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EXHIBIT 4.2
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS AND MAY NOT BE TRANSFERRED, SOLD OR OFFERED FOR SALE EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AS TO THIS WARRANT AND THE
SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT UNDER SAID ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
VOID AFTER 5:00 P.M., NEW YORK TIME, ON OCTOBER 15, 2006, OR IF NOT A BUSINESS
DAY, AS DEFINED HEREIN, AT 5:00 P.M., NEW YORK TIME, ON THE NEXT FOLLOWING
BUSINESS DAY.
WARRANT TO PURCHASE
_________ DEPOSITARY SHARES
WARRANT TO PURCHASE DEPOSITARY SHARES
OF
ASCENT PEDIATRICS, INC.
--------------------------
This certifies that, for value received, _________. or registered
assigns ("Warrantholder"), is entitled to purchase from Ascent Pediatrics, Inc.,
a Delaware corporation (the "Company"), subject to the terms set forth below, at
any time prior to the Expiration Date, after which time this Warrant shall
become void, _______________ Warrant Shares at the Warrant Price. The Warrant
Price and the number of Warrant Shares purchasable hereunder are subject to
adjustment from time to time as provided herein.
This Warrant is one of a series of warrants (the "Warrants")
evidencing the right to purchase Depositary Shares of the Company issued
pursuant to a certain Fourth Amendment (the "Fourth Amendment"), dated as of
October 15, 1999, to the Series G Securities Purchase Agreement, dated as of May
13, 1998, by and between the Company and the persons named therein, as amended
(such Securities Purchase Agreement, as amended on September 30, 1998, February
16, 1999 and July 1, 1999 and by the Fourth Amendment being referred to herein
as the "Purchase Agreement"), copies of which Purchase Agreement are on file at
the principal office of
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the Company, and the holder of this Warrant shall be entitled to all of the
benefits of and be bound by all of the applicable obligations of the Purchase
Agreement, as provided therein.
ARTICLE I
DEFINED TERMS
Section 1.1. Definition of Terms. As used in this Warrant, the
following capitalized terms shall have the following respective meanings:
(a) "Business Day" shall mean a day other than a Saturday, Sunday or
other day on which banks in the State of New York or the Commonwealth of
Massachusetts are authorized by law to remain closed.
(b) "Convertible Notes" shall mean the 7.5% Convertible Subordinated
Notes due July 1, 2004 issued pursuant to the Third Amendment dated as of July
1, 1999 to the Purchase Agreement, the 7.5% Convertible Subordinated Notes due
July 1, 2004 issuable pursuant to the Fourth Amendment and the 8.0% Convertible
Subordinated Notes issued on July 23, 1999 pursuant to the Purchase Agreement.
(c) "Common Stock" shall mean the Common Stock, $.00004 par value per
share, of the Company.
(d) "Closing Price" shall mean, with respect to any day, the last
reported sales price of the Depositary Shares, regular way, or in case no sale
takes place on such day, the average of the reported closing bid and asked
prices of the Depositary Shares, regular way, in either case as reported on the
principal national securities exchange on which the Depositary Shares is listed
or admitted to trading or, if the Depositary Shares are not listed or admitted
to trading on any national securities exchange, but is traded in the
over-the-counter market, the closing sale price of the Depositary Shares or in
case no sale is publicly reported, the average of the representative closing bid
and asked quotations for the Depositary Shares on the Nasdaq National Market,
or, if bid and asked prices for such day shall not have been reported on The
Nasdaq Stock Market, the average of the bid and asked prices for the Depositary
Shares as furnished by any New York Stock Exchange, Inc. member firm regularly
making a market in the Depositary Shares and selected for such purpose by the
Board of Directors of the Company.
(e) "Depositary Shares" means the depositary shares of the Company
issued pursuant to the Depositary Agreement dated as of February 16, 1999 by and
among the Company, Alpharma USPD Inc. and State Street Bank and Trust Company,
as amended (the "Depositary Agreement"), each Depositary Share representing one
share of Common Stock of the Company subject to a call option and represented by
a depositary receipt.
