EXHIBIT 10.2
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (the "AGREEMENT") is dated as of October 31, 2006
between Critical Therapeutics, Inc., a Delaware corporation (the "COMPANY"), and
Mellon Investor Services LLC, a New Jersey limited liability company (the
"WARRANT AGENT").
The Company proposes to issue stock purchase warrants (hereinafter called
the "WARRANTS"). Each Warrant entitles the holder thereof to purchase, within
five years from the offering date, one share of common stock, par value $0.001
per share (the "COMMON STOCK"), at a purchase price equal to $2.62 per share.
The Warrant Agent, at the request of the Company, has agreed to act as the agent
of the Company in connection with the issuance, registration, transfer,
exchange, and exercise of Warrants.
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein set forth:
SECTION 1. APPOINTMENT OF WARRANT AGENT. The Company hereby appoints the
Warrant Agent to act as agent for the Company in accordance with the
instructions hereinafter set forth in this Agreement, and the Warrant Agent
hereby accepts such appointment. The Company may from time to time appoint such
Co-Warrant Agents as it may deem necessary or desirable. The Warrant Agent shall
have no duty to supervise, and shall in no event be liable for, the acts or
omissions of any such Co-Warrant Agents. The Company shall promptly notify the
Warrant Agent from time to time in writing of the number of Warrants to be
issued and furnish written instructions in connection therewith.
SECTION 2. FORM OF WARRANT CERTIFICATES. The Warrant Certificates (and the
forms of election to purchase shares and of assignment to be printed on the
reverse thereof) shall be substantially of the tenor and purport recited in
Exhibit A hereto and may have such letters, numbers or other marks of
identification or designation and such legends, summaries or endorsements
printed, lithographed or engraved thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this Warrant Agreement, or as
may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which
the Warrants may from time to time be listed, or to conform to usage, but any of
which do not affect the rights, immunities, duties or liabilities of the Warrant
Agent under this Agreement. The Warrant Certificates shall be dated as of the
date of issuance thereof by the Warrant Agent, either upon initial issuance or
upon transfer or exchange, and initially shall entitle the holders thereof to
purchase one share of Common Stock, but the number of such shares and the
purchase price per share of Common Stock shall be subject to adjustments as
provided herein.
SECTION 3. COUNTERSIGNATURE AND REGISTRATION. The Warrant Certificates
shall be executed on behalf of the Company by the President, the Chief Financial
Officer, the Chief Operating Officer or the Secretary, by facsimile signature.
The Warrant Certificates shall be manually countersigned by the Warrant Agent
and shall not be valid for any purpose unless so countersigned. In case any
officer of the Company who shall have signed any of the Warrant
Certificates shall cease to be such officer of the Company before
countersignature by the Warrant Agent and issuance and delivery by the Company,
such Warrant Certificates, nevertheless, may be countersigned by the Warrant
Agent, issued and delivered with the same force and effect as though the person
who signed such Warrant Certificates had not ceased to be such officer of the
Company; and any Warrant Certificates may be signed on behalf of the Company by
any person who, at the actual date of the execution of such Warrant
Certificates, shall be a proper officer of the Company to sign such Warrant
Certificates, although at the date of the execution of this Warrant Agreement
any such person was not such an officer.
The Warrant Agent will keep or cause to be kept, at its office designated
for such purposes, books for registration and transfer of the Warrant
Certificates issued hereunder. Such books shall show the names and addresses of
the respective holders of the Warrant Certificates, the number of Warrants
evidenced on its face by each of the Warrant Certificates, and the date of each
of the Warrant Certificates.
The Warrant Agent shall countersign a Warrant Certificate only (a) upon
initial issuance of the Warrants in accordance with the written order signed by
the President or any Vice President or (b) upon exchange, transfer or
substitution for one or more previously countersigned Warrant Certificates as
hereinafter provided.
SECTION 4. TRANSFER AND EXCHANGE. Subject to Section 6 hereof, the Warrants
shall not be sold or transferred unless the applicable Warrant Certificate is
surrendered for transfer to the Warrant Agent properly endorsed, or accompanied
by appropriate instruments of transfer and written instructions for transfer, at
which time the Warrant Agent shall register the transfer of such outstanding
Warrant Certificate upon the books to be maintained by the Warrant Agent for
that purpose. Upon any such registration of transfer, a new Warrant Certificate
shall be issued to the transferee and the surrendered Warrant Certificate shall
be canceled by the Warrant Agent. Any Warrant Certificate may be exchanged at
the option of the holder thereof, upon surrender at the office of the Warrant
Agent specified in Section 21 hereof, for another Warrant Certificate, or other
Warrant Certificates of different denominations, representing in the aggregate
the right to purchase a like number of shares of Common Stock. No fractional
Warrant Certificates will be issued. The Company may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Warrant Certificates. The Warrant
Agent shall have no duty or obligation to take any action under any Section of
this Agreement which requires the payment by a holder of a Warrant Certificate
of applicable taxes and charges unless and until the Warrant Agent is satisfied
that all such taxes and/or charges have been paid.
