Exhibit 10.54
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR
EXEMPTION FROM REGISTRATION UNDER THE FOREGOING LAWS.
SUBJECT TO THE PROVISIONS OF SECTION 10 HEREOF, THIS WARRANT SHALL BE VOID AFTER
5:00 P.M. EASTERN TIME ON JULY 17, 2008 (THE "EXPIRATION DATE").
No. __
ANTARES PHARMA, INC
WARRANT TO PURCHASE _________ SHARES OF
COMMON STOCK, PAR VALUE $0.01 PER SHARE
FOR VALUE RECEIVED, ________________________ ("Warrantholder"), is entitled
to purchase, subject to the provisions of this Warrant, from Antares Pharma,
Inc. a Minnesota corporation ("Company"), at any time not later than 5:00 P.M.,
Eastern time, on the Expiration Date (as defined above), at an exercise price
per share equal to $1.25 (the exercise price in effect being herein called the
"Warrant Price"), _______ shares ("Warrant Shares") of the Company's Common
Stock, par value $0.01 per share ("Common Stock"). The number of Warrant Shares
purchasable upon exercise of this Warrant and the Warrant Price shall be subject
to adjustment from time to time as described herein.
Section 1. Registration. The Company shall maintain books for the transfer
and registration of the Warrant. Upon the initial issuance of this Warrant, the
Company shall issue and register the Warrant in the name of the Warrantholder.
Section 2. Transfers. As provided herein, this Warrant may be transferred
only pursuant to a registration statement filed under the Securities Act of
1933, as amended ("Securities Act"), or an exemption from such registration.
Subject to such restrictions, the Company shall transfer this Warrant from time
to time upon the books to be maintained by the Company for that purpose, upon
surrender thereof for transfer properly endorsed or accompanied by appropriate
instructions for transfer and such other documents as may be reasonably required
by the Company, including, if required by the Company, an opinion of its counsel
to the effect that such transfer is exempt from the registration requirements of
the Securities Act, to establish that such transfer is being made in accordance
with the terms hereof, and a new Warrant shall be issued to the transferee and
the surrendered Warrant shall be canceled by the Company.
Section 3. Exercise of Warrant.
(a) Subject to the provisions hereof, the Warrantholder may exercise
this Warrant in whole or in part at any time prior to its expiration upon
surrender of the Warrant, together with delivery of the duly executed Warrant
exercise form attached hereto as Appendix A (the "Exercise Agreement") and
payment by cash, certified check or wire transfer of funds for the aggregate
Warrant Price for that number of Warrant Shares then being purchased, to the
Company during normal business hours on any business day at the Company's
principal executive offices (or such other office or agency of the Company as it
may designate by notice to the holder hereof). The Warrant Shares so purchased
shall be deemed to be issued to the holder hereof or such holder's designee, as
the record owner of such shares, as of the close of business on the date on
which this Warrant shall have been surrendered (or evidence of loss, theft or
destruction thereof and security or indemnity satisfactory to the Company), the
Warrant Price shall have been paid and the completed Exercise Agreement shall
have been delivered. Certificates for the Warrant Shares so purchased,
representing the aggregate number of shares specified in the Exercise Agreement,
shall be delivered to the holder hereof within a reasonable time, not exceeding
three (3) business days, after this Warrant shall have been so exercised. The
certificates so delivered shall be in such denominations as may be requested by
the holder hereof and shall be registered in the name of such holder or such
other name as shall be designated by such holder. If this Warrant shall have
been exercised only in part, then, unless this Warrant has expired, the Company
shall, at its expense, at the time of delivery of such certificates, deliver to
the holder a new Warrant representing the number of shares with respect to which
this Warrant shall not then have been exercised. As used herein, "business day"
means a day, other than a Saturday or Sunday, on which banks in New York City
are open for the general transaction of business.
