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EXHIBIT 4.4
THIS WARRANT, AND ANY SECURITIES WHICH MAY BE ACQUIRED UPON THE EXERCISE OF THIS
WARRANT, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE SOLD, HYPOTHECATED OR OTHERWISE TRANSFERRED OR DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION, UNLESS AN EXEMPTION FROM THE REQUIREMENT OF SUCH
REGISTRATION IS AVAILABLE UNDER THE CIRCUMSTANCES AT THE TIME OBTAINING (AND, IF
REASONABLY REQUESTED BY THE COMPANY, DEMONSTRATED BY AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY).
WARRANT TO PURCHASE
350,000 SHARES
OF THE COMMON STOCK, PAR VALUE $00.01 PER SHARE,
OF UNITED THERAPEUTICS CORPORATION
For value received, CORTECH, INC., a Delaware corporation, or its permitted
successors or assigns (collectively, the "INVESTOR"), are entitled to subscribe
for and purchase from UNITED THERAPEUTICS CORPORATION, a Delaware corporation
(the "COMPANY"), from and after November 2, 2000 (the "WARRANT EXERCISE DATE"),
up to 350,000 fully paid and nonassessable shares (the "SHARES") of the
Company's common stock, par value $00.01 per share ("COMMON STOCK"), at the
purchase price of $3.00 per Share (the "EXERCISE PRICE"); provided however, that
the Exercise Price shall be $6.00 per Share if (a) UT, prior to January 15,
1999, consummates an aggregate equity investment of not less than five million
dollars ($5,000,000) in UT by one or more third party investors (the
"Financing") at a purchase price per Share of at least $6.00 per Share with
respect to such Financing, and (b) UT provides Cortech with notice and written
evidence of such Financing reasonably acceptable to Cortech, which notice shall
be postmarked no later than January 15, 1999. The Company agrees and
acknowledges that no Financing shall be considered consummated unless and until
the Financing has been received by the Company. The number and character of
Shares issuable pursuant to this Warrant are subject to adjustment as provided
herein. The Investor's right to purchase Shares pursuant to this Warrant shall
terminate on November 2, 2004.
Notwithstanding any other provision herein to the contrary, and with
reference to that certain Exclusive License Agreement between Cortech, Inc. and
the Company with an Effective Date as of November 2, 1998 (the "LICENSE
AGREEMENT"), this Warrant shall terminate without any further rights for the
Investor hereunder in the event that the Company, using its commercially
reasonable discretion, has terminated all research, development and
commercialization efforts regarding the Licensed Compound and the Products (as
such terms are defined in the License Agreement), as set forth in Section 3.6 of
the License Agreement, prior to the Warrant Exercise Date (and any such
termination on or after the Warrant Exercise Date shall be without effect
hereunder).
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This Warrant is subject to the following additional provisions, terms and
conditions:
1. Exercise of Warrant.
a. Manner of Exercise. This Warrant may be exercised by the holder
hereof, in whole or in part, by surrender of this Warrant, together with written
notice of exercise (a sample form of exercise is attached hereto as Exhibit A1),
to the Company at the principal office of the Company (which, for purposes of
this Warrant, shall be deemed to be the Company's address for notice purposes as
provided in Section 8 below) accompanied by payment (in cash, certified check or
bank draft payable to the order of the Company) of the Exercise price multiplied
by the number of Shares for which this Warrant is being exercised, or by
exercise of the Net Exercise Right as provided in Section 1(b) below.
b. Net Exercise Right. In lieu of payment of the Exercise Price
pursuant to Section 1(a) above, this Warrant may also be exercised, in whole or
in part, by surrender of this Warrant together with written notice of exercise
specifying the holder's election to convert all, or any specified portion, of
this Warrant (the "NET EXERCISE RIGHT") into the number of Shares equal to the
quotient obtained by dividing:
(x) the value of the Shares for which the Warrant is then being
exercised (determined by subtracting the aggregate Exercise Price of
such Shares in effect immediately prior to the exercise of the Net
Exercise Right from the aggregate fair market value of the Shares
immediately prior to the exercise of the Net Exercise Right) by
(y) the fair market value of one Share immediately prior to the
exercise of the Net Exercise Right.
