-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, A7T3Z64ncjYR75BIT5PV/o5BERe8rFRoBPmR6rE0HcIWdbkMUNyFe5FS9lON1n7p jvABYDoAIzInKH/lW/2xug== 0001140361-05-010132.txt : 20051123 0001140361-05-010132.hdr.sgml : 20051123 20051123151705 ACCESSION NUMBER: 0001140361-05-010132 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20051123 DATE AS OF CHANGE: 20051123 GROUP MEMBERS: KIRKFIELD LLC GROUP MEMBERS: NEW RIVER MANAGEMENT II LP GROUP MEMBERS: RJK LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CLINICAL DATA INC CENTRAL INDEX KEY: 0000716646 STANDARD INDUSTRIAL CLASSIFICATION: LABORATORY ANALYTICAL INSTRUMENTS [3826] IRS NUMBER: 042573920 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-39041 FILM NUMBER: 051224707 BUSINESS ADDRESS: STREET 1: ONE GATEWAY CENTER STREET 2: SUITE 411 CITY: NEWTON STATE: MA ZIP: 02158 BUSINESS PHONE: 6172619933 MAIL ADDRESS: STREET 1: ONE GATEWAY CENTER STREET 2: SUITE 411 CITY: NEWTON STATE: MA ZIP: 02158 FORMER COMPANY: FORMER CONFORMED NAME: NOVITRON INTERNATIONAL INC DATE OF NAME CHANGE: 19940727 FORMER COMPANY: FORMER CONFORMED NAME: CLINICAL DATA INC DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: KIRK RANDAL J CENTRAL INDEX KEY: 0001091823 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: THIRD SECURITY LLC STREET 2: THE GOVERNOR TYLER CITY: RADFORD STATE: VA ZIP: 24141 BUSINESS PHONE: 540-633-7900 MAIL ADDRESS: STREET 1: 1881 GROVE AVENUE CITY: RADFORD STATE: VA ZIP: 24141 SC 13D/A 1 body.htm CLINICAL DATA SC 13D A 11-17-2005 Clinical Data SC 13D A 11-17-2005


UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 14)
 
CLINICAL DATA, INC.
(Name of Issuer)
 
COMMON STOCK, $.01 par value per share
(Title of Class of Securities)
 
18725U109
(CUSIP Number)
 
Third Security, LLC
The Governor Tyler
1881 Grove Avenue
Radford, Virginia 24141
Attention: Marcus E. Smith, Esq.
Telephone No.: 540-633-7971
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
 
Copy to:
John Owen Gwathmey, Esq.
Hunton & Williams LLP
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, Virginia 23219
 
November 17, 2005
(Date of Event Which Requires Filing of This Statement)
 
If the filing person has previously filed a statement
on Schedule 13G to report the acquisition which is the
subject of this Schedule 13D, and is filing this
schedule because of Rules 13d-1(e), (f) or (g),
check the following box o.
 


 


CUSIP NO. 18725U109
13D
Page 2 of 10 Pages

1
 
NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
 
Randal J. Kirk
2
 
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)  ¨ 
(b) 
3
 
SEC USE ONLY
 
 
4
 
SOURCE OF FUNDS
 
PF
5
 
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
 
¨ 
6
 
CITIZENSHIP OR PLACE OF ORGANIZATION
 
United States
 
NUMBER OF
 
SHARES
 
BENEFICIALLY
 
OWNED BY
 
EACH REPORTING
 
PERSON WITH
 
7
 
SOLE VOTING POWER
 
1,048,191
8
 
SHARED VOTING POWER
 
2,021,146
9
 
SOLE DISPOSITIVE POWER
 
1,048,191
10
 
SHARED DISPOSITIVE POWER
 
2,021,146
11
 
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,069,337
12
 
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨ 
13
 
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
41.9%
14
 
TYPE OF REPORTING PERSON
 
IN



CUSIP NO. 18725U109
13D
Page 3 of 10 Pages

1
 
NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
 
RJK, L.L.C. I.R.S.                                             Identification No.: 54-1816015
2
 
