Contract
Exhibit 10.58
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE.
THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS, OR PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER SUCH ACT OR
LAWS.
This warrant (this “Warrant”) is issued to ___, a ___
limited liability company (together with its permitted assigns, the “Holder”) by Unilife
Corporation, a Delaware corporation (the “Company”), on December 2, 2010, for agreed upon
consideration, receipt of which is hereby acknowledged.
1. Purchase Shares. Subject to the terms and conditions hereinafter set forth, the
Holder is entitled, upon surrender of this Warrant at the principal executive offices of the
Company (or at such other place as the Company shall notify the Holder in writing), to purchase
from the Company at the applicable Exercise Price (as defined below), up to ___shares of
common stock, par value $0.01 per share, of the Company (the “Warrant Shares”), subject to
adjustment as provided in Section 8 hereof.
2. Exercise Price. The purchase price for the Warrant Shares shall be $[___] per share
(the “Exercise Price”), subject to adjustment as provided in Section 8 hereof.
3. Exercise Period. This Warrant may be exercised at any time after (i) December 2,
2010 and (ii) until the close of business on December 1, 2015.
4. Method of Exercise. While this Warrant remains outstanding and exercisable in
accordance with Section 3 above, the Holder may exercise, in whole or in part, this Warrant by:
(a) the surrender of this Warrant, together with a duly executed copy of the form of Notice of
Exercise attached hereto, to the Chief Financial Officer of the Company at its principal executive
offices of the Company (or at such other place as the Company shall notify the Holder in writing);
and
(b) the payment of the aggregate Exercise Price, which payment shall be payable by cash, or a
certified or bank cashier’s check payable to the order of the Company, or wire transfer of
immediately available funds to such account as shall be designated by the
Company, in an amount equal to the Exercise Price multiplied by the number of Warrant Shares
for which this Warrant is being exercised.
5. No Redemption. The Company shall not have any right to redeem this Warrant in
whole or in part.
6. Certificates for Shares. Upon the exercise of the purchase rights evidenced by
this Warrant, one or more certificates for the number of Warrant Shares so purchased shall be
issued as soon as practicable thereafter (with appropriate restrictive legends, if applicable), and
in any event within ten (10) business days of the delivery of the Notice of Exercise.
7. Issuance of Shares. The Company covenants that the Warrant Shares, when issued
pursuant to the exercise of this Warrant, will be duly and validly issued, fully paid and
nonassessable and free from all liens and charges with respect to the issuance thereof.
8. Adjustment of Exercise Price and Kind and Number of Shares. The number and kind of
securities purchasable upon exercise of this Warrant and the Exercise Price shall be subject to
adjustment from time to time as follows:
(a) Subdivisions, Combinations and Other Issuances. If the Company shall at any time
prior to the expiration of this Warrant (i) subdivide its shares of common stock, by split-up or
otherwise, or combine its shares of common stock, or (ii) issue additional shares of common stock
or other equity securities as a dividend with respect to such equity securities, the number of
Warrant Shares issuable on the exercise of this Warrant shall forthwith be proportionately
increased in the case of a subdivision (by stock split, stock dividend or otherwise), or
proportionately decreased in the case of a combination. Appropriate adjustments shall also be made
to the Exercise Price payable per share, but the aggregate Exercise Price payable for the total
number of Warrant Shares purchasable under this Warrant (as adjusted) shall remain the same. Any
adjustment under this Section 8(a) shall become effective at the close of business on the date the
subdivision or combination becomes effective, or as of the record date of such dividend, or in the
event that no record date is fixed, upon the making of such dividend.
