NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED, APPLICABLE
STATE SECURITIES LAWS AND THE TERMS AND CONDITIONS HEREOF. THE HOLDER OF THIS
WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF ARE SUBJECT TO THE
RESTRICTIONS HEREIN SET FORTH.
VOID AFTER 5:00 P.M. NEW YORK TIME, ON DECEMBER 31, 2001 OR UPON EARLIER
EXPIRATION PURSUANT TO ARTICLE VIII HEREIN.
WARRANT TO PURCHASE
**180,000 SHARES**
WARRANT TO PURCHASE
COMMON STOCK
OF ALLIANCE PHARMACEUTICAL CORP.
This certifies that, for good and valuable consideration received,
Imperial Bancorp and its registered, permitted assigns (collectively, the
"Warrantholder"), are entitled to purchase from Alliance Pharmaceutical Corp., a
corporation incorporated under the laws of New York (the "Company"), subject to
the terms and conditions hereof, at any time on or after July 1, 1999 and before
5:00 P.M., New York time, on December 31, 2001, or such earlier date of
expiration as may occur pursuant to Article VIII herein, (or, if such day is not
a Business Day, as defined herein, at or before 5:00 P.M., New York time, on the
next following Business Day), the number of fully paid and non-assessable shares
of Common Stock (par value $.01) of the Company (the "Common Stock") stated
above at the Exercise Price (as defined herein). The Exercise Price and the
number of shares purchasable hereunder are subject to adjustment as provided in
Article III hereof.
ARTICLE I
SECTION 1.01: DEFINITION OF TERMS. As used in this Warrant, the following
capitalized terms shall have the following respective meanings:
(a) BUSINESS DAY: A day other than a Saturday, Sunday or other day on
which banks in the State of New York are authorized by law to remain closed.
(b) COMMON STOCK: Common Stock, $.01 par value per share, of the
Company.
(c) COMMON STOCK EQUIVALENTS: Securities that are convertible into or
exercisable for shares of Common Stock.
1
(d) DEMAND REGISTRATION: See Section 7.02.
(e) EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
(f) EXERCISE PRICE: $2.88 per Warrant Share, as such price may be
adjusted from time to time pursuant to Article III hereof.
(g) EXPIRATION DATE: 5:00 P.M., New York time, on December 31, 2001,
or such earlier date of expiration as may occur pursuant to Article VIII herein.
(h) HOLDER: A holder of Registrable Securities.
(i) NASD: National Association of Securities Dealers, Inc.
(j) PERSON: An individual, partnership, joint venture, corporation,
trust, unincorporated organization or government or any department or agency
thereof.
(k) PIGGYBACK REGISTRATION: See Section 7.01.
(l) PROSPECTUS: Any prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with respect
to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement and all other amendments and supplements
to the Prospectus, including post-effective amendments and all material
incorporated by reference in such Prospectus.
(m) PUBLIC OFFERING: A public offering of any of the Company's equity
or debt securities pursuant to a registration statement under the Securities
Act.
(n) REGISTRATION EXPENSES: Any and all expenses incident to
performance of or compliance with Article VII hereunder, including, without
limitation, (i) all SEC and stock exchange or NASD registration and filing fees;
(ii) all fees and expenses of complying with state securities or blue sky laws
(including reasonable fees and disbursements of counsel for the underwriters, if
any, in connection with the blue sky qualifications of the Registrable
Securities); (iii) all printing, mailing, messenger and delivery expenses; (iv)
the fees and disbursements of counsel for the Company and of its independent
public accountants, including the expenses of any special audits and/or "cold
comfort" letters required by or incident to such performance and compliance; and
(v) any fees and disbursements of underwriters customarily paid by issuers or
sellers of securities, and the reasonable fees and expenses of any special
experts retained in connection with the requested registration, but excluding
underwriting discounts, commissions and transfer taxes, if any.
(o) REGISTRABLE SECURITIES: Warrant Shares and/or other securities
that may be or are issued by the Company upon exercise of such Warrants,
including those which may thereafter be issued by the Company in respect of any
such securities by means of any stock splits, stock dividends, recapitalizations
or the like, and as adjusted pursuant to Article III hereof; PROVIDED, HOWEVER,
that as to any particular Registrable Securities, such securities shall cease to
be Registrable Securities when (i) a Registration Statement with respect to the
sale of such
2
securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such Registration
Statement; or (ii) they shall have been distributed to the public pursuant to
Rule 144 (or any successor provision) under the Securities Act.
(p) REGISTRATION STATEMENT: Any registration statement of the Company
filed or to be filed with the SEC, which covers any of the Registrable
Securities pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such Registration Statement, including
post-effective amendments, all exhibits and all material incorporated by
reference by such registration statement, if any.
(q) SEC: The Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act or the Exchange Act.
(r) SECURITIES ACT: The Securities Act of 1933, as amended.
(s) WARRANTS: This Warrant and all other warrants that may be issued
in its place (together evidencing the right to purchase an aggregate of
one hundred eighty thousand (180,000) shares of Common Stock, subject to
adjustment from time to time in accordance with Article III).
(t) WARRANTHOLDER: The person(s) or entity(ies) to whom this Warrant
is originally issued, or any successor in interest thereto, or any assignee or
transferee thereof, in whose name this Warrant is registered upon the books to
be maintained by the Company for that purpose.
(u) WARRANT SHARES: Common Stock purchasable upon exercise of the
Warrants.
