1
Exhibit 4.3
PREFERRED STOCK INVESTMENT AGREEMENT
THIS PREFERRED STOCK INVESTMENT AGREEMENT ("Agreement") is dated as of
March 27, 1998 between SciClone Pharmaceuticals, Inc., a California corporation
("SciClone"), Halifax Fund, L.P., Themis Partners L.P. and Heracles Fund
(individually, an "Investor," and collectively, (the "Investors").
W I T N E S S E T H:
WHEREAS, SciClone desires to sell and issue to the Investors, and the
Investors wish to purchase from SciClone, an aggregate of 661,157 shares of
SciClone's Series C Convertible Preferred Stock, no par value, having the
rights, designations and preferences set forth in the Certificate of
Determination of SciClone (the "Certificate of Determination") in the identical
form and substance of Exhibit 2.1(c) attached hereto (the "Preferred Shares"),
on the terms and conditions set forth herein; and
WHEREAS, the Preferred Shares will be convertible into shares ("Common
Shares") of common stock, no par value, of SciClone ("Common Stock"), pursuant
to the terms of the Certificate of Determination, and the Investors will have
registration rights with respect to such Common Shares issuable upon conversion,
pursuant to the terms of that certain Registration Rights Agreement to be
entered into between SciClone and the Investors substantially in the form of
Exhibit 4.2(f) hereto ("Registration Rights Agreement"); and
WHEREAS, to induce the Investors to purchase the Preferred Shares,
SciClone has agreed to issue to each Investor a Warrant in the form attached as
Exhibit A (individually, a "Warrant," and collectively, the "Warrants");
NOW, THEREFORE, in consideration of the foregoing premises and the
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
PURCHASE AND SALE OF PREFERRED STOCK
Section 1.1 Purchase and Sale of Preferred Stock. Upon the following
terms and conditions, SciClone shall issue and sell to the Investors, and the
Investors shall purchase from SciClone, an aggregate of 661,157 Preferred
Shares. Each Investor shall purchase the number of Preferred Shares listed
opposite such Investor's name on the Schedule of Purchasers attached as Exhibit
1.1. hereto.
Section 1.2 Purchase Price. The aggregate purchase price for the
Preferred Shares (the "Purchase Price") shall be $4,000,000, or $6.05 per
share. Each Investor shall pay the aggregate purchase price listed opposite such
Investor's name on the Schedule of Purchasers attached as Exhibit 1.1 hereto.
2
Section 1.3 The Closing.
(a) The closing of the purchase and sale of the Preferred Shares
(the "Closing"), shall take place at the offices of the Investors' counsel, at
10:00 a.m., local time on the later of the following: (i) the date on which the
last to be fulfilled or waived of the conditions set forth in Article IV hereof
and applicable to the Closing shall be fulfilled or waived in accordance
herewith, or (ii) such other time and place and/or on such other date as the
Investors and SciClone may agree. The date on which the Closing occurs is
referred to herein as the "Closing Date."
(b) On the Closing Date, SciClone shall deliver to each Investor
(i) certificates (with the number of and denomination of such certificates as
reasonably requested by each Investor, representing the Preferred Shares
purchased hereunder by such Investor registered in the name of such Investor or
its nominee or deposit such Preferred Shares into accounts designated by such
Investors and (ii) a Warrant to purchase the number of shares of Common Stock
listed opposite such Investor's name on the Schedule of Warrants attached as
Exhibit 1.3 hereto, registered in the name of such Investor or its nominee in
such denominations as reasonably requested by such Investor, and each Investor
shall deliver to SciClone such Investor's share of the Purchase Price for the
number of Preferred Shares purchased by such Investor hereunder by wire transfer
in immediately available funds to an account designated in writing by SciClone.
In addition, each party shall deliver all documents, instruments and writings
required to be delivered by such party pursuant to this Agreement at or prior to
the Closing.
Section 1.4. Additional Shares of Common Stock. In connection with a
conversion by an Investor of any Preferred Shares, if the Market Conversion
Price (as defined in the Certificate of Determination) with respect to a
Conversion Date (as defined in the Certificate of Determination) shall be
greater than $6.00, subject to adjustment from time to time as set forth in
Section 3 of the Certificate of Determination, then, in addition to and not in
lieu of the shares of Common Stock issuable by reason of any Conversion Notice
(as defined in the Certificate of Determination) given by an Investor on such
Conversion Date or by reason of forced conversion pursuant to Section 3(d) of
the Certificate of Determination, an Investor may, by written notice to SciClone
on the Conversion Date, purchase from SciClone, at a price per share equal to
the Market Conversion Price, up to one (1) share of Common Stock (each an
"Additional Share" and, collectively, with all such other shares so purchased
and sold hereunder, "Additional Shares") for each share of Common Stock issuable
to such Investor by reason of any Conversion Notice given by such Investor on
such Conversion Date or by reason of forced conversion pursuant to Section 3(d)
of the Certificate of Determination, and failure to exercise the right to
purchase Additional Shares on the Conversion Date shall result in immediate
forfeiture of such right as to such Additional Shares and such Conversion Date.
