CLINICAL DATA, INC. and ________, AS WARRANT AGENT FORM OF COMMON STOCK WARRANT AGREEMENT DATED AS OF _______
EXHIBIT 4.7
CLINICAL DATA, INC.
and
________, AS WARRANT AGENT
FORM OF COMMON STOCK
WARRANT AGREEMENT
WARRANT AGREEMENT
DATED AS OF _______
CLINICAL DATA, INC.
FORM OF COMMON STOCK WARRANT AGREEMENT
COMMON STOCK WARRANT AGREEMENT (this “Agreement”), dated as of
between Clinical Data, Inc. , a Delaware corporation (the “Company”) and
, a [corporation] [national banking association] organized and existing under
the laws of and having a corporate trust office in , as
warrant agent (the “Warrant Agent”).
WHEREAS, the Company proposes to sell [if Warrants are sold with other
securities—[title of such other securities being offered] (the “Other Securities”) with] warrant
certificates evidencing one or more warrants (the “Warrants” or, individually, a “Warrant”)
representing the right to purchase Common Stock of the Company, par value $0.01 per share (the
“Warrant Securities”), such warrant certificates and other warrant certificates issued pursuant to
this Agreement being herein called the “Warrant Certificates”; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and
the Warrant Agent is willing so to act, in connection with the issuance, registration, transfer,
exchange, exercise and replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, registered, transferred, exchanged, exercised and replaced.
NOW THEREFORE, in consideration of the premises and of the mutual agreements herein
contained, the parties hereto agree as follows:
ARTICLE 1
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT CERTIFICATES
1.1 Issuance Of Warrants. [If Warrants alone—Upon issuance, each Warrant
Certificate shall evidence one or more Warrants.] [If Other Securities and Warrants— Warrant
Certificates shall be [initially] issued in connection with the issuance of the Other Securities
[but shall be separately transferable on and after (the “Detachable Date”)]
[and shall not be separately transferable] and each Warrant Certificate shall evidence one or more
Warrants.] Each Warrant evidenced thereby shall represent the right, subject to the provisions
contained herein and therein, to purchase one Warrant Security. [If Other Securities and Warrants—
Warrant Certificates shall be initially issued in units with the Other Securities and each Warrant
Certificate included in such a unit shall evidence Warrants for each [$ principal amount] [ shares] of Other Securities included in
such unit.]
1.2 Execution And Delivery Of Warrant Certificates. Each Warrant Certificate,
whenever issued, shall be in registered form substantially in the form set forth in Exhibit A
hereto, shall be dated the date of its countersignature by the Warrant Agent and may have such
letters, numbers, or other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the officers of the Company executing the same may
approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent
with the provisions of this Agreement, or as may be required to comply with any law or with any
rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange
on which the Warrants may be listed, or to conform to usage. The Warrant Certificates shall be
signed on behalf of the Company by any of its present or future chief executive officers,
presidents, senior vice presidents, vice presidents, chief financial officers, chief legal
officers, treasurers, assistant treasurers, controllers, assistant controllers, secretaries or
assistant secretaries under its corporate seal reproduced thereon. Such signatures may be manual
or facsimile signatures of such authorized officers and may be imprinted or otherwise reproduced on
the Warrant Certificates. The seal of the Company may be in the form of a facsimile thereof and
may be impressed, affixed, imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant evidenced thereby shall
be exercisable, until such Warrant Certificate has been countersigned by the manual signature of
the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate executed by
the Company shall be conclusive evidence that the Warrant Certificate so countersigned has been
duly issued hereunder.
In case any officer of the Company who shall have signed any of the Warrant Certificates
either manually or by facsimile signature shall cease to be such officer before the Warrant
Certificates so signed shall have been countersigned and delivered by the Warrant Agent, such
Warrant Certificates may be countersigned and delivered notwithstanding that the person who signed
Warrant Certificates ceased to be such officer of the Company; and any Warrant Certificate may be
signed on behalf of the Company by such persons as, at the actual date of the execution of such
Warrant Certificate, shall be the proper officers of the Company, although at the date of the
execution of this Agreement any such person was not such officer.
The term “holder” or “holder of a Warrant Certificate” as used herein shall mean any person in
whose name at the time any Warrant Certificate shall be registered upon the books to be maintained
by the Warrant Agent for that purpose [ If Other Securities and Warrants are not immediately
detachable— or upon the registration of the Other Securities prior to the Detachable Date. Prior
to the Detachable Date, the Company will, or will cause the registrar of the Other Securities to,
make available at all times to the Warrant Agent such information as to holders of the Other
Securities as may be necessary to keep the Warrant Agent’s records up to date].
1.3 Issuance Of Warrant Certificates. Warrant Certificates evidencing the right to
purchase Warrant Securities may be executed by the Company and delivered to the Warrant Agent upon
the execution of this Warrant Agreement or from time to time thereafter. The Warrant Agent shall,
upon receipt of Warrant Certificates duly executed on behalf of the Company, countersign such
Warrant Certificates and shall deliver such Warrant Certificates to or upon the order of the
Company.
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
2.1 Warrant Price. During the period specified in Section 2.2, each Warrant shall,
subject to the terms of this Warrant Agreement and the applicable Warrant Certificate, entitle the
holder thereof to purchase the number of Warrant Securities specified in the applicable Warrant
Certificate at an exercise price of $ per Warrant Security, subject to adjustment
upon the occurrence of certain events, as hereinafter provided. Such purchase price per Warrant
Security is referred to in this Agreement as the “Warrant Price.”
