EXHIBIT 4.25
NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREUNDER AND IN
COMPLIANCE WITH APPLICABLE STATE SECURITIES OR BLUE SKY LAWS AS EVIDENCED BY A
LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF
WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
ADVENTRX PHARMACEUTICALS, INC.
COMMON STOCK WARRANT
Warrant No. [SEE ATTACHED SCHEDULE] Dated: July 27, 2005
ADVENTRX Pharmaceuticals, Inc., a Delaware corporation (the "Company"),
hereby certifies that, for value received, [SEE ATTACHED SCHEDULE] ("Holder"),
is entitled, subject to the terms set forth below, to purchase from the Company
up to [SEE ATTACHED SCHEDULE], $0.001 par value per share (the "Common Stock"),
of the Company (each such share, a "Warrant Share" and all such shares, the
"Warrant Shares") at an exercise price per share equal to Two Dollars Twenty-Six
Cents ($2.26) (as such exercise price may be adjusted from time to time as
provided in Section 9, the "Exercise Price"), at any time and from time to time
from and after January 27, 2006 and through and including the Expiration Date
(as such term is defined in Section 14).
This Warrant is being issued pursuant to the terms of that certain
Securities Purchase Agreement, dated July 21, 2005, by and among the Company,
the Holder and the other entities listed on Appendix A thereto (the "Purchase
Agreement"). All capitalized terms not otherwise defined herein shall have the
meaning given to them in the Purchase Agreement. This Warrant is subject to the
following terms and conditions:
1. Registration of Warrant. The Company shall register this Warrant, upon
records to be maintained by the Company for that purpose (the "Warrant
Register"), in the name of the record Holder from time to time. The Company may
deem and treat the registered Holder of this Warrant as the absolute owner
hereof for the purpose of any exercise hereof or any distribution to the Holder,
and for all other purposes, and the Company shall not be affected by notice to
the contrary.
2. Registration of Transfers and Exchanges.
(a) The Company shall register the transfer, subject to compliance with
applicable federal and state securities laws, of any portion of this Warrant in
the Warrant Register, upon surrender of this Warrant, with the Form of
Assignment attached hereto duly completed and signed, to the Warrant Agent (as
defined in Section 13) or to the Company at its address for notice set forth in
Section 12. Upon any such registration or transfer, a new warrant to purchase
Common Stock, in substantially the form of this Warrant (any such new warrant, a
"New Warrant"), evidencing the portion of this Warrant so transferred shall be
issued to the transferee and a New Warrant evidencing the remaining portion of
this Warrant not
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so transferred, if any, shall be issued to the transferring Holder. The
acceptance of the New Warrant by the transferee thereof shall be deemed the
acceptance of such transferee of all of the rights and obligations of a holder
of a Warrant.
(b) This Warrant is exchangeable, upon the surrender hereof by the Holder
to the office of the Company at its address for notice set forth in Section 12
for one or more New Warrants, evidencing in the aggregate the right to purchase
the number of Warrant Shares which may then be purchased hereunder.
3. Duration and Exercise of Warrants.
(a) This Warrant shall be exercisable by the registered Holder on any
business day before 5:00 P.M. (Pacific Time) at any time and from time to time
on or after January 27, 2006 to and including the Expiration Date. At 5:00 P.M.
(Pacific Time) on the Expiration Date, the portion of this Warrant not exercised
prior thereto shall expire and become void and of no value. Prior to the
Expiration Date, the Company may not call or otherwise redeem this Warrant.
