Exhibit 10.51
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR
EXEMPTION FROM REGISTRATION UNDER THE FOREGOING LAWS.
SUBJECT TO THE PROVISIONS OF SECTION 10 HEREOF, THIS WARRANT SHALL BE VOID AFTER
5:00 P.M. EASTERN TIME ON JULY 7, 2008 (THE "EXPIRATION DATE").
No. _____
ANTARES PHARMA, INC
WARRANT TO PURCHASE _______ SHARES OF
COMMON STOCK, PAR VALUE $0.01 PER SHARE
FOR VALUE RECEIVED, SDS MERCHANT FUND, L.P. ("Warrantholder"), is
entitled to purchase, subject to the provisions of this Warrant, from Antares
Pharma, Inc. a Minnesota corporation ("Company"), at any time not later than
5:00 P.M., Eastern time, on the Expiration Date (as defined above), at an
exercise price per share equal to $1.25 (the exercise price in effect being
herein called the "Warrant Price"), _______ shares ("Warrant Shares") of the
Company's Common Stock, par value $0.01 per share ("Common Stock"). The number
of Warrant Shares purchasable upon exercise of this Warrant and the Warrant
Price shall be subject to adjustment from time to time as described herein.
Section 1. Registration. The Company shall maintain books for the
transfer and registration of the Warrant. Upon the initial issuance of this
Warrant, the Company shall issue and register the Warrant in the name of the
Warrantholder.
Section 2. Transfers. As provided herein, this Warrant may be
transferred only pursuant to a registration statement filed under the Securities
Act of 1933, as amended ("Securities Act"), or an exemption from such
registration. Subject to such restrictions, the Company shall transfer this
Warrant from time to time upon the books to be maintained by the Company for
that purpose, upon surrender thereof for transfer properly endorsed or
accompanied by appropriate instructions for transfer and such other documents as
may be reasonably required by the Company, including, if required by the
Company, an opinion of its counsel to the effect that such transfer is exempt
from the registration requirements of the Securities Act, to establish that such
transfer is being made in accordance with the terms hereof, and a new Warrant
shall be issued to the transferee and the surrendered Warrant shall be canceled
by the Company.
Section 3. Exercise of Warrant.
(a) Subject to the provisions hereof, the Warrantholder may
exercise this Warrant in whole or in part at any time prior to its expiration
upon surrender of the Warrant, together with delivery of the duly executed
Warrant exercise form attached hereto as Appendix A (the "Exercise Agreement")
and payment by cash, certified check or wire transfer of funds for the aggregate
Warrant Price for that number of Warrant Shares then being purchased, to the
Company during normal business hours on any business day at the Company's
principal executive offices (or such other office or agency of the Company as it
may designate by notice to the holder hereof). The Warrant Shares so purchased
shall be deemed to be issued to the holder hereof or such holder's designee, as
the record owner of such shares, as of the close of business on the date on
which this Warrant shall have been surrendered (or evidence of loss, theft or
destruction thereof and security or indemnity satisfactory to the Company), the
Warrant Price shall have been paid and the completed Exercise Agreement shall
have been delivered. Certificates for the Warrant Shares so purchased,
representing the aggregate number of shares specified in the Exercise Agreement,
shall be delivered to the holder hereof within a reasonable time, not exceeding
three (3) business days, after this Warrant shall have been so exercised. The
certificates so delivered shall be in such denominations as may be requested by
the holder hereof and shall be registered in the name of such holder or such
other name as shall be designated by such holder. If this Warrant shall have
been exercised only in part, then, unless this Warrant has expired, the Company
shall, at its expense, at the time of delivery of such certificates, deliver to
the holder a new Warrant representing the number of shares with respect to which
this Warrant shall not then have been exercised. As used herein, "business day"
means a day, other than a Saturday or Sunday, on which banks in New York City
are open for the general transaction of business.
