EXHIBIT 4.3
WARRANT
TO
PURCHASE ______ SHARES OF CLASS A COMMON STOCK
OF
BIOPURE CORPORATION
(A DELAWARE CORPORATION)
Warrant No. ___
THIS CERTIFIES THAT, for value received, _______ or its assigns, (the
"HOLDER"), as registered owner of this warrant (the "WARRANT"), is entitled to
purchase and receive, in whole or in part, subject to the provisions of this
Warrant, from Biopure Corporation, a Delaware corporation (the "COMPANY"), up to
____ fully paid, validly issued and nonassessable shares of Class A common
stock, par value $.01 per share (the "COMMON STOCK"), of the Company (the
"WARRANT SHARES") at a price per share equal to $0.984 (the "INITIAL EXERCISE
PRICE") (120% of the initial public offering price per share); provided,
however, that the number and kind of securities for which the Warrants are
exercisable are subject to further adjustment in certain events, such as
mergers, splits, stock dividends, recapitalizations and the like, to prevent
dilution, as set forth herein. This Warrant shall be exercisable at any time and
from time to time during the period commencing one (1) year after (the
"COMMENCEMENT DATE") the date of hereof up to and including January 17, 2011
(the "EXPIRATION DATE"), and subject to the terms and conditions set forth
herein. If the Expiration Date is a day on which banking institutions are
authorized by law to close, then this Warrant may be exercised on the next
succeeding day which is not such a day in accordance with the terms herein.
During the period beginning on the Commencement Date and ending on the
Expiration Date, the Company agrees not to take any action that would terminate
the Warrant.
Section 1. Exercise.
Section 1.1 Exercise Form. In order to exercise this Warrant, the
exercise form attached hereto must be duly executed and completed and
delivered to the Company, together with this Warrant and payment of the
Exercise Price in cash or by certified check or official bank check for the
Warrant Shares being purchased. If the subscription rights represented
hereby shall not be exercised at or before 5:00 p.m., Eastern time, on the
Expiration Date, this Warrant shall become and be void without further
force or effect, and all rights represented hereby shall cease and expire.
Section 1.2 Conversion Right.
Section 1.2.1 Determination of Amount. In lieu of the
payment of the Exercise Price in the manner required by Section 1.1, the
Holder shall have the right (but not the obligation) to convert any
exercisable but unexercised portion of this Warrant into Warrant Shares
(the "CONVERSION RIGHT") as follows. Upon exercise of the Conversion Right,
the Company shall deliver to the Holder (without payment by the Holder of
any of the Exercise Price in cash) that number of Warrant Shares equal to
the quotient obtained by dividing (x) the "VALUE" (as defined below), at
the close of trading on the next to last trading day immediately preceding
the exercise of the Conversion Right, of the portion of the Warrant being
converted by (y) the "MARKET PRICE" (as defined below). The "VALUE" of the
portion of the Warrant being converted shall equal the remainder derived
from subtracting (a) the Exercise Price multiplied by the number of Warrant
Shares underlying that portion of the Warrant being converted from (b) the
Market Price of the Warrant Shares multiplied by the number of Warrant
Shares underlying that portion of the Warrant being converted. As used in
this herein, the term "MARKET PRICE" at any date shall be deemed to be the
sum of (A) the average last reported sale price of the shares for the five
trading days ending on the next to last trading day immediately preceding
the exercise of the Conversion Right as officially reported by the
principal securities exchange on which the shares are listed or admitted to
trading, or, if the shares are not listed or admitted to trading on any
national securities exchange or if any such exchange on which the shares
are listed is not its principal trading market, the average last reported
sale price for such five trading days as furnished by the NASD through the
Nasdaq National Market or Capital Market, or, if applicable, the OTC
Bulletin Board, or if the shares are not listed or admitted to trading on
any of the foregoing markets, or similar organization, as determined in
good faith by resolution of the Board of Directors of the Company, based on
the best information available to it and (B) the intrinsic value of the
Warrant using the share price determined in (A).
