock is Next Round Preferred Stock, then prior
to the Automatic Conversion Effective Time (as defined in Section 7 hereof), the
Company shall issue Warrant Stock under the net issuance method in accordance
with the following formula:
X= (Y)(A-B)/A
Where: X = the number of shares of Warrant Stock to be issued to the holder
Y = the number of shares of Warrant Stock requested to be exercised
under this Warrant
A = the current fair market value of one (1) share of Warrant Stock
B = the Exercise Price
As used herein, the current fair market value of a share of Warrant Stock
shall mean the price per share which the Company could obtain from a willing
buyer (not a current employee or director) for shares of Warrant Stock, as
determined in good faith by the Company's Board of Directors, unless the Company
shall become subject to a merger, consolidation or other acquisition pursuant to
which the holders of Warrant Stock receive securities and/or other property in
exchange for their Warrant Stock, in which case the fair market value of Warrant
Stock shall be deemed to be the value (determined in good faith by the Company's
Board of Directors of the securities and other property received by the holders
of the Company's Warrant Stock per share of Warrant Stock pursuant to such
merger, consolidation or other acquisition.
(ii) If the Warrant Stock is Common Stock, or if this Warrant is
exercised either upon or after the Automatic Conversion Effective Time, the
Company shall issue Common Stock under the net issuance method in accordance
with the following formula:
X = (Y)(A-B)/A
Where: X = the number of shares of Common Stock to be issued to the
holder
Y = the number of shares of Common Stock requested to be
exercised under this Warrant
A = the current fair market value of one (1) share of Common
Stock
B = the Exercise Price
As used herein, current fair market value of Common Stock shall mean with
respect to each share of Common Stock:
(A) if the exercise is in connection with the Company's initial
public offering of Common Stock, and if the Company's registration statement
relating to such public offering has been declared effective by the Securities
and Exchange Commission, then the initial "Price to Public" specified in the
final prospectus with respect to the offering;
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(B) if this Warrant is exercised after, and not in connection with,
the Company's initial public offering of Common Stock and
(1) if the Common Stock is traded on a national securities
exchange or quoted on the Nasdaq Stock Market, the fair market value shall be
deemed to be the average of the closing prices over a ten (10) day period ending
three days before the day the current fair market value of the Common Stock is
being determined; or
(2) if the Common Stock is not listed on a national securities
exchange or quoted on the Nasdaq Stock Market but is actively traded
over-the-counter, the fair market value shall be deemed to be the average of the
closing bid and asked prices reported by the National Quotation Bureau (or
similar system) over the ten (10) day period ending three days before the day
the current fair market value of the Common Stock is being determined;
(C) if at any time the Common Stock is not listed on any national
securities exchange or quoted on the Nasdaq Stock Market or actively traded in
the over-the-counter market, the current fair market value of Common Stock shall
be the price per share which the Company could obtain from a willing buyer (not
a current employee or director) for shares of Common Stock sold by the Company,
from authorized but unissued shares, as determined in good faith by its Board of
Directors, unless the Company shall become subject to a merger, consolidation or
other acquisition pursuant to which the holders of Common Stock receive
securities and/or other property in exchange for their Common Stock, in which
case the fair market value of Common Stock shall be deemed to be the value of
the securities and other property received by the holders of the Company's
Common Stock per share of Common Stock pursuant to such merger, consolidation or
other acquisition.
4. Adjustment for Reorganizations, Etc.
(a) Certain Adjustments.
