Form of Warrant EXHIBIT 4.2
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. SUCH SECURITIES MAY NOT BE SOLD, ASSIGNED, TRANSFERRED,
PLEDGED OR HYPOTHECATED UNLESS REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR IN ACCORDANCE WITH AN EXEMPTION THEREUNDER.
_________________ Warrants
Void after 5:00 p.m. Eastern Time on the Expiration Date
WARRANT TO PURCHASE COMMON STOCK
OF
NASTECH PHARMACEUTICAL COMPANY INC.
This Is To Certify That, FOR VALUE RECEIVED, ___________________________
("Holder") having an address at __________________________________________, is
entitled to purchase, subject to the provisions of this Warrant, ("Warrant")
from Nastech Pharmaceutical Company Inc., a Delaware corporation (the
"Company"), ____________________ (_______) non-callable, fully paid, validly
issued and non-assessable shares of Common Stock, par value $.006 per share (the
"Common Stock"), at an exercise price of $6.3375, which is equal to 130% of
$4.875, the purchase price per share of the Common Stock pursuant to the
offering by the Company (the "Offering") of a maximum of $10,000,000 of its
securities consisting of Common Stock and warrants, as more fully described in
the Offering Memorandum, dated February 5, 2001, and in an amendment thereto
dated March 22, 2001, at any time or from time to time during the period (the
"Exercise Period") from the date hereof until 5:00 p.m. Eastern Standard Time on
March 22, 2006 (the "Expiration Date"). The number of shares of Common
Stock to be received upon the exercise of this Warrant and the price to be paid
for each share of Common Stock may be adjusted from time to time as hereinafter
set forth. The Common Stock, as adjusted from time to time, are hereinafter
sometimes referred to as "Warrant Shares" and the exercise price of the Common
Stock hereunder in effect at any time and as adjusted from time to time is
hereinafter sometimes referred to as the "Exercise Price."
(1) EXERCISE OF WARRANT. This Warrant may be exercised in whole or in part
at any time or from time to time during the Exercise Period; provided, however,
that if such day is a day on which banking institutions in the State of New York
are authorized by law to close, then on the next succeeding day which shall not
be such a day. This Warrant may be exercised by presentation and surrender of
this Warrant to the Company at its principal office or to the Company's warrant
agent, if any has been so appointed, with the Purchase Form annexed hereto duly
executed and accompanied by payment of the Exercise Price, in cash or by
certified or bank cashier's check, for the number of Warrant Shares specified in
such form. Notwithstanding the foregoing, in lieu of any cash payment required
hereunder, the Holder of this Warrant shall have the right at any time during
the Exercise Period to exercise the Warrant in full or in part by surrender of
this Warrant (with the election at the end hereof duly executed) to the Company
at its principal office or to the Company's warrant agent, if any has been so
appointed, in exchange for the number of Warrant Shares equal to the product of
(a) the number of Warrant Shares as to which the Warrant is being exercised
multiplied by (b) a fraction, the numerator of which is the Current Market Price
(as defined in Section 10 below) of the Common Stock less the Exercise Price and
the denominator of which is the Current Market Price. As soon as practicable
after each such exercise of the Warrants, the Company shall issue or cause to be
issued and delivered to the Holder a certificate or certificates for the Warrant
Shares issuable upon such exercise, registered in the name of the Holder. The
Warrant shall be deemed to have been exercised immediately prior to the close of
business on the date of any such exercise, provided such exercise is in
accordance with the provisions set forth herein. If this Warrant should be
exercised in part only, the Company shall, upon surrender of this Warrant for
cancellation, execute and deliver a new Warrant evidencing the rights of the
Holder thereof to purchase the balance of the Warrant Shares purchasable
thereunder. Upon receipt by the Company of this Warrant at its office in proper
form for exercise, the Holder shall be deemed to be the holder of record of the
Common Stock issuable upon such exercise, notwithstanding that the stock
transfer books of the Company shall then be closed or that certificates
representing such Common Stock shall not then be physically delivered to the
Holder.
(2) RESERVATION OF SHARES. The Company shall at all times reserve for
issuance and/or delivery upon exercise of this Warrant such number of shares of
its Common Stock as shall be required for issuance and delivery upon exercise of
the Warrants.
