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EXHIBIT 4.11
THE TRANSFER OF THIS WARRANT IS SUBJECT TO
RESTRICTIONS CONTAINED HEREIN. THIS WARRANT
HAS BEEN ISSUED IN RELIANCE UPON THE
REPRESENTATION OF HOLDER THAT IT HAS BEEN
ACQUIRED FOR INVESTMENT PURPOSES AND NOT WITH
A VIEW TOWARDS THE RESALE OR OTHER DISTRIBUTION
THEREOF. NEITHER THIS WARRANT NOR THE SHARES
ISSUABLE UPON THE EXERCISE OF THIS WARRANT
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY STATE SECURITIES LAWS.
AVANIR PHARMACEUTICALS
CLASS L STOCK PURCHASE WARRANT
To Subscribe for and Purchase JUNE 8, 1999
Shares of Class A Common Stock of
AVANIR Pharmaceuticals
VOID AFTER 5:00 P.M.,
PACIFIC TIME
JUNE 7, 2002
THIS CLASS L STOCK PURCHASE WARRANT CERTIFIES that, for value received,
Xxxxx, Xxxxx & Xxxx, Inc., a New York corporation ("Holder"), is entitled to
subscribe for and purchase from AVANIR Pharmaceuticals, a California corporation
(hereinafter called the "Corporation"), Fifty Five Thousand (55,000) shares
(subject to adjustment as hereinafter provided) of fully paid and non-assessable
Class A Common Stock, no par value per share, of the Corporation ("Common
Stock"), at the price per share equal to $1.1875 per share (such price as from
time to time to be adjusted as hereinafter provided being hereinafter called the
"Warrant Price"), at any time from the date hereof but at or prior to 5:00 p.m.
Pacific time on June 7, 2002 (the "Warrant Term"), subject, however, to the
provisions and upon the terms and conditions hereinafter set forth. This Class L
Stock Purchase Warrant and any warrant or warrants subsequently issued upon
exchange or transfer hereof are hereinafter collectively called this "Warrant."
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Section 1. Exercise of Warrant.
(1) Once vested as set forth in Section 2, Holder may exercise
the rights represented by this Warrant, in whole or in part (but not as to
fractional shares) at any time or from time to time, by Holder's (a) completion
of the purchase form attached hereto, (b) surrender of this Warrant (properly
endorsed) at the office of the Corporation (as it may designate by notice in
writing to Holder at the address of Holder appearing on the books of the
Corporation), and (c) payment to the Corporation of the Warrant Price in cash
(or by certified or official bank check) for each share of Common Stock being
purchased.
(2) Corporation will deliver to Holder, within fifteen (15)
calendar days after the date on which the rights represented by this Warrant
will have been so exercised, a certificate or certificates for the shares of
Common Stock so purchased, registered in the name of Holder; and, unless this
Warrant has expired or has been exercised in full, a new warrant representing
the number of shares (except a remaining fractional share) of Common Stock, if
any, with respect to which this Warrant will not then have been exercised will
also be issued to Holder within such time. Upon exercise of this Warrant, Holder
will be deemed for all purposes to have become the holder of record of the
shares of Common Stock resulting from such exercise on the date on which this
Warrant was surrendered and the Corporation received payment of the Warrant
Price for such shares, except that, if the date of such surrender and payment is
a date on which the stock transfer books of the Corporation are closed, Holder
will be deemed to have become the holder of such shares at the close of business
on the next succeeding date on which the stock transfer books are open. No
fractional shares will be issued upon exercise of this Warrant and no payment or
adjustment will be made upon any exercise on account of any cash dividends on
the Common Stock issued upon such exercise. If any fractional interest in a
share of Common Stock would be delivered upon such exercise, then the
Corporation, in lieu of delivery of a fractional share thereof, will pay to
Holder an amount in cash equal to the proportional amount of the closing sales
price of a share of Common Stock as reported in The Wall Street Journal on the
date immediately preceding the date of such exercise.
Section 2. Vesting. This Warrant to purchase 55,000 shares of Common
Stock shall vest and become exercisable either the later of December 8, 1999 or
the first commercial sale of the product abree.(TM), provided, however, that the
Holder's exercise of this Warrant in whole or in part shall be subject to Holder
continuing to render the services described in the letter agreement dated June
8, 1999 by and between the Holder and the Corporation (the "Agreement").
Section 3. Stock Splits, Consolidation. In the event that, prior to the
issuance of the shares of Common Stock into which this Warrant may be exercised,
the outstanding shares of Common Stock will be split, combined or consolidated,
by dividend, reclassification or otherwise, into a greater or lesser number of
shares of Common Stock, the Warrant Price in effect immediately prior to such
combination or consolidation and the number of shares of Common Stock
purchasable under this Warrant will, concurrently with the effectiveness of such
combination or consolidation, be proportionately adjusted.
