Exhibit 4.2
THIS WARRANT AND THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR WITH ANY
STATE SECURITIES COMMISSION, AND MAY NOT BE TRANSFERRED OR DISPOSED OF BY THE
HOLDER IN THE ABSENCE OF A REGISTRATION STATEMENT WHICH IS EFFECTIVE UNDER THE
SECURITIES ACT AND APPLICABLE STATE LAWS AND RULES, OR, UNLESS, IMMEDIATELY
PRIOR TO THE TIME SET FOR TRANSFER, SUCH TRANSFER MAY BE EFFECTED WITHOUT
VIOLATION OF THE SECURITIES ACT AND OTHER APPLICABLE STATE LAWS AND RULES.
UNIT WARRANT
TO
PURCHASE 378,788 UNITS
OF
BIOPURE CORPORATION
(A DELAWARE CORPORATION)
Unit Warrant No. 1 August 23, 2006
THIS CERTIFIES THAT, for value received, Xxxxxx Xxxxx Securities, Inc.
or its assigns, (the "HOLDER"), as registered owner of this unit warrant (the
"UNIT WARRANT"), is entitled to purchase and receive, in whole or in part,
subject to the provisions of this Unit Warrant, from Biopure Corporation, a
Delaware corporation (the "COMPANY"), up to 378,788 units (each, a "UNIT"), each
Unit to consist of (i) one share of Class A Common Stock, par value $0.01 per
share, of the Company (the "SHARES") and (ii) one five-year warrant exercisable
to purchase one share of Common Stock at $0.89 per share (the "SHARE WARRANT")
in the form attached hereto as Exhibit A; provided, however, that the number and
kind of securities for which this Unit Warrant is exercisable are subject to
further adjustment in certain events, such as mergers, splits, stock dividends,
recapitalizations and the like, to prevent dilution, as set forth herein. The
purchase price for each Unit (the "PER UNIT PRICE") shall be $0.89. This Unit
Warrant shall be exercisable at any time and from time to time from and after
February 23, 2007 (the "COMMENCEMENT DATE") up to and including August 23, 2011
(the "EXPIRATION DATE"), and subject to the terms and conditions set forth
herein. If the Expiration Date is a day on which banking institutions are
authorized by law to close, then this Unit Warrant may be exercised on the next
succeeding day which is not such a day in accordance with the terms herein.
During the period beginning on the Commencement Date and ending on the
Expiration Date, the Company agrees not to take any action that would terminate
this Unit Warrant.
Section 1. Exercise.
Section 1.1 Exercise Form. In order to exercise this Unit
Warrant, the exercise form attached hereto must be duly executed and
completed and delivered to the Company, together with this Unit Warrant
and payment of the Per Unit Price in cash or by certified check or
official bank check for the Units being purchased. If the subscription
rights represented hereby shall not be exercised at or before 5:00 p.m.
Eastern time on the Expiration Date, this Unit Warrant shall become and
be void without further force or effect, and all rights represented
hereby shall cease and expire.
Section 1.2 Notwithstanding anything to the contrary herein,
after the Commencement Date, the Company may, by written notice to the
Holder, require that the Holder execute and deliver to the Company an
Exercise Notice exercising this Unit Warrant in full within twenty (20)
Business Days of the date of the Company's notice; provided, however,
that the Company may only provide such notice if the daily volume
weighted average price per share of the Common Stock for each of the
ten (10) consecutive trading days ended immediately prior to the
Company's notice is equal to or greater than the Per Unit Price
multiplied by 1.5. At 5:00 p.m. Eastern time on such twentieth (20th)
Business Day, the portion of this Unit Warrant not exercised prior
thereto shall be and become void and of no value, and the Holder hereof
shall have no right to purchase any additional Units hereunder.
Section 2. Transfer.
Section 2.1 General Restrictions. The registered Holder of
this Unit Warrant, by its acceptance hereof, agrees that it will not
sell, transfer or assign or hypothecate this Unit Warrant prior to the
one hundred eighty (180) days from the Effective Date to anyone other
than (i) an officer or partner of such Holder, (ii) an officer of
Xxxxxx Xxxxx Securities, Inc., the placement agent of the private
offering with respect to which this Unit Warrant has been issued
("PLACEMENT AGENT") or an officer or partner of any selected dealer in
connection with the Company's private offering with respect to which
this Unit Warrant has been issued, or (iii) any selected dealer. On and
after the Commencement Date, transfers to others may be made subject to
compliance with or exemptions from applicable securities laws. In order
to make any permitted assignment, the Holder must deliver to the
Company the assignment form attached hereto duly executed and
completed, together with the Unit Warrant and payment of all transfer
taxes, if any, payable in connection therewith. The Company shall
immediately transfer this Unit Warrant on the books of the Company and
shall execute and deliver a new Unit Warrant of like tenor to the
appropriate assignee(s) expressly evidencing the right to purchase the
aggregate number of Units purchasable hereunder or such portion of such
number as shall be contemplated by any such assignment.