Section 1.2.2 Mechanics of Conversion. The Conversion Right
may be exercised by the Holder on any business day on or after the
Commencement Date and not later than the Expiration Date by delivering the
Warrant with a duly executed exercise form attached hereto with the
Conversion Right section completed to the Company, exercising the
Conversion Right and specifying the total number of Warrant Shares that the
Holder will purchase pursuant to such Conversion Right.
Section 1.3 Notwithstanding anything to the contrary herein,
after the sixth (6th) month anniversary of the date hereof, the Company
may, by written notice to the Holder, require that the Holder execute and
deliver to the Company an Exercise Notice exercising all of the Warrant
Shares then held by such Holder within twenty (20) Business Days of the
date of the Company's notice; provided, however, that the Company may only
provide such notice if the daily volume weighted average price per share of
the Common Stock for each of the ten (10) consecutive trading days ended
immediately prior to the Company's notice is equal to or greater than the
Exercise Price multiplied by 1.5. At 5:00 P.M. New York City time on such
twentieth (20th) Business Day, the portion of this Warrant not exercised
prior thereto shall be and become void and of no value, and the Holder
hereof shall have no right to purchase any additional Warrant Shares
hereunder.
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Section 2. Transfer.
Section 2.1 General Restrictions. The registered Holder of this
Warrant, by its acceptance hereof, agrees that it will not sell, transfer
or assign or hypothecate this Warrant prior to the one hundred eighty (180)
days from the Effective Date to anyone other than (i) an officer or partner
of such Xxxxxx, (ii) an officer of either Xxxxxx Xxxxx Securities, Inc. or
Noble International Investments, Inc., the underwriters of the public
offering with respect to which this Warrant has been issued
("UNDERWRITERS") or an officer or partner of any selected dealer in
connection with the Company's public offering with respect to which this
Warrant has been issued, or (iii) any selected dealer. On and after the
Commencement Date, transfers to others may be made subject to compliance
with or exemptions from applicable securities laws. In order to make any
permitted assignment, the Holder must deliver to the Company the assignment
form attached hereto duly executed and completed, together with the Warrant
and payment of all transfer taxes, if any, payable in connection therewith.
The Company shall immediately transfer this Warrant on the books of the
Company and shall execute and deliver a new Warrant of like tenor to the
appropriate assignee(s) expressly evidencing the right to purchase the
aggregate number of Warrant Shares purchasable hereunder or such portion of
such number as shall be contemplated by any such assignment.
Section 2.2 Restrictions Imposed by the Act. This Warrant and the
Warrant Shares underlying this Warrants shall not be transferred unless and
until (i) the Company has received the opinion of counsel for the Holder
that this Warrant or the Warrant Shares, as the case may be, may be
transferred pursuant to an exemption from registration under the Act and
applicable state law, the availability of which is established to the
reasonable satisfaction of the Company (the Company hereby agreeing that an
opinion of Cozen X'Xxxxxx shall be deemed satisfactory evidence of the
availability of an exemption), or (ii) a registration statement relating to
such Warrant or Warrant Shares, as the case may be, has been filed by the
Company and declared effective by the Securities and Exchange Commission
(the "COMMISSION") and compliance with applicable state law.
Section 3. New Warrants to be Issued.
Section 3.1 Partial Exercise or Transfer. Subject to the
restrictions in Section 3 hereof, this Warrant may be exercised or assigned
in whole or in part. In the event of the exercise or assignment hereof in
part only, upon surrender of this Warrant for cancellation, together with
the duly executed exercise or assignment form and funds sufficient to pay
any Exercise Price and/or transfer tax, the Company shall cause to be
delivered to the Holder without charge a new Warrant of like tenor to this
Warrant in the name of the Holder evidencing the right of the Holder to
purchase the aggregate number of Warrant Shares purchasable hereunder as to
which this Warrant has not been exercised or assigned.
Section 3.2 Lost Certificate. Upon receipt by the Company of
evidence satisfactory to it of the loss, theft, destruction or mutilation
of this Warrant and of reasonably satisfactory indemnification, and upon
surrender and cancellation of the Warrants, if mutilated, the Company shall
execute and deliver a new Warrant of like tenor and date. Any such new
Warrant executed and delivered as a result of such loss, theft, mutilation
or destruction shall constitute a substitute contractual obligation on the
part of the Company.