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)  ¨ 
(b) x 
3
 
SEC USE ONLY
 
4
 
SOURCE OF FUNDS
 
WC
5
 
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
 
¨ 
6
 
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Virginia
 
NUMBER OF
 
SHARES
 
BENEFICIALLY
 
OWNED BY
 
EACH REPORTING
 
PERSON WITH
 
7
 
SOLE VOTING POWER
 
0
8
 
SHARED VOTING POWER
 
579,883
9
 
SOLE DISPOSITIVE POWER
 
0
10
 
SHARED DISPOSITIVE POWER
 
579,883
11
 
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
579,883
12
 
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨ 
13
 
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
7.9%
14
 
TYPE OF REPORTING PERSON
 
OO - limited liability company
 


CUSIP NO. 18725U109
13D
Page 4 of 10 Pages

1
 
NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
 
New River Management II, LP                       I.R.S. Identification No.: 65-1166473
2
 
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)  ¨ 
(b) 
3
 
SEC USE ONLY
 
4
 
SOURCE OF FUNDS
 
WC
5
 
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
 
¨ 
6
 
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Virginia
 
NUMBER OF
 
SHARES
 
BENEFICIALLY
 
OWNED BY
 
EACH REPORTING
 
PERSON WITH
 
7
 
SOLE VOTING POWER
 
0
8
 
SHARED VOTING POWER
 
555,162
9
 
SOLE DISPOSITIVE POWER
 
0
10
 
SHARED DISPOSITIVE POWER
 
555,162
11
 
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
555,162
12
 
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨ 
13
 
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
7.6%
14
 
TYPE OF REPORTING PERSON
 
OO - limited partnership
 


CUSIP NO. 18725U109
13D
Page 5 of 10 Pages
 
1
 
NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
 
Kirkfield, L.L.C.                                                 I.R.S. Identification No.: 54-1725089
2
 
