Contract
EXHIBIT 10.2
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL (WHICH MAY
BE COMPANY COUNSEL) REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS.
To Purchase Shares of the Common Stock of
ANTHERA PHARMACEUTICALS, INC.
Dated as of March 25, 2011 (the “Effective Date”)
WHEREAS, Anthera Pharmaceuticals, Inc., a Delaware corporation (the “Company”), has
entered into a Loan and Security Agreement of even date herewith (the “Loan Agreement”)
with [______________________] (the “Warrantholder”);
WHEREAS, the Company desires to grant to Warrantholder, in consideration for, among other
things, the financial accommodations provided for in the Loan Agreement, the right to purchase
shares of its Common Stock (as defined below) pursuant to this Warrant Agreement (the
“Warrant”);
NOW, THEREFORE, in consideration of the Warrantholder executing and delivering the Loan
Agreement and providing the financial accommodations contemplated therein, and in consideration of
the mutual covenants and agreements contained herein, the Company and Warrantholder agree as
follows:
SECTION 1. GRANT OF THE RIGHT TO PURCHASE COMMON STOCK.
For value received, the Company hereby grants to the Warrantholder, and the Warrantholder is
entitled, upon the terms and subject to the conditions hereinafter set forth, to subscribe for and
purchase, from the Company, up to [_________________________] ([___________]) fully paid and
non-assessable shares of the Common Stock at the Exercise Price (as defined below). The number and
Exercise Price of such shares are subject to adjustment as provided in Section 8. As used
herein, the following terms shall have the following meanings:
“1934 Act” means the Securities Exchange Act of 1934, as amended.
“Acknowledgment of Exercise” has the meaning given to it in Section 3(a).
“Act” means the Securities Act of 1933, as amended, and as the same may be in
effect from time to time.
“Charter” means the Company’s Certificate of Incorporation or other constitutional
document, as the same may be amended from time to time.
“Claims” has the meaning given to it in Section 12(p).
“Common Stock” means the Company’s common stock, $0.001 par value per share.
“Company” has the meaning given to it in the preamble to this Warrant.
“Effective Date” has the meaning given to it in the preamble to this Warrant.
“Exercise Price” means $6.00.
“Lender” has the meaning given to it in the Loan Agreement.
“Loan Agreement” has the meaning given to it in the preamble to this Warrant.
“Merger Event” means (a) a merger or consolidation involving the Company in which
(i) the Company is not the surviving entity, or (ii) the outstanding shares of the
Company’s capital stock are otherwise converted into or exchanged for shares of capital of
another entity; or (b) the sale of all or substantially all of the assets of the Company.
“Net Issuance” has the meaning given to it in Section 3(a).
“Notice of Exercise” has the meaning given to it in Section 3(a).
“Purchase Price” means, with respect to any exercise of this Warrant, an amount
equal to the Exercise Price as of the relevant time multiplied by the number of shares of
Common Stock requested to be exercised under this Warrant pursuant to such exercise.
“Rules” has the meaning given to it in Section 12(q).
“Transfer Notice” has the meaning given to it in Section 11.
“Warrant” the meaning given to it in the preamble to this Warrant.
“Warrant Term” has the meaning given to it in Section 2.
“Warrantholder” has the meaning given to it in the preamble to this Warrant.
SECTION 2. TERM OF THE AGREEMENT.
Except as otherwise provided for herein, the term of this Warrant (the “Warrant Term”)
and the right to purchase Common Stock as granted herein shall commence on the Effective Date and
shall be exercisable for a period ending seven (7) years from the Effective Date.
SECTION 3. EXERCISE OF THE PURCHASE RIGHTS.
(a) Exercise. The purchase rights set forth in this Warrant are exercisable by the
Warrantholder, in whole or in part, at any time, or from time to time, during the Warrant Term, by
tendering to the Company at its principal office a notice of exercise in the form attached hereto
as Exhibit A (the “Notice of Exercise”), duly completed and executed. Promptly
upon receipt of the Notice of Exercise and the payment of the Purchase Price in accordance with the
terms set forth below, and in no event later than three (3) days thereafter, the Company shall
issue to the Warrantholder a certificate for the number of shares of Common Stock purchased and
shall execute the acknowledgment of exercise in the form attached hereto as Exhibit B (the
“Acknowledgment of Exercise”) indicating the number of shares which remain subject to
future purchases, if any.
