Exhibit 4.2
THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD OR OFFERED FOR
SALE UNLESS REGISTERED UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS
OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
Dated: December 21, 2004
WARRANT
To Purchase 3,750 Shares of Common Stock
of ADVANCED LIFE SCIENCES HOLDINGS, INC.
Expiring December 21, 2009
THIS TO CERTIFY THAT, for value received, LEADERS BANK or any registered
assigns ("HOLDER") is entitled to purchase from ADVANCED LIFE SCIENCES HOLDINGS,
INC., a Delaware corporation (the "COMPANY"), at any time or from time to time
after 9:00 a.m., Chicago time, on the date hereof and prior to 5:00 p.m.,
Chicago time, on December 21, 2009, at the place where the Warrant Agency is
located, at the Exercise Price, the number of shares of Common Stock, par value
$.01 per share, of the Company (the "COMMON STOCK") shown above, subject to
adjustment as provided in Articles IV and V hereof, and upon the terms and
conditions hereinafter provided, and is entitled also to exercise the other
appurtenant rights, powers and privileges hereinafter described.
This Warrant is one of one or more warrants (the "WARRANTS") of the same
form and having the same terms as this Warrant, entitling the holders initially
to purchase up to an aggregate of 3,750 shares of Common Stock. The Warrants
have been issued by the Company pursuant to the Business Loan Agreement dated as
of December 21, 2004 (as amended from time to time, the "LOAN AGREEMENT")
between the Company and Holder, in consideration of a loan to the Company by the
Holder. The Holder is entitled to certain benefits as set forth therein. The
Company shall keep a copy of the Loan Agreement, and any amendments thereto, at
the Warrant Agency, and shall furnish, without charge, copies thereof to the
Holder upon request.
Certain terms used in this Warrant are defined in Article VI.
ARTICLE I
EXERCISE OF WARRANTS
1.1. METHOD OF EXERCISE. To exercise this Warrant in whole or in part,
the Holder shall deliver on any Business Day to the Company at the Warrant
Agency (a) this Warrant, (b) a written notice of the Holder's election to
exercise this Warrant, which notice shall specify the number of shares of Common
Stock to be purchased (which shall be a whole number of shares if for less than
all the shares then issuable hereunder), the denominations of the share
certificate or certificates desired and the name or names in which such
certificates are to be registered, and (c) payment of the Exercise Price with
respect to such shares. Such payment may be made by cash, certified or bank
cashier's check or wire transfer in an amount equal to the product of (i) the
Exercise Price times (ii) the number of Warrant Shares as to which this Warrant
is being exercised.
The Company shall, as promptly as practicable and in any event within seven
days after receipt of such notice and payment, execute and deliver or cause to
be executed and delivered, in accordance with such notice, a certificate or
certificates representing the aggregate number of shares of Common Stock
specified in said notice together with cash in lieu of any fractions of a share
as provided in Section 1.3. The share certificate or certificates so delivered
shall be in such denominations as may be specified in such notice, and shall be
issued in the name of the Holder or such other name or names as shall be
designated in such notice. This Warrant shall be deemed to have been exercised
and such certificate or certificates shall be deemed to have been issued, and
such Holder or any other Person so designated to be named therein shall be
deemed for all purposes to have become a holder of record of shares, as of the
date the aforementioned notice and payment is received by the Company. If this
Warrant shall have been exercised only in part, the Company shall, at the time
of delivery of such certificate or certificates, deliver to the Holder a new
Warrant evidencing the right to purchase the remaining shares of Common Stock
called for by this Warrant, which new Warrant shall in all other respects be
identical with this Warrant, or, at the request of the Holder, appropriate
notation may be made on this Warrant which shall then be returned to the Holder.
The Company shall pay all expenses, taxes and other charges payable in
connection with the preparation, issuance and delivery of share certificates and
new Warrants, except that, if share certificates or new Warrants shall be
registered in a name or names other than the name of the Holder, funds
sufficient to pay all transfer taxes payable as a result of such transfer shall
be paid by the Holder at the time of delivery of the aforementioned notice of
exercise or promptly upon receipt of a written request of the Company for
payment.
1.2. SHARES TO BE FULLY PAID AND NONASSESSABLE. All shares of Common
Stock issued upon the exercise of this Warrant shall be validly issued, fully
paid and nonassessable.
1.3. NO FRACTIONAL SHARES REQUIRED TO BE ISSUED. The Company shall not be
required to issue fractions of shares of Common Stock upon exercise of this
Warrant. If any fraction of a share would, but for this Section, be issuable
upon final exercise of this Warrant, in lieu of such fractional share, the
Company shall pay to the Holder in cash an amount equal to the same fraction of
the Fair Market Value of the Company per share of outstanding Common Stock on
the Business Day immediately prior to the date of such exercise.
1.4. LEGEND. Each certificate for shares of Common Stock issued upon
exercise of this Warrant, unless at the time of exercise such shares are
registered under the Securities Act, shall bear the following legend:
"This security has not been registered under the Securities Act of
1933 and may not be sold or offered for sale unless registered under said
Act and any applicable state securities laws or unless an exemption from
such registration is available."