ARTICLE II
Duration and Exercise of Warrant
--------------------------------
SECTION 2.01: DURATION OF WARRANT. Subject to the terms contained herein,
this Warrant may be exercised at any time after July 1, 1999, and before
5:00 P.M. New York time, on the Expiration Date (or, if such day is not a
Business Day, at or before 5:00 P.M. New York time, on the next following
Business Day). If this Warrant is not exercised at or before 5:00 P.M.,
New York time, on the Expiration Date, it shall become void, and all rights
hereunder shall thereupon cease.
SECTION 2.02: EXERCISE OF WARRANT.
(a) The Warrantholder may exercise this Warrant, in whole or in part,
upon surrender of this Warrant with the Subscription Form hereon duly executed,
to the Company at its corporate office in San Diego, California, together with
the full Exercise Price for each share of Common Stock to be purchased in lawful
money of the United States, or by certified check, bank
3
draft or postal or express money order payable in United States Dollars to
the order of the Company and upon compliance with and subject to the
conditions set forth herein.
(b) In lieu of exercising this Warrant as specified in
Section 2.02(a), Warrantholder may from time to time convert this Warrant, in
whole or in part, into a number of Warrant Shares determined by dividing (a) the
aggregate fair market value of the Warrant Shares or other securities otherwise
issuable upon exercise of this Warrant minus the aggregate Exercise Price of
such Shares by (b) the fair market value of one Warrant Share. If the Warrant
Shares are traded regularly in a public market, the fair market value shall be
the closing price of the Warrant Shares (or the closing price of the Company's
stock into which the Warrant Shares are convertible) reported for the business
day immediately before Warrantholder delivers its Subscription Form to the
Company. If the Warrant Shares are not regularly traded in a public market, the
Board of Directors of the Company shall determine fair market value in its
reasonable good faith judgment. The foregoing notwithstanding, if Warrantholder
advises the Board of Directors in writing that Warrantholder disagrees with such
determination, then the Company and Warrantholder shall promptly agree upon a
reputable investment banking firm to undertake such valuation. If the valuation
of such investment banking firm is greater than that determined by the Board of
Directors, then all fees and expenses of such investment banking firm shall be
paid by the Company. In all other circumstances, such fees and expenses shall
be paid by Warrantholder.
(c) Upon receipt of this Warrant with the Subscription Form duly
executed and, if applicable, accompanied by payment of the aggregate Exercise
Price for the shares of Common Stock for which this Warrant is then being
exercised, the Company will cause to be issued certificates for the total
number of whole shares of Common Stock for which this Warrant is being
exercised in such denominations as are required for delivery to the
Warrantholder, and the Company shall thereupon deliver such certificates to
the Warrantholder.
(d) 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 investment intent representations, and may place such
legends on certificates representing the Warrant Shares, as may be reasonably
required in the opinion of counsel to the Company to permit the Warrant Shares
to be issued without such registration.
(e) In case the Warrantholder shall exercise this Warrant with
respect to less than all of the shares of Common Stock that may be purchased
under this Warrant, the Company will execute a new warrant certificate in the
form of this Warrant for the balance of the shares of Common Stock that may be
purchased upon exercise of this Warrant and deliver such new warrant certificate
to the Warrantholder.
(f) The Company covenants and agrees that it will pay when due and
payable any and all taxes which may be payable in respect of the issue of this
Warrant or in respect of the issue of any Warrant Shares. The Company shall not,
however, be required to pay any tax imposed on income or gross receipts or any
tax which may be payable in respect of any transfer involved in the issuance or
delivery of this Warrant or of Warrant Shares in a name other than that
4
of the Warrantholder at the time of surrender and, until the payment of such
tax, shall not be required to issue such Warrant Shares.
ARTICLE III
Adjustment of Shares of Common Stock
Purchasable and of Exercise Price
---------------------------------
The Exercise Price and the number and kind of Warrant Shares shall be subject to
adjustment from time to time upon the happening of certain events as provided in
this Article III.
SECTION 3.01: MECHANICAL ADJUSTMENTS.
(a) If at any time prior to the full exercise of this Warrant, the
Company shall (i) pay a dividend or make a distribution on its shares of Common
Stock in shares of Common Stock (other than cash dividends or distributions out
of earnings); (ii) subdivide, reclassify or recapitalize its outstanding Common
Stock into a greater number of shares; or (iii) combine, reclassify or
recapitalize its outstanding Common Stock into a smaller number of shares, the
Exercise Price in effect at the time of the record date of such subdivision,
combination, reclassification or recapitalization shall be proportionately
adjusted so that the Warrantholder shall be entitled to receive the aggregate
number and kind of shares which, if this Warrant had been exercised in full
immediately prior to such time, he would have owned upon such exercise and been
entitled to receive upon such dividend, subdivision, combination,
reclassification or recapitalization. Such adjustment shall be made successively
whenever any event listed in this paragraph 3.01(a) shall occur.
(b) In case the Company shall hereafter fix a record date for making
a distribution to the holders of Common Stock of assets or evidences of its
indebtedness (excluding cash dividends or distributions out of earnings and
dividends or distributions referred to in paragraph (a) of this Section 3.01) or
Common Stock subscription rights, options or warrants for Common Stock or Common
Stock Equivalents, then in each such case the Exercise Price in effect after
such record date shall be adjusted to the price determined by multiplying the
Exercise Price in effect immediately prior thereto by a fraction, the numerator
of which shall be the total number of shares of Common Stock outstanding at such
time multiplied by the current market price per share of Common Stock (as
defined in paragraph (d) of this Section 3.01), less the fair market value (as
determined by the Company's Board of Directors) of said assets or evidences of
indebtedness so distributed or of such Common Stock subscription rights, option
and warrants or of such Common Stock Equivalents, and the denominator of which
shall be the total number of shares of Common Stock outstanding at such time
multiplied by such current market price per share of Common Stock. Such
adjustment shall be made successively whenever the record date for such a
distribution is fixed and shall become effective immediately after such record
date.