(3) FRACTIONAL SHARES. No fractional shares or script representing
fractional shares shall be issued upon the exercise of this Warrant. If more
than one Warrant shall be exercised at one time by the Holder, the number of
full shares which shall be issuable upon exercise thereof shall be computed on
the basis of the aggregate number of full shares issuable upon such exercise. No
adjustment shall be made in respect of cash dividends on Warrant Shares
delivered upon exercise of any Warrant. With respect to any fraction of a share
called for upon exercise hereof, the Company shall pay to the Holder an amount
in cash equal to such fraction multiplied by the average bid and asked prices of
the Common Stock on the last available date for which quotations are available
immediately preceding the date of exercise of this Warrant, if the bid and asked
prices are not so reported, then the current market value shall be an amount,
not less than the book value thereof as at the end of the most recent fiscal
year of the Company ending prior to the date of the exercise of the Warrant,
determined in such reasonable manner as may be prescribed by the Board of
Directors of the Company.
(4) EXCHANGE OR LOSS OF WARRANT. This Warrant is exchangeable, without
expense, at the option of the Holder, upon presentation and surrender hereof to
the Company for other Warrants of different denominations entitling the holder
thereof to purchase in the aggregate the same number of Common Stock purchasable
hereunder. This Warrant may be divided or combined with other Warrants which
carry the same rights upon presentation hereof at the principal office of the
Company with a written notice specifying the denominations in which new Warrants
are to be issued and signed by the Holder hereof. The term "Warrant" as used
herein includes any Warrants into which this Warrant may be divided or
exchanged. Upon receipt by the Company or its warrant agent, if any, of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Warrant, if mutilated, the Company will execute and deliver a new Warrant of
like tenor and date.
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(5) RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder in the Company, either at law or equity,
and the rights of the Holder are limited to those expressed in the Warrant and
are not enforceable against the Company except to the extent set forth herein
and in any warrant agreement entered into by and between the Company and a
warrant agent with respect to the Warrants. In the event the Company enters into
a warrant agreement with a warrant agent, the terms of the Warrant shall be
embodied in the warrant agreement; and the acceptance of this Warrant by the
Holder shall be deemed consent by the Holder for the Company to enter into any
such warrant agreement, upon such terms and conditions mutually agreeable
between the Company and any such warrant agent, provided such warrant agreement
does not adversely affect any of the rights of the Holder, as set forth in this
Warrant.
(6) ANTI-DILUTION PROVISIONS.
(a) Stock Dividends, Splits, Combinations, etc. In case the Company
shall at any time after the date of this Warrant (i) declare a dividend, or make
a distribution, on the outstanding Common Stock in shares of its capital stock,
(ii) subdivide the outstanding Common Stock, (iii) combine the outstanding
Common Stock into a smaller number of shares, or (iv) issue any shares of its
capital stock by reclassification of the Common Stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), then in each case, the number and kind
of shares of Common Stock receivable upon exercise of this Warrant, in effect at
the time of the record date for such dividend or distribution or of the
effective date of such subdivision, combination, or reclassification, shall be
proportionately increased or decreased, as the case may be, so that the Holder
after such time shall be entitled to receive the aggregate number and kind of
shares which if such Warrant had been exercised immediately prior to such time,
it would have owned upon such exercise and been entitled to receive by virtue of
such dividend, distribution, subdivision, combination or reclassification.
Whenever the number of shares of Common Stock purchasable upon the exercise of
this Warrant is adjusted as provided in this Section 6(a), then the Exercise
Price shall also be adjusted by multiplying such Exercise Price immediately
prior to such adjustment by a fraction (A) the numerator of which shall be the
number of shares of common Stock purchasable upon the exercise immediately prior
to such adjustment, and (B) the denominator of which shall be the number of
shares of Common Stock so purchasable immediately thereafter. Such adjustment
shall be made successively whenever any event listed above shall occur.
(b) Reorganization, Consolidation, Merger, Etc. In the case of any
reorganization of the Company (or any other corporation, the securities of which
are at the time receivable on the exercise of this Warrant) or if the Company
(or any other such corporation) shall consolidate with or merge into another
corporation or covey all or substantially all of its assets to another
corporation, then, and in each such case, the Holder of this Warrant upon the
exercise as provided for in Section 1 at any time after the consummation of such
reorganization, consolidation, merger or conveyance, shall be entitled to
receive in lieu of the securities and property receivable upon the exercise of
this Warrant prior to such consummation, the securities or property to which
such Holder would have been entitled upon such consummation if such Holder had
exercised this Warrant immediately prior thereto, in each such case, the terms
of this Warrant shall be applicable to the securities or property received upon
the exercise of this Warrant after such combination.