(f) "Expiration Date" shall mean the earlier of (a) October 15, 2006,
or if such day is not a Business Day, the next succeeding day which is a
Business Day.
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(g) "Fair Market Value" with respect to the date of any exercise by the
Warrantholder of all or a portion of this Warrant, shall mean the average daily
Closing Price of the Depositary Shares, as applicable, for thirty (30)
consecutive trading days commencing forty-five (45) days before the date of such
exercise by the Warrantholder of all or a portion of this Warrant, provided,
however, that where no public market exists for the Depositary Shares at the
time of the exercise of all or a portion of this Warrant, the fair market value
per share shall be determined by the Company's Board of Directors in good faith.
(h) "Fourth Amendment" shall mean the Fourth Amendment, dated as of
October 15, 1999, to the Purchase Agreement.
(i) "Person" shall mean any individual, corporation, association,
company, business trust, partnership, limited liability company, joint venture,
joint-stock company, trust, unincorporated organization, association or any
other entity or government or any agency or political subdivision thereof.
(j) "Purchase Agreement" shall mean that certain Securities Purchase
Agreement, dated as of May 13, 1998, among the Company and the persons named
therein, as amended.
(k) "Related Person" of any Person means any other Person directly or
indirectly owning (A) twenty percent (20%) or more of the outstanding common
stock of such Person (or, in the case of a Person that is not a corporation,
twenty percent (20%) or more of the equity interest in such Person) or (B)
twenty percent (20%) or more of the combined voting power of the voting capital
stock of such Person.
(l) "Securities Act" shall mean the Securities Act of 1933, as amended.
(m) "Subordinated Notes" shall mean the Company's 8% Subordinated Notes
due 2005 issued pursuant to the Purchase Agreement.
(n) "Third Amendment" shall mean the Third Amendment, dated as of July
1, 1999, to the Purchase Agreement.
(o) "Warrant Price" shall mean Three Dollars ($3.00) per Warrant Share,
as such price may be adjusted from time to time pursuant to Article III hereof.
(p) "Warrant Shares" shall mean the Depositary Shares purchasable upon
exercise of this Warrant.
ARTICLE II
DURATION AND EXERCISE OF WARRANT
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Section 2.1. Exercise of Warrant. The Warrantholder may exercise this
Warrant, in whole or in part, by presentation and surrender of this Warrant at
the address of the Company set forth in Section 4.6 hereof or at such other
address as the Company may designate by notice in writing to the Warrantholder
with the Subscription Form annexed hereto duly executed, accompanied by payment
of the Warrant Price for each Warrant Share purchased. Upon receipt thereof, the
Company shall cause to be issued certificates for the Warrant Shares so
purchased in such denominations as are requested for delivery to the
Warrantholder. Such certificates shall be delivered as promptly as practicable
to the Warrantholder. Upon any partial exercise of this Warrant, the Company
shall execute and deliver a new Warrant of like tenor and date for the balance
of the Warrant Shares purchasable hereunder. Upon exercise, the Warrantholder
shall be deemed to be the holder of record of Depositary Shares issuable upon
such exercise, notwithstanding that the stock transfer books of the Company
shall then be closed or that certificates representing such Depositary Shares
shall not then be actually delivered to the Warrantholder. If at the time this
Warrant is exercised, a registration statement is not in effect to register
under the Securities Act the Warrant Shares issuable upon exercise of this
Warrant, the Company may require the Warrantholder to make such representations,
and may place such legends on certificates representing the Warrant Shares, as
may be reasonably required to permit the Warrant Shares to be issued without
such registration. The Company shall pay any and all stock transfer and similar
taxes which may be payable in respect of the issue of the Warrant or in respect
of the issue of any of the Warrant Shares, except the Company shall not pay such
transfer taxes if the Warrant Shares are issued to a Person other than the
Warrantholder.