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)  ¨ 
(b) 
3
 
SEC USE ONLY
 
4
 
SOURCE OF FUNDS
 
WC
5
 
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
 
¨ 
6
 
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Virginia
 
NUMBER OF
 
SHARES
 
BENEFICIALLY
 
OWNED BY
 
EACH REPORTING
 
PERSON WITH
 
7
 
SOLE VOTING POWER
 
0
8
 
SHARED VOTING POWER
 
433,410
9
 
SOLE DISPOSITIVE POWER
 
0
10
 
SHARED DISPOSITIVE POWER
 
433,410
11
 
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
433,410
12
 
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨ 
13
 
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
5.9%
14
 
TYPE OF REPORTING PERSON
 
OO - limited liability company
 

 
This Amendment No. 14 (the “Amendment”) amends and supplements the Statement on Schedule 13D, dated November 26, 1999 and filed on December 6, 1999, as amended by Amendment No. 1 dated March 10, 2000 and filed on March 15, 2000, Amendment No. 2 dated June 8, 2000 and filed on June 9, 2000, Amendment No. 3 dated December 31, 2000 and filed on January 8, 2001, Amendment No. 4 dated February 7, 2001 and filed on March 1, 2001, Amendment No. 5 dated June 6, 2001 and filed on June 8, 2001, Amendment No. 6 dated June 25, 2001 and filed on June 26, 2001, Amendment No. 7 dated September 6, 2001 and filed on September 7, 2001, Amendment No. 8 dated October 23, 2001 and filed on October 26, 2001, Amendment No. 9 dated October 26, 2001 and filed on October 30, 2001, Amendment No. 10 dated August 21, 2002 and filed on August 21, 2002, Amendment No. 11 dated April 29, 2003 and filed on May 2, 2003, Amendment No. 12 dated November 10, 2003 and filed on November 14, 2003 and Amendment No. 13 dated June 20, 2005 and filed on June 27, 2005 (as amended, the “Original Schedule 13D”), relating to the Common Stock, par value $.01 per share (the “Common Stock”), of Clinical Data, Inc., a Delaware corporation (the “Issuer”). Mr. Randal J. Kirk (“Mr. Kirk”), RJK, L.L.C., a Virginia limited liability company that is controlled by Mr. Kirk (“RJK”), New River Management II, LP, a Virginia limited partnership that is controlled by Mr. Kirk (“NRM II”), and Kirkfield, L.L.C., a Virginia limited liability company that is controlled by Mr. Kirk (“Kirkfield” and, together with Mr. Kirk, RJK and NRM II, the “Reporting Persons”), are filing this Amendment to disclose the purchase by New River Management III, LP, a Virginia limited partnership that is controlled by Mr. Kirk (“NRM III”), Third Security Staff (2001) LLC, a Virginia limited liability company that is controlled by Mr. Kirk (“Staff LLC”), and Radford Investment Limited Partnership, a Delaware limited partnership that is controlled by Mr. Kirk (“Radford”), of an aggregate of 306,710 shares of Common Stock in a private placement from the Issuer. As described in this Amendment, some of the Common Stock that is beneficially owned by Mr. Kirk is directly beneficially owned by one of the following entities, each of which is controlled by Mr. Kirk: RJK, NRM II, NRM III, Kirkfield, Staff LLC, Radford and Zhong Mei, L.L.C., a Virginia limited liability company (“Zhong Mei”).
 
Except as set forth below, there are no changes to the information set forth in the Original Schedule 13D.
 
Item 3. Source and Amount of Funds or Other Consideration.
 
Item 3 of the Original Schedule 13D is hereby amended and supplemented as follows:
 
“On November 17, 2005, NRM III, Staff LLC and Radford each invested approximately $2 million of cash on hand to purchase an aggregate of 306,710 shares of Common Stock in a private placement by the Issuer.”
 
Pages 6 of 10 Pages

 
Item 5. Interest in Securities of the Issuer.
 
Item 5(a) of the Original Schedule 13D is hereby amended and restated to read in its entirety as follows:
 
“The aggregate number and percentage of shares of Common Stock to which this statement relates is 3,069,337 shares, representing 41.9% of the 7,318,402 shares outstanding as of the date of this report, based upon the number of shares disclosed by the Issuer as of November 10, 2005 in the Issuer’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2005 (the most recent available filing by the Issuer with the Securities and Exchange Commission) but taking into account the shares of Common Stock issued in the private placement discussed herein. Mr. Kirk directly beneficially owns 1,048,191 of the shares to which this report relates. The remaining 2,021,146 shares of Common Stock to which this statement relates are directly beneficially owned as follows:
 
Owner
Shares
Kirkfield
433,410
RJK
579,883
Zhong Mei
33,091
NRM II
555,162
NRM III
102,237
Radford
102,236
Staff LLC
215,127
 
Mr. Kirk could be deemed to have indirect beneficial ownership of the shares directly beneficially owned by Kirkfield, RJK, Zhong Mei, NRM II, NRM III, Radford and Staff LLC.”
 
Item 5(b) of the Original Schedule 13D is hereby amended to read in its entirety as follows:
 
“Mr. Kirk has the sole power to vote or direct the vote and the sole power to dispose or to direct the disposition of the shares of Common Stock reported as directly beneficially owned by him in Item 5(a) hereof. Mr. Kirk has, together with the respective direct beneficial owner, the shared power to vote or direct the vote and the shared power to dispose or to direct the disposition of shares of Common Stock reported as directly beneficially owned by each of Kirkfield, RJK, Zhong Mei, NRM II, NRM III, Radford and Staff LLC in Item 5(a) hereof.”
 