The fair market value of a Share as of a particular date shall be determined as
follows:
(1) If the Common Stock is publicly traded on a particular
valuation date, fair market value on such date shall be:
(i) the closing sale price of the Common Stock, as quoted on any
national securities exchange on which such stock shall be listed and
registered, on the business day immediately preceding the valuation
date;
(ii) the closing sale price of the Common Stock, if such stock is then
quoted on the National Association of Securities Dealers, Inc.
("NASDAQ") National Market, on the business day immediately preceding
the valuation date; or
(iii) if the Common Stock is not then traded on a national securities
exchange or on the NASDAQ National Market, but is quoted on NASDAQ, the
average of the
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closing bid and asked prices for the Common Stock as reported on NASDAQ
on the business day immediately preceding the valuation date.
(2) If the Common Stock is not publicly traded on a particular
valuation date, fair market value on such date shall be determined by the Board
of Directors of the Company acting in good faith (taking into account, as such
Board of Directors acting in good xxxxx xxxxx appropriate, any recent corporate
events involving a determination of value for the Company's securities (e.g.,
the closing of an offering of securities or the granting of incentive stock
options)).
c. When Exercise Effective. Each exercise of this Warrant shall be
deemed to have been effected on the date on which the Investor provides the
Company with the deliveries contemplated by Section 1(a) above.
d. Delivery of Stock Certificates. Certificates representing the Shares
purchased upon any exercise of this Warrant shall bear the restrictive legend
set forth in Section 9 below and shall be delivered to the Investor promptly
following such exercise. A new Warrant exercisable for the number of Shares, if
any, with respect to which this Warrant shall not have been exercised shall also
be delivered to the Investor. No fractional Shares shall be issued upon the
exercise of this Warrant; rather, the Investor shall receive an amount, in cash,
equal to the fair market value of any such fractional Shares (determined with
reference to the provisions of Section 1(b) above).
2. Shares Issuable Upon Exercise.
a. Reserved. The Company covenants and agrees that all Shares that may
be issued upon the exercise of this Warrant shall, upon issuance pursuant to an
exercise of this Warrant in accordance with its terms, be duly authorized and
validly issued, fully paid and nonassessable Shares, free and clear of all
preemptive rights. The Company will at all times reserve and keep available,
solely for issuance and delivery upon the exercise of this Warrant, such number
of Shares of the Company Stock as shall be issuable from time to time upon the
exercise of this Warrant.
b. Restricted Securities. Investor acknowledges that the Company is
issuing this Warrant in reliance upon the exemption from registration provided
under Section 4(2) of the Securities Act and is relying upon Investor's
representation that it is an "accredited investor" within the meaning of Rule
501 of Regulation D under the Securities Act of 1933, as amended (the "1933
ACT"). Investor acknowledges that the Shares to be issued upon the exercise of
this Warrant may be unregistered at the time of exercise and, in such event,
Investor acknowledges that the Shares to be issued upon the exercise of this
Warrant may only be pledged, offered, sold or transferred if registered under
the 1933 Act or pursuant to an exemption from the registration requirements
thereunder. Investor understands that absent registration of the Shares to be
issued upon the exercise of this Warrant under the 1933 Act, compliance with an
applicable exemption under the 1933 Act is required for a sale or other
disposition of such shares. Investor further understands and acknowledges that
there is not now available, and may
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not be available when it wishes to sell such Shares to be issued upon the
exercise of this Warrant, adequate current public information with respect to
the Company which would permit offers or sales of the Shares pursuant to Rule
144 promulgated under the 1933 Act. Investor acknowledges that the Company is
under no obligation to register the Shares to be issued upon the exercise of
this Warrant. Investor understands that, so long as the legend provided in
Section 9 below may remain on the certificates presenting the Shares to be
issued upon the exercise of this Warrant, the Company may maintain appropriate
"stop transfer" orders with respect to such shares on its books and records and
with its registrar and transfer agent.
Listed. Prior to the issuance of any Shares, the Company shall secure
the listing or quotation of such Shares upon each national securities exchange
or automated quotation system, if any, upon which shares of Common Stock are
then listed or traded (subject to official notice of issuance upon exercise of
this Warrant) and shall maintain, so long as any other shares of Common Stock
shall be so listed or traded, such listing or quotation of all Shares from time
to time issuable upon the exercise of this Warrant. The Company shall so list or
secure quotation on each national securities exchange or automated quotation
system, and shall maintain such listing or quotation of, any other shares
issuable upon any exercise of this Warrant if and so long as any shares of the
same class shall be listed or quoted on such national securities exchange or
automated quotation system.