(i) If the Warrant Stock is Next Round Preferred Stock, then in case
at any time or from time to time prior to the exercise of this Warrant but
before the Automatic Conversion Effective Time, the Company effects an
"Extraordinary Warrant Stock Event" (as hereafter defined), then in each such
case, (A) the number of shares of Warrant Stock purchasable hereunder shall be
adjusted to the number obtained by multiplying the number of shares of Warrant
Stock purchasable hereunder immediately before such Extraordinary Warrant Stock
Event by a fraction, the numerator of which shall be the number of shares of
Warrant Stock outstanding (excluding treasury stock) immediately after such
Extraordinary Warrant Stock Event and the denominator of which shall be the
number of shares of Warrant Stock outstanding (excluding treasury stock)
immediately before such Extraordinary Warrant Stock Event, and (B) the Exercise
Price shall be adjusted to the number obtained by multiplying the Exercise Price
in effect immediately before such Extraordinary Warrant Stock Event by a
fraction, the numerator of which shall be the number of shares of Warrant Stock
outstanding (excluding treasury stock) immediately before such Extraordinary
Warrant Stock Event and the denominator of which shall be the number of shares
of Warrant Stock outstanding (excluding treasury stock) immediately after such
Extraordinary Warrant Stock Event, in each case subject
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to further adjustment thereafter as provided herein. The term "Extraordinary
Warrant Stock Event" shall mean (x) the issuance of additional shares of Warrant
Stock as a dividend or other distribution on outstanding Warrant Stock, (y) the
subdivision of outstanding shares of Warrant Stock into a greater number of
shares of Warrant Stock, or (z) the combination of outstanding shares of Warrant
Stock into a smaller number of shares of Warrant Stock.
(ii) If the Warrant Stock is Common Stock or if at any time or from
time to time prior to the exercise of this Warrant but after the Automatic
Conversion Effective Time, the Company effects an "Extraordinary Common Stock
Event" (as hereafter defined), then in each such case, (A) the number of shares
of Common Stock purchasable hereunder shall be adjusted to the number obtained
by multiplying the number of shares of Common Stock purchasable hereunder
immediately before such Extraordinary Common Stock Event by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding
(excluding treasury stock) immediately after such Extraordinary Common Stock
Event and the denominator of which shall be the number of shares of Common Stock
outstanding (excluding treasury stock) immediately before such Extraordinary
Common Stock Event, and (B) the Exercise Price shall be adjusted to the number
obtained by multiplying the Exercise Price in effect immediately before such
Extraordinary Common Stock Event by a fraction, the numerator of which shall be
the number of shares of Common Stock outstanding (excluding treasury stock)
immediately before such Extraordinary Common Stock Event and the denominator of
which shall be the number of shares of Common Stock outstanding (excluding
treasury stock) immediately after such Extraordinary Common Stock Event, in each
case subject to further adjustment thereafter as provided herein. The term
"Extraordinary Common Stock Event" shall mean (x) the issuance of additional
shares of Common Stock as a dividend or other distribution on outstanding Common
Stock, (y) the subdivision of outstanding shares of Common Stock into a greater
number of shares of Common Stock, or (z) the combination of outstanding shares
of Common Stock into a smaller number of shares of Common Stock.
(iii) Subject to earlier termination of this Warrant upon a Sale of
the Company, at any time or from time to time prior to the exercise of this
Warrant, the Company (A) effects a capital reorganization, reclassification or
recapitalization, or (B) consolidates with or merges with or into any other
person or entity, then in each such case, the registered holder of this Warrant,
upon exercise hereof at any time after or simultaneously with the consummation
of such reorganization, reclassification, recapitalization, consolidation or
merger, as the case may be, will receive, in lieu of the securities issuable
upon such exercise before such consummation or effective date, the other
securities, cash, and/or property to which such holder would have been entitled
upon such consummation or in connection with such dissolution, as the case may
be, if such holder had exercised this Warrant immediately prior thereto, all
subject to further adjustment thereafter as provided herein.
(b) Appointment of Trustee for Warrant Holders Upon Dissolution. In the
event of any dissolution of the Company, the Company, prior to such dissolution,
will, at its expense, deliver or cause to be delivered the securities, property,
and/or cash receivable by the registered holder of this Warrant after the
effective date of such dissolution pursuant to this Section 5 to a bank or trust
company having its principal office in Delaware, as trustee for the registered
holder of this Warrant.