Section 2.2 Restrictions Imposed by the Act. This Unit Warrant
and the Units underlying this Unit Warrant shall not be transferred
unless and until (i) the Company has received the opinion of counsel
for the Holder that this Unit Warrant or the Units, as the case may be,
may be transferred pursuant to an exemption from registration under the
Act and applicable state law, the availability of which is established
to the reasonable satisfaction of the Company (the Company hereby
agreeing that an opinion of Blank Rome shall be deemed satisfactory
evidence of the availability of an exemption), or (ii) a registration
statement relating to such Unit Warrant or Units, as the case may be,
has been filed by the Company and declared effective by the Securities
and Exchange Commission (the "COMMISSION") and compliance with
applicable state law.
Section 3. New Unit Warrants to be Issued.
Section 3.1 Partial Exercise or Transfer. Subject to the
restrictions in Section 3 hereof, this Unit Warrant may be exercised or
assigned in whole or in part. In the event of the exercise or
assignment hereof in part only, upon surrender of this Unit Warrant for
cancellation, together with the duly executed exercise or assignment
form and funds sufficient to pay any Per Unit Price and/or transfer
tax, the Company shall cause to be delivered to the Holder without
charge a new Unit Warrant of like tenor to this Unit Warrant in the
name of the Holder evidencing the right of the Holder to purchase the
aggregate number of Shares purchasable hereunder as to which this Unit
Warrant has not been exercised or assigned.
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Section 3.2 Lost Certificate. Upon receipt by the Company of
evidence satisfactory to it of the loss, theft, destruction or
mutilation of this Unit Warrant and of reasonably satisfactory
indemnification, and upon surrender and cancellation of this Unit
Warrant, if mutilated, the Company shall execute and deliver a new Unit
Warrant of like tenor and date. Any such new Unit Warrant executed and
delivered as a result of such loss, theft, mutilation or destruction
shall constitute a substitute contractual obligation on the part of the
Company.
Section 4. Adjustments.
Section 4.1 Adjustments to Per Unit Price and Number of
Securities. The Per Unit Price and the number of Units underlying this
Unit Warrant shall be subject to adjustment from time to time as
hereinafter set forth:
Section 4.1.1 If after the date hereof, and subject
to the provisions of Section 4.2 below, the number of outstanding
shares of Common Stock is increased by a stock dividend payable in
shares of Common Stock or by a split-up of shares of Common Stock or
other similar event, then, on the effective date thereof, the number of
shares of Common Stock underlying this Unit Warrant shall be increased
in proportion to such increase in outstanding shares.
Section 4.1.2 If after the date hereof, and subject
to the provisions of Section 4.2, the number of outstanding shares of
Common Stock is decreased by a consolidation, combination or
reclassification of shares of Common Stock or other similar event,
then, on the effective date thereof, the number of shares of Common
Stock underlying this Unit Warrant shall be decreased in proportion to
such decrease in outstanding shares.
Section 4.1.3 In case of any reclassification or
reorganization of the outstanding shares of Common Stock other than a
change covered by Section 4.1.1 or 4.1.2 hereof or that solely affects
the par value of such shares of Common Stock, or in the case of any
merger or consolidation of the Company with or into another corporation
(other than a consolidation or merger in which the Company is the
continuing corporation and that does not result in any reclassification
or reorganization of the outstanding shares of Common Stock), or in the
case of any sale or conveyance to another corporation or entity of the
property of the Company as an entirety or substantially as an entirety
in connection with which the Company is dissolved, the Holder of this
Unit Warrant shall have the right thereafter (until the expiration of
the right of exercise of this Unit Warrant) to receive upon the
exercise hereof, for the same aggregate Per Unit Price payable
hereunder immediately prior to such event, the kind and amount of
shares of stock or other securities or property (including cash)
receivable upon such reclassification, reorganization, merger or
consolidation, or upon a dissolution following any such sale or
transfer, by a Holder of the number of shares of Common Stock of the
Company obtainable upon exercise of this Unit Warrant immediately prior
to such event; and if any reclassification also results in a change in
shares of Common Stock covered by Section 4.1.1 or 4.1.2, then such
adjustment shall be made pursuant to Sections 4.1.1, 4.1.2 and this
Section 4.1.3. The provisions of this Section 4.1.3 shall similarly
apply to successive reclassifications, reorganizations, mergers or
consolidations, sales or other transfers.