The Purchase Price may be paid at the Warrantholder’s election either (i) by cash or check, or
(ii) by surrender of all or a portion of the Warrant for shares of Common Stock to be exercised
under this Warrant and, if applicable, an amended Warrant representing the remaining number of
shares purchasable hereunder, as determined below (“Net Issuance”). If the
Warrantholder elects the Net Issuance method, the Company will issue Common Stock in
accordance with the following formula:
X
|
= | Y(A-B)
|
| Where: | X = | the number of shares of Common Stock to be issued to the Warrantholder. | |
| Y = the number of shares of Common Stock requested to be exercised under this Warrant. | |||
| A = the fair market value of one (1) share of Common Stock at the time of issuance of such shares of Common Stock. | |||
| B = | the Exercise Price. |
For purposes of the above calculation, current fair market value of Common Stock shall mean:
(i) if the Common Stock is traded on the New York Stock Exchange, the American
Stock Exchange, any exchange operated by the NASDAQ Stock Market, Inc. or any other
securities exchange, the fair market value shall be deemed to be the product of (x)
the average of the closing prices over a five (5) day period ending three (3) days
before the day the current fair market value of the securities is being determined and
(y) the number of shares of Common Stock subject to such exercise; or
(ii) if at any time the Common Stock is not listed on any securities exchange,
the current fair market value of such Common Stock shall be the product of (x) the
highest price per share which the Company could obtain from a willing buyer (not a
current employee or director) for shares of Common Stock sold by the Company, from
authorized but unissued shares, as determined in good faith by its Board of Directors
and (y) the number of shares of Common Stock subject to such exercise, unless the
Company shall become subject to a Merger Event, in which case the fair market value of
Common Stock shall be deemed to be the per share value received by the holders of the
Company’s Common Stock on a common equivalent basis pursuant to such Merger Event.
Upon partial exercise by either cash or Net Issuance, the Company shall promptly issue an
agreement substantially in the form of the Warrant representing the remaining number of shares
purchasable hereunder. All other terms and conditions of such agreement shall be identical to
those contained herein, including, but not limited to the Effective Date hereof.
(a) Exercise Prior to Expiration. To the extent that the Warrantholder has not
exercised its purchase rights under this Warrant to all Common Stock subject hereto, and if the
fair market value of one share of the Common Stock is greater than the Exercise Price then in
effect, this Warrant shall be deemed automatically exercised pursuant to Section 3(a) (even
if not surrendered) immediately before the expiration of the Warrant Term. For purposes of such
automatic exercise, the fair market value of one share of the Common Stock upon such expiration
shall be determined pursuant to Section 3(a). To the extent this Warrant or any portion
thereof is deemed automatically exercised pursuant to this Section 3(b), the Company agrees
to promptly notify the Warrantholder of the number of shares of Common Stock, if any, the
Warrantholder is to receive by reason of such automatic exercise.
SECTION 4. RESERVATION OF SHARES.
During the Warrant Term, the Company will at all times have authorized, reserved and
registered, as applicable, a sufficient number of shares of its Common Stock to provide for the
exercise of the rights to purchase Common Stock as provided for herein.
SECTION 5. NO FRACTIONAL SHARES OR SCRIP.
No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant, but in lieu of such fractional shares the Company shall make a cash payment
therefor upon the basis of the Exercise Price then in effect.
SECTION 6. NO RIGHTS AS SHAREHOLDER/STOCKHOLDER.
This Warrant does not entitle the Warrantholder to any voting rights or other rights as a
shareholder/stockholder of the Company prior to the exercise of this Warrant.
SECTION 7. WARRANTHOLDER REGISTRY.
The Company shall maintain a registry showing the name and address of the registered holder of
this Warrant. Warrantholder’s initial address, for purposes of such registry, is set forth in
Section 12(g). Warrantholder may change such address by giving written notice of such
changed address to the Company.
SECTION 8. ADJUSTMENT RIGHTS.
The Exercise Price and the number of shares of Common Stock purchasable hereunder are subject
to adjustment, as follows:
(a) Merger Event. In connection with a Merger Event, to the extent that the
Warrantholder has not exercised its purchase rights under this Warrant to all Common Stock subject
hereto immediately prior to completion of the Merger Event, and if the fair market value of the
consideration to be received by one share of the Common Stock in the Merger Event is greater than
the Exercise Price then in effect, then the Company shall cause this Warrant to be exchanged for
the consideration that Warrantholder would have received if Warrantholder chose to exercise its
right to have shares issued pursuant to the Net Issuance provisions of this Warrant without
actually exercising such right, acquiring such shares and exchanging such shares for such
consideration.