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Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of a public offering pursuant to a registration statement under the Securities
Act) shall also bear such legend unless, in the opinion of counsel selected by
the Holder of such certificate (who may be an employee of such holder) and
reasonably acceptable to the Company, the securities represented thereby need no
longer be subject to restrictions on resale under the Securities Act.
1.5. RESERVATION. The Company has duly reserved, and will keep available
for issuance upon exercise of the Warrants, the total number of Warrant Shares
deliverable from time to time upon exercise of all Warrants from time to time
outstanding. The Company will not take any actions during the term of this
Warrant that would result in any adjustment of the number of shares of Common
Stock issuable upon the exercise of the Warrant if (i) the total number of
shares of Common Stock issuable after such action upon exercise of this Warrant,
(ii) all shares of Common Stock issued and outstanding and (iii) all shares then
issuable (y) upon the exercise of all Options and (z) upon the conversion or
exchange of all Convertible Securities, would exceed the total number of shares
of Common Stock then authorized for issuance by the Company. The Company will
not change the Common Stock from par value $.01 per share to any higher par
value which exceeds the Exercise Price then in effect, and will reduce the par
value of the Common Stock upon any event described in Article IV that provides
for an increase in the number of shares of Common Stock subject to purchase upon
exercise of this Warrant, in inverse proportion to and effective at the same
time as such number of shares is increased. As of the date hereof, the Company
had outstanding (i) 2,642,904 shares of Common Stock, (ii) 156,450 Options to
purchase Common Stock, and no other shares of capital stock or any securities
convertible into or exchangeable for shares of capital stock or any rights,
options or warrants to purchase any shares of capital stock or any securities
convertible into or exchangeable for shares of capital stock. Neither the
issuance of this Warrant nor the issuance of Warrant Shares upon exercise of
this Warrant violates or conflicts with the Company's certificate of
incorporation or bylaws or any agreement to which the Company is a party.
ARTICLE II
WARRANT AGENCY;
TRANSFER, EXCHANGE AND REPLACEMENT OF WARRANTS
2.1. WARRANT AGENCY. As long as any Warrant remains outstanding, the
Company shall perform the obligations of and be the warrant agency with respect
to the Warrants (the "WARRANT AGENCY") at its address set forth in the Loan
Agreement or at such other address as the Company shall specify by notice to all
Warrantholders.
2.2. OWNERSHIP OF WARRANT. The Company may deem and treat the person in
whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by any person
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until due presentment of this Warrant for registration of
transfer as provided in this Article II.
2.3. TRANSFER OF WARRANT. The Company agrees to maintain at the Warrant
Agency books for the registration of transfers of the Warrants, and transfer of
this Warrant and all rights
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hereunder shall be registered, in whole or in part, on such books, upon
surrender of this Warrant at the Warrant Agency, together with a written
assignment of this Warrant duly executed by the Holder or its duly authorized
agent or attorney, with (if the Holder is a natural person) signatures
guaranteed by a bank or trust company or a broker or dealer registered with the
NASDAQ, and funds sufficient to pay any transfer taxes payable upon such
transfer. Upon surrender and, if required, such payment, the Company shall
execute and deliver a new Warrant or Warrants in the name of the assignee or
assignees and in the denominations specified in the instrument of assignment
(which shall be whole numbers of shares only) and shall issue to the assignor a
new Warrant evidencing the portion of this Warrant not so assigned, and this
Warrant shall promptly be canceled.
2.4. DIVISION OR COMBINATION OF WARRANTS. This Warrant may be divided or
combined with other Warrants upon presentment hereof and of any Warrant or
Warrants with which this Warrant is to be combined at the Warrant Agency,
together with a written notice specifying the names and denominations (which
shall be whole numbers of shares only) in which the new Warrant or Warrants are
to be issued, signed by the holders hereof and thereof or their respective duly
authorized agents or attorneys. Subject to compliance with Section 2.3 as to any
transfer or assignment which may be involved in the division or combination, the
Company shall execute and deliver a new Warrant or Warrants in exchange for the
Warrant or Warrants to be divided or combined in accordance with such notice.
2.5. LOSS, THEFT, DESTRUCTION OF WARRANT CERTIFICATES. Upon receipt of
evidence satisfactory to the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant and, in the case of any such loss,
theft or destruction, upon receipt of indemnity or security satisfactory to the
Company (it being understood and agreed that if the holder of such Warrant is
Leaders Bank Entity, then a written agreement of indemnity given by Leaders Bank
alone shall be satisfactory to the Company and no further security shall be
required) or, in the case of any such mutilation, upon surrender and
cancellation of such Warrant, the Company will make and deliver, in lieu of such
lost, stolen, destroyed or mutilated Warrant, a new Warrant of like tenor and
representing the right to purchase the same aggregate number of shares of Common
Stock.
2.6. EXPENSES OF DELIVERY OF WARRANTS. The Company shall pay all
expenses, taxes (other than transfer taxes) and other charges payable in
connection with the preparation, issuance and delivery of Warrants hereunder.
