Contract
Exhibit
4.3
THIS
WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN ACQUIRED
FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAW. THIS WARRANT AND SUCH
SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE PLEDGED, TRANSFERRED OR
HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR DELIVERY OF AN OPINION
OF
COUNSEL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH
OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE WITH THE
ACT
OR UNLESS SOLD IN FULL COMPLIANCE WITH RULE 144 UNDER THE ACT.
VELCERA
PHARMACEUTICALS, INC.
Warrant
for the Purchase of Shares of
Common
Stock
|
No.
2007-[ ]
|
______ Shares
|
FOR
VALUE
RECEIVED, VELCERA PHARMACEUTICALS, INC., a Delaware corporation (the
"Company"),
hereby certifies that [________________], its designee or its permitted assigns
is entitled to purchase from the Company, at any time or from time to time
commencing on [ ], 2007 (the “Issuance
Date”)
and
prior to 5:00 P.M., New York City time, on [ ], 2012 (the “Exercise
Period”),
[________________] fully paid and non-assessable shares of common stock, $0.001
par value per share, of the Company for a purchase price per share of
$2.06.
Hereinafter,
(i) said common stock, $0.001 par value per share, of the Company, is referred
to as the
"Common
Stock";
(ii)
the shares of the Common Stock (subject to adjustment as set forth herein)
purchasable hereunder or under any other Warrant (as hereinafter defined) are
referred to as the "Warrant
Shares";
(iii)
the aggregate purchase price payable for the Warrant Shares purchasable
hereunder is referred to as the "Aggregate
Warrant Price";
(iv)
the price payable (initially $2.06 per share subject to adjustment as set forth
herein) for each of the Warrant Shares hereunder is referred to as the
"Per
Share Warrant Price";
(v)
this Warrant, all similar Warrants issued on the date hereof and all warrants
hereafter issued in exchange or substitution for this Warrant or such similar
Warrants are referred to as the "Warrants";
(vi)
the holder of this Warrant is referred to as the "Holder"
and the
holder of this Warrant and all other Warrants and Warrant Shares are referred
to
as the "Holders"
and
Holders of more than fifty percent (50%) of the Warrant Shares then issuable
upon exercise of then outstanding Warrants are referred to as the "Majority
of the Holders")
and
(vii) the then Current Market Price per share of the Common Stock (the
"Current
Market Price")
shall
be deemed to be the last reported sale price of the Common Stock (as
reported by Bloomberg Financial Markets) on
the
Trading Day (as defined below) immediately prior to such date or, in case no
such reported sales take place on such day, the average of the last reported
bid
and ask prices of the Common Stock on such day, in either case on the principal
national securities exchange on which the Common Stock is admitted to trading
or
listed, including the Nasdaq Global Select Market, the Nasdaq Global Market,
and
Nasdaq Capital Market (collectively “NASDAQ”),
or
other similar organization, or, if the Common Stock is not reported on a
national securities exchange, the per share sale price for the Common Stock
in
the over-the-counter market as reported by the OTC Bulletin Board (the
“OTCBB”)
or
another over-the-counter market, or if not so available, the fair market value
of the Common Stock as determined in good faith by the Company’s Board of
Directors. A "Trading
Day"
shall
mean any day on which shares of the Company’s Common Stock are sold on the
respective exchanges listed above. The Aggregate Warrant Price is not subject
to
adjustment.
This
Warrant was originally issued pursuant to a letter agreement between Maxim
Group, LLC and the Company dated December 14, 2006 in connection with a private
placement by the Company of its securities, as described in the Company’s
Confidential Private Placement Memorandum dated January 11, 2007.
1. Exercise
of Warrant.