(b) Reclassification of Shares. Except as set forth in Section 8(a), if the
Company at any time shall, by combination, reclassification, exchange or subdivision of securities
or otherwise, change any of the securities as to which purchase rights under this Warrant exist
into the same or a different number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as would have been
issuable as the result of such change with respect to the securities which were subject to the
purchase rights under this Warrant immediately prior to such combination, reclassification,
exchange, subdivision or other change.
(c) Subdivision or Combination of Shares. If the Company at any time shall combine or
subdivide its Common Stock, (i) in the case of a subdivision, the Exercise Price shall be
proportionately decreased, and the number of shares of Common Stock issuable upon exercise of this
Warrant shall be proportionately increased, or (ii) in the case of a combination, the Exercise
Price shall be proportionately increased, and the number of shares of Common Stock issuable upon
the exercise of this Warrant shall be proportionately decreased.
(d) Stock Dividends. If the Company at any time while this Warrant is outstanding and
unexpired shall:
(i) pay a dividend with respect to the Common Stock payable in Common Stock, then the
Exercise Price shall be adjusted, from and after the date of determination of stockholders
entitled to receive such dividend or distribution, to that price determined by multiplying
the Exercise Price in effect immediately prior to such date of determination by a fraction
(A) the numerator of which shall be the total number of shares of Common Stock outstanding
immediately prior to such dividend or distribution, and (B) the denominator of which shall
be the total number of shares of Common Stock outstanding immediately after such dividend
or distribution; or
(ii) make any other distribution with respect to Common Stock, except any distribution
specifically provided for in any other clause of this Section 8, then, in each such
case, provision shall be made by the Company such that the Warrantholder shall receive upon
exercise or conversion of this Warrant a proportionate share of any such distribution as
though it were the holder of the Common Stock as of the record date fixed for the
determination of the stockholders of the Company entitled to receive such distribution.
(e) [Intentionally omitted].
(f) Notice of Adjustments. If: (i) the Company shall declare any dividend or
distribution upon its stock, whether in stock, cash, property or other securities (assuming
Warrantholder consents to a dividend involving cash, property or other securities); (ii) the
Company shall offer for subscription prorata to the holders of any class of its stock any
additional shares of stock of any class or other rights; (iii) there shall be any Merger Event;
(iv) the Company shall sell, lease, license or otherwise transfer all or substantially all of its
assets; or (v) there shall be any voluntary dissolution, liquidation or winding up of the Company;
then, in connection with each such event, the Company shall send to the Warrantholder: (A) at least
ten (10) days’ prior written notice of the date on which the books of the Company shall close or a
record shall be taken for such dividend, distribution, subscription rights (specifying the date on
which the holders of Common Stock shall be entitled thereto) or for determining rights to vote in
respect of such Merger Event, dissolution, liquidation or winding up; and (B) in the case of any
such Merger Event, sale, lease, license or other transfer of all or substantially all assets,
dissolution, liquidation or winding up, at least ten (10) days’ prior written notice of the date
when the same shall take place (and specifying the date on which the holders of Common Stock shall
be entitled to exchange their Common Stock for securities or other property deliverable upon such
Merger Event, dissolution, liquidation or winding up).
Each such written notice shall set forth, in reasonable detail, (i) the event requiring the
notice, and (ii) if any adjustment is required to be made, (A) the amount of such adjustment, (B)
the method by which such adjustment was calculated, (C) the adjusted Exercise Price (if the
Exercise Price has been adjusted), and (D) the number of shares subject to purchase hereunder after
giving effect to such adjustment, and shall be given by first class mail, postage prepaid, or by
reputable overnight courier with all charges prepaid, addressed to the Warrantholder at the address
for Warrantholder set forth in the registry referred to in Section 7.
(g) Timely Notice. Failure to timely provide such notice required by subsection (f)
above shall entitle Warrantholder to retain the benefit of the applicable notice period
notwithstanding anything to the contrary contained in any insufficient notice received by
Warrantholder. For purposes of this subsection (g), and notwithstanding anything to the contrary
in Section 12(g), the notice period shall begin on the date Warrantholder actually receives
a written notice containing all the information required to be provided in such subsection (f).