Item 5(c) of the Original Schedule 13D is hereby amended and supplemented as follows:

“Other than the purchase of Common Stock in the private placement as reported herein, the Reporting Persons have not engaged in any transactions in shares of Common Stock since the filing of Amendment No. 13 with the Securities and Exchange Commission on June 27, 2005.”
 
Pages 7 of  10 Pages

 
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.
 
Item 6 of the Original Schedule 13D is hereby amended and restated to read in its entirety as follows:
 
“In connection with the purchase in the private placement of Common Stock by NRM III, Staff LLC and Radford, the Issuer issued 51,119, 51,119 and 51,117 warrants, respectively, to NRM III, Staff LLC and Radford. The exercise price of the warrants is $23.40, equaling a twenty percent premium on the closing bid price of the Common Stock on the Nasdaq Stock Market on November 17, 2005. The warrants are exercisable at any time six months after November 17, 2005 through the close of business on the fifth year anniversary of the date on which the warrants initially become exercisable. The form of Common Stock Purchase Warrant is filed herewith as Exhibit 4.1. Except as otherwise described in this statement, to the best knowledge of any of the Reporting Persons, there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2, or between such persons and any other person, with respect to any securities of the Issuer, including, but not limited to, transfer or voting of any of the securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies.”
 
Item 7. Material to be Filed as Exhibits.
 
The following documents are being filed as exhibits to this Amendment and are incorporated herein by reference:
 
 
Exhibit 4.1
Form of Common Stock Purchase Warrant
 
 
Exhibit 99.1
Joint Filing Agreement, dated as of November 23, 2005, by and among Randal J. Kirk, RJK, L.L.C., New River Management II, LP and Kirkfield, L.L.C.
 
Pages 8 of 10 Pages


SIGNATURE
 
After reasonable inquiry and to the best of their knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.
 


Date: November 23, 2005
  /s/ Randal J. Kirk  
   
Randal J. Kirk
 
       
       
Date: November 23, 2005
 
RJK, L.L.C.
 
         
   
By:
/s/ Randal J. Kirk  
     
Randal J. Kirk
 
     
Manager
 
         
         
Date: November 23, 2005
 
NEW RIVER MANAGEMENT II, LP
 
         
   
By:
Third Security Capital Partners, LLC, its general partner
 
         
   
By:
Third Security, LLC, its managing member
 
         
   
By:
/s/ Randal J. Kirk  
     
Randal J. Kirk
 
     
Sole Member
 
         
         
Date: November 23, 2005
 
KIRKFIELD, L.L.C.
 
         
   
By:
/s/ Randal J. Kirk  
     
Randal J. Kirk
 
     
Manager
 

Pages 9 of 10 Pages


EXHIBIT INDEX
 
Exhibit Number
Exhibit
 
Form of Common Stock Purchase Warrant
 
Joint Filing Agreement, dated as of November 23, 2005, by and among Randal J. Kirk, RJK, L.L.C., New River Management II, LP and Kirkfield, L.L.C.
 
 
 Pages 10 of 10 Pages

EX-4.1 2 ex4_1.htm EXHIBIT 4.1 Exhibit 4.1


EXHIBIT 4.1
 
 
NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
 
COMMON STOCK PURCHASE WARRANT
 
To Purchase ____________ Shares of Common Stock of
 
CLINICAL DATA, INC.
 
THIS COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received,___________(the “Holder”), is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time six (6) months after the date hereof (the “Initial Exercise Date”) and on or prior to the close of business on the fifth (5th) year anniversary of the Initial Exercise Date (the “Termination Date”) but not thereafter, to subscribe for and purchase from Clinical Data, Inc., a Delaware corporation (the “Company”), up to ____________ shares (the “Warrant Shares”) of Common Stock, par value $0.01 per share, of the Company (the “Common Stock”). The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
 
Section 1.  Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Securities Purchase Agreement (the “Purchase Agreement”), dated November 17, 2005, among the Company and the purchasers signatory thereto.
 