(b) Subject to Section 10, upon delivery of an executed Form of Election to
Purchase, together with the grid attached hereto as Annex A duly completed and
signed, to the Company at its address for notice set forth in Section 12 and
upon payment of the Exercise Price multiplied by the number of Warrant Shares
that the Holder intends to purchase hereunder, in the manner provided hereunder,
all as specified by the Holder in the Form of Election to Purchase, the Company
shall promptly (but in no event later than 5 business days after the Date of
Exercise (as defined herein)) 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, a certificate for the Warrant Shares issuable upon
such exercise, which may bear a restrictive legend as set forth in Section 7. To
effect an exercise hereunder, the Holder shall not be required to physically
surrender this Warrant to the Company unless all the Warrant Shares have been
exercised. Exercises hereunder shall have the effect of lowering the number of
Warrant Shares in an amount equal to the applicable exercise, which shall be
evidenced by entries set forth on the attached Annex A. The Holder and the
Company shall maintain records showing the number of Warrant Shares exercised
and the date of such exercises. The Holder and any assignee, by acceptance of
this Warrant, acknowledge and agree that, by reason of the provisions of this
paragraph, following exercise of a portion of this Warrant, the number of shares
issuable upon exercise of this Warrant may be less than the amount stated on the
face hereof.
(c) A "Date of Exercise" means the date on which the Company shall have
received the Form of Election to Purchase completed and duly signed.
(d) This Warrant shall be exercisable, either in its entirety or, from time
to time, for a portion of the number of Warrant Shares.
4. Payment of Taxes. The Company will pay all documentary stamp taxes
attributable to the issuance of Warrant Shares upon the exercise of this
Warrant; provided, however, that the Company shall not be required to pay any
tax which may be payable in respect of any transfer involved in the registration
of any certificates for Warrant Shares or Warrants in a name other than that of
the Holder. The Holder shall be responsible for all other tax liability that may
arise as a result of holding or transferring this Warrant or receiving Warrant
Shares upon exercise hereof.
5. Replacement of Warrant. If this Warrant is mutilated, lost, stolen or
destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation hereof, or in lieu
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of and substitution for this Warrant, a New Warrant, but only upon receipt of
evidence reasonably satisfactory to the Company of such loss, theft or
destruction and indemnity.
6. Reservation of Warrant Shares. The Company covenants that it will at all
times reserve and keep available at all times out of the aggregate of its
authorized but unissued Common Stock, solely for the purpose of enabling it to
issue Warrant Shares upon exercise of this Warrant as herein provided, the
number of Warrant Shares which are then issuable and deliverable upon the
exercise of this entire Warrant, free from preemptive rights or any other actual
contingent purchase rights of persons other than the Holder (taking into account
the adjustments and restrictions of Section 9). The Company covenants that all
Warrant Shares that shall be so issuable and deliverable shall, upon issuance
and receipt of the payment of the applicable Exercise Price in accordance with
the terms hereof, be duly and validly authorized, issued and fully paid and
nonassessable.
7. Acquisition of Warrant for Personal Account. Xxxxxx understands that neither
this Warrant nor any of the Warrant Shares have been registered under the
Securities Act of 1933, as amended (the "Securities Act"). Holder also
understands that this Warrant and the Warrant Shares are being offered and sold
pursuant to an exemption from registration contained in the Securities Act based
in part upon Holder's representations contained herein and in the Purchase
Agreement. Holder represents and warrants as follows:
(a) Holder is an accredited investor within the meaning of Rule 501 of
Regulation D promulgated under the Securities Act, is knowledgeable,
sophisticated and experienced in making, and is qualified to make, decisions
with respect to investments in securities representing an investment decision
like that involved in the purchase of this Warrant and the Warrant Shares.
(b) Holder is acquiring this Warrant and, if this Warrant is exercised,
will acquire the Warrant Shares for its own account for investment only. Holder
has no intention of selling or distributing this Warrant or any Warrant Shares
or any arrangement or understanding with any other Persons regarding the sale or
distribution of this Warrant or any of the Warrant Shares except in accordance
with the provisions of Section 6 of the Purchase Agreement. Holder will not,
directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of
(or solicit any offers to buy, purchase or otherwise acquire or take a pledge
of) this Warrant or any of the Warrant Shares except in accordance with the
provisions of Section 6 of the Purchase Agreement with respect to the Warrant
Shares or pursuant to and in accordance with the Securities Act.