3. Adjustment. The Exercise Price and/or the number and type of
securities issuable upon any exercise of this Warrant shall be subject to
adjustment from time to time as hereinafter provided in this Section 3.
a. If the Company, at any time, divides the outstanding shares of its
Common Stock into a greater number of shares (whether pursuant to a stock split,
stock dividend or otherwise), and conversely, if the outstanding shares of its
Common Stock are combined into a smaller number of shares, the number of Shares
available upon any exercise of this Warrant and the Exercise Price in effect
immediately prior to such division or combination shall be proportionately
adjusted to reflect the reduction or increase in outstanding shares.
b. If any capital reorganization or reclassification of the capital
stock of the Company, or consolidation or merger of the Company with another
corporation, or the sale of all or substantially all of its assets to another
corporation shall be effected in such a way that holders of shares of Common
Stock shall be entitled to receive stock, other securities or assets with
respect to or in exchange for such shares of Common Stock, then, as a condition
of such reorganization, reclassification, consolidation, merger or sale, the
holder of this Warrant shall have the right to purchase and receive upon the
basis and upon the terms and conditions specified in this Warrant and in lieu of
the Shares immediately theretofore purchasable and receivable upon the exercise
of this Warrant, such shares of stock, other securities or assets as would have
been issued or delivered to the Investor if the Investor had exercised this
Warrant and had received such
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Shares prior to such reorganization, reclassification, consolidation, merger or
sale. The Company shall not effect any such consolidation or merger unless,
prior to the consummation thereof, the successor corporation (if other than the
Company) resulting from such consolidation or merger shall assume by written
instrument executed and mailed to the Investor (i) the obligation to deliver to
the Investor such shares of stock, other securities or assets as, in accordance
with the foregoing provisions, the Investor may be entitled to purchase and (ii)
the other obligations of the Company set forth or referred to in this Warrant.
c. If, after the initial issuance of this Warrant to the Investor, the
Company shall declare a dividend or distribution payable to holders of the
Common Stock (whether payable in cash, securities or other assets of the
Company), upon any exercise of this Warrant the Investor shall be entitled to
receive, and the Company shall promptly pay to the Investor, any such
dividend(s) and/or distribution(s) (as well as any other cash, securities or
other assets which the Investor would have received had it held any securities
received in any such dividend(s) and/or distribution(s)), also giving effect to
the other provisions of this Section 3.
d. Promptly following any adjustment under this Section 3, the Company
shall give written notice thereof (by first class mail, postage prepaid) to the
Investor (at the Investor's address as shown on the books of the Company), which
notice shall state the Exercise Price and number of Shares (or other securities
or assets) resulting from such adjustment, setting forth in reasonable detail
the method of calculation and the facts upon which such calculation is based.
e. The terms of this Warrant shall be binding upon the successors of
the Company.
4. No Rights as Stockholder; Notice. The Investor shall not by virtue of
this Warrant be entitled to any rights of a stockholder of the Company. However,
the Company shall give notice to the Investor if at any time prior to the
expiration or exercise in full of this Warrant any of the following events shall
occur:
(a) the Company shall declare any dividend or distribution with respect to
its capital stock;
(b) a dissolution, liquidation or winding up of the Company shall be
proposed; or
(c) a capital reorganization or reclassification of the capital stock of
the Company, any consolidation or merger of the Company with or into
another corporation, any transaction or series of transactions in
which more than fifty percent (50%) of the voting securities of the
Company are transferred to another person, or any sale or conveyance
to another corporation of the property of the Company as an entirety
or substantially as an entirety.
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Such giving of notice shall be effected at least fifteen (15) business days
prior to the date fixed as a record date or effective date or the date of
closing of the Company's stock transfer books for the determination of the
stockholders entitled to such dividend or distribution, or for the determination
of the stockholders entitled to vote on such proposed merger, consolidation,
sale, conveyance, dissolution, liquidation or winding up. Such notice shall
specify such record date or the date of closing the stock transfer books, as the
case may be.
5. Registered Owner. The Company may treat the registered owner hereof as
the owner for all purposes (notwithstanding any markings or notations on the
face of this Warrant).