Section 2.2. Reservation of Shares. The Company hereby agrees that at
all times there shall be reserved for issuance and delivery upon exercise of
this Warrant such number of Depositary Shares or other shares of capital stock
of the Company as may be from time to time issuable upon exercise of this
Warrant. All such shares shall be duly authorized, and when issued upon such
exercise, shall be validly issued, fully paid and nonassessable, free and clear
of all liens, security interests, charges and other encumbrances or
restrictions, other than those restrictions imposed by the Securities Act of
1933, and free and clear of all preemptive and similar rights.
Section 2.3. Fractional Shares. The Company shall not be required to
issue any fraction of a Depositary Share in connection with the exercise of this
Warrant, and in any case where the Warrantholder would, except for the
provisions of this Section 2.3, be entitled under the terms of this Warrant to
receive a fraction of a share upon the exercise of this Warrant, the Company
shall, upon the exercise of this Warrant and receipt of the Warrant Price (as
adjusted to cover the balance of the share), issue the largest number of whole
shares purchasable upon exercise of this Warrant, but in no event shall the
Company issue more than such number of Depositary Shares as are issuable
pursuant to the exercise of this Warrant. The Company shall not be required to
make any cash or other adjustment in respect of such fraction of a share to
which the Warrantholder would otherwise be entitled.
Section 2.4. Payment for Warrant Shares.
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(a) Payment of the aggregate Warrant Price for Warrant Shares to be
purchased upon exercise of all or a portion of this Warrant shall be made in
full by delivery to the Company, at its address set forth in Section 4.6 hereof
or at such other address as the Company may designate by notice in writing to
the Warrantholder, of a certified or bank cashier's check or by wire transfer to
an account in the United States designated by the Company.
(b) Payment of the aggregate Warrant Price may also be made in full by
(i) delivery to the Company of Convertible Notes plus accrued interest thereon,
in an aggregate principal amount equal to the aggregate Warrant Price, (ii)
delivery to the Company of Subordinated Notes plus accrued interest thereon, in
an aggregate principal amount equal to the aggregate Warrant Price or (iii) a
combination of cash (payable by wire transfer or certified or bank check),
Convertible Notes or Subordinated Notes beneficially owned by such Warrantholder
and such accumulated dividends or accrued interest, as the case may be, in an
aggregate principal amount equal to the aggregate Warrant Price. Any Convertible
Notes or Subordinated Notes surrendered for exchange hereunder shall be, if so
required by the Company, accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company duly delivered by the
Warrantholder.
(c) Notwithstanding any provisions herein to the contrary, if the Fair
Market Value of one Depositary Share is greater than the Warrant Price (at the
date of calculation as set forth below), in lieu of exercising this Warrant for
cash, the Warrantholder may elect to receive shares equal to the value (as
determined below) of this Warrant (or the portion thereof, which portion shall
be canceled) by surrender of this Warrant at the principal office of the Company
together with the properly endorsed Subscription Form annexed hereto and notice
of such election in which event the Company shall issue to the Warrantholder a
number of Depositary Shares computed using the following formula:
X = Y(A-B)
------
A
Where X = the number of Depositary Shares to be issued to
the Warrantholder
Y = the number of Depositary Shares purchasable
under the Warrant or, if only a portion of the
Warrant is being exercised, the portion of the
Warrant being canceled (at the date of such
calculation)
A = the Fair Market Value of one Depositary Share
(at the date of such calculation)
B = Warrant Price (as adjusted to the date of such
calculation)
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ARTICLE III
ADJUSTMENT OF WARRANT PRICE OR WARRANT SHARES
Section 3.1. Adjustment of Warrant Price.