(a) Except
as
set forth in Section
1(d)
below,
this Warrant may be exercised in whole at any time, or in part from time to
time, by the Holder during the Exercise Period by the surrender of this Warrant
(with
the
exercise notice, in the form attached hereto (the “Exercise
Notice”),
duly
executed) at the address set forth in Section
10(a)
hereof,
together with proper payment of the Aggregate Warrant Price, or the
proportionate part thereof if this Warrant is exercised in part, with payment
for the Warrant Shares made by certified or official bank check payable to
the
order of, or wire transfer of immediately available funds to, the Company;
or
(b) If
this
Warrant is exercised in part, this Warrant must be exercised for a number of
whole shares of the Common Stock and the Holder is entitled to receive a new
Warrant covering the Warrant Shares that have not been exercised and setting
forth the proportionate part of the Aggregate Warrant Price applicable to such
Warrant Shares. Upon surrender of this Warrant in connection with the exercise
of this Warrant pursuant to the terms hereof, the Company will (i) issue a
certificate or certificates in the name of the Holder for the largest number
of
whole shares of the Common Stock to which the Holder shall be entitled upon
such
exercise and, if this Warrant is exercised in whole, in lieu of any fractional
share of the Common Stock to which the Holder shall be entitled, pay to the
Holder cash in an amount equal to the fair value of such fractional share
(determined in such reasonable manner as the Board of Directors of the Company
shall determine), and (ii) deliver the other securities and properties
receivable upon the exercise of this Warrant, or the proportionate part thereof,
if this Warrant is exercised in part, pursuant to the provisions of this
Warrant.
2
(c) Notwithstanding
anything contained herein to the contrary, the Holder may, in its sole
discretion, exercise this Warrant, in lieu of making the cash payment otherwise
contemplated to be made to the Company upon such exercise in payment of the
Aggregate Warrant Price, and elect instead to receive upon such exercise the
“Net
Number”
of
shares of Common Stock determined according to the following formula (a
“Cashless
Exercise”):
Net
Number = (A
x
B) - (A x C)
B
For
purposes of the foregoing formula:
|
A=
|
the
total number of shares with respect to which this Warrant is then
being
exercised.
|
|
B=
|
the
average of the Current Market Prices of the shares of Common Stock
for the
five Trading Days ending on the date immediately preceding the date
of the
written notice of exercise.
|
|
C=
|
the
Exercise Price then in effect for the applicable Warrant Shares at
the
time of such exercise.
|
(d) Notwithstanding
anything herein to the contrary, in no event shall the Holder have the right
or
be required to exercise this Warrant to the extent, and only to the extent,
that
as a result of such exercise, the aggregate number of shares of Common Stock
beneficially owned by the Holder, its affiliates and any “group” (as defined in
accordance with Section 13(d) of the Securities Exchange Act of 1934, as
amended and the rules promulgated thereunder (the “Exchange
Act”))
of
which the Holder may be deemed to be a party (collectively the “Affiliates”)
would
exceed 9.99% of the outstanding shares of the Common Stock following such
exercise. For purposes of this Section, beneficial ownership shall be calculated
in accordance with Sections 13(d) and Section 16(a) of the Exchange Act. The
provisions of this Section
1(d)
may be
waived by a Holder as to itself (and solely as to itself) upon not less than
sixty-five (65) days prior written notice to the Company.
(e) Upon
exercise of this Warrant, the Company shall promptly (but in no event later
than
five (5) Trading Days after the date the Exercise Notice is delivered to the
Company (the “Exercise
Date”))
issue
or cause to be issued and cause to be delivered to or upon the written order
of
the Holder and in such name or names as the Holder may designate (provided
that,
if the Registration Statement is not effective and the Holder directs the
Company to deliver a certificate for the Warrant Shares in a name other than
that of the Holder or an Affiliate of the Holder, it shall deliver to the
Company on the Exercise Date an opinion of counsel reasonably satisfactory
to
the Company to the effect that the issuance of such Warrant Shares in such
other
name may be made pursuant to an available exemption from the registration
requirements of the Act and all applicable state securities or blue sky laws),
a
certificate for the Warrant Shares issuable upon such exercise, free of
restrictive legends, unless a registration statement covering the resale of
the
Warrant Shares and naming the Holder as a selling stockholder thereunder is
not
then effective or the Warrant Shares are not freely transferable without volume
restrictions pursuant to Rule 144(k) under the Act. The Holder, or any person
permissibly so designated by the Holder to receive Warrant Shares, shall be
deemed to have become the holder of record of such Warrant Shares as of the
Exercise Date. If the Warrant Shares are to be issued free of all restrictive
legends, the Company shall, upon the written request of the Holder, use its
best
efforts to deliver, or cause to be delivered, Warrant Shares hereunder
electronically through The Depository Trust Company or another established
clearing corporation performing similar functions, if available; provided,
that,
the Company may, but will not be required to, change its transfer agent if
its
current transfer agent cannot deliver Warrant Shares electronically through
such
a clearing corporation.
