THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ITS EXERCISE ARE SUBJECT TO THE RESTRICTIONS ON TRANSFER SET FORTH IN SECTION 5 OF THIS WARRANT
Exhibit
4.6
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ITS
EXERCISE
ARE SUBJECT TO THE RESTRICTIONS ON
TRANSFER
SET FORTH IN SECTION 5 OF THIS WARRANT
|
Warrant
No. 2005B-[ ]
|
Number
of Shares: [ ]
(subject
to adjustment)
|
|
Date
of Issuance: October 24, 2005
Original
Issue Date (as defined in subsection 2(a)): October 24,
2005
|
Hana
Biosciences, Inc.
(Void
after October 24, 2010)
Hana
Biosciences, Inc., a Delaware corporation (the “Company”), for value received,
hereby certifies that [ ],
or its
registered assigns (the “Registered Holder”), is entitled, subject to the terms
and conditions set forth below, to purchase from the Company, at any time
or
from time to time on or after April 24, 2006 and on or before 5:00 p.m. (Eastern
time) on October 24, 2010 (the “Exercise Period”), [ ]
shares
of Common Stock, $0.001 par value per share, of the Company (“Common Stock”), at
a purchase price of $5.80 per share. The shares purchasable upon exercise
of
this Warrant, and the purchase price per share, each as adjusted from time
to
time pursuant to the provisions of this Warrant, are hereinafter referred
to as
the “Warrant Shares” and the “Purchase Price,” respectively. This Warrant is one
of a series of Warrants issued by the Company in connection with a private
placement of Common Stock and of like tenor, except as to the number of shares
of Common Stock subject thereto (collectively, the “Company Warrants”).
1. Exercise.
(a) Exercise
for Cash.
The
Registered Holder may, at its option, elect to exercise this Warrant, in
whole
or in part and at any time or from time to time during the Exercise Period,
by
surrendering this Warrant, with the purchase form appended hereto as
Exhibit I
duly
executed by or on behalf of the Registered Holder, at the principal office
of
the Company, or at such other office or agency as the Company may designate,
accompanied by payment in full, in lawful money of the United States, of
the
Purchase Price payable in respect of the number of Warrant Shares purchased
upon
such exercise. A facsimile signature of the Registered Holder on the purchase
form shall be sufficient for purposes of exercising this Warrant, provided
that
the Company receives the Registered Holder’s original signature with three (3)
business days thereafter.
(b) Cashless
Exercise.
(i) At
any
time during the Exercise Period when the resale of the Warrant Shares by
the
Registered Holder is not registered pursuant to an effective registration
statement filed with the Securities and Exchange Commission under the Securities
Act of 1933, as amended (the “Securities Act”), the Registered Holder may, at
its option, elect to exercise this Warrant, in whole or in part, on a cashless
basis, by surrendering this Warrant, with the purchase form appended hereto
as
Exhibit
I
duly
executed by or on behalf of the Registered Holder, at the principal office
of
the Company, or at such other office or agency as the Company may designate,
by
canceling a portion of this Warrant in payment of the Purchase Price payable
in
respect of the number of Warrant Shares purchased upon such exercise. In
the
event of an exercise pursuant to this subsection 1(b), the number of Warrant
Shares issued to the Registered Holder shall be determined according to the
following formula:
X
=
Y(A-B)
A
|
Where:
|
X
=
|
the
number of Warrant Shares that shall be issued to the Registered
Holder;
|
|
|
|
Y = |
|
the
number of Warrant Shares for which this Warrant is being exercised
(which
shall include both the number of Warrant Shares issued to the
Registered
Holder and the number of Warrant Shares subject to the portion
of the
Warrant being cancelled in payment of the Purchase Price);
|
|
A
=
|
|
the
Fair Market Value (as defined below) of one share of Common Stock;
and
|
|
|
B
=
|
|
the
Purchase Price then in
effect.
|
(ii) The
Fair
Market Value per share of Common Stock shall be determined as
follows:
(1) If
the
Common Stock is listed on a national securities exchange, the Nasdaq National
Market, the Nasdaq SmallCap Market or another nationally recognized trading
system as of the Exercise Date, the Fair Market Value per share of Common
Stock
shall be deemed to be the average of the high and low reported sale prices
per
share of Common Stock thereon on the trading day immediately preceding the
Exercise Date (provided
that if
no such price is reported on such day, the Fair Market Value per share of
Common
Stock shall be determined pursuant to clause (2) below).