ARTICLE III
CERTAIN RIGHTS
3.1. DETERMINATION OF FAIR MARKET VALUE. Each determination of Fair
Market Value hereunder shall be made in good faith by the Company. Upon each
determination of Fair Market Value by the Company hereunder, the Company shall
promptly give notice thereof to all Warrantholders, setting forth in reasonable
detail the calculation of such Fair Market Value and the method and basis of
determination thereof (the "COMPANY DETERMINATION").
3.2. FINANCIAL STATEMENTS AND OTHER INFORMATION. Promptly upon
transmission thereof, the Company will deliver to the Holder copies of any and
all financial statements, proxy
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statements, notices and other reports as it may send to its public stockholders
and copies of all registration statements and all reports which it files with
the Securities and Exchange Commission (or any governmental body or agency
succeeding to its functions).
ARTICLE IV
ANTIDILUTION PROVISIONS
4.1. GENERAL. The Exercise Price and the number of shares of Common Stock
(or other securities or property) issuable upon exercise of this Warrant shall
be subject to adjustment from time to time upon the occurrence of certain events
as provided in this Article IV; PROVIDED that notwithstanding anything to the
contrary herein, the Exercise Price shall not be less than the par value of the
Common Stock, as such par value is reduced from time to time in accordance with
Section 1.5.
4.2. COMMON STOCK REORGANIZATION. If the Company shall subdivide its
outstanding shares of Common Stock (or any class thereof) into a greater number
of shares or consolidate its outstanding shares of Common Stock (or any class
thereof) into a smaller number of shares (any such event being called a "COMMON
STOCK REORGANIZATION"), then (a) the Exercise Price shall be adjusted, effective
immediately after the effective date of such Common Stock Reorganization, to a
price determined by multiplying the Exercise Price in effect immediately prior
to such effective date by a fraction, the numerator of which shall be the number
of shares of Common Stock outstanding on such effective date before giving
effect to such Common Stock Reorganization and the denominator of which shall be
the number of shares of Common Stock outstanding after giving effect to such
Common Stock Reorganization, and (b) the number of shares of Common Stock
subject to purchase upon exercise of this Warrant shall be adjusted, effective
at such time, to a number determined by multiplying the number of shares of
Common Stock subject to purchase immediately before such Common Stock
Reorganization by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding after giving effect to such Common Stock
Reorganization and the denominator of which shall be the number of shares of
Common Stock outstanding immediately before such Common Stock Reorganization.
4.3. COMMON STOCK DISTRIBUTION. (a) If the Company shall issue, sell or
otherwise distribute any shares of Common Stock, other than pursuant to this
Agreement or a Common Stock Reorganization (which is governed by Section 4.2
hereof) (any such event, including any event described in paragraphs (b) and (c)
below, being herein called a "COMMON STOCK DISTRIBUTION"), for a consideration
per share less than the Fair Market Value of the Company per share of
outstanding Common Stock on a Fully Diluted Basis on the date of such Common
Stock Distribution (before giving effect to such Common Stock Distribution),
then, effective upon such Common Stock Distribution, the Exercise Price shall be
reduced, if such consideration per share shall be less than such Fair Market
Value per share, to the lowest of the prices (calculated to the nearest one
thousandth of one cent) determined as provided in clauses (i), (ii) and (iii)
below:
(i) if the Company shall receive any consideration for the Common
Stock issued, sold or distributed, in such Common Stock Distribution, the
consideration per share of Common Stock received by the Company upon such
issue, sale or distribution;
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(ii) by dividing (A) an amount equal to the sum of (1) the number
of shares of Common Stock outstanding immediately prior to such Common
Stock Distribution multiplied by the then existing Exercise Price, PLUS (2)
the consideration, if any, received by the Company upon such Common Stock
Distribution by (B) the total number of shares of Common Stock outstanding
immediately after such Common Stock Distribution; and
(iii) by multiplying the Exercise Price in effect immediately prior
to such Common Stock Distribution by a fraction, the numerator of which
shall be the sum of (A) the number of shares of Common Stock outstanding
immediately prior to such Common Stock Distribution multiplied by such Fair
Market Value per share on the date of such Common Stock Distribution, PLUS
(B) the consideration, if any, received by the Company upon such Common
Stock Distribution, and the denominator of which shall be the product of
(1) the total number of shares of Common Stock outstanding immediately
after such Common Stock Distribution multiplied by (2) such Fair Market
Value per share on the date of such Common Stock Distribution.
If any Common Stock Distribution shall require an adjustment to the
Exercise Price pursuant to the foregoing provisions of this paragraph (a),
including by operation of paragraph (b) or (c) below, then, effective at the
time such adjustment is made, the number of shares of Common Stock subject to
purchase upon exercise of this Warrant shall be increased to a number determined
by multiplying the number of shares of Common Stock subject to purchase
immediately before such Common Stock Distribution by a fraction, the numerator
of which shall be the number of shares of Common Stock outstanding immediately
after giving effect to such Common Stock Distribution and the denominator of
which shall be the sum of the number of shares outstanding immediately before
giving effect to such Common Stock Distribution (both calculated on a Fully
Diluted Basis) PLUS the number of shares of Common Stock which the aggregate
consideration received by the Company with respect to such Common Stock
Distribution would purchase at the Fair Market Value of the Company per share of
outstanding Common Stock on a Fully Diluted Basis on the date of such Common
Stock Distribution (before giving effect to such Common Stock Distribution). In
computing adjustments under this paragraph, fractional interests in Common Stock
shall be taken into account to the nearest one-thousandth of a share.
