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Exhibit 4.4
Form of
UNIT and WARRANT AGREEMENT
Between
ANTHRA PHARMACEUTICALS, INC.
and
AMERICAN STOCK TRANSFER & TRUST COMPANY,
as Unit Agent, Warrant Agent and Transfer Agent
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Dated as of September ___, 1998
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TABLE OF CONTENTS
Page
ARTICLE I DEFINED TERMS........................................................................................2
ARTICLE II DISTRIBUTION OF UNIT, WARRANT AND COMMON STOCK CERTIFICATES.........................................3
2.1. Appointment of Unit Agent, Warrant Agent and Transfer Agent...........................................3
2.2. Issuance and Distribution of Unit Certificates, Warrant Certificates and Common Stock Certificates....4
2.3. Form of Unit Certificates.............................................................................4
2.4. Execution of Unit Certificates........................................................................5
2.5. Form of Warrant Certificates..........................................................................5
2.6. Execution of Warrant Certificates.....................................................................5
2.7. Exchange of Unit Certificates.........................................................................5
2.8. Transfer of Units and Warrants........................................................................6
ARTICLE III WARRANT EXERCISE PRICE AND EXERCISE OF WARRANTS....................................................6
3.1. Applicable Exercise Price.............................................................................6
3.2. Exercisability of Warrants............................................................................6
3.3. Procedure for Exercise of Warrants....................................................................6
3.4. Issuance of Warrant Shares............................................................................7
3.5. Certificates for Unexercised Warrants.................................................................7
3.6. Reservation of Shares.................................................................................7
3.7. Disposition of Proceeds...............................................................................8
ARTICLE IV REDEMPTION OF WARRANTS..............................................................................8
4.1. Redemption Price and Trigger Price....................................................................8
4.2. Payment of Redemption Price...........................................................................8
ARTICLE V ADJUSTMENTS AND NOTICE PROVISIONS....................................................................8
5.1. Adjustment of Exercise Price and Number of Shares of Common Stock or Warrants.........................8
5.2. No Adjustment for Dividends..........................................................................12
5.3. Other Adjustments....................................................................................12
5.4. Notice of Adjustment.................................................................................12
5.5. Notices of Corporate Action..........................................................................12
5.6. Notice of Redemption.................................................................................13
5.7. Verification of Computations.........................................................................13
5.8. Effect of Failure to Give Notice.....................................................................13
5.9. Warrant Certificate Amendments.......................................................................14
ARTICLE VI OTHER PROVISIONS RELATING TO RIGHTS OF REGISTERED HOLDERS OF UNIT CERTIFICATES AND WARRANT
CERTIFICATES............................................................................14
6.1. Rights of Unit Holders...............................................................................14
6.2. Rights of Warrant Holders............................................................................14
6.3. Lost, Stolen, Mutilated or Destroyed Unit Certificates or Warrant Certificates.......................14
ARTICLE VII TRANSFER AND REGISTRATION OF UNITS AND WARRANTS; LISTING OF WARRANT SHARES........................15
7.1. Sale of Units, Warrants and Warrant Shares...........................................................15
7.2. Registration of Units, Warrants and Warrant Shares...................................................15
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7.3. Listing of Warrant Shares on Securities Exchanges....................................................16
7.4. Availability of Information..........................................................................16
ARTICLE VIII SPLIT UP, COMBINATION, EXCHANGE, TRANSFER AND CANCELLATION OF UNIT CERTIFICATES AND WARRANT
CERTIFICATES............................................................................16
8.1. Split Up, Combination, Exchange and Transfer of Unit Certificates and Warrant Certificates...........16
8.2. Cancellation of Unit Certificates and Warrant Certificates...........................................17
8.3. Agreement of Unit Certificate and Warrant Certificate Holders........................................18
ARTICLE IX PROVISIONS CONCERNING THE UNIT AGENT AND THE WARRANT AGENT AND OTHER MATTERS.......................18
9.1. Payment of Taxes and Charges.........................................................................18
9.2. Resignation or Removal of Unit Agent or Warrant Agent................................................18
9.3. Notice of Appointment................................................................................19
9.4. Merger of Unit Agent or Warrant Agent................................................................19
9.5. Company Responsibilities.............................................................................19
9.6. Certification for the Benefit of Unit Agent or Warrant Agent.........................................20
9.7. Books and Records....................................................................................20
9.8. Liability of Unit Agent and Warrant Agent............................................................20
9.9. Use of Attorneys, Agents and Employees...............................................................21
9.10. Indemnification......................................................................................21
9.11. Acceptance of Agency.................................................................................21
9.12. Changes to Agreement.................................................................................21
9.13. Assignment. 22
9.14. Successor to Company.................................................................................22
9.15. Notices. 22
9.16. Defects in Notice....................................................................................23
9.17. Governing Law........................................................................................23
9.18. Standing. 23
9.19. Headings. 23
9.20. Counterparts.........................................................................................23
9.21. Conflict of Interest.................................................................................23
9.22. Availability of the Agreement........................................................................24
EXHIBITS:
EXHIBIT A - Form of Unit Certificate
EXHIBIT B - Form of Warrant Certificate
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UNIT AND WARRANT AGREEMENT
THIS UNIT AND WARRANT AGREEMENT, dated as of September __, 1998, is
made and entered into by and between ANTHRA PHARMACEUTICALS, INC., a Delaware
corporation ("Anthra" or the "Company"), and AMERICAN STOCK TRANSFER & TRUST
COMPANY, as unit agent (in such capacity, the "Unit Agent"), warrant agent (in
such capacity, the "Warrant Agent") and transfer agent (in such capacity, the
"Transfer Agent").
The Company has made an initial public offering (the "Offering") of up
to 2,300,000 Units (including up to 300,000 Units that may be offered pursuant
to the underwriters' over-allotment option), each Unit (a "Unit") consisting of
one share of common stock, par value $.01 per share, of the Company (the "Common
Stock"), and one Class A redeemable Common Stock purchase warrant (each a
"Warrant") that entitles the holder to initially purchase one share of Common
Stock, subject to modification and adjustment as provided herein.
On the closing date of the Offering (together with the closing date, if
any, on which Units are sold by the Company to the underwriters pursuant to the
underwriters' over-allotment option, the "Closing Date"), the Company proposes
to issue certificates evidencing the Units (such Unit certificates issued
pursuant to this Agreement being hereinafter collectively called the "Unit
Certificates") and certificates evidencing the shares of Common Stock and the
Warrants included in each Unit. From and after the Separation Date (as
hereinafter defined), the Unit Agent will deliver certificates evidencing the
Warrants and certificates evidencing the Common Stock included in each Unit upon
surrender of the Unit Certificates by the holders thereof (such Warrant
certificates and Common Stock certificates being hereinafter collectively called
the "Warrant Certificates" and the "Common Stock Certificates," respectively).
The Company desires the Unit Agent, the Warrant Agent and the Transfer Agent,
and the Unit Agent, the Warrant Agent and the Transfer Agent have agreed, to act
on behalf of the Company in connection with the issuance, transfer, exchange,
replacement and surrender of the Unit Certificates, the Warrant Certificates and
the Common Stock Certificates, respectively.
In connection with the Offering, the Company included in its
registration statement on Form S-1 (Reg. No. 333-47725) filed with the
Securities and Exchange Commission (the "SEC") the Units, the shares of Common
Stock and the Warrants underlying the Units and the shares of the Company's
Common Stock issuable upon exercise of the Warrants (collectively, the "Warrant
Shares"). The term "Registration Statement" means such registration statement as
amended at the time it becomes or became effective, including financial
statements and all exhibits, documents incorporated by reference therein and any
information deemed to be included by Rule 430A or Rule 424 under the Securities
Act.
The Company and the Unit Agent, the Warrant Agent and the Transfer
Agent desire to set forth in this Agreement, among other things, the form and
provisions of each of the Unit Certificates and the Warrant Certificates and the
terms and conditions under which they may be issued, transferred, exchanged,
replaced and surrendered in connection with (i) the sale of Unit Certificates,
(ii) the exchange of Unit Certificates for Warrant Certificates and Common Stock
Certificates and (iii) the exercise of the Warrants.
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In consideration of the promises and of the mutual agreements herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINED TERMS
As used in this Agreement, the following terms shall have the following
respective meanings:
"Adjustment Event" is defined in Section 5.1.
"AMEX" means the American Stock Exchange.
"Applicable Exercise Price" is defined in Section 3.1.
"Closing Date" is defined in the preamble.
"Closing Price" is defined in Section 5.1(d)(i).
"Common Stock" is defined in the preamble.
"Common Stock Certificate" is defined in the preamble.
"Company" is defined in the preamble.
"Corporate Office" is defined in Section 3.3.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exercise Date" is defined in Section 3.3.
"Exercise Deadline" is defined in Section 3.2.
"Exercise Period" is defined in Section 3.2.
"Material Event" means the occurrence of any of the following
events: (i) any capital reorganization of the Company or reclassification of the
Company's Common Stock (other than a change in the par value of the Company's
Common Stock), (ii) any merger of the Company with or into another person
(including any individual, partnership, joint venture, corporation, trust or
group thereof) in which the Company is not the surviving corporation, or any
sale, lease, transfer or conveyance of all or substantially all of the property
and assets of the Company or (iii) the commencement by any "person" or "group"
(within the meaning of Section 13(d) and Section 14(d) of the Exchange Act) of a
bona fide tender offer or exchange offer in accordance with the rules and
regulations of the Exchange Act to purchase shares of Common Stock of the
Company.
"NASD" means the National Association of Securities Dealers,
Inc.
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"Offering" is defined in the preamble.
"Property" is defined in section 5.1(d)(ii).
"Redemption Date" is defined in Section 5.6.
"Redemption Price" is defined in Section 4.1.
"Registration Statement" is defined in the preamble.
"SEC" is defined in the preamble.
"Securities Act" means the Securities Act of 1933, as amended.
"Separation Date" is defined in Section 3.2.
"Signatures Guaranteed" is defined in Section 3.3.
"Transfer Agent" means American Stock Transfer & Trust
Company, in its capacity as transfer agent for the Common Stock, and any
successor thereto.
"Underwriting Agreement" is defined in Section 2.2(b)(i).
"Unit" is defined in the preamble.
"Unit Agent" means American Stock Transfer & Trust Company, in
its capacity as Unit Agent, and any successor thereto.
"Unit Certificate" is defined in the preamble.