(b) Unless and until permitted by the applicable rules and
regulations of the principal securities market on which the Common Stock is then
listed or traded, in no event shall the Company issue upon exercise of this
Warrant more than the maximum number of shares of Common Stock that the Company
can issue pursuant to any rule of the principal securities market on which the
Common Stock is then traded, which, as of the date hereof shall be _______
shares (the "Maximum Share Amount") (which is 19.99% of the total shares
outstanding on the date hereof, less the number of shares of Common Stock issued
to Xmark and SDS pursuant to that certain Purchase Agreement, of even date
herewith, by and among the Company and the Investors named therein, the
"Purchase Agreement"), subject to equitable adjustment from time to time for
stock splits, stock dividends, combinations, capital reorganizations and similar
events relating to the Common Stock occurring after the date hereof; provided,
however, the foregoing limitation shall terminate if, as and when Shareholder
Approval (as defined below) shall have occurred. The Company will use its best
efforts to seek and obtain Shareholder Approval (or obtain such other relief as
will allow conversions hereunder in excess of the Maximum Share Amount) as soon
as possible (but in any event within ninety (90) days from the date of issuance
of this Warrant). As used herein, "Shareholder Approval" means approval by the
shareholders of the Company to authorize the issuance of the full number of
shares of Common Stock which would be issuable upon full exercise or conversion
of this Warrant and the other warrants issued in connection herewith but for the
Maximum Share Amount limitation herein.
(c) Notwithstanding anything herein to the contrary, in no event
shall the Warrantholder be entitled to exercise any portion of this Warrant in
excess of that portion of this Warrant upon exercise of which the sum of (1) the
number of shares of Common Stock beneficially owned by the Warrantholder and its
Affiliates (other than shares of Common Stock which may be deemed beneficially
owned through the ownership of the unexercised portion of the Warrant or the
unexercised or unconverted portion of any other security of the Warrantholder
subject to a limitation on conversion analogous to the limitations contained
herein) and (2) the number of shares of Common Stock issuable upon the exercise
of the portion of this Warrant with respect to which the determination of this
proviso is being made, would result in beneficial ownership by the Warrantholder
and its Affiliates of more than 9.99% of the then outstanding shares of Common
Stock. As used herein, the term "Affiliate" means any person or entity that,
directly or indirectly through one or more intermediaries, controls or is
controlled by or is under common control with a person or entity, as such terms
are used in and construed under Rule 144 under the Securities Act. For purposes
of the proviso to the immediately preceding sentence, beneficial ownership shall
be determined in accordance with Section 13(d) of the Securities Exchange Act of
1934, as amended, and Regulations 13D-G thereunder, except as otherwise provided
in clause (1) of such proviso. The Warrantholder may waive the limitations set
forth herein by sixty-one (61) days written notice to the Company.
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Section 4. Compliance with the Securities Act of 1933. The Company
may cause the legend set forth on the first page of this Warrant to be set forth
on each Warrant or similar legend on any security issued or issuable upon
exercise of this Warrant, unless counsel for the Company is of the opinion as to
any such security that such legend is unnecessary.
Section 5. Payment of Taxes. The Company will pay any documentary
stamp taxes attributable to the initial issuance of Warrant Shares issuable upon
the exercise of the Warrant; provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issuance or delivery of any certificates for Warrant Shares in a
name other than that of the registered holder of this Warrant in respect of
which such shares are issued, and in such case, the Company shall not be
required to issue or deliver any certificate for Warrant Shares or any Warrant
until the person requesting the same has paid to the Company the amount of such
tax or has established to the Company's reasonable satisfaction that such tax
has been paid. The holder shall be responsible for income taxes due under
federal, state or other law, if any such tax is due.
Section 6. Mutilated or Missing Warrants. In case this Warrant
shall be mutilated, lost, stolen, or destroyed, the Company shall issue in
exchange and substitution of and upon cancellation of the mutilated Warrant, or
in lieu of and substitution for the Warrant lost, stolen or destroyed, a new
Warrant of like tenor and for the purchase of a like number of Warrant Shares,
but only upon receipt of evidence reasonably satisfactory to the Company of such
loss, theft or destruction of the Warrant, and with respect to a lost, stolen or
destroyed Warrant, reasonable indemnity or bond with respect thereto, if
requested by the Company.