(b) Notwithstanding anything herein to the contrary, in no event
shall the Warrantholder be entitled to exercise any portion of this Warrant in
excess of that portion of this Warrant upon exercise of which the sum of (1) the
number of shares of Common Stock beneficially owned by the Warrantholder and its
Affiliates (other than shares of Common Stock which may be deemed beneficially
owned through the ownership of the unexercised portion of the Warrant or the
unexercised or unconverted portion of any other security of the Warrantholder
subject to a limitation on conversion analogous to the limitations contained
herein) and (2) the number of shares of Common Stock issuable upon the exercise
of the portion of this Warrant with respect to which the determination of this
proviso is being made, would result in beneficial ownership by the Warrantholder
and its Affiliates of more than 9.99% of the then outstanding shares of Common
Stock. As used herein, the term "Affiliate" means any person or entity that,
directly or indirectly through one or more intermediaries, controls or is
controlled by or is under common control with a person or entity, as such terms
are used in and construed under Rule 144 under the Securities Act. For purposes
of the proviso to the immediately preceding sentence, beneficial ownership shall
be determined in accordance with Section 13(d) of the Securities Exchange Act of
1934, as amended, and Regulations 13D-G thereunder, except as otherwise provided
in clause (1) of such proviso. The Warrantholder may waive the limitations set
forth herein by sixty-one (61) days written notice to the Company.
2
Section 4. Compliance with the Securities Act of 1933. The Company may
cause the legend set forth on the first page of this Warrant to be set forth on
each Warrant or similar legend on any security issued or issuable upon exercise
of this Warrant, unless counsel for the Company is of the opinion as to any such
security that such legend is unnecessary.
Section 5. Payment of Taxes. The Company will pay any documentary stamp
taxes attributable to the initial issuance of Warrant Shares issuable upon the
exercise of the Warrant; provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issuance or delivery of any certificates for Warrant Shares in a
name other than that of the registered holder of this Warrant in respect of
which such shares are issued, and in such case, the Company shall not be
required to issue or deliver any certificate for Warrant Shares or any Warrant
until the person requesting the same has paid to the Company the amount of such
tax or has established to the Company's reasonable satisfaction that such tax
has been paid. The holder shall be responsible for income taxes due under
federal, state or other law, if any such tax is due.
Section 6. Mutilated or Missing Warrants. In case this Warrant shall be
mutilated, lost, stolen, or destroyed, the Company shall issue in exchange and
substitution of and upon cancellation of the mutilated Warrant, or in lieu of
and substitution for the Warrant lost, stolen or destroyed, a new Warrant of
like tenor and for the purchase of a like number of Warrant Shares, but only
upon receipt of evidence reasonably satisfactory to the Company of such loss,
theft or destruction of the Warrant, and with respect to a lost, stolen or
destroyed Warrant, reasonable indemnity or bond with respect thereto, if
requested by the Company.
Section 7. Reservation of Common Stock. The Company hereby represents and
warrants that there have been reserved, and the Company shall at all applicable
times keep reserved until issued (if necessary) as contemplated by this Section
7, out of the authorized and unissued shares of Common Stock, sufficient shares
to provide for the exercise of the rights of purchase represented by this
Warrant. The Company agrees that all Warrant Shares issued upon due exercise of
the Warrant shall be, at the time of delivery of the certificates for such
Warrant Shares, duly authorized, validly issued, fully paid and non-assessable
shares of Common Stock of the Company.
Section 8. Adjustments. Subject and pursuant to the provisions of this
Section 8, the Warrant Price and number of Warrant Shares subject to this
Warrant shall be subject to adjustment from time to time as set forth
hereinafter.
(a) If the Company shall, at any time or from time to time while this
Warrant is outstanding, pay a dividend or make a distribution on its Common
Stock in shares of Common Stock, subdivide its outstanding shares of Common
Stock into a greater number of shares or combine its outstanding shares of
Common Stock into a smaller number of shares or issue by reclassification of its
outstanding shares of Common Stock any shares of its capital stock (including
any such reclassification in connection with a consolidation or merger in which
the Company is the continuing corporation), then the number of Warrant Shares
purchasable upon exercise of the Warrant and the Warrant Price in effect
immediately prior to the date upon which such change shall become effective,
shall be adjusted by the Company so that the Warrantholder
3
thereafter exercising the Warrant shall be entitled to receive the number of
shares of Common Stock or other capital stock which the Warrantholder would have
received if the Warrant had been fully exercised immediately prior to such event
upon payment of a Warrant Price that has been adjusted to reflect a fair
allocation of the economics of such event to the Warrantholder. Such adjustments
shall be made successively whenever any event listed above shall occur.