(c) Extraordinary Dividends. In case the Company shall distribute to
all holders of Common Stock (including any such distribution made to the
stockholders of the Company in connection with a consolidation or merger in
which the Company is the continuing corporation) evidences of its indebtedness
or assets (other than dividends payable in shares of Common Stock), or
subscription rights, options, or warrants or convertible or exchangeable
securities containing the right to subscribe for or purchase shares of Common
Stock (excluding those referred to in paragraph 6(b) hereof), then, in each
case, the Exercise Price shall be adjusted by multiplying the Exercise Price in
effect immediately prior to the record date for the determination of
stockholders entitled to receive such distribution by a fraction, the numerator
of which shall be the current Exercise Price per share of Common Stock on such
record date, less the fair market value (as determined in good faith by the
Board of Directors of the Company, whose determination shall be conclusive
absent manifest error) of the portion of the evidences of indebtedness or assets
so to be distributed, or of such subscription rights, options, or warrants or
convertible or exchangeable securities containing the right to subscribe for or
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purchase shares of Common Stock, applicable to one share, and the denominator of
which shall be such current Exercise Price per share of Common Stock. Such
adjustment shall be made whenever any such distribution is made, and shall
become effective on the date of such distribution retroactive to the record date
for the determination of stockholders entitled to receive such distribution.
(d) De Minimis Exception. No adjustment in the Exercise Price shall
be required if such adjustment is less than $.01; provided, however, that any
adjustments which by reason of this paragraph 6 are not required to be made
shall be carried forward and taken into account in any subsequent adjustment.
All calculations under this paragraph 6 shall be made to the nearest
one-thousandth of a share, as the case may be.
(e) Date of Issuance. In any case in which this paragraph 6 shall
require that an adjustment in the Exercise Price be made effective as of a
record date for a specified event, the Company may elect to defer, until the
occurrence of such event, issuing to any Holder who exercised any Warrants after
such record date, the shares of Common Stock, if any, issuable upon such
exercise over and above the shares of Common Stock, if any, issuable upon such
exercise on the basis of the Exercise Price in effect prior to such adjustment.
(f) Adjustment to Number of Shares. Upon each adjustment of the
Exercise Price as a result of the calculations made in paragraph 6(c) hereof,
each Warrant outstanding prior to the making of the adjustment in the Exercise
Price shall thereafter evidence the right to purchase, at the adjusted Exercise
Price, that number of shares (calculated to the nearest thousandth) obtained by
dividing (i) the product obtained by multiplying the number of shares
purchasable upon exercise of a Warrant prior to adjustment of the number of
shares by the Exercise Price in effect prior to adjustment of the Exercise Price
by (ii) the Exercise Price in effect after such adjustment of the Exercise
Price.
(g) Notice of Adjustments. Whenever there shall be an adjustment as
provided in this paragraph 6, the Company shall promptly cause written notice
thereof to be sent by overnight courier, to the Holder, at its principal office,
which notice shall be accompanied by an officer's certificate setting forth the
number of Warrant Shares purchasable upon the exercise of this Warrant and the
Exercise Price after such adjustment and setting forth a brief statement of the
facts requiring such adjustment and the computation thereof, which officer's
certificate shall be conclusive evidence of the correctness of any such
adjustment absent any error.
(h) Outstanding Options/Warrants. No adjustment in the Exercise
Price shall be required in the case of the issuance of any and all shares of
Common Stock upon exercise of any options, warrants or convertible securities
outstanding on or before the date hereof.
(i) Adjustments at Below Par Value. Before taking any action which
would cause an adjustment reducing the Exercise Price below the then par value
of the Common Stock issuable upon exercise of the Warrants, the Company will
take any corporate action which may, in the opinion of its counsel, be necessary
in order that the Company may validly and legally issue fully paid and
non-assessable shares of such the Company at such adjusted Exercise Price.
(7) INVESTMENT REPRESENTATION. By accepting this Warrant, the Holder
acknowledges that it is being taken for its own account as principal, for
investment purposes only, and not with a view to, or for, resale, distribution
or fractionalization thereof, in whole or in part, and no other person has a
direct or indirect beneficial interest in such Warrant and such Warrant may only
be transferred, subject to compliance with the legend set forth on the first
page of this Warrant Certificate. Unless the shares issuable upon the exercise
of this Warrant are registered under the Securities Act of 1933, as amended (the
"Act"), the Holder, upon exercise of this Warrant will be required to provide
the Company with an investment letter and the certificates representing such
shares will contain a legend to the effect that the Holder may not transfer,
sell, pledge or hypothecate such shares unless the registration provisions of
the Act have been complied with and unless the Company has received an opinion
of counsel that such registration is not required.