SECTION 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
(a) Reservation of Common Stock. The Common Stock issuable upon exercise of the
Warrantholder’s rights has been duly and validly reserved and, when issued in accordance with the
provisions of this Warrant, will be validly issued, fully paid and non-assessable, and will be free
of any taxes, liens, charges or encumbrances of any nature whatsoever; provided, that the
Common Stock issuable pursuant to this Warrant may be subject to restrictions on transfer under
state and/or federal securities laws. The Company has made available to the Warrantholder true,
correct and complete copies of its Charter and current bylaws. The issuance of certificates for
shares of Common Stock upon exercise of this Warrant shall be made without charge to the
Warrantholder for any issuance tax in respect thereof, or other cost incurred by the Company in
connection with such exercise and the related issuance of shares of Common Stock; provided,
that the Company shall not be required to pay any tax which may be payable in respect of any
transfer and the issuance and delivery of any certificate in a name other than that of the
Warrantholder.
(b) Due Authority. The execution and delivery by the Company of this Warrant and the
performance of all obligations of the Company hereunder, including the issuance to Warrantholder of
the right to acquire the shares of Common Stock, have been duly authorized by all necessary
corporate action on the part of the Company. This Warrant: (1) does not violate the Company’s
Charter or current bylaws; (2) does not contravene any law or governmental rule, regulation or
order applicable to it; and (3) does not and will not contravene any provision of, or constitute a
default under, any indenture, mortgage, contract or other instrument to which it is a party or by
which it is bound. This Warrant constitutes a legal, valid and binding agreement of the Company,
enforceable in accordance with its terms.
(c) Consents and Approvals. No consent or approval of, giving of notice to,
registration with, or taking of any other action in respect of any state, federal or other
governmental authority or agency is required with respect to the execution, delivery and
performance by the Company of its obligations under this Warrant, except for the filing of notices
pursuant to Regulation D under the Act and any filing required by applicable state securities law,
which filings will be effective by the time required thereby.
(d) Issued Securities. All issued and outstanding shares of Common Stock, Preferred
Stock or any other securities of the Company have been duly authorized and validly issued and are
fully paid and nonassessable. All outstanding shares of Common Stock, Preferred Stock and any
other securities were issued in full compliance with all federal and state securities laws. In
addition, as of the date immediately preceding the Effective Date:
(i) The authorized capital of the Company consists of (A) 95,000,000 shares of Common
Stock, of which 32,926,100 shares are issued and outstanding, and (B) 5,000,000 shares of
Preferred Stock, of which no shares are issued and outstanding.
(ii) The Company has reserved 2,175,817 shares of Common Stock for issuance under its
2005 Equity Incentive Plan (which it no longer issues awards under) and 1,778,261 shares of
Common Stock for issuance under its 2010 Stock Option and Incentive Plan (which includes an
automatic “evergreen” provision), plus any shares reserved and unissued under our 2005
Equity Incentive Plan, under which an aggregate of 2,432,931 options or other equity awards
are outstanding. In addition, there are warrants for the purchase of 4,557,136 shares of
Common Stock outstanding. There are no other options, warrants, conversion privileges or
other rights presently outstanding to purchase or otherwise acquire any authorized but
unissued shares of the Company’s capital stock or other securities of the Company. The
Company has no outstanding loans to any
employee, officer or director of the Company, and the Company agrees not to enter into
any such loan or otherwise guarantee the payment of any loan made to an employee, officer
or director by a third party.
(iii) Except as set forth in the Securities Purchase Agreement dated as of September
20, 2010 by and between the Company and the investors party thereto, no stockholder of the
Company has preemptive rights to purchase new issuances of the Company’s capital stock.
(e) Exempt Transaction. Subject to the accuracy of the Warrantholder’s
representations in Section 10, the issuance of the Common Stock upon exercise of this
Warrant will each constitute a transaction exempt from (i) the registration requirements of Section
5 of the Act, in reliance upon Section 4(2) thereof, and (ii) the qualification requirements of the
applicable state securities laws.
(f) Compliance with Rule 144. If the Warrantholder proposes to sell Common Stock
issuable upon the exercise of this Warrant, or the Common Stock into which it is convertible, in
compliance with Rule 144 promulgated by the SEC, then, upon Warrantholder’s written request to the
Company, the Company shall furnish to the Warrantholder, within ten days after receipt of such
request, a written statement confirming the Company’s compliance with the filing requirements of
the SEC as set forth in such Rule, as such Rule may be amended from time to time.