2.2 Duration Of Warrants. Each Warrant Certificate may be exercised in whole or in
part at any time, as specified herein, on or after [the date thereof] [ ] and
at or before [ ] p.m., [ ] time, on [ ] or such
later date as the Company may designate by notice to the Warrant Agent and the holders of Warrant
Certificates mailed to their addresses as set forth in the record books of the Warrant Agent (the
“Expiration Date”). Each Warrant not exercised at or before [ ] p.m., [
] time, on the Expiration Date shall become void, and all rights of the holder of the Warrant
Certificate evidencing such Warrant under this Agreement shall cease.
2.3 Exercise Of Warrants.
(a) During the period specified in Section 2.2, the Warrants may be exercised to
purchase a whole number of Warrant Securities in registered form by providing certain information
as set forth on the reverse side of the Warrant Certificate and by paying in full, in lawful money
of the United States of America, [in cash or by certified check or official bank check in New York
Clearing House funds] [by bank wire transfer in immediately available funds] the Warrant Price for
each Warrant Security with respect to which a Warrant is being exercised to the Warrant Agent at
its corporate trust office, provided that such exercise is subject to receipt within five business
days of such payment by the Warrant Agent of the Warrant Certificate with the form of election to
purchase Warrant Securities set forth on the reverse side of the Warrant Certificate properly
completed and duly executed. The date on which payment in full of the Warrant Price is received by
the Warrant Agent shall, subject to receipt of the Warrant Certificate as aforesaid, be deemed to
be the date on which the Warrant is exercised; provided, however, that if, at the date of receipt
of such Warrant Certificates and payment in full of the Warrant Price, the transfer books for the
Warrant Securities purchasable upon the exercise of such Warrants shall be closed, no such receipt
of such Warrant Certificates and no such payment of such Warrant Price shall be effective to
constitute the person so designated to be named as the holder of record of such Warrant Securities
on such date, but shall be effective to constitute such person as the holder of record of such
Warrant Securities for all purposes at the opening of business on the next succeeding day on which
the transfer books for the Warrant Securities purchasable upon the exercise of such Warrants shall
be opened, and the certificates for the Warrant Securities in respect of which such Warrants are
then exercised shall be issuable as of the date on such next succeeding day on which the transfer
books shall next be opened, and until such date the Company shall be under no duty to deliver any
certificate for such Warrant Securities. The Warrant Agent shall deposit all funds received by it
in payment of the Warrant Price in an account of the Company maintained with it and shall advise
the Company by telephone at the end of each day on which a payment for the exercise of Warrants is
received of the amount so deposited to its account. The Warrant Agent shall promptly confirm such
telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as practicable,
advise the Company of (i) the number of Warrant Securities with respect to which Warrants were
exercised, (ii) the instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Warrant Securities to which such holder is entitled upon
such exercise, (iii) delivery of Warrant Certificates evidencing the balance, if any, of the
Warrants for the remaining Warrant Securities after such exercise, and (iv) such other information
as the Company shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant, the Company shall
issue to or upon the order of the holder of the Warrant Certificate evidencing such Warrant the
Warrant Securities to which such holder is entitled, in
fully registered form, registered in such name or names as may be directed by such holder. If
fewer than all of the Warrants evidenced by such Warrant Certificate are exercised, the Company
shall execute, and an authorized officer of the Warrant Agent shall manually countersign and
deliver, a new Warrant Certificate evidencing Warrants for the number of Warrant Securities
remaining unexercised.
(d) The Company shall not be required to pay any stamp or other tax or other
governmental charge required to be paid in connection with any transfer involved in the issue of
the Warrant Securities, and in the event that any such transfer is involved, the Company shall not
be required to issue or deliver any Warrant Security until such tax or other charge shall have been
paid or it has been established to the Company’s satisfaction that no such tax or other charge is
due.
(e) Prior to the issuance of any Warrants there shall have been reserved, and the
Company shall at all times through the Expiration Date keep reserved, out of its authorized but
unissued Warrant Securities, a number of shares sufficient to provide for the exercise of the
Warrants.
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES
3.1 No Rights As Warrant Securityholder Conferred By Warrants Or Warrant
Certificates. No Warrant Certificate or Warrant evidenced thereby shall entitle the holder thereof
to any of the rights of a holder of Warrant Securities, including, without limitation, the right to
receive the payment of dividends or distributions, if any, on the Warrant Securities or to exercise
any voting rights, except to the extent expressly set forth in this Agreement or the applicable
Warrant Certificate.
3.2 Lost, Stolen, Mutilated Or Destroyed Warrant Certificates. Upon receipt by
the Warrant Agent of evidence reasonably satisfactory to it and the Company of the ownership of and
the loss, theft, destruction or mutilation of any Warrant Certificate and/or indemnity reasonably
satisfactory to the Warrant Agent and the Company and, in the case of mutilation, upon surrender of
the mutilated Warrant Certificate to the Warrant Agent for cancellation, then, in the absence of
notice to the Company or the Warrant Agent that such Warrant Certificate has been acquired by a
bona fide purchaser, the Company shall execute, and an authorized officer of the Warrant Agent
shall manually countersign and deliver, in exchange for or in lieu of the lost, stolen, destroyed
or mutilated Warrant Certificate, a new Warrant Certificate of the same tenor and evidencing
Warrants for a like number of Warrant Securities. Upon the issuance of any new Warrant Certificate
under this Section 3.2, the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Warrant Agent) in connection therewith. Every substitute Warrant
Certificate executed and delivered pursuant to this Section 3.2 in lieu of any lost, stolen or
destroyed Warrant Certificate shall represent an additional contractual obligation of the Company,
whether or not the lost, stolen or destroyed Warrant Certificate shall be at any time enforceable
by anyone, and shall be entitled to the benefits of this Agreement equally and proportionately with
any and all other Warrant Certificates duly executed and delivered hereunder. The provisions of
this Section 3.2 are exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement of mutilated, lost, stolen or destroyed Warrant
Certificates.