"Warrant" is defined in the preamble.
"Warrant Agent" means American Stock Transfer & Trust Company,
in its capacity as Warrant Agent, and any successor thereto.
"Warrant Certificate" is defined in the preamble.
"Warrant Shares" is defined in the preamble.
ARTICLE II
DISTRIBUTION OF UNIT, WARRANT AND COMMON STOCK CERTIFICATES
2.1. Appointment of Unit Agent, Warrant Agent and Transfer Agent. The
Company hereby appoints the Unit Agent, the Warrant Agent and the Transfer Agent
to act on its behalf in accordance with this Agreement, and each of the Unit
Agent, the Warrant Agent and the Transfer Agent hereby accepts such appointment.
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2.2. Issuance and Distribution of Unit Certificates, Warrant
Certificates and Common Stock Certificates.
(a) Prior to the Separation Date, the shares of Common Stock
and the Warrants included in the Units owned by each registered holder of Units
will be represented by Unit Certificates to be issued by the Company.
(b) At least two business days prior to any Closing Date,
(i) the Company shall deliver to the Unit Agent the
appropriate number of Unit Certificates representing the number of Units to be
sold on such Closing Date pursuant to the Offering, in the form described in
Section 2.3 hereof and executed on behalf of the Company as described in Section
2.4 hereof. Upon receipt of a written order from the Company, the Unit Agent
shall complete and countersign Unit Certificates representing up to 2,300,000
Units (including up to 300,000 Units if the underwriters' over-allotment option
in exercised in full) and deliver such Unit Certificates to Xxxxxxx/Xxxxxx
Associates, L.P. (the "Underwriter") as provided in the Underwriting Agreement,
dated September __, 1998, between the Underwriter and the Company (the
"Underwriting Agreement"),
(ii) the Company shall deliver or cause to be delivered to the
Unit Agent the appropriate number of Common Stock Certificates representing the
number of shares of Common Stock included in the Units sold pursuant to the
Offering. Such Common Stock Certificates shall be in the form as filed with the
Registration Statement and duly executed in the manner provided in the
Underwriting Agreement and shall be held by the Unit Agent pending the exchange
by the registered holders of Unit Certificates for Common Stock Certificates and
Warrant Certificates on or after the Separation Date, as described in Section
2.7 hereof, and
(iii) the Company shall deliver, or cause to be delivered, to
the Warrant Agent the appropriate number of Warrant Certificates representing
the number of Warrants included in the Units sold pursuant to the Offering. Such
Warrant Certificates shall be in the form described in Section 2.5 hereof and
executed on behalf of the Company as described in Section 2.6 hereof. Promptly
upon receipt of such Warrant Certificates, the Warrant Agent shall complete and
countersign such Warrant Certificates and shall promptly deliver them to the
Unit Agent. Such Warrant Certificates shall be held by the Unit Agent pending
the exchange by the registered holders of Unit Certificates for Common Stock
Certificates and Warrant Certificates on or after the Separation Date, as
described in Section 2.7 hereof.
2.3. Form of Unit Certificates. The Unit Certificates shall be issued
in registered form only and, together with the assignment form to be printed on
the reverse thereof, shall be substantially in the form of Exhibit A attached
hereto and, in addition, may have such letters, numbers or other marks of
identification or designation and such legends, summaries or endorsements
stamped, printed, lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Agreement or
as, in any particular case, may be required, in the opinion of counsel for the
Company, to comply with any law or with any rule or regulation of any regulatory
authority or agency made pursuant thereto or with any rule or regulation of the
NASD, AMEX or any stock exchange or automated quotation
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system on which the Units may from time to time be listed or quoted, or to
conform to customary usage.
2.4. Execution of Unit Certificates. The Unit Certificates shall be
executed on behalf of the Company by its Chairman of the Board, Chief Executive
Officer or President or any Vice President, and by its Chief Financial Officer
or Treasurer or any Assistant Treasurer, or Secretary or any Assistant
Secretary, either manually or by facsimile signature printed thereon. The Unit
Certificates shall be manually countersigned and dated the date of
countersignature by the Unit Agent and shall not be valid for any purpose unless
so countersigned and dated. In case any authorized officer of the Company who
shall have signed any of the Unit Certificates shall cease to be such officer of
the Company either before or after delivery thereof by the Company to the Unit
Agent, the signature of such person on such Unit Certificates shall,
nevertheless, be valid and such Unit Certificates may be countersigned by the
Unit Agent and issued and delivered to those persons entitled to receive the
Units represented thereby with the same force and effect as though the person
who signed such Unit Certificates had not ceased to be such officer of the
Company.
2.5. Form of Warrant Certificates. The Warrant Certificates shall be
issued in registered form only and, together with the election to purchase form
and assignment form to be printed on the reverse thereof, shall be substantially
in the form of Exhibit B attached hereto and, in addition, may have such
letters, numbers or other marks of identification or designation and such
legends, summaries or endorsements stamped, printed, lithographed or engraved
thereon as the Company may deem appropriate and as are not inconsistent with the
provisions of this Agreement or as, in any particular case, may be required, in
the opinion of counsel for the Company, to comply with any law or with any rule
or regulation of any regulatory authority or agency made pursuant thereto or
with any rule or regulation of the NASD, AMEX or any stock exchange or any
automated quotation system on which the Warrants may from time to time be listed
or quoted, or to conform to customary usage.
2.6. Execution of Warrant Certificates. The Warrant Certificates shall
be executed on behalf of the Company by its Chairman of the Board, Chief
Executive Officer or President or any Vice President, and by its Chief Financial
Officer or Treasurer or any Assistant Treasurer, or Secretary or any Assistant
Secretary, either manually or by facsimile signature printed thereon. The
Warrant Certificates shall be manually countersigned and dated the date of
countersignature by the Warrant Agent and shall not be valid for any purpose
unless so countersigned and dated. In case any authorized officer of the Company
who shall have signed any of the Warrant Certificates shall cease to be such
officer of the Company either before or after delivery thereof by the Company to
the Warrant Agent, the signature of such person on such Warrant Certificates
shall, nevertheless, be valid and such Warrant Certificates may be countersigned
by the Warrant Agent and issued and delivered to those persons entitled to
receive the Warrants represented thereby 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.
2.7. Exchange of Unit Certificates. Each registered holder of Unit
Certificates may, on and after the Separation Date, exchange such holder's Unit
Certificates, for (i) Common Stock Certificates representing one share of Common
Stock for each Unit represented
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by such Unit Certificates and (ii) Warrant Certificates representing one Warrant
for each Unit represented by such Unit Certificates by surrendering such Unit
Certificates to the Unit Agent at the office of the Unit Agent. Upon any such
surrender for exchange, the Unit Agent shall deliver to the person entitled
thereto Common Stock Certificates representing the number of shares of Common
Stock included in the Units and Warrant Certificates representing the number of
Warrants included in the Units represented by each Unit Certificate so
surrendered.
2.8. Transfer of Units and Warrants. The Unit Agent shall keep at its
offices books in which Unit Certificates and the transfer thereof shall be
registered. The Warrant Agent shall register the Warrants included in the Units
in the names of the registered holders thereof and register the transfer of such
Warrants at such time as the Unit Certificates representing such Warrants are
transferred and, from and after the Separation Date, the Warrant Agent shall
register the transfer of Warrant Certificates. The Transfer Agent shall register
the shares of Common Stock included in the Units in the names of the registered
holders thereof and register the transfer of such shares at such time as the
Unit Certificates representing such shares are transferred. From and after the
Separation Date, the Unit Agent shall not register any transfers of the Unit
Certificates. Registration of all certificates pursuant to this Section 2.8 and
the transfer thereof shall be done in accordance with the provisions of this
Agreement and, to the extent not inconsistent, the regular practice of the Unit
Agent, the Warrant Agent or the Transfer Agent, as the case may be.
ARTICLE III
WARRANT EXERCISE PRICE AND EXERCISE OF WARRANTS
3.1. Applicable Exercise Price. During the Exercise Period, each
Warrant Certificate shall, when properly executed by the Company and
countersigned by the Warrant Agent, entitle the registered holder thereof to
purchase from the Company (and the Company shall issue and sell to such
registered holder upon exercise as provided herein), for each Warrant evidenced
thereby, one share of Common Stock, at a purchase price initially equal to $6.00
per share, as such purchase price and number of shares purchasable may be
adjusted from time to time pursuant to the provisions of Article V hereof,
payable in full at the time of exercise. Except as the context otherwise
requires, the term "Applicable Exercise Price" as used in this Agreement shall
mean the purchase price of one share of Common Stock, as the case may be, upon
the exercise of a Warrant reflecting all appropriate adjustments made in
accordance with the provisions of Article V hereof.
3.2. Exercisability of Warrants. Each Warrant may be exercised at any
time or from time to time on or after __________ __, 1999 or on such earlier
date as determined by the Underwriter (the "Separation Date"), and will expire
at 5:00 p.m., New York City time, on the earlier to occur of (i) __________ __,
2003 or (ii) the business day immediately preceding the Redemption Date (the
"Exercise Deadline"). The term "Exercise Period" as used in this Agreement shall
mean the period from and including the Separation Date through the Exercise
Deadline. Upon its exercise, each Warrant shall automatically terminate.
3.3. Procedure for Exercise of Warrants. During the Exercise Period and
subject to the provisions of Section 3.2 hereof, the Warrants may be exercised
by surrendering
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the Warrant Certificates representing such Warrants to the Warrant Agent at its
principal corporate office (the "Corporate Office"), which is currently at 00
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, with the election to purchase form set forth on
the Warrant Certificates duly completed and executed, with a medallion or other
acceptable signature guarantee by a member firm of a national securities
exchange, a commercial bank or trust company located in the United States, a
member of the NASD or other eligible guarantor institution which is a
participant in a medallion signature guarantee program or a signature guarantee
program (as such terms are defined in Reg. 240.17Ad-15 under the Exchange Act)
acceptable to the Warrant Agent ("Signatures Guaranteed"), accompanied by
payment in full of the Applicable Exercise Price as provided in Section 3.1 in
effect at the time of such exercise, together with such taxes as are specified
in the last sentence of Section 8.1(b) hereof, for each Warrant Share with
respect to which such Warrants are being exercised. Such Applicable Exercise
Price and taxes shall be paid in full by certified check or money order, payable
in United States currency to the order of the Company. The date a Warrant is
exercised in accordance with this Section 3.3 is sometimes referred to herein as
the "Exercise Date" with respect to such Warrant. As soon as practicable on or
after the Exercise Date of any Warrants, the Warrant Agent shall notify the
Company in writing of the exercise of such Warrants.