(b) If any capital reorganization, reclassification of the capital
stock of the Company, consolidation or merger of the Company with another
corporation in which the Company is not the survivor, or sale, transfer or other
disposition of all or substantially all of the Company's assets to another
corporation shall be effected, then, the Company shall use its best efforts to
ensure that lawful and adequate provision shall be made whereby each
Warrantholder shall thereafter have the right to purchase and receive upon the
basis and upon the terms and conditions herein specified and in lieu of the
Warrant Shares immediately theretofore issuable upon exercise of the Warrant,
such shares of stock, securities or assets as would have been issuable or
payable with respect to or in exchange for a number of Warrant Shares equal to
the number of Warrant Shares immediately theretofore issuable upon exercise of
the Warrant, had such reorganization, reclassification, consolidation, merger,
sale, transfer or other disposition not taken place, and in any such case
appropriate provision shall be made with respect to the rights and interests of
each Warrantholder to the end that the provisions hereof (including, without
limitation, provision for adjustment of the Warrant Price) shall thereafter be
applicable, as nearly equivalent as may be practicable in relation to any shares
of stock, securities or assets thereafter deliverable upon the exercise thereof.
The Company shall not effect any such consolidation, merger, sale, transfer or
other disposition unless prior to or simultaneously with the consummation
thereof the successor corporation (if other than the Company) resulting from
such consolidation or merger, or the corporation purchasing or otherwise
acquiring such assets or other appropriate corporation or entity shall assume
the obligation to deliver to the holder of the Warrant, at the last address of
such holder appearing on the books of the Company, such shares of stock,
securities or assets as, in accordance with the foregoing provisions, such
holder may be entitled to purchase, and the other obligations under this
Warrant. The provisions of this paragraph (b) shall similarly apply to
successive reorganizations, reclassifications, consolidations, mergers, sales,
transfers or other dispositions.
(c) In case the Company shall fix a payment date for the making of a
distribution to all holders of Common Stock (including any such distribution
made in connection with a consolidation or merger in which the Company is the
continuing corporation) of evidences of indebtedness or assets (other than cash
dividends or cash distributions payable out of consolidated earnings or earned
surplus or dividends or distributions referred to in Section 8(a)), or
subscription rights or warrants, the Warrant Price to be in effect after such
payment date shall be determined by multiplying the Warrant Price in effect
immediately prior to such payment date by a fraction, the numerator of which
shall be the total number of shares of Common Stock outstanding multiplied by
the Market Price (as defined below) per share of Common Stock immediately prior
to such payment date, less the fair market value (as determined by the Company's
Board of Directors in good faith) of said assets or evidences of indebtedness so
distributed, or of such subscription rights or warrants, and the denominator of
which shall be the total number of shares of Common Stock outstanding multiplied
by such Market Price per share of Common Stock immediately prior to such payment
date. "Market Price" as of a particular
4
date (the "Valuation Date") shall mean the following: (a) if the Common Stock is
then listed on a national stock exchange, the closing sale price of one share of
Common Stock on such exchange on the last trading day prior to the Valuation
Date; (b) if the Common Stock is then quoted on The Nasdaq Stock Market, Inc.
("Nasdaq"), the closing sale price of one share of Common Stock on Nasdaq on the
last trading day prior to the Valuation Date or, if no such closing sale price
is available, the average of the high bid and the low asked price quoted on
Nasdaq on the last trading day prior to the Valuation Date; or (c) if the Common
Stock is not then listed on a national stock exchange or quoted on Nasdaq, the
fair market value of one share of Common Stock as of the Valuation Date, shall
be determined in good faith by the Board of Directors of the Company. The Board
of Directors of the Company shall respond promptly, in writing, to an inquiry by
the Warrantholder prior to the exercise hereunder as to the Market Value of a
share of Common Stock as determined by the Board of Directors of the Company.