Section 2.  Exercise.
 
a)  Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed facsimile copy of the Notice of Exercise Form annexed hereto (or such other office or agency of the Company as it may designate by notice in writing to the registered Holder at the address of such Holder appearing on the books of the Company); provided, however, within five (5) Trading Days of the date said Notice of Exercise is delivered to the Company, the Holder shall have surrendered this Warrant to the Company and the Company shall have received payment of the aggregate Exercise Price of the shares thereby purchased by wire transfer or cashier’s check drawn on a United States bank.
 
b)  Exercise Price. The exercise price of the Common Stock under this Warrant shall be $23.40, subject to adjustment hereunder (the “Exercise Price”).
 
c)  Mechanics of Exercise.
 
i.  Authorization of Warrant Shares. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges imposed by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
 


ii.   Delivery of Certificates Upon Exercise. Certificates for shares purchased hereunder shall be transmitted by the transfer agent of the Company to the Holder by crediting the account of the Holder’s prime broker with the Depository Trust Company through its Deposit Withdrawal Agent Commission (“DWAC”) system if the Company is a participant in such system, and otherwise by physical delivery to the address specified by the Holder in the Notice of Exercise within ten (10) Trading Days from the delivery to the Company of the Notice of Exercise Form, surrender of this Warrant and payment of the aggregate Exercise Price as set forth above (“Warrant Share Delivery Date”). This Warrant shall be deemed to have been exercised on the date the Exercise Price and completed Notice of Exercise are received by the Company. The Warrant Shares shall be deemed to have been issued, and Holder or any other person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date the Warrant has been exercised by payment to the Company of the Exercise Price and all taxes required to be paid by the Holder, if any, pursuant to Section 2(c)(vi) prior to the issuance of such shares, have been paid.
 
iii.  Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the time of delivery of the certificate or certificates representing Warrant Shares, deliver to Holder a new Warrant evidencing the rights of Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.
 
iv.  Rescission Rights. If the Company fails to cause its transfer agent to transmit to the Holder a certificate or certificates representing the Warrant Shares pursuant to this Section 2(c)(iv) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise until such time as the Company causes its transfer agent to transmit such certificate or certificates.
 
v.   No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. As to any fraction of a share which Holder would otherwise be entitled to purchase upon such exercise, the Company shall pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price.
 
vi.  Charges, Taxes and Expenses. Issuance of certificates for Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such certificate, all of which taxes and expenses shall be paid by the Company, and such certificates shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however, that in the event certificates for Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder; and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto.
 
vii. Closing of Books. The Company will not close its stockholder books or records prior to the Termination Date in any manner which prevents the timely exercise of this Warrant, pursuant to the terms hereof.

2


Section 3.  Certain Adjustments.
 
a)  Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (A) pays a stock dividend or otherwise make a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company pursuant to this Warrant), (B) subdivides outstanding shares of Common Stock into a larger number of shares, (C) combines (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (D) issues by reclassification of shares of the Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
 
b)  Fundamental Transaction. If, at any time while this Warrant is outstanding, (A) the Company effects any merger or consolidation of the Company with or into another Person, (B) the Company effects any sale of all or substantially all of its assets in one or a series of related transactions, (C) any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to tender or exchange their shares for other securities, cash or property, or (D) the Company effects any reclassification of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder, (a) upon exercise of this Warrant, the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable upon or as a result of such reorganization, reclassification, merger, consolidation or disposition of assets by a Holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such event or (b) if the Company is acquired in an all cash transaction, cash equal to the value of this Warrant as determined in accordance with the Black-Scholes option pricing formula. For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. To the extent necessary to effectuate the foregoing provisions, any successor to the Company or surviving entity in such Fundamental Transaction shall issue to the Holder a new warrant consistent with the foregoing provisions and evidencing the Holder’s right to exercise such warrant into Alternate Consideration. The terms of any agreement pursuant to which a Fundamental Transaction is effected shall include terms requiring any such successor or surviving entity to comply with the provisions of this Section 3(b) and ensuring that this Warrant (or any such replacement security) will be similarly adjusted upon any subsequent transaction analogous to a Fundamental Transaction.
 
c)  Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
 
d)  Voluntary Adjustment By Company. The Company may at any time during the term of this Warrant reduce the then current Exercise Price to any amount and for any period of time deemed appropriate by the Board of Directors of the Company.