The provisions of this paragraph (a), including by operation of paragraph
(b) or (c) below, shall not operate to increase the Exercise Price or reduce the
number of shares of Common Stock subject to purchase upon exercise of this
Warrant.
(b) If the Company shall issue, sell, distribute or otherwise
grant in any manner (including by assumption) any rights to subscribe for or to
purchase, or any warrants or options for the purchase of Common Stock or any
stock or securities convertible into or exchangeable for Common Stock (such
rights, warrants or options being herein called "OPTIONS" and such convertible
or exchangeable stock or securities being herein called "CONVERTIBLE
SECURITIES"), whether or not such Options or the rights to convert or exchange
any such Convertible Securities in respect of such Options are immediately
exercisable, and the price per share for which Common Stock is issuable upon the
exercise of such Options or upon conversion or exchange of such Convertible
Securities in respect of such Options (determined by dividing (i) the aggregate
amount, if any, received or receivable by the Company as consideration for the
granting of such Options, PLUS the minimum aggregate amount of additional
consideration payable to the Company
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upon the exercise of all such Options, PLUS, in the case of Options to acquire
Convertible Securities, the minimum aggregate amount of additional
consideration, if any, payable upon the issuance or sale of such Convertible
Securities and upon the conversion or exchange thereof, by (ii) the total
maximum number of shares of Common Stock issuable upon the exercise of such
Options or upon the conversion or exchange of all such Convertible Securities
issuable upon the exercise of such Options) shall be less than the Fair Market
Value of the Company per share of outstanding Common Stock on a Fully Diluted
Basis on the date of granting such Options (before giving effect to such grant),
then, for purposes of paragraph (a) above, the total maximum number of shares of
Common Stock issuable upon the exercise of such Options or upon conversion or
exchange of the total maximum amount of such Convertible Securities issuable
upon the exercise of such Options shall be deemed to have been issued as of the
date of granting of such Options and thereafter shall be deemed to be
outstanding and the Company shall be deemed to have received as consideration
such price per share, determined as provided above, therefor. Except as
otherwise provided in paragraph (d) below, no additional adjustment of the
Exercise Price shall be made upon the actual exercise of such Options or upon
conversion or exchange of such Convertible Securities.
(c) If the Company shall issue, sell or otherwise distribute
(including by assumption) any Convertible Securities, whether or not the rights
to exchange or convert thereunder are immediately exercisable, and the price per
share for which Common Stock is issuable upon such conversion or exchange
(determined by dividing (i) the aggregate amount received or receivable by the
Company as consideration for the issuance, sale or distribution of such
Convertible Securities, PLUS the minimum aggregate amount of additional
consideration, if any, payable to the Company upon the conversion or exchange
thereof, by (ii) the total maximum number of shares of Common Stock issuable
upon the conversion or exchange of all such Convertible Securities) shall be
less than the Fair Market Value of the Company per share of outstanding Common
Stock on a Fully Diluted Basis on the date of such issuance, sale or
distribution (before giving effect to such issuance, sale or distribution) of
such Convertible Securities, then, for purposes of paragraph (a) above, the
total maximum number of shares of Common Stock issuable upon conversion or
exchange of all such Convertible Securities shall be deemed to have been issued
as of the date of the issuance, sale or distribution of such Convertible
Securities and thereafter shall be deemed to be outstanding and the Company
shall be deemed to have received as consideration such price per share,
determined as provided above, therefor. Except as otherwise provided in
paragraph (d) below, no additional adjustment of the Exercise Price shall be
made upon the actual conversion or exchange of such Convertible Securities.
(d) If (i) the purchase price provided for in any Option referred
to in paragraph (b) above or the additional consideration, if any, payable upon
the conversion or exchange of any Convertible Securities referred to in
paragraph (b) or (c) above or the rate at which any Convertible Securities
referred to in paragraph (b) or (c) above are convertible into or exchangeable
for Common Stock shall change at any time (other than under or by reason of
provisions designed to protect against dilution upon an event which results in a
related adjustment pursuant to this Article IV), or (ii) any of such Options or
Convertible Securities shall have terminated, lapsed or expired, then the
Exercise Price then in effect shall forthwith be readjusted (effective only with
respect to any exercise of this Warrant after such readjustment) to the Exercise
Price which would then be in effect had the adjustment made upon the issuance,
sale, distribution or grant of such Options or Convertible Securities been made
based upon such changed purchase
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price, additional consideration or conversion rate, as the case may be (in the
case of any event referred to in clause (i) of this paragraph (d)) or had such
adjustment not been made (in the case of any event referred to in clause (ii) of
this paragraph (d)).
(e) If the Company shall pay a dividend or make any other
distribution upon any capital stock of the Company payable in Common Stock,
Options or Convertible Securities, then, for purposes of paragraph (a) above,
such Common Stock, Options or Convertible Securities shall be deemed to have
been issued or sold without consideration.
