EXHIBIT 99.3
FORM OF RIGHT CERTIFICATE
(Exhibit B to Rights Agreement)
CERTIFICATE NO. R- _____ RIGHTS
NOT EXERCISABLE AFTER OCTOBER 29, 2011 OR EARLIER IF REDEMPTION OR
EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION AT $.001 PER
RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
RIGHT CERTIFICATE
KOSAN BIOSCIENCES INCORPORATED
This certifies that ___________________ or registered assigns,
is the registered owner of the number of Rights set forth
above, each of which entitles the owner thereof, subject to
the terms, provisions and conditions of the Rights Agreement,
dated as of October 5, 2001 (the "Rights Agreement"), between
Kosan Biosciences Incorporated, a Delaware corporation (the
"Company"), and Mellon Investor Services LLC, a New Jersey
limited liability company (the "Rights Agent"), to purchase
from the Company at any time after the Distribution Date (as
such term is defined in the Rights Agreement) and prior to
midnight, PDT, on October 5, 2011 at the office of the Rights
Agent designated for such purpose, or at the office of its
successor as Rights Agent, one one-hundredth of a fully paid
non-assessable share of Series A Junior Participating
Preferred Stock, par value $.001 per share (the "Preferred
Shares"), of the Company, at a purchase price of $70.00 per
one one-hundredth of a Preferred Share (the "Purchase Price"),
upon presentation and surrender of this Right Certificate with
the Form of Election to Purchase duly executed. The number of
Rights evidenced by this Right Certificate (and the number of
one one-hundredths of a Preferred Share which may be purchased
upon exercise hereof) set forth above, and the Purchase Price
set forth above, are the number and Purchase Price as of
October 29, 2001, based on the Preferred Shares as constituted
at such date.
From and after the time any Person becomes an Acquiring
Person, (as such terms are defined in the Rights Agreement),
if the Rights evidenced by this Right Certificate are
beneficially owned by (i) an Acquiring Person or an Affiliate
or Associate of any such Acquiring Person (as such terms are
defined in the Rights Agreement), (ii) a transferee of any
such Acquiring Person, Associate or Affiliate who becomes a
transferee after
B-1
the Acquiring Person becomes such, or (iii) under certain
circumstances specified in the Rights Agreement, a transferee
of any such Acquiring Person, Associate or Affiliate who
becomes a transferee prior to or concurrently with the
Acquiring Person becoming such, such Rights shall become null
and void without any further action and no holder hereof shall
have any right with respect to such Rights from and after the
time any Person becomes an Acquiring Person.
As provided in the Rights Agreement, the Purchase Price and
the number of one one-hundredths of a Preferred Share which
may be purchased upon the exercise of the Rights evidenced by
this Right Certificate are subject to modification and
adjustment upon the happening of certain events.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, as amended
from time to time, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof
and to which Rights Agreement reference is hereby made for a
full description of the rights, limitations of rights,
obligations, duties and immunities hereunder of the Rights
Agent, the Company and the holders of the Right Certificates.
Copies of the Rights Agreement are on file at the principal
executive offices of the Company.
This Right Certificate, with or without other Right
Certificates, upon surrender at the office of the Rights Agent
designated for such purpose, may be exchanged for another
Right Certificate or Right Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like
aggregate number of Preferred Shares as the Rights evidenced
by the Right Certificate or Right Certificates surrendered
shall have entitled such holder to purchase. If this Right
Certificate shall be exercised in part, the holder shall be
entitled to receive upon surrender hereof another Right
Certificate or Right Certificates for the number of whole
Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate (i) may be redeemed by the
Company at a redemption price of $.001 per Right or (ii) may
be exchanged in whole or in part for shares of the Company's
Common Stock, par value $.001 per share, or, upon
circumstances set forth in the Rights Agreement, cash,
property or other securities of the Company, including
fractions of a share of Preferred Stock.
No fractional Preferred Shares will be issued upon the exercise of any Right or
Rights evidenced hereby (other than fractions which are integral multiples of
one one-hundredth of a Preferred Share, which may, at the election of the
Company, be evidenced by depositary receipts) but in lieu thereof a cash payment
will be made, as provided in the Rights Agreement.
B-2
No holder of this Right Certificate shall be entitled to vote or receive
dividends or be deemed for any purpose the holder of the Preferred Shares or of
any other securities of the Company which may at any time be issuable on the
exercise hereof, nor shall anything contained in the Rights Agreement or herein
be construed to confer upon the holder hereof, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of meetings or
other actions affecting stockholders (except as provided in the Rights
Agreement), or to receive dividends or subscription rights, or otherwise, until
the Right or Rights evidenced by this Right Certificate shall have been
exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose until it
shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company and its
corporate seal. Dated as of _______ ___, 20___.