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Section 4. Registration Rights.
Section 4.1 Registration. This Warrant and the Warrant Shares
issuable upon exercise of the Warrant (the Warrant and Warrant Shares
collectively referred to hereinafter as the "REGISTRABLE SECURITIES") shall
be registered pursuant to the Registration Statement (as defined
hereinbelow), and the Company covenants and agrees to maintain the
effectiveness of the Registration Statement until the Expiration Date.
Notwithstanding the foregoing, in the event that, prior to the Expiration
Date, the Company ceases to be eligible under the Securities Act of 1933,
as amended (the "ACT") or the rules and regulations promulgated thereunder,
to maintain a registration statement on Form S-3, or in the event that the
Warrant or the Warrant Shares cease to be eligible for inclusion in such
Registration Statement to the extent necessary to permit the Holder to
exercise the Warrants and sell the Warrant Shares without restriction under
the Act, the Company will promptly (and in any event within 10 days of the
date that the Warrants or any Warrant Shares cease to be so eligible),
amend or file a new registration statement under the Act on a form eligible
for use by the Company for the registration of such securities and use its
best efforts to have such registration statement declared effective by the
Commission as soon as practicable after such filing, which registration
statement shall include such information as may be required to permit the
exercise of the Warrant and the sale of the Warrant Shares without
restriction under the Act. The Holder acknowledges and agrees that the
Warrant shall be exercisable pursuant to any such registration statement
only at such times as the registration statement is effective or in
accordance with any applicable exemption from the registration requirements
of the Act. Upon such Registration Statement's being declared effective by
the Commission, the Company shall use its best efforts to cause the
Registration Statement to remain effective for a period of at least six (6)
consecutive months from the date that the holders of the Warrant and the
Warrant Shares are covered by such Registration Statement are first given
the opportunity to sell all of such securities. During such time as the
Warrant Shares registered pursuant to any registration statement under the
Act, the Company further covenants and agrees to make timely filings of all
documents required by be filed under the Act or the Exchange Act in order
to ensure that the registration statement, including the documents
incorporated by reference therein, if any, do not contain an untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading.
"REGISTRATION STATEMENT" means the Company's Registration Statement
(File Nos. 333-114559), as such registration statements are amended,
supplemented, or replaced.
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Section 4.2 Expenses. The Company shall bear all fees and
expenses attendant to registering the Registrable Securities.
Section 4.3 Exercise of Warrants. Nothing contained in this
Warrant shall be construed as requiring the Holder(s) to exercise their
Warrants prior to or after the initial filing of any registration statement
or the effectiveness thereof.
Section 4.4 Documents to be Delivered by Xxxxxx(s). Each of the
Holder(s) participating in any of the foregoing offerings shall furnish to
the Company a completed and executed questionnaire provided by the Company
requesting information customarily sought of selling securityholders.
Section 4.5 Remedies. The Company stipulates that the remedies at
law of the Holder of this Warrant in the event of any default or threatened
default by the Company in the performance of or compliance with any of the
terms of this Warrant are not and will not be adequate, and that such terms
may be specifically enforced by a decree for the specific performance of
any agreement contained herein or by an injunction restraining any breach,
actual or threatened, of the terms of this Warrant, without the necessity
of showing economic loss. The remedies provided herein shall be cumulative
and in addition to all other remedies available under this Warrant, at law
or in equity, and nothing herein shall limit the right of the Holder to
pursue actual damages for any failure by the Company to comply with the
terms of the Warrant.
Section 5. Adjustments.
Section 5.1 Adjustments to Exercise Price and Number of
Securities. The Exercise Price and the number of the Warrant Shares
underlying the Warrant shall be subject to adjustment from time to time as
hereinafter set forth:
Section 5.1.1 If after the date hereof, and subject to the
provisions of Section 5.2 below, the number of outstanding shares of Common
Stock is increased by a stock dividend payable in shares of Common Stock or
by a split-up of shares of Common Stock or other similar event, then, on
the effective date thereof, the number of shares of Common Stock underlying
the Warrant shall be increased in proportion to such increase in
outstanding shares.