4.4. SPECIAL DIVIDENDS. If the Company shall issue or distribute to any
holder or holders of shares of Common Stock evidences of indebtedness, any other
securities of the Company or any cash, property or other assets (excluding a
Common Stock Reorganization or a Common Stock Distribution), whether or not
accompanied by a purchase, redemption or other acquisition of shares of Common
Stock (any such nonexcluded event being herein called a "SPECIAL DIVIDEND"), (a)
the Exercise Price shall be decreased, effective immediately after the effective
date of such Special Dividend, to a price determined by multiplying the Exercise
Price then in effect by a fraction, the numerator of which shall be the Fair
Market Value of the Company per share of outstanding Common Stock as of such
effective date less any cash and the then Fair Market Value of any evidences of
indebtedness, securities or property or other assets issued or distributed in
such Special Dividend with respect to one share of Common Stock, and the
denominator of which shall be such Fair Market Value per share and (b) the
number of shares of Common Stock subject to purchase upon exercise of this
Warrant shall be increased to a number determined by multiplying the number of
shares of Common Stock subject to purchase immediately before such Special
Dividend by a fraction, the numerator of which shall be the Exercise Price in
effect immediately before such Special Dividend and the denominator of which
shall be the Exercise Price in effect immediately after such Special Dividend. A
reclassification of Common Stock (other than a change in par value, or from par
value to no par value or from no par value to par value) into shares of Common
Stock and shares of any other class of stock shall be deemed a distribution by
the Company to the holders of such Common Stock of such shares of such other
class of stock and, if the outstanding shares of Common Stock shall be changed
into a larger or smaller number of shares of Common Stock as part of such
reclassification, a Common Stock Reorganization.
4.5. CAPITAL REORGANIZATIONS. If there shall be any consolidation or
merger to which the Company is a party, other than a consolidation or a merger
of which the Company is the continuing corporation and which does not result in
any reclassification of, or change (other than a Common Stock Reorganization)
in, outstanding shares of Common Stock, or any sale or conveyance of the
property of the Company as an entirety or substantially as an entirety, or any
recapitalization of the Company (any such event being called a "CAPITAL
REORGANIZATION"), then, effective upon the effective date of such Capital
Reorganization, the Holder shall no longer have the right to purchase Common
Stock, but shall have instead the right to purchase, upon exercise of this
Warrant, the kind and amount of shares of stock and other securities and
property (including cash) which the Holder would have owned or have been
entitled to receive pursuant to such Capital Reorganization if this Warrant had
been exercised immediately prior to the effective date of such Capital
Reorganization. As a condition to effecting any Capital Reorganization, the
Company or the successor or surviving corporation, as the case may be, shall (a)
execute and deliver to the Warrantholder and to the Warrant Agency an agreement
as to the Warrantholders'
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rights in accordance with this Section 4.5, providing, to the extent of any
right to purchase equity securities hereunder, for subsequent adjustments as
nearly equivalent as may be practicable to the adjustments provided for in this
Article IV and (b) provide each Regulation Y Holder with an opinion of counsel
reasonably satisfactory to such Regulation Y Holder and such other assurances as
any Regulation Y Holder may reasonably request to the effect that the ownership
and exercise by any Regulation Y Holder of this Warrant after giving effect to
such Capital Reorganization shall not be prohibited by the BHC Act or the
regulations thereunder. The provisions of this Section 4.5 shall similarly apply
to successive Capital Reorganizations.
4.6. QUALIFIED IPO. Concurrently with the closing of a Qualified IPO by
the Company, the Exercise Price shall immediately and automatically be adjusted
to be equal to the price per share that the shares of Common Stock were offered
to the public in such Qualified IPO (the "IPO PRICE"); PROVIDED, that no such
adjustment shall be made if the IPO Price is greater than the Exercise Price
then in effect.
4.7. ADJUSTMENT RULES. Any adjustments pursuant to this Article IV shall
be made successively whenever an event referred to herein occurs, except that,
notwithstanding any other provision of this Article IV, no adjustment shall be
made to the number of shares of Common Stock to be delivered to each
Warrantholder (or to the Exercise Price) if such adjustment represents less than
1% of the number of shares previously required to be so delivered, but any
lesser adjustment shall be carried forward and shall be made at the time and
together with the next subsequent adjustment which together with any adjustments
so carried forward shall amount to 1% or more of the number of shares to be so
delivered. No adjustment shall be made pursuant to this Article IV: (a) in
respect of the issuance from time to time of shares of Common Stock upon the
exercise of any Warrants (b) with respect to issuance of shares of Common Stock
pursuant to any Public Offering, (c) upon exercise of any of the Options
outstanding on the Date of Issuance or with respect to issuance of any
additional options to purchase Common Stock to officers, employees and
independent directors of the Company ("ADDITIONAL OPTIONS") (or issuance of
Common Stock upon exercise of any such Additional Options), (d) with respect to
other rights granted to a Person which is not an Affiliate (as defined in the
Loan Agreement) as consideration for the issuance of loans or extensions of
credit to the Company as long as the board of directors of the Company has
determined in good faith that the total consideration received from such Person
is fair value for the loans or extensions of credit received by the Company,
provided that the Loan Agreement shall have been terminated and all obligations
thereunder paid in full, or (e) with respect to any issuance of shares of Common
Stock or Options of the Company in a Third Party Transaction (or issuance of
Common Stock upon exercise of such Options). If the Company takes a record of
the holders of its Common Stock for any purpose referred to in this Article IV,
then (i) such record date shall be deemed to be the date of the issuance, sale,
distribution or grant in question and (ii) if the Company shall legally abandon
such action prior to effecting such action, no adjustment shall be made pursuant
to this Article IV in respect of such action.
