Exhibit 10.35
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.
FORM OF COMMON STOCK PURCHASE
WARRANT
To Purchase [_____] Shares of Common Stock
of
Fortress Biotech, Inc.
THIS COMMON STOCK PURCHASE WARRANT (THIS
“WARRANT”) CERTIFIES that, for value received, National Securities Corporation, or assigns (the “Holder”),
is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on
or after the date hereof (the “Initial Exercise Date”) and on or prior to the close of business on the fifth
anniversary of the date hereof (the “Termination Date”) but not thereafter, to subscribe for and purchase from
Fortress Biotech, Inc., a corporation incorporated in the State of Delaware (the “Company”), up to [_____] shares
(the “Warrant Shares”) of Common Stock, par value $0.001 per share, of the Company (the “Common Stock”).
The purchase price of one share of Common Stock (the “Exercise Price”) under this Warrant shall be $[_____],
subject to adjustment hereunder. The Exercise Price and the number of Warrant Shares for which the Warrant is exercisable shall
be subject to adjustment as provided herein. This Warrant is being issued to the Holder for acting as the placement agent in connection
with the sale of the Notes, pursuant to the Confidential Private Placement Memorandum.
1. Title
to Warrant. Prior to the Termination Date and subject to compliance with applicable laws and Section 7 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.
2. Authorization
of 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 in respect of the issue thereof (other than taxes in respect
of any transfer occurring contemporaneously with such issue).
3. Exercise
of Warrant. Exercise of the purchase rights represented by this Warrant may be made at any time or times, in whole or in part,
on or after the Initial Exercise Date and on or before the Termination Date by the surrender of this Warrant and the “Notice
of Exercise Form” annexed hereto duly executed, at the office of the Company (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)
and, upon payment of the Exercise Price of the shares thereby purchased by wire transfer or cashier's check drawn on a United States
bank, if applicable, the Holder shall be entitled to receive a certificate for the number of Warrant Shares so purchased. Certificates
for shares purchased hereunder shall be delivered to the Holder within ten (10) business days after the date on which this Warrant
shall have been exercised as aforesaid. This Warrant shall be deemed to have been exercised, such certificate or certificates shall
be deemed to have been issued, and the 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 5 prior to the issuance
of such shares have been paid. 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 the Holder a new Warrant evidencing the rights of the 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.
4. 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.
5. 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.
6. Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this
Warrant, pursuant to the terms hereof.
7. Transfer,
Division and Combination.
a) Subject to compliance with any applicable
securities laws and the conditions set forth in Sections 1 and 7(e) hereof, this Warrant and all rights hereunder
are transferable, in whole or in part, upon surrender of this Warrant at the office of the Company, together with a written assignment
of this Warrant substantially in the “Assignment 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: (i) 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 (ii) the Company shall issue to the assignor a
new Warrant evidencing the portion of this Warrant not so assigned, and (iii) 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) 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 and (ii) that the Holder or transferee execute and deliver to the Company an investment letter
in form and substance acceptable to the Company.
8. 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.
9. 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.
10. 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.
11. Adjustments
of Exercise Price and Number of Warrant Shares. The number and kind of securities purchasable upon the exercise of this Warrant
at the Exercise Price shall be subject to adjustment from time to time in accordance with the following: In case the Company shall
(i) pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock to all holders of its outstanding
Common Stock, (ii) subdivide its outstanding shares of Common Stock into a greater number of shares, (iii) combine its
outstanding shares of Common Stock into a smaller number of shares of Common Stock, or (iv) issue any shares of its capital
stock in a reclassification of the Common Stock, then the number of Warrant Shares purchasable upon exercise of this Warrant immediately
prior thereto shall be adjusted so that the Holder shall be entitled to receive the kind and number of Warrant Shares or other
securities of the Company which it would have owned or have been entitled to receive had such Warrant been exercised in advance
thereof. Upon each such adjustment of the kind and number of Warrant Shares or other securities of the Company which are purchasable
hereunder, the Holder shall thereafter be entitled to purchase the number of Warrant Shares or other securities resulting from
such adjustment at an Exercise Price per Warrant Share or other security obtained by multiplying the Exercise Price in effect immediately
prior to such adjustment by the number of Warrant Shares purchasable pursuant hereto immediately prior to such adjustment and dividing
by the number of Warrant Shares or other securities of the Company resulting from such adjustment. An adjustment made pursuant
to this paragraph shall become effective immediately after the effective date of such event retroactive to the record date, if
any, for such event. The Company will provide fifteen (15) days’ advance notice of any such adjustment to the Holder.