(2) If
the
Common Stock is not listed on a national securities exchange, the Nasdaq
National Market, the Nasdaq SmallCap Market or another nationally recognized
trading system as of the Exercise Date, the Fair Market Value per share of
Common Stock shall be deemed to be the amount most recently determined by
the
Board of Directors of the Company (the “Board”) to represent the fair market
value per share of the Common Stock (including without limitation a
determination for purposes of granting Common Stock options or issuing Common
Stock under any plan, agreement or arrangement with employees of the Company);
and, upon request of the Registered Holder, the Board (or a representative
thereof) shall, as promptly as reasonably practicable but in any event not
later
than 10 days after such request, notify the Registered Holder of the Fair
Market
Value per share of Common Stock and furnish the Registered Holder with
reasonable documentation of the Board’s determination of such Fair Market Value.
Notwithstanding the foregoing, if the Board has not made such a determination
within the three-month period prior to the Exercise Date, then (A) the
Board shall make, and shall provide or cause to be provided to the Registered
Holder notice of, a determination of the Fair Market Value per share of the
Common Stock within 15 days of a request by the Registered Holder that it
do so,
and (B) the exercise of this Warrant pursuant to this subsection 1(b)
shall
be delayed until such determination is made and notice thereof is provided
to
the Registered Holder.
(c) Exercise
Date.
Each
exercise of this Warrant shall be deemed to have been effected immediately
prior
to the close of business on the day on which this Warrant shall have been
surrendered to the Company as provided in subsection 1(a) or 1(b) above (the
“Exercise Date”). At such time, the person or persons in whose name or names any
certificates for Warrant Shares shall be issuable upon such exercise as provided
in subsection 1(d) below shall be deemed to have become the holder or holders
of
record of the Warrant Shares represented by such certificates.
(d) Issuance
of Certificates.
As soon
as practicable after the exercise of this Warrant in whole or in part, and
in
any event within 3 trading days thereafter, the Company, at its expense,
will
cause to be issued in the name of, and delivered to, the Registered Holder,
or
as the Registered Holder (upon payment by the Registered Holder of any
applicable transfer taxes) may direct:
(i) a
certificate or certificates for the number of full Warrant Shares to which
the
Registered Holder shall be entitled upon such exercise plus, in lieu of any
fractional share to which the Registered Holder would otherwise be entitled,
cash in an amount determined pursuant to Section 3 hereof; and
(ii) in
case
such exercise is in part only, a new warrant or warrants (dated the date
hereof)
of like tenor, calling in the aggregate on the face or faces thereof for
the
number of Warrant Shares equal (without giving effect to any adjustment therein)
to the number of such shares called for on the face of this Warrant minus
the
number of Warrant Shares for which this Warrant was so exercised (which,
in the
case of an exercise pursuant to subsection 1(b), shall include both the number
of Warrant Shares issued to the Registered Holder pursuant to such partial
exercise and the number of Warrant Shares subject to the portion of the Warrant
being cancelled in payment of the Purchase Price).
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2. Adjustments.
(a) Adjustment
for Stock Splits and Combinations.
If the
Company shall at any time or from time to time after the date on which this
Warrant was first issued (or, if this Warrant was issued upon partial exercise
of, or in replacement of, another warrant of like tenor, then the date on
which
such original warrant was first issued) (the “Original Issue Date”) effect a
subdivision of the outstanding Common Stock, the Purchase Price then in effect
immediately before that subdivision shall be proportionately decreased. If
the
Company shall at any time or from time to time after the Original Issue Date
combine the outstanding shares of Common Stock, the Purchase Price then in
effect immediately before the combination shall be proportionately increased.