(b) Reclassification, Reorganization and Consolidation. In case of any
reclassification, capital reorganization, or change in the shares of common stock of the Company
(other than as a result of a subdivision, combination, or stock dividend provided for in Section
8(a) above), then, as a condition of such reclassification, reorganization, or change, lawful
provision shall be made, and duly executed documents evidencing the same from the Company or its
successor shall be delivered to the Holder, so that the Holder shall have the right at any time
prior to the expiration of this Warrant to purchase, at a total price equal to that payable upon
the exercise of this Warrant (subject to adjustment of the Exercise Price as provided in this
Section 8), the kind and amount of shares of stock and other securities and property receivable in
connection with such reclassification, reorganization, or change by a holder of the same number of
the shares of common stock as were purchasable by the Holder immediately prior to such
reclassification, reorganization, or change. In any such case appropriate provisions shall be made
with respect to the rights and interest of the Holder so that the provisions hereof shall
thereafter be applicable with respect to any shares of stock or other securities and property
deliverable upon exercise hereof, and appropriate adjustments shall be made to the purchase
price per share payable hereunder, provided the aggregate Exercise Price shall remain the same.
(c) Notice of Adjustment. When any adjustment is required to be made in the number or
kind of shares purchasable upon exercise of the Warrant, or in the Exercise Price, the Company
shall promptly notify the Holder of such event and of the number of the shares of common stock or
other securities or property thereafter purchasable upon exercise of this Warrant.
(d) Issuance of New Warrant. Upon the occurrence of any of the events listed in this
Section 8 that results in an adjustment of the type, number or exercise price of the securities
underlying this Warrant, the Holder shall have the right to receive a new warrant reflecting such
adjustment upon the Holder tendering this Warrant in exchange. The new warrant shall otherwise have
terms identical to this Warrant.
9. No Impairment. Pursuant to the terms and conditions of this Warrant, the Company
shall: (i) reserve an appropriate number of the shares of common stock to facilitate the issuance
of shares to the Holder pursuant to this Warrant, and (ii) provide the Holder with at least ten
(10) days prior written notice of the record date for any proposed dividend or distribution by the
Company.
10. 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 on the basis of the Exercise Price then in
effect, unless such cash payment is less than one dollar ($1.00).
11. No Stockholder Rights. Prior to the exercise of this Warrant, the Holder shall
not be entitled to any rights of a stockholder with respect to the share of common stock issuable
on the exercise hereof, including, without limitation, the right to vote such shares, receive
dividends or other distributions thereon, exercise preemptive rights or be notified of stockholder
meetings, and such holder shall not be entitled to any notice or other communication concerning the
business or affairs of the Company.
12. Transfer.
(a) General Restrictions. The Holder of this Warrant, by its acceptance hereof, agrees
that it will not sell, transfer, assign, pledge or hypothecate (collectively, “Transfer”)
this Warrant unless it complies with the provisions of this Section 12 and any applicable
securities laws. In order to make any permitted Transfer, the Holder must deliver to the Company a
duly completed and executed Transfer form attached hereto, together with this Warrant and payment
of all transfer taxes, if any, payable in connection therewith. The Company shall within five (5)
business days transfer this Warrant on the books of the Company and shall execute and deliver a new
Warrant or Warrants of like tenor to the appropriate Transferee(s) expressly evidencing the right
to purchase the aggregate number of Warrant Shares purchasable hereunder or such portion of such
number as shall be contemplated by any such Transfer.
(b) Restrictions Imposed by the Securities Act. The securities evidenced by this
Warrant shall not be Transferred unless and until (i) the Company has received the opinion
of counsel for the Holder that the securities may be Transferred pursuant to an exemption from
registration under the Securities Act and applicable state securities laws, the availability of
which is established to the reasonable satisfaction of the Company, or (ii) a registration
statement relating to such securities have been filed by the Company and declared effective by the
Securities and Exchange Commission and compliance with applicable state securities laws has been
established.
13. New Warrants to be Issued.
(a) Partial Exercise. Subject to the restrictions in Section 12 hereof, this
Warrant may be exercised in whole or in part. In the event of the exercise hereof in part only,
upon surrender of this Warrant for cancellation, together with the duly executed exercise form and
payment of the Exercise Price, the Company shall cause to be delivered to the Holder without charge
a new Warrant of like tenor to this Warrant in the name of the Holder evidencing the right of the
Holder to purchase the number of Warrant Shares purchasable hereunder as to which this Warrant has
not been exercised.