3.3 Holder Of Warrant Certificate May Enforce Rights. Notwithstanding any of the
provisions of this Agreement, any holder of a Warrant Certificate, without the consent of the
Warrant Agent, the holder of any Warrant Securities or the holder of any other Warrant Certificate,
may, in such holder’s own behalf and for such holder’s own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce, or otherwise in
respect of, such holder’s right to exercise the Warrants evidenced by such holder’s Warrant
Certificate in the manner provided in such holder’s Warrant Certificate and in this Agreement.
3.4 Adjustments.
(a) In case the Company shall at any time subdivide its outstanding shares of Common
Stock into a greater number of shares, the Warrant Price in effect immediately prior to such
subdivision shall be proportionately reduced and the number of Warrant Securities purchasable under
the Warrants shall be proportionately increased. Conversely, in case the outstanding shares of
Common Stock of the Company shall be combined into a smaller number of shares, the Warrant Price in
effect immediately prior to such combination shall be proportionately increased and the number of
Warrant Securities purchasable under the Warrants shall be proportionately decreased.
(b) If at any time or from time to time the holders of Common Stock (or any shares
of stock or other securities at the time receivable upon the exercise of the Warrants) shall have
received or become entitled to receive, without payment therefore,
(i) Common Stock or any shares of stock or other securities which are at any time
directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options
to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other
distribution;
(ii) any cash paid or payable otherwise than as a cash dividend paid or payable
out of the Company’s current or retained earnings;
(iii) any evidence of the Company’s indebtedness or rights to subscribe for or
purchase the Company’s indebtedness; or
(iv) Common Stock or additional stock or other securities or property (including
cash) by way of spinoff, split-up, reclassification, combination of shares or similar corporate
rearrangement (other than shares of Common Stock issued as a stock split or adjustments in respect
of which shall be covered by the terms of Section 3.4(a) above), then and in each such case, the
holder of each Warrant shall, upon the exercise of the Warrant, be entitled to receive, in addition
to the number of Warrant Securities receivable thereupon, and without payment of any additional
consideration therefore, the amount of stock and other securities and property (including cash and
indebtedness or rights to subscribe for or purchase indebtedness) which such holder would hold on
the date of such exercise had he been the holder of record of such Warrant Securities as of the
date on which holders of Common Stock received or became entitled to receive such shares or all
other additional stock and other securities and property.
(c) In case of (i) any reclassification, capital reorganization, or change in the
Common Stock of the Company (other than as a result of a subdivision, combination, or stock
dividend provided for in Section 3.4(a) or Section 3.4(b) above), (ii) share exchange, merger or
similar transaction of the Company with or into another person or entity (other than a share
exchange, merger or similar transaction in which the Company is the acquiring or surviving
corporation and which does not result in any change in the Common Stock other than the issuance of
additional shares of Common Stock) or (iii) the sale, exchange, lease, transfer or other
disposition of all or substantially all of the properties and assets of the Company as an entirety
(in any such case, a “Reorganization Event”), then, as a condition of such Reorganization Event,
lawful provisions shall be made, and duly executed documents evidencing the same from the Company
or its successor shall be delivered to the holders of the Warrants, so that the holders of the
Warrants shall have the right at any time prior to the expiration of the Warrants to purchase, at a
total price equal to that payable upon the exercise of the Warrants, the kind and amount of shares
of stock and other securities and property receivable in connection with such Reorganization Event
by a holder of the same number of Warrant Securities as were purchasable by the holders of the
Warrants immediately prior to such Reorganization Event. In any such case appropriate provisions
shall be made with respect to the rights and interests of the holders of the Warrants so that the
provisions hereof shall thereafter be applicable with respect to any shares of stock or other
securities and property deliverable upon exercise the Warrants, and appropriate adjustments shall
be made to the Warrant Price payable hereunder provided the aggregate purchase price shall remain
the same. In the case of any transaction described in clauses (ii) and (iii) above, the Company
shall thereupon be relieved of any further obligation hereunder or under the Warrants, and the
Company as the predecessor corporation may thereupon or at any time thereafter be dissolved, wound
up or liquidated. Such successor or assuming entity thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the Warrants issuable
hereunder which heretofore shall not have been signed by the Company, and may execute and deliver
securities in its own name, in fulfillment of its obligations to deliver Warrant Securities upon
exercise of the Warrants. All the Warrants so issued shall in all respects have the same legal
rank and benefit under this Agreement as the Warrants theretofore or thereafter issued in
accordance with the terms of this Agreement as though all of such Warrants had been issued at the
date of the execution hereof. In any case of any such Reorganization Event, such changes in
phraseology and form (but not in substance) may be made in the Warrants thereafter to be issued as
may be appropriate. The Warrant Agent may receive a written opinion of legal counsel as conclusive
evidence that any such Reorganization Event complies with the provisions of this Section 3.4.
(d) The Company may, at its option, at any time until the Expiration Date,
reduce the then current Warrant Price to any amount deemed appropriate by the Board of Directors of
the Company for any period not exceeding twenty consecutive days (as evidenced in a resolution
adopted by such Board of Directors), but only upon giving the notices required by Section 3.5 at
least ten days prior to taking such action.
(e) Except as herein otherwise expressly provided, no adjustment in the Warrant
Price shall be made by reason of the issuance of shares of Common Stock, or securities convertible
into or exchangeable for shares of Common Stock, or securities carrying the right to purchase any
of the foregoing or for any other reason whatsoever.
