EX-10.8 FORM OF WARRANT / SERIES E PREFERRED STOCK

EX-10.8 14 g87401exv10w8.txt EX-10.8 FORM OF WARRANT / SERIES E PREFERRED STOCK EXHIBIT 10.8 The securities represented by this certificate have been issued and sold in reliance upon exemptions from registration under the Securities Act of 1933, as amended (the "1933 Act"), Section 10-5-9 (13) of the Official Code of Georgia Annotated (the "Georgia Code") and appropriate exemptions from registration under the securities laws of other applicable jurisdictions. The securities may not be offered for sale, sold or transferred other than pursuant to an effective registration statement or an exemption therefrom satisfactory to the issuer under the 1933 Act, the Georgia Code and the applicable securities laws of any other jurisdiction. The issuer shall be entitled to require an opinion of counsel reasonably satisfactory to it with respect to compliance of the proposed sale or transfer with the registration requirements of the 1933 Act or an exemption therefrom. SERIES E CONVERTIBLE PREFERRED STOCK PURCHASE WARRANT Warrant No. PE Number of Shares INHIBITEX, INC Void after December 19, 2008 1. Issuance. This Warrant is issued to __________ (the "Investor") by Inhibitex, Inc., a Delaware corporation (hereinafter with its successors called the "Company"). 2. Purchase Price; Number of Shares. Subject to the terms and conditions hereinafter set forth, the registered holder of this Warrant (the "Holder"), commencing on the date hereof, is entitled to purchase from the Company at a price per share (the "Purchase Price") of $5.91, fully paid and nonassessable shares of Series E Convertible Preferred Stock, $.001 par value, of the Company (the "Series E Preferred Stock"). Until such time as this Warrant is exercised in full or expires, the Purchase Price and the securities issuable upon exercise of this Warrant are subject to adjustment as hereinafter provided. 3. Exercise of Warrant. This Warrant may be exercised by the Holder upon the surrender of this Warrant, with the subscription form annexed hereto duly executed, at the office of the Company, 1165 Sanctuary Parkway, Suite 400, Alpharetta, Georgia 30004, or at such other office as the Company notifies the Holder of in writing, together with payment of the Purchase Price (or the proportionate part thereof if this Warrant is exercised in part) in the manner set forth in Section 4 hereof (except in the case of an election under Section 5 hereof). Upon such surrender of this Warrant, the Company will (a) issue a certificate or certificates in the name of the Holder for the shares of the Series E Preferred stock to which the Holder shall be entitled and (b) deliver to the Holder the proportionate part thereof if this Warrant is exercised in part, pursuant to the provisions of the Warrant. 4. Payment of Purchase Price. The Purchase Price may be paid (i) in cash or by check, (ii) by the surrender by the Holder to the Company of any promissory notes or other obligations issued by the Company, with all such notes and obligations so surrendered being credited against the Purchase Price in an amount equal to the principal amount thereof plus accrued interest to the date of surrender, (iii) through delivery by the Holder to the Company of other securities issued by the Company, with such -2- securities being credited against the Purchase Price in an amount equal to the fair market value thereof, as determined in good faith by the Board of Directors of the Company (the "Board"), or (iv) by any combination of the foregoing. The Board shall promptly respond in writing to an inquiry by the Holder as to the fair market value of any securities the Holder may wish to deliver to the Company pursuant to clause (iii) above. 5. Net Issue Election. The Holder may elect to receive, without the payment by the Holder of any additional consideration, shares equal to the value of this Warrant or any portion hereof by the surrender of this Warrant or such portion to the Company, with the net issue election notice annexed hereto duly executed, at the office of the Company. Thereupon, the Company shall issue to the Holder such number of fully paid and nonassessable shares of Series E Preferred Stock as is computed using the following formula: X = Y (A-B) ------- A where X = the number of shares to be issued to the Holder pursuant to this Section 5. Y = the number of shares covered by this Warrant in respect of which the net issue election is made pursuant to this Section 5. A = the fair market value of one share of Series E Preferred Stock, as determined in good faith by the Board, as at the time the net issue election is made pursuant to this Section 5. B = the Purchase Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 5. The Board shall promptly respond in writing to an inquiry by the Holder as to the fair market value of one share of Series E Preferred Stock. 6. Partial Exercise. This Warrant may be exercised in whole or in part, and the Holder shall be entitled to receive a new warrant, which shall be dated as of the date of this Warrant, covering the number of shares in respect of which this Warrant shall not have been exercised. 7. Issuance Date. The person or persons in whose name or names any certificate representing shares of Series E Preferred Stock is issued hereunder shall be deemed to have become the holder of record of the shares represented thereby as at the close of business on the date this Warrant is exercised with respect to such shares, whether or not the transfer books of the Company shall be closed. 8. Expiration Date; Automatic Exercise. This Warrant shall expire at the close of business on December 19, 2008, or effective upon the closing of a firm commitment underwritten public offering of shares of Common Stock in which (i) the Company receives gross proceeds of at least $50,000,000 before underwriting discounts, commissions and fees and (ii) the price to the public for such shares is at least $8.00 per share (appropriately adjusted to reflect any subdivision, combination or stock dividends or distributions of or with respect to the Common Stock), whichever is earlier, and shall be void thereafter. Notwithstanding the foregoing, this Warrant shall automatically be deemed to be exercised in full -3- pursuant to the provisions of Section 5 hereof, without any further action on behalf of the Holder, immediately prior to the time this Warrant would otherwise expire pursuant to the preceding sentence. 