12. Reclassification,
Merger, Consolidation or Disposition of Assets. In case the Company shall reclassify its Common Stock, consolidate or merge
with or into another corporation (where the Company is not the surviving corporation), or sell, transfer or otherwise dispose of
all or substantially all its property, assets or business to another corporation and, pursuant to the terms of such reclassification,
merger, consolidation or disposition of assets, shares of common stock of the successor or acquiring corporation, or any cash,
shares of stock or other securities or property of any nature whatsoever (including warrants or other subscription or purchase
rights) in addition to or in lieu of common stock of the successor or acquiring corporation ("Other Property"),
are to be received by or distributed to the holders of Common Stock of the Company, then the Holder shall have the right thereafter
to receive, upon exercise of this Warrant, the number of shares of common stock of the successor or acquiring corporation and Other
Property receivable upon or as a result of such reclassification, merger, consolidation or disposition of assets by a holder of
the total number of shares of Common Stock for which this Warrant is exercisable immediately prior to such event. Prior to any
such reclassification, merger, consolidation or disposition of assets, the Company will provide fifteen (15) days’ advance
notice to the Holder. In case of any such reclassification, merger, consolidation or disposition of assets, the successor or acquiring
corporation (if other than the Company) shall expressly assume the due and punctual observance and performance of each and every
covenant and condition of this Warrant to be performed and observed by the Company and all the obligations and liabilities hereunder,
subject to such modifications as may be deemed appropriate (as determined in good faith by resolution of the Board of Directors
of the Company) in order to provide for adjustments of Warrant Shares for which this Warrant is exercisable which shall be as nearly
equivalent as practicable to the adjustments provided for in this Section 12. For purposes of this Section 12,
“common stock of the successor or acquiring corporation” shall include stock of such corporation of any class which
is not preferred as to dividends or assets over any other class of stock of such corporation and which is not subject to redemption
and shall also include any evidences of indebtedness, shares of stock or other securities which are convertible into or exchangeable
for any such stock, either immediately or upon the arrival of a specified date or the happening of a specified event and any warrants
or other rights to subscribe for or purchase any such stock. The foregoing provisions of this Section 12 shall similarly
apply to successive reorganizations, reclassifications, mergers, consolidations or disposition of assets.
13. Notice
of Adjustment. Whenever the number of Warrant Shares or number or kind of securities or other property purchasable upon the
exercise of this Warrant or the Exercise Price is adjusted, as herein provided, the Company shall give notice thereof to the Holder,
which notice shall state the number of Warrant Shares (and other securities or property) purchasable upon the exercise of this
Warrant and the Exercise Price of such Warrant Shares (and other securities or property) after such adjustment, setting forth a
brief statement of the facts requiring such adjustment and setting forth the computation by which such adjustment was made.
14. 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 NASDAQ or any other exchange on which the Common Stock may be listed.
15. Miscellaneous.
a) Jurisdiction. This Warrant shall
constitute a contract made under the laws of New York, without regard to its conflict of law, principles or rules.
b) Restrictions. The Holder acknowledges
that the Warrant Shares acquired upon the exercise of this Warrant will have restrictions upon resale imposed by state and federal
securities laws and will have an appropriate legend imprinted thereon.
c) Nonwaiver. No course of dealing
or any delay or failure to exercise any right hereunder on the part of the Holder shall operate as a waiver of such right or otherwise
prejudice the Holder's rights, powers or remedies; provided, however, that all rights hereunder terminate on the Termination Date.
d) 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 Agreement; provided that upon any permitted assignment of this Warrant, the assignee shall promptly
provide the Company with its contact information.
e) Limitation of Liability. No provision
hereof, in the absence of any affirmative action by the 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.
f) 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 the 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.
g) Amendment. This Warrant may be
modified or amended (or the provisions hereof waived) with the written consent of the Company and the Holder.
h) 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.
i) 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.
IN WITNESS WHEREOF, the Company has caused
this Warrant to be executed by its officer thereunto duly authorized.
NOTICE OF EXERCISE FORM
(1) The undersigned hereby elects to purchase __________ Warrant
Shares of Fortress Biotech, Inc. pursuant to the terms of the attached Warrant, and tenders herewith payment of the exercise price
in full, together with all applicable transfer taxes, if any.
(2) 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:
_________________________
_________________________
_________________________
(3) Accredited Investor. The undersigned is an "accredited
investor" as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
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[PURCHASER] |
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Name: |
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Dated: |
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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: _______________________________
Holder's Address: ________________________________
________________________________
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.