SECTION 5. COMMON STOCK AND WARRANT COMMON STOCK. As hereinafter used in
this Agreement, Common Stock shall mean stock of the Company of any class,
whether now or hereafter authorized, which has the right to participate in the
distribution of either earnings or assets of the Company without limit as to
amount or percentage, and Warrant Common Stock shall mean only Common Stock, and
stock of any other class into which such presently authorized Common Stock may
hereafter be changed, issuable upon exercise of Warrant. In case, by reason of
the operation of Section 7, the Warrants shall entitle the registered holders
thereof to purchase any other shares of stock or other securities or property of
the Company or of any other corporation, any reference in this Agreement to the
exercise of Warrants shall be deemed to
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refer to and include the purchase of such other shares of stock or other
securities or property upon such exercise.
SECTION 6. WARRANT PRICE AND STOCK CONVERSION DATE OF WARRANTS. The
registered holder of any Warrant Certificate may exercise the Warrants evidenced
thereby in whole or in part at any time on or after the date hereof upon
surrender of the Warrant Certificate with the form of election to purchase on
the reverse side thereof duly executed, to the Warrant Agent at the Warrant
Agent's office designated for such purpose, together with payment of the
purchase price for each share of Common Stock as to which the Warrants are
exercised, at or prior to 3:30 p.m. Eastern Time on October 26, 2011 (the
"EXERCISE DATE").
The purchase price for each share of Common Stock pursuant to the exercise
of a Warrant (the "WARRANT PRICE") shall be equal to [$_____] per share, in each
case as adjusted pursuant to Section 7 hereof, and shall be payable in lawful
money of the United States of America.
Anything in this Agreement to the contrary notwithstanding, the Warrant
Agent shall have no duty (i) to determine or calculate the Warrant Price or (ii)
confirm or verify the accuracy or correctness of the Warrant Price; the Warrant
Agent's sole duty under this Section is to accept the Warrant Certificates and
take possession for the benefit of the Company of the payment of the Warrant
Price delivered to it by a holder of the Warrant Certificate.
SECTION 7. WARRANT ADJUSTMENTS.
(a) STOCK DIVIDENDS, SUBDIVISIONS, COMBINATIONS AND RECLASSIFICATIONS.
In case the Company shall at any time after the date of this Agreement (i)
declare a dividend on the Common Stock payable in shares of Common 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 in a reclassification of the Common Stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), the Warrant Price in effect at the time
of the record date for such dividend or of the effective date of such
subdivision, combination or reclassification, and/or the number and kind of
shares of capital stock issuable upon exercise of the Warrants on such date
shall be proportionately adjusted so that the holder of any Warrant exercised
after such time shall be entitled to receive the aggregate number and kind of
shares of capital stock which, if such Warrant had been exercised immediately
prior to such date and at a time when the Common Stock transfer books of the
Company were open, such holder would have owned upon such exercise and been
entitled to receive by virtue of such dividend, subdivision, combination or
reclassification. Such adjustment shall be made successively whenever any event
listed above shall occur.
(b) DISTRIBUTIONS. If at any time after the date hereof the Company
shall fix a record date for the making of a distribution to all holders of its
Common Stock of evidences of its indebtedness or assets (excluding distributions
of shares of Common Stock and cash distributions made as a dividend payable out
of earnings or out of surplus legally available for dividends under the laws of
the jurisdiction of the Company), then in each case provision shall be made so
that the holder of any Warrants will thereafter receive, upon the exercise
thereof in
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accordance with the terms of this Agreement, in addition to the number of shares
of Common Stock issuable thereunder, the kind and amount of indebtedness or
assets which the holder of the Warrant would have been entitled to receive had
the Warrant been exercised on the date of such event and had the holder of the
Warrant thereafter, during the period from the date of such event to and
including the actual date of exercise of the Warrant determined pursuant to
Section 9, retained any such securities receivable during such period, giving
application to all adjustments called for during such period under this Section
7 with respect to the rights of the holder of the Warrant.
(c) CONSOLIDATION, MERGER OR SALE OF ASSETS. If, prior to the exercise
of any Warrants, the Company shall at any time consolidate with or merge into
another corporation in a transaction in which the Common Stock is converted into
or exchanged for other securities or property, the holder of any Warrants will
thereafter receive, upon the exercise thereof in accordance with the terms of
this Agreement, the securities or property to which the holder of the number of
shares of Common Stock then deliverable upon the exercise or conversion of such
Warrants would have been entitled upon such consolidation or merger, and the
Company shall take such steps in connection with such consolidation or merger as
may be necessary to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to any securities or
property thereafter deliverable upon the exercise of the Warrants. The Company
or the successor corporation, as the case may be, shall execute and deliver to
the Warrant Agent a supplemental agreement so providing. A sale of all or
substantially all the assets of the Company for a consideration (apart from the
assumption of obligations) consisting primarily of securities shall be deemed a
consolidation or merger for the foregoing purposes. The provisions of this
subsection (c) shall similarly apply to successive mergers or consolidations or
sales or other transfers.
(d) CALCULATIONS TO THE NEAREST CENT AND ONE-HUNDREDTH OF A SHARE. No
adjustment in the Warrant Price shall be required unless such adjustment would
require an increase or decrease of at least 1% in such price; provided, however,
that any adjustments which by reason of this Section 7(d) are not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 7 shall be made to the nearest
cent and to the nearest one-hundredth of a share as the case may be.
