Exhibit 10.35
NEITHER THIS SECURITY NOR THE
SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH
EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
FORM OF
COMMON STOCK PURCHASE WARRANT
To Purchase [___________] Shares
of Common Stock of
Fortress Biotech, Inc.
THIS COMMON STOCK PURCHASE WARRANT (THIS
“WARRANT”) CERTIFIES that, for value received, [__________] (the "Holder"), is entitled,
upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after
the date hereof (the "Initial Exercise Date") and on or prior to the close of business on the fifth
anniversary of the date hereof (the "Termination Date") but not thereafter, to subscribe for and purchase
from Fortress Biotech, Inc., a corporation incorporated in the State of Delaware (the "Company"), up
to____________________shares (the "Warrant Shares") of Common Stock, par value $0.001 per share, of the
Company (the "Common Stock"). The purchase price of one share of Common Stock (the "Exercise
Price") under this Warrant shall be $3.00, subject to adjustment hereunder. The Exercise Price and the number of
Warrant Shares for which the Warrant is exercisable shall be subject to adjustment as provided herein.
1. Title to
Warrant. Prior to the Termination Date and subject to compliance with applicable laws and Section
7 of this Warrant, this Warrant and all rights hereunder are transferable, in whole or in part, at the office or agency
of the Company by the Holder in person or by duly authorized attorney, upon surrender of this Warrant together with the
“Assignment Form” annexed hereto properly endorsed. The transferee shall sign an investment letter in form and
substance reasonably satisfactory to the Company.
2. Authorization
of Shares. The Company covenants that all Warrant Shares which may be
issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented
by this Warrant, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges in
respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
3. Exercise
of Warrant.
(a) Cash
Exercise. Exercise of the purchase rights represented by this Warrant may be made at any time or times, in whole or in part,
on or after the Initial Exercise Date and on or before the Termination Date by the surrender of this Warrant and the “Notice
of Exercise Form” annexed hereto duly executed, at the office of the Company (or such other office or agency of the Company
as it may designate by notice in writing to the registered Holder at the address of such Holder appearing on the books of the Company)
and, upon payment of the Exercise Price of the shares thereby purchased by wire transfer or cashier's check drawn on a United States
bank, if applicable, the Holder shall be entitled to receive a certificate for the number of Warrant Shares so purchased. Certificates
for shares purchased hereunder shall be delivered to the Holder within ten (10) business days after the date on which this Warrant
shall have been exercised as aforesaid. This Warrant shall be deemed to have been exercised, such certificate or certificates shall
be deemed to have been issued, and the Holder or any other person so designated to be named therein shall be deemed to have
become a holder of record of such shares for all purposes, as of the date the Warrant has been exercised by payment to the Company
of the Exercise Price and all taxes required to be paid by the Holder, if any, pursuant to Section 5 prior to the issuance
of such shares have been paid.
(b) Net
Issue Exercise. If, as of any date after the Initial Exercise Date and on or before the Termination Date, there is no effective
registration statement of the Company covering the resale of the Warrant Shares issuable upon the exercise of this Warrant, the
Holder, at its option, may elect (in whole or in part) on any such date (and only on any such date) to receive Warrant Shares equal
to the value of this Warrant (or the portion thereof being canceled) by surrender of this Warrant at the principal office of the
Company together with “Notice of Exercise Form” annexed hereto duly executed, in which event the Company shall issue
to the Holder a number of Warrant Shares computed using the following formula:
Y (A-B)
X = ———————
A
Where: X = the number of Warrant
Shares to be issued to the Holder;
Y = the number of Warrant Shares purchasable under
this Warrant;
A = the Fair Market Value of one Share on the date
of determination; and
B = the per share Exercise Price (as adjusted to
the date of such calculation).
For purposes of this Section 3, the per share
“Fair Market Value” of the Warrant Shares shall mean:
(i) If
the Company’s Common Stock is publicly traded, the per share fair market value of the Warrant Shares shall be the average
of the closing prices of the Common Stock as quoted on the Over-the-Counter Bulletin Board, or the principal exchange on which
the Common Stock is listed, in each case for the fifteen business days ending five business days prior to the date of determination
of fair market value; or
(ii) If
the Company’s Common Stock is not so publicly traded, the per share fair market value of the Warrant Shares shall be such
fair market value as is determined in good faith by the Board of Directors of the Company after taking into consideration factors
it deems appropriate, including, without limitation, recent sale and offer prices of the capital stock of the Company in private
transactions negotiated at arm’s length.
(c) If
this Warrant shall have been exercised in part, the Company shall, at the time of delivery of the certificate or certificates representing
Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares
called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.
4. No
Fractional Shares or Scrip. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. As to any fraction of a share which Holder would otherwise
be entitled to purchase upon such exercise, the Company shall pay a cash adjustment in respect of such final fraction in an amount
equal to such fraction multiplied by the Exercise Price.