Section 7. Reservation of Common Stock. The Company hereby
represents and warrants that there have been reserved, and the Company shall at
all applicable times keep reserved until issued (if necessary) as contemplated
by this Section 7, out of the authorized and unissued shares of Common Stock,
sufficient shares to provide for the exercise of the rights of purchase
represented by this Warrant. The Company agrees that all Warrant Shares issued
upon due exercise of the Warrant shall be, at the time of delivery of the
certificates for such Warrant Shares, duly authorized, validly issued, fully
paid and non-assessable shares of Common Stock of the Company.
Section 8. Adjustments. Subject and pursuant to the provisions of
this Section 8, the Warrant Price and number of Warrant Shares subject to this
Warrant shall be subject to adjustment from time to time as set forth
hereinafter.
(a) If the Company shall, at any time or from time to time
while this Warrant is outstanding, pay a dividend or make a distribution on its
Common Stock in shares of Common Stock, subdivide its outstanding shares of
Common Stock into a greater number of shares or combine its outstanding shares
of Common Stock into a smaller number of shares or issue by reclassification of
its outstanding shares of Common Stock any shares of its capital stock
(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing corporation), then the number of
Warrant Shares purchasable upon exercise of the Warrant and the Warrant Price in
effect immediately prior to the date upon which
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such change shall become effective, shall be adjusted by the Company so that the
Warrantholder thereafter exercising the Warrant shall be entitled to receive the
number of shares of Common Stock or other capital stock which the Warrantholder
would have received if the Warrant had been fully exercised immediately prior to
such event upon payment of a Warrant Price that has been adjusted to reflect a
fair allocation of the economics of such event to the Warrantholder. Such
adjustments shall be made successively whenever any event listed above shall
occur.
(b) If any capital reorganization, reclassification of the
capital stock of the Company, consolidation or merger of the Company with
another corporation in which the Company is not the survivor, or sale, transfer
or other disposition of all or substantially all of the Company's assets to
another corporation shall be effected, then, the Company shall use its best
efforts to ensure that lawful and adequate provision shall be made whereby each
Warrantholder shall thereafter have the right to purchase and receive upon the
basis and upon the terms and conditions herein specified and in lieu of the
Warrant Shares immediately theretofore issuable upon exercise of the Warrant,
such shares of stock, securities or assets as would have been issuable or
payable with respect to or in exchange for a number of Warrant Shares equal to
the number of Warrant Shares immediately theretofore issuable upon exercise of
the Warrant, had such reorganization, reclassification, consolidation, merger,
sale, transfer or other disposition not taken place, and in any such case
appropriate provision shall be made with respect to the rights and interests of
each Warrantholder to the end that the provisions hereof (including, without
limitation, provision for adjustment of the Warrant Price) shall thereafter be
applicable, as nearly equivalent as may be practicable in relation to any shares
of stock, securities or assets thereafter deliverable upon the exercise thereof.
The Company shall not effect any such consolidation, merger, sale, transfer or
other disposition unless prior to or simultaneously with the consummation
thereof the successor corporation (if other than the Company) resulting from
such consolidation or merger, or the corporation purchasing or otherwise
acquiring such assets or other appropriate corporation or entity shall assume
the obligation to deliver to the holder of the Warrant, at the last address of
such holder appearing on the books of the Company, such shares of stock,
securities or assets as, in accordance with the foregoing provisions, such
holder may be entitled to purchase, and the other obligations under this
Warrant. The provisions of this paragraph (b) shall similarly apply to
successive reorganizations, reclassifications, consolidations, mergers, sales,
transfers or other dispositions.