3
(f) If
by the
close of the fifth (5) Trading Day after delivery of an Exercise Notice, the
Company fails to deliver to the Holder a certificate representing the required
number of Warrant Shares in the manner required pursuant to Section
1,
and if
after such fifth Trading Day and prior to the receipt of such Warrant Shares,
the Holder purchases (in an open market transaction or otherwise) shares of
Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant
Shares which the Holder anticipated receiving upon such exercise (a
“Buy-In”),
then
the Company shall, within three (3) Trading Days after the Holder’s request and
in the Holder’s sole discretion, either (1) pay in cash to the Holder an amount
equal to the Holder’s total purchase price (including brokerage commissions, if
any) for the shares of Common Stock so purchased (the “Buy-In
Price”),
at
which point the Company’s obligation to deliver such certificate (and to issue
such Warrant Shares) shall terminate or (2) promptly honor its obligation to
deliver to the Holder a certificate or certificates representing such Warrant
Shares and pay cash to the Holder in an amount equal to the excess (if any)
of
the Buy-In Price over the product of (A) such number of Warrant Shares, times
(B) the closing bid price of a share of Common Stock on the date of
exercise.
(g)
To
the
extent permitted by law, the Company’s obligations to issue and deliver Warrant
Shares in accordance with the terms hereof are absolute and unconditional,
irrespective of any action or inaction by the Holder to enforce the same, any
waiver or consent with respect to any provision hereof. Nothing herein shall
limit the Holder’s right to pursue any other remedies available to it hereunder,
at law or in equity including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the Company’s failure to
timely deliver certificates representing shares of Common Stock upon exercise
of
this Warrant as required pursuant to the terms hereof.
2. Reservation
of Warrant Shares; Listing.
The
Company agrees that, prior to the expiration of this Warrant, the Company shall
at all times (a) have authorized and in reserve, and shall keep available,
solely for issuance and delivery upon the exercise of this Warrant, one hundred
twenty (120%) percent of the shares of the Common Stock and other securities
and
properties as from time to time shall be receivable upon the exercise of this
Warrant, free and clear of all restrictions on sale or transfer, other than
under Federal or state securities laws, and free and clear of all preemptive
rights and rights of first refusal and (b) if the Company hereafter lists its
Common Stock on any national securities exchange, including NASDAQ, use its
commercially reasonable efforts to keep the Warrant Shares authorized for
listing on such exchange upon notice of issuance. The Company covenants that
all
Warrant Shares so issuable and deliverable shall, upon issuance and the payment
of the applicable Exercise Price in accordance with the terms hereof, be duly
and validly authorized, issued and fully paid and nonassessable. The Company
will take all such action as may be necessary to assure that such shares of
Common Stock may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of any securities exchange
or automated quotation system upon which the Common Shares may be
listed.
4
3.. Certain
Adjustments.
(a) In
case
the Company shall hereafter (i) pay a dividend or make a distribution on its
Common Stock in shares of Common Stock, (ii) subdivide its outstanding shares
of
Common Stock into a greater number of shares, (iii) combine or reverse-split
its
outstanding shares of Common Stock into a smaller number of shares or (iv)
issue
by reclassification of its Common Stock any shares of capital stock of the
Company, then the Per Share Warrant Price and the number of Warrant Shares
shall
forthwith be proportionately decreased and increased, respectively, in the
case
of a subdivision, distribution or stock dividend, or proportionately increased
and decreased, respectively, in the case of a combination or reverse stock
split. The Aggregate Warrant Price payable for the then total number
of
Warrant
Shares
available for exercise under this Warrant shall remain the same. Adjustments
made pursuant to this Section
3(a)
shall
become effective on the record date in the case of a dividend or distribution,
and shall become effective immediately after the effective date in the case
of a
subdivision, combination or reclassification. If such dividend, distribution,
subdivision or combination is not consummated in full, the Per Share Warrant
Price and Warrant Shares shall be readjusted accordingly.