(c) Whenever the Exercise Price payable upon exercise of each Warrant
is adjusted pursuant to paragraphs (a) or (b) of this Section 3.01, the Warrant
Shares shall simultaneously be adjusted by multiplying the number of Warrant
Shares then issuable upon
5
exercise of each Warrant by the Exercise Price in effect on the date thereof
and dividing the product so obtained by the Exercise Price as adjusted.
(d) For the purpose of any computation under this Section 3.01, the
current market price per share of Common Stock at any date shall be deemed to be
the average of the daily closing price for 30 consecutive Business Days
commencing 45 Business Days before such date. The closing price for each day
shall be the last sale price regular way or, in case no such reported sales
takes place on such day, the average of the last reported bid and asked prices
regular way, in either case on the principal national securities exchange on
which the Common Stock is admitted to trading or listed, or if not listed or
admitted to trading on such exchange, the representative closing bid price as
reported by NASDAQ, or other similar organization if NASDAQ is no longer
reporting such information, or if not so available, the fair market price as
determined in good faith by the Board of Directors.
(e) No adjustment in the Exercise Price shall be required unless such
adjustment would require an increase or decrease of at least twenty-five cents
($.25) in such price; provided, however, that any adjustments which by reason of
this paragraph (e) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Section 3.01 shall be made to the nearest cent or to the nearest one-hundredth
of a share, as the case may be. Notwithstanding anything in this Section 3.01 to
the contrary, the Exercise Price shall not be reduced to less than the then
existing par value of the Common Stock as a result of any adjustment made
hereunder.
(f) In the event that at any time, as a result of any adjustment made
pursuant to paragraph (a) of this Section 3.01, the Warrantholder thereafter
shall become entitled to receive any shares of the Company, other than Common
Stock, thereafter the number of such other shares so receivable upon exercise of
any Warrant shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to the
Common Stock contained in paragraphs (a) to (e), inclusive, of this Section
3.01.
SECTION 3.02: NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares
or the Exercise Price is adjusted as herein provided, the Company shall prepare
and deliver to the Warrantholder a certificate signed by its President, any Vice
President, Treasurer or Secretary, setting forth the adjusted number of shares
purchasable upon the exercise of this Warrant and the Exercise Price of such
shares after such adjustment, setting forth a brief statement of the facts
requiring such adjustment and setting forth the computation by which adjustment
was made.
SECTION 3.03: NO ADJUSTMENT FOR DIVIDENDS. No adjustment in respect of any
cash dividends shall be made during the term of this Warrant or upon the
exercise of this Warrant.
SECTION 3.04: PRESERVATION OF PURCHASE RIGHTS IN CERTAIN TRANSACTIONS. In
case of any consolidation of the Company with or merger of the Company into
another corporation or in case of any sale or conveyance to another corporation
of the property of the Company as an entirety or substantially as an entirety,
the Company agrees that a condition of such transaction will be that the Company
or such successor or purchasing corporation, as the case may be, shall execute
with the Warrantholder an agreement granting the Warrantholder the right
thereafter, upon
6
payment of the Exercise Price in effect immediately prior to such action, to
receive upon exercise of this Warrant the kind and amount of shares and other
securities and property which he would have owned or have been entitled to
receive after the happening of such consolidation, merger, sale or conveyance
had this Warrant been exercised immediately prior to such action. Such
agreement shall provide for adjustments, which shall be as nearly equivalent
as may be practicable to the adjustments provided for in this Article III.
The provisions of this Section 3.04 shall similarly apply to successive
consolidations, mergers, sales, or conveyances.
SECTION 3.05: FORM OF WARRANT AFTER ADJUSTMENTS. The form of this Warrant
need not be changed because of any adjustments in the Exercise Price or the
number or kind of the Warrant Shares, and Warrants theretofore or thereafter
issued may continue to express the same price and number and kind of shares as
are stated in this Warrant as initially issued.
ARTICLE IV
Other Provisions Relating
to Rights of Warrantholder
--------------------------
SECTION 4.01: NO RIGHTS AS SHAREHOLDERS; NOTICE TO WARRANTHOLDERS. Nothing
contained in this Warrant shall be construed as conferring upon the
Warrantholder or his transferees the right to vote or to receive dividends or to
consent or to receive notice as shareholders in respect of any meeting of
shareholders for the election of directors of the Company or any other matter,
or any rights whatsoever as shareholders of the Company. If, however, at any
time prior to the expiration or exercise in full of the Warrants, any of the
following events shall occur:
(a) the Company shall declare any dividend payable in any securities
upon its shares of Common Stock or make any distribution (other than a cash
dividend) to the holders of its shares of Common Stock; or
(b) the Company shall offer to the holders of its shares of Common
Stock any additional shares of Common Stock or Common Stock Equivalents or any
right to subscribe thereto; or
(c) a dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation, merger, or sale of all or substantially
all of its property, assets, and business as an entirety) shall be proposed;
then, in any one or more of said events, the Company shall give notice
of such event to the Warrantholder. Such giving of notice shall be initiated (i)
at least 25 days prior to the date fixed as a record date or the date of closing
the Company's Stock transfer books for the determination of the shareholders
entitled to such dividend, distribution, or subscription rights, or for the
determination of the shareholders entitled to vote on such proposed dissolution,
liquidation or winding up. Such notice shall specify such record date or the
date of closing the stock transfer books, as the case may be. Failure to provide
such notice shall not affect the validity of any action taken in connection with
such dividend, distribution or subscription rights, or proposed dissolution,
liquidation or winding up.