(c) In case the Company shall fix a payment date for the
making of a distribution to all holders of Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of indebtedness or assets
(other than cash dividends or cash distributions payable out of consolidated
earnings or earned surplus or dividends or distributions referred to in Section
8(a)), or subscription rights or warrants, the Warrant Price to be in effect
after such payment date shall be determined by multiplying the Warrant Price in
effect immediately prior to such payment date by a fraction, the numerator of
which shall be the total number of shares of Common Stock outstanding multiplied
by the Market Price (as defined below) per share of Common Stock immediately
prior to such payment date, less the fair market value (as determined by the
Company's Board of Directors in good faith) of said assets or evidences of
indebtedness so distributed, or of such subscription rights or warrants, and the
denominator of which shall be the
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total number of shares of Common Stock outstanding multiplied by such Market
Price per share of Common Stock immediately prior to such payment date. "Market
Price" as of a particular date (the "Valuation Date") shall mean the following:
(a) if the Common Stock is then listed on a national stock exchange, the closing
sale price of one share of Common Stock on such exchange on the last trading day
prior to the Valuation Date; (b) if the Common Stock is then quoted on The
Nasdaq Stock Market, Inc. ("Nasdaq"), the closing sale price of one share of
Common Stock on Nasdaq on the last trading day prior to the Valuation Date or,
if no such closing sale price is available, the average of the high bid and the
low asked price quoted on Nasdaq on the last trading day prior to the Valuation
Date; or (c) if the Common Stock is not then listed on a national stock exchange
or quoted on Nasdaq, the fair market value of one share of Common Stock as of
the Valuation Date, shall be determined in good faith by the Board of Directors
of the Company. The Board of Directors of the Company shall respond promptly, in
writing, to an inquiry by the Warrantholder prior to the exercise hereunder as
to the Market Value of a share of Common Stock as determined by the Board of
Directors of the Company.
(d) For the term of this Warrant, in addition to the
provisions contained above, the Warrant Price shall be subject to adjustment as
provided below. An adjustment to the Warrant Price shall become effective
immediately after the payment date in the case of each dividend or distribution
and immediately after the effective date of each other event which requires an
adjustment.
(e) Except as provided in subsection (g) hereof, if and
whenever the Company shall issue or sell, or is, in accordance with any of
subsections (e)(l) through (e)(6) hereof, deemed to have issued or sold, any
shares of Common Stock for a consideration per share less than the Warrant Price
in effect immediately prior to the time of such issue or sale, then and in each
such case (a "Trigger Issuance"), effective as of the close of business on the
effective date of the Trigger Issuance the then-existing Warrant Price shall be
reduced to the lowest price per share at which any share of Common Stock was
issued or sold or deemed to be issued or sold in such Trigger Issuance.
For purposes of this subsection (e), "Additional Shares of
Common Stock" shall mean all shares of Common Stock issued by the Company or
deemed to be issued pursuant to this subsection (e), other than those excluded
issuances set forth in subsection (f) hereof).
For purposes of this subsection (e), the following subsections
(e)(l) to (e)(5) shall also be applicable (subject, in each such case, to the
provisions of subsection (f) hereof and to each other subsection contained in
this subsection (e)):
(e)(1) Issuance of Convertible Securities; Issuance of
Rights or Options. In case at any time after the date hereof the
Company shall in any manner grant, issue or sell any stock or
security convertible into or exchangeable for Common Stock
("Convertible Securities") or any warrants or other rights to
subscribe for or to purchase, or any options for the purchase
of, Common Stock or any Convertible Securities (such warrants,
rights or options being called "Options"), whether or not the
right to convert, exchange or exercise any such Convertible
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Securities or such Options are immediately exercisable, and the
price per share for which Common Stock is issuable upon the
conversion or exchange of such Convertible Securities or upon
the exercise of such Options (determined by dividing (i) the sum
of (x) the total amount, if any, received or receivable by the
Company as consideration for the issue or sale of such
Convertible Securities or the granting of such Options, plus (y)
the aggregate amount of additional consideration, if any,
payable to the Company upon the conversion or exchange of all
such Convertible Securities or the exercise of all such Options,
plus (z), in the case of such Options to purchase Convertible
Securities, the aggregate amount of additional consideration, if
any, payable upon the conversion or exchange of such Convertible
Securities, by (ii) the maximum number of shares of Common Stock
issuable upon the conversion or exchange of all such Convertible
Securities, or upon the exercise of such Options, or upon the
conversion or exchange of all such Convertible Securities
issuable upon the exercise of such Options) shall be less than
the Warrant Price in effect immediately prior to the time of the
issue or sale of such Convertible Securities or the granting of
such Options, then the total number of shares of Common Stock
issuable upon the conversion or exchange of such Convertible
Securities, or the exercise of such Options, or upon the
conversion or exchange of the maximum amount of such Convertible
Securities issuable upon the exercise of such Options shall be
deemed to have been issued for such price per share as of the
date of the issuance or sale of such Convertible Securities or
the granting of such Options (including Options to purchase
Convertible Securities) and thereafter shall be deemed to be
outstanding for purposes of adjusting the Warrant Price. Except
as otherwise provided in subsection 8(e)(2), no additional
adjustment of the Warrant Price shall be made upon the actual
issue of such Common Stock upon conversion or exchange of such
Convertible Securities or upon exercise of such Options.