3.4. Issuance of Warrant Shares. As soon as practicable after the
Exercise Date with respect to a Warrant, the Company shall issue, or cause the
Transfer Agent to issue, a certificate or certificates for the number of full
shares of its Common Stock to which such holder is entitled upon exercise of
such Warrant, registered in accordance with the instructions set forth on the
election to purchase. All Warrant Shares shall be validly authorized and, when
issued upon exercise of the Warrants and paid for in accordance with the terms
hereof, fully paid and nonassessable and free from all taxes, liens, security
interests, charges and other encumbrances or restrictions on sale created by the
Company in respect of the issue thereof, and free and clear of all preemptive
rights, and shall be previously unissued shares. The Company will use its best
efforts to maintain an effective registration statement under the Securities Act
such that the issuance of such Warrant Shares shall be registered by the Company
under the Securities Act, in accordance with the provisions of Article VII
hereof. Each person in whose name any such certificate for Warrant Shares is
issued shall for all purposes be deemed to have become the holder of record of
the Warrant Shares represented thereby on the Exercise Date of the Warrants
resulting in the issuance of such shares, irrespective of the date of issuance
or delivery of such certificate for the Warrant Shares.
3.5. Certificates for Unexercised Warrants. In the event that less than
all of the Warrants represented by a Warrant Certificate are exercised, the
Warrant Agent shall execute and mail, by first-class mail, within 30 days of the
Exercise Date, to the registered holder of such Warrant Certificate, or such
other person as shall be designated in the election to purchase, a new Warrant
Certificate representing the number of full Warrants not exercised. In no event
shall a fraction of a Warrant be exercised, and the Warrant Agent shall
distribute no Warrant Certificates representing fractions of Warrants under this
or any other section of this Agreement. Fractions of shares and Warrants shall
be treated as provided in Section 5.1(e).
3.6. Reservation of Shares. The Company shall at all times reserve and
keep available for issuance upon the exercise of Warrants the maximum number of
its authorized but
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unissued shares of Common Stock that will be sufficient to permit the exercise
in full of all outstanding Warrants.
3.7. Disposition of Proceeds. The Warrant Agent shall account at least
monthly (or more frequently upon the request of the Company, provided that in no
event shall the Warrant Agent be required to account more frequently than
weekly) to the Company with respect to Warrants exercised and concurrently
deliver to the Company all funds to which the Company is entitled.
ARTICLE IV
REDEMPTION OF WARRANTS
4.1. Redemption Price. The Company may, at its option, upon not less
than 30 days' prior notice, call for redemption, in whole or in part, all of the
outstanding Warrants at a redemption price of $.10 per Warrant (such price is
hereinafter referred to as the "Redemption Price"), at any time on or after the
fifteenth month following the date of the prospectus of which the Registration
Statement forms a part, provided that (i) the last sales price of the Company's
Common Stock as reported by AMEX (or such exchange on which the Common Stock is
then traded) for 20 consecutive trading days ending within ten days of the date
of the notice of redemption is at least $9.00 and (ii) there is a current
registration statement covering the resale of the underlying shares of Common
Stock. Notice of such redemption must be given to the Warrant Agent by the
Company pursuant to Section 5.6 no later than 15 days following the end of such
20-day period. In the event the company exercises its right to redeem the
Warrants, such will be exercisable until the close of business on the business
day immediately preceding the Redemption Date. In the event the Company
exercises its right to redeem less than all of the outstanding Warrants as
provided in this Section 4.1, the number of Warrants to be surrended by each
registered holder thereof shall be such holder's pro rata portion of the total
amount to be redeemed by the Company at the time the Company's right is
exercised. If any Warrant called for redemption is not exercised by such time,
such Warrant shall cease to be exercisable and the holder thereof shall be
entitled only to receive the Redemption Price.
4.2. Payment of Redemption Price. On or prior to the opening of
business on the Redemption Date, the Company will deposit with the Warrant Agent
funds in form satisfactory to the Warrant Agent sufficient to purchase all the
Warrants being redeemed. Payment of the Redemption Price will be made by the
Warrant Agent upon presentation and surrender of the Warrant Certificates
representing such Warrants to the Warrant Agent at its Corporate Office.
ARTICLE V
ADJUSTMENTS AND NOTICE PROVISIONS
5.1. Adjustment of Exercise Price and Number of Shares of Common Stock
or Warrants. The number of shares of Common Stock purchasable upon the exercise
of each
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Warrant and the Applicable Exercise Price shall be subject to adjustment as
follows (each, an "Adjustment Event"):
(a) Stock Dividends and Stock Splits. If at any time after the
date hereof and before the Exercise Deadline (i) the Company shall fix a record
date for the issuance of any dividend payable in shares of its Common Stock or
(ii) the number of shares of Common Stock shall have been increased by a
subdivision or split-up of shares of such Common Stock, then, on the record date
fixed for the determination of holders of Common Stock entitled to receive such
dividend or immediately after the effective time of subdivision or split-up, as
the case may be, the number of shares of Common Stock to be delivered upon
exercise of each Warrant will be appropriately increased so that each registered
holder thereafter will be entitled to receive the number of shares of Common
Stock that such registered holder would have owned immediately following such
action had such Warrant been exercised immediately prior thereto, and the
Applicable Exercise Price will be appropriately adjusted as provided below in
Section 5.1(g). The time of occurrence of an event giving rise to an adjustment
made pursuant to this Section 5.1(a) shall, in the case of a subdivision or
split-up, be the effective time thereof and shall, in the case of a stock
dividend, be the record date thereof. With respect to any Warrant exercised on
or after the record date for the issuance of a stock dividend and prior to the
payment date for such dividend, the Company shall not be required to deliver to
the registered holder of such Warrant the number of additional shares of Common
Stock to which such registered holder may be entitled pursuant to the adjustment
provided for in this Section 5.1(a), unless and until such time as such stock
dividend is paid to the holders of Common Stock. If a dividend is declared and
such dividend is not paid, the Applicable Exercise Price shall again be adjusted
to be the Applicable Exercise Price in effect immediately prior to such record
date.
(b) Combination of Stock. If at any time after the date hereof
and before the Exercise Deadline the number of shares of Common Stock
outstanding shall have been decreased by a combination of the outstanding shares
of Common Stock, then, immediately after the effective time of such combination,
the number of shares of Common Stock to be delivered upon exercise of each
Warrant will be appropriately decreased so that the registered holder thereafter
will be entitled to receive the number of shares of Common Stock that such
registered holder would have owned immediately following such action had such
Warrant been exercised immediately prior thereto, and the Applicable Exercise
Price will be appropriately adjusted as provided below in Section 5.1(g).
(c) Reorganization. If at any time after the date hereof and
before the Exercise Deadline there shall be effected any capital reorganization
of the Company, or any reclassification of the Company's Common Stock, or any
consolidation of the Company with or merger of the Company with or into any
other person (including any merger or consolidation in which the Company is the
continuing or surviving corporation and which results in a reclassification of
or change in outstanding shares of its Common Stock, but excluding any merger or
consolidation in which the Company is the continuing or surviving corporation
and which does not result in any reclassification of or change in outstanding
shares of its Common Stock) or any sale, lease or other transfer of all or
substantially all of the assets of the Company to any other person (including
any individual, partnership, joint venture, corporation, trust or group
thereof), in such a way that the holders of the Common Stock shall be entitled
to receive stock, other securities, cash or assets (whether such stock, other
securities, cash or assets are
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issued or distributed by the Company or another person) with respect to or in
exchange for Common Stock, then, as a condition precedent to the consummation of
any such transaction, the Company shall cause effective provisions to be made so
that upon exercise of each Warrant, the registered holder shall have the right
to receive the kind and amount of stock, other securities, cash or assets
receivable upon such reorganization, reclassification, consolidation, merger or
sale, lease or other transfer by a holder of the number of shares of the Common
Stock that such registered holder would have been entitled to receive upon
exercise of a Warrant had the Warrant been exercised immediately prior to such
reorganization, reclassification, consolidation, merger or sale, lease or other
transfer. The Company shall take such steps in connection with any such
transaction 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 delivered upon exercise of the Warrants. The
Company or any successor person (to the extent that holders of the Company's
Common Stock will be entitled to receive stock or other securities of such
successor), as the case may be, shall execute and deliver to the Warrant Agent a
supplemental agreement so providing and providing that the successor person, if
any, shall assume the obligations of the Company hereunder. The provisions of
this paragraph (c) shall similarly apply to successive mergers, consolidations
or sales.
(d) Distributions and Rights Offering. (i) If at any time
after the date hereof and before the Exercise Deadline the Company shall issue
to all holders of its Common Stock or sell, or fix a record date for the
issuance to all holders of its Common Stock of, rights, options or warrants
entitling the holders thereof to subscribe for or purchase its Common Stock (or
other securities convertible or exchangeable into or exercisable for its Common
Stock), in any such case, at a price per share (or having a conversion, exchange
or exercise price per share) that is less than the closing price per share of
Common Stock on AMEX, or on the principal national securities exchange on which
the Common Stock is listed or admitted to trading or, if not listed on AMEX or
traded on any such exchange, the fair market value per share of the Common Stock
as reasonably determined by the Board of Directors of the Company (the "Closing
Price") on the date of such issuance or sale or on such record date then,
immediately after the date of such issuance or sale or on such record date, the
number of shares of the Common Stock to be delivered upon exercise of each
Warrant shall be appropriately increased so that the registered holder
thereafter will be entitled to receive the number of shares of the Common Stock
determined by multiplying the number of shares of Common Stock such registered
holder would have been entitled to receive immediately before the date of such
issuance or sale or such record date by a fraction, the numerator of which will
be the number of shares of Common Stock outstanding (including, for this
purpose, all Common Stock issuable upon conversion of all convertible preferred
stock) on such date plus the number of additional shares of Common Stock offered
for subscription or purchase (or into which the convertible or exchangeable
securities or rights, options or warrants so offered are initially convertible
or exchangeable or exercisable, as the case may be) and the denominator of which
will be the number of shares of the Common Stock outstanding (including, for
this purpose, all shares of such Common Stock issuable upon conversion of all
convertible preferred stock) on such date plus the number of shares of Common
Stock that the aggregate offering price of the total number of shares so offered
for subscription or purchase (or the aggregate initial conversion price,
exchange price or exercise price of the convertible securities or exchangeable
securities or rights, options or warrants, as the case may be, so offered) would
purchase at such Closing Price, and the Applicable Exercise Price shall be
adjusted as provided below in Section 5.1(g). Shares of
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Common Stock and convertible preferred stock of the Company owned by or held for
the account of the Company shall not be deemed outstanding for the purpose of
any such computation. Such adjustment shall be made successively whenever such a
record date is fixed and, in the event that such rights or warrants are not so
issued, the Applicable Exercise Price shall again be adjusted to be the
Applicable Exercise Price which would then be in effect if such record date had
not been fixed.