Notwithstanding the first sentence of this subsection (d), any adjustment
required by this Section 7 shall be made no later than the earlier of six months
from the date of the transaction which mandates such adjustment or the
expiration of the right to exercise any Warrant.
(e) NOTICE OF WARRANT ADJUSTMENT. Whenever the Warrant Price or the
number of shares purchasable upon exercise of a Warrant shall be adjusted as
provided in this Section 7, the Company shall forthwith file with the Warrant
Agent a certificate, signed by the Company's Chief Financial Officer, showing in
detail the facts requiring such adjustment and the Warrant Price and number of
shares so purchasable that will be effective after such adjustment. The Company
shall also cause a notice setting forth any adjustments to be sent by mailing
first class, postage prepaid, to each registered holder of a Warrant or Warrants
at its address appearing on the Warrant register and, at its option, may cause a
copy of such notice to be published once in an English language newspaper of
general circulation in the City of New York, New York. The Warrant Agent shall
have no duty with respect to any certificate filed with it except to keep the
same on file and available for inspection by registered holders of Warrants
during reasonable
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business hours. The Warrant Agent shall not at any time be under any duty or
responsibility to any holder of a Warrant to determine whether any facts exist
which may require any adjustment of the Warrant Price, or with respect to the
nature of any adjustment of the Warrant Price when made, or with respect to the
method employed in making such adjustment. The Warrant Agent shall not be deemed
to have knowledge of any adjustment or any such event unless and until it shall
have received such certificate.
(f) OTHER NOTICES. In case the Company after the date hereof shall
propose to take any action of the type described in subsections (b) and (c) of
this Section 7 or fix a record date for the purpose of determining the holders
thereof who are entitled to receive any right to subscribe for, purchase or
otherwise acquire shares of Common Stock (or securities convertible into shares
of Common Stock), the Company shall file with the Warrant Agent a certificate,
signed by the President or any Vice President of the Company and by its
Treasurer or Assistant Treasurer or Secretary or Assistant Secretary specifying,
in the case of any action of the type specified in subsection (c), the date on
which such action shall take place and shall also set forth such facts with
respect thereto as shall be reasonably necessary to indicate the effect of such
action (to the extent such facts may be known on the date of such notice) on the
Warrant Price and the number, or kind, or class of shares or other securities or
property which shall be purchasable upon exercise of Warrants. Such notice shall
be given in the case of any action of the type specified in subsection (b) or
any action to fix a record date for rights to subscribe, at least 12 days prior
to the record date with respect thereto and in the case of any action of the
type specified in subsection (c) at least 12 days prior to the taking of such
proposed action. The Company shall also cause a notice setting forth any
adjustments to be sent by mailing first class, postage prepaid, to each
registered holder of a Warrant Certificate or Warrant Certificates at its
address appearing on the Warrant register and, at its option, may cause a copy
of such notice to be published once in an English language newspaper of general
circulation in the City of New York, New York. Failure to give such notice or
any defect therein shall not affect the legality or validity of such action.
(g) NO CHANGE IN WARRANT TERMS ON ADJUSTMENT. Irrespective of any of
the adjustments in the Warrant Price or the number of shares of Warrant Common
Stock, Warrant Certificates theretofore or thereafter issued may continue to
express the same prices and number of shares as are stated in a similar Warrant
Certificate issuable initially, or at some subsequent time, pursuant to this
Agreement and such number of shares specified therein shall be deemed to have
been so adjusted.
(h) TREASURY SHARES. Shares of Common Stock at any time owned by the
Company shall not be deemed to be outstanding for purposes of any computation
under this Section 7.
(i) OPTIONAL REDUCTION IN WARRANT PRICE. Anything in this Section 7 to
the contrary notwithstanding, the Company shall be entitled to make such
reductions in the Warrant Price, in addition to those adjustments required by
this Section 7, as it in its sole discretion shall determine to be necessary in
order that any consolidation or subdivision of the Common Stock, issuance wholly
for cash of any Common Stock at less than the Current Market Price, issuance
wholly for cash of Common Stock or securities which by their terms are
convertible into or exchangeable for Common Stock, stock dividend, issuance of
rights, options or warrants referred
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to hereinabove in this Section 7, hereinafter made by the Company to its common
stockholders, shall not be taxable to them.
The Company may, at its option, at any time during the term of the
Warrants, reduce the then current Exercise Price to any amount deemed
appropriate by the Board of Directors of the Company, for any length of time.
SECTION 8. CURRENT MARKET PRICE. For all purposes of this Agreement, the
Current Market Price per share of Common Stock on any date shall be deemed to be
the average of the daily closing prices for the five consecutive business days
commencing before such date. The closing price for each day shall be the average
of the closing bid and asked prices, as reported by the Nasdaq Global Market or
a similar source selected from time to time by the Company for the purpose. If
on any such date the shares of Common Stock are not quoted by any such source,
the fair value of such shares on such date, as determined by the Board of
Directors of the Company, shall be used. Anything in this Agreement to the
contrary notwithstanding, the Warrant Agent shall have no duty (i) to determine
or calculate the Current Market Price or (ii) confirm or verify the accuracy or
correctness of the Current Market Price.