(g) Information Rights. During the term of this Warrant, Warrantholder shall be
entitled to the information rights contained in Sections 7.1(b) and 7.1(c) of the Loan Agreement,
and Sections 7.1(b) and 7.1(c) of the Loan Agreement are hereby incorporated into this Warrant by
this reference as though fully set forth herein, provided, however, that the Company shall not be
required to deliver a Compliance Certificate once all Indebtedness (as defined in the Loan
Agreement) owed by the Company to Warrantholder has been repaid.
(h) Listing of Shares. The Common Stock is listed for trading on The NASDAQ Global
Market as of the Effective Date and the Company shall maintain such listing through the Warrant
Term.
(i) SEC Registration of Shares. Upon the earlier of (i) ninety (90) days of the
Effective Date and (ii) the date the Company files a resale registration statement with the
Securities Exchange Commission (the “SEC”) for the public offering and sale of Common
Stock, the Company shall prepare and file with the SEC a registration statement covering the resale
of the Common Stock issuable hereunder for an offering to be made on a continuous basis under the
Act and applicable state securities laws. The Company shall use its commercially reasonable
efforts to maintain the registration of such Common Stock and ensure it may be sold without
restriction, in each case, until the earliest to occur of the following: a sale pursuant to a
registration statement or the date that all Common Stock issuable hereunder becomes eligible for
resale by non-affiliates without volume or manner-of-sale restrictions pursuant to Rule 144,
without the requirement for the Company to be in compliance with the current public information
requirement under Rule 144 as determined by counsel to the Company pursuant to a written opinion
letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent.
SECTION 10. REPRESENTATIONS AND COVENANTS OF THE WARRANTHOLDER.
This Warrant has been entered into by the Company in reliance upon the following
representations and covenants of the Warrantholder:
(a) Investment Purpose. The right to acquire Common Stock or the Common Stock
issuable upon exercise of the Warrantholder’s rights contained herein will be acquired for
investment and not with a view to the sale or distribution of any part thereof, and the
Warrantholder has no present intention of selling or engaging in any public distribution of the
same except pursuant to a registration or exemption.
(b) Private Issue. The Warrantholder understands (i) that, subject to Section
9(k) above, the Common Stock issuable upon exercise of this Warrant is not registered under the
Act or qualified under applicable state securities laws on the ground that the issuance
contemplated by this Warrant will be exempt from the registration and qualifications requirements
thereof, and (ii) that the Company’s reliance on such exemption is predicated on the
representations set forth in this Section 10.
(c) Financial Risk. The Warrantholder has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of its investment, and has
the ability to bear the economic risks of its investment.
(d) Risk of No Registration. Without in any way limiting the Company’s obligations
under this Warrant, including without limitation, Section 9(k) above, the Warrantholder
understands that if the Company does not register with the SEC pursuant to Section 12 of the 1934
Act, or file reports pursuant to Section 15(d) of the 1934 Act, or if a registration statement
covering the securities under the Act covering the Warrant and shares of Common Stock issuable upon
exercise of the Warrant is not in effect when it desires to sell (i) the rights to purchase Common
Stock pursuant to this Warrant or (ii) the Common Stock issuable upon exercise of the right to
purchase, it may be required to hold such securities for an indefinite period. The Warrantholder
also understands that any sale of (A) its rights hereunder to purchase Common Stock or (B) Common
Stock issued or issuable hereunder which might be made by it in reliance upon Rule 144 under the
Act may be made only in accordance with the terms and conditions of that Rule.
(e) Accredited Investor. Warrantholder is an “accredited investor” within the meaning
of the Securities and Exchange Rule 501 of Regulation D, as presently in effect.
(f) No Short Sales. Warrantholder has not engaged, and will not engage, in “short
sales” of the Common Stock of the Company. The term “short sale” shall mean any sale of a security
which the seller does not own or any sale which is consummated by the delivery of a security
borrowed by, or for the account of, the seller.
SECTION 11. TRANSFERS.