(ii) If (other than in a dissolution or liquidation) the
Company shall, at any time after the date hereof and before the Exercise
Deadline, fix a record date for the distribution to all holders of its Common
Stock any shares of capital stock of such Company (other than its Common Stock)
or evidences of its indebtedness or assets (excluding cash dividends or
distributions paid from retained earnings of the Company) or rights or warrants
to subscribe for or purchase any of its securities (excluding those referred to
in paragraph (d)(i) above) (any of the foregoing being hereinafter in this
paragraph (d)(ii) called the "Property"), then in each such case, unless the
Company elects to reserve shares or other units of such Property for
distribution to the registered holder upon exercise of the Warrants of such
registered holder so that, in addition to the shares of the Company's Common
Stock to which such registered holder is entitled, such registered holder will
receive upon such exercise the amount and kind of such Property that such
registered holder would have received if the registered holder had, immediately
prior to the record date for the distribution of the Property, exercised the
Warrant, then the number of shares of the Company's Common Stock to be delivered
to such registered holder upon exercise of the Warrant shall be increased so
that the registered holder thereafter shall be entitled to receive the number of
shares of such Common Stock determined by multiplying the number of shares such
registered holder would have been entitled to receive immediately before such
record date had the registered holder exercised the Warrant immediately prior
thereto by a fraction, the numerator of which shall be the Closing Price per
share of such Common Stock on such record date plus the then fair market value
(as reasonably determined by the Board of Directors of the Company) of the
portion of the capital stock or assets or evidences of indebtedness so
distributed or of such rights or warrants applicable to one share of the Common
Stock and the denominator of which shall be the Closing Price of the Common
Stock, and the Applicable Exercise Price shall be adjusted as provided below in
Section 5.1(g). If a record date for such distribution is fixed and such
distribution is not made, the Applicable Exercise Price shall again be adjusted
to be the Applicable Exercise Price in effect immediately prior to such record
date.
(e) No Fractional Shares. No fractional shares of any Common
Stock or scrip shall be issued to any registered holder in connection with the
exercise of any Warrant. Instead of any fractional shares of its Common Stock
that would otherwise be issuable to such registered holder, the Company will pay
to such registered holder a cash adjustment in respect of such fractional
interest in an amount equal to that fractional interest of the then current
Closing Price per share of its Common Stock.
(f) Adjustment Carryovers. Notwithstanding any other provision
of this Article V, no adjustment shall be made to the number of shares of the
Common Stock to be delivered to the registered holder (or to the Applicable
Exercise Price) if such adjustment represents less than 1% of the number of
shares to be so delivered, but any lesser adjustment shall be carried forward
and shall be made at the time and together with the next subsequent adjustment
which, together with any adjustments so carried forward, shall amount to 1% or
more of the number of shares of the Company's Common Stock to be so delivered.
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(g) Exercise Price Adjustment. Whenever the number of shares
of Common Stock purchasable upon the exercise of each Warrant is adjusted, as
herein provided, the Applicable Exercise Price payable upon the exercise of each
Warrant shall be adjusted by multiplying such Applicable Exercise Price
immediately prior to such adjustment by a fraction of which the numerator shall
be the number of shares of Common Stock purchasable upon the exercise of the
Warrant immediately prior to such adjustment, and of which the denominator shall
be the number of shares of Common Stock purchasable immediately thereafter.
5.2. No Adjustment for Dividends. Except as provided in Section 5.1, no
adjustment in respect of any dividends shall be made during the term of any
Warrant or upon the exercise of any Warrant.
5.3. Other Adjustments. Notwithstanding anything to the contrary in
this Agreement, at its sole discretion, the Company may lower the Applicable
Exercise Price applicable to its Common Stock.
5.4. Notice of Adjustment. Whenever the Company adjusts the number of
Warrant Shares that may be purchased upon the exercise of the Warrants or the
Applicable Exercise Price as required by this Agreement, the Company shall
promptly mail by first class, postage prepaid, to each registered holder and the
Warrant Agent, notice of such adjustment or adjustments and a certificate of the
President, Chief Financial Officer or Treasurer of the Company setting forth the
number of shares of the Company's Common Stock purchasable upon the exercise of
each Warrant and the Applicable Exercise Price after such adjustment, setting
forth in reasonable detail the facts requiring such adjustment and setting forth
the computation by which such adjustment was made.
5.5. Notices of Corporate Action. In the event of
(a) the taking by the Company of a record of the holders of
any class of securities for the purpose of determining the holders thereof who
are entitled to receive any dividend or other distribution, or any right or
warrant to subscribe for, purchase or otherwise acquire any shares of stock of
any class or any other securities or property, or to receive any other right or
warrant, or
(b) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company or any
Material Event involving the Company, or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company, or
(d) any other event that would result in an adjustment
pursuant to this Article V of the Applicable Exercise Price with respect to the
Common Stock or the number of Warrant Shares that may be purchased upon exercise
of a Warrant, the Company will mail to each registered holder at the address
appearing in the register maintained by the Warrant Agent and to the Warrant
Agent a notice specifying (i) the date or expected date on which any such record
is to be taken for the purpose of such dividend, distribution or right and the
amount and character of any such dividend, distribution or right, (ii) the date
or expected date on which any
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such reorganization, reclassification, recapitalization, consolidation, merger,
transfer, dissolution, liquidation, winding-up or other event is to take place
and the time, if any, such time is to be fixed, as of which the holders of
record of the Company's Common Stock (or other securities) shall be entitled to
exchange their shares of such Common Stock (or other securities) for the
securities or other property deliverable upon such reorganization,
reclassification, recapitalization, consolidation, merger, transfer,
dissolution, liquidation, winding-up or other event and (iii) in the case of a
Material Event, to the extent known, the amount and type of consideration (or
the means of determining the consideration) the holders of record of the Common
Stock are entitled to receive. Such notice shall be mailed at least 10 days
prior to the date therein specified, in the case of any date referred to in the
foregoing subdivision (i), and at least 10 days prior to the date therein
specified, in the case of the date referred to in the foregoing subdivision
(ii). Notwithstanding anything to the contrary in this Section 5.5, with respect
to any transaction or other event pursuant to which the Company is required to
deliver to holders of Common Stock a Schedule 14D-9 (the "Schedule 14D-9")
pursuant to the rules and regulations under the Exchange Act the Company's
notice obligations to the registered holders of Warrants pursuant to this
Section 5.5 shall be limited to mailing to each registered holder of Warrants at
the address appearing in the register maintained by the Warrant Agent and to the
Warrant Agent a copy of the Schedule 14D-9 at the same time such Schedule 14D-9
is mailed to holders of Common Stock.
5.6. Notice of Redemption. Notice of any call for redemption shall be
given to the Warrant Agent by the Company upon not less than 30 days nor more
than 60 days prior to the date established for such redemption (the "Redemption
Date") and subject to Section 4.1 hereof, such notice shall be mailed to all
registered holders of Warrant Certificates by the Warrant Agent promptly after
the Company shall have given such notice to the Warrant Agent. Such notice of
redemption will specify the Redemption Date and the Redemption Price. The notice
will state that payment of the Redemption Price will be made by the Warrant
Agent upon presentation and surrender of the Warrant Certificates representing
such Warrants to the Warrant Agent at its Corporate Office, and will also state
that the right to exercise the Warrants will terminate at 5:00 p.m., New York
City time, on the business day immediately preceding the Redemption Date. The
Company will also make prompt public announcement of such redemption by news
release and by notice to AMEX or any national securities exchange on which the
Warrants are listed for trading.
5.7. Verification of Computations. Whenever the Applicable Exercise
Price for the Common Stock is adjusted as provided in this Article V, the
Company will promptly obtain a certificate of a firm of independent public
accountants of recognized standing selected by the Board of Directors (who may
be the regular auditors of the Company) setting forth the exercise price as so
adjusted and a brief statement of the facts accounting for such adjustment, and
will make available upon request a brief summary thereof to the holders of the
Warrant Certificates (which summary may be included in any notice of adjustment
required by Section 5.4 hereof if the Company so elects).
5.8. Effect of Failure to Give Notice. The failure to give any notice
required by this Article V or any defect therein shall not affect the legality
or validity of any distribution, right, warrant, consolidation, merger,
conveyance, transfer, dissolution, liquidation, winding-up or other event or the
vote upon any such action.
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5.9. Warrant Certificate Amendments. Irrespective of any adjustments
pursuant to this Article V, Warrant Certificates theretofore or thereafter
issued need not be amended or replaced but certificates thereafter issued shall
bear an appropriate legend or other notice of any adjustments.
ARTICLE VI
OTHER PROVISIONS RELATING
TO RIGHTS OF REGISTERED HOLDERS
OF UNIT CERTIFICATES AND WARRANT CERTIFICATES
6.1. Rights of Unit Holders. The registered holder of any Unit or Unit
Certificate shall, by virtue of such holder's beneficial ownership of the Common
Stock included in the Unit, be entitled to all rights of a stockholder of the
Company, including, without limitation, the right to vote, to receive dividends
and other distributions and to receive notice of, and to attend, meetings of
stockholders and any other proceedings of the Company.
6.2. Rights of Warrant Holders.
(a) The registered holder of any Warrant or Warrant
Certificate shall not, solely by virtue thereof, be entitled to any rights of a
stockholder of the Company, including, without limitation, the right to vote, to
receive dividends and other distributions, or to receive any notice of, or to
attend, meetings of stockholders or any other proceedings of the Company, until
such holder shall have exercised such Warrants and been issued shares of Common
Stock of the Company in accordance with the provisions hereof, in which case
such exercising holder shall be entitled only to the rights of a stockholder of
the Company for the Common Stock for which such Warrants were exercised.