(a) Except as hereinafter provided, in case the Company shall at any
time after the date hereof issue or sell any obligations or Depositary Shares,
for a consideration per share less than the Warrant Price in effect immediately
prior to the issuance or sale of such shares, or without consideration, then,
and thereafter successively upon each issuance or sale, the Warrant Price in
effect immediately prior to each such issuance or sale shall forthwith be
reduced to a price determined by dividing (i) an amount equal to (X) the total
number of Depositary Shares outstanding immediately prior to such issuance or
sale multiplied by the Warrant Price in effect immediately prior to such
issuance or sale, plus (Y) the consideration, if any, received by the Company
upon such issuance or sale, by (ii) the total number of Depositary Shares
outstanding immediately after such issuance or sale.
For the purposes of any computation to be made in accordance
with the provisions of this paragraph (a), the following shall be applicable:
(i) In case of the issuance or sale of Depositary
Shares for a consideration part or all of which shall be cash, the
amount of the cash consideration therefor shall be deemed to be the
amount of cash received by the Company for such shares (or, if such
Depositary Shares are offered by the Company for subscription, the
subscription price, or, if Depositary Shares shall be sold to
underwriters or dealers for public offering without a subscription
offering, the public offering price) before deducting therefrom any
commissions or other expenses paid or incurred by the Company for any
underwriting of, or otherwise in connection with the issuance of such
shares;
(ii) In case of the issuance or sale of Depositary
Shares for a consideration part or all of which shall be other than
cash (otherwise than as a dividend or other distribution on any
Depositary Shares of the Company or on conversion, exercise or exchange
of other securities of the Company or upon acquisition of the assets or
securities of another company or upon merger or consolidation with
another entity), the amount of consideration therefor other than cash
shall be the value of such consideration as of the date of the issuance
or sale of the Depositary Shares, irrespective of accounting treatment,
but as determined by the Board of Directors of the Company in good
faith. The reclassification of securities other than Depositary Shares
into Depositary Shares shall be deemed to involve the issuance for a
consideration other than cash of such Depositary Shares immediately
prior to the close of business on the date fixed for the determination
of security holders entitled to receive such Depositary Shares;
(iii) In case of the issuance of Depositary Shares
upon conversion or exchange of any obligations or of any securities of
the Company that shall be convertible into or exchangeable for
Depositary Shares or upon the exercise of rights or options to
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subscribe for or to purchase Depositary Shares (other than upon
exercise of this Warrant), the amount of consideration received by the
Company for such Depositary Shares shall be deemed to be the sum of (A)
the amount of the consideration received by the Company upon the
original issuance of such obligations, shares, rights or options, as
the case may be, plus (B) the consideration, if any, other than such
obligations, shares, rights or options, received by the Company upon
such conversion, exchange, or exercise except in adjustment of interest
and dividends. The amount of the consideration received by the Company
upon the original issuance of the obligations, shares, rights or
options so converted, exchanged or exercised and the amount of the
consideration, if any, other than such obligations, shares, rights or
options, received by the Company upon such conversion, exchange or
exercise shall be determined in the same manner provided in
subparagraphs (i) and (ii) above with respect to the consideration
received by the Company in case of the issuance of Depositary Shares;
if such obligations, shares, rights or options shall have been issued
as a dividend upon any securities of the Company, the amount of the
consideration received by the Company upon the original issuance
thereof shall be deemed to be zero. In case of the issuance of Warrant
Shares upon exercise of this Warrant, the Company shall be deemed to
have received the Warrant Price then in effect as the consideration for
each Depositary Share so issued;
(iv) Depositary Shares issuable by way of dividend or
other distribution on any securities of the Company shall be deemed to
have been issued and to be outstanding at the close of business on the
record date fixed for the determination of security holders entitled to
receive such dividend or other distribution and shall be deemed to have
been issued without consideration. Depositary Shares issued otherwise
than as a dividend, shall be deemed to have been issued and to be
outstanding at the close of business on the date of issue;
(v) The number of Depositary Shares at any time
outstanding shall not include any shares then owned or held by or for
the account of the Company, but shall include the aggregate number of
shares deliverable in respect of options, rights and exercisable,
convertible and exchangeable securities at all times while such
options, rights or securities remain outstanding and unexercised,
unconverted or unexchanged, as the case may be; and
(vi) No adjustment shall be made to the Warrant Price
in effect upon conversion or exchange of (i) securities convertible or
exercisable or exchangeable for Depositary Shares or for other
securities that are subsequently exercisable for Depositary Shares that
are outstanding as of the date of the Fourth Amendment, or (ii) any
obligations or any securities of the Company that shall be convertible
into or exercisable or exchangeable for Depositary Shares or upon the
exercise of rights or options to subscribe for or to purchase
Depositary Shares for which an adjustment in the Warrant Price has
previously been made in accordance with paragraph (b) of this Section
3.1.