(b) In
case
of any capital reorganization or reclassification, or any consolidation or
merger to which the Company is a party other than a merger or consolidation
in
which the Company is the continuing corporation, or in case of any sale or
conveyance to another entity of all or substantially all of the assets of the
Company, or in the case of any statutory exchange of securities with another
corporation (including any exchange effected in connection with a merger of
a
third corporation into the Company but excluding any exchange of securities
or
merger with another corporation in which the Company is a continuing corporation
and that does not result in any reclassification of or similar change in the
Common Stock), the Holder of this Warrant shall have the right thereafter to
receive on the exercise of this Warrant the kind and amount of securities,
cash
or other property which the Holder would have owned or have been entitled to
receive immediately after such reorganization, reclassification, consolidation,
merger, statutory exchange, sale or conveyance had this Warrant been exercised
immediately prior to the effective date of such reorganization,
reclassification, consolidation, merger, statutory exchange, sale or conveyance
and in any such case, if necessary, appropriate adjustment shall be made in
the
application of the provisions set forth in this Section
3
with
respect to the rights and interests thereafter of the Holder of this Warrant
to
the end that the provisions set forth in this Section
3
shall
thereafter correspondingly be made applicable, as nearly as may reasonably
be,
in relation to any shares of stock or other securities or property thereafter
deliverable on the exercise of this Warrant. The above provisions of this
Section
3(b)
shall
similarly apply to successive reorganizations, reclassifications,
consolidations, mergers, statutory exchanges, sales or conveyances. The Company
shall require the issuer of any shares of stock or other securities or property
thereafter deliverable on the exercise of this Warrant to be responsible for
all
of the agreements and obligations of the Company hereunder. Notice of any such
reorganization, reclassification, consolidation, merger, statutory exchange,
sale or conveyance and of said provisions so proposed to be made, shall be
mailed to the Holders of the Warrants not less than twenty (20) days prior
to
such event. A sale of all or substantially all of the assets of the Company
for
a consideration consisting primarily of securities shall be deemed a
consolidation or merger for the foregoing purposes.
5
(c) No
adjustment in the Per Share Warrant Price shall be required unless such
adjustment would require an increase or decrease of at least $0.01 per share
of
Common Stock; provided,
however,
that
any adjustments which by reason of this Section
3(c)
are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment; provided,
further,
however, that adjustments shall be required and made in accordance with the
provisions of this Section
3
(other
than this subsection 3(i)) not later than such time as may be required in order
to preserve the tax-free nature of a distribution, if any, to the Holder of
this
Warrant or Common Stock issuable upon the exercise hereof. All calculations
under this Section
3
shall be
made to the nearest cent or to the nearest 1/100th of a share, as the case
may
be. Anything in this Section
3
to the
contrary notwithstanding, the Company shall be entitled to make such reductions
in the Per Share Warrant Price, in addition to those required by this
Section
3,
as it
in its discretion shall deem to be advisable in order that any stock dividend,
subdivision of shares or distribution of rights to purchase stock or securities
convertible or exchangeable for stock hereafter made by the Company to its
stockholders shall not be taxable.
(d) Whenever
the Per Share Warrant Price or the number of Warrant Shares is adjusted as
provided in this Section
3
and upon
any modification of the rights of a Holder of Warrants in accordance with this
Section
3,
the
Company shall promptly prepare a brief statement of the facts requiring such
adjustment or modification and the manner of computing the same and cause copies
of such certificate to be mailed to the Holders of the Warrants. The Company
may, but shall not be obligated to unless requested by a Majority of the
Holders, obtain, at its expense, a certificate of a firm of independent public
accountants of recognized standing selected by the Board of Directors (who
may
be the regular auditors of the Company) setting forth the Per Share Warrant
Price and the number of Warrant Shares in effect after such adjustment or the
effect of such modification, a brief statement of the facts requiring such
adjustment or modification and the manner of computing the same and cause copies
of such certificate to be mailed to the Holders of the Warrants.
(e) If
the
Board of Directors of the Company shall declare any dividend or other
distribution with respect to the Common Stock other than a cash distribution
out
of earned surplus, the Company shall mail notice thereof to the Holders of
the
Warrants not less than ten (10) days prior to the record date fixed for
determining stockholders entitled to participate in such dividend or other
distribution.
(f) If,
as a
result of an adjustment made pursuant to this Section
3,
the
Holder of any Warrant thereafter surrendered for exercise shall become entitled
to receive shares of two or more classes of capital stock or shares of Common
Stock and other capital stock of the Company, the Board of Directors (whose
determination shall be conclusive and shall be described in a written notice
to
the Holder of any Warrant promptly after such adjustment) shall determine,
in
good faith, the allocation of the adjusted Per Share Warrant Price between
or
among shares or such classes of capital stock or shares of Common Stock and
other capital stock.