(b) All rights of action in respect of this Agreement are
vested in the respective registered holders of the Warrant Certificates; and any
registered holder of any Warrant Certificate, without the consent of the Warrant
Agent or of the holder of any other Warrant Certificate, may, in such holder's
own behalf and for such holder's own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company to enforce, or
otherwise act in respect of, such holder's rights to exercise the Warrants
evidenced by the Warrant Certificate in the manner provided in such Warrant
Certificate and in this Agreement.
6.3. Lost, Stolen, Mutilated or Destroyed Unit Certificates or Warrant
Certificates. If any Unit Certificate or Warrant Certificate shall be mutilated,
lost, stolen or destroyed, the Company shall direct the Unit Agent or the
Warrant Agent, as the case may be, to execute and deliver, in exchange and
substitution for, and upon cancellation of a mutilated Unit Certificate or
Warrant Certificate, or in lieu of or in substitution for a lost, stolen or
destroyed Unit Certificate or Warrant Certificate, a new Unit Certificate or
Warrant Certificate for the number of Units or Warrants represented by the Unit
Certificate or Warrant Certificate so mutilated, lost, stolen or destroyed, but
only upon receipt of evidence of such loss, theft or destruction of such Unit
Certificate or Warrant Certificate, and of the ownership thereof, and
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indemnity, if requested, all satisfactory to the Company and the Unit Agent or
Warrant Agent, as the case may be. Applicants for such substitute Unit
Certificates or Warrant Certificates shall also comply with such other
reasonable regulations and pay such other reasonable charges incidental thereto
as the Company or the Unit Agent or the Warrant Agent may prescribe. Any such
new Unit Certificate or Warrant Certificate shall constitute an original
contractual obligation of the Company, whether or not the allegedly lost,
stolen, mutilated or destroyed Unit Certificate or Warrant Certificate shall be
at any time enforceable by anyone.
ARTICLE VII
TRANSFER AND REGISTRATION OF UNITS AND WARRANTS;
LISTING OF WARRANT SHARES
7.1. Sale of Units, Warrants and Warrant Shares. The Units and the
Warrants, and any interest in any of them, may be sold, assigned, pledged,
encumbered or in any other manner transferred or disposed of, in whole or in
part, only in accordance with Article VIII hereof and in compliance with
applicable United States federal and state securities laws and the terms and
conditions hereof.
7.2. Registration of Units, Warrants and Warrant Shares. The issuance
of the Units, the Common Stock and Warrants included in the Units and the
Warrant Shares have been registered under the Securities Act pursuant to the
Registration Statement. The Company covenants and agrees that from and after the
Separation Date:
(a) it will use all commercially reasonable efforts to either
(i) maintain the effectiveness of the Registration Statement through the
Exercise Deadline or until such time as no Warrants remain outstanding or (ii)
prepare and file with the SEC a registration statement and the prospectuses used
in connection therewith as may be necessary to keep such registration statement
with respect to the Warrant Shares effective from the Separation Date through
the Exercise Deadline or until such earlier time as no Warrants remain
outstanding;
(b) as expeditiously as possible, it will register or qualify
the Warrant Shares to be delivered upon exercise of the Warrants under the
securities or Blue Sky laws of each jurisdiction in which such registration or
qualification is necessary and use its best efforts to maintain all such
registrations or qualifications in effect from the Separation Date through the
Exercise Deadline or until such earlier time as no Warrants remain outstanding;
provided, that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take any
action which would subject it to general service of process in any jurisdiction
where it is not now so subject; and
(c) it will pay all expenses incurred by the Company in
complying with this Section 7.2, including, without limitation, (i) all
registration and filing fees, (ii) all printing expenses, (iii) all fees and
disbursements of counsel and independent public accountants, (iv) all NASD and
Blue Sky fees and expenses (including fees and expenses of counsel in connection
with any Blue Sky surveys), and (v) the entire expense of any special audits
incident to or required by any such registration.
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7.3. Listing of Warrant Shares on Securities Exchanges. The Company
will use its best efforts to list for quotation on AMEX, or such other
over-the-counter quotation system on which the Common Stock may at any time be
listed, or on any national securities exchange on which the Common Stock may at
any time be listed, the Warrant Shares, and will maintain such listing so long
as any other shares of Common Stock are so listed; and the Company shall use its
best efforts to so list on AMEX, or such other over-the-counter quotation
system, or each national securities exchange, and shall maintain such listing
of, any other shares of capital stock of the Company issuable upon the exercise
of the Warrants if and so long as any shares of capital stock of the same class
are traded on AMEX or such over-the-counter quotation system or listed on such
national securities exchange. Any such quotation or listing will be at the
Company's expense.
7.4. Availability of Information. Until three years after the Exercise
Deadline, the Company will comply with all applicable periodic public
information reporting requirements of the SEC to which it may from time to time
be subject.
ARTICLE VIII
SPLIT UP, COMBINATION, EXCHANGE, TRANSFER AND CANCELLATION
OF UNIT CERTIFICATES AND WARRANT CERTIFICATES
8.1. Split Up, Combination, Exchange and Transfer of Unit Certificates
and Warrant Certificates.
(a) Unit Certificates. Prior to the Separation Date and the
issuance of Warrant Certificates and Common Stock Certificates in exchange for
Unit Certificates pursuant to Section 2.7 hereof, Unit Certificates, subject to
the provisions of Section 8.2, may be split up, combined or exchanged for other
Unit Certificates representing a like aggregate number of Units or may be
transferred in whole or in part. Any holder desiring to split up, combine or
exchange a Unit Certificate or Unit Certificates shall make such request in
writing delivered to the Unit Agent at its Corporate Office prior to the
Separation Date and shall surrender the Unit Certificate or Unit Certificates so
to be split up, combined or exchanged at said office. Subject to any applicable
laws, rules or regulations restricting transferability, any restriction on
transferability that may appear on a Unit Certificate in accordance with the
terms hereof, or any "stop-transfer" instructions the Company may give to the
Unit Agent to implement any such restrictions (which instructions the Company is
expressly authorized to give), transfer of outstanding Unit Certificates may be
effected by the Unit Agent from time to time until the Separation Date upon the
books of the Company to be maintained by the Unit Agent for that purpose, upon a
surrender of the Unit Certificate to the Unit Agent at its Corporate Office,
with the assignment form set forth in the Unit Certificate duly executed and
with Signatures Guaranteed. Upon any such surrender for split up, combination,
exchange or transfer, the Unit Agent shall execute and deliver to the person
entitled thereto a Unit Certificate or Unit Certificates, an the case may be, as
so requested. The Unit Agent may require the holder to pay a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
split up, combination, exchange or transfer of Unit Certificates prior to the
issuance of any new Unit Certificate. On
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and subsequent to the Separation Date, the Unit Agent shall not record any split
up, combination, exchange or transfer of Unit Certificates.
(b) Warrant Certificates. Prior to the Separation Date, a
Warrant may not be divided or combined with other Warrants or exchanged,
assigned or transferred except as part of the Unit in which such Warrant is
included, and the Warrant Agent will not record an exchange, assignment or
transfer of a Warrant in the Warrant register except in connection with the
exchange, assignment or transfer of the Unit in which such Warrant is included.
On and after the Separation Date and the issuance of Warrant Certificates
pursuant to Section 2.7 hereof, Warrant Certificates, subject to the provisions
of section 8.2, may be split up, combined or exchanged for other Warrant
Certificates representing a like aggregate number of Warrants, or may be
transferred in whole or in part. Any holder desiring to split up, combine or
exchange a Warrant Certificate or Warrant Certificates on and after the
Separation Date shall make such request in writing delivered to the Warrant
Agent at its Corporate Office and shall surrender the Warrant Certificate or
Warrant Certificates so to be split up, combined or exchanged at said office.
Subject to any applicable laws, rules or regulations restricting
transferability, any restriction on transferability that may appear on a Warrant
Certificate in accordance with the terms hereof, or any "stop-transfer"
instructions the Company may give to the Warrant Agent to implement any such
restrictions (which instructions the Company is expressly authorized to give),
transfer of outstanding Warrant Certificates may be effected by the Warrant
Agent from time to time on and after the Separation Date upon the books of the
Company to be maintained by the Warrant Agent for that purpose, upon a surrender
of the Warrant Certificate to the Warrant Agent at its Corporate Office, with
the assignment form set forth in the Warrant Certificate duly executed and with
Signatures Guaranteed. Upon any such surrender for split up, combination,
exchange or transfer, the Warrant Agent shall execute and deliver to the person
entitled thereto a Warrant Certificate or Warrant Certificates, as the case may
be, as so requested. The Warrant Agent may require the holder to pay a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any split up, combination, exchange or transfer of Warrant
Certificates prior to the issuance of any new Warrant Certificate.
(c) Common Stock Certificates. Prior to the Separation Date,
Common Stock Certificates may not be divided or combined with other Common Stock
Certificates or exchanged, assigned or transferred except as part of the Unit in
which such Common Stock is included, and the Transfer Agent will not record an
exchange, assignment or transfer of shares of Common Stock in the Common Stock
Register except in connection with the exchange, assignment or transfer of the
Unit in which such Common Stock is included.
8.2. Cancellation of Unit Certificates and Warrant Certificates. Any
Unit Certificate or Warrant Certificate surrendered for split up, combination,
exchange or transfer, or purchased or otherwise acquired by the Company or, in
the case of Warrant Certificates, surrendered upon exercise of Warrants, shall
be cancelled and shall not be reissued by the Company; and, except as provided
(i) in Section 3.5, in case of the exercise of less than all of the Warrants
evidenced by a Warrant Certificate, or (ii) in Section 8.1, in case of a split
up, combination, exchange or transfer of the Units evidenced by a Unit
Certificate or Warrants evidenced by a Warrant Certificate, no Unit Certificate
or Warrant Certificate shall be issued hereunder in lieu of such canceled Unit
Certificate or Warrant Certificate. Any Unit Certificate
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or Warrant Certificate so cancelled shall be destroyed by the Unit Agent or
Warrant Agent, as the case may be, unless otherwise directed in writing by the
Company.