Any adjustment under this paragraph shall become effective at the close of
business on the date the subdivision or combination becomes
effective.
(b) Adjustment
for Certain Dividends and Distributions.
In the
event the Company at any time, or from time to time after the Original Issue
Date shall make or issue, or fix a record date for the determination of holders
of Common Stock entitled to receive, a dividend or other distribution payable
in
additional shares of Common Stock, then and in each such event the Purchase
Price then in effect immediately before such event shall be decreased as
of the
time of such issuance or, in the event such a record date shall have been
fixed,
as of the close of business on such record date, by multiplying the Purchase
Price then in effect by a fraction:
(1) the
numerator of which shall be the total number of shares of Common Stock issued
and outstanding immediately prior to the time of such issuance or the close
of
business on such record date, and
(2) the
denominator of which shall be the total number of shares of Common Stock
issued
and outstanding immediately prior to the time of such issuance or the close
of
business on such record date plus the number of shares of Common Stock issuable
in payment of such dividend or distribution; provided,
however,
that if
such record date shall have been fixed and such dividend is not fully paid
or if
such distribution is not fully made on the date fixed therefor, the Purchase
Price shall be recomputed accordingly as of the close of business on such
record
date and thereafter the Purchase Price shall be adjusted pursuant to this
paragraph as of the time of actual payment of such dividends or
distributions.
(c) Adjustments
for Other Dividends and Distributions.
In the
event the Company at any time or from time to time after the Original Issue
Date
shall make or issue, or fix a record date for the determination of holders
of
Common Stock entitled to receive, a dividend or other distribution payable
in
securities of the Company (other than shares of Common Stock) or in cash
or
other property (other than regular cash dividends paid out of earnings or
earned
surplus, determined in accordance with generally accepted accounting
principles), then and in each such event provision shall be made so that
the
Registered Holder shall receive upon exercise hereof, in addition to the
number
of shares of Common Stock issuable hereunder, the kind and amount of securities
of the Company, cash or other property which the Registered Holder would
have
been entitled to receive had this Warrant been exercised on the date of such
event and had the Registered Holder thereafter, during the period from the
date
of such event to and including the Exercise Date, retained any such securities
receivable during such period, giving application to all adjustments called
for
during such period under this Section 2 with respect to the rights of the
Registered Holder.
(d) Adjustment
for Reorganization.
If
there shall occur any reorganization, recapitalization, reclassification,
consolidation or merger involving the Company in which the Common Stock is
converted into or exchanged for securities, cash or other property
(collectively, a “Reorganization”),
then,
following such Reorganization, the Registered Holder shall receive upon exercise
hereof the kind and amount of securities, cash or other property which the
Registered Holder would have been entitled to receive pursuant to such
Reorganization if such exercise had taken place immediately prior to such
Reorganization. Notwithstanding the foregoing sentence, if (x) there
shall
occur any Reorganization in which the Common Stock is converted into or
exchanged for anything other than solely equity securities, and (y) the
common stock of the acquiring or surviving company is publicly traded, then,
as
part of such Reorganization, (i) the Registered Holder shall have
the right
thereafter to receive upon the exercise hereof such number of shares of common
stock of the acquiring or surviving company as is determined by multiplying
(A) the number of shares of Common Stock subject to this Warrant
immediately prior to such Reorganization by (B) a fraction, the numerator
of which is the Fair Market Value (as defined in subsection 1(b)(ii) above)
per
share of Common Stock as of the effective date of such Reorganization, and
the
denominator of which is the fair market value per share of common stock of
the
acquiring or surviving company as of the effective date of such transaction,
as
determined in good faith by the Board (using the principles set forth in
subsections 2(d)(i) and 2(d)(ii) to the extent applicable), and
(ii) the exercise price per share of common stock of the acquiring
or
surviving company shall be the Purchase Price divided by the fraction referred
to in clause (B) above. In any such case, appropriate adjustment (as
determined in good faith by the Board) shall be made in the application of
the
provisions set forth herein with respect to the rights and interests thereafter
of the Registered Holder, to the end that the provisions set forth in this
Section 2 (including provisions with respect to changes in and other adjustments
of the Purchase Price) shall thereafter be applicable, as nearly as reasonably
may be, in relation to any securities, cash or other property thereafter
deliverable upon the exercise of this Warrant.