Section 4. Shares to Be Reserved. The Corporation will at all times
reserve and keep available out of its authorized shares of Common Stock, solely
for the purpose of issue upon the exercise of this Warrant as herein provided,
such number of shares of Common Stock as will
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then be issuable upon the exercise of this Warrant. The Corporation will from
time to time in accordance with applicable law increase the authorized number of
shares of Common Stock if at any time the number of shares of Common Stock
remaining unissued and available for issuance will not be sufficient to permit
the exercise of this Warrant. The Corporation covenants that all shares of
Common Stock that will be so issued will be duly and validly issued and fully
paid and nonassessable and free from all taxes, liens and charges with respect
to the issue thereof, and, without limiting the generality of the foregoing, the
Corporation will take all such action as may be necessary to assure that all
such shares of Common Stock may be so issued without violation of any applicable
law or regulation, or of any requirements of any national securities exchange or
the Nasdaq National Market or the Nasdaq SmallCap Market upon which shares of
Common Stock may be listed.
Section 5. Notices of Record Dates. In the event of
(1) any taking by the Corporation 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 (other than cash
dividends out of earned surplus), or any right 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
(2) any capital reorganization of the Corporation, any
reclassification or recapitalization of the capital stock of the Corporation or
any transfer of all or substantially all the assets of the Corporation to or
consolidation or merger of the Corporation with or into any other corporation,
or
(3) any voluntary or involuntary dissolution, liquidation or
winding-up of the Corporation,
then and in each such event the Corporation will give notice to Holder
specifying (i) the date on which any such record is to be taken for the purpose
of such dividend, distribution or right and stating the amount and character of
such dividend, distribution or right, and (ii) the date on which any such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up is to take place, and the time,
if any is to be fixed, as of which the holders of record of Common Stock will be
entitled to exchange their shares of Common Stock for securities or other
property deliverable upon such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding-up. Such notice will be given at least five (5) days prior to the date
therein specified.
Section 6. No Shareholder Rights or Liabilities. This Warrant will not
entitle Holder to any voting rights or other rights as a shareholder of the
Corporation. No provision hereof, in the absence of affirmative action by Holder
to purchase shares of Common Stock, and no mere enumeration hereon of the rights
or privileges of Holder, will give rise to any liability of Holder for the
Warrant Price or as a shareholder of the Corporation, whether such liability is
asserted by the Corporation or by creditors of the Corporation.
Section 7. Representations of Holder. Holder hereby represents and
acknowledges to the Corporation that:
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(1) this Warrant, and the shares of Common Stock issuable upon
exercise of this Warrant, and any securities issued with respect to any of them
by way of a stock dividend or stock split or in connection with a
recapitalization, merger, consolidation or other reorganization will be
"restricted securities" as such term is used in the rules and regulations under
the Securities Act of 1933, as amended (the "Securities Act"), and, subject to
Section 10, such securities have not been and will not be registered under the
Securities Act or any state securities law, and such securities must be held
indefinitely unless registration is effected or transfer can be made pursuant to
appropriate exemptions;
(2) Holder has read, and fully understands, the terms of this
Warrant set forth on its face and the attachments hereto, including the
restrictions on transfer contained herein;
(3) Holder is acquiring this Warrant and the shares of Common
Stock issuable upon exercise of this Warrant for investment for its own account
and not with a view to or for sale in connection with any distribution of this
Warrant and/or the shares of Common Stock issuable upon exercise of this
Warrant, and Holder has no intention of selling such securities in a public
distribution in violation of the federal securities laws or any applicable state
securities laws; provided that nothing contained herein will prevent Holder from
transferring such securities in compliance with the terms of this Warrant and
the applicable federal and state securities laws;
(4) Holder is an "accredited investor" within the meaning of
paragraph (a) of Rule 501 of Regulation D promulgated under the Securities Act
and an "excluded purchaser" within the meaning of Section 25102(f) of the
California Corporate Securities Law of 1968; and
(5) the Corporation may affix the following legend (in
addition to any other legend(s), if any, required by applicable state corporate
and/or securities laws) to certificates for shares of Common Stock issued upon
exercise of this Warrant.
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES
LAWS OF ANY STATE. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT
AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS,
PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM."
Section 8. Lost, Stolen, Mutilated or Destroyed Warrant. If this
Warrant is lost, stolen, mutilated or destroyed, the Corporation may, on such
terms as to indemnity or otherwise as it may in its discretion reasonably impose
(which will, in the case of a mutilated warrant, include the surrender thereof),
issue a new warrant of like denomination and tenor as this Warrant as so lost,
stolen, mutilated or destroyed. Any such new warrant will constitute an original
contractual obligation of the Corporation, whether or not the allegedly lost,
stolen, mutilated or destroyed warrant will be at any time enforceable by
anyone.