Section 4.1.4 In case of any consolidation of the
Company with, or merger of the Company with, or merger of the Company
into, another corporation (other than a consolidation or merger which
does not result in any reclassification or change of the outstanding
Common Stock), the corporation formed by such consolidation or merger
shall execute and deliver to the Holder a replacement Unit Warrant
providing that the holder of each Unit Warrant then outstanding or to
be outstanding shall have the right thereafter (until the stated
expiration of such
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Unit Warrant) to receive, upon exercise of such Unit Warrant the kind
and amount of shares of stock and other securities and property
receivable upon such consolidation or merger, by a holder of the number
of shares of Common Stock of the Company for which such Unit Warrant
might have been exercised immediately prior to such consolidation,
merger, sale or transfer. Such replacement Unit Warrant shall provide
for adjustments which shall be identical to the adjustments provided in
Section 4. The above provision of this Section shall similarly apply to
successive consolidations or mergers.
Section 4.2 Elimination of Fractional Interests. The Company
shall not be required to issue certificates representing fractions of
shares of Common Stock or Share Warrants upon the exercise of the Unit
Warrant, nor shall it be required to issue scrip or pay cash in lieu of
any fractional interests, it being the intent of the parties that all
fractional interests shall be eliminated by rounding any fraction down
to the nearest whole number of Share Warrants, shares of Common Stock
or other securities, properties or rights.
Section 5. Reservation and Listing.
The Company shall at all times reserve and keep
available out of its authorized shares of Common Stock, solely for the
purpose of issuance upon exercise of this Unit Warrant such number of
shares of Common Stock or other securities, properties or rights as
shall be issuable upon the exercise thereof. The Company covenants and
agrees that, upon exercise of this Unit Warrant and payment of the Per
Unit Price therefore, all shares of Common Stock, Share Warrants and
other securities issuable upon such exercise shall be duly and validly
issued, fully paid and non-assessable and not subject to preemptive
rights of any stockholder.
Section 6. Certain Notice Requirements.
Section 6.1 Holder's Right to Receive Notice. Nothing herein
shall be construed as conferring upon the Holder the right to vote or
consent as a stockholder for the election of directors or any other
matter, or as having any rights whatsoever as a stockholder of the
Company. If, however, at any time prior to the expiration of this Unit
Warrant and its exercise, any of the events described in Section 6.2
shall occur, then, in one or more of said events, the Company shall
give written notice of such event at least fifteen (15) days prior to
the date fixed as a record date or the date of closing the transfer
books for the determination of the stockholders entitled to such
dividend, distribution, conversion or exchange of securities or
subscription rights, or entitled to vote on such proposed dissolution,
liquidation, winding up or sale. Such notice shall specify such record
date or the date of the closing of the transfer books, as the case may
be. Notwithstanding the foregoing, the Company shall deliver to the
Holder a copy of each notice given to the other stockholders of the
Company at the same time and in the same manner that such notice is
given to the stockholders.
Section 6.2 Enumerated Events. The Company shall be required
to give the notice described in this Section 6 upon one or more of the
following events: (i) if the Company shall take a record of the holders
of its shares of Common Stock for the purpose of entitling them to
receive a dividend or distribution payable otherwise than in cash, or a
cash dividend or distribution payable otherwise than out of retained
earnings, as indicated by the accounting treatment of such dividend or
distribution on the books of the Company, or (ii) the Company shall
offer to all the holders of its Common Stock any additional shares of
capital stock of the Company or securities convertible into or
exchangeable for shares of capital stock of the Company, or any option,
right or warrant to subscribe therefore, or (iii) a dissolution,
liquidation or winding up of the Company (other than in connection with
a consolidation or merger) or a sale of all or substantially all of its
property, assets and business shall be proposed by the Company.
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Section 6.3 Change in Per Unit Price. The Company shall,
promptly after an event requiring a change in the Per Unit Price
pursuant to Section 6 hereof, send notice to the Holder of such event
and change (the "PRICE NOTICE"). The Price Notice shall describe the
event causing the change and the method of calculating same and shall
be certified as being true and accurate by the Company's President and
Chief Financial Officer.
Section 6.4 Transmittal of Notices. All notices, requests,
consents and other communications under this Unit Warrant shall be in
writing and shall be deemed to have been duly made on the date of
delivery if delivered personally or sent by overnight courier, with
acknowledgement of receipt to the party to which notice is given, or on
the fifth day after mailing if mailed to the party to whom notice is to
be given, by registered or certified mail, return receipt requested,
postage prepaid and properly addressed as follows: (i) if to the
registered Holder of the Unit Warrant, to the address of such Holder as
shown on the books of the Company, or (ii) if to the Company, to its
principal executive office.
Section 7. Miscellaneous.