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3
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(e) Certificate
as to Adjustments.
Upon
the occurrence of each adjustment or readjustment of the Purchase Price pursuant
to this Section 2, the Company at its expense shall, as promptly as reasonably
practicable but in any event not later than 10 days thereafter, compute such
adjustment or readjustment in accordance with the terms hereof and furnish
to
the Registered Holder a certificate setting forth such adjustment or
readjustment (including the kind and amount of securities, cash or other
property for which this Warrant shall be exercisable and the Purchase Price)
and
showing in detail the facts upon which such adjustment or readjustment is
based.
The Company shall, as promptly as reasonably practicable after the written
request at any time of the Registered Holder (but in any event not later
than 10
days thereafter), furnish or cause to be furnished to the Registered Holder
a
certificate setting forth (i) the Purchase Price then in effect and
(ii) the number of shares of Common Stock and the amount, if any,
of other
securities, cash or property which then would be received upon the exercise
of
this Warrant.
3. Fractional
Shares.
The
Company shall not be required upon the exercise of this Warrant to issue
any
fractional shares, but shall pay the value thereof to the Registered Holder
in
cash on the basis of the Fair Market Value per share of Common Stock, as
determined pursuant to subsection 2(d) above.
4. Transfers,
etc.
(a) Notwithstanding
anything to the contrary contained herein, this Warrant and the Warrant Shares
shall not be sold or transferred unless either (i) they first shall
have
been registered under the Securities Act of 1933, as amended (the “Act”), or
(ii) such sale or transfer shall be exempt from the registration
requirements of the Act and the Company shall have been furnished with an
opinion of legal counsel, reasonably satisfactory to the Company, to the
effect
that such sale or transfer is exempt from the registration requirements of
the
Act. Notwithstanding the foregoing, no registration or opinion of counsel
shall
be required for (i) a transfer by a Registered Holder which is an
entity to
a wholly owned subsidiary of such entity, a transfer by a Registered Holder
which is a partnership to a partner of such partnership or a retired partner
of
such partnership or to the estate of any such partner or retired partner,
or a
transfer by a Registered Holder which is a limited liability company to a
member
of such limited liability company or a retired member or to the estate of
any
such member or retired member, provided
that the
transferee in each case agrees in writing to be subject to the terms of this
Section 4, or (ii) a transfer made in accordance with Rule 144
under the Act.
(b) Each
certificate representing Warrant Shares shall bear a legend substantially
in the
following form:
“The
securities represented hereby have not been registered under the Securities
Act
of 1933, as amended, or any state securities laws and neither the securities
nor
any interest therein may not be offered, sold, transferred, pledged or otherwise
disposed of except pursuant to an effective registration under such act or
an
exemption from registration, which, in the opinion of counsel reasonably
satisfactory to counsel for this corporation, is available.”
The
foregoing legend shall be removed from the certificates representing any
Warrant
Shares, at the request of the holder thereof, at such time as they become
eligible for resale pursuant to Rule 144(k) under the Act or at such
time
as the Warrant Shares are sold or transferred in accordance with the
requirements of a registration statement of the Company on Form S-3, or such
other form as may then be in effect.
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4
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(c) The
Company will maintain a register containing the name and address of the
Registered Holder of this Warrant. The Registered Holder may change its address
as shown on the warrant register by written notice to the Company requesting
such change.
(d) Subject
to the provisions of Section 4 hereof, this Warrant and all rights hereunder
are
transferable, in whole or in part, upon surrender of this Warrant with a
properly executed assignment (in the form of Exhibit II
hereto)
at the principal office of the Company (or, if another office or agency has
been
designated by the Company for such purpose, then at such other office or
agency).