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Section 9. Presentment. Prior to due presentment of this Warrant
together with a completed assignment form attached hereto for registration of
transfer, the Corporation may deem and treat Holder as the absolute owner of
this Warrant, notwithstanding any notation of ownership or other writing
thereon, for the purpose of any exercise thereof and for all other purposes, and
the Corporation will not be affected by any notice to the contrary.
Section 10. Registration Rights.
(1) The Corporation will file with the Securities and Exchange
Commission (the "SEC") a Registration Statement on Form S-3 covering the
continuous sale pursuant to Rule 415 under the Securities Act (the "Shelf
Registration Statement"), in the manner specified therein (provided that such
manner shall not include an underwritten public offering), of the shares of
Common Stock underlying this Warrant (collectively, the "Registration Shares").
The Corporation shall use its best efforts to cause the Shelf Registration
Statement to be declared effective by the SEC as soon as practicable after its
filing with the SEC, and to remain effective until the earlier of (i) such time
as all of the Registration Shares are sold pursuant to the Shelf Registration
Statement or (ii) the conclusion of the Warrant Term (the "Effective Period");
provided, however, that, in the event that the Corporation determines in good
faith that, because it has under consideration a significant (as defined under
Regulation S-X of the SEC rules) acquisition or disposition or other material
transaction that has not been publicly disclosed or that it is in the process of
preparing for filing with the SEC a Current Report on Form 8-K or other form,
the Shelf Registration Statement may contain a material misstatement or
omission, the Corporation may cause the Shelf Registration Statement to not be
used for an aggregate period not to exceed forty-five (45) days during the
Effective Period.
(2) The Corporation shall use its best efforts to cause the
Registration Shares to be approved for quotation on the Nasdaq National Market
System, or other national securities exchange on which the Common Stock is
principally traded, on or before the Shelf Registration Statement is declared
effective by the SEC. The Corporation also will use its best efforts to register
or qualify the Registration Shares under such other securities or blue sky laws
of the United States and keep such registration or qualification in effect for
the Effective Period and do any and all other acts and things which may be
reasonably necessary or advisable to enable the Holder to have the right to sell
or otherwise dispose of the Registration Shares in such jurisdictions.
(3) In connection with the registration of the Registration
Shares pursuant to this Warrant, Holder shall furnish the Corporation with such
information concerning Holder as the Corporation may reasonably request for use
in the preparation of the Shelf Registration Statement or any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto ("Prospectus"), and shall cooperate fully in the
preparation and filing of the Shelf Registration Statement. Holder hereby agrees
to indemnify the Corporation, the Corporation's officers, employees, directors
and agents, and each person, if any, who controls the Corporation within the
meaning of Section 15 of the Securities Act, against any losses, claims, damages
and liabilities to which the Corporation or any such officer, employee, director
or agent or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any untrue
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(or alleged untrue) statement of any material fact contained in, or any material
fact omitted from (or allegedly omitted from) the Shelf Registration Statement
or any Prospectus covering the Registration Shares, if such statement or
omission was made in reliance upon and in conformity with written information
furnished to the Corporation by Holder expressly for use in the Shelf
Registration Statement or any Prospectus covering the Registration Shares.
(4) The Corporation will, prior to filing the Shelf
Registration Statement, furnish to Holder a copy of the draft of such document
that is proposed to be filed. The Corporation will promptly notify Holder of any
stop order issued or threatened by the SEC with respect to the Shelf
Registration Statement and will take all reasonable actions required to prevent
the entry of such stop order or to remove it if entered. The Corporation will
notify Holder during the effectiveness of the Shelf Registration Statement of
the occurrence of an event that would require the preparation of a supplement or
amendment to the Prospectus in order for the Prospectus to not (i) contain an
untrue statement of a material fact or (ii) omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading. The Corporation will provide Holder with a copy of any such
supplement or amendment. Holder shall advise the Corporation of any proposed
change in the manner of distribution.