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(vii) In the event that any payment is made to the
holders of warrants issued pursuant to the Securities Purchase
Agreement dated as of January 31, 1997 among the Company, Triumph
Connecticut Limited Partnership and the other purchasers named therein
pursuant to Section 8.3(b) (or successor provision) of such Securities
Purchase Agreement which does not result in a modification pursuant to
Section 3.4, the Company shall be deemed to have issued without
consideration as of the date of the event giving rise to such payment a
number of Depositary Shares equal to the amount of such payment divided
by the Closing Price on the date of such event.
(b) In case the Company shall at any time after the date hereof issue
options or rights to subscribe for Depositary Shares, or issue any obligations
or securities convertible into or exchangeable for Depositary Shares, otherwise
than as contemplated by Section 3.1(a)(vi) or pursuant to Section 3.3 hereof,
for a consideration per share less than the Warrant Price in effect immediately
prior to the issuance of such options or rights or convertible or exchangeable
securities, or without consideration, the Warrant Price in effect immediately
prior to the issuance of such options or rights or securities shall be reduced
to a price determined by making a computation in accordance with the provisions
of paragraph (a) of this Section 3.1, provided that:
(i) the aggregate maximum number of Depositary Shares deliverable under
such options or rights shall be considered to have been delivered at the time
such options or rights were issued, and for a consideration equal to the minimum
purchase price per Depositary Share provided for in such options or rights, plus
the consideration (determined in the same manner as consideration received on
the issue or sale of Depositary Shares), if any, received by the Company for
such options or rights;
(ii) the aggregate maximum number of Depositary Shares deliverable upon
conversion of or exchange for any such obligations or securities shall be
considered to have been delivered at the time of issuance of such securities,
and for a consideration equal to the consideration (determined in the same
manner as consideration received on the issue or sale of Depositary Shares)
received by the Company for such securities, plus the consideration, if any, to
be received by the Company upon the exchange or conversion thereof; and
(iii) on the expiration of such options or rights, or an increase in
the minimum exercise price thereof, or a decrease in the maximum number of
Depositary Shares deliverable upon exercise or conversion of such options,
rights or convertible or exchangeable securities pursuant to the terms thereof
(and not as a result of exercise or conversion), or the termination of such
right to convert or exchange, the Warrant Price in effect shall forthwith be
readjusted to such Warrant Price as would have obtained (A) in the case of the
expiration or termination of options or rights or the termination of the right
to convert or exchange convertible or exchangeable securities, had no
adjustments been made upon the issuance of such options, rights or convertible
or exchangeable securities, or (B) in the case of an increase in the minimum
exercise price thereof, or a decrease in the maximum number of shares
deliverable thereunder, had the adjustments made upon the issuance of such
options, rights or convertible or exchangeable securities been made upon the
basis of the delivery of only the number of
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Depositary Shares (A) actually deliverable upon the exercise of such options or
rights or upon conversion or exchange of such securities, or (B) deliverable by
reason of such increase in price or decrease in number of shares.