6
(g) In
case
any event shall occur as to which the other provisions of this Section
3
are not
strictly applicable but as to which the failure to make any adjustment would
not
fairly protect the purchase rights represented by this Warrant in accordance
with the essential intent and principles of the adjustments set forth in this
Section
3
then, in
each such case, the Board of Directors of the Company shall in good faith
determine the adjustment, if any, on a basis consistent with the essential
intent and principles established herein, necessary to preserve the purchase
rights represented by the Warrants. Upon such determination, the Company will
promptly mail a copy thereof to the Holder of this Warrant and shall make the
adjustments described therein.
4. Fully
Paid Stock; Taxes.
The
shares of the Common Stock represented by each and every certificate for Warrant
Shares delivered on the exercise of this Warrant shall, subject to compliance
by
the Holder with the terms hereof, at the time of such delivery, be duly
authorized, validly issued and outstanding, fully paid and nonassessable, and
not subject to preemptive rights or rights of first refusal imposed by any
agreement to which the Company is a party, and the Company will take all such
actions as may be necessary to assure that the par value, if any, per share
of
the Common Stock is at all times equal to or less than the then Per Share
Warrant Price. The Company shall pay, when due and payable, any and all Federal
and state stamp, original issue or similar taxes which may be payable in respect
of the issue of any Warrant Share or any certificate thereof to the extent
required because of the issuance by the Company of such security.
5. Registration
Under Act.
The
Holder shall have the right to participate in the registration rights granted
in
the subscription agreements between the Company and certain subscribers dated
on
even date herewith (collectively, the “Subscription
Agreements”)
pursuant to Article VII of the Subscription Agreements. By acceptance of this
Warrant, the Holder agrees to comply with the provisions in Article VII of
the
Subscription Agreement. In
the
event
the
Company fails to file the Registration
Statement (as defined in the Subscription Agreements) with the Securities and
Exchange Commission
on or
before Registration Due Date (as
defined in the Subscription Agreements),
the
Company shall issue to the Holder, as liquidated damages and not as a penalty,
a
number of Warrant Shares, for each month (or portion of a month) in which such
delay shall occur, equal to one percent (1%) of the total Warrant Shares
issuable hereunder, until the point in time when the Company has filed the
Registration Statement with the Securities and Exchange Commission.
6. Investment
Intent; Limited Transferability.
(a) By
accepting this Warrant, the Holder represents to the Company that it understands
that this Warrant and any securities obtainable upon exercise of this Warrant
have not been registered for sale under Federal or state securities laws and
are
being offered and sold to the Holder pursuant to one or more exemptions from
the
registration requirements of such securities laws. In the absence of an
effective registration of such securities or an exemption therefrom, any
certificates for such securities shall bear the legend set forth on the first
page hereof. The Holder understands that it must bear the economic risk of
its
investment in this Warrant and any securities obtainable upon exercise of this
Warrant for an indefinite period of time, as this Warrant and such securities
have not been registered under Federal or state securities laws and therefore
cannot be sold unless subsequently registered under such laws, unless an
exemption from such registration is available. The Holder further represents
to
the Company, by accepting this Warrant, that it has full power and authority
to
accept this Warrant and make the representations set forth herein.
7
(b) The
Holder, by its acceptance of this Warrant, represents to the Company that it
is
acquiring this Warrant and will acquire any securities obtainable upon exercise
of this Warrant for its own account for investment and not with a view to,
or
for sale in connection with, any distribution thereof in violation of the Act.
The Holder agrees, by acceptance of this Warrant, that this Warrant and any
such
securities will not be sold or otherwise transferred unless (i) a registration
statement with respect to such transfer is effective under the Act and any
applicable state securities laws or (ii) such sale or transfer is made pursuant
to one or more exemptions from the Act.
(c) In
addition to the limitations set forth in Section
1
and in
accordance with the legend on the first page hereof, this Warrant may not be
sold, transferred, assigned or hypothecated by the Holder except in compliance
with the provisions of the Act and the applicable state securities “blue sky”
laws, and is so transferable only upon the books of the Company which it shall
cause to be maintained for such purpose. The Company may treat the registered
Holder of this Warrant as it appears on the Company's books at any time as
the
Holder for all purposes. The Company shall permit any Holder of a Warrant or
its
duly authorized attorney, upon written request during ordinary business hours,
to inspect and copy or make extracts from its books showing the registered
Holders of Warrants. All Warrants issued upon the transfer or assignment of
this
Warrant will be dated the same date as this Warrant, and all rights of the
holder thereof shall be identical to those of the Holder unless, in each case,
otherwise prohibited by applicable law.