5. Charges,
Taxes and Expenses. Issuance of certificates for Warrant Shares shall be made without charge to the Holder
for any issue or transfer tax or other incidental expense in respect of the issuance of such certificate, all of which
taxes and expenses shall be paid by the Company, and such certificates shall be issued in the name of the Holder or in such name
or names as may be directed by the Holder; provided, however, that in the event certificates for Warrant Shares
are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied
by the “Assignment Form” attached hereto duly executed by the Holder; and the Company may require, as a condition
thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto.
6. Closing
of Books. The Company will not close its stockholder books or records
in any manner which prevents the timely exercise of this Warrant, pursuant to the terms hereof.
7. Transfer,
Division and Combination.
(a) Subject
to compliance with any applicable securities laws and the conditions set forth in Sections 1 and 7(e) hereof,
this Warrant and all rights hereunder are transferable, in whole or in part, upon surrender of this Warrant at the office of
the Company, together with a written assignment of this Warrant substantially in the “Assignment Form” attached
hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the
making of such transfer. Upon such surrender and, if required, such payment: (i) the Company shall execute and deliver a new
Warrant or Warrants in the name of the assignee or assignees and in the denomination or denominations specified in such
instrument of assignment (ii) the Company shall issue to the assignor a new Warrant evidencing the portion of this Warrant
not so assigned, and (iii) this Warrant shall promptly be cancelled. A Warrant, if properly assigned, may be exercised by a
new holder for the purchase of Warrant Shares without having a new Warrant issued.
(b) The
Company may require, as a condition of allowing such transfer (i) that the Holder or transferee of this Warrant, as the case may
be, furnish to the Company a written opinion of counsel (which opinion shall be in form, substance and scope customary for opinions
of counsel in comparable transactions) to the effect that such transfer may be made without registration under the Securities Act
and under applicable state securities or blue sky laws, (ii) that the Holder or transferee execute and deliver to the Company an
investment letter in form and substance acceptable to the Company and (iii) that the transferee be an "accredited investor"
as defined in Rule 501(a) promulgated under the Securities Act.
8. No
Rights as Shareholder until Exercise. This Warrant does not entitle the Holder to any voting rights or other
rights as a shareholder of the Company prior to the exercise hereof. Upon the surrender of this Warrant and the payment of the
aggregate Exercise Price, the Warrant Shares so purchased shall be and be deemed to be issued to such Holder as the record owner
of such shares as of the close of business on the later of the date of such surrender or payment.
9. Loss,
Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating
to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which,
in the case of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or
stock certificate, if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated
as of such cancellation, in lieu of such Warrant or stock certificate.
10. Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of
any action or the expiration of any right required or granted herein shall be a Saturday, Sunday or a legal holiday, then such
action may be taken or such right may be exercised on the next succeeding day not a Saturday, Sunday or legal holiday.
11. Adjustments
of Exercise Price and Number of Warrant Shares. The number and kind of securities purchasable upon the
exercise of this Warrant at the Exercise Price shall be subject to adjustment from time to time in accordance with the
following: In case the Company shall (i) pay a dividend in shares of Common Stock or make a distribution in shares of Common
Stock to all holders of its outstanding Common Stock, (ii) subdivide its outstanding shares of Common Stock into a greater
number of shares, (iii) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock, or
(iv) issue any shares of its capital stock in a reclassification of the Common Stock, then the number of Warrant Shares
purchasable upon exercise of this Warrant immediately prior thereto shall be adjusted so that the Holder shall be entitled to
receive the kind and number of Warrant Shares or other securities of the Company which it would have owned or have been
entitled to receive had such Warrant been exercised in advance thereof. Upon each such adjustment of the kind and number of
Warrant Shares or other securities of the Company which are purchasable hereunder, the Holder shall thereafter be entitled to
purchase the number of Warrant Shares or other securities resulting from such adjustment at an Exercise Price per Warrant
Share or other security obtained by multiplying the Exercise Price in effect immediately prior to such adjustment by the
number of Warrant Shares purchasable pursuant hereto immediately prior to such adjustment and dividing by the number of
Warrant Shares or other securities of the Company resulting from such adjustment. An adjustment made pursuant to this
paragraph shall become effective immediately after the effective date of such event retroactive to the record date, if any,
for such event.
12. Reclassification,
Merger, Consolidation or Disposition of Assets. In case the Company shall reclassify its Common Stock,
consolidate or merge with or into another corporation (where the Company is not the surviving corporation), or sell, transfer
or otherwise dispose of all or substantially all its property, assets or business to another corporation and, pursuant to the
terms of such reclassification, merger, consolidation or disposition of assets, shares of common stock of the successor or
acquiring corporation, or any cash, shares of stock or other securities or property of any nature whatsoever (including
warrants or other subscription or purchase rights) in addition to or in lieu of common stock of the successor or acquiring
corporation ("Other Property"), are to be received by or distributed to the holders of Common Stock of the
Company, then the Holder shall have the right thereafter to receive, upon exercise of this Warrant, the number of shares of
common stock of the successor or acquiring corporation and Other Property receivable upon or as a result of such
reclassification, merger, consolidation or disposition of assets by a holder of the total number of shares of Common Stock
for which this Warrant is exercisable immediately prior to such event. In case of any such reclassification, merger,
consolidation or disposition of assets, the successor or acquiring corporation (if other than the Company) shall expressly
assume the due and punctual observance and performance of each and every covenant and condition of this Warrant to be
performed and observed by the Company and all the obligations and liabilities hereunder, subject to such modifications as may
be deemed appropriate (as determined in good faith by resolution of the Board of Directors of the Company) in order to
provide for adjustments of Warrant Shares for which this Warrant is exercisable which shall be as nearly equivalent as
practicable to the adjustments provided for in this Section 12. For purposes of this Section 12,
“common stock of the successor or acquiring corporation” shall include stock of such corporation of any class
which is not preferred as to dividends or assets over any other class of stock of such corporation and which is not subject
to redemption and shall also include any evidences of indebtedness, shares of stock or other securities which are convertible
into or exchangeable for any such stock, either immediately or upon the arrival of a specified date or the happening of a
specified event and any warrants or other rights to subscribe for or purchase any such stock. The foregoing provisions of
this Section 12 shall similarly apply to successive reorganizations, reclassifications, mergers, consolidations or
disposition of assets.
