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EXHIBIT 4.3
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
OR ANY OTHER APPLICABLE SECURITIES LAWS IN RELIANCE UPON AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH OTHER SECURITIES LAWS.
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF MAY BE SOLD,
PLEDGED, TRANSFERRED, ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR IN A TRANSACTION
WHICH IS EXEMPT FROM REGISTRATION UNDER THE PROVISIONS OF THE SECURITIES ACT.
AVANIR PHARMACEUTICALS
COMMON STOCK PURCHASE WARRANT
1. Issuance. In consideration of good and valuable consideration, the
receipt of which is hereby acknowledged by AVANIR PHARMACEUTICALS, a California
corporation (the "Company"), [Holder], (the "Holder") is hereby granted the
right to purchase at any time commencing January 31, 2000 until 5:00 P.M., New
York City time, on January 31, 2004 (the "Expiration Date"),
[______________________________ (___________)] fully paid and nonassessable
shares (the "Warrant Shares") of the Company's Class A Common Stock, no par
value ("Common Stock") at an initial exercise price of $_________ per share (the
"Exercise Price"), subject to further adjustment as set forth in Section 6
hereof. In the event of any conflict between the terms of this Warrant and the
Common Stock Purchase Agreement between the Company and the Holder, dated as of
January 25, 2000 (the "Purchase Agreement"), pursuant to which this Warrant has
been issued, the Purchase Agreement shall control. Capitalized terms used and
not otherwise defined herein shall have the meanings set forth for such terms in
the Purchase Agreement.
2. Exercise of Warrants.
(a) This warrant (this "Warrant") is exercisable in whole or in
part at the Exercise Price per share of Common Stock payable hereunder, payable
in cash or by certified or official bank check, or by "cashless exercise," by
means of tendering this Warrant to the Company to receive a number of shares of
Common Stock equal to: (i) the Market Value of the Warrant Shares issuable upon
exercise of this Warrant, less; (ii) the aggregate cash amount of the Exercise
Price of such Warrant Shares, divided by the Market Value per Share. Upon
surrender of this Warrant with the annexed Notice of Exercise of Warrant duly
executed, together with payment of the Exercise Price for the applicable Warrant
Shares exercised, the Holder shall be entitled to receive a certificate or
certificates for the Warrant Shares so exercised. For the purposes of this
Section 2, "Market Value" shall be the amount equal to the average closing bid
price of a share of Common Stock for the ten (10) days preceding the Company's
receipt of the Notice of Exercise of Warrant duly
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executed by the Holder multiplied by the number of Warrant Shares to be issued
upon surrender of this Warrant.
(b) For purposes of Rule 144 promulgated under the Securities
Act, it is intended, understood and acknowledged that the Warrant Shares issued
in a cashless exercise transaction shall be deemed to have been acquired by the
Holder and the holding period for the Warrant Shares shall be deemed to have
been commenced, on the issue date of this Warrant.
3. Reservation of Shares. The Company hereby agrees that, at all times
during the term of this Warrant, there shall be reserved for issuance upon
exercise of this Warrant such number of shares of Common Stock as shall be
required for issuance upon exercise of this Warrant of the remaining Warrant
Shares.
4. Mutilation or Loss of Warrant. Upon receipt by the Company of
evidence satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant, and (in the case of loss, theft or destruction) receipt of
reasonably satisfactory indemnification, and (in the case of mutilation) upon
surrender and cancellation of this Warrant, the Company will execute and deliver
a new warrant of like tenor and date and any such lost, stolen, destroyed or
mutilated warrant shall thereupon become void.
5. Rights of the Holder. The Holder shall not, by virtue hereof, be
entitled to any rights of a shareholder in the Company, either at law or equity,
and the rights of the Holder are limited to those expressed in this Warrant and
are not enforceable against the Company except to the extent set forth herein.
6. Protection Against Dilution.
6.1 Adjustment Mechanism. If an adjustment of the Exercise Price
is required pursuant to this Section 6, the Holder shall be entitled to purchase
such number of additional shares of Common Stock as will cause (i) the total
number of shares of Common Stock that the Holder is entitled to purchase
pursuant to this Warrant, multiplied by (ii) the adjusted Exercise Price per
share, to equal the dollar amount of the total number of shares of Common Stock
that the Holder is entitled to purchase before adjustment multiplied by the
Exercise Price before adjustment.
6.2 Capital Adjustments. In case of any stock split or reverse
stock split, stock dividend, reclassification of the Common Stock,
recapitalization, merger or consolidation, or like capital adjustment affecting
the Common Stock of the Company, the provisions of this Section 6 shall be
applied as if such capital adjustment event had occurred immediately prior to
the date of this Warrant and the original purchase price had been fairly
allocated to the stock resulting from such capital adjustment; and in other
respects the provisions of this section shall be applied in a fair, equitable
and reasonable manner so as to give effect, as nearly as may be, to the purposes
hereof.