Section 5.1.2 If after the date hereof, and subject to the
provisions of Section 5.2, the number of outstanding shares of Common Stock
is decreased by a consolidation, combination or reclassification of shares
of Common Stock or other similar event, then, on the effective date
thereof, the number of shares of Common Stock underlying the Warrant shall
be decreased in proportion to such decrease in outstanding shares.
Section 5.1.3 In case of any reclassification or
reorganization of the outstanding shares of Common Stock other than a
change covered by Section 5.1.1 or 5.1.2 hereof or that solely affects the
par value of such shares of Common Stock, or in the case of any merger or
consolidation of the Company with or into another corporation (other than a
consolidation or merger in which the Company is the continuing corporation
and that does not result in any reclassification or reorganization of the
outstanding shares of Common Stock), or in the case of any sale or
conveyance to another corporation or entity of the property of the Company
as an entirety or substantially as an entirety in connection with which the
Company is dissolved, the Holder of this Warrant shall have the right
thereafter (until the expiration of the right of exercise of this Warrant)
to receive upon the exercise hereof, for the same aggregate Exercise Price
payable hereunder immediately prior to such event, the kind and amount of
shares of stock or other
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securities or property (including cash) receivable upon such
reclassification, reorganization, merger or consolidation, or upon a
dissolution following any such sale or transfer, by a Holder of the number
of shares of Common Stock of the Company obtainable upon exercise of this
Warrant immediately prior to such event; and if any reclassification also
results in a change in shares of Common Stock covered by Section 5.1.1 or
5.1.2, then such adjustment shall be made pursuant to Sections 5.1.1, 5.1.2
and this Section 5.1.3. The provisions of this Section 5.1.3 shall
similarly apply to successive reclassifications, reorganizations, mergers
or consolidations, sales or other transfers.
Section 5.1.4 This form of Warrant need not be changed
because of any change pursuant to this Section, and Warrants issued after
such change may state the same Exercise Price and the same number of
Warrant Shares as are stated in the Warrant initially issued pursuant to
this Agreement. The acceptance by any Holder of the issuance of new Warrant
reflecting a required or permissive change shall not be deemed to waive any
rights to an adjustment occurring after the Commencement Date or the
computation thereof.
Section 5.1.5 In case of any consolidation of the Company
with, or merger of the Company with, or merger of the Company into, another
corporation (other than a consolidation or merger which does not result in
any reclassification or change of the outstanding Common Stock), the
corporation formed by such consolidation or merger shall execute and
deliver to the Holder a replacement Warrant providing that the holder of
each Warrant then outstanding or to be outstanding shall have the right
thereafter (until the stated expiration of such Warrant) to receive, upon
exercise of such Warrant the kind and amount of shares of stock and other
securities and property receivable upon such consolidation or merger, by a
holder of the number of shares of Common Stock of the Company for which
such Warrant might have been exercised immediately prior to such
consolidation, merger, sale or transfer. Such replacement Warrant shall
provide for adjustments which shall be identical to the adjustments
provided in Section 5. The above provision of this Section shall similarly
apply to successive consolidations or mergers.
Section 5.2 Elimination of Fractional Interests. The Company
shall not be required to issue certificates representing fractions of
shares of Common Stock or Warrants upon the exercise of the Warrant, nor
shall it be required to issue scrip or pay cash in lieu of any fractional
interests, it being the intent of the parties that all fractional interests
shall be eliminated by rounding any fraction down to the nearest whole
number of Warrants, shares of Common Stock or other securities, properties
or rights.
Section 6. Reservation and Listing.