8.3. Agreement of Unit Certificate and Warrant Certificate Holders.
Every holder of a Unit Certificate and/or Warrant Certificate by accepting the
same consents and agrees with the Company and the Unit Agent and Warrant Agent
and with every other holder of a Unit Certificate and/or Warrant Certificate
that:
(a) transfer of the Unit Certificates and the Warrant
Certificates shall be registered on the books of the Company maintained for that
purpose by the Unit Agent and Warrant Agent only if surrendered at the Corporate
Office of the Unit Agent or Warrant Agent, as the case may be, duly endorsed or
accompanied by a proper instrument of transfer, with Signatures Guaranteed; and
(b) prior to due presentment for registration of transfer of a
Unit Certificate or a Warrant Certificate, the Company and the Unit Agent or the
Warrant Agent, as the case may be, may deem and treat the person in whose name
the Unit Certificate or Warrant Certificate is registered as the absolute owner
thereof and of the securities evidenced thereby (notwithstanding any notations
of ownership or writing on the Unit Certificates or Warrant Certificates made by
anyone other than the Company, the Unit Agent or the Warrant Agent) for the
purpose of any exercise thereof and for all other purposes, and neither the
Company, the Unit Agent nor the Warrant Agent shall be affected by any notice to
the contrary.
ARTICLE IX
PROVISIONS CONCERNING THE UNIT AGENT
AND THE WARRANT AGENT AND OTHER MATTERS
9.1. Payment of Taxes and Charges. The Company will from time to time
promptly pay to the Unit Agent and the Warrant Agent, or make provisions
satisfactory to the Unit Agent and the Warrant Agent for the payment of, all
taxes and charges that may be imposed by the United States or any state upon the
Company or the Unit Agent or the Warrant Agent in connection with the issuance
or delivery of (i) shares of Common Stock and Warrants upon surrender of the
Unit Certificates on and after the Separation Date pursuant to Section 2.7 and
(ii) shares of any Common Stock upon the exercise of any Warrants, but any
transfer taxes in connection with the issuance of Unit Certificates or Warrant
Certificates or Common Stock Certificates in any name other than that of the
registered holder of the Unit Certificate or Warrant Certificate surrendered
shall be paid by such registered holder; and, in such case, the Company shall
not be required to issue or deliver any Unit Certificate or Warrant Certificate
or Common Stock Certificate until such taxes shall have been paid or it has been
established to the Company's satisfaction that no tax is due.
9.2. Resignation or Removal of Unit Agent or Warrant Agent. The Unit
Agent or Warrant Agent may resign its duties and be discharged from all further
duties and liabilities hereunder after giving 30 days' notice in writing to the
Company, except that such shorter notice may be given as the Company shall, in
writing, accept as sufficient. Upon comparable notice to
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the Unit Agent or Warrant Agent, the Company may remove the Unit Agent or
Warrant Agent; provided, however, that in such event the Company shall appoint a
new Unit Agent or Warrant Agent, as hereinafter provided, and the removal of the
Unit Agent or Warrant Agent shall not be effective until a new Unit Agent or
Warrant Agent has been appointed and has accepted such appointment. If the
office of the Unit Agent or Warrant Agent becomes vacant by resignation or
incapacity to act or otherwise, the Company shall appoint in writing a new Unit
Agent or Warrant Agent, as the case may be. If the Company shall fail to make
such appointment within a period of 30 days after it has been notified in
writing of such resignation or incapacity by the resigning or incapacitated Unit
Agent or Warrant Agent or by the registered holder of any Unit Certificate or
Warrant Certificate, then the registered holder of any Unit Certificate or
Warrant Certificate may apply to any court of competent jurisdiction for the
appointment of a new Unit Agent or Warrant Agent, as the case may be. Any
successor Unit Agent or Warrant Agent, whether appointed by the Company or any
such court, shall be a registered transfer agent, bank or trust company in good
standing and incorporated under the United States banking laws or under the laws
of any state within the United States, having its Corporate Office within the
United States. Any new Unit Agent or Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to the former Unit Agent or Warrant Agent last
in office and to the Company an instrument accepting such appointment under
substantially the same terms and conditions as are contained herein and
thereupon such new Unit Agent or Warrant Agent, without any further act or deed,
shall become vested with the rights, powers, duties and responsibilities of the
Unit Agent or Warrant Agent and the former Unit Agent or Warrant Agent shall
cease to be the Unit Agent or Warrant Agent, as the case may be; but if for any
reason it becomes necessary or expedient to have the former Unit Agent or
Warrant Agent execute and deliver any further assurance, conveyance, act or
deed, the same shall be done at the expense of the Company and shall be legally
and validly executed and delivered by the former Unit Agent or Warrant Agent
promptly following the request therefor.
9.3. Notice of Appointment. Not later than the effective date of the
appointment of a new Unit Agent or Warrant Agent, the Company shall cause notice
thereof to be mailed to the former Unit Agent or Warrant Agent and the Transfer
Agent, and shall forthwith cause a copy of such notice to be mailed to each
registered holder of a Unit Certificate or Warrant Certificate. Failure to mail
such notice, or any defect contained therein, shall not affect the legality or
validity of the appointment of the successor Unit Agent or Warrant Agent.
9.4. Merger of Unit Agent or Warrant Agent. Any company into which the
Unit Agent or the Warrant Agent may be merged or with which it may be
consolidated, or any company resulting from any merger or consolidation to which
the Unit Agent or the Warrant Agent shall be a party, shall be the successor
Unit Agent or the Warrant Agent under this Agreement without further act,
provided that such company would be eligible for appointment as a successor Unit
Agent or Warrant Agent under the provisions of Section 9.2 hereof. Any such
successor Unit Agent or Warrant Agent may adopt the prior countersignature of
any predecessor Unit Agent or Warrant Agent and distribute Unit Certificates or
Warrant Certificates countersigned but not distributed by such predecessor Unit
Agent or Warrant Agent, or may countersign the Unit Certificates or Warrant
Certificates in its own name.
9.5. Company Responsibilities. The Company agrees that it shall (i) pay
the Unit Agent and the Warrant Agent reasonable remuneration for its services as
the Unit Agent
19
23
and the Warrant Agent hereunder in accordance with the fee schedule provided
concurrently herewith to the Company and will reimburse the Unit Agent and the
Warrant Agent upon demand for all expenses, advances and expenditures that the
Unit Agent and the Warrant Agent may reasonably incur in the execution of its
duties hereunder (including reasonable fees and expenses of its counsel), (ii)
provide the Warrant Agent, upon request, with sufficient funds to pay any cash
due in lieu of fractional shares pursuant to Section 5.1(e) upon exercise of
Warrants and (iii) perform, execute, acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all further and other acts,
instruments and assurances as may reasonably be required by the Unit Agent or
the Warrant Agent for the carrying out or performing by the Unit Agent or the
Warrant Agent of the provisions of this Agreement.
9.6. Certification for the Benefit of Unit Agent or Warrant Agent.
Whenever in the performance of its duties under this Agreement the Unit Agent or
the Warrant Agent shall deem it necessary or desirable that any matter be proved
or established or that any instructions with respect to the performance of its
duties hereunder be given by the Company prior to taking or suffering any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and
established, or such instructions may be given, by a certificate or instrument
signed by the Chairman, the Chief Executive Officer, the President, a Vice
President, the Secretary or the Treasurer of the Company and delivered to the
Unit Agent or the Warrant Agent. Such certificate or instrument may be relied
upon by the Unit Agent or the Warrant Agent for any action taken or suffered in
good faith by it under the provisions of this Agreement; but in its discretion
the Unit Agent or the Warrant Agent may in lieu thereof accept other evidence of
such matter or may require such further or additional evidence as it may deem
reasonable.
9.7. Books and Records. The Unit Agent and the Warrant Agent shall
maintain the Company's books and records for registration of holders and
registration of transfer of the Unit Certificates and the Warrant Certificates
issued hereunder. Such books and records shall show the names and addresses of
the respective holders of the Unit Certificates and the Warrant Certificates,
the number of shares of Common Stock and the Warrants evidenced on its face by
each Unit Certificate and, in the case of Warrants, each Warrant Certificate and
the date of each Unit Certificate and Warrant Certificate.
9.8. Liability of Unit Agent and Warrant Agent. The Unit Agent and the
Warrant Agent shall be liable hereunder for its own negligence or willful
misconduct. The Unit Agent and the Warrant Agent shall act hereunder solely as
an agent for the Company and its duties shall be determined solely by the
provisions hereof. Neither the Unit Agent nor the Warrant Agent shall be liable
for or by reason of any of the statements of fact or recitals contained in this
Agreement or in the Unit Certificates or the Warrant Certificates (except its
respective countersignature thereof) 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. Neither the Unit Agent nor the Warrant Agent will incur any
liability or responsibility to the Company or to any holder of any Unit
Certificate or Warrant Certificate for any action taken, or any failure to take
action, in reliance on any notice, resolution, waiver, consent, order,
certificate or other paper, document or instrument reasonably believed by the
Unit Agent or the Warrant Agent to be genuine and to have been signed, sent or
presented by the proper party or parties. Neither the Unit Agent nor the Warrant
Agent shall be under any responsibility in respect of the validity of
20
24
this Agreement or the execution and delivery hereof by the Company or in respect
of the validity or execution of any Unit Certificate or Warrant Certificate
(except its respective 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 Unit Certificate or Warrant Certificate; nor shall it be
responsible for the making of any adjustment required under the provisions of
Article V hereof or responsible for the manner, method or amount of any such
adjustment or the facts that would require any such adjustment; nor shall it by
any act hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any shares of Common Stock or other securities
to be issued pursuant to this Agreement or any Unit Certificate or Warrant
Certificate or as to whether any shares of Common Stock or other securities
will, when issued, be validly authorized and issued and fully paid and
nonassessable.
9.9. Use of Attorneys, Agents and Employees. The Unit Agent and 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 duly
authorized attorneys, agents or employees.
9.10. Indemnification. The Company agrees to indemnify the Unit Agent
and the Warrant Agent and save each of them harmless against any and all losses,
expenses or liabilities, including judgments, costs and reasonable counsel fees
arising out of or in connection with its respective agency under this Agreement,
except as a result of the negligence or willful misconduct of the Unit Agent or
the Warrant Agent, as the case may be.
9.11. Acceptance of Agency. Each of the Unit Agent and the Warrant
Agent hereby accepts the agency established by this Agreement and agrees to
perform the same upon the terms and conditions herein set forth.