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(c) Continuation of Terms. Subject to earlier termination of this Warrant
upon a sale of the Company, upon any reorganization, consolidation or merger
referred to in this Section 5, this Warrant will continue in full force and
effect and the terms hereof will be applicable to the securities, cash, and/or
property receivable on the exercise of this Warrant after or simultaneously with
the consummation of such reorganization, consolidation or merger and will be
binding upon the issuer of any such stock or other securities.
5. No Dilution or Impairment. The Company will not, by amendment of its
Certificate of Incorporation (as amended and/or restated from time to time, the
"Certificate of Incorporation") or through any reorganization, 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 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 registered holder
of this Warrant against dilution. Without limiting the generality of the
foregoing, the Company will take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable shares of stock upon exercise of this Warrant from time to
time.
6. Automatic Conversion of the Warrant Stock. If the Warrant Stock is Next Round
Preferred Stock and at any time the issued and outstanding shares of the Warrant
Stock shall be automatically converted into shares of Common Stock under the
terms of the Certificate of Incorporation, then upon and after the effective
time of such automatic conversion of the Warrant Stock (the "Automatic
Conversion Effective Time"), the right to purchase Warrant Stock granted herein
shall terminate, and this Warrant shall represent the right to purchase a number
of shares of Common Stock calculated as follows:
X = (Y) (Z)
Where: X = the number of shares of Common Stock purchasable under this
Warrant upon and after such Automatic Conversion Effective
Time
Y = the number of shares of Warrant Stock purchasable under this
Warrant immediately prior to such Automatic Conversion
Effective Time
Z = the number of shares of Common Stock issuable upon conversion
of each share of Warrant Stock immediately prior to such
Automatic Conversion Effective Time
and the Exercise Price per share of Common Stock shall be a price calculated as
follows:
A= (B)(X)/Y
Where: A = the Exercise Price per share of Common Stock upon and after
such Automatic Conversion Effective Time
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B = the Exercise Price per share of Warrant Stock immediately
prior to such Automatic Conversion Effective Time
X = the number of shares of Warrant Stock purchasable under this
Warrant immediately prior to such Automatic Conversion
Effective Time
Y = the number of shares of Common Stock purchasable under this
Warrant upon and after such Automatic Conversion Effective
Time
Thereafter, the number of shares of Common Stock purchasable hereunder and the
Exercise Price per share shall be subject to adjustment for the types of events
described in Section 5 above that occur with respect to the Common Stock.
7. Notices of Record Date, Etc. In the event from time to time of any proposed
or contemplated:
(a) taking by the Company of a record of the holders of any class of
securities for the purpose of determining the holders thereof who are entitled
to receive any dividend or other distribution, or any right to subscribe for,
purchase, or otherwise acquire any shares of stock of any class or any other
securities or property, or to receive any other right;
(b) capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company, or any transfer of all or
substantially all the assets of the Company to, or any consolidation or merger
of the Company with or into, any other person or entity; or
(c) voluntary or involuntary dissolution, liquidation, or winding-up of
the Company; then, and in each such event the Company will mail or cause to be
mailed to the registered holder of this Warrant a notice specifying (i) the date
on which any such 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 date on which any such reorganization,
reclassification, recapitalization, transfer, consolidation, merger,
dissolution, liquidation, or winding-up is anticipated to take place and the
time, if any is to be fixed, as of which the holders of record of any class or
series of the Company's capital stock or other securities will be entitled to
exchange such stock or other securities for other securities, cash, and/or other
property deliverable on such reorganization, reclassification, recapitalization,
transfer, consolidation, merger, dissolution, liquidation, or winding-up. Such
notice will be mailed at least twenty (20) days prior to the earliest date
specified in such notice on which any such action or transaction is to be taken
or consummated.