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A rights offering to shareholders shall be deemed a stock dividend to the extent
of the bargain purchase element of the rights.
7. Transfer to Comply with the Securities Act; Registration Rights.
(a) This Warrant has not been registered under the Securities Act
and has been issued to the Holder for investment and not with a view to the
distribution of either this Warrant or the Warrant Shares. Neither this Warrant
nor any of the Warrant Shares or any other security issued or issuable upon
exercise of this Warrant may be sold, transferred, pledged or hypothecated in
the absence of an effective registration statement under the Securities Act
relating to such security or an opinion of counsel satisfactory to the Company
that registration is not required under the Securities Act. Each certificate for
this Warrant, the Warrant Shares and any other security issued or issuable upon
exercise of this Warrant shall contain a legend on the face thereof, in form and
substance satisfactory to counsel for the Company, setting forth the
restrictions on transfer contained in this section.
(b) The Company agrees to file a registration statement, which
shall include the Warrant Shares, on Form S-1 or other available form (the
"Registration Statement"), pursuant to the Registration Rights Agreement, dated
as of January 25, 2000, between the Company and the Holder.
8. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, telegraphed,
telexed, sent by facsimile transmission or sent by certified, registered or
express mail, postage pre-paid. Any such notice shall be deemed given when so
delivered personally, telegraphed, telexed or sent by facsimile transmission,
or, if mailed, two days after the date of deposit in the United States mails, as
follows:
(a) If to the Company:
Avanir Pharmaceuticals
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Chief Financial Officer
Tel No.: (000) 000-0000
Fax No.: (000) 000-0000
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with a copy to:
Xxxxx & XxXxxxxx
000 Xxxx Xxxxxxxx, Xxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Tel No.: (000) 000-0000
Fax No.: (000) 000-0000
(ii) If to the Holder:
[________________]
[________________]
[________________]
Attention: [________________]
Tel No.: [________________]
Fax No.: [________________]
with a copy to:
[________________]
[________________]
[________________]
Attention: [________________]
Tel No.: [________________]
Fax No.: [________________]
Any party may designate another address or person for receipt of notices
hereunder by notice given to the other parties in accordance with this section.
9. Delivery of Certificates. If the Company fails to deliver to the
Holder certificate or certificates representing the Warrant Shares pursuant to
Section 3(f) by the fifth (5th) Business Day after the Date of Exercise, the
Company shall pay to the Holder, in cash, as liquidated damages and not as a
penalty, $1,000 for each day after such fifth (5th) Business Day until such
certificates are delivered. Nothing herein shall limit the Holder's right to
pursue actual damages for the Company's failure to deliver certificates
representing the Warrant Shares of Common Stock upon exercise within the period
specified herein, except that such liquidated damages paid by the Company to the
Holder shall constitute payment for and offset any such actual damages. The
Holder shall have the right to pursue all remedies available to it at law or in
equity including, without limitation, a decree of specific performance and/or
injunctive relief. The exercise of any such rights
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shall not prohibit the Holder from seeking to enforce damages pursuant to any
other section hereof or under applicable law.
10. Supplements and Amendments; Whole Agreement. This Warrant may be
amended or supplemented only by an instrument in writing signed by the parties
hereto. This Warrant contains the full understanding of the parties hereto with
respect to the subject matter hereof and there are no representations,
warranties, agreements or understandings other than expressly contained herein.
11. Governing Law. This Warrant shall be deemed to be a contract made
under the laws of the State of California and for all purposes shall be governed
by and construed in accordance with the laws of such state applicable to
contracts to be made and performed entirely within such state.
12. Descriptive Headings. Descriptive headings of the several sections
of this Warrant are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the Company has executed this Warrant as of the ____
day of January, 2000.
AVANIR PHARMACEUTICALS
By:
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Xxxxxxx X. Xxxxxx, Chief
Financial Officer
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NOTICE OF EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise the right,
represented by the AVANIR Pharmaceuticals Common Stock Purchase Warrant dated as
of January 25, 2000, to purchase [__________] shares of the Common Stock, no par
value, of AVANIR Pharmaceuticals and tenders herewith payment in accordance with
said Common Stock Purchase Warrant.
Please deliver the stock certificate to:
[______________]
[______________]
[______________]
[______________]
[______________]
Dated: ______________________
By: __________________________________
Its: _________________________________
(TM) CASH: $ _______________________
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