9.12. Changes to Agreement. The Unit Agent and the Warrant Agent may,
without the consent or concurrence of any registered holder of a Unit
Certificate or Warrant Certificate, by supplemental agreement or otherwise, join
with the Company in making any changes or corrections in this Agreement that
they shall have been advised by counsel (i) are required to cure any ambiguity
or to correct any defective or inconsistent provision or clerical omission or
mistake or manifest error herein contained, (ii) add to the covenants and
agreements of the Company or the Unit Agent or the Warrant Agent in this
Agreement such further covenants and agreements thereafter to be observed or
(iii) result in the surrender of any right or power reserved to or conferred
upon the Company, the Unit Agent or the Warrant Agent in this Agreement, but
which changes or corrections do not or will not adversely affect, alter or
change the rights, privileges or immunities of the registered holders of Unit
Certificates or Warrant Certificates; provided, however, that this Agreement
shall not otherwise be modified, supplemented or altered in any respect except
with the consent in writing of the holders of Warrant Certificates representing
not less than 50% of the Warrants then outstanding (or, if prior to the
Separation Date, the registered holders of Unit Certificates representing not
less than 50% of the Units then outstanding); and provided further, that no
change in the number or nature of the securities purchasable upon the exercise
of any Warrant, or increase the Applicable Exercise Price therefor, or the
acceleration of the Exercise Deadline shall be made without the consent in
writing of the registered holder of the Warrant Certificate representing such
Warrant (or, if prior to the Separation Date, the holder of the Unit Certificate
representing such Warrant), other than
21
25
such changes as are specifically prescribed by this Agreement as originally
executed or are made in compliance with applicable law.
9.13. Assignment. All the covenants and provisions of this Agreement by
or for the benefit of the Company, the Unit Agent or the Warrant Agent shall
bind and inure to the benefit of their respective successors and assigns.
9.14. Successor to Company. The Company will not merge or consolidate
with or into any other corporation unless the corporation resulting from such
merger or consolidation (if not the Company) shall expressly assume, by
supplemental agreement reasonably satisfactory in form and substance to the Unit
Agent and the Warrant Agent and delivered to the Unit Agent and the Warrant
Agent, the due and punctual performance and observance of each and every
covenant and condition of this Agreement to be performed and observed by the
Company. A sale of all or substantially all of the assets of the Company for a
consideration (apart from assumption of obligations) consisting primarily of
securities shall be deemed a consolidation or merger for the foregoing purposes.
9.15. Notices. Any notice or demand required by this Agreement to be
given or made by the Unit Agent or the Warrant Agent or by the registered holder
of any Unit Certificate or Warrant Certificate to or on the Company shall be
sufficiently given or made if sent by first-class or registered mail, postage
prepaid, addressed (until another address is filed in writing with the Unit
Agent and the Warrant Agent by the Company) to the Company as follows:
Anthra Pharmaceuticals, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: President
with a copy to:
Xxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Any notice or demand required by this Agreement to be given or made by the
registered holder of any Unit Certificate or Warrant Certificate or by the
Company to or on the Unit Agent, the Warrant Agent or the Transfer Agent shall
be sufficiently given or made if sent by first-class or registered mail, postage
prepaid, addressed (until another address is filed in writing with the Company
by the Unit Agent, the Warrant Agent or the Transfer Agent), as follows:
American Stock Transfer & Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, XX 00000
Attention: Executive Vice President
22
26
Any notice or demand required by this Agreement to be given or made by the
Company, the Unit Agent, the Warrant Agent or the Transfer Agent to or on the
registered holder of any Unit Certificate or Warrant Certificate shall be
sufficiently given or made, whether or not such holder receives the notice, if
sent by first-class or registered mail, postage prepaid, addressed to such
registered holder at the last address of such holder as shown on the books of
the Company maintained by the Unit Agent, the Warrant Agent or the Transfer
Agent. Otherwise such notice or demand shall be deemed given when received by
the party entitled thereto.
9.16. Defects in Notice. Failure to file any certificate or notice or
to mail any notice, or any defect in any certificate or notice pursuant to this
Agreement, shall not affect in any way the rights of any registered holder of a
Unit Certificate or Warrant Certificate or the legality or validity of any
adjustment made pursuant to Article V hereof, or any transaction giving rise to
any such adjustment, or the legality or validity of any action taken or to be
taken by the Company.
9.17. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without reference to
principles of conflicts of laws.
9.18. Standing. Nothing in this Agreement expressed and nothing that
may be implied from any of the provisions hereof is intended, or shall be
construed, to confer upon, or give to, any person or corporation other than the
Company, the Unit Agent, the Warrant Agent, the Transfer Agent and the
registered holders of the Unit Certificates and the Warrant Certificates any
right, remedy or claim under or by reason of this Agreement or of any covenant,
condition, stipulation, promise or agreement contained herein; and all
covenants, conditions, stipulations, promises and agreements contained in this
Agreement shall be for the sole and exclusive benefit of the Company, the Unit
Agent, the Warrant Agent and the Transfer Agent and their respective successors
and assigns, and the registered holders of Unit Certificates and Warrant
Certificates.
9.19. Headings. The descriptive headings of the articles and sections
of this Agreement are inserted for convenience of reference only and shall not
control or affect the meaning or construction of any of the provisions hereof.
9.20. Counterparts. This Agreement may be executed in counterparts,
each of which so executed shall be deemed to be an original and both of which
shall together constitute but one and the same instrument.
9.21. Conflict of Interest. The Unit Agent and the Warrant Agent and
any shareholder, director, officer or employee of the Unit Agent and the Warrant
Agent may buy, sell or deal in any of the Unit Certificates or the Warrant
Certificates or other securities of the Company, may be pecuniarily interested
in any transaction in which the Company may be interested, or may contract with
or lend money to the Company or otherwise act as fully and freely as though the
Unit Agent or the Warrant Agent were not Unit Agent or Warrant Agent under this
Agreement. Nothing herein shall preclude the Unit Agent or the Warrant Agent
from acting in any other capacity for the Company, including, without
limitation, as trustee under any
23
27
indenture or as transfer agent for the Units, Common Stock or any other
securities of the Company, or for any other legal entity.
9.22. Availability of the Agreement. The Unit Agent and the Warrant
Agent shall keep copies of this Agreement available for inspection by holders of
Units, Unit Certificates, Warrants and Warrant Certificates during normal
business hours at its Corporate Office. Copies of this Agreement may be obtained
without charge upon written request to the Company at its address set forth in
Section 9.15.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above written.
ANTHRA PHARMACEUTICALS, INC.
By:
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
AMERICAN STOCK TRANSFER & TRUST
COMPANY, as Unit Agent, Warrant Agent
and Transfer Agent
By:
--------------------------------------
Name:
Title:
24
28
Exhibit A
COUNTERSIGNED AND REGISTERED:
AMERICAN STOCK TRANSFER & TRUST COMPANY
Unit Agent
By: ____________________________________
Authorized Signature
NUMBER UNITS
ANTHRA PHARMACEUTICALS, INC.
Incorporated under the Laws of the State of Delaware
SEE REVERSE FOR
CERTAIN DEFINITIONS
CUSIP________________
THIS CERTIFIES THAT, FOR VALUE RECEIVED
(the "Registered Holder") is the owner of the number of fully-paid and
non-assessable Units specified above, transferable only by the Registered Holder
thereof in person or by his or her duly authorized attorney, on surrender of
this Unit Certificate properly endorsed.
Each Unit consists of one share of common stock, par value $.01 per
share (the "Common Stock"), of Anthra Pharmaceuticals, Inc. ("Anthra" or the
"Company") and one Class A redeemable Common Stock purchase warrant (the
"Warrant"), each Warrant entitling the holder thereof to purchase one share of
Common Stock at an exercise price of $6.00 per share, subject to adjustment in
certain events, exercisable at any time during the period beginning on
__________ __, 1999 or on such earlier date as determined by the Underwriter
(the "Separation Date") and ending on __________ __, 2003 (unless earlier
redeemed). The terms of this Unit and the Warrants are governed by a Unit and
Warrant Agreement, dated as of September __, 1998 (the "Unit and Warrant
Agreement"), between the Company and American Stock Transfer & Trust Company, as
Unit Agent, Warrant Agent and Transfer Agent, and are subject to the terms and
provisions contained therein. The Registered Holder of this Unit Certificate
consents to all of the terms and provisions contained in the Unit and Warrant
Agreement by acceptance hereof. Copies of the Unit and Warrant Agreement are on
file at the office of the Unit Agent at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000, and are available to any holder on written request without cost.
This certificate is not valid unless countersigned and registered by
the Unit Agent.
The Warrants and shares of Common Stock of the Company represented by
this Unit Certificate shall not be separately transferable until the Separation
Date. On and after the Separation Date, the Registered Holder of this Unit
Certificate may surrender it to the Unit Agent at its Corporate Office specified
in the Unit and Warrant Agreement in exchange for the Warrants and shares of
Common Stock represented hereby. The Units represented by this Unit Certificate
shall not be transferable on and subsequent to the Separation Date. On and
subsequent to the Separation Date, the Warrants and the shares of Common Stock
represented by this Unit Certificate may only be separately transferred.
IN WITNESS WHEREOF, the Company has caused this Unit Certificate to be
duly executed, manually or by facsimile, by two of its officers thereunto duly
authorized and a facsimile of the corporate seal to be imprinted hereon.
Dated: ______________________________ ANTHRA PHARMACEUTICALS, INC.
[CORPORATE SEAL] By: ____________________________________
Chief Executive Officer
By: ____________________________________
Treasurer
29
[BACK]
ANTHRA PHARMACEUTICALS, INC.
This certificate certifies that for value received the Registered
Holder hereby is entitled, at any time commencing on the Separation Date, to
exchange each Unit represented by this Unit Certificate for Common Stock
Certificates representing one share of Common Stock for each Unit represented by
this Unit Certificate and Warrant Certificates representing one Warrant for each
Unit represented by this Unit Certificate upon surrender of this Unit
Certificate to the Unit Agent at its Corporate Office specified in the Unit and
Warrant Agreement together with any documentation required by such Unit Agent.
REFERENCE IS MADE TO THE UNIT AND WARRANT AGREEMENT REFERRED TO ON THE
FRONT SIDE HEREOF AND THE PROVISIONS OF SUCH UNIT AND WARRANT AGREEMENT SHALL
FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH ON THIS
CERTIFICATE.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - _______________ Custodian
TEN ENT - as tenants by the entirety (Cust)
JT TEN - as joint tenants with right _______________
of survivorship and not as (Minor)
tenants in common
COM PROP - as community property under Uniform Gifts to Minors
Act
_______________
(State)
UNIF TRF MIN ACT - _______________ Custodian
(Cust)
_______________
(Minor)
under Uniform Transfers to
Minors Act
________________
(State)
Additional abbreviations may also be used though not in the above list.