(d) For the term of this Warrant, in addition to the provisions
contained above, the Warrant Price shall be subject to adjustment as provided
below. An adjustment to the Warrant Price shall become effective immediately
after the payment date in the case of each dividend or distribution and
immediately after the effective date of each other event which requires an
adjustment.
(e) Except as provided in subsection (g) hereof, if and whenever the
Company shall issue or sell, or is, in accordance with any of subsections (e)(l)
through (e)(6) hereof, deemed to have issued or sold, any shares of Common Stock
for a consideration per share less than the Warrant Price in effect immediately
prior to the time of such issue or sale, then and in each such case (a "Trigger
Issuance"), effective as of the close of business on the effective date of the
Trigger Issuance the then-existing Warrant Price shall be reduced to the lowest
price per share at which any share of Common Stock was issued or sold or deemed
to be issued or sold in such Trigger Issuance.
For purposes of this subsection (e), "Additional Shares of Common
Stock" shall mean all shares of Common Stock issued by the Company or deemed to
be issued pursuant to this subsection (e), other than those excluded issuances
set forth in subsection (f) hereof).
For purposes of this subsection (e), the following subsections (e)(l)
to (e)(5) shall also be applicable (subject, in each such case, to the
provisions of subsection (f) hereof and to each other subsection contained in
this subsection (e)):
(e)(1) Issuance of Convertible Securities; Issuance of Rights
or Options. In case at any time after the date hereof the Company
shall in any manner grant, issue or sell any stock or security
convertible into or exchangeable for Common Stock ("Convertible
Securities") or any warrants or other rights to subscribe for or to
purchase, or any options for the purchase of, Common Stock or any
Convertible Securities (such warrants, rights or options being called
"Options"), whether or not the right to convert, exchange or exercise
any such Convertible Securities or such Options are immediately
exercisable, and the price per share for which Common Stock is
issuable upon the conversion or exchange of such Convertible
Securities or upon the exercise of such Options (determined by
5
dividing (i) the sum of (x) the total amount, if any, received or
receivable by the Company as consideration for the issue or sale of
such Convertible Securities or the granting of such Options, plus (y)
the aggregate amount of additional consideration, if any, payable to
the Company upon the conversion or exchange of all such Convertible
Securities or the exercise of all such Options, plus (z), in the case
of such Options to purchase Convertible Securities, the aggregate
amount of additional consideration, if any, payable upon the
conversion or exchange of such Convertible Securities, by (ii) the
maximum number of shares of Common Stock issuable upon the conversion
or exchange of all such Convertible Securities, or upon the exercise
of such Options, or upon the conversion or exchange of all such
Convertible Securities issuable upon the exercise of such Options)
shall be less than the Warrant Price in effect immediately prior to
the time of the issue or sale of such Convertible Securities or the
granting of such Options, then the total number of shares of Common
Stock issuable upon the conversion or exchange of such Convertible
Securities, or the exercise of such Options, or upon the conversion
or exchange of the maximum amount of such Convertible Securities
issuable upon the exercise of such Options shall be deemed to have
been issued for such price per share as of the date of the issuance
or sale of such Convertible Securities or the granting of such
Options (including Options to purchase Convertible Securities) and
thereafter shall be deemed to be outstanding for purposes of
adjusting the Warrant Price. Except as otherwise provided in
subsection 8(e)(2), no additional adjustment of the Warrant Price
shall be made upon the actual issue of such Common Stock upon
conversion or exchange of such Convertible Securities or upon
exercise of such Options.