(f) No fractional Warrant Securities shall be issued upon the exercise of
Warrants. If more than one Warrant shall be exercised at one time by the same holder, the number
of full Warrant Securities which shall be issuable upon such exercise shall be computed on the
basis of the aggregate number of Warrant Securities purchased pursuant to the Warrants so
exercised. Instead of any fractional Warrant Security which would otherwise be issuable upon
exercise of any Warrant, the Company shall pay a cash adjustment in respect of such fraction in an
amount equal to the same fraction of the last reported sale price (or bid price if there were no
sales) per Warrant Security, in either case as reported on the principal registered national
securities exchange on which the Warrant Securities are listed or admitted to trading on the
business day that next precedes the day of exercise or, if the Warrant Securities are not then
listed or admitted to trading on any registered national securities exchange, the average of the
closing high bid and low asked prices as reported on the OTC Bulletin Board Service (the “OTC
Bulletin Board”) operated by the Financial Industry Regulatory Authority, Inc. (“FINRA”) or,
if not available on the OTC Bulletin Board, then the average of the closing high bid and low asked
prices as reported on any other U.S. quotation medium or inter-dealer quotation system on such
date, or if on any such date the Warrant Securities are not listed or admitted to trading on a
registered national securities exchange, are not included in the OTC Bulletin Board, and are not
quoted on any other U.S. quotation medium or inter-dealer quotation system, an amount equal to the
same fraction of the average of the closing bid and asked prices as furnished by any FINRA member
firm selected from time to time by the Company for that purpose at the close of business on the
business day that next precedes the day of exercise.
(g) Whenever the Warrant Price then in effect is adjusted as herein provided, the
Company shall mail to each holder of the Warrants at such holder’s address as it shall appear on
the books of the Company a statement setting forth the adjusted Warrant Price then and thereafter
effective under the provisions hereof, together with the facts, in reasonable detail, upon which
such adjustment is based.
(h) Notwithstanding anything to the contrary herein, in no event shall the Warrant Price, as
adjusted in accordance with the terms hereof, be less than the par value per share of Common Stock.
.
3.5 Notice To Warrantholders. In case the Company shall (a) effect any
dividend or distribution described in Section 3.4(b), (b) effect any Reorganization Event, (c) make
any distribution on or in respect of the Common Stock in connection with the dissolution,
liquidation or winding up of the Company, or (d) reduce the then current Warrant Price pursuant to
Section 3.4(d), then the Company shall mail to each holder of Warrants at such holder’s address as
it shall appear on the books of the Warrant Agent, at least ten days prior to the applicable date
hereinafter specified, a notice stating (x) the record date for such dividend or distribution, or,
if a record is not to be taken, the date as of which the holders of record of Common Stock that
will be entitled to such dividend or distribution are to be determined, (y) the date on which such
Reorganization Event, dissolution, liquidation or winding up is expected to become effective, and
the date as of which it is expected that holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities or other property deliverable upon such
Reorganization Event, dissolution, liquidation or winding up, or (z) the first date on which the
then current Warrant Price shall be reduced pursuant to Section 3.4(d). No failure to mail such
notice nor any defect therein or in the mailing thereof shall affect any such transaction or any
adjustment in the Warrant Price required by Section 3.4.
3.6 [If The Warrants Are Subject To Acceleration By The Company, Insert—Acceleration
Of Warrants By The Company.
(a) At any time on or after , the Company shall have the right
to accelerate any or all Warrants at any time by causing them to expire at the close of business on
the day next preceding a specified date (the “Acceleration Date”), if the Market Price (as
hereinafter defined) of the Common Stock equals or exceeds percent ( %)
of the then effective Warrant Price on any twenty Trading Days (as hereinafter defined) within a
period of thirty consecutive Trading Days ending no more than five Trading Days prior to the date
on which the Company gives notice to the Warrant Agent of its election to accelerate the Warrants.
(b) “Market Price” for each Trading Day shall be, if the Common Stock is listed or
admitted to trading on any registered national securities exchange, the last reported sale price,
regular way (or, if no such price is reported, the average of the reported closing bid and asked
prices, regular way) of Common Stock, in either case as reported on the principal registered
national securities exchange on which the Common Stock is listed or admitted to trading or, if not
listed or admitted to trading on any registered national securities exchange, the average of the
closing high bid and low asked prices as reported on the OTC Bulletin Board operated by FINRA, or
if not available on the OTC Bulletin Board, then the average of the closing high bid and low asked
prices as reported on any other U.S. quotation medium or inter-dealer quotation system, or if on
any such date the shares of Common Stock are not listed or admitted to trading on a registered
national securities exchange, are not included in the OTC Bulletin Board, and are not quoted on any
other U.S. quotation medium or inter-dealer quotation system, the average of the closing bid and
asked prices as furnished by any FINRA member firm selected from time to time by the Company for
that purpose. “Trading Day” shall be each Monday through Friday, other than any day on which
securities are not traded in the system or on the exchange that is the principal market for the
Common Stock, as determined by the Board of Directors of the Company.
(c) In the event of an acceleration of less than all of the Warrants, the
Warrant Agent shall select the Warrants to be accelerated by lot, pro rata or in such other manner
as it deems, in its discretion, to be fair and appropriate.