(d) The
Holder has been afforded (i) the opportunity to ask such questions as it has
deemed necessary of, and to receive answers from, representatives of the Company
concerning the terms and conditions of the Warrants or the exercise of the
Warrants; and (ii) the opportunity to request such additional information which
the Company possesses or can acquire without unreasonable effort or
expense.
(e) The
Holder did not (i) receive or review any advertisement, article, notice or
other
communication published in a newspaper or magazine or similar media or broadcast
over television or radio, whether closed circuit, or generally available; or
(ii) attend any seminar, meeting or investor or other conference whose attendees
were, to such Holder’s knowledge, invited by any general solicitation or general
advertising.
(f) The
Holder is an “accredited investor” within the meaning of Regulation D under the
Act. Such Holder is acquiring the Warrants for its own account and not with
a
present view to, or for sale in connection with, any distribution thereof in
violation of the registration requirements of the Act, without prejudice,
however, to such Holder’s right, subject to the provisions of the Subscription
Agreement and this Warrant, at all times to sell or otherwise dispose of all
or
any part of such Warrants and Warrant Shares.
8
(g) Either
by
reason of such Holder’s business or financial experience or the business or
financial experience of its professional advisors (who are unaffiliated with
and
who are not compensated by the Company or any affiliate, finder or selling
agent
of the Company, directly or indirectly), such Holder has the capacity to protect
such Holder’s interests in connection with the transactions contemplated by this
Warrant and the Subscription Agreement. The Holder, by its acceptance of this
Warrant, represents to the Company that it is able to fend for itself, can
bear
the economic risk of its investment and has such knowledge and experience in
financial or business matters that it is capable of evaluating the merits and
risks of the investment in this Warrant. Holder also represents it has not
been
organized for the purpose of acquiring this Warrant.
7. Optional Redemption.
(a) In
the
event that the Current Market Price of the Common Stock for any twenty (20)
consecutive Trading Days on the principal national securities exchange on which
the Common Stock is admitted to trading or listed, including the NASDAQ, or
other similar organization, or, if the Common Stock is not reported on a
national securities exchange, the per share sale price for the Common Stock
in
the over-the-counter market as reported by the OTCBB or another over-the-counter
market is at least 200% of the Per Share Warrant Price (subject to adjustment
for any stock splits, combinations, or similar events with respect to the Common
Stock after the original issuance date of this Warrant) (the “Redemption
Price”),
the
Company shall be entitled to redeem all, but not less than all, of the Warrant
Shares at a per Warrant Share redemption price of $.01, at any time after the
completion of such twenty (20) consecutive trading day period by providing
thirty (30) business days’ written notice to the Holders. The Holder agrees to
return the certificate representing the redeemed Warrants to the Company upon
their redemption (or evidence reasonably satisfactory to the Company of the
loss, theft, destruction or mutilation of this Warrant in accordance with
Section
8
hereof).
(b) Notwithstanding
Section
7(a)
hereof,
for so long as any Warrant Shares are not subject to a registration statement
declared effective by the SEC or are not otherwise permitted to be immediately
sold, in whole, pursuant to an exemption to registration for such resale,
including pursuant to Rule 144(k) of the Act, the Company shall not be entitled
to exercise its redemption rights pursuant to Section
7(a)
above.
8. Loss,
etc., of Warrant.
Upon
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant, and of indemnity reasonably
satisfactory to the Company, if lost, stolen or destroyed, and upon surrender
and cancellation of this Warrant, if mutilated, the Company shall execute and
deliver to the Holder a new Warrant of like date, tenor and
denomination.
9. Warrant
Holder Not Stockholder.
This
Warrant does not confer upon the Holder any right to vote on or consent to
or
receive notice as a stockholder of the Company, as such, in respect of any
matters whatsoever, nor any other rights or liabilities as a stockholder, prior
to the exercise hereof; this Warrant does, however, require certain notices
to
Holders as set forth herein.
9
10. Communication.
No
notice or other communication under this Warrant shall be effective or deemed
to
have been given unless, the same is in writing and is mailed by first-class
mail, postage prepaid, or via recognized overnight courier with confirmed
receipt, addressed to:
(a) the
Company at Velcera Pharmaceuticals, Inc., 000 Xxxxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxxxx 00000-0000, Attn: President, or other such address as the Company
has designated in writing to the Holder;
or
(b) the
Holder at the address last
furnished to the Company in writing by the Holder.