Subject to compliance with applicable federal and state securities laws, this Warrant and all
rights hereunder are transferable, in whole or in part, without charge to the holder hereof (except
for transfer taxes) upon surrender of this Warrant properly endorsed. Each taker and holder of
this Warrant, by taking or holding the same, consents and agrees that this Warrant, when endorsed
in blank, shall be deemed negotiable, and that the holder hereof, when this Warrant shall have been
so endorsed and its transfer recorded on the Company’s books, shall be treated by the Company and
all other persons dealing with this Warrant as the absolute owner hereof for any purpose and as the
person entitled to exercise the rights represented by this Warrant. The transfer of this Warrant
shall be recorded on the books of the Company upon receipt by the Company of a notice of transfer
in the form attached hereto as Exhibit C (the “Transfer Notice”), at its principal offices
and the payment to the Company of all transfer taxes and other governmental charges imposed on such
transfer. Until the Company receives such Transfer Notice, the Company may treat the registered
owner hereof as the owner for all purposes.
SECTION 12. MISCELLANEOUS.
(a) Effective Date. The provisions of this Warrant shall be construed and shall be
given effect in all respects as if it had been executed and delivered by the Company on the date
hereof. This Warrant shall be binding upon any successors or assigns of the Company.
(b) Remedies. In the event of any default hereunder, the non-defaulting party may
proceed to protect and enforce its rights either by suit in equity and/or by action at law,
including but not limited to an action for damages as a result of any such default, and/or an
action for specific performance for any default where Warrantholder will not have an adequate
remedy at law and where damages will not be readily ascertainable. The Company expressly agrees
that it shall not oppose an application by the Warrantholder or any other person entitled to the
benefit of this Warrant requiring specific performance of any or all provisions hereof or enjoining
the Company from continuing to commit any such breach of this Warrant.
(c) No Impairment of Rights. The Company will not, by amendment of its Charter or
through any other means, 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 in order to protect the
rights of the Warrantholder against impairment.
(d) Additional Documents. The Company, upon execution of this Warrant, shall provide
the Warrantholder with certified resolutions with respect to the representations, warranties and
covenants set forth in Sections 9(a) through 9(d), 9(f) and 9(g).
The Company shall also supply such other documents as the Warrantholder may from time to time
reasonably request.
(e) Attorney’s Fees. In any litigation, arbitration or court proceeding between the
Company and the Warrantholder relating hereto, the prevailing party shall be entitled to attorneys’
fees and expenses and all costs of proceedings incurred in enforcing this Warrant. For the
purposes of this Section 12(e), attorneys’ fees shall include without limitation fees
incurred in connection with the following: (i) contempt proceedings; (ii) discovery; (iii) any
motion, proceeding or other activity of any kind in connection with an insolvency proceeding; (iv)
garnishment, levy, and debtor and third party examinations; and (v) post-judgment motions and
proceedings of any kind, including without limitation any activity taken to collect or enforce any
judgment.
(f) Severability. In the event any one or more of the provisions of this Warrant
shall for any reason be held invalid, illegal or unenforceable, the remaining provisions of this
Warrant shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced
by a mutually acceptable valid, legal and enforceable provision, which comes closest to the
intention of the parties underlying the invalid, illegal or unenforceable provision.
(g) Notices. Except as otherwise provided herein, any notice, demand, request,
consent, approval, declaration, service of process or other communication that is required,
contemplated, or permitted under this Warrant or with respect to the subject matter hereof shall be
in writing, and shall be deemed to have been validly served, given, delivered, and received upon
the earlier of: (i) the day of transmission by facsimile or hand delivery if transmission or
delivery occurs on a business day at or before 5:00 pm in the time zone of the recipient, or, if
transmission or delivery occurs on a non-business day or after such time, the first business day
thereafter, or the first business day after deposit with an overnight express service or overnight
mail delivery service; or (ii) the third calendar day after deposit in the United States mails,
with proper first class postage prepaid (provided, that any Advance Request shall not be
deemed received until Lender’s actual receipt thereof), and shall be addressed to the party to be
notified as follows:
If to Warrantholder:
[______________________________________]
(i) If to the Company:
ANTHERA PHARMACEUTICALS, INC.
Attention: Chief Financial Officer
00000 Xxxxxxxxxx Xxxx., Xxxxx X
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Chief Financial Officer
00000 Xxxxxxxxxx Xxxx., Xxxxx X
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
or to such other address as each party may designate for itself by like notice.
(h) Entire Agreement; Amendments. This Warrant constitutes the entire agreement and
understanding of the parties hereto in respect of the subject matter hereof, and supersede and
replace in their entirety any prior proposals, term sheets, letters, negotiations or other
documents or agreements, whether written or oral, with respect to the subject matter hereof
(including Lender’s proposal letter dated February 10, 2011). None of the terms of this Warrant
may be amended except by an instrument executed by each of the parties hereto.