(c) Xxxxxx has received and reviewed the Memorandum and has requested,
received, reviewed and considered all other information Holder deems relevant in
making an informed decision to purchase this Warrant and the Warrant Shares.
Xxxxxx has had an opportunity to discuss the Company's business, management and
financial affairs with its management and also had an opportunity to ask
questions of officers and employees of the Company that were answered to
Holder's satisfaction.
(d) Xxxxxx recognizes that an investment in this Warrant and the Warrant
Shares involves a high degree of risk, including a risk of total loss of
Holder's investment. Xxxxxx is able to bear the economic risk of holding this
Warrant and the Warrant Shares for an indefinite period, and has knowledge and
experience in the financial and business matters such that it is capable of
evaluating the risks of the investment in this Warrant and the Warrant Shares.
(e) Holder has, in connection with Xxxxxx's decision to purchase this
Warrant and, if this Warrant is exercised, the Warrant Shares, not relied upon
any representations or other information (whether oral or written) other than as
set forth in the representations and warranties of the Company contained herein
or the Memorandum. Xxxxxx has, with respect to all matters relating to this
Warrant and
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the offer and sale of the Warrant Shares, relied solely upon the advice of
Xxxxxx's own counsel and has not relied upon or consulted any counsel to the
Placement Agent or counsel to the Company.
(f) Holder understands and acknowledges that nothing in the Memorandum,
this Warrant, any other materials presented to Holder or any communications
between Holder and the Placement Agent in connection with the purchase and sale
of this Warrant and the Warrant Shares constitutes legal, tax or investment
advice. Holder has consulted such legal, tax and investment advisors as it, in
its sole discretion, has deemed necessary or appropriate in connection with its
purchase of Warrant Shares.
(g) Holder acknowledges that the Placement Agent has acted solely as
placement agent for the Company in connection with the offering of this Warrant
and the Warrant Shares by the Company, that the information and data provided to
Holder in connection with the transactions contemplated hereby have not been
subjected to independent verification by the Placement Agent, and that the
Placement Agent makes no representation or warranty with respect to the accuracy
or completeness of such information, data or other related disclosure material.
Holder further acknowledges that in making its decision to enter into this
Warrant and to purchase Warrant Shares that it has relied on its own examination
of the Company and the terms of, and consequences, of holding this Warrant and
the Warrant Shares. Each Holder further acknowledges that the provisions of this
Section 7(g) are also for the benefit of, and may also be enforced by, the
Placement Agent.
(h) Holder understands that this Warrant and the Warrant Shares are
"restricted securities" as such term is defined in Rule 144 of Regulation D
promulgated under the Securities Act ("Rule 144") and must be held indefinitely
unless they are subsequently registered or qualified under applicable state and
federal securities laws or an exemption from such registration or qualification
is available. Holder understands that it may resell the Warrant Shares pursuant
to Rule 144 only after the satisfaction of certain requirements, including the
requirement that the Warrant Shares be held for at least one year prior to
resale.
(i) Xxxxxx acknowledges and agrees that this Warrant and Warrant Shares are
subject to certain restrictions as to resale or transfer under the federal and
state securities laws. Xxxxxx agrees and understands that stop transfer
instructions will be given to the transfer agent for the Warrant Shares, and
each certificate delivered on transfer of or in substitution for any such
certificate, and each certificate representing the Warrant Shares shall have
affixed a legend in substantially the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS.
EXCEPT AS SPECIFIED IN THIS LEGEND, SUCH SHARES MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED, OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT THERETO UNDER SUCH ACT
UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT OR UNLESS SUCH SALE, PLEDGE,
HYPOTHECATION OR TRANSFER IS OTHERWISE EXEMPT FROM REGISTRATION AND ANY
APPLICABLE STATE SECURITIES LAWS. THE COMPANY MAY REQUEST A WRITTEN OPINION
OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT
REGISTRATION IS NOT REQUIRED IN CONNECTION WITH SUCH SALE OR OTHER
TRANSFER."