4.8. PROCEEDINGS PRIOR TO ANY ACTION REQUIRING ADJUSTMENT. As a condition
precedent to the taking of any action which would require an adjustment pursuant
to this Article IV, the Company shall take any action which may be necessary,
including obtaining regulatory approvals or exemptions, in order that (a) the
Company may thereafter validly and legally issue as fully paid and nonassessable
all shares of Common Stock which any Warrantholder is entitled to receive upon
exercise of a Warrant and (b) the ownership and exercise
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of any Warrant by any Regulation Y Holder shall not be prohibited by the BHC Act
or the regulations thereunder.
4.9. NOTICE OF ADJUSTMENT. Not less than 10 nor more than 30 days prior
to the record date or effective date, as the case may be, of any action which
requires or might require an adjustment or readjustment pursuant to this Article
IV, the Company shall give notice to each Warrantholder of such event,
describing such event in reasonable detail and specifying the record date or
effective date, as the case may be, and, if determinable, the required
adjustment and the computation thereof. If the required adjustment is not
determinable at the time of such notice, the Company shall give notice to each
Warrantholder of such adjustment and computation promptly after such adjustment
becomes determinable.
ARTICLE V
PURCHASE, REDEMPTION AND
CANCELLATION OF WARRANTS
5.1. PURCHASE OF WARRANTS BY THE COMPANY. The Company shall have the
right to purchase or otherwise acquire Warrants at such times, in such manner
and for such consideration as set forth below.
5.2. OPTIONAL REDEMPTION. At any time and from time to time after the
earliest of (a) the third anniversary of the Closing Date (as defined in the
Loan Agreement), (b) at any time after the date on which all outstanding amounts
under the Loan Agreement have been paid in full and the Commitments thereunder
shall have terminated, and (c) the Closing Date of a Qualified IPO (an "IPO
REDEMPTION"), the Company shall have the right to redeem all, but not less than
all, of the outstanding Warrants at the Optional Redemption Price, determined as
of the day preceding the notice of redemption. Irrevocable notice of such right
of redemption shall be given by the Company to all Warrantholders not more than
30 days nor less than 5 days prior to the date scheduled for redemption, stating
the date and price, including a reasonably detailed description of the method of
calculation thereof, of redemption. Warrantholders may exercise Warrants until
5:00 p.m., Chicago time, on the Business Day preceding the date of redemption
set forth in a valid notice of redemption, at which time the right to purchase
shares of Common Stock theretofore represented by this Warrant shall terminate,
and this Warrant shall represent the right of the Holder to receive the Optional
Redemption Price from the Company in immediately available funds upon surrender
of this Warrant at the Warrant Agency.
5.3. CANCELLATION OF WARRANTS. All Warrants purchased, redeemed or
otherwise acquired by the Company shall thereupon be canceled and retired. The
Warrant Agency shall cancel any Warrant surrendered for exercise or registration
of transfer or exchange and deliver such canceled Warrants to the Company.
5.4. NOTICE OF REFINANCING OR QUALIFIED IPO. The Company shall give
notice to each of the Warrantholders of any intent by the Company to (i)
refinance in their entirety the Notes (as defined in the Loan Agreement) not
less than 5 days prior to the proposed closing date of such refinancing, setting
forth such proposed closing date (such notice, the "REFINANCING NOTICE"), or
(ii) consummate a Qualified IPO not less than 5 days prior to the proposed
closing date of such
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Qualified IPO, setting forth such proposed closing date and notifying the
Warrantholder of any election by the Company to call the Warrant pursuant to
Section 5.2 (an "IPO NOTICE").
ARTICLE VI
DEFINITIONS
The following terms, as used in this Warrant, have the following meanings:
"BHC ACT" means the Bank Holding Company Act of 1956, as amended.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in Chicago, Illinois are authorized by law to close,
unless there has been an offering of Common Stock registered under the
Securities Act, in which case "Business Day" means (a) if Common Stock is listed
or admitted to trading on a national securities exchange, a day on which the
principal national securities exchange on which the Common Stock is listed or
admitted to trading is open for business or (b) if Common Stock is not so listed
or admitted to trading, a day on which the New York Stock Exchange is open for
business.
"CAPITAL REORGANIZATION" has the meaning set forth in Section 4.5.
"COMMON STOCK" means the Common Stock, par value $.01 per share, of the
Company.