3


e)  Notice to Holders.
 
i.   Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to this Section 3, the Company shall promptly mail to each Holder a notice setting forth the Exercise Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment and setting forth the computation by which such adjustment was made.
 
ii.  Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution) on the Common Stock; (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock; (C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights; (D) the approval of any stockholders of the Company shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of the assets of the Company, of any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property; (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company; then, in each case, the Company shall cause to be mailed to the Holder at its last address as it shall appear upon the Warrant Register of the Company, at least five (5) calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided, that the failure to mail such notice or any defect therein or in the mailing thereof shall not affect the validity of the corporate action required to be specified in such notice. The Holder is entitled to exercise this Warrant during the 5-day period commencing on the date of such notice to the effective date of the event triggering such notice.
 
Section 4.  Transfer of Warrant.
 
a)  Transferability. Subject to compliance with any applicable securities laws and the conditions set forth in Sections 5(a) and 4(d) hereof and to the provisions of Section 4.1 of the Purchase Agreement, after the Initial Exercise Date this Warrant and all rights hereunder are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. A Warrant, if properly assigned, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
 
b)  New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice.
 
c)  Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.

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d)  Transfer Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer of this Warrant shall not be registered pursuant to an effective registration statement under the Securities Act and under applicable state securities or blue sky laws, the Company may require, as a condition of allowing such transfer (i) that the Holder or transferee of this Warrant, as the case may be, furnish to the Company a written opinion of counsel (which opinion shall be in form, substance and scope customary for opinions of counsel in comparable transactions) to the effect that such transfer may be made without registration under the Securities Act and under applicable state securities or blue sky laws, (ii) that the holder or transferee execute and deliver to the Company an investment letter in form and substance acceptable to the Company and (iii) that the transferee be an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) promulgated under the Securities Act or a qualified institutional buyer as defined in Rule 144A(a) under the Securities Act.
 
Section 5.  Miscellaneous.
 
a)  Title to Warrant. Prior to the Termination Date and subject to compliance with applicable laws and Section 4 of this Warrant, this Warrant and all rights hereunder are transferable, in whole or in part, at the office or agency of the Company by the Holder in person or by duly authorized attorney, upon surrender of this Warrant together with the Assignment Form annexed hereto properly endorsed. The transferee shall sign an investment letter in form and substance reasonably satisfactory to the Company.
 
b)  No Rights as Shareholder Until Exercise. This Warrant does not entitle the Holder to any voting rights or other rights as a shareholder of the Company prior to the exercise hereof. Upon the surrender of this Warrant and the payment of the aggregate Exercise Price, the Warrant Shares so purchased shall be and be deemed to be issued to such Holder as the record owner of such shares as of the close of business on the later of the date of such surrender or payment.
 
c)  Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
 
d)  Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall be a Saturday, Sunday or a legal holiday, then such action may be taken or such right may be exercised on the next succeeding day not a Saturday, Sunday or legal holiday.
 
e)  Authorized Shares. The Company covenants that during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of executing stock certificates to execute and issue the necessary certificates for the Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed.