9. Reserved Shares; Valid Issuance. The Company covenants that it will at all times from and after the date hereof reserve and keep available such number of its authorized shares of Series E Preferred Stock and Common Stock, $.001 par value (the "Common Stock"), free from all preemptive or similar rights therein, as will be sufficient to permit, respectively, the exercise of this Warrant in full and the conversion into shares of Common Stock of all shares of Series E Preferred Stock receivable upon such exercise. The Company further covenants that such shares as may be issued pursuant to such exercise and conversion will, upon issuance, be duly and validly issued, fully paid and nonassessable and free from all taxes, liens and charges with respect to the issuance thereof. 10. Stock Dividends. If after the Original Issue Date (as defined in Section 15 hereof) the Company shall subdivide the Series E Preferred Stock, by split-up or otherwise, or combine the Series E Preferred Stock, or issue additional shares of Series E Preferred Stock in payment of a stock dividend on the Series E Preferred Stock, the number of shares issuable on the exercise of this Warrant shall forthwith be proportionately increased in the case of a subdivision or stock dividend, or proportionately decreased in the case of a combination, and the Purchase Price shall forthwith be proportionately decreased in the case of a subdivision or stock dividend, or proportionately increased in the case of a combination. 11. Mergers and Reclassifications. If after the Original Issue Date there shall be any reclassification, capital reorganization or change of the Series E Preferred Stock (other than as a result of a subdivision, combination or stock dividend provided for in Section 10 hereof), or any consolidation of the Company with, or merger of the Company into, another corporation or other business organization (other than a consolidation or merger in which the Company is the continuing corporation and which does not result in any reclassification or change of the outstanding Series E Preferred Stock), or any sale or conveyance to another corporation or other business organization of all or substantially all of the assets of the Company, then, as a condition of such reclassification, reorganization, change, consolidation, merger, sale or conveyance, lawful provisions shall be made, and duly executed documents evidencing the same from the Company or its successor shall be delivered to the Holder, so that the Holder shall thereafter have the right to purchase, at a total price not to exceed that payable upon the exercise of this Warrant in full, the kind and amount of shares of stock and other securities and property receivable upon such reclassification, reorganization, change, consolidation, merger, sale or conveyance by a holder of the number of shares of Series E Preferred Stock which might have been purchased by the Holder immediately prior to such reclassification, reorganization, change, consolidation, merger, sale or conveyance (or, if there are no holders of Series E Preferred Stock at such time, by a holder of the number of shares of Common Stock which might have been acquired by the Holder immediately prior to such reclassification, reorganization, change, consolidation, merger, sale or conveyance upon the exercise of this Warrant in full and the conversion into shares of Common Stock of all shares of Series E Preferred Stock receivable upon such exercise), and in any such case appropriate provisions shall be made with respect to the rights and interest of the Holder to the end that the provisions hereof (including without limitation, provisions for the adjustment of the Purchase Price and the number of shares issuable hereunder) shall thereafter be applicable in relation to any shares of stock or other securities and property thereafter deliverable upon exercise hereof. 12. Fractional Shares. In no event shall any fractional share of Series E Preferred Stock be issued upon any exercise of this Warrant. If, upon exercise of this Warrant as an entirety, the Holder would, except as provided in this Section 12, be entitled to receive a fractional share of Series E -4- Preferred Stock, then the Company shall issue the next higher number of full shares of Series E Preferred Stock, issuing a full share with respect to such fractional share. 13. Certificate of Adjustment. Whenever the Purchase Price is adjusted, as herein provided, the Company shall promptly deliver to the Holder a certificate of the Company's Chief Financial Officer setting forth the Purchase Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment. 14. Notices of Record Date, Etc. In the event of: (a) any 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) any reclassification of the capital stock of the Company, capital reorganization of the Company, consolidation or merger involving the Company, or sale or conveyance of all or substantially all of its assets, or (c) any 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 Holder 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 reclassification, reorganization, consolidation, merger, sale or conveyance, dissolution, liquidation or winding-up is to take place, and the time, if any is to be fixed, as of which the holders of record in respect of such event are to be determined. Such notice shall be mailed at least 20 days prior to the date specified in such notice on which any such action is to be taken. 15. Other Warrants. This Warrant is one of a series of warrants (collectively, the "Warrants") that were originally issued by the Company on December 19, 2003 (the "Original Issue Date") pursuant to a Series E Preferred Stock and Warrant Purchase Agreement dated as of the Original Issue Date by and among the Company and the other parties thereto. 