(e)(2) Change in Option Price or Conversion Rate. Upon
the happening of any of the following events, namely, if the
purchase price provided for in any Option referred to in
subsection 8(e)(l) hereof, the additional consideration, if any,
payable upon the conversion or exchange of any Convertible
Securities referred to in subsection 8(e)(l), or the rate at
which Convertible Securities referred to in subsection 8(e)(l)
are convertible into or exchangeable for Common Stock shall
change at any time (including, but not limited to, changes under
or by reason of provisions designed to protect against
dilution), the Warrant Price in effect at the time of such event
shall forthwith be readjusted to the Warrant Price which would
have been in effect at such time had such Options or Convertible
Securities still outstanding provided for such changed purchase
price, additional consideration or conversion rate, as the case
may be, at the time initially granted, issued or sold, but only
if as a result of such adjustment the Warrant Price then in
effect hereunder is thereby reduced. On the termination of any
Option for which any adjustment was made pursuant to this
subsection 8(e) or any right to convert or exchange Convertible
Securities for which any adjustment was made pursuant to this
subsection 8(e), the Warrant Price then in effect hereunder
shall forthwith be changed to the Warrant Price which would have
been in effect at the time of such
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termination had such Option or Convertible Securities, to the
extent outstanding immediately prior to such termination, never
been issued.
(e)(3) Consideration for Stock. In case any shares of
Common Stock, Options or Convertible Securities shall be issued
or sold for cash, the consideration received therefor shall be
deemed to be the gross amount received by the Company therefor,
before deduction therefrom of any expenses incurred or any
underwriting commissions or concessions paid or allowed by the
Company in connection therewith. In case any shares of Common
Stock, Options or Convertible Securities shall be issued or sold
for a consideration other than cash, the amount of the
consideration other than cash received by the Company shall be
deemed to be the fair value of such consideration as determined
in good faith by the Board of Directors of the Company, before
deduction of any expenses incurred or any underwriting
commissions or concessions paid or allowed by the Company in
connection therewith. In case any Options shall be issued in
connection with the issue and sale of other securities of the
Company, together comprising one integral transaction in which
no specific consideration is allocated to such Options by the
parties thereto, such Options shall be deemed to have been
issued for such consideration as determined in good faith by the
Board of Directors of the Company.
(e)(4) Record Date. In case the Company shall take a
record of the holders of its Common Stock for the purpose of
entitling them (i) to receive a dividend or other distribution
payable in Common Stock, Options or Convertible Securities or
(ii) to subscribe for or purchase Common Stock, Options or
Convertible Securities, then such record date shall be deemed to
be the date of the issue or sale of the shares of Common Stock
deemed to have been issued or sold upon the declaration of such
dividend or the making of such other distribution or the date of
the granting of such right of subscription or purchase, as the
case may be. Notwithstanding the foregoing, no anti-dilution
adjustment shall be effected with respect to any transaction for
which a record date is set by the Company if the transaction is
abandoned by the Company prior to the time such transaction
becomes effective.
(e)(5) Treasury Shares. The number of shares of Common
Stock outstanding at any given time shall not include shares
owned or held by or for the account of the Company or any of its
Subsidiaries (as defined in the Purchase Agreement pursuant to
which this Warrant was issued), and the disposition of any such
shares (other than the cancellation or retirement thereof) shall
be considered an issue or sale of Common Stock for the purpose
of this subsection (e).