SECTION 9. EXERCISE OF WARRANTS. Subject to the provisions of this
Agreement, each registered holder of Warrants shall have the right, which may be
exercised as in such Warrant Certificates expressed, to purchase from the
Company (and the Company shall issue and sell to such registered holders of
Warrants) all or part of the number of fully paid and nonassessable shares of
Warrant Common Stock specified in such Warrant Certificates (subject to the
adjustments as herein provided), upon surrender to the Company at the office of
the Warrant Agent designated for such purpose, of such Warrant Certificates with
the exercise form on the reverse thereof duly filled in and signed, and upon
payment to the Warrant Agent to the account of the Company of the Warrant Price
for the number of shares of Warrant Common Stock in respect of which such
Warrants are then exercised. The date of exercise of any Warrant shall be deemed
to be the date of its receipt by the Warrant Agent duly filled in and signed and
accompanied by proper funds as hereinafter provided. Payment of such Warrant
Price may be made in wire transfer in immediately available funds, cash, or by
certified or official bank check. No adjustment shall be made for any cash
dividends on shares of Warrant Common Stock issuable upon exercise of a Warrant.
Upon such surrender of Warrants, and payment of the Warrant Price as aforesaid,
the Company shall issue and cause to be delivered with all reasonable dispatch
to or upon the written order of the registered holder of such Warrants and in
such name or names as such registered holder may designate, a certificate or
certificates for the number of full shares of Warrant Common Stock so purchased
upon the exercise of such Warrants together with cash as provided in Section 11
of this Agreement, in respect of any fraction of a share of such stock issuable
upon such surrender.
Each person in whose name any certificate for shares of Common Stock is
issued upon the exercise of Warrants shall for all purposes be deemed to have
become the holder of record of the Common Stock represented thereby on, and such
certificate shall be dated, the date upon which the Warrant Certificate
evidencing such Warrants was duly surrendered and payment of the Warrant Price
(and any applicable transfer taxes) was made; provided, however, that if the
date of such surrender and payment is a date upon which the Common Stock
transfer books of the Company are closed, such person shall be deemed to have
become the record holder of such
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shares on, and such certificate shall be dated, the next succeeding business day
on which the Common Stock transfer books of the Company are open.
Anything in this Agreement to the contrary notwithstanding, the Warrant
Agent shall have no duty (i) to determine or calculate the Warrant Price or (ii)
confirm or verify the accuracy or correctness of the Warrant Price; the Warrant
Agent's sole duty under this Section is to accept the Warrant Certificates and
take possession for the benefit of the Company of the payment of the Warrant
Price delivered to it by a holder of the Warrant Certificate.
SECTION 10. UNEXERCISED WARRANTS. To the extent that any Warrant
Certificates remain outstanding at the expiration of the period during which the
Warrants are exercisable, the unexercised Warrants represented thereby shall be
deemed null and void.
SECTION 11. ELIMINATION OF FRACTIONS. The Company shall not be required to
issue fractional shares of stock upon any exercise of Warrants. As to any final
fraction of a share which the same registered holder of one or more Warrants,
the rights under which are exercised in the same transaction or series of
related transactions, 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 the same fraction of the Current Market Price (as
determined in the manner prescribed in Section 8 hereof) on the business day
which next precedes the day of exercise. The Warrant Agent shall be fully
protected in relying upon such a Warrant and shall have no duty with respect to,
and shall not be deemed to have knowledge of, any payment for fractional shares
of stock under any Section of this Agreement relating to the payment of
fractional shares of stock unless and until the Warrant Agent shall have
received appropriate instructions from the Company and sufficient monies.
SECTION 12. ISSUE TAXES. The Company will pay documentary stamp taxes, if
any, attributable to the initial issuance of shares of Warrant Common Stock upon
the exercise of any Warrant; provided, however, that neither the Company nor the
Warrant Agent shall be required to pay any taxes or charges which may be payable
in respect of any transfer involved in the issue or delivery of any certificates
for shares of Warrant Common Stock in a name other than that of the registered
holder of Warrants, in respect of which such shares are initially issued.
SECTION 13. RESERVATION OF SHARES. The Company shall at all times reserve
and keep available out of its authorized but unissued stock, for the purpose of
effecting the issuance of stock upon exercise of Warrants, such number of shares
of its duly authorized Warrant Common Stock as shall from time to time be
sufficient to effect the issuance of shares of Warrant Common Stock upon
exercise of all Warrants at the time outstanding.
SECTION 14. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT. Any
person or entity into which the Warrant Agent may be merged or with which it may
be consolidated, or any person or entity resulting from any merger or
consolidation to which the Warrant Agent shall be a party, or any person or
entity succeeding to the Warrant Agent, shall be the successor to the Warrant
Agent hereunder without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In the case of Warrants which have been countersigned by the
Warrant Agent, but not delivered at the time any such successor to the Warrant
Agent succeeds to the agency
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created by this Agreement, any such successor may adopt the countersignature of
the original Warrant Agent and deliver such Warrants so countersigned; and in
case at that time any of the Warrants shall not have been countersigned, any
successor to the Warrant Agent may countersign such Warrants either in the name
of the predecessor Warrant Agent or in the name of the successor Warrant Agent;
and in all such cases such Warrants shall have the full force and effect
provided in the Warrants and in this Agreement.