(e)(2) Change in Option Price or Conversion Rate. Upon the
happening of any of the following events, namely, if the purchase
price provided for in any Option referred to in subsection 8(e)(l)
hereof, the additional consideration, if any, payable upon the
conversion or exchange of any Convertible Securities referred to in
subsection 8(e)(l), or the rate at which Convertible Securities
referred to in subsection 8(e)(l) are convertible into or
exchangeable for Common Stock shall change at any time (including,
but not limited to, changes under or by reason of provisions designed
to protect against dilution), the Warrant Price in effect at the time
of such event shall forthwith be readjusted to the Warrant Price
which would have been in effect at such time had such Options or
Convertible Securities still outstanding provided for such changed
purchase price, additional consideration or conversion rate, as the
case may be, at the time initially granted, issued or sold, but only
if as a result of such adjustment the Warrant Price then in effect
hereunder is thereby reduced. On the termination of any Option for
which any adjustment was made pursuant to this subsection 8(e) or any
right to convert or exchange Convertible Securities for which any
adjustment was made pursuant to this subsection 8(e), the Warrant
Price then in effect hereunder shall forthwith be changed to the
Warrant Price which would have been in effect at the time of such
termination had such Option or Convertible Securities, to the extent
outstanding immediately prior to such termination, never been issued.
6
(e)(3) Consideration for Stock. In case any shares of Common
Stock, Options or Convertible Securities shall be issued or sold for
cash, the consideration received therefor shall be deemed to be the
gross amount received by the Company therefor, before deduction
therefrom of any expenses incurred or any underwriting commissions or
concessions paid or allowed by the Company in connection therewith.
In case any shares of Common Stock, Options or Convertible Securities
shall be issued or sold for a consideration other than cash, the
amount of the consideration other than cash received by the Company
shall be deemed to be the fair value of such consideration as
determined in good faith by the Board of Directors of the Company,
before deduction of any expenses incurred or any underwriting
commissions or concessions paid or allowed by the Company in
connection therewith. In case any Options shall be issued in
connection with the issue and sale of other securities of the
Company, together comprising one integral transaction in which no
specific consideration is allocated to such Options by the parties
thereto, such Options shall be deemed to have been issued for such
consideration as determined in good faith by the Board of Directors
of the Company.
(e)(4) Record Date. In case the Company shall take a record of
the holders of its Common Stock for the purpose of entitling them (i)
to receive a dividend or other distribution payable in Common Stock,
Options or Convertible Securities or (ii) to subscribe for or
purchase Common Stock, Options or Convertible Securities, then such
record date shall be deemed to be the date of the issue or sale of
the shares of Common Stock deemed to have been issued or sold upon
the declaration of such dividend or the making of such other
distribution or the date of the granting of such right of
subscription or purchase, as the case may be. Notwithstanding the
foregoing, no anti-dilution adjustment shall be effected with respect
to any transaction for which a record date is set by the Company if
the transaction is abandoned by the Company prior to the time such
transaction becomes effective.
(e)(5) Treasury Shares. The number of shares of Common Stock
outstanding at any given time shall not include shares owned or held
by or for the account of the Company or any of its Subsidiaries (as
defined in the Purchase Agreement pursuant to which this Warrant was
issued), and the disposition of any such shares (other than the
cancellation or retirement thereof) shall be considered an issue or
sale of Common Stock for the purpose of this subsection (e).
(f) Anything herein to the contrary notwithstanding, the Company
shall not be required to make any adjustment to the Warrant Price or the number
of Warrant Shares subject to this Warrant in the case of the following issuances
of shares of Common Stock from and after the date of this Warrant: (i) issuances
upon the exercise of any warrants, options or convertible securities granted,
issued and outstanding on the date of issuance of this Warrant; (ii) issuances
upon the grant or exercise of any stock or options which may hereafter be
granted or exercised under any employee benefit plan, stock option plan or
restricted stock plan of the
7
Company in existence on the date of this Warrant, so long as the issuance of
such stock or options is approved by a majority of the independent members of
the Board of Directors of the Company or a majority of the members of a
committee of independent directors established for such purpose; (iii) issuances
of securities as compensation to marketing or investor relations firms that are
not Affiliates of the Company (the primary purpose of which is not to raise
equity capital); or (iv) issuances of securities as consideration for a merger
or consolidation with, or purchase of assets from, a non-Affiliated third party
or in connection with any strategic partnership or joint venture with a
non-Affiliated third party with which the Company will enter into technology
agreements (the primary purpose of any such action is not to raise equity
capital).