(d) Notice of an acceleration specifying the Acceleration Date shall be sent by mail
first class, postage prepaid, to each registered holder of a Warrant Certificate representing a
Warrant accelerated at such holder’s address appearing on the books of the Warrant Agent not more
than sixty days nor less than thirty days before the Acceleration Date. Such notice of an
acceleration also shall be given no more than twenty days, and no less than ten days, prior to the
mailing of notice to registered holders of Warrants pursuant to this Section 3.6, by publication at
least once in a newspaper of general circulation in the City of New York.
(e) Any Warrant accelerated may be exercised until [ ] p.m.,
[ ] time, on the business day next preceding the Acceleration Date. The Warrant Price
shall be payable as provided in Section 2.]
ARTICLE 4
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
4.1 Exchange And Transfer Of Warrant Certificates. [If Other Securities with
Warrants which are immediately detachable— Upon] [If Other Securities with Warrants which are not
immediately detachable— Prior to the Detachable Date, a Warrant Certificate may be exchanged or
transferred only together with the Other Security to which the Warrant Certificate was initially
attached, and only for the purpose of effecting or in conjunction with an exchange or transfer of
such Other Security. Prior to any Detachable Date, each transfer of the Other Security shall
operate also to transfer the related Warrant Certificates. After the Detachable Date, upon]
surrender at the corporate trust office of the Warrant Agent, Warrant Certificates evidencing
Warrants may be exchanged for Warrant Certificates in other denominations evidencing such Warrants
or the transfer thereof may be registered in whole or in part; provided that such other Warrant
Certificates evidence Warrants for the same aggregate number of Warrant Securities as the Warrant
Certificates so surrendered. The Warrant Agent shall keep, at its corporate trust office, books in
which, subject to such reasonable regulations as it may prescribe, it shall register Warrant
Certificates and exchanges and transfers of outstanding Warrant Certificates, upon surrender of the
Warrant Certificates to the Warrant Agent at its corporate trust office for exchange or
registration of transfer, properly endorsed or accompanied by appropriate instruments of
registration of transfer and written instructions for transfer, all in form satisfactory to the
Company and the Warrant Agent. No service charge shall be made for any exchange or registration of
transfer of Warrant Certificates, but the Company may require payment of a sum sufficient to cover
any stamp or other tax or other governmental charge that may be imposed in connection with any such
exchange or registration of transfer. Whenever any Warrant Certificates are so surrendered for
exchange or registration of transfer, an authorized officer of the Warrant Agent shall manually
countersign and deliver to the person or persons entitled thereto a Warrant Certificate or Warrant
Certificates duly authorized and executed by the Company, as so requested. The Warrant Agent shall
not be required to effect any exchange or registration of transfer which will result in the
issuance of a Warrant Certificate evidencing a Warrant for a fraction of a Warrant Security or a
number of Warrants for a whole number of Warrant Securities and a fraction of a Warrant
Security. All Warrant Certificates issued upon any exchange or registration of transfer of Warrant
Certificates shall be the valid obligations of the Company, evidencing the same obligations and
entitled to the same benefits under this Agreement as the Warrant Certificate surrendered for such
exchange or registration of transfer.
4.2 Treatment Of Holders Of Warrant Certificates. [If Other Securities and
Warrants are not immediately detachable— Prior to the Detachable Date, the Company, the Warrant
Agent and all other persons may treat the owner of the Other Security as the owner of the Warrant
Certificates initially attached thereto for any purpose and as the person entitled to exercise the
rights represented by the Warrants evidenced by such Warrant Certificates, any notice to the
contrary notwithstanding. After the Detachable Date and prior to due presentment of a Warrant
Certificate for registration of transfer, the] [The] Company, the Warrant Agent and all other
persons may treat the registered holder of a Warrant Certificate as the absolute owner thereof for
any purpose and as the person entitled to exercise the rights represented by the Warrants evidenced
thereby, any notice to the contrary notwithstanding.
4.3 Cancellation Of Warrant Certificates. Any Warrant Certificate surrendered for
exchange, registration of transfer or exercise of the Warrants evidenced thereby shall, if
surrendered to the Company, be delivered to the Warrant Agent and all Warrant Certificates
surrendered or so delivered to the Warrant Agent shall be promptly canceled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this Agreement, no Warrant
Certificate shall be issued hereunder in exchange therefor or in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise dispose of
canceled Warrant Certificates in a manner satisfactory to the Company.
ARTICLE 5
CONCERNING THE WARRANT AGENT
5.1 Warrant Agent. The Company hereby appoints as Warrant
Agent of the Company in respect of the Warrants and the Warrant Certificates upon the terms and
subject to the conditions herein set forth, and hereby accepts such
appointment. The Warrant Agent shall have the powers and authority granted to and conferred upon
it in the Warrant Certificates and hereby and such further powers and authority to act on behalf of
the Company as the Company may hereafter grant to or confer upon it. All of the terms and
provisions with respect to such powers and authority contained in the Warrant Certificates are
subject to and governed by the terms and provisions hereof.
5.2 Conditions Of Warrant Agent’s Obligations. The Warrant Agent accepts its
obligations herein set forth upon the terms and conditions hereof, including the following to all
of which the Company agrees and to all of which the rights
hereunder of the holders from time to time of the Warrant Certificates shall be subject:
(a) Compensation And Indemnification. The Company agrees promptly to pay the
Warrant Agent the compensation to be agreed upon with the Company for all services rendered by the
Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including
reasonable counsel fees) incurred without negligence, bad faith or willful misconduct by the
Warrant Agent in connection with the services rendered hereunder by the Warrant Agent. The Company
also agrees to indemnify the Warrant Agent for, and to hold it harmless against, any loss,
liability or expense incurred without negligence, bad faith or willful misconduct on the part of
the Warrant Agent, arising out of or in connection with its acting as Warrant Agent hereunder,
including the reasonable costs and expenses of defending against any claim of such liability.