7
SECTION 4.02: LOST, STOLEN, MUTILATED OR DESTROYED WARRANTS. If this
warrant certificate is lost, stolen, mutilated or destroyed, the Company may, on
such terms as to indemnity or otherwise as it may in its discretion impose
(which shall, in the case of a mutilated Warrant, include the surrender
thereof), issue a new warrant certificate of like denomination and tenor as, and
in substitution for this Warrant.
SECTION 4.03: RESERVATION OF SHARES.
(a) The Company covenants and agrees that at all times it shall
reserve and keep available for the exercise of this Warrant such number of
authorized shares of Common Stock as are sufficient to permit the exercise in
full of this Warrant.
(b) The Company covenants that all shares of Common Stock issued on
exercise of this Warrant will be validly issued, fully paid, non-assessable and
free of pre-emptive rights.
SECTION 4.04: NO FRACTIONAL SHARES. Anything contained herein to the
contrary notwithstanding, the Company shall not be required to issue any
fraction of a share in connection with the exercise of this Warrant, and in any
case where the Warrantholder would, except for the provisions of this Section
4.04, 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 Exercise Price, issue the number of whole shares
purchasable upon exercise of this Warrant. The Company shall 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.
ARTICLE V
Treatment of Warrantholder
--------------------------
SECTION 5.01. Prior to due presentment for registration of transfer of this
Warrant, the Company may deem and treat the Warrantholder as the absolute owner
of this Warrant (notwithstanding any notation of ownership or other writing
hereon) for the purpose of any exercise hereof and for all other purposes and
the Company shall not be affected by any notice to the contrary.
ARTICLE VI
Transfer Restrictions
---------------------
SECTION 6.01: RESTRICTIONS ON TRANSFER. This Warrant may be transferred, in
whole or in part, subject to the following restrictions. Neither this Warrant
nor the Registrable Securities received upon exercise of this Warrant shall be
transferable unless registered under the Securities Act or unless an exemption
from registration is available. Unless and until this Warrant or the
Registrable Securities are so registered, such securities and any certificate
thereof shall contain a legend on the face thereof, in form and substance
satisfactory to counsel for the Company, stating that the Warrant or Registrable
Securities, as the case may be, may not be sold, transferred or otherwise
disposed of unless, in the opinion of counsel satisfactory to the Company, which
may be counsel to the Company, the Warrant, or Registrable Securities may be
transferred without
8
such registration. This Warrant and the Registrable Securities may also be
subject to restrictions on transferability under applicable state securities
or blue sky laws. Unless and until this Warrant or Registrable Securities,
as the case may be, are registered under the Securities Act, the holder of
such securities shall, if requested by the Company, provide to the Company an
opinion of counsel reasonably satisfactory to the Company, to the effect that
(i) the Warrant or Registrable Securities, as the case may be, may be
transferred without such registration and (ii) the transfer will not violate
any applicable state securities or blue sky laws. Any transfer of this
Warrant permitted hereunder shall be made by surrender of this Warrant to the
Company with the form of assignment annexed hereto properly completed and
duly executed and accompanied by (x) any necessary documentation required
hereunder and (y) funds sufficient to pay any transfer taxes applicable.
Upon satisfaction of all transfer conditions, the Company, without charge,
shall execute and deliver a new Warrant in the name of the transferee named
in such transfer form, and this Warrant promptly shall be canceled.
SECTION 6.02: SPLIT-UP, COMBINATION, EXCHANGE AND TRANSFER OF WARRANTS.
Subject to and limited by the provisions of Section 6.01 hereof, this Warrant
may be split up, combined or exchanged for another Warrant or Warrants
containing the same terms to purchase a like aggregate number of shares of
Common Stock. If the Warrantholder desires to split up, combine or exchange this
Warrant, he shall make such request in writing delivered to the Company and
shall surrender to the Company this Warrant and any other Warrants to be so
split up, combined or exchanged. Upon any such surrender for a split-up,
combination, or exchange, the Company shall execute and deliver to the Person
entitled thereto a Warrant or Warrants, as the case may be, as so requested. The
Company shall not be required to effect any split-up, combination or exchange
which will result in the issuance of a Warrant entitling the Warrantholder to
purchase upon exercise a fraction of a share of Common Stock or a fractional
Warrant. The Company may require such Warrantholder to pay a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
split-up, combination or exchange of Warrants.
ARTICLE VII
Registration Under the Securities Act of 1933
---------------------------------------------
SECTION 7.01: PIGGYBACK REGISTRATION.
(a) RIGHT TO INCLUDE REGISTRABLE SECURITIES. If at any time after
June 30, 1996, the Company proposes to register any class of debt or equity
security or any Common Stock Equivalent under the Securities Act on any form for
the general registration of securities under such Securities Act, whether or not
for its own account (other than a registration form relating to (i) a
registration of a stock option, stock purchase or compensation or incentive plan
or stock issued or issuable pursuant to any such plan, or a dividend investment
plan; (ii) a registration of stock proposed to be issued in exchange for
securities or assets of, or in connection with a merger or consolidation with,
another corporation; or (iii) a registration of stock proposed to be issued in
exchange for other securities of the Company) in a manner which would permit
registration of Registrable Securities for sale to the public under the
Securities Act (a "Piggyback Registration"), it will at such time give prompt
written notice to all Holders of Registrable Securities of its intention to do
so and of such Holders' rights under this Section 7.01. Upon the written request
of
9
any such Holder made within 15 days after the receipt of any such notice
(which request shall specify the Registrable Securities intended to be
disposed of by such Holder and the intended method of disposition thereof),
the Company will include in the Registration Statement the Registrable
Securities which the Company has been so requested to register by the Holders
thereof.