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f)  Further Assurances. Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, 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 actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (a) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (b) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant, and (c) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof as may be necessary to enable the Company to perform its obligations under this Warrant. Before taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
 
g)  Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined in accordance with the provisions of the Purchase Agreement.
 
h)  Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, will have restrictions upon resale imposed by state and federal securities laws.
 
i)   Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as a waiver of such right or otherwise prejudice Holder’s rights, powers or remedies, notwithstanding the fact that all rights hereunder terminate on the Termination Date. If the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
 
j)   Notices. Any notice, request or other document required or permitted to be given or delivered to the Holder by the Company shall be delivered in accordance with the notice provisions of the Purchase Agreement.
 
k)  Limitation of Liability. No provision hereof, in the absence of any affirmative action by Holder to exercise this Warrant or purchase Warrant Shares, and no enumeration herein of the rights or privileges of Holder, shall give rise to any liability of Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.
 
l)   Remedies. Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive the defense in any action for specific performance that a remedy at law would be adequate.
 
m)  Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors of the Company and the successors and permitted assigns of Holder. The provisions of this Warrant are intended to be for the benefit of all Holders from time to time of this Warrant and shall be enforceable by any such Holder or holder of Warrant Shares.
 
n)  Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and the holders of a majority of the Shares and Warrant Shares purchased pursuant to the Purchase Agreement.

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o)  Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
 
p)  Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
 
*******************

7

 
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized.
 
Dated: November 17, 2005
 
 
CLINICAL DATA, INC.
     
     
 
By:
  
 
Name:
Caesar J. Belbel
 
Title:
Executive Vice President, Chief Legal Officer and Secretary


 
NOTICE OF EXERCISE
 
TO: CLINICAL DATA, INC.
 
(1) The undersigned hereby elects to purchase __________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
 
(2) Payment shall take the form of in lawful money of the United States.

(3) Please issue a certificate or certificates representing said Warrant Shares in the name of the undersigned or in such other name as is specified below:
 
  
 
 
The Warrant Shares shall be delivered to the following:
 
  
 
   
  
 
   
  
 
 
(4) Accredited Investor. The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
 
[SIGNATURE OF HOLDER]
 
Name of Investing Entity:
  
Signature of Authorized Signatory of Investing Entity:
  
Name of Authorized Signatory:
  
Title of Authorized Signatory:
  
Date:
  



ASSIGNMENT FORM

(To assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to exercise the warrant.)

FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
 
  
whose address is
    
    
 
 
Dated:_________, _____
 
Holder’s Signature:
 
  
     
   
  
     
   
  


Signature Guaranteed:
 
  

NOTE: The signature to this Assignment Form must correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any change whatsoever, and must be guaranteed by a bank or trust company. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Warrant.
 
 

EX-99.1 3 ex99_1.htm EXHIBIT 99.1 Exhibit 99.1


EXHIBIT 99.1

JOINT FILING AGREEMENT
 
In accordance with Rule 13d-1(k) promulgated under the Securities Exchange Act of 1934, as amended, the persons names below agree to the joint filing on behalf of each of them a Statement on Schedule 13D (including amendments thereto) with regard to the common stock of Clinical Data, Inc., and further agree that this Joint Filing Agreement be included as an exhibit to such joint filings. In evidence thereof, the undersigned, being duly authorized, hereby execute this agreement as of the 23rd day of November, 2005.
 


Date: November 23, 2005
  /s/ Randal J. Kirk  
   
Randal J. Kirk
 
       
       
Date: November 23, 2005
 
RJK, L.L.C.
 
         
   
By:
/s/ Randal J. Kirk  
     
Randal J. Kirk
 
     
Manager
 
         
         
Date: November 23, 2005
 
NEW RIVER MANAGEMENT II, LP
 
         
   
By:
Third Security Capital Partners, LLC, its general partner
 
         
   
By:
Third Security, LLC, its managing member
 
         
   
By:
/s/ Randal J. Kirk  
     
Randal J. Kirk
 
     
Manager
 
         
         
Date: November 23, 2005
 
KIRKFIELD, L.L.C.
 
         
   
By:
/s/ Randal J. Kirk  
     
Randal J. Kirk
 
     
Manager
 
 

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