"CLOSING PRICE" on any day means (a) if Common Stock is listed or admitted
for trading on a national securities exchange, the reported last sales price
regular way or, if no such reported sale occurs on such day, the average of the
closing bid and asked prices regular way on such day, in each case on the
principal national securities exchange on which Common Stock is listed or
admitted to trading, or (b) if Common Stock is not listed or admitted to trading
on any national securities exchange, the average of the closing bid and asked
prices in the over-the-counter market on such day as reported by NASDAQ or any
comparable system or, if not so reported, as reported by any New York Stock
Exchange member firm selected by the Company for such purpose.
"COMMON STOCK DISTRIBUTION" has the meaning set forth in Section 4.3(a).
"COMMON STOCK REORGANIZATION" has the meaning set forth in Section 4.2.
"COMPANY" has the meaning set forth in the first paragraph of this Warrant.
"COMPANY DETERMINATION" has the meaning set forth in Section 3.1.
"CONVERTIBLE SECURITIES" has the meaning set forth in Section 4.3(b).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
any successor Federal statute, and the rules and regulations of the Securities
and Exchange Commission (or its successor) thereunder, all as the same shall be
in effect at the time.
"EXERCISE PRICE" means $31.83 per share of the Common Stock, subject to
adjustment pursuant to Article IV.
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"FAIR MARKET VALUE" as at any date of determination means the fair market
value of the business or property or services in question as of such date, as
determined in good faith by the Board of Directors of the Company or otherwise
in accordance with Section 3.2 hereof. The Fair Market Value of the Company as
at any date of determination shall be the greatest of (i) the Fair Market Value
at such date of the Company and its Subsidiaries as a going concern and (ii) the
liquidation value at such date of the Company and its Subsidiaries.
Notwithstanding the foregoing, if at any date of determination by the Company of
the Fair Market Value of the Company, the Common Stock shall then be publicly
traded following a Qualified IPO, the Fair Market Value of the Company on such
date shall be the Market Price on such date multiplied by the number of shares
of Common Stock then outstanding. Determination of the Fair Market Value of the
Company per share of Common Stock, shall be made without giving effect to any
discount for (i) minority interests or (ii) the voting status of the Common
Stock.
"FULLY DILUTED BASIS" means, with respect to any determination or
calculation, that such determination or calculation is performed on a fully
diluted basis determined in accordance with generally accepted accounting
principles as in effect from time to time.
"HOLDER" has the meaning set forth in the first paragraph of this Warrant.
"IPO PRICE" has the meaning set forth in Section 4.6 hereof.
"IPO REDEMPTION" has the meaning set forth in Section 5.2 hereof.
"LOAN AGREEMENT" has the meaning set forth in the second paragraph of this
Warrant.
"MARKET PRICE" as at any date of determination means the average of the
daily Closing Prices of a share of Common Stock for the shorter of (i) the 20
consecutive Business Days ending on the most recent Business Day prior to the
Time of Determination and (ii) the period commencing on the date next succeeding
the first public announcement of the issuance, sale, distribution, grant or
exercise in question through such most recent Business Day prior to the Time of
Determination. "Time of Determination" means the time and date of the earliest
of (x) the determination of the stockholders entitled to receive such issuance,
sale, distribution or grant, (y) the determination of the Holders or the Company
to exercise their respective rights set forth in Section 5.2 or 5.3 hereof, and
(z) the commencement of "ex-dividend" trading in respect thereof.
"NASD" means The National Association of Securities Dealers, Inc.
"NASDAQ" means The National Association of Securities Dealers, Inc.
Automated Quotation System.
"OPTIONS" has the meaning set forth in Section 4.3(b).
"OPTIONAL REDEMPTION PRICE" means, as of any date of determination, a price
for each share of Common Stock issuable upon exercise of the Warrants equal to
105% of the Redemption Price, determined as of such date; PROVIDED that in the
case of an IPO Redemption, such price shall equal 100% of the Redemption Price.
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"PERSON" means any natural person, corporation, limited liability company,
limited partnership, general partnership, joint stock company, joint venture,
association, company, trust, bank, trust company, land trust, business trust or
other organization, whether or not a legal entity, and any government agency or
political subdivision thereof.
"QUALIFIED IPO" means any sale of shares of Common Stock by and for the
account of the Company for a purchase price of not less than $3.00 pursuant to
an underwritten initial public offering registered under the Securities Act;
PROVIDED that the proceeds to the Company (net of underwriters' discount, fees
and other expenses incurred by the Company in connection therewith) from such
sale of shares exceeds $15,000,000.
"REDEMPTION PRICE" means, as of any date of determination, a price for each
share of Common Stock issuable upon exercise of the Warrants equal to the excess
of (a)(i) the Fair Market Value of the Company plus the aggregate Exercise Price
of all Warrants either being redeemed or then outstanding and not being redeemed
divided by (ii) the number of shares of Common Stock outstanding on a Fully
Diluted Basis over (b) the Exercise Price then in effect.
"REFINANCING NOTICE" has the meaning set forth in Section 5.4 hereof.
"REGULATION Y HOLDER" means the Holder or a holder of Warrant Shares, if
such Holder or holder of Warrant Shares is a bank holding company within the
meaning of the BHC Act or a subsidiary thereof subject to Regulation Y under the
BHC Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and any
successor Federal statute and the rules and regulations of the Securities and
Exchange Commission (or its successors) thereunder, all as the same shall be in
effect from time to time.