(b) WITHDRAWAL OF PIGGYBACK REGISTRATION BY COMPANY. If, at any time
after giving written notice of its intention to register any securities but
prior to the effective date of the Registration Statement filed in connection
with such registration, the Company shall determine for any reason not to
register such securities, the Company may, at its election, give written notice
of such determination to each Holder and, thereupon shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration. All best efforts obligations of the Company pursuant to Section
7.04 shall cease if the Company determines to terminate any registration where
Registrable Securities are being registered pursuant to this Section 7.01.
(c) PIGGYBACK REGISTRATION OF UNDERWRITTEN PUBLIC OFFERINGS. If a
Piggyback Registration requested pursuant to this Section 7.01 involves an
underwritten offering, then, (i) all Holders requesting to be included in the
Company's registration must sell their Registrable Securities to the
underwriters selected by the Company on the same terms and conditions as apply
to other selling shareholders or the Company, if there are no selling
shareholders; and (ii) any Holder requesting to be included in such registration
may elect in writing, not later than five (5) Business Days prior to the
effectiveness of the Registration Statement filed in connection with such
registration, not to register such securities in connection with such
registration.
(d) PAYMENT OF REGISTRATION EXPENSES FOR REGISTRATION. The Company
will pay all Registration Expenses in connection with each registration of
Registrable Securities requested pursuant to this Section 7.01, except for the
fees and disbursements of any counsel retained by the Holders of the Registrable
Securities being registered and such Holders' pro rata share of any filing fees
or other expenses directly and solely resulting from the inclusion of the
Registrable Securities in the Registration Statement, including underwriting
discounts and commissions.
(e) PRIORITY IN PIGGYBACK REGISTRATION. If a registration pursuant to
this Section 7.01 involves an underwritten offering and the managing underwriter
advises the Company in writing that, in its opinion, the number or kind of
Registrable Securities requested to be included in such registration would have
a material adverse effect on such offering, including an adverse decrease in the
price at which such securities can be sold, then the amount or kind of
Registrable Securities to be offered for the accounts of Holders shall be
eliminated entirely or reduced pro rata as to all requesting Holders on the
basis of the relative number of Registrable Securities each such Holder has
requested to be included in such registration, to the extent necessary to reduce
the total amount or kind of securities to be included in such offering to the
amount recommended by such managing underwriter; provided, however, that no
securities may be offered in such registration for the account of persons other
than the Company by virtue of their also having "piggyback" registration rights,
or otherwise, unless the Registrable Securities requested to be included in such
registration are so included on a pro rata basis.
10
(f) EXPIRATION OF PIGGYBACK REGISTRATION IN RIGHTS. The Piggyback
Registration rights granted to the Holders of Registrable Securities by this
Section 7.01 shall survive the exercise of the Warrant or the transactions or
events pursuant to which such Registrable Securities were issued, but all such
rights will terminate in all events three (3) years after exercise of this
Warrant.
SECTION 7.02: DEMAND REGISTRATION.
(a) REQUEST FOR REGISTRATION. Anytime after June 30, 1996, subject to
the limitations set forth below in this Section 7.02, any Warrantholder or
Holders who hold in the aggregate 75% or more of the Registrable Securities
(assuming, for such calculation, that all Warrantholders have previously
exercised their Warrants) may make a written request for the registration under
the Securities Act on Form S-3 or such other form of registration statement
permitting incorporation by reference of reports filed under the Exchange Act,
of all of their Registrable Securities (the "Demand Registration"), and the
Company shall use its best efforts to effect such Demand Registration. The
Warrantholders and Holders, as a group, shall be limited to one Demand
Registration. All rights to the Demand Registration shall terminate three (3)
years after the exercise of this Warrant.
(b) LIMITATIONS ON DEMAND REGISTRATION. The Company shall not be
required to effect the Demand Registration for a 12 month period following the
effective date of a Registration Statement pertaining to an underwritten Public
Offering for the account of the Company. Upon receipt of a request for the
Demand Registration, the Company may postpone the filing of a Registration
Statement for the Demand Registration for a period not to exceed 6 months, if
the Company furnishes to the Warrantholders and Holders requesting registration
a certificate signed by the Company's President stating that in the good faith
judgment of the Board of Directors it would be seriously detrimental to the
Company for a Public Offering to be commenced in the near future. If the Company
so determines to postpone the Demand Registration, it shall promptly notify the
requesting Warrantholders and Holders of such determination including the reason
therefor, whereupon the requesting Warrantholders and Holders shall be entitled
to withdraw such request and, if following the withdrawal of such requests,
Warrantholders and Holders of fewer than 50% of the Registrable Securities are
still requesting the Demand Registration, such Demand Registration shall not
count as the Demand Registration, whether or not the Company proceeds with such
registration, but the Company shall be under no obligation to proceed with such
registration as the Demand Registration.
(c) PAYMENT OF REGISTRATION EXPENSES FOR DEMAND REGISTRATION. The
Company will pay all Registration Expenses in connection with the Demand
Registration, except for the fees and disbursements of any counsel retained by
the Warrantholders and Holders of the Registrable Securities being registered
and any filing fees or other expenses directly and solely resulting from the
inclusion of the Registrable Securities in the Registration Statement including
underwriting discounts and commissions.
(d) PROCEDURE FOR REQUESTING DEMAND REGISTRATION. A request for the
Demand Registration shall specify the aggregate number of the Registrable
Securities proposed to be sold and shall also specify the intended method of
disposition thereof. Within ten (10) days after
11
receipt of such a request the Company will give written notice of such
registration request to all Warrantholders and Holders, and the Company will
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 20
Business Days after the date on which such notice is given. Each such request
shall also specify the aggregate number of Registrable Securities to be
registered and the intended method of disposition thereof.