(c) No adjustment to the Warrant Price shall be made in connection with
the issuance of:
(i) the Convertible Notes, the Warrants issued
pursuant to the Third Amendment, the Warrants issued pursuant to the
Fourth Amendment, the Warrants issued pursuant to the Purchase
Agreement and the New Warrants, as such term is defined in the Purchase
Agreement (together, the "Convertible Securities"), and the securities
issued or issuable upon conversion or exercise of the Convertible
Securities, or other currently outstanding securities that are
convertible, exercisable or exchangeable for Depositary Shares; and
(ii) Depositary Shares or rights, options or warrants
to acquire Depositary Shares issued to directors, employees or
consultants of the Company pursuant to a stock option plan or agreement
(and, in the case of rights, options, or warrants, the Depositary
Shares issued or issuable upon exercise thereof) and approved by the
Board of Directors;
(d) In case the Company shall at any time after the date hereof
subdivide or combine the outstanding Depositary Shares, the Warrant Price in
effect shall forthwith be proportionately decreased in the case of the
subdivision or proportionately increased in the case of combination to the
nearest one cent. Any such adjustment shall become effective at the close of
business on the date that such subdivision or combination shall become
effective.
(e) No adjustment to the Warrant Price shall be made in connection with
the conversion of all outstanding Depositary Shares into shares of Common Stock
on the Option Expiration Date (as defined in the Depositary Agreement) pursuant
to the terms of the Depositary Agreement.
Section 3.2. Adjustment of Warrant Shares. In the event of an
adjustment of the Warrant Price, the number of Depositary Shares (or
reclassified or recapitalized stock) issuable upon exercise of this Warrant
after such adjustment shall be equal to the number determined by multiplying the
number of Depositary Shares issuable upon exercise of this Warrant immediately
prior to such adjustment by a fraction, of which the numerator is the Warrant
Price in effect immediately prior to such adjustments, and the denominator is
the Warrant Price in effect immediately after such adjustment.
Section 3.3. Dividends and Distributions. In the event that the Company
shall at any time after the date hereof pay any dividend (other than in
Depositary Shares) on, or make any distribution of its assets upon or with
respect to, the Depositary Shares, or in the event that
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the Company shall offer options or rights to subscribe for Depositary Shares, or
issue any securities convertible into or exchangeable for Depositary Shares, to
all of its holders of Depositary Shares, then on the record date for such
payment, distribution or offer or, in the absence of a record date, on the date
of such payment, distribution or offer, the Warrantholder shall receive what the
Warrantholder would have received had it exercised this Warrant in full
immediately prior to the record date of such payment, distribution or offer or,
in the absence of a record date, immediately prior to the date of such payment,
distribution or offer.
Section 3.4. Mergers, Consolidations, Reclassifications. In the case of
any reorganization or reclassification of the outstanding Depositary Shares
(other than a change in par value, or from par value to no par value, or from no
par value to par value, or as a result of a subdivision or combination) or in
the case of any consolidation of the Company into, or merger of the Company with
another corporation in which it is not the surviving entity (or it is the
surviving entity, but its Depositary Shares become shares of another
corporation), or in the case of any sale, lease or conveyance of all, or
substantially all, of the property, assets, business and goodwill of the Company
as an entirety, the Warrantholder shall thereafter have the right upon exercise
of this Warrant to receive the kind and amount of shares of stock and other
securities, cash and property receivable upon such reorganization,
reclassification, consolidation, merger or disposition by a holder of the number
of Depositary Shares which the Warrantholder would have received had it
exercised this Warrant immediately prior to such reorganization,
reclassification, consolidation, merger or disposition, at a price equal to the
aggregate Warrant Price then in effect for exercising this Warrant in full (the
kind, amount and price of such stock and other securities to be subject to
adjustment as herein provided); provided, however, that the kind and amount of
such shares of stock and other securities, cash and other property shall be
determined as if any payment made to the holders of warrants issued pursuant to
the Securities Purchase Agreement dated as of January 31, 1997 among the
Company, Triumph Connecticut Limited Partnership and the other purchasers named
therein upon such reorganization, reclassification, consolidation, merger or
disposition in excess of the amount such holders would otherwise have been
entitled to receive under the terms of such warrants without regard to Section
8.3(b) (or successor provision) of such Securities Purchase Agreement had not
been made. The foregoing provisions of this Section 3.4 shall similarly apply to
successive reorganizations, reclassifications, consolidations, mergers and
dispositions.