8. Reservation of Securities Issuable on Exercise of Warrant. The Company at all
times and from time to time will reserve and keep available, solely for issuance
and delivery on the exercise of this Warrant, the quality and quantities of
securities from time to time issuable upon
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exercise of this Warrant. If at any time the Company does not have sufficient
authorized securities to comply with the foregoing sentence, the Company
promptly will take all steps (including, without limitation, amending the
Certificate of Incorporation) necessary to provide the quality and quantity of
securities sufficient to effect the exercise in full of this Warrant.
9. Warrant Agent. The Company may, by written notice to the registered holder of
this Warrant, appoint an agent having an office in Delaware for the purpose of
issuing securities upon exercise of this Warrant, exchanging or replacing this
Warrant, or any of the foregoing, and thereafter any such issuance, exchange, or
replacement as the case may be, will be made at such office by such agent.
10. Transfer and Exchange of Warrant.
(a) Transfer. This Warrant and any securities issuable upon exercise of
this Warrant may not be transferred or otherwise disposed of unless they have
been registered or qualified pursuant to the Securities Act of 1933, as amended
(the "Securities Act"), and applicable foreign or state securities laws, or an
opinion to the effect that such registration and qualification is not required
and has been delivered to the Company.
(b) Exchange. Upon surrender of this Warrant for transfer or exchange, a
new Warrant or new Warrants of the same tenor and exercisable for the same
aggregate number of shares of Warrant Stock as the Warrant so surrendered will
be issued to, and registered in the name of, the transferee or transferees. The
Company may treat the person in whose name this Warrant is registered as the
holder hereof for all purposes.
11. Captions. The captions of sections or subsections of this Warrant are for
reference only and will not affect the interpretation or construction of this
Warrant.
12. Equitable Relief. The Company hereby acknowledges that any breach by it of
its obligations under this Warrant would cause substantial and irreparable
damage to the registered holder hereof and that money damages would be an
inadequate remedy therefor, and accordingly, acknowledges and agrees that, in
addition to any other rights and remedies to which the registered holder hereof
may be entitled in respect of any breach of such obligations, such holder will
be entitled to an injunction, specific performance and/or other equitable relief
to prevent the breach of such obligations.
13. Waivers. No waiver of any breach or default hereunder will be valid unless
in a writing signed by the registered holder hereof. No failure or other delay
by the registered holder hereof exercising any right, power, or privilege
hereunder will be or operate as a waiver thereof, nor will any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power, or privilege.
14. Governing Law. This Warrant will be governed by and interpreted and
construed in accordance with the internal laws of the State of Delaware (without
reference to principles of conflicts or choice of law).
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Executed and delivered under seal on and as of the date first above written.
MAXIMUM NOTE PRINCIPAL: $ EPICEPT CORPORATION
By:_____________________
(signature)
Name:___________________
(printed)
Its:____________________
(title)
ACCEPTED AND AGREED:
By:____________________
(signature)
Name:__________________
(printed)
Its:___________________
(title)
By:____________________
(signature)
Name:__________________
(printed)
Its:___________________
(title)
SUBSCRIPTION FORM
The undersigned, the registered holder of the within Stock Purchase
Warrant, hereby elects to exercise the purchase right represented by such
Warrant as follows:
- - The undersigned hereby elects to purchase ________ shares of Warrant Stock
(as defined in this Warrant) and herewith makes payment of $ _____________
therefor.
- - The undersigned hereby elects to exercise this Warrant by the net issuance
method described in Section 4 of this Warrant and to receive ___________
shares of Warrant Stock (as defined in this Warrant).
The undersigned further requests that the certificates representing such
shares be issued in the name of and delivered to
______________________________________ and if such shares shall not include all
of the shares issuable under this Warrant, that a new Warrant of like tenor and
date be delivered to the undersigned for the shares not issued.
Dated:___________ ___________________________
Name of Registered Holder