(5) The Corporation hereby indemnifies and holds harmless
Holder, each of Holder's officers, employees, members, managers and agents and
each person deemed to be an "underwriter" under the Securities Act, if any, and
each person controlling such Stockholder within the meaning of Section 15 of the
Securities Act, if any, against any losses, claims, damages or liabilities to
which Holder or any of the foregoing persons may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue (or alleged untrue)
statement of any material fact contained in the Shelf Registration Statement or
any Prospectus covering the Registration Shares or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, except insofar as such untrue (or alleged
untrue) statement or omission (or alleged omission) shall have been based upon
information furnished to the Corporation by Holder or such other persons, and
the Corporation will reimburse Holder for any legal or other expenses reasonably
incurred by him in connection with investigating or defending any such loss,
claim, damage, liability, action or proceedings. Notwithstanding the foregoing,
in the event that the Corporation is required to indemnify Holder pursuant to
this subsection, the Corporation shall be entitled to assume the defense of such
investigation or defense, with counsel approved by Holder, which approval shall
not be unreasonably withheld, upon the delivery to Holder of written notice of
its election to do so. After delivery of such notice, the Corporation shall not
be liable to Holder under this subsection for any fees of counsel subsequently
incurred by Holder with respect to the same investigation or defense.
(6) In circumstances in which any indemnity provided by the
preceding subsections of this Section 10 is unavailable or insufficient, for any
reason, to hold harmless an indemnified party in respect of any losses, claims,
damages or liabilities (or actions or proceedings in respect thereof), then each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party
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as a result of such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) in such proportion as is appropriate to reflect
(i) the relative fault of the indemnifying party or parties on the one hand and
the indemnified party or parties on the other hand in connection with the
statements or omissions or alleged statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) and (ii) any other relevant equitable considerations. The relevant
fault of the parties shall be determined by reference to, among other things,
whether the statement or omission or alleged statement or omission relates to
information supplied by the Corporation or by Holder, the parties' relative
intents, knowledge, access to information and opportunity to correct or prevent
such statement or omission, and any other equitable considerations appropriate
in the circumstances.
(7) The registration rights set forth in this section with
respect to the Registration Shares are not assignable without the express
written consent of the Corporation.
Section 11. Notice. Notice or demand pursuant to this Warrant will be
sufficiently given or made, if sent by facsimile and/or first-class mail,
postage prepaid, addressed to:
Holder: Xxxxx Xxxxx & Xxxx, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxx X. Xxxxxxxx
Telecopy: (000)-000-0000
Corporation: AVANIR Pharmaceuticals
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Secretary
Telecopy: (000) 000-0000
Holder or the Corporation may alter its address to which communications are to
be sent by giving notice of such change of address in conformity with the
provisions of this section for the giving of notice.
Section 12. Governing Law. The validity, interpretation and performance
of this Warrant will be governed by the laws of the State of California without
regard to principles of conflicts of laws.
Section 13. Assignment. This Warrant shall not be transferable or
assignable during the entire Service Term (as defined in the Services
Agreement).
Section 14. Severability. Should any part but not the whole of this
Warrant for any reason be declared invalid, such declaration shall not affect
the validity of any remaining portion, which remaining portion will remain in
force and effect as if this Warrant had been executed
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with the invalid portion thereof eliminated, and it is hereby declared the
intention of the parties hereto that they would have executed the remaining
portion of this Warrant without including therein any such part which may, for
any reason, be hereafter declared invalid.
Section 15. Counterparts. This Warrant may be executed in two
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same warrant.
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IN WITNESS WHEREOF, the Corporation has caused this Warrant to be duly
executed and delivered on and as of the day and year first above written by one
of its officers thereunto duly authorized.
AVANIR PHARMACEUTICALS,
a California corporation
Dated as of: June 8, 1999 By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxx
Chief Executive Officer
The undersigned Holder agrees and accepts this Warrant, acknowledges
that it has read and confirms each of the representations contained in Section 7
and shall perform its obligations under Section 10 of this Warrant.
CLINE, DAVIS, XXXX, INC.
A New York corporation
Dated as of: June 8, 1999 By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxx
Executive Vice President
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AVANIR PHARMACEUTICALS
CLASS A COMMON STOCK
PURCHASE FORM
[To be executed by Holder if it desires to exercise the Warrant in whole or in
part.]
To: AVANIR PHARMACEUTICALS
The undersigned, whose Social Security or other identifying number is
__________, hereby irrevocably elects the right of purchase represented by the
within Warrant for, and to purchase thereunder, ________________ shares of Class
A Common Stock, no par value per share, provided for therein and tenders payment
herewith to the order of AVANIR PHARMACEUTICALS in the amount of $________.
The undersigned requests that certificates for such shares be issued and
delivered as follows:
Xxxxx, Xxxxx & Xxxx, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
and, if said number of shares of Class A Common Stock will not be all of the
shares purchasable hereunder, that a new warrant for the balance remaining of
the shares purchasable under the within Warrant be registered in the name of,
and delivered to, the undersigned at the above address.
Dated: __________________ Xxxxx, Xxxxx & Xxxx, Inc.
A New York corporation
____________________________
By: ____________________________
Its: ____________________________
(Signature must conform in all respects
to the name of the Warrant Holder as
specified on the face of the Warrant,
without alteration, enlargement or any
change whatsoever)
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