13. Notice
of Adjustment. Whenever the number of Warrant Shares or number or kind
of securities or other property purchasable upon the exercise of this Warrant or the Exercise Price is adjusted, as herein provided,
the Company shall give notice thereof to the Holder, which notice shall state the number of Warrant Shares (and other securities
or property) purchasable upon the exercise of this Warrant and the Exercise Price of such Warrant Shares (and other securities
or property) after such adjustment, setting forth a brief statement of the facts requiring such adjustment and setting forth the
computation by which such adjustment was made.
14. Authorized
Shares. The Company covenants that during the period the Warrant is outstanding,
it will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of the
Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants that its issuance of
this Warrant shall constitute full authority to its officers who are charged with the duty of executing stock certificates to
execute and issue the necessary certificates for the Warrant Shares upon the exercise of the purchase rights under this Warrant.
The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided
herein without violation of any applicable law or regulation, or of any requirements of the NASDAQ or any other exchange on which
the Common Stock may be listed.
15. Miscellaneous.
(a) Jurisdiction. This
Warrant shall constitute a contract made under the laws of New York, without regard to its conflict of law, principles or rules.
(b) Restrictions. The
Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant will have restrictions upon resale imposed
by state and federal securities laws and will have an appropriate legend imprinted thereon.
(c) Nonwaiver. No
course of dealing or any delay or failure to exercise any right hereunder on the part of the Holder shall operate as a waiver of
such right or otherwise prejudice the Holder's rights, powers or remedies; provided, however, that all rights hereunder terminate
on the Termination Date.
(d) Notices. Any
notice, request or other document required or permitted to be given or delivered to the Holder by the Company shall be delivered
in accordance with the notice provisions of the Agreement; provided that upon any permitted assignment of this Warrant, the assignee
shall promptly provide the Company with its contact information.
(e) Limitation
of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this
Warrant or purchase Warrant Shares, and no enumeration herein of the rights or privileges of Holder, shall give rise to any liability
of Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by
the Company or by creditors of the Company.
(f) Successors
and Assigns. Subject to applicable securities laws, this Warrant and the
rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors of the Company and the
successors and permitted assigns of the Holder. The provisions of this Warrant are intended to be for the benefit of all Holders
from time to time of this Warrant and shall be enforceable by any such Holder or holder of Warrant Shares.
(g) Amendment. This
Warrant may be modified or amended (or the provisions hereof waived) with the written consent of the Company and the Holder.
(h) Severability. Wherever
possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective
to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions
of this Warrant.
(i) Headings. The
headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this
Warrant.
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized.
NOTICE OF EXERCISE FORM
(1) The
undersigned hereby elects to purchase__________Warrant Shares of Fortress Biotech, Inc. pursuant to the terms of the attached
Warrant, and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Method
of Exercise (Please initial the applicable blank):
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The undersigned elects to exercise the attached Warrant by means of a cash payment and tenders herewith or by concurrent wire transfer payment in full for the purchase price of the shares being purchased, together with all applicable transfer taxes, if any. |
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The undersigned elects to exercise the attached Warrant by means of the net exercise provisions of Section 1(b) of the Warrant. |
(3) Please
issue a certificate or certificates representing said Warrant Shares in the name of the undersigned or in such other name as is
specified below:
The Warrant Shares shall be delivered to the following:
(3) Accredited
Investor. The undersigned is an "accredited investor" as defined
in Regulation D promulgated under the Securities Act of 1933, as amended.
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[PURCHASER] |
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By: |
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Name: |
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Title: |
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Dated: |
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ASSIGNMENT FORM
(To assign
the foregoing warrant, execute
this form and supply required information.
Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, the foregoing
Warrant and all rights evidenced thereby are hereby assigned to
Dated:
____________, ______________
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Xxxxxx's Signature: |
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Holder's Address: |
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NOTE: The signature to this Assignment Form must
correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any change whatsoever,
and must be guaranteed by a bank or trust company. Officers of corporations and those acting in a fiduciary or other representative
capacity should file proper evidence of authority to assign the foregoing Warrant.