Section 3.5. Notice of Adjustment. Whenever the Warrant Price or the
number of Warrant Shares shall be adjusted pursuant to the provisions of Article
III, the Company shall prepare and deliver forthwith to the Warrantholder a
certificate signed by the President of the Company and by its Chief Financial
Officer, setting forth the adjusted number of Warrant Shares purchasable upon
the exercise of this Warrant and the Warrant Price calculated to the nearest
cent and setting forth in reasonable detail the method of calculation and the
facts requiring such adjustment and upon which such calculation is based.
Section 3.6. Notice of Certain Corporate Action. In case at any time:
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(A) the Company shall declare any dividend (or
any other distributions) on Depositary
Shares; or
(B) the Company shall authorize the granting to
all holders of its Depositary Shares of
rights to subscribe for or purchase any
shares of stock of any class or of any other
rights; or
(C) there shall be any reclassification of the
Depositary Shares or capital stock of the
Company; or
(D) there shall be any capital reorganization by
the Company; or
(E) there shall be any (i) consolidation or
merger involving the Company, other than the
merger contemplated by the Merger Agreement,
or (ii) sale, transfer or other disposition
of all or substantially all of the Company's
property, assets or business (except a
merger or other reorganization in which the
Company shall be the surviving corporation
and its shares of capital stock shall
continue to be outstanding and unchanged and
except a consolidation, merger, sale,
transfer or other disposition involving a
wholly-owned subsidiary); or
(F) there shall be a voluntary or involuntary
dissolution, liquidation or winding-up of
the Company or any partial liquidation of
the Company or distribution to holders of
Depositary Shares;
then, in each of such cases, the Company shall give written notice to the
Warrantholder of the date on which (i) the books of the Company shall close or a
record date shall be fixed for such dividend, distribution or subscription
rights or (ii) such reorganization, reclassification, consolidation, merger,
disposition, dissolution, liquidation or winding-up, as the case may be, shall
take place. Such notice also shall specify the date as of which the holders of
Depositary Shares of record shall participate in such dividend, distribution or
subscription rights, or shall be entitled to exchange their depositary receipts
for Depositary Shares for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, disposition,
dissolution, liquidation or winding-up, as the case may be. Such notice shall be
given at least twenty (20) days prior to the action in question and not less
than twenty (20) days prior to the record date or the date on which the
Company's transfer books are closed in respect thereto.
Section 3.7. Adjustment for Expiration of Call Option. From and after
the Option Expiration Date, this Warrant shall be exercisable into a number of
shares of Common
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Stock of the Company equal to the number of shares of Common Stock that the
Warrantholder would have received upon the exchange of the Depositary Shares
that the Warrantholder would have received had it exercised this Warrant in full
immediately prior to the Option Expiration Date. From and after the Option
Expiration Date, all references herein to Depositary Shares shall be deemed to
include the Common Stock of the Company.
Section 3.8. Form of Warrant after Adjustments. The form of this
Warrant need not be changed because of any adjustments in the Warrant Price or
the number or kind of the Warrant Shares.
ARTICLE IV
MISCELLANEOUS
Section 4.1. Successors and Assigns; Transfers.
(a) The terms of this Warrant shall be binding upon, inure to the
benefit of and be enforceable by and against any successors or assigns of the
Company and of the Warrantholder; provided, however, that the Company may not
assign its rights or obligations hereunder.
(b) Subject to the provisions of paragraph (f) below and Section 17.3
of the Purchase Agreement, this Warrant and all rights hereunder are
transferable by the Warrantholder, in whole or in party, upon surrender of this
Warrant with a properly executed assignment at the principal office of the
Company.