(g) In the event that, as a result of an adjustment made pursuant to
this Section 8, the holder of this Warrant shall become entitled to receive any
shares of capital stock of the Company other than shares of Common Stock, the
number of such other shares so receivable upon exercise of this Warrant shall be
subject thereafter to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the Warrant
Shares contained in this Warrant.
Section 9. Fractional Interest. The Company shall not be required to issue
fractions of Warrant Shares upon the exercise of this Warrant. If any fractional
share of Common Stock would, except for the provisions of the first sentence of
this Section 9, be deliverable upon such exercise, the Company, in lieu of
delivering such fractional share, shall pay to the exercising holder of this
Warrant an amount in cash equal to the Market Price of such fractional share of
Common Stock on the date of exercise.
Section 10. Extension of Expiration Date. If the Company fails to cause any
Registration Statement covering Registrable Securities (unless otherwise defined
herein, capitalized terms are as defined in the Registration Rights Agreement
relating to the Warrant Shares (the "Registration Rights Agreement")) to be
declared effective prior to the applicable dates set forth therein, or if any of
the events specified in Section 2(c)(ii) of the Registration Rights Agreement
occurs, and the Blackout Period (whether alone, or in combination with any other
Blackout Period) continues for more than 30 days in any 12 month period, or for
more than a total of 90 days, then the Expiration Date of this Warrant shall be
extended one day for each day beyond the 30-day or 90-day limits, as the case
may be, that the Blackout Period continues.
Section 11. Benefits. Nothing in this Warrant shall be construed to give
any person, firm or corporation (other than the Company and the Warrantholder)
any legal or equitable right, remedy or claim, it being agreed that this Warrant
shall be for the sole and exclusive benefit of the Company and the
Warrantholder.
Section 12. Notices to Warrantholder. Upon the happening of any event
requiring an adjustment of the Warrant Price, the Company shall promptly give
written notice thereof to the Warrantholder at the address appearing in the
records of the Company, stating the adjusted Warrant Price and the adjusted
number of Warrant Shares resulting from such event and setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is
8
based. Failure to give such notice to the Warrantholder or any defect therein
shall not affect the legality or validity of the subject adjustment.
Section 13. Identity of Transfer Agent. The Transfer Agent for the Common
Stock is Xxxxx Fargo Shareowner Services. Upon the appointment of any subsequent
transfer agent for the Common Stock or other shares of the Company's capital
stock issuable upon the exercise of the rights of purchase represented by the
Warrant, the Company will mail to the Warrantholder a statement setting forth
the name and address of such transfer agent.
Section 14. Notices. Unless otherwise provided, any notice required or
permitted under this Warrant shall be given in writing and shall be deemed
effectively given as hereinafter described (i) if given by personal delivery,
then such notice shall be deemed given upon such delivery, (ii) if given by
telex or facsimile, then such notice shall be deemed given upon receipt of
confirmation of complete transmittal, (iii) if given by mail, then such notice
shall be deemed given upon the earlier of (A) receipt of such notice by the
recipient or (B) three days after such notice is deposited in first class mail,
postage prepaid, and (iv) if given by an internationally recognized overnight
air courier, then such notice shall be deemed given one day after delivery to
such carrier. All notices shall be addressed as follows: if to the
Warrantholder, at its address as set forth in the Company's books and records
and, if to the Company, at the address as follows, or at such other address as
the Warrantholder or the Company may designate by ten days' advance written
notice to the other:
If to the Company:
Antares Pharma, Inc.
000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Fax: 000-000-0000
With a copy to:
Xxxxxxx, Street and Deinard Professional Association
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Fax: 000-000-0000
Section 15. Registration Rights. The initial holder of this Warrant is
entitled to the benefit of certain registration rights with respect to the
shares of Common Stock issuable upon the exercise of this Warrant as provided in
the Registration Rights Agreement, and any subsequent holder hereof may be
entitled to such rights.
9
Section 16. Successors. All the covenants and provisions hereof by or for
the benefit of the Warrantholder shall bind and inure to the benefit of its
respective successors and assigns hereunder.
Section 17. Governing Law. This Warrant shall be governed by, and construed
in accordance with, the internal laws of the State of New York, without
reference to the choice of law provisions thereof. The Company and, by accepting
this Warrant, the Warrantholder, each irrevocably submits to the exclusive
jurisdiction of the courts of the State of New York located in New York County
and the United States District Court for the Southern District of New York for
the purpose of any suit, action, proceeding or judgment relating to or arising
out of this Warrant and the transactions contemplated hereby. Service of process
in connection with any such suit, action or proceeding may be served on each
party hereto anywhere in the world by the same methods as are specified for the
giving of notices under this Warrant. The Company and, by accepting this
Warrant, the Warrantholder, each irrevocably consents to the jurisdiction of any
such court in any such suit, action or proceeding and to the laying of venue in
such court. The Company and, by accepting this Warrant, the Warrantholder, each
irrevocably waives any objection to the laying of venue of any such suit, action
or proceeding brought in such courts and irrevocably waives any claim that any
such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum.
Section 18. No Rights as Shareholder. Prior to the exercise of this
Warrant, the Warrantholder shall not have or exercise any rights as a
shareholder of the Company by virtue of its ownership of this Warrant.
Section 19. Amendment; Waiver. This Warrant is one of a series of Warrants
of like tenor issued by the Company pursuant to the Purchase Agreement and
initially covering an aggregate of 1,500,000 shares of Common Stock
(collectively, the "Company Warrants"). Any term of this Warrant may be amended
or waived (including the adjustment provisions included in Section 8 of this
Warrant) upon the written consent of the Company and the holders of Company
Warrants representing at least 51% of the number of shares of Common Stock then
subject to all outstanding Company Warrants (the "Majority Holders"); provided,
that (x) any such amendment or waiver must apply to all Company Warrants; and
(y) the number of Warrant Shares subject to this Warrant, the Warrant Price and
the Expiration Date may not be amended, and the right to exercise this Warrant
may not be altered or waived, without the written consent of the Warrantholder.
Section 20. Section Headings. The section headings in this Warrant are for
the convenience of the Company and the Warrantholder and in no way alter,
modify, amend, limit or restrict the provisions hereof.
10
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed, as of the 17th day of July, 2003.
ANTARES PHARMA, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxxx
--------------------------------------------
Name: Xxxxxxxx X .Xxxxxxxxx
Xxxxx: Chief Financial Officer,
Vice President - Finance
11
APPENDIX A
ANTARES PHARMA, INC.
WARRANT EXERCISE FORM
To: Antares Pharma, Inc.
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant ("Warrant") for, and to purchase thereunder by
the payment of the Warrant Price and surrender of the Warrant, _______________
shares of Common Stock ("Warrant Shares") provided for therein, and requests
that certificates for the Warrant Shares be issued as follows:
________________________________________
Name
________________________________________
Address
________________________________________
________________________________________
Federal Tax ID or Social Security No.
and delivered by
[_] certified mail to the above address, or
[_] electronically (provide DWAC Instructions:__________________),
or
[_] other (specify: __________________________________________).
and, if the number of Warrant Shares shall not be all the Warrant Shares
purchasable upon exercise of the Warrant, that a new Warrant for the balance of
the Warrant Shares purchasable upon exercise of this Warrant be registered in
the name of the undersigned Warrantholder or the undersigned's Assignee as below
indicated and delivered to the address stated below.
Dated: ___________________, ____
Note: The signature must correspond with
the name of the registered holder as written Signature:_____________________
on the first page of the Warrant in every _______________________________
particular, without alteration or enlargement Name (please print)
or any change whatever, unless the Warrant
has been assigned. _______________________________
Address
_______________________________
Federal Identification or
Social Security No.
Assignee:
_______________________________
_______________________________
_______________________________