(j) Xxxxxx understands that the Company is relying on the statements
contained herein to establish an exemption from registration under federal and
state securities laws. Holder will promptly
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notify the Company of any changes in the information set forth in the
Registration Statement (as defined in Section 6.1(a)(i) of the Purchase
Agreement) regarding Holder.
(k) Holder: (i) is, to its knowledge and except as disclosed in the
Purchase Agreement, not an affiliate (as such term is defined pursuant to Rule
12b-2 promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of any other Holder, (ii) is not constituted as a partnership,
association, joint venture or any other type of joint entity with any other
Holder, and (iii) to its knowledge and except as disclosed in the Purchase
Agreement, is not acting as part of a group (as such term is defined under
Section 13(d) of the Exchange Act) with any other Holder. If at any time after
the date of this Warrant (the "Warrant Date") Holder becomes an affiliate (as
defined herein) of any other Holder, Holder will provide prompt written notice
to the Company.
8. Obligation to Register Securities. The Company is not obligated to register
this Warrant or the Warrant Shares for resale under the Securities Act, except
as provided in the Purchase Agreement, and the Holder of this Warrant (or any
assignee hereof) is entitled to the registration rights in respect of the
Warrant Shares as only set forth in the Purchase Agreement.
9. Certain Adjustments. The Exercise Price and number of Warrant Shares issuable
upon exercise of this Warrant are subject to adjustment from time to time as set
forth in this Section 9. Upon each such adjustment of the Exercise Price
pursuant to this Section 9, the Holder shall thereafter prior to the Expiration
Date be entitled to purchase, at the Exercise Price resulting from such
adjustment, the number of Warrant Shares obtained by multiplying (x) the
Exercise Price in effect immediately prior to such adjustment by (y) the number
of Warrant Shares issuable upon exercise of this Warrant immediately prior to
such adjustment and dividing the product thereof by (z) the Exercise Price
resulting from such adjustment.
(a) If the Company, at any time while this Warrant is outstanding, (i)
shall pay a stock dividend (except scheduled dividends paid on outstanding
preferred stock as of the Warrant Date which contain a stated dividend rate) or
otherwise make a distribution or distributions of capital stock to all the
holders of Common Stock or on any other class of capital stock payable in shares
of Common Stock, (ii) subdivide outstanding shares of Common Stock into a larger
number of shares or (iii) combine outstanding shares of Common Stock into a
smaller number of shares, the Exercise Price shall be multiplied by a fraction
of which the numerator shall be the number of shares of Common Stock (excluding
treasury shares, if any) outstanding before such event and of which the
denominator shall be the number of shares of Common Stock (excluding treasury
shares, if any) outstanding after such event. In such event, the number of
Warrant shares issuable under this Warrant shall be equitably adjusted to
reflect such event (i.e., in the event of 2:1 stock split of the Common Stock,
the number of Warrant shares shall be increased to twice the number available
for purchase prior to the record date for such stock split). Any adjustment made
pursuant to this Section shall become effective immediately after the record
date for the determination of stockholders entitled to receive such dividend or
distribution and shall become effective immediately after the effective date in
the case of a subdivision or combination, and shall apply to successive
subdivisions and combinations.
(b) In case of any reclassification of the Common Stock or any compulsory
share exchange pursuant to which the Common Stock is converted into other
securities, cash or property, then the Holder shall have the right thereafter to
exercise this Warrant only into the shares of stock and other securities and
property receivable upon or deemed to be held by holders of Common Stock
following such reclassification or share exchange, and the Holder shall be
entitled upon such event to receive such amount of securities or property equal
to the amount of Warrant Shares such Holder would have been entitled to had such
Holder exercised this Warrant immediately prior to such reclassification or
share exchange. The terms of any such reclassification or share exchange shall
include such terms so as to
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continue to give to the Holder the right to receive the securities or property
set forth in this Section 9(b) upon any exercise following any such
reclassification or share exchange.