(b) Lost Certificate. Upon receipt by the Company of evidence satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant and of reasonably satisfactory
indemnification or the posting of a bond, the Company shall execute and deliver a new Warrant of
like tenor and date. Any such new Warrant executed and delivered as a result of such loss, theft,
mutilation or destruction shall constitute a substitute contractual obligation on the part of the
Company.
14. Successors and Assigns. The terms and provisions of this Warrant shall inure to
the benefit of, and be binding upon, the Company and the Holder and their respective successors and
assigns.
15. Amendments and Waivers. Any term of this Warrant may be amended and the
observance of any term of this Warrant may be waived (either generally or in a particular instance
and either retroactively or prospectively), with the written consent of the Company and the Holder.
Any waiver or amendment effected in accordance with this Section 15 shall be binding upon each
holder of any Warrant Shares purchased under this Warrant at the time outstanding (including
securities into which such shares have been converted), each future holder of all such Warrant
Shares, and the Company.
16. Notices. All notices required under this Warrant and shall be deemed to have been
given or made for all purposes (i) upon personal delivery, (ii) upon confirmation receipt that the
communication was successfully sent to the applicable number if sent by facsimile; (iii) one day
after being sent, when sent by professional overnight courier service, or (iv) five days after
posting when sent by registered or certified mail. Notices to the Company shall be sent to the
principal executive offices of the Company (or at such other place as the Company shall notify the
Holder hereof in writing). Notices to the Holder shall be sent to the address of the Holder on the
books of the Company (or at such other place as the Holder shall notify the Company hereof in
writing).
17. Attorneys’ Fees. If any action of law or equity is necessary to enforce or
interpret the terms of this Warrant, the prevailing party shall be entitled to its reasonable
attorneys’ fees, costs and disbursements in addition to any other relief to which it may be
entitled.
18. Captions. The section and subsection headings of this Warrant are inserted for
convenience only and shall not constitute a part of this Warrant in construing or interpreting any
provision hereof.
19. Governing Law. This Warrant shall be governed by the laws of the State of New
York, without regard to the provisions thereof relating to conflict of laws.
[Signature Page Follows]
IN WITNESS WHEREOF, Unilife Corporation has caused this Warrant to be executed by an officer
thereunto duly authorized.
| UNILIFE CORPORATION |
||||
| By: | ||||
| ______________________________________ | ||||
| Name: | ||||
| Title: | ||||
NOTICE OF EXERCISE
| To: | Unilife Corporation 000 Xxxxxxx Xxxx Xxxxxxxxxx, XX 00000 |
Attention: Chief Financial Officer
Fax No. (000) 000-0000
Fax No. (000) 000-0000
The undersigned hereby elects to purchase _______________shares of common stock of Unilife
Corporation, pursuant to the terms of the attached Warrant and payment of the aggregate Exercise
Price in the amount of __________________as follows:
(xxxx the applicable one)
[ ] in cash
[ ] certified or bank cashier’s check
[ ] wire transfer
[ ] in cash
[ ] certified or bank cashier’s check
[ ] wire transfer
The undersigned hereby represents and warrants that the undersigned is an “accredited
investor” as defined under Regulation D under the Securities Act of 1933, as amended, and is
acquiring the shares for its own account for investment purposes only, and not for resale or with a
view to distribution of the shares or any part thereof.
HOLDER:
_________________________________
Address:
Date:
Name in which shares should be registered:
FORM OF TRANSFER
| To: | Unilife Corporation 000 Xxxxxxx Xxxx Xxxxxxxxxx, XX 00000 |
Attention: Chief Financial Officer
Fax No. (000) 000-0000
Fax No. (000) 000-0000
The undersigned hereby assigns and transfers this Warrant to _______________whose social
security number or tax identification number is __________________and whose record address is
__________________, and irrevocably appoints __________________as agent to transfer this
Warrant on the books of the Company. Such agent may substitute another to act for such agent.
HOLDER:
_________________________________
Address:
Date:
