Exhibit 10.43
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 JANUARY 31, 2008 (the "EXPIRATION DATE").
No. ___________
ANTARES PHARMA, INC.
WARRANT TO PURCHASE SHARES OF
COMMON STOCK, $.01 PAR VALUE PER SHARE
For VALUE RECEIVED, ________________ ("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, at an exercise price per share equal to
$0.55 (the exercise price in effect being herein called the "Warrant Price"),
___________________________________shares ("Warrant Shares") of the Company's
common stock, par value $.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 the 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, including, but not limited
to, the opinion of counsel to the Warrantholder, as may be reasonably required
by the Company to establish that such transfer is being made in accordance with
the terms hereof, the Securities Act and applicable state blue sky laws, and a
new Warrant shall be issued to the transferee (which transferee and any
subsequent transferee thereof shall, for purposes of this Warrant, also be
referred to as the Warrantholder) 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 upon
surrender of this 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 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 Warrantholder); provided, however, 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 Borrower 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 outstanding shares of Common Stock. 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. The Warrant Shares so purchased shall be deemed to be issued to the
Warrantholder or such Warrantholder'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 reasonably 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 (provided that in no event
shall the number of Warrant Shares purchased exceed the number of Warrant Shares
then purchasable upon exercise of this Warrant) shall be delivered to the
Warrantholder within a reasonable time, not exceeding five (5) business days,
after this Warrant shall have been so exercised. The certificates so delivered
shall be in such reasonable denominations as may be requested by the
Warrantholder and shall be registered in the name of such Warrantholder or such
other name as shall be designated by such Warrantholder. 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 Warrantholder 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, New York are open for the general transaction of business.
(b) Unless 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 or conversion of or otherwise
pursuant to (i) this Warrant, (ii) the Company's 8% Secured Convertible
Debentures, and (iii) the Warrants (all issued pursuant to those two separate
Debenture and Warrant Purchase Agreements, each dated of even date
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herewith, by and among the Company, the Holder, and the holders of the above
described Debentures and Warrants (the "Purchase Agreements")) more than the
maximum number of shares of Common Stock that the Company can issue pursuant to
any rule of the principal United States securities market on which the Common
Stock is then traded (the "Maximum Share Amount"), which, as of the date hereof
shall be 2,356,342 shares (19.99% of the total shares outstanding on the date
hereof), 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. With respect to
each Warrantholder, the Maximum Share Amount shall refer to such Warrantholder's
pro rata share thereof determined in accordance with the provisions hereof. 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 the then outstanding Warrants and Debentures
issued pursuant to the Purchase Agreements but for the Maximum Share Amount.
(c) The Maximum Share Amount shall be allocated pro rata among all
of the holders of the Debentures and the Warrants issued pursuant to the
Purchase Agreements (such holders collectively referred to as the "Security
Holders," and such Debentures and Warrants collectively referred to as the
"Convertible Debt Securities") based on the total number of shares of Common
Stock issuable upon conversion of and exercise of the Convertible Debt
Securities (the "Underlying Shares"). Each increase to the Maximum Share Amount
shall be allocated pro rata among the Security Holders based on the total number
of Underlying Shares issauble to such Security Holders at the time of the
increase in the Maximum Share Amount. In the event a Security Holder shall sell
or otherwise transfer any of its Convertible Debt Securities, each transferee
shall be allocated a pro rata portion of such transferor's Maximum Share Amount.
Any portion of the Maximum Share Amount which remains allocated to any person or
entity which does not hold any Convertible Debt Securities shall be allocated to
the remaining Security Holders, pro rata based on the Underlying Shares then
issuable to such person or entity.
Section 4. Redemption of Warrants.
(a) At any time following the effective date of the registration
statement filed by the Company to register the Warrant Shares and provided that
the closing bid prices of the Company's Common Stock is greater than $3.50 for
thirty consecutive trading days, and the volume during such thirty-day trading
period is at least 1,200,000, then, on the first business day immediately
following such thirtieth day, the Company shall have the option to redeem this
Warrant for an aggregate price equal to the then effective Warrant Price times
the number of shares of Common Stock for which this Warrant is then exercisable,
subject to the terms and conditions set forth below.
(b) The Company shall give notice of redemption to the Warrantholder
by registered or certified mail, to the address of the Warrantholder as set
forth on the Company's
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records. The notice shall set forth (i) the date and place of redemption, and
(ii) the redemption price. In the event that a notice of redemption is given
under this Section 4, the Company shall be obligated to redeem this Warrant on
the date and in the amount set forth in the notice. The redemption date shall be
that date which is thirty days (or the next business day, if the thirtieth day
is not a business day) following the notice of redemption; provided that (i) the
registration statement filed by the Company pursuant to the Registration Rights
Agreement, dated January 31, 2003 (the "Registration Rights Agreement"), between
the Company and the Warrantholder, as may be amended and supplemented, will be
effective through the redemption date and (ii) the Warrantholder shall be free
to exercise this Warrant prior to the redemption date. Subsequent to the
redemption date, this Warrant, to the extent it has not been exercised, shall
have no further force and effect and shall be null and void; provided that the
redemption price has been paid as set forth in Section 4(c) hereof. If the
Company fails to pay the redemption price, the Warrant shall continue to be in
effect in accordance with its terms.
(c) On or after the date fixed for redemption, the Warrantholder
shall surrender this Warrant to the Company at the place designated in the
redemption notice and shall thereupon be entitled to receive payment from the
Company for the Warrant.
Section 5. Compliance with the Securities Act. 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 6. Payment of Taxes. The Company will pay any documentary stamp
taxes attributable to the initial issuance of the 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 Warrantholder 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 Warrantholder shall be responsible for income and gift taxes due under
federal, state or other law, if any such tax is due.
Section 7. 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.
Section 8. 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 out of the authorized and unissued Common
Stock, sufficient shares to
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provide for the exercise of the rights of purchase represented by the Warrant.
The Company agrees that all Warrant Shares issued upon exercise of the Warrant
shall be, at the time of delivery of the certificates for such Warrant Shares
upon the due exercise of this Warrant, duly authorized, validly issued, fully
paid and non-assessable shares of Common Stock of the Company.
Section 9. Adjustments. Subject and pursuant to the provisions of this
Section 9, 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 the
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 such change shall become effective
shall be proportionately adjusted by the Company so that the Warrantholder
thereafter exercising this 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 exercised immediately prior to such event upon
payment of a Warrant Price that has been proportionally adjusted to reflect such
event.
(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 properties 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 shall assume the obligation to deliver to the
holder of the Warrant 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)
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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 9(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 per share of Common Stock (as defined below), 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 total
number of shares of Common Stock outstanding multiplied by such Market Price per
share of Common Stock. "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 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.
(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) In the event that, as a result of an adjustment made pursuant to
this Section 8, the Warrantholder 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.
(f) Except as provided in subsection (g) hereof, if and whenever the
Company shall issue or sell, or is, in accordance with any of subsections (f)(l)
through (f)(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") the then-existing Warrant Price shall be reduced, as of the close of
business on the effective date of the Trigger Issuance, to the lowest price per
share at
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which any share of Common Stock was issued or sold or deemed to be issued or
sold in the Trigger Issuance.
For purposes of this subsection (f), "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 (f), other than those excluded issuances
set forth in subsection (g) hereof).
For purposes of this subsection (f), the following subsections
(f)(l) to (f)(5) shall also be applicable (subject, in each such case, to the
provisions of subsection (g) hereof and to each other subsection contained in
this subsection (f)):
(f)(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 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(f)(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.
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(f)(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(f)(l)
hereof, the additional consideration, if any, payable upon the
conversion or exchange of any Convertible Securities referred to in
subsection 8(f)(l), or the rate at which Convertible Securities
referred to in subsection 8(f)(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(f) or any right to convert or exchange Convertible
Securities for which any adjustment was made pursuant to this
subsection 8(f), 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 termination had such Option or
Convertible Securities, to the extent outstanding immediately prior
to such termination, never been issued.
(f)(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.
(f)(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
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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.
(f)(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 (f).
(g) 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 and after the date of this Warrant: (i) the
issuance of shares of Common Stock issuable upon conversion or exercise of the
Convertible Debt Securities; (ii) issuances upon the exercise of any warrants,
options or convertible securities granted, issued and outstanding on the date of
issuance of this Warrant; (iii) issuances upon the grant or exercise of any
stock or options which may hereafter be granted or exercised under any existing
employee benefit plan, stock option plan or restricted stock plan of the
Company, 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; (iv) 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 (v) 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).
Section 10. Fractional Interest. The Company shall not be required to issue
fractions of Warrant Shares upon the exercise of the Warrant. If any fractional
share of Common Stock would be delivered 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 current Fair Market Value of such
fractional share of Common Stock. As used in this Warrant, "Fair Market Value"
of a share of Common Stock as of a 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 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 sales 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
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Stock as of the Valuation Date, shall be determined in good faith by the Board
of Directors of the Company.
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.
Section 12. Notices to Warrantholder. Upon the happening of any event
requiring an adjustment of the Warrant Price and/or to the number of Warrant
Shares covered by this Warrant, 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 telecopier, then such notice shall be deemed given upon receipt of
confirmation of complete transmittal, (iii) if given by first class mail,
postage prepaid , 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: (i) 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 Xxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
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 in respect of the Warrant
Shares 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.
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. Modification and Waiver. This Warrant and any provision hereof
may be changed, waived, discharged or terminated only by an instrument in
writing signed by the Company and the then current holder of this Warrant, and
such change, waiver, discharge or termination shall be binding on all future
holders of this Warrant.
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, Antares Pharma, Inc. has caused this Warrant to be duly
executed, as of the 31st day of January, 2003.
ANTARES PHARMA, INC.
By: ________________________________
Name: Xxxxxxxx X. Xxxxxxxxx
Xxxxx: Chief Financial 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 Name (please print)
or any change whatever, unless the Warrant
has been assigned. _______________________________
_______________________________
Address
_______________________________
Federal Identification or
Social Security No.
Assignee:
_______________________________
_______________________________
_______________________________