(c) If while this Warrant, or any portion thereof, remains outstanding and
unexpired, the holders of shares of Common Stock shall receive, or, on or after
the record date fixed for the determination of eligible stockholders, shall have
become entitled to receive, without payment therefor, property (including cash)
of the Company by way of dividend, then and in each case, this Warrant shall
represent the right to acquire, in addition to the number of Warrant Shares then
exercisable, such property (including cash) of the Company such Holder would
have been entitled to had such Holder exercised this Warrant immediately prior
to the record date for such payment.
(d) For the purposes of this Section 9, the following clauses shall also be
applicable:
(i) Record Date. In case the Company shall take a record of the
holders of its Common Stock for the purpose of entitling them (A) to receive a
dividend or other distribution payable in Common Stock or in securities
convertible or exchangeable into shares of Common Stock, or (B) to subscribe for
or purchase Common Stock or securities convertible or exchangeable into shares
of Common Stock, then such record date shall be deemed to be the date of the
issue or sale of the shares of Common Stock deemed to have been issued or sold
upon the declaration of such dividend or the making of such other distribution
or the date of the granting of such right of subscription or purchase, as the
case may be.
(ii) Treasury Shares. The number of shares of Common Stock outstanding
at any given time shall not include shares owned or held by or for the account
of the Company, and the disposition of any such shares shall be considered an
issue or sale of Common Stock.
(e) All calculations under this Section 9 shall be made to the nearest cent
or the nearest 1/100th of a share, as the case may be.
(f) If:
(i) the Company shall declare a dividend (or any other distribution)
on its Common Stock; or
(ii) the Company shall declare a special nonrecurring cash dividend on
or a redemption of its Common Stock; or
(iii) the Company shall authorize the granting to all holders of the
Common Stock rights or warrants to subscribe for or purchase any shares of
capital stock of any class or of any rights; or
(iv) the approval of any stockholders of the Company shall be required
in connection with any reclassification of the Common Stock, any consolidation
or merger to which the Company is a party, any sale or transfer of all or
substantially all of the assets of the Company, or any compulsory share exchange
whereby the Common Stock is converted into other securities, cash or property;
or
(v) the Company shall authorize the voluntary dissolution, liquidation
or winding up of the affairs of the Company,
then the Company shall cause to be mailed to each Holder at their last addresses
as they shall appear upon the Warrant Register, at least ten calendar days prior
to the applicable record or effective date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution, redemption, rights or warrants, or if a record is not to
be taken, the date as of which the
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holders of Common Stock of record to be entitled to such dividend,
distributions, redemption, rights or warrants are to be determined or (y) the
date on which such reclassification, consolidation, merger, sale, transfer or
share exchange is expected to become effective or close, and the date as of
which it is expected that holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities, cash or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer,
share exchange, dissolution, liquidation or winding up, provided, that the
failure to mail such notice or any defect therein or in the mailing thereof
shall not affect the validity of the corporate action required to be specified
in such notice.
10. Payment of Exercise Price. Upon exercise of this Warrant, the Holder shall
pay the aggregate Exercise Price payable with respect to the Warrant Shares for
which this Warrant is exercised by cash or by certified or official bank check
payable to the order of the Company, or by wire transfer of immediately
available funds to an account to be designated by the Company.
11. Fractional Shares. The Company shall not be required to issue or cause to be
issued fractional Warrant Shares on the exercise of this Warrant. The number of
full Warrant Shares which shall be issuable upon the exercise of this Warrant
shall be computed on the basis of the aggregate number of Warrant Shares
purchasable on exercise of this Warrant so presented. If any fraction of a
Warrant Share would, except for the provisions of this Section, be issuable on
the exercise of this Warrant, the Company shall pay an amount in cash equal to
the Exercise Price multiplied by such fraction.