The total price for such Additional Shares so to be issued incident to such a
Conversion Notice or forced conversion shall be paid by such Investor by wire
transfer of immediately available federal funds to such account as SciClone
shall specify in writing to such holder, or, at such Investor's election, to an
account of an agent designated by such Investor, and upon receipt, by SciClone,
or such agent, of such payment, SciClone shall
2
3
promptly and in no event later than three (3) business days thereafter issue the
certificate or certificates therefor pursuant to this Section 1.4, with release
of the funds from the agent to SciClone to be made against delivery of such
certificate or certificates. In the alternative to physical delivery of
certificates for Common Shares, if delivery of the Additional Shares pursuant to
any conversion hereunder may be effectuated by electronic book-entry through
Depository Trust Corporation ("DTC"), then delivery of Additional Shares
pursuant to such conversion shall, if requested by such holder, be closed and
settled on T+3 by book-entry transfer through DTC, and the Additional Shares in
connection with such conversion shall be deemed delivered by such book-entry
transfer. The parties agree to coordinate with DTC to accomplish this objective.
The conversion pursuant to Section 3 of the Certificate of Determination shall
be deemed to have been made immediately prior to the close of business on the
Conversion Date. The person or persons entitled to receive the Additional Shares
issuable upon such conversion shall be treated for all purposes as the record
holder or holders of such Additional Shares at the close of business on the
Conversion Date.
Section 1.5 Limitation on Holder's Right to Convert. Notwithstanding
anything to the contrary contained herein, no Preferred Share may be converted
by a holder to the extent that, after giving effect to Common Shares to be
issued pursuant to a Conversion Notice, the total number of Common Shares deemed
beneficially owned by such holder (other than by virtue of the ownership of
Series C Preferred Stock or ownership of other securities that have limitations
on a holder's rights to convert or exercise similar to those limitations set
forth herein), together with all Common Shares deemed beneficially owned by the
holder's "affiliates" (as defined in Rule 144 of the Act) that would be
aggregated for purposes of determining whether a group under Section 13(d) of
the Securities Exchange Act of 1934 exists, would exceed 4.9% of the total
issued and outstanding shares of the Corporation's Common Stock, provided that
each holder shall have the right to waive this restriction, in whole or in part,
upon 61 days prior notice to SciClone. The delivery of a Conversion Notice by
any holder shall be deemed a representation by such holder that it is in
compliance with this Section 1.5. A transferee of the Series C Preferred Stock
shall not be bound by this provision unless it expressly agrees to be so bound.
The term "deemed beneficially owned" as used in this Agreement shall exclude
shares that might otherwise be deemed beneficially owned by reason of the
convertibility of the Series C Preferred Stock.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of SciClone. SciClone hereby
makes the following representations and warranties to the Investors as of the
date hereof and on the Closing Date except as disclosed in the Schedule of
Exceptions hereto:
3
4
(a) Organization and Qualification; Material Adverse Effect.
SciClone is a corporation duly incorporated and existing in good standing under
the laws of the State of California and has the requisite corporate power to own
its properties and to carry on its business as now being conducted. SciClone
does not have any direct or indirect subsidiaries other than the subsidiaries
listed on Schedule 2.1(a) attached hereto. A "subsidiary" of SciClone is any
company of which more than 50% of the voting shares are owned by SciClone.
SciClone is duly qualified as a foreign corporation to do business and is in
good standing in every jurisdiction in which the nature of the business
conducted or property owned by it makes such qualification necessary other than
those in which the failure so to qualify would not have a Material Adverse
Effect. "Material Adverse Effect" means any adverse effect on the business,
operations, properties, prospects, or financial condition of the entity with
respect to which such term is used and which is material to such entity and
other entities controlling or controlled by such entity taken as a whole, and
any material adverse effect on the transactions contemplated under this
Agreement, the Registration Rights Agreement or any other agreement or document
contemplated hereby or thereby.