In case at any time the name of the Warrant Agent shall be changed and at
such time any of the Warrants shall have been countersigned but not delivered,
the Warrant Agent may adopt the countersignature under its prior name and
deliver Warrant Certificates so countersigned, and in case at that time any of
the Warrant Certificates shall not have been countersigned, the Warrant Agent
may countersign such Warrant Certificates either in its prior name or in its
changed name; and in all such cases such Warrant Certificates shall have the
full force and effect provided in the Warrant Certificates and in this
Agreement.
SECTION 15. DISPOSITION OF PROCEEDS ON EXERCISE OF WARRANTS, ETC. The
Warrant Agent shall account promptly to the Company with respect to Warrants
exercised and concurrently pay to the Company all moneys received by the Warrant
Agent for the purchase of shares of Common Stock through the exercise of such
Warrants.
The Warrant Agent shall keep copies of this Agreement available for
inspection by holders of Warrants during normal business hours at its office
specified in Section 21 hereof.
SECTION 16. SUPPLEMENTS AND AMENDMENTS. The Warrant Agent may (but is not
required if the supplement or amendment changes the rights, immunities, duties
or liabilities of the Warrant Agent) from time to time, join the Company in
making supplements or amendments to this Agreement without the approval of any
holders of Warrants (i) to cure any ambiguity or to correct or supplement any
provision contained in this Agreement that may be defective or inconsistent with
any other provision contained herein and which supplement or amendment shall not
materially adversely affect the interests of the registered holders of the
Warrants, or (ii) to make such other provisions with respect to any change or
any supplemental agreement as the parties may deem necessary or desirable and
which supplement or amendment shall not adversely affect the interests of the
registered holders of the Warrants.
SECTION 17. MUTILATED OR MISSING WARRANT CERTIFICATES. If any Warrant shall
be mutilated, lost, stolen or destroyed the Warrant Agent shall deliver a new
Warrant Certificate of like tenor and denomination in exchange and substitution
therefor upon surrender and cancellation of the mutilated Warrant Certificate
or, in the case of a lost, stolen or destroyed Warrant Certificate, upon receipt
of evidence satisfactory to the Company and the Warrant Agent of the loss, theft
or destruction of such Warrant Certificate and, in either case, upon receipt of
such indemnity as the Company and the Warrant Agent may reasonably require.
Applicants for substitute Warrant Certificates shall also comply with such other
reasonable regulations and pay such other reasonable charges as the Warrant
Agent or the Company may prescribe. Any such new Warrant Certificate shall
constitute an original contractual obligation of the Company, whether or not the
allegedly lost, stolen, mutilated or destroyed Warrant Certificate shall be at
any time enforceable by anyone.
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SECTION 18. DUTIES OF THE WARRANT AGENT. The Warrant Agent undertakes the
duties and obligations imposed by this Warrant Agreement upon the following
terms and conditions, by all of which the Company and the holders of Warrants,
by their acceptance thereof, shall be bound:
The Warrant Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the Warrant
Certificates (except its countersignature thereof and except such as describes
the Warrant Agent or action taken or to be taken by it) or be required to verify
the same, but all such statements and recitals are and shall be deemed to have
been made by the Company only. The Warrant Agent shall not be under any
responsibility in respect of the validity of this Agreement or the execution and
delivery hereof or in respect of the validity or execution of any Warrant
Certificate (except its countersignature thereof); nor shall it be responsible
for any breach by the Company of any covenant or condition contained in this
Agreement or in any Warrant Certificate to be complied with by the Company; nor
shall it be responsible for the making of any adjustment in the Warrant Price or
the number of shares issuable upon the exercise of a Warrant required under the
provisions of Section 7 or responsible for the manner, method or amount of any
such change or the ascertaining of the existence of facts that would require any
such change; nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any shares
to be issued pursuant to this Agreement or any Warrant or as to whether any
shares will, when issued, be validly issued and fully paid and non-assessable.
The Warrant Agent may execute and exercise any of the rights or powers
hereby vested in it or perform any duty hereunder either itself or by or through
its attorneys, agents or employees.
The Warrant Agent may consult at any time with legal counsel satisfactory
to it (who may be legal counsel for the Company) and the advice or opinion of
such counsel shall be full and complete authorization and protection to the
Warrant Agent as to any action taken or omitted by it in good faith and in
accordance with such advice or opinion.
The Warrant Agent shall incur no liability or responsibility to the Company
or to any holder of a Warrant Certificate for any action taken in reliance on
any notice, resolution, waiver, consent, order, certificate, or other paper,
document or instrument believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties.