12. Notices. Any and all notices or other communications or deliveries hereunder
shall be in writing and shall be deemed given and effective on the earliest of
(i) the date of transmission, if such notice or communication is delivered via
facsimile at the facsimile telephone number specified in this Section prior to
5:00 p.m. (Pacific Time) on a business day, (ii) the business day after the date
of transmission, if such notice or communication is delivered via facsimile at
the facsimile telephone number specified in this Section later than 5:00 p.m.
(Pacific Time) on any date and earlier than 11:59 p.m. (Pacific Time) on such
date, (iii) the business day following the date of mailing, if sent by
nationally recognized overnight courier service, or (iv) upon actual receipt by
the party to whom such notice is required to be given. The addresses for such
communications shall be: (i) if to the Company, to 0000 Xxxx Xxxxx Xxxx, Xxxxx
000, Xxx Xxxxx, Xxxxxxxxxx 00000, facsimile (000) 000-0000, attention: Chief
Financial Officer, or (ii) if to the Holder, to the Holder at the address or
facsimile number appearing on the Warrant Register or such other address or
facsimile number as the Holder may provide to the Company in accordance with
this Section.
13. Warrant Agent. The Company shall serve as warrant agent (the "Warrant
Agent") under this Warrant. Upon prior written notice to the Holder, the Company
may appoint a new Warrant Agent. Any corporation into which the Company or any
new warrant agent may be merged or any corporation resulting from any
consolidation to which the Company or any new Warrant Agent shall be a party or
any corporation to which the Company or any new Warrant Agent transfers
substantially all of its corporate trust or shareholders services business shall
be a successor Warrant Agent under this Warrant without any further act. Any
such successor Warrant Agent shall promptly cause notice of its succession as
Warrant Agent to be mailed (by first class mail, postage prepaid) to the Holder
at the Holder's last address as shown on the Warrant Register.
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14. Expiration of Warrant. This Warrant shall expire and no longer be
exercisable as of the date (the "Expiration Date") that is the earlier of (i)
the seven-year anniversary of the Warrant Date; or (ii) immediately prior to the
consummation of either (A) any acquisition of the Company by means of merger,
consolidation or other form of corporate reorganization (other than a
reincorporation transaction or change of domicile) following which the holders
of the outstanding voting securities of the Company immediately prior to such
merger, consolidation or other reorganization do not hold (in their capacity as
such) equity securities representing a majority of the voting power of the
surviving or resulting entity immediately following such merger, consolidation
or other reorganization or (B) a sale of all or substantially all of the assets
of the Company other than to a buyer in which the holders of the outstanding
voting securities of the Company immediately prior to such sale hold (in their
capacity as such) equity securities representing a majority of the voting power
immediately following such sale (any of such events being referred to herein as
an "Acquisition"), in which the consideration to the stockholders of the Company
for their shares of stock consists entirely of cash; provided, however, that if
the amount of cash per share to be paid to the stockholders of the Company in
such Acquisition (the "Per Share Price") is greater than the Exercise Price, the
Company shall be obligated to pay to the Holder, upon consummation of the
Acquisition, an amount for each Warrant Share for which the Holder has not
exercised this Warrant by such date equal to the difference between the Per
Share Price and the Exercise Price.
15. Non-Cash Acquisition.
(a) In the event of the occurrence of an Acquisition in which the
consideration does not consist entirely of cash, then as part of such
Acquisition, the Company shall make lawful provision such that the Holder shall
thereafter be entitled to receive, upon exercise of this Warrant, prior to the
Expiration Date and upon payment of the Exercise Price, the number of shares of
stock or other securities or property of the corporation or other entity
resulting from the Acquisition (or which purchases the assets of the Company)
that the Holder would have been entitled to receive in the Acquisition if this
Warrant had been exercised immediately before the Acquisition. In all events,
appropriate adjustments (as determined in good faith by the Company's Board of
Directors) shall be made in the application of the provisions of this Warrant
with respect to the rights and interests of the Holder after the Acquisition, to
the extent that the provisions of this Warrant shall be applicable after that
event, as near as reasonably may be, in relation to any shares or other property
deliverable after the Acquisition upon exercise of this Warrant.