(e) SELECTION OF UNDERWRITERS. If the Demand Registration is
requested to be in the form of an underwritten offering, the managing
underwriter shall be selected by the Company and the co-manager (if any) and the
independent price required under the rules of the NASD (if any) shall be
selected and obtained by the Warrantholders and Holders of a majority in
aggregate amount of the Registrable Securities to be registered subject to the
Company's consent, which consent shall not be unreasonably withheld.
SECTION 7.03: BUY-OUTS OF REGISTRATION DEMAND. In lieu of carrying out its
obligations to effect the Piggyback Registration or the Demand Registration of
Registrable Securities pursuant to this Article VII, the Company may discharge
such obligation by offering to purchase and, if accepted, by purchasing such
Registrable Securities requested to be registered at 95% of the closing bid or
sale price of the Common Stock on the day the request or demand for Registration
is made. If the offer to purchase is accepted by the Holder, payment will be
made by wire transfer or certified check in U.S. dollars within ten (10)
business days of receipt by the Company of written acceptance by such Holder,
accompanied by the stock certificate representing such shares duly endorsed to
the Company.
SECTION 7.04: REGISTRATION PROCEDURES. If and whenever the Company is
required pursuant to this Article VII to use its best efforts to effect the
registration of the Registrable Securities under the Securities Act, the Company
will, as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement which
includes the Registrable Securities and use its best efforts to cause such
Registration Statement to become and remain effective until the distribution
described in the registration statement has been completed or until the
participating Holders can sell all such Registrable Securities pursuant to Rule
144;
(b) prepare and file with the SEC such amendments and supplements to
such Registration Statement and the Prospectus used in connection therewith as
may be necessary to keep such Registration Statement effective and to comply
with the provisions of the Securities Act with respect to the sale or other
disposition of Registrable Securities covered by such Registration Statement
whenever a Holder shall desire to sell or otherwise dispose of the same, but
only to the extent provided in this Article VII;
(c) furnish to each participating Holder (and to each underwriter, if
any, of Registrable Securities) such number of copies of a Prospectus, including
a preliminary Prospectus, in conformity with the requirements of the Securities
Act, and such other documents, as such Holder may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Securities;
12
(d) use its best efforts to register or qualify the Registrable
Securities covered by such registration statement under such state securities or
blue sky laws of such jurisdiction as each participating Holder shall reasonably
request and do any and all other acts and things which may be necessary under
such securities or blue sky laws to enable such Holder to consummate the public
sale or other disposition in such jurisdictions of the Registrable Securities,
except that the Company shall not for any purpose be required to consent
generally to service of process or qualify to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified;
(e) before filing the Registration Statement or Prospectus or
amendments or supplements thereto, furnish to counsel selected by the
participating Holders copies of such documents proposed to be filed which shall
be subject to the reasonable approval of such counsel;
(f) enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter of such
offer;
(g) notify the participating Holders at any time when a Prospectus
relating to any Registrable Securities covered by such Registration Statement is
required to be delivered under the Securities Act, of the happening of any event
as a result of which the Prospectus included in such Registration Statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing
and promptly file such amendments and supplements as may be necessary so that,
as thereafter delivered to such Holders, such Prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing and use its best efforts to cause each
such amendment and supplement to become effective;
(h) furnish at the request of the participating Holders on the date
that such Registrable Securities are delivered to the underwriters for sale in
connection with a registration pursuant to this Article VII an opinion, dated
such date, of the counsel representing the Company, for purposes of such
registration, in form and substance as is customarily given by company counsel
to the underwriters in an underwritten public offer addressed to the
underwriters, if any, and to such Holders, and (ii) a letter dated such date,
from the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offer, addressed to the underwriters and
to such Holders; and
(i) use its best efforts to cause all such Registrable Securities to
be listed on the securities exchange or the Nasdaq National Market, if any, on
which the Company's Common Stock is then listed.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding the distribution of such securities and such other
information as may otherwise be required to be included in such Registration
Statement, as the Company may from time to time reasonably request in writing.
13
Each Holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in paragraph (g) hereof, such
Holder will forthwith discontinue disposition of such Registrable Securities
covered by such Registration Statement or Prospectus until such Holder's receipt
of the copies of the supplemented or amended Prospectus, or until it is advised
in writing by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any additional or supplemental filings which
are incorporated by reference in such Prospectus, and, if so directed by the
Company, such Holder will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in such Holder's possession, of
the Prospectus covering such Registrable Securities current at the time of
receipt of such notice.
SECTION 7.05: INDEMNIFICATION. In the event Registrable Securities are
registered pursuant to this Article VII:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder of Registrable Securities which are included in a
Registration Statement filed pursuant to the provisions of this Agreement and
any underwriter (within the meaning of the Securities Act) with respect to the
Registrable Securities, and each officer, director, employee and agent thereof
and each person, if any, who otherwise controls such Holder or underwriter
(within the meaning of the Securities Act), against any losses or claims,
damages, expenses or liabilities, joint or several, to which they may become
subject under the Securities Act, the Exchange Act or other federal or state
law, or otherwise, insofar as such losses, claims, damages, expenses or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue or allegedly untrue statement of any material fact contained in the
Registration Statement for the Registrable Securities, including any preliminary
Prospectus or final Prospectus contained therein or any amendments or
supplements thereto, or any document incident to the registration or
qualification of any Registrable Securities, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or allegedly necessary to make the statements therein not
misleading or arise out of any violation or alleged violation by the Company of
the Securities Act, the Exchange Act, any state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any state
securities law; and will reimburse such Holder, any underwriter, officer,
director, employee, agent or controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this Section 7.05(a) shall not apply to amounts
paid in settlement of any such loss, claim, damage, expense, liabiity or action
if such settlement is effected without the written consent of the Company, which
shall not be unreasonably withheld, nor shall the Company be liable under this
Section 7.05(a) to such Holder, such underwriter, officer, director, employee,
agent or controlling person for any such loss, claim, damage, expense, liability
or action to the extent that it arises out of, or is based upon, an untrue
statement or allegedly untrue statement or omission or alleged omission made in
connection with such Registration Statement, preliminary Prospectus, final
Prospectus, or amendments or supplements thereto, in reliance upon and in
conformity with information furnished in writing expressly for use in connection
with such registration by such Holder, such underwriter, officer, director,
employee, agent or such controlling person.