(f) Anything herein to the contrary notwithstanding, the
Company shall not be required to make any adjustment to the Warrant Price or the
number of Warrant Shares subject to this Warrant in the case of the following
issuances of shares of Common Stock from
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and after the date of this Warrant: (i) issuances upon the exercise of any
warrants, options or convertible securities granted, issued and outstanding on
the date of issuance of this Warrant; (ii) issuances upon the grant or exercise
of any stock or options which may hereafter be granted or exercised under any
employee benefit plan, stock option plan or restricted stock plan of the Company
in existence on the date of this Warrant, so long as the issuance of such stock
or options is approved by a majority of the independent members of the Board of
Directors of the Company or a majority of the members of a committee of
independent directors established for such purpose; (iii) issuances of
securities as compensation to marketing or investor relations firms that are not
Affiliates of the Company (the primary purpose of which is not to raise equity
capital); or (iv) issuances of securities as consideration for a merger or
consolidation with, or purchase of assets from, a non-Affiliated third party or
in connection with any strategic partnership or joint venture with a
non-Affiliated third party with which the Company will enter into technology
agreements (the primary purpose of any such action is not to raise equity
capital).
(g) In the event that, as a result of an adjustment made
pursuant to this Section 8, the holder of this Warrant shall become entitled to
receive any shares of capital stock of the Company other than shares of Common
Stock, the number of such other shares so receivable upon exercise of this
Warrant shall be subject thereafter to adjustment from time to time in a manner
and on terms as nearly equivalent as practicable to the provisions with respect
to the Warrant Shares contained in this Warrant.
Section 9. Fractional Interest. The Company shall not be required
to issue fractions of Warrant Shares upon the exercise of this Warrant. If any
fractional share of Common Stock would, except for the provisions of the first
sentence of this Section 9, be deliverable upon such exercise, the Company, in
lieu of delivering such fractional share, shall pay to the exercising holder of
this Warrant an amount in cash equal to the Market Price of such fractional
share of Common Stock on the date of exercise.
Section 10. Extension of Expiration Date. If the Company fails to
cause any Registration Statement covering Registrable Securities (unless
otherwise defined herein, capitalized terms are as defined in the Registration
Rights Agreement relating to the Warrant Shares (the "Registration Rights
Agreement")) to be declared effective prior to the applicable dates set forth
therein, or if any of the events specified in Section 2(c)(ii) of the
Registration Rights Agreement occurs, and the Blackout Period (whether alone, or
in combination with any other Blackout Period) continues for more than 30 days
in any 12 month period, or for more than a total of 90 days, then the Expiration
Date of this Warrant shall be extended one day for each day beyond the 30-day or
90-day limits, as the case may be, that the Blackout Period continues.
Section 11. Benefits. Nothing in this Warrant shall be construed to
give any person, firm or corporation (other than the Company and the
Warrantholder) any legal or equitable right, remedy or claim, it being agreed
that this Warrant shall be for the sole and exclusive benefit of the Company and
the Warrantholder.
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Section 12. Notices to Warrantholder. Upon the happening of any
event requiring an adjustment of the Warrant Price, the Company shall promptly
give written notice thereof to the Warrantholder at the address appearing in the
records of the Company, stating the adjusted Warrant Price and the adjusted
number of Warrant Shares resulting from such event and setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. Failure to give such notice to the Warrantholder or any
defect therein shall not affect the legality or validity of the subject
adjustment.
Section 13. Identity of Transfer Agent. The Transfer Agent for the
Common Stock is Xxxxx Fargo Shareowner Services. Upon the appointment of any
subsequent transfer agent for the Common Stock or other shares of the Company's
capital stock issuable upon the exercise of the rights of purchase represented
by the Warrant, the Company will mail to the Warrantholder a statement setting
forth the name and address of such transfer agent.
Section 14. Notices. Unless otherwise provided, any notice required
or permitted under this Warrant shall be given in writing and shall be deemed
effectively given as hereinafter described (i) if given by personal delivery,
then such notice shall be deemed given upon such delivery, (ii) if given by
telex or facsimile, then such notice shall be deemed given upon receipt of
confirmation of complete transmittal, (iii) if given by mail, then such notice
shall be deemed given upon the earlier of (A) receipt of such notice by the
recipient or (B) three days after such notice is deposited in first class mail,
postage prepaid, and (iv) if given by an internationally recognized overnight
air courier, then such notice shall be deemed given one day after delivery to
such carrier. All notices shall be addressed as follows: if to the
Warrantholder, at its address as set forth in the Company's books and records
and, if to the Company, at the address as follows, or at such other address as
the Warrantholder or the Company may designate by ten days' advance written
notice to the other:
If to the Company:
Antares Pharma, Inc.