(b) Notwithstanding the provisions of Section 15(a), in the event of an
Acquisition covered by the terms of Section 15(a), then at the Company's option,
this Warrant shall be automatically cancelled (and the Holder will promptly
surrender this Warrant to the Company for cancellation) if, upon consummation of
the Acquisition, the Holder is paid the following amount:
(i) if the consideration per share to be paid to the stockholders of
the Company in the Acquisition (the "Consideration Per Share") is less than the
Exercise Price, then the Holder shall be paid an amount equal to the value of
the unexercised portion of the Warrant, with such value being based on
application of the Black-Scholes model to the unexercised portion of the Warrant
(as applied by Company's Board of Directors in good faith) using the closing
price of a share of common stock of the Company on the business day prior to the
announcement of the Acquisition;
(ii) if the Consideration Per Share is greater than the Exercise Price
but equal to or less than $12.26 per share, then the Holder shall be paid an
amount equal to the product of (A) the Consideration Per Share minus the
Exercise Price (the "Delta"), multiplied by (B) the number of Warrant Shares for
which the Holder has not exercised this Warrant by such date (the "Unexercised
Warrant Shares"), and multiplied by (C) 1.40;
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(iii) if the Consideration Per Share is greater than $12.26 per share
but equal to or less than $22.26 per share, then the Holder shall be paid an
amount equal to the product of (A) the Delta, multiplied by (B) the Unexercised
Warrant Shares, and multiplied by (C) 1.30; and
(iv) if the Consideration Per Share is $22.26 or greater, then the
Holder shall be paid an amount equal to the product of (A) the Delta, multiplied
by (B) the Unexercised Warrant Shares, and multiplied by (C) 1.20.
(c) The value of the consideration in an Acquisition covered by this
Section 15(b) shall be determined in good by the Company's Board of Directors.
Upon any adjustment of the Exercise Price pursuant to the terms hereof, the
price ranges in subsections 15(b)(i), (ii), and (iii) hereof shall be similarly
adjusted.
16. Miscellaneous.
(a) This Warrant shall be binding on and inure to the benefit of the
parties hereto and their respective permitted successors and assigns. This
Warrant may be amended only in writing signed by the Company and the Holder and
their permitted successors and assigns.
(b) Subject to Section 16(a), above, nothing in this Warrant shall be
construed to give to any person or corporation other than the Company and the
Holder any legal or equitable right, remedy or cause under this Warrant. This
Warrant shall inure to the sole and exclusive benefit of the Company and the
Holder.
(c) This Agreement shall be governed by and construed under the laws of the
State of New York as applied to agreements among New York residents, made and to
be performed entirely within the State of New York. Each of the Company and the
Holder hereby irrevocably waives personal service of process and consents to
process being served in any such suit, action or proceeding by receiving a copy
thereof sent to the Company at the address in effect for notices to it under
this instrument and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted
by law. Each party irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby. If either party shall commence an action or proceeding to enforce any
provisions of this Warrant, then the prevailing party in such action or
proceeding shall be reimbursed by the other party for its attorneys fees and
other costs and expenses incurred with the investigation, preparation and
prosecution of such action or proceeding.
(d) The headings herein are for convenience only, do not constitute a part
of this Warrant and shall not be deemed to limit or affect any of the provisions
hereof.
(e) In case any one or more of the provisions of this Warrant shall be
invalid or unenforceable in any respect, the validity and enforceability of the
remaining terms and provisions of this Warrant shall not in any way be affected
or impaired thereby and the parties will attempt in good faith to agree upon a
valid and enforceable provision which shall be a commercially reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.