"SPECIAL DIVIDEND" has the meaning set forth in Section 4.4.
"SUBSIDIARY" of any Person means any corporation, partnership, joint
venture, association or other business entity of which more than 50% of the
total voting power of shares of stock or other interests therein entitled to
vote in the election of members of the board of directors, partnership
committee, board of managers or trustees or other managerial body thereof is at
the time owned or controlled, directly or indirectly, by such Person or one or
more of the other Subsidiaries of such Person or a combination thereof.
"THIRD PARTY TRANSACTION" shall mean a bona-fide negotiated transaction
approved by the Board of Directors of the Company in good faith involving the
purchase or sale of assets and/or stock (whether by sale of stock, assets,
merger, consolidation, or otherwise) of the Company by another Person or an
acquisition by the Company of assets or stock (whether by sale of stock, assets,
merger, consolidation, or otherwise) of another Person if such Person is not an
Affiliate of the Company.
"WARRANT AGENCY" has the meaning set forth in Section 2.1.
"WARRANT SHARES" means the shares of Common Stock issuable upon the
exercise of the Warrants.
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"WARRANTHOLDER" means a holder of a Warrant.
"WARRANTS" has the meaning set forth in the second paragraph of this
Warrant.
All references herein to "DAYS" shall mean calendar days unless otherwise
specified.
ARTICLE VII
MISCELLANEOUS
7.1. NOTICES. Notices and other communications provided for herein must
be in writing and may be given by mail, courier, confirmed telex or facsimile
transmission and shall, unless otherwise expressly required, be deemed given
when received or, if mailed, four Business Days after being deposited in the
United States mail with postage prepaid and properly addressed. In the case of
the Holder, such notices and communications shall be addressed to its address as
shown on the books maintained by the Warrant Agency, unless the Holder shall
notify the Warrant Agency that notices and communications should be sent to a
different address (or telex or facsimile number), in which case such notices and
communications shall be sent to the address (or telex or facsimile number)
specified by the Holder.
7.2. WAIVERS; AMENDMENTS. No failure or delay of the Holder in exercising
any power or right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. No notice
or demand on the Company in any case shall entitle the Company to any other or
future notice or demand in similar or other circumstances. The rights and
remedies of the Holder are cumulative and not exclusive of any rights or
remedies which it would otherwise have. The provisions of this Warrant may be
amended, modified or waived with (and only with) the written consent of the
Company and the holders of Warrants entitling such holders to purchase a
majority of the Common Stock subject to purchase upon exercise of such Warrants
at the time outstanding (exclusive of Warrants then owned by the Company or any
Subsidiary (as defined in the Loan Agreement) or Affiliate (as defined in the
Loan Agreement) thereof); provided, however, that no such amendment,
modification or waiver shall, without the written consent of the holders of all
Warrants at the time outstanding, (a) change the number of shares of Common
Stock subject to purchase upon exercise of this Warrant, the Exercise Price or
provisions for payment thereof or (b) amend, modify or waive the provisions of
this Section or Article III or IV or Section 1.5, 5.2 or 5.4. The provisions of
the Loan Agreement may be amended, modified or waived only in accordance with
the respective provisions thereof.
Any such amendment, modification or waiver effected pursuant to and in
accordance with the provisions of this Section or the applicable provisions of
the Loan Agreement shall be binding upon the holders of all Warrants and Warrant
Shares, upon each future holder thereof and upon the Company. In the event of
any such amendment, modification or waiver, the Company shall give prompt notice
thereof to all holders of Warrants and Warrant Shares and, if appropriate,
notation thereof shall be made on all Warrants thereafter surrendered for
registration of transfer or exchange.
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7.3. GOVERNING LAW. THIS WARRANT SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS (WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW).
7.4. TRANSFER; COVENANTS TO BIND SUCCESSOR AND ASSIGNS. All covenants,
stipulations, promises and agreements in this Warrant contained by or on behalf
of the Company or the Holder shall bind its successors and assigns, whether so
expressed or not. This Warrant shall be transferable and assignable by the
Holder hereof in whole or from time to time in part to any other Person and the
provisions of this Warrant shall be binding upon and inure to the benefit of the
Holder hereof and its successors and assigns.
7.5. SEVERABILITY. In case any one or more of the provisions contained in
this Warrant shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby. The parties shall
endeavor in good faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
7.6. SECTION HEADINGS. The section headings used herein are for
convenience of reference only, are not part of this Warrant and are not to
affect the construction of or be taken into consideration in interpreting this
Warrant.
7.7. RIGHT TO SPECIFIC PERFORMANCE. The Company acknowledges and agrees
that in the event of any breach of the foregoing covenants and agreements, the
Holder would be irreparably harmed and could not be made whole only by the award
of monetary damages. Accordingly, the Company agrees that the Holder, in
addition to any other remedy to which the Holder may be entitled at law or
equity, will be entitled to seek and obtain an award of specific performance of
any of the foregoing covenants and agreements.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed in
its corporate name by one of its officers thereunto duly authorized as of the
day and year first above written.
ADVANCED LIFE SCIENCES
HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