16. Amendment. The terms of this Warrant may be amended, modified or waived only with the written consent of the Company and the holders of Warrants representing at least two-thirds of the number of shares of Series E Preferred Stock then issuable upon the exercise of the Warrants. No such amendment, modification or waiver shall be effective as to this Warrant unless the terms of such amendment, modification or waiver shall apply with the same force and effect to all of the other Warrants then outstanding. 17. Warrant Register; Transfers, Etc. A. The Company will maintain a register containing the names and addresses of the registered holders of the Warrants. The Holder may change its address as shown on the warrant register by written notice to the Company requesting such change. Any notice or written communication required or permitted to be given to the Holder may be given by certified mail or delivered to the Holder at its address as shown on the warrant register. -5- B. Subject to compliance with applicable federal and state securities laws, this Warrant may be transferred by the Holder with respect to any or all of the shares purchasable hereunder. Upon surrender of this Warrant to the Company, together with the assignment hereof properly endorsed, for transfer of this Warrant as an entirety by the Holder, the Company shall issue a new warrant of the same denomination to the assignee. Upon surrender of this Warrant to the Company, together with the assignment hereof properly endorsed, by the Holder for transfer with respect to a portion of the shares of Series E Preferred Stock purchasable hereunder, the Company shall issue a new warrant to the assignee, in such denomination as shall be requested by the Holder hereof, and shall issue to such Holder a new warrant covering the number of shares in respect of which this Warrant shall not have been transferred. C. In case this Warrant shall be mutilated, lost, stolen or destroyed, the Company shall issue a new warrant of like tenor and denomination and deliver the same (i) in exchange and substitution for and upon surrender and cancellation of any mutilated Warrant, or (ii) in lieu of any Warrant lost, stolen or destroyed, upon receipt of evidence reasonably satisfactory to the Company of the loss, theft or destruction of such Warrant (including a reasonably detailed affidavit with respect to the circumstances of any loss, theft or destruction) and of indemnity reasonably satisfactory to the Company, provided, however, that so long as Investor is the registered holder of this Warrant, no indemnity shall be required other than its written agreement to indemnify the Company against any loss arising from the issuance of such new warrant. 18. No Impairment. The Company will not, by amendment or restatement of its Seventh Amended and Restated Certificate of Incorporation or through any reclassification, capital reorganization, consolidation, merger, sale or conveyance of assets, dissolution, liquidation, issue or sale of securities or any other voluntary 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 Holder. 19. Governing Law. The provisions and terms of this Warrant shall be governed by and construed in accordance with the internal laws of the State of Delaware. 20. Successors and Assigns. This Warrant shall be binding upon the Company's successors and assigns and shall inure to the benefit of the Holder's successors, legal representatives and permitted assigns. 21. Business Days. If the last or appointed day for the taking of any action required or the expiration of any right granted herein shall be a Saturday or Sunday or a legal holiday in Delaware, then such action may be taken or right may be exercised on the next succeeding day which is not a Saturday or Sunday or such a legal holiday. -6- 22. No Rights as Shareholder. Except as otherwise provided herein or in the Fourth Amended and Restated Master Rights Agreement dated as of the date hereof between the Company and the parties listed therein, as amended from time to time, this Warrant does not confer upon the Holder any right to vote or to consent to or receive notice as a shareholder of the Company, as such, in respect of any matters whatsoever, or any other rights or liabilities as a shareholder, prior to the exercise hereof. Dated: December __, 2003 INHIBITEX, INC. _______________________________ (Corporate Seal) By:____________________________ Attest: Title:_________________________ -7- Subscription To:____________________ Date:_________________________ The undersigned hereby subscribes for __________ shares of Series E Preferred Stock covered by this Warrant. The certificate(s) for such shares shall be issued in the name of the undersigned or as otherwise indicated below: _________________________________ Signature _________________________________ Name for Registration _________________________________ Mailing Address Net Issue Election Notice To:____________________ Date:_________________________ The undersigned hereby elects under Section 5 to surrender the right to purchase _______ shares of Series E Preferred Stock pursuant to this Warrant. The certificate(s) for the shares issuable upon such net issue election shall be issued in the name of the undersigned or as otherwise indicated below. _________________________________ Signature _________________________________ Name for Registration _________________________________ Mailing Address -8- Assignment For value received ____________________________ hereby sells, assigns and transfers unto ______________________________________ ___________________________________________________________________________ Please print or typewrite name and address of Assignee ___________________________________________________________________________ the within Warrant, and does hereby irrevocably constitute and appoint _______________________ its attorney to transfer the within Warrant on the books of the within named Company with full power of substitution on the premises. Dated:_______________________ _____________________________ In the Presence of: _____________________________