(b) Agent For The Company. In acting under this Warrant Agreement and in
connection with the Warrant Certificates, the Warrant Agent is acting solely as agent of the
Company and does not assume any obligations or relationship of agency or trust for or with any of
the holders of Warrant Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory to it, which
may include counsel for the Company, and the written advice of such counsel shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur no liability
for or in respect of any action taken or omitted by it in reliance upon any Warrant Certificate,
notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers, directors and
employees, may become the owner of, or acquire any interest in, Warrants, with the same rights that
it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by
applicable law, it or they may engage or be interested in any financial or other transaction with
the Company and may act on, or as depositary, trustee or agent for, any committee or body of
holders of Warrant Securities or other obligations of the Company as freely as if it were not the
Warrant Agent hereunder. Nothing in this Warrant Agreement shall be deemed to prevent the Warrant
Agent from acting as trustee under any indenture to which the Company is a party.
(f) No Liability For Interest. Unless otherwise agreed with the Company, the
Warrant Agent shall have no liability for interest on any monies at any time received by it
pursuant to any of the provisions of this Agreement or of the Warrant Certificates.
(g) No Liability For Invalidity. The Warrant Agent shall have no liability with
respect to any invalidity of this Agreement or any of the Warrant Certificates (except as to the
Warrant Agent’s countersignature thereon).
(h) No Responsibility For Representations. The Warrant Agent shall not be
responsible for any of the recitals or representations herein or in the Warrant Certificates
(except as to the Warrant Agent’s countersignature thereon), all of which are made solely by the
Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated to perform
only such duties as are herein and in the Warrant Certificates specifically set forth and no
implied duties or obligations shall be read into this Agreement or the Warrant Certificates against
the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action
hereunder which may tend to involve it in any expense or liability, the payment of which within a
reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the Company of any of the Warrant
Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this
Agreement or for the application by the Company of the proceeds of the Warrant Certificates. The
Warrant Agent shall have no duty or responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in the Warrant Certificates or in
the case of the receipt of any written demand from a holder of a Warrant Certificate with respect
to such default, including, without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings at law or otherwise or, except as
provided in Section 6.2 hereof, to make any demand upon the Company.
5.3 Resignation, Removal And Appointment Of Successors.
(a) The Company agrees, for the benefit of the holders from time to time of the
Warrant Certificates, that there shall at all times be a Warrant Agent hereunder until all the
Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as agent by giving written notice to
the Company of such intention on its part, specifying the date on which its desired resignation
shall become effective; provided that such date shall not be less than three months after the date
on which such notice is given unless the Company otherwise agrees. The Warrant Agent hereunder may
be removed at any time by the filing with it of an instrument in writing signed by or on behalf of
the Company and specifying such removal and the intended date when it shall become
effective. Such resignation or removal shall take effect upon the appointment by the Company, as
hereinafter provided, of a successor Warrant Agent (which shall be a bank or trust company
authorized under the laws of the jurisdiction of its organization to exercise corporate trust
powers) and the acceptance of such appointment by such successor Warrant Agent. The obligation of
the Company under Section 5.2(a) shall continue to the extent set forth therein notwithstanding the
resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be removed, or
shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or shall commence a
voluntary case under the Federal bankruptcy laws, as now or hereafter constituted, or under any
other applicable Federal or state bankruptcy, insolvency or similar law or shall consent to the
appointment of or taking possession by a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Warrant Agent or its property or affairs, or shall
make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its
debts generally as they become due, or shall take corporate action in furtherance of any such
action, or a decree or order for relief by a court having jurisdiction in the premises shall have
been entered in respect of the Warrant Agent in an involuntary case under the Federal bankruptcy
laws, as now or hereafter constituted, or any other applicable Federal or state bankruptcy,
insolvency or similar law, or a decree or order by a court having jurisdiction in the premises
shall have been entered for the appointment of a receiver, custodian, liquidator, assignee,
trustee, sequestrator (or similar official) of the Warrant Agent or of its property or affairs, or
any public officer shall take charge or control of the Warrant Agent or of its property or affairs
for the purpose of rehabilitation, conservation, winding up or liquidation, a successor Warrant
Agent, qualified as aforesaid, shall be appointed by the Company by an instrument in writing, filed
with the successor Warrant Agent. Upon the appointment as aforesaid of a successor Warrant Agent
and acceptance by the successor Warrant Agent of such appointment, the Warrant Agent shall cease to
be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute, acknowledge
and deliver to its predecessor and to the Company an instrument accepting such appointment
hereunder, and thereupon such successor Warrant Agent, without any further act, deed or conveyance,
shall become vested with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named as Warrant Agent hereunder,
and such predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon
become obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be
entitled to receive, all monies, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be merged or
converted or any corporation with which the Warrant Agent may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party,
or any corporation to which the Warrant Agent shall sell or otherwise transfer all or substantially
all the assets and business of the Warrant Agent, provided that it shall be qualified as aforesaid,
shall be the successor Warrant Agent under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
ARTICLE 6
MISCELLANEOUS
6.1 Amendment. This Agreement may be amended by the parties hereto, without the
consent of the holder of any Warrant Certificate, for the purpose of curing any ambiguity, or of
curing, correcting or supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as the Company and the
Warrant Agent may deem necessary or desirable; provided that such action shall not materially
adversely affect the interests of the holders of the Warrant Certificates.
6.2 Notices And Demands To The Company And Warrant Agent. If the Warrant Agent
shall receive any notice or demand addressed to the Company by the holder of a Warrant Certificate
pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall promptly forward
such notice or demand to the Company.