14
(b) To the extent permitted by law, each Holder of Registrable
Securities which are included in a Registration Statement filed pursuant to the
provisions of this Agreement will indemnify and hold harmless the Company, each
of its employees, agents, directors and officers, each person, if any, who
controls the Company within the meaning of the Securities Act, and any
underwriter (within the meaning of the Securities Act) against any losses,
claims, damages, expenses or liabilities to which the Company or any such person
or underwriter may become subject, under the Securities Act, the Exchange Act or
other federal or state law or otherwise, insofar as such losses, claims,
damages, expenses or liabilities (or actions in respect thereof) arise out of,
or are based upon any untrue or allegedly untrue statement of any material fact
contained in a Registration Statement for the Registrable Securities, including
any preliminary Prospectus or final Prospectus contained therein or any
amendments or supplements thereto, or any document incident to the registration
or qualification of any Registrable Securities, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or allegedly necessary to make the statements therein not
misleading; in each case to the extent that such untrue statement or allegedly
untrue statement or omission or alleged omission was made in such Registration
Statement, preliminary Prospectus, final Prospectus or amendments or supplements
thereto, in reliance upon and in conformity with information furnished in
writing by such Holder expressly for use in connection with such registration;
provided, however, that the indemnity agreement contained in this Section
7.05(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, expense, liability or action if such settlement is effected without the
written consent of such Holder, which shall not be unreasonably withheld; and
such Holder will reimburse the Company or ay such person or underwriter for any
legal or other expenses reasonably incurred by the Company or any such person or
underwriter in connection with investigating or defending such loss, claim,
damage, liability, expense or action.
(c) Promptly after receipt by an indemnified party under this Section
7.05 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against any indemnifying party under
this Section 7.05, notify the indemnifying party in writing of the commencement
thereof and generally summarize such action. The indemnifying party shall have
the right to participate in and to assume the defense thereof with counsel
mutually satisfactory to the parties. An indemnifying party shall not have the
right to direct the defense of such an action on behalf of an indemnified party
if such indemnified party has reasonably concluded that there may be defenses
available to it that are different from or additional to those available to the
indemnifying party; provided, however, that in such event, the indemnifying
party shall bear the fees and expenses of only one (1) separate counsel for all
indemnified parties, such separate counsel to be reasonably satisfactory to the
indemnifying party. The failure to notify an indemnifying party promptly of the
commencement of any such action if prejudicial to the ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 7.05, but the omission so to notify the
indemnifying party will not relieve such party of any liability that such party
may have to any indemnified party otherwise than under this Section.
(d) To the extent permitted by law, the indemnification provided for
under this Section 7.05 will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any officer,
director or controlling person (within the meaning of the Securities Act) of
such indemnified party and will survive the transfer of securities.
15
(e) If for any reason the foregoing indemnity is unavailable to, or
is insufficient to hold harmless an indemnified party, then the indemnifying
party shall contribute to the amount paid or payable by the indemnified party as
a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, or provides a lesser sum to the indemnified party than the
amount hereinafter calculated, in such proportion as is appropriate to reflect
not only the relative benefits received by the indemnifying party on the one
hand and the indemnified party on the other but also the relative fault of the
indemnifying party and the indemnified party as well as any other relevant
equitable considerations. Notwithstanding the foregoing, no underwriter, if
any, shall be required to contribute any amount in excess of the amount by which
the total price at which the securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligation of any underwriters
to contribute pursuant to this Section 7.05(e) shall be several in proportion to
their respective underwriting commitments and not joint.
SECTION 7.06:. RESTRICTIONS ON PUBLIC SALE. Each holder of Registrable
Securities whose Registrable Securities are covered by a Registration Statement
filed pursuant to Article VII hereof agrees, if requested by the managing
underwriters in an underwritten offering, not to effect any public sale or
distribution of any securities of the Company of the same class as the
securities included in such Registration Statement, including a sale pursuant to
Rule 144 under the Securities Act (except as part of such underwritten
registration), during the 10-day period prior to, and during the 90-day period
beginning on, the closing date of the underwritten offering made pursuant to
such Registration Statement, to the extent timely notified in writing by the
managing underwriters.
The foregoing provision shall not apply to any Holder if such Holder
is prevented by applicable statute or regulation from entering into any such
agreement. However, any such Holder shall undertake, in its request to
participate in any such underwritten offering, not to effect any public sale or
distribution of the applicable Registrable Securities commencing on the date of
sale of such applicable class of Registrable Securities unless it has provided
45 days' prior written notice of such sale or distribution to the underwriter or
underwriters.