11. Headings.
The
headings of this Warrant have been inserted as a matter of convenience and
shall
not affect the construction hereof.
12. Applicable
Law.
This
Warrant will be governed by and interpreted in accordance with the laws of
the
State of Delaware without regard to the principles of conflict of laws. The
Holder hereby submit to the exclusive jurisdiction of the United States federal
and state courts located in the State of New York with respect to any dispute
arising under this Agreement or the transactions contemplated hereby or
thereby.
13. Amendment,
Waiver, etc.
Except
as expressly provided herein, neither this Warrant nor any term hereof may
be
amended, waived, discharged or terminated other than by a written instrument
signed by the party against whom enforcement of any such amendment, waiver,
discharge or termination is sought; provided, however, that any provision hereof
may be amended, waived, discharged or terminated upon the written consent of
the
Company and the Majority of the Holders and such amendment, waiver, discharge
or
termination shall be effective with respect to the Company and all
Holders.
IN
WITNESS WHEREOF,
the
Company has caused this Warrant to be signed by the undersigned duly authorized
officer, this ___ day of __________, 2007.
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VELCERA
PHARMACEUTICALS, INC.
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| |
|
|
| By: | ||
|
Name:
Xxxxxx Xxxxxxxx
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|
Title:
Chief Executive
Officer/President
|
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10
FORM
OF EXERCISE NOTICE
(To
be
executed by the Holder to exercise the right to purchase shares of Common Stock
under the foregoing Warrant)
Ladies
and Gentlemen:
(1) The
undersigned is the Holder of Warrant No. __________ (the “Warrant”) issued by
Velcera Pharmaceuticals, Inc., a Delaware corporation (the “Company”).
Capitalized terms used herein and not otherwise defined herein have the
respective meanings set forth in the Warrant.
(2) The
undersigned hereby exercises its right to purchase __________ Warrant Shares
pursuant to the Warrant.
(3) The
Holder intends that payment of the Exercise Price shall be made as (check
one):
o Cash
Exercise
o “Cashless
Exercise” under Section
1(c)
in
accordance with the terms of the Warrant.
(4) If
the
Holder has elected a Cash Exercise, the Holder shall pay the sum of $_______
to
the Company in accordance with the terms of the Warrant.
(5) Pursuant
to this Exercise Notice, the Company shall deliver to the Holder _____________
Warrant Shares in accordance with the terms of the Warrant.
Dated:_______________,
_____
Name
of
Holder: ___________________________
By:__________________________________
Name:
_______________________________
Title:
_______________________________
(Signature
must conform
in
all respects to name of Holder as specified on the face of the
Warrant)
ASSIGNMENT
FOR
VALUE
RECEIVED _______________ (“Assignor”)
hereby
sells, assigns and transfers unto ____________________ (“Transferee”)
the
foregoing Warrant and all rights evidenced thereby, and does irrevocably
constitute and appoint _____________________, attorney, to transfer said Warrant
on the books of Velcera Pharmaceuticals, Inc. By acceptance of the foregoing
Warrant, Transferee shall become a Holder under said Warrant and subject to
the
rights, obligations and representations of Holder set forth in said
Warrant.
|
ASSIGNOR:
|
|||
| Dated: ___________________ | Signature: ___________________________ | ||
| Address: ____________________________ | |||
|
TRANSFEREE:
|
|||
| Dated: ___________________ | Signature: ___________________________ | ||
| Address: ____________________________ |
PARTIAL
ASSIGNMENT
FOR
VALUE
RECEIVED _______________ (“Assignor”)
hereby
assigns and transfers unto ____________________ (“Transferee”)
the
right to purchase _______ shares of Common Stock, par value $0.001 per share,
of
Velcera Pharmaceuticals, Inc. covered by the foregoing Warrant, and a
proportionate part of said Warrant and the rights evidenced thereby, and does
irrevocably constitute and appoint ____________________, attorney, to transfer
such part of said Warrant on the books of Velcera Pharmaceuticals, Inc. By
acceptance of the proportionate part of foregoing Warrant, Transferee shall
become a Holder under said proportionate part of said Warrant and subject to
the
rights, obligations and representations of Holder set forth in said
Warrant.
|
ASSIGNOR:
|
|||
| Dated: ___________________ | Signature: ___________________________ | ||
| Address: ____________________________ | |||
|
TRANSFEREE:
|
|||
| Dated: ___________________ | Signature: ___________________________ | ||
| Address: ____________________________ |