000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Fax: 000-000-0000
With a copy to:
Xxxxxxx, Street and Deinard Professional Association
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Fax: 000-000-0000
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Section 15. Registration Rights. The initial holder of this Warrant
is entitled to the benefit of certain registration rights with respect to the
shares of Common Stock issuable upon the exercise of this Warrant as provided in
the Registration Rights Agreement, and any subsequent holder hereof may be
entitled to such rights.
Section 16. Successors. All the covenants and provisions hereof by
or for the benefit of the Warrantholder shall bind and inure to the benefit of
its respective successors and assigns hereunder.
Section 17. Governing Law. This Warrant shall be governed by, and
construed in accordance with, the internal laws of the State of New York,
without reference to the choice of law provisions thereof. The Company and, by
accepting this Warrant, the Warrantholder, each irrevocably submits to the
exclusive jurisdiction of the courts of the State of New York located in New
York County and the United States District Court for the Southern District of
New York for the purpose of any suit, action, proceeding or judgment relating to
or arising out of this Warrant and the transactions contemplated hereby. Service
of process in connection with any such suit, action or proceeding may be served
on each party hereto anywhere in the world by the same methods as are specified
for the giving of notices under this Warrant. The Company and, by accepting this
Warrant, the Warrantholder, each irrevocably consents to the jurisdiction of any
such court in any such suit, action or proceeding and to the laying of venue in
such court. The Company and, by accepting this Warrant, the Warrantholder, each
irrevocably waives any objection to the laying of venue of any such suit, action
or proceeding brought in such courts and irrevocably waives any claim that any
such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum.
Section 18. No Rights as Shareholder. Prior to the exercise of this
Warrant, the Warrantholder shall not have or exercise any rights as a
shareholder of the Company by virtue of its ownership of this Warrant.
Section 19. Amendment; Waiver. This Warrant is one of a series of
Warrants of like tenor issued by the Company pursuant to the Purchase Agreement
and initially covering an aggregate of 1,500,000 shares of Common Stock
(collectively, the "Company Warrants"). Any term of this Warrant may be amended
or waived (including the adjustment provisions included in Section 8 of this
Warrant) upon the written consent of the Company and the holders of Company
Warrants representing at least 51% of the number of shares of Common Stock then
subject to all outstanding Company Warrants (the "Majority Holders"); provided,
that (x) any such amendment or waiver must apply to all Company Warrants; and
(y) the number of Warrant Shares subject to this Warrant, the Warrant Price and
the Expiration Date may not be amended, and the right to exercise this Warrant
may not be altered or waived, without the written consent of the Warrantholder.
Section 20. Section Headings. The section headings in this Warrant
are for the convenience of the Company and the Warrantholder and in no way
alter, modify, amend, limit or restrict the provisions hereof.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed, as of the 7th day of July, 2003.
ANTARES PHARMA, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Executive Officer
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APPENDIX A
ANTARES PHARMA, INC.
WARRANT EXERCISE FORM
To: Antares Pharma, Inc.
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant ("Warrant") for, and to purchase
thereunder by the payment of the Warrant Price and surrender of the Warrant,
_______________ shares of Common Stock ("Warrant Shares") provided for therein,
and requests that certificates for the Warrant Shares be issued as follows:
______________________________________
Name
______________________________________
Address
______________________________________
______________________________________
Federal Tax ID or Social Security No.
and delivered by
[ ] certified mail to the above address, or
[ ] electronically (provide DWAC Instructions:________),
or
[ ] other (specify: __________________________________).
and, if the number of Warrant Shares shall not be all the Warrant Shares
purchasable upon exercise of the Warrant, that a new Warrant for the balance of
the Warrant Shares purchasable upon exercise of this Warrant be registered in
the name of the undersigned Warrantholder or the undersigned's Assignee as below
indicated and delivered to the address stated below.
Dated: ___________________, ____
Note: The signature must correspond with
the name of the registered holder as written Signature:
on the first page of the Warrant in every ---------------------
particular, without alteration or enlargement _______________________________
or any change whatever, unless the Warrant Name (please print)
has been assigned.
_______________________________
_______________________________
Address
_______________________________
Federal Identification or
Social Security No.
Assignee:
_______________________________
_______________________________
_______________________________
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