The Company agrees to pay to the Warrant Agent reasonable compensation for
all services rendered by the Warrant Agent in the execution of this Warrant
Agreement, to reimburse the Warrant Agent for all expenses (including reasonable
counsel fees), taxes and governmental charges and other charges of any kind and
nature incurred by the Warrant Agent in the preparation, administration,
delivery, execution and amendment of this Warrant Agreement. The Company hereby
further agrees to indemnify the Warrant Agent and save it harmless against any
and all losses, liabilities and expenses, including judgments, damages, fines,
penalties, claims, demands, settlements, costs and reasonable counsel fees and
expenses, for anything done, suffered or omitted by the Warrant Agent arising
out of or in connection with this Agreement except as a result of its gross
negligence, willful misconduct or bad faith (each as finally determined by a
court of competent jurisdiction). The costs and expenses incurred by the
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Warrant Agent in enforcing the right to indemnification shall be paid by the
Company unless it is determined by a final order, judgment, decree or ruling of
a court of competent jurisdiction that the Warrant Agent is not entitled to
indemnification due to its own gross negligence, willful misconduct or bad
faith.
The Warrant Agent and any stockholder, director, officer or employee of the
Warrant Agent may buy, sell, or deal in any of the Warrants or other securities
of the Company or become pecuniarily interested in any transaction in which the
Company may be interested, or contract with or lend money to the Company or
otherwise act as fully and freely as though it were not Warrant Agent under this
Warrant Agreement. Nothing herein shall preclude the Warrant Agent from acting
in any other capacity for the Company or for any other legal entity.
The Warrant Agent shall act hereunder solely as agent for the Company and
in a ministerial capacity, and its duties shall be determined solely by the
express provisions hereof (and no duties, unless expressly stated shall be
implied). The Warrant Agent shall not be liable for anything which it may do or
refrain from doing in connection with this Agreement except for its own gross
negligence, willful misconduct or bad faith (each as finally determined by a
court of competent jurisdiction). In no event will the Warrant Agent be liable
for special, indirect, incidental, punitive or consequential loss or damage of
any kind whatsoever, even if the Warrant Agent has been advised of the
possibility of such loss or damage. Any liability of the Warrant Agent under
this Agreement to the Company will be limited to the amount of fees agreed to be
paid by the Company to the Warrant Agent.
In the event that the Warrant Agent shall in any instance, after seeking
the advice of legal counsel pursuant to this Agreement, in good faith be
uncertain as to its duties or rights hereunder, it shall be entitled to refrain
from taking any action in that instance until it shall be directed otherwise in
writing by the Chairman of the Board, the President, a Vice President, the
Secretary or the Treasurer of the Company which eliminates such ambiguity or
uncertainty to the satisfaction of Warrant Agent, or by a final, nonappealable
order of a court of competent jurisdiction; provided, however, in the event that
the Warrant Agent has not received such written direction or court order within
one hundred eighty (180) calendar days after requesting the same, it shall have
the right to interplead the Company in any court of competent jurisdiction and
request that such court determine its rights and duties hereunder.
The Warrant Agent is hereby authorized and directed to accept instructions
with respect to the performance of its duties hereunder from any one of the
Chairman of the Board, the President, a Vice President, the Secretary or the
Treasurer of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and such instructions shall be full
authorization and protection to the Warrant Agent, and the Warrant Agent shall
not be liable for any action taken, suffered or omitted to be taken by it in
accordance with instructions of any such officer.
No provision of this Agreement shall require the Warrant Agent to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder or in the exercise of its rights if it believes
that repayment of such funds or adequate indemnification against such risk or
liability is not reasonably assured to it.
10
The provisions of this Section shall survive the termination of this
Agreement, the exercise or expiration of the Warrants and the resignation or
removal of the Warrant Agent.
SECTION 19. CHANGE OF WARRANT AGENT. The Warrant Agent may resign and be
discharged from its duties under this Agreement, subject to appointment of a
successor Warrant Agent in accordance with the terms of this Section 19, upon 30
days' notice in writing mailed to the Company by registered or certified mail,
and to the holders of the Warrant Certificates by first-class mail. The Company
may remove the Warrant Agent or any successor Warrant Agent upon 30 days' notice
in writing, mailed to the Warrant Agent or successor Warrant Agent, as the case
may be, and to each transfer agent of the Common Stock by registered or
certified mail, and to the holders of the Warrant Certificates by first-class
mail. If the Warrant Agent shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a successor to the Warrant Agent.
If the Company shall fail to make such appointment within a period of 30 days
after such removal or after it has been notified in writing of such resignation
or incapacity by the resigning or incapacitated Warrant Agent or by the holder
of a Warrant Certificate (who shall, with such notice, submit such holder's
Warrant Certificate for inspection by the Company), then the registered holder
of any Warrant Certificate may apply to any court of competent jurisdiction for
the appointment of a new Warrant Agent. Any successor Warrant Agent, whether
appointed by the Company or by such a court, shall be an entity organized and
doing business under the laws of the United States or any state of the United
States, in good standing, which is subject to supervision or examination by
federal or state authority. After appointment, the successor Warrant Agent shall
be vested with the same powers, rights, duties and responsibilities as if it had
been originally named as Warrant Agent without further act or deed; but the
predecessor Warrant Agent shall deliver and transfer to the successor Warrant
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of such appointment the Company shall file notice
thereof in writing with the predecessor Warrant Agent and each transfer agent of
the Common Stock, and mail a notice thereof in writing to the registered holders
of the Warrant Certificates. Failure to give any notice provided for in this
Section 19, however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Warrant Agent or the appointment
of the successor Warrant Agent, as the case may be.