Section 7.1 Amendments. The Company and the Placement Agent
may from time to time supplement or amend this Unit Warrant without the
approval of any of the Holders in order to cure any ambiguity, to
correct or supplement any provision contained herein which may be
defective or inconsistent with any other provisions herein, or to make
any other provisions in regard to matters or questions arising
hereunder which the Company and the Placement Agent may deem necessary
or desirable and which the Company and the Placement Agent deem shall
not adversely affect the interest of the Holders. All other
modifications or amendments shall require the written consent of the
party against whom enforcement of the modification or amendment is
sought.
Section 7.2 Headings. The headings contained herein are for
the sole purpose of convenience of reference, and shall not in any way
limit or affect the meaning or interpretation of any of the terms or
provisions of this Unit Warrant.
Section 7.3 Entire Agreement. This Unit Warrant (together with
the other agreements and documents being delivered pursuant to or in
connection with this Unit Warrant) constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements and understandings of the parties, oral
and written, with respect to the subject matter hereof.
Section 7.4 Binding Effect. This Unit Warrant shall inure
solely to the benefit of and shall be binding upon, the Holder and the
Company and their respective successors, legal representatives and
assigns, and no other person shall have or be construed to have any
legal or equitable right, remedy or claim under or in respect of or by
virtue of this Unit Warrant or any provisions herein contained.
Section 7.5 Governing Law; Submission to Jurisdiction. This
Unit Warrant shall be governed by and construed and enforced in
accordance with the laws of the State of New York, without giving
effect to conflict of laws. The Company hereby agrees that any action,
proceeding or claim against it arising out of, or relating in any way
to this Unit Warrant shall be brought and enforced in the courts of the
State of New York or of the United States of America for the Southern
District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. The Company hereby waives any
objection to such exclusive jurisdiction and that such courts represent
an inconvenient forum. Any process or summons to be served upon the
Company may be served by transmitting a copy thereof by registered or
certified mail, return
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receipt requested, postage prepaid, addressed to BIOPURE CORPORATION,
00 XXXXXX XXXXXX, XXXXXXXXX, XX 00000, ATTN: XXXX XXXXX, ESQ. Such
mailing shall be deemed personal service and shall be legal and binding
upon the Company in any action, proceeding or claim. The Company and
the Holder, by acceptance hereof, agree that the prevailing party(ies)
in any such action shall be entitled to recover from the other
party(ies) all of its reasonable attorneys' fees and expenses relating
to such action or proceeding and/or incurred in connection with the
preparation therefor.
Section 7.6 Waiver, Etc. The failure of the Company or the
Holder to at any time enforce any of the provisions of this Unit
Warrant shall not be deemed or construed to be a waiver of any such
provision, nor to in any way affect the validity of this Unit Warrant
or any provision hereof or the right of the Company or any Holder to
thereafter enforce each and every provision of this Unit Warrant. No
waiver of any breach, non-compliance or non-fulfillment of any of the
provisions of this Unit Warrant shall be effective unless set forth in
a written instrument executed by the party or parties against whom or
which enforcement of such waiver is sought; and no waiver of any such
breach, non-compliance or non-fulfillment shall be construed or deemed
to be a waiver of any other or subsequent breach, non-compliance or
non-fulfillment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK,
SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has caused this Unit Warrant to be
signed by its duly authorized officer as of the date first indicated above.
BIOPURE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President and CEO
[PLACEMENT AGENT'S WARRANT]
FORM TO BE USED TO EXERCISE UNIT WARRANT:
Biopure Corporation
Date:_________________, 200__
The undersigned hereby elects irrevocably to exercise the within Unit
Warrant and to purchase Units from Biopure Corporation and hereby makes payment
of $____________ (at the rate of $_________ per Unit) in payment. Please issue
the Units as to which this Unit Warrant is exercised in accordance with the
instructions given below.
----------------------------
Signature
NOTICE: THE SIGNATURE TO THIS FORM MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN UNIT WARRANT IN EVERY PARTICULAR WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER.
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name
---------------------------------------------------
(Print in Block Letters)
Address
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FORM TO BE USED TO ASSIGN UNIT WARRANT:
ASSIGNMENT
(To be executed by the registered Holder to effect a transfer of the
within Unit Warrant):
FOR VALUE RECEIVED,________________________ does hereby sell, assign
and transfer unto _______________________ the right to purchase Units from
Biopure Corporation (the "Company") evidenced by the within Unit Warrant and
does hereby authorize the Company to transfer such right on the books of the
Company.
Dated:___________________, 200_
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Signature
-------------------------------
Signature Guaranteed
NOTICE: THE SIGNATURE TO THIS FORM MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN UNIT WARRANT IN EVERY PARTICULAR WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY A
BANK, OTHER THAN A SAVINGS BANK, OR BY A TRUST COMPANY OR BY A FIRM HAVING
MEMBERSHIP ON A REGISTERED NATIONAL SECURITIES EXCHANGE.
EXHIBIT A
[Form of Share Warrant]