The Company shall at all times reserve and keep available out of
its authorized shares of Common Stock, solely for the purpose of issuance
upon exercise of the Warrant such number of shares of Common Stock or other
securities, properties or rights as shall be issuable upon the exercise
thereof. The Company covenants and agrees that, upon exercise of the
Warrant and payment of the Exercise Price therefor, all shares of Common
Stock and other securities issuable upon such exercise shall be duly and
validly issued, fully paid and non-assessable and not subject to preemptive
rights of any stockholder. As long as the Warrant shall be outstanding, the
Company shall use its best efforts to cause all Warrant Shares issuable
upon exercise of the Warrant to be listed (subject to official notice of
issuance) on all securities exchanges (or, if applicable on the Nasdaq
National Market, Capital Market, OTC Bulletin Board or any successor
trading market) on which the Common Stock or the Public Warrants issued to
the public in connection herewith may then be listed and/or quoted.
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Section 7. Certain Notice Requirements.
Section 7.1 Holder's Right to Receive Notice. Nothing herein
shall be construed as conferring upon the Holder the right to vote or
consent as a stockholder for the election of directors or any other matter,
or as having any rights whatsoever as a stockholder of the Company. If,
however, at any time prior to the expiration of the Warrant and its
exercise, any of the events described in Section 7.2 shall occur, then, in
one or more of said events, the Company shall give written notice of such
event at least fifteen (15) days prior to the date fixed as a record date
or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, conversion or
exchange of securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall
specify such record date or the date of the closing of the transfer books,
as the case may be. Notwithstanding the foregoing, the Company shall
deliver to the Holder a copy of each notice given to the other stockholders
of the Company at the same time and in the same manner that such notice is
given to the stockholders.
Section 7.2 Enumerated Events. The Company shall be required to
give the notice described in this Section 7 upon one or more of the
following events: (i) if the Company shall take a record of the holders of
its shares of Common Stock for the purpose of entitling them to receive a
dividend or distribution payable otherwise than in cash, or a cash dividend
or distribution payable otherwise than out of retained earnings, as
indicated by the accounting treatment of such dividend or distribution on
the books of the Company, or (ii) the Company shall offer to all the
holders of its Common Stock any additional shares of capital stock of the
Company or securities convertible into or exchangeable for shares of
capital stock of the Company, or any option, right or warrant to subscribe
therefor, or (iii) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation or merger) or a sale of all
or substantially all of its property, assets and business shall be proposed
by the Company.
Section 7.3 Change in Exercise Price. The Company shall, promptly
after an event requiring a change in the Exercise Price pursuant to Section
7 hereof, send notice to the Holder of such event and change (the "PRICE
NOTICE"). The Price Notice shall describe the event causing the change and
the method of calculating same and shall be certified as being true and
accurate by the Company's President and Chief Financial Officer.
Section 7.4 Transmittal of Notices. All notices, requests,
consents and other communications under this Warrant shall be in writing
and shall be deemed to have been duly made on the date of delivery if
delivered personally or sent by overnight courier, with acknowledgement of
receipt to the party to which notice is given, or on the fifth day after
mailing if mailed to the party to whom notice is to be given, by registered
or certified mail, return receipt requested, postage prepaid and properly
addressed as follows: (i) if to the registered Holder of the Warrant, to
the address of such Holder as shown on the books of the Company, or (ii) if
to the Company, to its principal executive office.
Section 8. Miscellaneous.
Section 8.1 Amendments. The Company and the Underwriters may from
time to time supplement or amend this Warrant without the approval of any
of the Holders in order to cure any ambiguity, to correct or supplement any
provision contained herein which may be defective or inconsistent with any
other provisions herein, or to make any other provisions in regard to
matters or questions arising hereunder which the Company and the
Underwriters may deem necessary or desirable and which the Company and the
Underwriters deem shall not
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adversely affect the interest of the Holders. All other modifications or
amendments shall require the written consent of the party against whom
enforcement of the modification or amendment is sought.
Section 8.2 Headings. The headings contained herein are for the
sole purpose of convenience of reference, and shall not in any way limit or
affect the meaning or interpretation of any of the terms or provisions of
this Warrant.
Section 8.3 Entire Agreement. This Warrant (together with the
other agreements and documents being delivered pursuant to or in connection
with this Warrant) constitutes the entire agreement of the parties hereto
with respect to the subject matter hereof, and supersedes all prior
agreements and understandings of the parties, oral and written, with
respect to the subject matter hereof.