SECTION 7.07: REPORTS UNDER THE EXCHANGE ACT. With a view to making
available to the Holder the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any time
permit a Holder of Registrable Securities to sell such securities of the Company
to the public without registration, and with a view to making it possible for
any such holder to register the Registrable Securities pursuant to a
registration on Form S-3, the Company agrees, subject to this Article VII in the
case of Section 7.07(b), to:
(a) make available adequate current public information as
contemplated by Rule 144 (c)(1) or (2);
16
(b) take such action as is necessary to enable a Holder to utilize
Form S-3 for the sale of Registrable Securities;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(d) furnish to a Holder owning any Registrable Securities upon
request (i) a written statement by the Company that it has complied with the
reporting requirements of Rule 144, the Securities Act and the Exchange Act, or
that it qualifies as a registrant whose Registrable Securities may be resold
pursuant to Form S-3 (at any time after it so qualifies), (ii) a copy of the
most recent annual or quarterly report of the Company and such other reports and
documents so filed by the Company, and (iii) such other information as may be
reasonably required in availing any Holder of Registrable Securities of any rule
or regulation of the SEC which permits the selling of any such Registrable
Securities without registration or pursuant to such form.
ARTICLE VIII
Other Matters
-------------
SECTION 8.01: EXPENSES OF TRANSFER. The Company will from time to time
promptly pay, subject to the provisions of Section 6.01, 6.02 and paragraph (d)
of Section 2.02, all taxes and charges that may be imposed upon the Company in
respect to the issuance or delivery of Warrant Shares upon the exercise of this
Warrant by the Warrantholder.
SECTION 8.02: SUCCESSORS AND ASSIGNS. All the covenants and provisions of
this Warrant by or for the benefit of any party hereto shall bind and inure to
the benefit of its permitted successors and assigns hereunder.
SECTION 8.03: AMENDMENTS AND WAIVERS. The provisions of this Warrant,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waiver or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of holders
of at least a majority of the outstanding Warrants or Registrable Securities
(assuming, for purposes of calculating such consent, that all Warrantholders
have exercised the Warrants at the time such consent is sought). Warrantholders
and Holders shall be bound by any consent authorized by this Section whether or
not certificates representing such Warrants or Registrable Securities have been
marked to indicate such consent.
SECTION 8.04: GOVERNING LAW. This Warrant shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 8.05: SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provisions in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
SECTION 8.06: INTEGRATION/ENTIRE AGREEMENT. This Warrant is intended to be
a complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the
17
subject matter contained herein. There are no restrictions, promises,
warranties, or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect
to this Warrant. This Warrant supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
SECTION 8.07: NOTICES. Notices or demand pursuant to this Warrant to be
given or made by the Warrantholder to or on the Company shall be sufficiently
given or made if sent (i) by recognized international courier such as Federal
Express or DHL or (ii) by first class mail, postage prepaid, addressed, until
another address is designated in writing by the Company, as follows:
Alliance Pharmaceutical Corp.
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxx, XX 00000
Attn: President
With a Copy to:
Stroock & Stroock & Xxxxx
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxx, Esq.
Any action or demand authorized by this Warrant to be given or made by the
Company to or on the Warrantholder or a Holder of Registrable Securities shall
be sufficiently given or made if sent (i) by recognized international courier
such as Federal Express or DHL or (ii) by first class mail, postage prepaid, to
the Warrantholder or the Holder of Registrable Securities, at his last known
address as it shall appear on the books of the Company.
SECTION 8.08: HEADINGS. The Article headings herein are for convenience
only and are not part of this Warrant and shall not affect the interpretation
thereof.
18
IN WITNESS WHEREOF, this Warrant has been duly executed by the Company as
of the 30th day of March 1999.
ALLIANCE PHARMACEUTICAL CORP.
By:
------------------------------------
Xxxxxxxx X. Xxxx
President and Chief Operating Officer
19
FORM OF ASSIGNMENT
(To be Signed Only Upon Assignment)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _____________________________________________________________ the right to
purchase _____________ shares of common stock evidenced by the within Warrant,
and appoints ___________________________________________________________ to
transfer same on the books of Alliance Pharmaceutical Corp. with full power of
substitution in the premises.
Dated: _____________________, 19___
--------------------------------------
(Signature must conform in all
respects to the name of Warrantholder
as specified on the face of the
Warrant, without alteration,
enlargement or any change whatsoever,
and the signature must be guaranteed
in the usual manner)
Signature Guaranteed:
_______________________________
20
SUBSCRIPTION FORM
To Be Executed By The Warrantholder If He Desires
To Exercise The Warrant In Whole Or In Part:
To:
The undersigned,_____________________________________________________,
(Name of Warrantholder)
(_______________________________________)
(Please insert Social Security or other
identifying number of subscriber )
hereby irrevocably elects to exercise the right of purchase represented by the
within Warrant for, and to purchase thereunder,
/ / __________ shares of Common Stock provided for therein and tenders payment
herewith to the order of Alliance Pharmaceutical Corp. in the amount
$__________, or
/ / __________ shares of Common Stock pursuant to the cashless exercise method.
The undersigned requests that certificates for such shares of Common Stock be
issued as follows:
Name:
-------------------------------------------------------------------
Address:
-------------------------------------------------------------------
Deliver to:
-------------------------------------------------------------------
Address:
-------------------------------------------------------------------
and, if said number of shares of Common Stock shall not be all the shares of
Common Stock purchasable hereunder, that a new Warrant for the balance remaining
of the shares of Common Stock purchasable under the within Warrant be registered
in the name of, and delivered to, the undersigned at the address states below:
Address:
-------------------------------------------------------------------
Date:
----------------------
Signature:__________________________________
Note: The signature of this Subscription must
correspond with the name as written upon the
face of this Warrant in every particular,
without alternation or enlargement or any
change whatsoever.
21