ATTEST: KOSAN BIOSCIENCES INCORPORATED
____________________________________ ____________________________________
SUSAN M. KANAYA DANIEL V. SANTI, M.D., PH.D.
SECRETARY CHAIRMAN AND CHIEF EXECUTIVE OFFICER
COUNTERSIGNED:
MELLON INVESTOR SERVICES LLC
as Rights Agent
By: _______________________________
[AUTHORIZED SIGNATURE]
B-3
FORM OF REVERSE SIDE OF RIGHT CERTIFICATE
FORM OF ASSIGNMENT
(TO BE EXECUTED BY THE REGISTERED HOLDER IF SUCH
HOLDER DESIRES TO TRANSFER THE RIGHT CERTIFICATE.)
FOR VALUE RECEIVED ______________________________________
hereby sells, assigns and transfers unto
________________________________________________________________________________
(Please print name and address of transferee)
_____________________________________________________________________ this Right
Certificate, together with all right, title and interest therein, and does
hereby irrevocably constitute and appoint ________________________ Attorney, to
transfer the within Right Certificate on the books of the within-named Company,
with full power of substitution.
Dated: ____________________
____________________________________
Signature
B-4
SIGNATURE GUARANTEED:
Signatures must be guaranteed by an "eligible guarantor
institution" as defined in Rule 17Ad-15 promulgated under the
Securities Exchange Act of 1934, as amended.
------------------------------------------------
The undersigned hereby certifies that (1) the Rights evidenced
by this Right Certificate are not being sold, assigned or
transferred by or on behalf of a Person who is or was an
Acquiring Person, an Interested Stockholder or an Affiliate or
Associate thereof (as such terms are defined in the Rights
Agreement); and (2) after due inquiry and to the best of the
knowledge of the undersigned, the undersigned did not acquire
the Rights evidenced by this Right Certificate from any Person
who is or was an Acquiring Person, an Interested Stockholder,
or an Affiliate or Associate thereof.
____________________________________
Signature
B-5
FORM OF ELECTION TO PURCHASE
(TO BE EXECUTED IF HOLDER DESIRES TO EXERCISE
RIGHTS REPRESENTED BY THE RIGHT CERTIFICATE.)
To MELLON INVESTOR SERVICES LLC:
The undersigned hereby irrevocably elects to exercise
___________________________ Rights represented by this Right
Certificate to purchase the Preferred Shares issuable upon the
exercise of such Rights and requests that certificates for
such Preferred Shares be issued in the name of:
Please insert social security
or other identifying number: ______________
________________________________________________________________________________
(Please print name and address)
________________________________________________________________________________
If such number of Rights shall not be all the Rights evidenced
by this Right Certificate, a new Right Certificate for the
balance remaining of such Rights shall be registered in the
name of and delivered to:
Please insert social security
or other identifying number: ______________
________________________________________________________________________________
(Please print name and address)
________________________________________________________________________________
Dated: _________________
____________________________________
Signature
B-6
SIGNATURE GUARANTEED:
Signatures must be guaranteed by an "eligible guarantor
institution" as defined in Rule 17Ad-15 promulgated under the
Securities Exchange Act of 1934, as amended.
------------------------------------------------
The undersigned hereby certifies that (1) the Rights evidenced
by this Right Certificate are not beneficially owned by nor
are they being exercised on behalf of an Acquiring Person, an
Interested Stockholder or an Affiliate or Associate thereof
(as such terms are defined in the Rights Agreement); and (2)
after due inquiry and to the best of the knowledge of the
undersigned, the undersigned did not acquire the Rights
evidenced by this Right Certificate from any Person who is or
was an Acquiring Person, an Interested Stockholder, or an
Affiliate or Associate thereof.
____________________________________
Signature
------------------------------------------------
NOTICE
The signature in the Form of Assignment or Form of Election to
Purchase, as the case may be, must conform to the name as
written upon the face of this Right Certificate in every
particular, without alteration or enlargement or any change
whatsoever.
In the event the certification set forth above in the Form of
Assignment or the Form of Election to Purchase, as the case
may be, is not completed, the Company and the Rights Agent
will deem the beneficial owner of the Rights evidenced by this
Right Certificate to be an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement) and
such Assignment or Election to Purchase will not be honored.
B-7