(c) Any transferee to whom rights hereunder are transferred shall, as a
condition to such transfer, deliver to the Company a written instrument by which
such transferee agrees to be bound by the obligations imposed upon the
Warrantholder under this Warrant to the same extent as if such transferee was
the Warrantholder.
(d) The Company will maintain a register containing the names and
addresses of the Warrantholders of the Warrants. Any Warrantholder may change
its or his address as shown on the warrant register by written notice to the
Company requesting such change.
(e) Until any transfer of this Warrant is made in the warrant register,
the Company may treat the Warrantholder as the absolute owner hereof for all
purposes; provided, however, that if and when this Warrant is properly assigned
in blank, the Company may (but shall not be obligated to) treat the bearer
hereof as the absolute owner hereof for all purposes, notwithstanding any notice
to the contrary.
(f) This Warrant and the Warrant Shares shall not be sold or
transferred unless either (i) they first shall have been registered under the
Securities Act or (ii) the Company
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first shall have been furnished with an opinion of legal counsel, reasonably
satisfactory to the Company, to the effect that such sale or transfer is exempt
from the registration requirements of the Securities Act.
(g) Each certificate representing Warrant Shares shall bear a legend
substantially in the following form:
"The securities represented by this certificate have
not been registered under the Securities Act of
1933, as amended, and may not be offered, sold or
otherwise transferred, pledged or hypothecated
unless and until such securities are registered
under such Act or an opinion of counsel reasonably
satisfactory to the Company is obtained to the
effect that such registration is not required."
The foregoing legend shall be removed from the certificates
representing any Warrant Shares, at the request of the holder thereof, at such
time as they become eligible for resale pursuant to Rule 144(k) under the
Securities Act.
Section 4.2. Rights as Stockholder. Except as provided herein, the
Warrantholder, as such, shall not be entitled to vote or be deemed to be a
stockholder of the Company for any purpose, nor shall anything contained in this
Warrant be construed to confer upon the Warrantholder, as such, any rights of a
stockholder of the Company or any right to vote, give or withhold consent to any
corporate action or receive notice of meetings.
Section 4.3. Acceptance by Warrantholder. Receipt of this Warrant by
the Warrantholder shall constitute acceptance of an agreement to the foregoing
terms and conditions.
Section 4.4. Governing Law. This Warrant and the rights of the parties
hereunder shall be governed in all respects by the laws of the State of New
York, without giving effect to the provisions thereof relating to conflicts of
law.
Section 4.5. Severability. In case any provision of this Warrant shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 4.6. Notices. Any notices or certificates by the Company to the
Warrantholder and by the Warrantholder to the Company shall be deemed delivered
if in writing and delivered in person or by registered mail (return receipt
requested) to the Warrantholder, at its address in the registry of
Warrantholders maintained by the Company, and if to the Company, at 000
Xxxxxxxxxxx Xxxxxx, Xxxxx X000, Xxxxxxxxxx, XX 00000, Attention: Principal
Financial Officer. The Company may change its address by written notice to the
Warrantholder.
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Section 4.7. Amendment. This Warrant may be amended or modified (or any
provision hereof waived) only if Warrantholders holding at least eighty percent
(80%) of the Warrant Shares (assuming exercise of all the Warrants) shall
approve such amendment, modification or waiver in writing; provided, however,
that no amendment that adversely affects the rights of any Warrantholder in a
manner different from the rights of the other Warrantholders shall be effective
against such Warrantholder unless approved in writing by such Warrantholder.
After an amendment, modification or waiver of a provision the Warrants becomes
effective, the Company shall mail to the Warrantholders a notice briefly
describing the amendment, modification or waiver.
IN WITNESS WHEREOF, this Warrant has been duly executed by the Company
under its corporate seal as of the 15th day of October, 1999.
ASCENT PEDIATRICS, INC.
By:__________________
Name: Xxxxxx Xxxxxxxx
Its: Chairman
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