(f) This Warrant is being issued pursuant to the Purchase Agreement and any
provisions hereof may be amended, waived or modified in accordance with the
amendment and modification provision set forth in the Purchase Agreement.
-9- Warrant
(g) Receipt of this Warrant by the Holder shall constitute acceptance of
and agreement to all of the terms and conditions contained herein.
17. No Rights as a Stockholder. Holder shall not, by virtue hereof, be entitled
to any rights of stockholder of the Company, either at law or equity, and the
rights of Holder are limited to those expressed in this Warrant. Nothing
contained in this Warrant shall be construed as conferring upon the Holder the
right to vote or to consent or to receive notice as a stockholder of the Company
on any matters or with respect to any rights whatsoever as a stockholder of the
Company. No dividends or interest shall be payable or accrued in respect of this
Warrant or the interest represented hereby of the Warrant Shares purchasable
hereunder until, and only to the extent that, this Warrant shall have been
exercised in accordance with its terms.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-10- Warrant
IN WITNESS WHEREOF, the Company has caused this COMMON STOCK WARRANT to be
duly executed by its authorized officer as of the date first indicated above.
ADVENTRX PHARMACEUTICALS, INC.
By: /s/ Xxxx Xxxxxx
-------------------------------------
Xxxx Xxxxxx
President and Chief Executive Officer
FORM OF ELECTION TO PURCHASE
(To be executed by the Holder to exercise the right to purchase shares of Common
Stock under the Warrant to which this form applies, issued by ADVENTRX
Pharmaceuticals, Inc. (the "Company"))
To ADVENTRX Pharmaceuticals, Inc.:
The undersigned hereby irrevocably elects to purchase shares of common
stock, $0.001 value, of the Company (the "Common Stock") and encloses herewith
$_________ in cash, certified or official bank check or checks, which sum
represents the aggregate Exercise Price (as defined in the Warrant) for the
number of shares of Common Stock to which this Form of Election to Purchase
relates, together with any applicable taxes payable by the undersigned pursuant
to the Warrant.
(1) The undersigned hereby elects to purchase ________ shares of the Common
Stock of the Company pursuant to the terms of the attached Warrant, and tenders
herewith payment of the exercise price in full, together with all applicable
transfer taxes, if any.
(2) The undersigned requests that certificates for the shares of Common
Stock issuable upon this exercise be issued in the name of:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print name, address and social security or tax identification number)
Dated: ___________, 200__
Name of Holder:
(Print)
---------------------------------------------------------
(By:)
-----------------------------------------------------------
(Name:)
---------------------------------------------------------
(Title:)
--------------------------------------------------------
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant)
Warrant
FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ________________________________ the right represented by the within
Warrant to purchase ____________ shares of Common Stock of ADVENTRX
Pharmaceuticals, Inc. to which the within Warrant relates and appoints
________________ attorney to transfer said right on the books of ADVENTRX
Pharmaceuticals, Inc. with full power of substitution in the premises.
Dated:
_____________, _____
---------------------------------------
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant)
---------------------------------------
Address of Transferee
---------------------------------------
---------------------------------------
In the presence of:
-------------------------------------
Warrant
ANNEX A
Number of Warrant Number of Warrant
Shares Available to Number of Warrant Shares Remaining to
Date be Exercised Shares Exercised be Exercised
---- ------------------- ----------------- -------------------
SCHEDULE OF WARRANTHOLDERS
ADVENTRX Pharmaceuticals, Inc. issued this form of Common Stock Warrant to
each of the persons listed below for the purchase of up to the number of shares
of Common Stock listed opposite such person's name below.
HOLDER WARRANT NO. SHARES
------------------------------ ----------- ---------
Icahn Partners LP WP-1 1,660,540
Icahn Partners Master Fund LP WP-2 1,798,919
High River Limited Partnership WP-3 864,865
Viking Global Equities LP WP-4 1,832,483
VGE III Portfolio Ltd. WP-5 1,951,300
Royal Bank of Canada WP-8 1,351,351