SECTION 20. IDENTITY OF TRANSFER AGENT. Forthwith upon the appointment of
any subsequent Transfer Agent for shares of the Common Stock, the Company will
file with the Warrant Agent a statement setting forth the name and address of
such Transfer Agent.
SECTION 21. NOTICES. Any notice pursuant to this Agreement to be given by
the Warrant Agent or by the registered holder of any Warrant to the Company
shall be sufficiently given if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing by the Company with the
Warrant Agent) as follows:
Critical Therapeutics, Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Chief Financial Officer
11
with copies to:
Critical Therapeutics, Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Vice President of Legal Affairs
and
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: 617-526-5000
Attention: Xxxxxx X. Xxxxxx, Esq.
Any notice pursuant to this Agreement to be given by the Company or by the
registered holder of any Warrant to the Warrant Agent shall be sufficiently
given if sent by first-class mail, postage prepaid, addressed (until another
address is filed in writing by the Warrant Agent with the Company) as follows:
Mellon Investor Services LLC
00 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxx, Xxx Xxxxxx 00000
Facsimile: 000-000-0000
Attention: Company Items Department
With a copy to:
Mellon Investor Services LLC
00 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxx, Xxx Xxxxxx 00000
Facsimile: 000-000-0000
Attention: General Counsel
SECTION 22. SUCCESSORS. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Warrant Agent shall bind and inure
to the benefit of their respective successors and assigns hereunder.
SECTION 23. GOVERNING LAW. This Agreement and each Warrant issued hereunder
shall be deemed to be a contract made under the laws of the state of New York,
and for all purposes shall be construed in accordance with the laws of the state
of New York, without regard to principles of conflict of laws.
SECTION 24. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any person or entity other than the Company, the Warrant
Agent and the registered holders of the Warrant Certificates any legal or
equitable right, remedy or claim under this
12
Agreement; but this Agreement shall be for the sole and exclusive benefit of the
Company, the Warrant Agent and the registered holders of the Warrant
Certificates.
SECTION 25. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
SECTION 26. REGISTRATION OF SHARES OF COMMON STOCK. The Company will
furnish to the Warrant Agent, upon request, an opinion of counsel to the effect
that (i) a Registration Statement under the Securities Act of 1933, as amended
(the "ACT") is then in effect with respect to the Warrants and/or the shares of
Warrant Common Stock issuable upon exercise of the Warrants; or (ii) a
Registration Statement under the Act with respect to said warrants and/or shares
is not required (such opinion to also contain appropriate advice regarding the
legending of such shares). In the event that said opinion states that such a
Registration Statement is in effect the Company will, from time to time, furnish
the Warrant Agent with current Prospectuses meeting the requirements of the Act
and all rules and regulations thereunder in sufficient quantity to permit the
Warrant Agent to deliver a Prospectus to each holder of a Warrant Certificate
upon exercise or conversion thereof. The Company further agrees to pay all fees,
costs and expenses in connection with the preparation and delivery to the
Warrant Agent of the foregoing opinions and Prospectuses.
If any shares of Warrant Common Stock issuable upon the exercise of the
Warrants or the issuance thereof requires registration or approval of any
governmental authority, including, without limitation, the filing of necessary
amendments, supplements or post-effective amendments to a Registration
Statement, or the taking of any other action under the laws of the United States
of America or any political subdivision hereof or under the laws of any state of
the United States of America before such shares may be validly and legally
issued, then the Company covenants that it will in good faith and as
expeditiously as possible endeavor to secure and keep effective such
registration or approval or to take such other action, as the case may be.
IN WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement
to be executed and delivered as of the day and year first above written.
13
CRITICAL THERAPEUTICS, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
MELLON INVESTOR SERVICES LLC
as Warrant Agent
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Client Relationship Executive
14
EXHIBIT A
FORM OF WARRANT
EXERCISABLE AT ANY TIME AT OR PRIOR TO
3:30 P.M. NEW YORK, EASTERN TIME
ON OCTOBER 26, 2011
WARRANT CERTIFICATE
CRITICAL THERAPEUTICS, INC.
NO. 2006-W-
*** **** SHARES
This certifies that [_____________________________] or registered assigns
is the registered holder of the number of Warrants set forth above, and is
entitled, upon surrender of this Warrant Certificate at the office of Mellon
Investor Services LLC, Warrant Agent (or any successor as such Warrant Agent),
designated by the Warrant Agent for such purpose, at any time on or after the
offering date and at or prior to 3:30 p.m. Eastern Time on October 26, 2011, to
purchase [_______] shares of Common Stock, par value $0.001, of Critical
Therapeutics, Inc., a Delaware corporation (the "Company"), at the price equal
to $2.62 per share.
The applicable per share purchase price shown above and the number of
shares issuable upon exercise of the Warrants represented by this Warrant
Certificate are subject to adjustment for the occurrence of certain events,
including stock dividends and split-ups, combinations, reorganizations and
reclassifications, as set forth in the Warrant Agreement hereinafter referred
to. A complete statement with respect to such adjustments and to other terms and
conditions pertaining to the Warrants is contained in the Warrant Agreement,
dated as of October 31, 2006, between the Company and Mellon Investor Services
LLC, Warrant Agent, a copy of which may be examined by the registered holder
hereof at the office of the Warrant Agent.