6. Loss, Theft, Destruction or Mutilation. Upon receipt of the Company of
satisfactory evidence of the loss, theft, destruction or mutilation of this
Warrant and either (in the case of loss, theft or destruction) indemnification
satisfactory to the Company or (in the case of mutilation) the surrender of this
Warrant for cancellation, the Company will execute and deliver to the Investor,
without charge, a Warrant of like denomination.
7. Public Reporting. With a view to making available to the Investor the
benefits of Rule 144 ("RULE 144") promulgated under the 1933 Act, and any other
rule or regulation of the Securities and Exchange Commission (the "SEC") that
may at any time permit the Investor to sell Shares to the public without
registration, the Company agrees that, for so long as a class of its securities
is registered under Section 12 of the Securities Exchange Act of 1934, as
amended (the "1934 ACT"), the Company will: (i) make and keep public information
available, as those terms are understood and defined in Rule 144, at all times;
(ii) file with the SEC in a timely manner all reports and other documents
required of the Company under the 1933 Act and the 1934 Act; and (iii) furnish
to the Investor, forthwith upon request, (a) a written statement by the Company
that it has complied with the reporting requirements of Rule 144, the 1933 Act
and the 1934 Act, (b) a copy of the most recent annual or quarterly report of
the Company filed with the SEC and such other reports and documents so filed by
the Company which the Investor may reasonably request, and (c) such other
information as may be reasonably requested in availing the Investor of any rule
or regulation of the SEC which permits the selling of any Shares without
registration under the 1933 Act.
8. Notices. Any notice or demand desired or required to be given hereunder
shall be in writing and given (except as otherwise provided herein) by personal
delivery, certified or registered mail or air courier addressed as follows:
If to the Company: United Therapeutics Corporation
0 Xxxxx Xxxxx
Xxxxxxxx Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx 00000
Attention: President
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with a copy to: Xxxxx Patusky Xxxxxxxxx & Xxxxxx
0000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxx Xxxxx
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx X. Xxxxx, Esq.
If to Cortech, Inc.: Cortech, Inc.
0000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: President
with a copy to: Dechert Price & Xxxxxx
Princeton Pike Corp. Center
000 Xxxxxx Xxxxx, Xxxxxxxx 0
Xxxxxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx, Esq.
or to such other address as the party to receive the notice or request shall
designate by notice to the other. Any notice or request shall be deemed given
when received.
9. Legend. The Company may cause each certificate representing Shares
issued upon exercise of this Warrant to bear a legend in substantially the
following form:
"The securities represented by this certificate have not been registered or
qualified under the Federal Securities Act of 1933 (the "1933 ACT") or
applicable state securities laws and are "restricted securities" within the
meaning of Rule 144 promulgated under the 0000 Xxx. The securities may not
be sold or transferred without complying with Rule 144 in the absence of
effective registration under the 1933 Act or other compliance under or
exemption from the 1933 Act and applicable state securities laws."
10. Taxes. The Company agrees that it will pay, and will hold the Investor
harmless from any and all liability with respect to, any stamp or similar taxes
which may be determined to be payable to the State of Delaware in connection
with the issuance, delivery or exercise of this Warrant (as well as the issuance
or delivery of Shares upon any exercise of this Warrant).
11. Miscellaneous. Neither this Warrant nor any term hereof may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought. The Section headings in this Warrant are for purposes
of reference only and shall not limit or otherwise affect the meaning hereof.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed and
delivered by its duly authorized officers as of November 2, 1998.
UNITED THERAPEUTICS CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------
Its: Chief Executive Officer
--------------------------
By:_____________________________
Its:____________________________
Witness:
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EXHIBIT A1
WARRANT EXERCISE
(To be signed only upon an exercise of the Warrant)
The undersigned, the holder of the attached Warrant, hereby elects to
exercise the purchase right represented by such Warrant for, and to purchase
thereunder, __________ of the Shares of Common Stock of United Therapeutics
Corporation to which such Warrant relates and herewith makes payment of
$__________ therefor in cash or by certified check or bank draft [OR ELECTION IS
MADE WITH RESPECT TO THE CURRENT EXERCISE OF THE WARRANT TO UTILIZE THE NET
EXERCISE RIGHT AS DESCRIBED IN SUCH WARRANT] and requests that the certificate
for such Shares be issued in the name of, and be delivered to
________________________, whose address is set forth below the signature of the
undersigned.
Dated:____________________________
____________________________________
[SIGNATURE]
____________________________________
____________________________________
____________________________________
[ADDRESS]
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