6.3 Addresses. Any communication from the Company to the Warrant Agent with respect to
this Agreement shall be addressed to , Attention: and any
communication from the Warrant Agent to the Company with respect to this Agreement shall be
addressed to Clinical Data, Inc., Xxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000 Attention: Chief
Legal Officer (or such other address as shall be specified in writing by the Warrant Agent or by
the Company).
6.4 Governing Law. This Agreement and each Warrant Certificate issued
hereunder shall be governed by and construed in accordance with the laws of the State of New York.
6.5 Delivery Of Prospectus. The Company shall furnish to the Warrant Agent
sufficient copies of a prospectus meeting the requirements of the Securities Act of 1933, as
amended, relating to the Warrant Securities deliverable upon exercise of the Warrants (the
“Prospectus”), and the Warrant Agent agrees that upon the exercise of any Warrant, the Warrant
Agent will deliver to the holder of the Warrant Certificate evidencing such Warrant, prior to or
concurrently with the delivery of the Warrant
Securities issued upon such exercise, a Prospectus.
The Warrant Agent shall not, by reason of any such delivery, assume any responsibility for the
accuracy or adequacy of such Prospectus.
6.6 Obtaining Of Governmental Approvals. The Company will from time to time take
all action which may be necessary to obtain and keep effective any and all permits, consents and
approvals of governmental agencies and authorities and securities act filings under United States
Federal and state laws (including without limitation a registration statement in respect of the
Warrants and Warrant Securities under the Securities Act of 1933, as amended), which may be or
become requisite in connection with the issuance, sale, transfer, and delivery of the Warrant
Securities issued upon exercise of the Warrants, the issuance, sale, transfer and delivery of the
Warrants or upon the expiration of the period during which the Warrants are exercisable.
6.7 Persons Having Rights Under Warrant Agreement. Nothing in this Agreement shall
give to any person other than the Company, the Warrant Agent and the holders of the Warrant
Certificates any right, remedy or claim under or by reason of this Agreement.
6.8 Headings. The descriptive headings of the several Articles and Sections of this
Agreement are inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
6.9 Counterparts. This Agreement may be executed in any number of counterparts,
each of which as so executed shall be deemed to be an original, but such counterparts shall
together constitute but one and the same instrument.
6.10 Inspection Of Agreement. A copy of this Agreement shall be available at all
reasonable times at the principal corporate trust office of the Warrant Agent for inspection by the
holder of any Warrant Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, all as of the day and year first above written.
| CLINICAL DATA, INC. | ||||||
| By: | ||||||
| Its: | ||||||
| WARRANT AGENT | ||||||
| By: | ||||||
| Its: | ||||||
[SIGNATURE PAGE TO COMMON STOCK WARRANT AGREEMENT]
EXHIBIT A
FORM OF WARRANT CERTIFICATE
[FACE OF WARRANT CERTIFICATE]
[FACE OF WARRANT CERTIFICATE]
[[Form if Warrants are attached to
Other Securities and are not
immediately detachable.]
|
[Prior to ________, this Warrant Certificate cannot be transferred or exchanged unless attached to a [Title of Other Securities].] | |
[Form of Legend if Warrants are not
immediately exercisable.]
|
[Prior to ________, Warrants evidenced by this Warrant Certificate cannot be exercised.] |
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS PROVIDED HEREIN
VOID AFTER [ ] P.M., [ ] TIME, ON ,
CLINICAL DATA, INC.
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE
COMMON STOCK, PAR VALUE $0.01 PER SHARE
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE
COMMON STOCK, PAR VALUE $0.01 PER SHARE
| No. __________ | Warrants |
This certifies that or registered assigns is the registered owner of the
above indicated number of Warrants, each Warrant entitling such owner [if Warrants are attached to
Other Securities and are not immediately detachable— , subject to the registered owner qualifying
as a “Holder” of this Warrant Certificate, as hereinafter defined),] to purchase, at any time
[after [ ] p.m., [ ] time, [on and] on or before [
] p.m., [ ] time, on , shares of
Common Stock, par value $0.01 per share (the “Warrant Securities”), of Clinical Data, Inc. (the
“Company”) on the following basis: during the period from , through and
including , the exercise price per Warrant Security will be $ ,
subject to adjustment as provided in the Warrant Agreement (as hereinafter defined) (the “Warrant
Price”). The Holder may exercise the Warrants evidenced hereby by providing certain information
set forth on the back hereof and by paying in full, in lawful money of the United States of
America, [in cash or by certified check or official bank check in New York Clearing House funds]
[by bank wire transfer in immediately available funds], the Warrant Price for each Warrant Security
with respect to which this Warrant is exercised to the Warrant Agent (as hereinafter defined) and
by surrendering this Warrant Certificate, with the purchase form on the back hereof duly executed,
at the corporate trust office of [name of Warrant Agent], or its successor as warrant agent (the
“Warrant Agent”), which is, on the date hereof, at the address specified on the reverse hereof, and
upon compliance with and subject to the conditions set forth herein and in the Warrant Agreement
(as hereinafter defined).
The term “Holder” as used herein shall mean [if Warrants are attached to Other Securities and
are not immediately detachable—prior to , (the “Detachable
Date”), the registered owner of the Company’s [title of Other Securities] to which this Warrant
Certificate was initially attached, and after such Detachable Date,] the person in whose name at
the time this Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose pursuant to Section 4 of the Warrant Agreement.
The Warrants evidenced by this Warrant Certificate may be exercised to purchase a whole number
of Warrant Securities in registered form. Upon any exercise of fewer than all of the Warrants
evidenced by this Warrant Certificate, there shall be issued to the Holder hereof a new Warrant
Certificate evidencing Warrants for the number of Warrant Securities remaining unexercised.