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(8) REGISTRATION RIGHTS. The Warrant Shares issuable upon the exercise of
this Warrant are the subject of certain registration rights granted by the
Company to the Holder as more specifically set forth in the Stock and Warrant
Purchase Agreement which was executed by each of the Company and Holder in
connection with the Offering.
(9) NOTICES. All notices and other communications which are required or
may be given under this Warrant shall be in writing and shall be deemed to have
been duly given when delivered in person or transmitted by telex or three (3)
days after being mailed, postage prepaid, in the case of the Company to Nastech
Pharmaceutical Company Inc.,45 Adams Ave, Hauppauge, New York 11788 Attention:
Chief Financial Officer, and in the case of the Holder to the address set forth
herein, or to such other address as such party shall have specified by notice to
the other party in accordance with this section (9). If notice is given by
registered or certified first class mail, postage prepaid, return receipt
requested, the return receipt shall be conclusive evidence of the notice having
been mailed on the date set forth.
(10) DEFINITION. The "Current Market Price" for the Common Stock of the
Company on any date shall be deemed to be the average of the daily closing
prices for the thirty (30) consecutive trading days immediately preceding the
date in question. The closing price for each day shall be the last reported
sales price regular way or, in case no such reported sale takes place on such
day, the closing bid price regular way, in either case on the principal national
securities exchange (including, for purposes hereof, the Nasdaq National Market
("Nasdaq")) on which the shares of Common Stock are listed or admitted to
trading, or, if the Common Stock are not listed or admitted to trading on any
national securities exchange, the highest reported bid price for the Common
Stock as furnished by the Nasdaq or a similar organization if the Nasdaq is no
longer reporting such information (including, for purposes hereof, Nasdaq). If
on any such date the Common Stock are not listed or admitted to trading on any
national securities exchange and are not quoted by Nasdaq or any similar
organization, the fair value of a share on such date, as determined in good
faith by the Board of Directors of the Company, whose determination shall be
conclusive, shall be used.
(11) MISCELLANEOUS. This Agreement contains the entire Agreement and
supersedes all prior agreements and understandings, oral or written, between the
parties hereto with respect to the subject matter hereof. This Warrant may not
be changed orally, but only by an agreement in writing signed by the party
against whom any waiver, change, amendment, modification or discharge is sought,
provided however, that this Warrant may be amended or modified without the
consent of the Holder if such amendment or modification does not adversely
affect the rights of the Holder hereunder. This Agreement may be assigned by
Holder in accordance with the provisions of section (7) of this Agreement. This
Agreement will not be assigned by the Company and shall be interpreted under the
laws of the State of New York without application to the principles of conflicts
of laws.
NASTECH PHARMACEUTICAL COMPANY INC.
By: _______________________________________
[SEAL]
Dated:
Attest:
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FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the attached Warrant.)
FOR VALUE RECEIVED, _____________________ hereby sells,
assigns, and transfers unto ________________________ a warrant (the "Warrant")
to purchase __________ Common Stock, $.006 par value per share, of Nastech
Pharmaceutical Company Inc. (the "Company"), together with all right, title, and
interest therein, and does hereby irrevocably constitute and appoint
__________________________________________________ as attorney to transfer such
Warrant on the books of the Company, with full power of substitution.
Dated:___________________
Signature: ___________________
NOTICE
The signature on the foregoing Assignment must correspond to
the name as written upon the face of this Warrant in every particular, without
alteration or enlargement or any change whatsoever.
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EXERCISE FORM
Dated ______________, ____
The undersigned hereby irrevocably elects to exercise the within Warrant
to the extent of purchasing shares of Common Stock and hereby (i) tenders
payment herewith in the amount of $_____________ or (ii) surrenders this Warrant
in the amount of _________, in payment of the actual exercise price thereof, and
requests that certificates for such securities be issued in the name of, and
delivered to, and, if such number of Warrant Shares shall not be all the Warrant
Shares covered by the within Warrant, that a new Warrant for the balance of the
Warrant Shares be registered in the name of, and delivered to, the undersigned
at the address stated below. As a condition to this election, the undersigned
hereby represents and warrants to the Company that the representations made by
the undersigned in Section 4 of the Stock and Warrant Purchase Agreement,
including the information provided by the undersigned in its Purchaser
Questionnaire, are true and correct as of the date of this election with respect
to the Warrant Shares.
______
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name: _________________________________________________________________________
(Please type, write or print in block letters)
Address: ______________________________________________________________________
Signature: ____________________________________________________________________
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