30
[BACK CONTINUED]
For Value Received, _________________________________ hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING ZIP CODE OR ASSIGNEE)
Units represented by the within Certificate, and do(es) hereby irrevocably
constitute and appoint
Attorney to transfer the said Unit(s) on the books of the within named Company
with full power of substitution in the premises.
Dated:__________________________
NOTICE:_____________________________________
THE SIGNATURE TO THIS ASSIGNMENT
MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THIS
CERTIFICATE IN EVERY PARTICULAR
WITHOUT ALTERATION OR ENLARGEMENT
OR ANY CHANGE WHATEVER.
IMPORTANT: ALL SIGNATURES MUST BE GUARANTEED IN THE SPACE PROVIDED
BELOW BY A FIRM THAT IS A MEMBER OF A NATIONAL SECURITIES
EXCHANGE OR OF THE NATIONAL ASSOCIATION OF SECURITIES
DEALERS, INC., BY A COMMERCIAL BANK OR TRUST COMPANY
LOCATED IN THE UNITED STATES OR BY ANY OTHER ELIGIBLE
GUARANTOR INSTITUTION WHICH IS A PARTICIPANT IN A
SIGNATURE GUARANTEE PROGRAM (AS SUCH TERMS ARE DEFINED IN
REG. 240.17Ad-15 UNDER THE SECURITIES EXCHANGE ACT OF
1934, AS AMENDED), ACCEPTABLE TO THE UNIT AGENT.
SIGNATURE GUARANTEE
Name:
(Please Print)
By:
Title:
31
Exhibit B
[FORM OF WARRANT CERTIFICATE]
No. ____
Certificate for ___ Warrants
NOT EXERCISABLE BEFORE 9:30 A.M., NEW YORK CITY TIME, ON
__________ __, 1999 OR ON SUCH EARLIER DATE WITH THE PRIOR
WRITTEN CONSENT OF THE UNDERWRITER OR AFTER 5:00 P.M., NEW YORK
CITY TIME, ON __________ __, 2004, SUBJECT TO EARLIER REDEMPTION
AS DESCRIBED HEREIN
ANTHRA PHARMACEUTICALS, INC.
CLASS A COMMON STOCK PURCHASE WARRANT CERTIFICATE
THIS CERTIFIES THAT, FOR VALUE RECEIVED:__________________
or registered assigns is the registered holder (the "Registered Holder") of the
number of Warrants set forth above. Each Warrant initially entitles the holder
to purchase, subject to the terms and conditions set forth in this Warrant
Certificate and the Unit and Warrant Agreement, dated as of September __, 1998,
among the Company (as defined below) and American Stock Transfer & Trust
Company, as Unit Agent, Warrant Agent and Transfer Agent (the "Unit and Warrant
Agreement"), one fully paid and nonassessable share of common stock, par value
$.01 per share (the "Common Stock"), of Anthra Pharmaceuticals, Inc., a Delaware
corporation ("Anthra" or the "Company"), at an initial exercise price (the
"Exercise Price") of $6.00 per share, subject to adjustment pursuant to the Unit
and Warrant Agreement. This Warrant may be exercised at any time between
__________ __, 1999 or on such earlier date as determined by the Underwriter
(the "Separation Date") and the Exercise Deadline (as hereinafter defined), by
surrendering this Warrant Certificate, with the form of election to purchase set
forth hereon duly executed, at the office maintained for that purpose pursuant
to the Unit and Warrant Agreement by American Stock Transfer & Trust Company, or
its successor as warrant agent (any such warrant agent being herein called the
"Warrant Agent"), and by paying in full the applicable exercise price for the
Common Stock being acquired (the "Applicable Exercise Price"), plus transfer
taxes, if any. Payment of the Applicable Exercise Price shall be made in United
States currency, by certified check or money order payable to the order of the
Company.
The Warrants are subject to redemption by the Company upon 30
days' prior notice at a redemption price of $.10 per Warrant (the "Redemption
Price"), at any time on or after the fifteenth month following the date of the
prospectus filed as part of the Registration Statement (as defined in the Unit
and Warrant Agreement), provided that (i) the last sales price of the Common
Stock as reported by the American Stock Exchange (or such exchange on which the
Common Stock is then traded) for 20 consecutive trading days ending within ten
days of the date of the notice of redemption is at least $9.00 and (ii) there is
a current registration statement covering the resale of the underlying shares
B-1
32
of Common Stock. Notice of such redemption (the "Redemption Notice") must be
given by the Company to the Warrant Agent pursuant to Section 5.6 of the Unit
and Warrant Agreement no later than 15 days following the end of such 20-day
period.
No Warrant may be exercised prior to the Separation Date or
after 5:00 p.m., New York City time, on the earlier to occur of (i) __________
__, 2003 or (ii) the business day immediately preceding the date established for
redemption in the Redemption Notice (the "Exercise Deadline"). All Warrants
evidenced hereby shall thereafter become void.
On and after the Separation Date and prior to the Exercise
Deadline, subject to any applicable laws, rules or regulations restricting
transferability and to any restriction on transferability that may appear on
this Warrant Certificate in accordance with the terms of the Unit and Warrant
Agreement, the Registered Holder shall be entitled to transfer this Warrant
Certificate, in whole or in part, upon surrender of this Warrant Certificate at
the office of the Warrant Agent maintained for that purpose with the form of
assignment set forth hereon duly executed, with a medallion or other acceptable
signature guarantee by a member firm of a national securities exchange, a
commercial bank or a trust company located in the United States or a member of
the National Association of Securities Dealers, Inc., or other eligible
guarantor institution which is a participant in a medallion signature guarantee
program or a signature guarantee program (as such terms are defined in Reg.
240.17Ad-15 under the Securities Exchange Act of 1934, as amended) acceptable to
the Warrant Agent. Upon any such transfer, a new Warrant Certificate or Warrant
Certificates representing the same aggregate number of Warrants will be issued
in accordance with instructions in the form of assignment.
Upon the exercise of less than all of the Warrants evidenced
by this Warrant Certificate, there shall be issued to the Registered Holder a
new Warrant Certificate in respect of the Warrants not exercised.
Prior to the Exercise Deadline, the Registered Holder shall be
entitled to exchange this Warrant Certificate, with or without other Warrant
Certificates, for another Warrant Certificate or Warrant Certificates of the
same aggregate number of Warrants, upon surrender of this Warrant Certificate at
the office maintained for such purpose by the Warrant Agent.
Upon certain events provided for in the Unit and Warrant
Agreement, the Applicable Exercise Price, the number of shares of Common Stock
issuable upon the exercise of each Warrant and the Redemption Trigger Price are
required to be adjusted.
No fractional shares will be issued upon the exercise of
Warrants. As to any fraction of a share which the registered holder of one or
more Warrant Certificates, the rights under which are exercised in the same
transaction, would otherwise be entitled to purchase upon such exercise, the
Company shall pay the cash value thereof determined as provided in the Unit and
Warrant Agreement.
This Warrant Certificate is issued under and in accordance
with the Unit and Warrant Agreement and is subject to the terms and provisions
contained in said Unit and Warrant Agreement, to all of which terms and
provisions the Registered Holder consents by acceptance hereof.
B-2
33
This Warrant Certificate shall not entitle the Registered
Holder to any of the rights of a stockholder of the Company, including, without
limitation, the right to vote, to receive dividends and other distributions, or
to attend or receive any notice of meetings of stockholders or any other
proceedings of the Company.
This Warrant Certificate shall not be valid for any purpose
unless and until it shall have been countersigned by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed under its facsimile Corporate Seal.
ANTHRA PHARMACEUTICALS, INC.
By: ________________________________
Name:
Title:
Seal Attest:
Countersigned AMERICAN STOCK TRANSFER & TRUST
COMPANY, as Warrant Agent
Dated:___________________ By: ________________________________
Name:
Title:
B-3
34
[FORM OF ELECTION TO PURCHASE]
The undersigned hereby irrevocably elects to exercise ____ of
the Warrants represented by this Warrant Certificate and to purchase the shares
of Common Stock issuable upon the exercise of said Warrants, and requests that
certificates for such shares be issued and delivered as follows:
ISSUE TO:_______________________________________________________________________
(NAME)
_______________________________________________________________________
(ADDRESS, INCLUDING ZIP CODE)
_______________________________________________________________________
(SOCIAL SECURITY OR OTHER TAX IDENTIFYING NUMBER)
DELIVER TO:_____________________________________________________________________
(NAME)
_____________________________________________________________________
(ADDRESS, INCLUDING ZIP CODE)
If the number of Warrants hereby exercised is less than all
the Warrants represented by this Warrant Certificate, the undersigned requests
that a new Warrant Certificate representing the number of full Warrants not
exercised be issued and delivered as set forth above.
In full payment of the purchase price with respect to the
Warrants exercised and transfer taxes, if any, the undersigned hereby tenders
payment of $______ by certified check or money order payable in United States
currency to the order of the Company for the number of Shares of Common Stock
for which the Warrant in being exercised.
Dated:___________________
________________________________ _______________________________
(Insert Social Security or other (Signature of registered holder)
identifying number(s) of holder(s))
______________________________
(Signature of registered holder,
if co-owned)
NOTE: Signature must conform in all
respects to name of holder as specified on
the face of the Warrant Certificate
Signature Guaranteed:
____________________________
35
[FORM OF WARRANT ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto the Assignee named below all of the rights of the undersigned
represented by the within Warrant Certificate, with respect to the number of
Warrants set forth below:
Name of Assignee Address No. of Warrants
and does hereby irrevocably constitute and appoint ___________________ to make
such transfer on the books of Anthra Pharmaceuticals, Inc. maintained for that
purpose, with full power of substitution in the premises.
Dated:___________________, 19__
_______________________________ ________________________________
(Insert Social Security or other (Signature of Assignee)
identifying number(s) of holder(s))
________________________________
(Signature of Assignee,
if co-owned)
NOTE: Signature must conform in all
respects with the name of the
holder as specified on the face of
the Warrant Certificate.
Signature(s) Guaranteed:
__________________________