5. No
Impairment.
The
Company will not, by amendment of its charter or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant, but will at all times
in
good faith assist in the carrying out of all such terms and in the taking
of all
such action as may be necessary or appropriate in order to protect the rights
of
the Registered Holder against impairment.
6. Notices
of Record Date, etc.
In the
event:
(a) the
Company shall take a record of the holders of its Common Stock (or other
stock
or securities at the time deliverable upon the exercise of this Warrant)
for the
purpose of entitling or enabling them to receive any dividend or other
distribution, or to receive any right to subscribe for or purchase any shares
of
stock of any class or any other securities, or to receive any other right;
or
(b) of
any
capital reorganization of the Company, any reclassification of the Common
Stock
of the Company, any consolidation or merger of the Company with or into another
corporation, or any transfer of all or substantially all of the assets of
the
Company; or
(c) of
the
voluntary or involuntary dissolution, liquidation or winding-up of the Company,
then, and in each such case, the Company will send or cause to be sent to
the
Registered Holder a notice specifying, as the case may be, (i) the record
date
for such dividend, distribution or right, and the amount and character of
such
dividend, distribution or right, or (ii) the effective date on which such
reorganization, reclassification, consolidation, merger, transfer, 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 (or such other stock or
securities at the time deliverable upon the exercise of this Warrant) shall
be
entitled to exchange their shares of Common Stock (or such other stock or
securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up. Such notice shall be sent at least 10 days prior
to
the record date or effective date for the event specified in such
notice.
7. Reservation
of Stock.
The
Company will at all times reserve and keep available, solely for issuance
and
delivery upon the exercise of this Warrant, such number of Warrant Shares
and
other securities, cash and/or property, as from time to time shall be issuable
upon the exercise of this Warrant.
8. Exchange
or Replacement of Warrants.
(a) Upon
the
surrender by the Registered Holder, properly endorsed, to the Company at
the
principal office of the Company, the Company will, subject to the provisions
of
Section 4 hereof, issue and deliver to or upon the order of the Registered
Holder, at the Company’s expense, a new Warrant or Warrants of like tenor, in
the name of the Registered Holder or as the Registered Holder (upon payment
by
the Registered Holder of any applicable transfer taxes) may direct, calling
in
the aggregate on the face or faces thereof for the number of shares of Common
Stock (or other securities, cash and/or property) then issuable upon exercise
of
this Warrant.
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(b) Upon
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and (in the case of loss, theft
or
destruction) upon delivery of an indemnity agreement (with surety if reasonably
required) in an amount reasonably satisfactory to the Company, or (in the
case
of mutilation) upon surrender and cancellation of this Warrant, the Company
will
issue, in lieu thereof, a new Warrant of like tenor.
9. Notices.
All
notices and other communications from the Company to the Registered Holder
in
connection herewith shall be mailed by certified or registered mail, postage
prepaid, or sent via a reputable nationwide overnight courier service
guaranteeing next business day delivery, to the address last furnished to
the
Company in writing by the Registered Holder. All notices and other
communications from the Registered Holder to the Company in connection herewith
shall be mailed by certified or registered mail, postage prepaid, or sent
via a
reputable nationwide overnight courier service guaranteeing next business
day
delivery, to the Company at its principal office set forth below. If the
Company
should at any time change the location of its principal office to a place
other
than as set forth below, it shall give prompt written notice to the Registered
Holder and thereafter all references in this Warrant to the location of its
principal office at the particular time shall be as so specified in such
notice.
All such notices and communications shall be deemed delivered one business
day
after being sent via a reputable international overnight courier service
guaranteeing next business day delivery.
10. No
Rights as Stockholder.