(i) Headings. The various headings in this Warrant are inserted for convenience only
and shall not affect the meaning or interpretation of this Warrant or any provisions hereof.
(j) Advice of Counsel. Each of the parties represents to each other party hereto that
it has discussed (or had an opportunity to discuss) with its counsel this Warrant and,
specifically, the provisions of Sections 12(n), 12(o), 12(p), 12(q)
and 12(r).
(k) No Strict Construction. The parties hereto have participated jointly in the
negotiation and drafting of this Warrant. In the event an ambiguity or question of intent or
interpretation arises, this Warrant shall be construed as if drafted jointly by the parties hereto
and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of
the authorship of any provisions of this Warrant.
(l) No Waiver. Except for the requirement that this Warrant be exercised (or be
deemed exercised), if at all, during the Warrant Term, no omission or delay by Warrantholder at any
time to enforce any right or remedy reserved to it, or to require performance of any of the terms,
covenants or provisions hereof by the Company at any time designated, shall be a waiver of any such
right or remedy to which Warrantholder is entitled, nor shall it in any way affect the right of
Warrantholder to enforce such provisions thereafter.
(m) Survival. All agreements, representations and warranties contained in this
Warrant or in any document delivered pursuant hereto shall be for the benefit of Warrantholder and
shall survive the execution and delivery of this Warrant and the expiration or other termination of
this Warrant.
(n) Governing Law. This Warrant has been negotiated and delivered to Warrantholder in
the State of California, and shall have been accepted by Warrantholder in the State of California.
Delivery of Common Stock to Warrantholder by the Company under this Warrant is due in the State of
California. This Warrant shall be governed by, and construed and
enforced in accordance with, the laws of the State of California, excluding conflict of laws
principles that would cause the application of laws of any other jurisdiction.
(o) Consent to Jurisdiction and Venue. All judicial proceedings arising in or under
or related to this Warrant may be brought in any state or federal court of competent jurisdiction
located in the State of California. By execution and delivery of this Warrant, each party hereto
generally and unconditionally: (a) consents to personal jurisdiction in Santa Xxxxx County, State
of California; (b) waives any objection as to jurisdiction or venue in Santa Xxxxx County, State of
California; (c) agrees not to assert any defense based on lack of jurisdiction or venue in the
aforesaid courts; and (d) irrevocably agrees to be bound by any judgment rendered thereby in
connection with this Warrant. Service of process on any party hereto in any action arising out of
or relating to this Warrant shall be effective if given in accordance with the requirements for
notice set forth in Section 12(g), and shall be deemed effective and received as set forth
in Section 12(g). Nothing herein shall affect the right to serve process in any other
manner permitted by law or shall limit the right of either party to bring proceedings in the courts
of any other jurisdiction.
(p) Mutual Waiver of Jury Trial. Because disputes arising in connection with complex
financial transactions are most quickly and economically resolved by an experienced and expert
person and the parties wish applicable state and federal laws to apply (rather than arbitration
rules), the parties desire that their disputes be resolved by a judge applying such applicable
laws. EACH OF THE COMPANY AND WARRANTHOLDER SPECIFICALLY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY
JURY OF ANY CAUSE OF ACTION, CLAIM, CROSS-CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR ANY OTHER CLAIM
(COLLECTIVELY, “CLAIMS”) ASSERTED BY THE COMPANY AGAINST WARRANTHOLDER OR ITS ASSIGNEE OR BY
WARRANTHOLDER OR ITS ASSIGNEE AGAINST THE COMPANY. This waiver extends to all such Claims,
including Claims that involve Persons other than the Company and Warrantholder; Claims that arise
out of or are in any way connected to the relationship between the Company and Warrantholder; and
any Claims for damages, breach of contract, specific performance, or any equitable or legal relief
of any kind, arising out of this Warrant.
(q) Arbitration. If the Mutual Waiver of Jury Trial set forth in Section
12(p) is ineffective or unenforceable, the parties agree that all Claims shall be submitted to
binding arbitration in accordance with the commercial arbitration rules of JAMS (the “Rules”), such
arbitration to occur before one arbitrator, which arbitrator shall be a retired California state
judge or a retired Federal court judge. Such proceeding shall be conducted in San Francisco
County, California, with California rules of evidence and discovery applicable to such arbitration.