Section 8.4 Binding Effect. This Warrant shall inure solely to
the benefit of and shall be binding upon, the Holder and the Company and
their respective successors, legal representatives and assigns, and no
other person shall have or be construed to have any legal or equitable
right, remedy or claim under or in respect of or by virtue of this Warrant
or any provisions herein contained.
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Section 8.5 Governing Law; Submission to Jurisdiction. This
Warrant shall be governed by and construed and enforced in accordance with
the laws of the State of New York, without giving effect to conflict of
laws. The Company hereby agrees that any action, proceeding or claim
against it arising out of, or relating in any way to this Warrant shall be
brought and enforced in the courts of the State of New York or of the
United States of America for the Southern District of New York, and
irrevocably submits to such jurisdiction, which jurisdiction shall be
exclusive. The Company hereby waives any objection to such exclusive
jurisdiction and that such courts represent an inconvenient forum. Any
process or summons to be served upon the Company may be served by
transmitting a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to BIOPURE CORPORATION, 00 XXXXXX
XXXXXX, XXXXXXXXX, XX 00000, ATTN: XXXX XXXXX, ESQ. Such mailing shall be
deemed personal service and shall be legal and binding upon the Company in
any action, proceeding or claim. The Company and the Holder, by acceptance
hereof, agree that the prevailing party(ies) in any such action shall be
entitled to recover from the other party(ies) all of its reasonable
attorneys' fees and expenses relating to such action or proceeding and/or
incurred in connection with the preparation therefor.
Section 8.6 Waiver, Etc. The failure of the Company or the Holder
to at any time enforce any of the provisions of this Warrant shall not be
deemed or construed to be a waiver of any such provision, nor to in any way
affect the validity of this Warrant or any provision hereof or the right of
the Company or any Holder to thereafter enforce each and every provision of
this Warrant. No waiver of any breach, non-compliance or non-fulfillment of
any of the provisions of this Warrant shall be effective unless set forth
in a written instrument executed by the party or parties against whom or
which enforcement of such waiver is sought; and no waiver of any such
breach, non-compliance or non-fulfillment shall be construed or deemed to
be a waiver of any other or subsequent breach, non-compliance or
non-fulfillment.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officer as of the __th day of January 2006.
BIOPURE CORPORATION
By:
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(Signature Page Underwriters' Warrant UW-3)
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FORM TO BE USED TO EXERCISE WARRANT:
Biopure Corporation
Date: ______________, 200__
The undersigned hereby elects irrevocably to exercise the within
Warrant and to purchase ____ Biopure Corporation and hereby makes payment of
$____________ (at the rate of $_________ per Share) in payment of the Exercise
Price pursuant thereto. Please issue the Share as to which this Warrant is
exercised in accordance with the instructions given below.
or
The undersigned hereby elects irrevocably to exercise the within
Warrant and to purchase _________ Biopure Corporation by surrender of the
unexercised portion of the within Warrant (with a "Value" of $_______ based on a
"Market Price" of $__________.) Please issue the Warrant Shares as to which this
Warrant is exercised in accordance with the instructions given below.
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Signature
NOTICE: THE SIGNATURE TO THIS FORM MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN WARRANT IN EVERY PARTICULAR WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER.
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name ________________________________________________________
(Print in Block Letters)
Address ______________________________________________________
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Form to be used to assign Warrant:
ASSIGNMENT
(To be executed by the registered Holder to effect a transfer of the
within Warrant):
FOR VALUE RECEIVED,__________________________________ does hereby
sell, assign and transfer unto _______________________ the right to purchase
_______________________ of Biopure Corporation ("Company") evidenced by the
within Warrant and does hereby authorize the Company to transfer such right on
the books of the Company.
Dated: ___________________, 200_
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Signature
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Signature Guaranteed
NOTICE: THE SIGNATURE TO THIS FORM MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN WARRANT IN EVERY PARTICULAR WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY A
BANK, OTHER THAN A SAVINGS BANK, OR BY A TRUST COMPANY OR BY A FIRM HAVING
MEMBERSHIP ON A REGISTERED NATIONAL SECURITIES EXCHANGE.
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