This Warrant Certificate is issued under and in accordance with the Warrant Agreement dated as
of , (the “Warrant Agreement”), between the Company and the
Warrant Agent and is subject to the terms and provisions contained in the Warrant Agreement, to all
of which terms and provisions the Holder of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned office of the Warrant
Agent.
[If Warrants are attached to Other Securities and are not immediately detachable — Prior
to the Detachable Date, this Warrant Certificate may be exchanged or transferred only together with
the [Title of Other Securities] (the “Other Securities”) to which this Warrant Certificate was
initially attached, and only for the purpose of effecting or in conjunction with, an exchange or
transfer of such Other Security. Additionally, on or prior to the Detachable Date, each transfer
of such Other Security on the register of the Other Securities shall operate also to transfer this
Warrant Certificate. After such date, transfer of this] [If Warrants are attached to Other
Securities and are immediately detachable — Transfer of this] Warrant Certificate may be
registered when this Warrant Certificate is surrendered at the corporate trust office of the
Warrant Agent by the registered owner or such owner’s assigns, in the manner and subject to the
limitations provided in the Warrant Agreement.
[If Other Securities with Warrants which are not immediately detachable — Except as provided
in the immediately preceding paragraph, after] [If Other Securities with Warrants which are
immediately detachable or Warrants alone — After] countersignature by the Warrant Agent and prior
to the expiration of this Warrant Certificate, this Warrant Certificate may be exchanged at the
corporate trust office of the Warrant Agent for Warrant Certificates representing Warrants for the
same aggregate number of Warrant Securities.
This Warrant Certificate shall not entitle the Holder hereof to any of the rights of a holder
of the Warrant Securities, including, without limitation, the right to receive payments of
dividends or distributions, if any, on the Warrant Securities (except to the extent set forth in
the Warrant Agreement) or to exercise any voting rights.
Reference is hereby made to the further provisions of this Warrant Certificate set forth on
the reverse hereof, which further provisions shall for all purposes have the same effect as if set
forth at this place.
This Warrant Certificate shall not be valid or obligatory for any purpose until countersigned
by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed in its name
and on its behalf by the facsimile signatures of its duly authorized officers.
Dated:
|
||||
| CLINICAL DATA, INC. | ||||||
| By: | ||||||
| Its: | ||||||
| Countersigned: | ||||||
| As Warrant Agent |
||||||
| By: | ||||||
| Authorized Signature | ||||||
[REVERSE OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrant)
To exercise any Warrants evidenced hereby for Warrant Securities (as hereinafter defined), the
Holder must pay, in lawful money of the United States of America, [in cash or by certified check or
official bank check in New York Clearing House funds] [by bank wire transfer in immediately
available funds], the Warrant Price in full for Warrants exercised, to [Warrant Agent] [address of
Warrant Agent], Attn: , which payment must specify the name of the Holder and
the number of Warrants exercised by such Holder. In addition, the Holder must complete the
information required below and present this Warrant Certificate in person or by mail (certified or
registered mail is recommended) to the Warrant Agent at the appropriate address set forth
above. This Warrant Certificate, completed and duly executed, must be received by the Warrant
Agent within five business days of the payment.
(To be executed upon exercise of Warrants)
The undersigned hereby irrevocably elects to exercise Warrants, evidenced
by this Warrant Certificate, to purchase shares of the Common Stock, par
value $0.01 per share (the “Warrant Securities”), of Clinical Data, Inc. and represents that he has
tendered payment for such Warrant Securities, in lawful money of the United States of America, [in
cash or by certified check or official bank check in New York Clearing House funds] [by bank wire
transfer in immediately available funds], to the order of Clinical Data, Inc., c/o [insert name and
address of Warrant Agent], in the amount of $ in accordance with the terms
hereof. The undersigned requests that said Warrant Securities be in fully registered form in the
authorized denominations, registered in such names and delivered all as specified in accordance
with the instructions set forth below.
If the number of Warrants exercised is less than all of the Warrants evidenced hereby, the
undersigned requests that a new Warrant Certificate evidencing the Warrants for the number of
Warrant Securities remaining unexercised be issued and delivered to the undersigned unless
otherwise specified in the instructions below.
Dated:
|
Name: | |||||||
| Please Print | ||||||||
Address: |
||||||||
| (Insert Social Security or Other Identifying Number of Holder) | ||||||||
Signature Guaranteed:
|
||||
| Signature |
(Signature must conform in all respects to name of holder as specified on the face of this Warrant
Certificate and must bear a signature guarantee by a FINRA member firm).
This Warrant may be exercised at the following addresses:
By hand at:
|
||||
By mail at: |
||||
[Instructions as to form and delivery of Warrant Securities and, if applicable, Warrant
Certificates evidencing Warrants for the number of Warrant Securities remaining unexercised—complete as appropriate.]
ASSIGNMENT
[Form of assignment to be executed if Warrant Holder desires to transfer Warrant)
FOR VALUE RECEIVED, hereby sells, assigns and transfers unto:
(Please print name and address including zip code)
|
Please print Social Security or other identifying number | |
the right represented by the within Warrant to purchase shares of [Title of
Warrant Securities] of Clinical Data, Inc. to which the within
Warrant relates and appoints attorney to transfer such right on the books of the Warrant Agent with full
power of substitution in the premises.
Dated: |
||||
| Signature | ||||
| (Signature must conform in all respects to name of holder as specified on the face of the Warrant) |
||||
| Signature Guaranteed | ||||