To exercise the Warrants represented by this Warrant Certificate the form
of election to purchase on the reverse hereof must be duly executed and the
accompanying instructions for the registration and delivery of the stock must be
filled in.
The Warrants represented by this Warrant Certificate are transferable
(subject to the conditions set forth in the preceding paragraphs and in the
Warrant Agreement) at the office of the Warrant Agent (or of its successor as
Warrant Agent) designated for such purpose by the registered holder thereof in
person or by attorney duly authorized in writing, upon surrender of this Warrant
Certificate. Upon any such transfer, a new Warrant Certificate, representing the
right to purchase a like number of shares of the Company's Common Stock, will be
issued to the transferee in exchange for this Warrant Certificate.
This Warrant Certificate and similar Warrant Certificates when surrendered
at the office of the Warrant Agent (or of its successor as Warrant Agent)
designated for such purpose by the registered holder hereof in person or by
attorney duly authorized in writing may be exchanged
15
for another Warrant Certificate or Warrant Certificates, representing in the
aggregate the right to purchase a like number of shares of the Company's Common
Stock.
If the Warrants evidenced by this Warrant Certificate remain outstanding at
the expiration of the period during which Warrants are exercisable, as set forth
in the first paragraph of this Warrant Certificate, such Warrants shall
thereupon be deemed null and void.
No fractional shares of Common Stock will be issued upon the exercise of
any Warrant or Warrants evidenced hereby, but in lieu thereof, a cash payment
will be made, as provided in the Warrant Agreement.
No holder of this Warrant Certificate shall be entitled to vote or receive
cash dividends or be deemed for any purpose the holder of Common Stock 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 Warrant 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 upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action (whether upon any recapitalization, issue of stock,
reclassification of stock, change of par value, consolidation, merger,
conveyance, or otherwise) or, except as provided in the Warrant Agreement, to
receive notice of meetings, or to receive dividends or subscription rights or
otherwise, until the Warrant or Warrants evidenced by this Warrant Certificate
shall have been exercised as provided in the Warrant Agreement.
CRITICAL THERAPEUTICS, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
This Warrant Certificate is not valid until countersigned by the Warrant
Agent.
Dated: 10/31/2006 Countersigned:
MELLON INVESTOR SERVICES LLC
as Warrant Agent
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Client Relationship Executive
16
FORM OF EXERCISE
(FORM OF EXERCISE TO BE EXECUTED BY THE WARRANT
HOLDER AT THE TIME OF EXERCISE)
To MELLON INVESTOR SERVICES LLC or its successor as Warrant Agent:
The undersigned, holder of the within Warrant Certificate, hereby (1)
irrevocably exercises the undersigned's right to purchase [_________] shares of
Common Stock, par value $0.001 per share, of Critical Therapeutics, Inc. (the
"Company") which the undersigned is entitled to purchase under the terms of the
within Warrant Certificate, or such other securities as the undersigned shall be
entitled to purchase under the terms of the Warrant Agreement referred to in
such Warrant Certificate by reason of the occurrence of certain events specified
therein, and (2) elects to make payment in full for the number of shares of
Common Stock so purchased by payment of $[______] in wire transfer in
immediately available funds, cash or by certified or official bank check.
Please issue the certificate for shares of Common Stock in the name of, and
pay any cash for any fractional share to:
________________________________________________________________________________
Print or type name
________________________________________________________________________________
Social Security or other Identifying Number
________________________________________________________________________________
Street Address
________________________________________________________________________________
City State Zip Code
If such number of shares shall not be all the shares purchasable upon the
exercise of the Warrants evidenced by this Warrant Certificate, a new Warrant
Certificate for the balance of such Warrants remaining unexercised shall be
registered in the name of and delivered to:
Please insert social security or other identifying number: ________________
________________________________________________________________________________
(Please print name and address)
________________________________________________________________________________
Dated: ___________________
17
Signature:
-----------------------------
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate)
(Signature Medallion Guaranteed):
-----------------------
Date:
----------------------
(If the Common Stock, cash in lieu of fractional shares, or Warrants for
any unexercised balance are to be issued or paid to a person other than the
person in whose name the within Warrant is registered, or if otherwise requested
by the Company or the Warrant Agent, a signature Medallion guarantee is
required.)
ASSIGNMENT
(FORM OF ASSIGNMENT TO BE EXECUTED IF WARRANT
HOLDER DESIRES TO TRANSFER WARRANT)
FOR VALUE RECEIVED, __________________________________ hereby sells,
assigns, and transfer unto ____________________ this Warrant Certificate
together with all right, title or interest therein and does hereby irrevocably
appoint ___________________ attorney to transfer the within Warrant Certificate
on the books of the Warrant Agent with full power of substitution in the
premises.
Dated:
----------------------
Signature:
-----------------------------
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate)
(Signature Medallion Guaranteed):
-----------------------
Date:
----------------------
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