The decision of the arbitrator shall be binding on the parties, and shall be final and
nonappealable to the maximum extent permitted by law. Any judgement rendered by the arbitrator may
be entered in a court of competent jurisdiction and enforced by the prevailing party as a final
judgment of such court.
(r) Prearbitration Relief. In the event Claims are to be resolved by arbitration,
either party may seek from a court of competent jurisdiction identified in Section 12(o),
any prejudgment order, writ or other relief and have such prejudgment order, writ or other relief
enforced to the fullest extent permitted by law notwithstanding that all Claims are otherwise
subject to resolution by binding arbitration.
(s) Counterparts. This Warrant and any amendments, waivers, consents or supplements
hereto may be executed in any number of counterparts, and by different parties hereto in separate
counterparts, each of which when so delivered shall be deemed an original, but all of which
counterparts shall constitute but one and the same instrument.
(t) Specific Performance. The parties hereto hereby declare that it is impossible to
measure in money the damages which will accrue to Warrantholder by reason of the Company’s failure
to perform any of the obligations under this Warrant and agree that the terms of this Warrant shall
be specifically enforceable by Warrrantholder. If Warrantholder institutes any action or
proceeding to specifically enforce the provisions hereof, any person against whom such action or
proceeding is brought hereby waives the claim or defense therein that Warrantholder has an adequate
remedy at law, and such person shall not offer in any such action or proceeding the claim or
defense that such remedy at law exists.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Warrant to be executed by its officers
thereunto duly authorized as of the Effective Date.
| COMPANY: | ANTHERA PHARMACEUTICALS, INC. |
|||
| By: | ||||
| Name: | Xxxxxxxxxxx X. Xxxx | |||
| Title: | Chief Business Officer and Chief Financial Officer |
|||
| WARRANTHOLDER: | [________________________________________] |
|||
| By: | ||||
| Name: | ||||
| Title: | ||||
EXHIBIT A
NOTICE OF EXERCISE
| To: | ANTHERA PHARMACEUTICALS, INC. (the “Company”) | |
| (1) | The undersigned Warrantholder hereby elects to purchase [_______] shares of the Common Stock of the Company, pursuant to the terms of that certain Warrant Agreement, dated as of March 25, 2011, between the Company and the Warrantholder (the “Warrant”), and [CASH PAYMENT: tenders herewith payment of the Purchase Price in full, together with all applicable transfer taxes, if any.] [NET ISSUANCE: elects pursuant to Section 3(a) of the Warrant to effect a Net Issuance.] | |
| (2) | Please issue a certificate or certificates representing said shares of Common Stock in the name of the Warrantholder or in such other name as is specified below. |
|
WARRANTHOLDER: |
__________________________________________________ (Name) __________________________________________________ (Address) [__________________________________________________] |
|||
| By: | ||||
| Name: | ||||
| Title: | ||||
EXHIBIT B
ACKNOWLEDGMENT OF EXERCISE
The undersigned, as representative of Anthera Pharmaceuticals, Inc. (the “Company”),
hereby acknowledges receipt of the “Notice of Exercise” from [_____________________] (the
“Warrantholder”), to purchase [____] shares of the Common Stock of the Company, pursuant to
the terms of that certain Warrant Agreement, dated as of March 25, 2011, between the Company and
the Warrantholder (the “Warrant”), and further acknowledges that [______] shares remain
subject to purchase under the terms of the Warrant.
| COMPANY: | ANTHERA PHARMACEUTICALS, INC. |
|||
| By: | ||||
| Title: | ||||
| Date: | ||||
EXHIBIT C
TRANSFER NOTICE
FOR VALUE RECEIVED, that certain Warrant Agreement, dated as of March 25, 2011, between Anthera
Pharmaceuticals, Inc., as the Company, and [______________], as the Warrantholder (the
“Warrant”), and all rights evidenced thereby are hereby transferred and assigned to
__________________________________________________
(Please Print)
(Please Print)
whose address is ____________________________________
__________________________________________________
Dated: ________________________________
Holder’s Signature: _____________________
Holder’s Address: ______________________
_____________________________________
_____________________________________
Signature Guaranteed: ________________________
NOTE: The signature to this Transfer Notice must correspond with the name as it appears on the face
of the Warrant, without alteration or enlargement or any change whatever. Officers of corporations
and those acting in a fiduciary or other representative capacity should file proper evidence of
authority to assign the foregoing Warrant.