Until
the exercise of this Warrant, the Registered Holder shall not have or exercise
any rights by virtue hereof as a stockholder of the Company. Notwithstanding
the
foregoing, in the event (i) the Company effects a split of the Common
Stock
by means of a stock dividend and the Purchase Price of and the number of
Warrant
Shares are adjusted as of the date of the distribution of the dividend (rather
than as of the record date for such dividend), and (ii) the Registered
Holder exercises this Warrant between the record date and the distribution
date
for such stock dividend, the Registered Holder shall be entitled to receive,
on
the distribution date, the stock dividend with respect to the shares of Common
Stock acquired upon such exercise, notwithstanding the fact that such shares
were not outstanding as of the close of business on the record date for such
stock dividend.
11. Amendment
or Waiver.
Any
term of this Warrant may be amended or waived (either generally or in a
particular instance and either retroactively or prospectively) with the written
consent of the Company and the holders of Company Warrants representing at
least
eighty percent (80%) of the number of shares of Common Stock then subject
to
outstanding Company Warrants. Notwithstanding the foregoing, (a) this Warrant
may be amended and the observance of any term hereunder may be waived without
the written consent of the Registered Holder only in a manner which applies
to
all Company Warrants in the same fashion and (b) the number of Warrant Shares
subject to this Warrant and the Purchase Price of this Warrant may not be
amended, and the right to exercise this Warrant may not be waived, without
the
written consent of the Registered Holder (it being agreed that an amendment
to
or waiver under any of the provisions of Section 2 of this Warrant shall
not be
considered an amendment of the number of Warrant Shares or the Purchase Price).
The Company shall give prompt written notice to the Registered Holder of
any
amendment hereof or waiver hereunder that was effected without the Registered
Holder’s written consent. No waivers of any term, condition or provision of this
Warrant, in any one or more instances, shall be deemed to be, or construed
as, a
further or continuing waiver of any such term, condition or
provision.
12. Section
Headings.
The
section headings in this Warrant are for the convenience of the parties and
in
no way alter, modify, amend, limit or restrict the contractual obligations
of
the parties.
13. Governing
Law.
This
Warrant will be governed by and construed in accordance with the internal
laws
of the State of New York (without reference to the conflicts of law provisions
thereof).
14. Facsimile
Signatures.
This
Warrant may be executed by facsimile signature.
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EXECUTED
as of the Date of Issuance indicated above.
| HANA BIOSCIENCES, INC. | ||
| |
|
|
| Date: | By: | |
|
Name:
Title:
|
||
| ATTEST: | ||
|
|
||
EXHIBIT
I
PURCHASE
FORM
To:
Hana
Biosciences, Inc.Dated:____________
The
undersigned, pursuant to the provisions set forth in the attached Warrant
(No. ___), hereby elects to purchase (check
applicable box):
o ____
shares of the Common Stock of Hana Biosciences, Inc. covered by such Warrant;
or
o ____
the
maximum number of shares of Common Stock covered by such Warrant pursuant
to the
cashless exercise procedure set forth in subsection 1(b).
The
undersigned herewith makes payment of the full purchase price for such shares
at
the price per share provided for in such Warrant. Such payment takes the
form of
(check
applicable box or boxes):
o $______
in lawful money of the United States; and/or
o the
cancellation of such portion of the attached Warrant as is exercisable
for a
total of _____ Warrant Shares (using a Fair Market Value of $_____ per
share for
purposes of this calculation) ; and/or
o the
cancellation of such number of Warrant Shares as is necessary, in accordance
with the formula set forth in subsection 1(b), to exercise this
Warrant
with respect to the maximum number of Warrant Shares purchasable pursuant
to the
cashless exercise procedure set forth in subsection 1(b).
Signature: ______________________
Address: _______________________
_______________________
EXHIBIT
II
ASSIGNMENT
FORM
FOR
VALUE
RECEIVED, ______________________________________ hereby sells, assigns and
transfers all of the rights of the undersigned under the attached Warrant
(No.
____) with respect to the number of shares of Common Stock of Hana Biosciences,
Inc. covered thereby set forth below, unto:
|
Name
of Assignee
|
Address
|
No.
of Shares
|
Dated:_____________________Signature:________________________________
Signature
Guaranteed:
By:
_______________________
The
signature should be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with membership
in
an approved signature guarantee medallion program) pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended.
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