(b) Authorization; Enforcement. (i) SciClone has the requisite
corporate power and authority to enter into and perform this Agreement, the
Warrants and the Registration Rights Agreement and to issue the Preferred Shares
in accordance with the terms hereof, (ii) the execution and delivery of this
Agreement, the Warrants and the Registration Rights Agreement by SciClone and
the consummation by it of the transactions contemplated hereby and thereby,
including the issuance of the Preferred Shares, and the amendment provided for
in the Certificate of Determination, have been duly authorized by all necessary
corporate action, and no further consent or authorization of SciClone or its
Board of Directors or shareholders is required, (iii) this Agreement and the
Registration Rights Agreement and the Warrants have been or will have been duly
executed and delivered by SciClone, and (iv) this Agreement and the Registration
Rights Agreement and the Warrants constitute valid and binding obligations of
SciClone enforceable against SciClone in accordance with their terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of creditors' rights and remedies or by
other equitable principles of general application.
(c) Capitalization. The authorized capital stock of SciClone
consists of 75,000,000 shares of common stock and 10,000,000 shares of preferred
stock; there are 17,348,108 shares of common stock issued and outstanding as of
March 15, 1998 and no shares of preferred stock issued and outstanding. All of
the outstanding shares of SciClone's common stock have been validly issued and
are fully paid and nonassessable. No Common Shares are entitled to preemptive
rights; as of March 15, 1998, 3,650,211 Common Shares have been reserved for
issuance upon the exercise of options granted or to be granted under stock
option plans and 471,505 shares have been reserved for issuance under employee
stock purchase plans, and there are no outstanding warrants for Common Shares
(excluding the Warrant). There are no other scrip, rights to subscribe to, calls
or commitments of any character whatsoever relating to,
4
5
or securities or rights exchangeable or convertible into, any shares of capital
stock of SciClone, or contracts, commitments, understandings or arrangements by
which SciClone is or may become bound to issue additional shares of capital
stock of SciClone or options, warrants, scrip, rights to subscribe to, or
commitments to purchase or acquire, any shares, or securities or rights
convertible into shares, of capital stock of SciClone (except as contemplated by
this Agreement or disclosed in the SEC Documents (as defined below)). No holders
of SciClone stock (other than the Investor) are entitled to registration rights.
Attached hereto as Exhibit 2.1(b) are true and correct copies of SciClone's
Articles of Incorporation (the "Charter") as in effect on the date hereof, and
SciClone has furnished or made available to the Investor true and correct copies
of SciClone's By-Laws, as in effect on the date hereof (the "By-Laws"). The
Certificate of Determination has been duly filed in the State of California.
(d) Issuance of Common Shares. The Common Shares issuable upon conversion of the
Preferred Shares pursuant to the Certificate of Determination (the "Underlying
Shares") or upon the exercise of the Warrants (the "Warrant Shares") are duly
authorized and reserved for issuance and, upon such conversion in accordance
with the Certificate of Determination and/or exercise in accordance with the
Warrants, such Underlying Shares and Warrant Shares will be validly issued,
fully paid and non-assessable, free and clear of any and all liens, claims and
encumbrances, and such Underlying Shares and Warrant Shares when registered
under an effective registration statement under the Securities Act and
authorized for trading under the rules of the Nasdaq National Market System (as
defined below) will be entitled to be traded on the National Association of
Securities Dealers Automated Quotation system National Market ("Nasdaq National
Market System"), and the holders of such Underlying Shares and Warrant Shares
shall be entitled to all rights and preferences accorded to a holder of Common
Shares. The outstanding Common Shares are currently quoted on the Nasdaq
National Market System.
(e) No Conflicts. The execution, delivery and performance of this
Agreement and the Registration Rights Agreement and the Warrants by SciClone and
the consummation by SciClone of the transactions contemplated hereby and thereby
and the filing of the Certificate of Determination do not and will not (i)
result in a violation of SciClone's Charter or By-Laws or (ii) conflict with, or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture, patent,
patent license or instrument to which SciClone or any of its subsidiaries is a
party, or result in a violation of any federal, state, local or foreign law,
rule, regulation, order, judgment or decree (including Federal and state
securities laws and regulations) applicable to SciClone or any of its
subsidiaries or by which any property or asset of SciClone or any of its
subsidiaries is bound or affected (except for such conflicts, defaults,
terminations, amendments, accelerations, cancellations and violations as would
not, individually or in the aggregate, have a Material Adverse Effect); provided
that, for purposes of such representation as to Federal, state, local or foreign
law, rule or regulation, no representation is made herein with respect to any of
the same applicable solely to the Investor and not to SciClone. The business of
SciClone and its direct and indirect subsidiaries is not being conducted in
violation of any law, ordinance
5
6
or regulation of any governmental entity, except for violations which either
singly or in the aggregate do not and will not have a Material Adverse Effect.
Except for the Certificate of Determination SciClone is not required under
Federal, state, local or foreign law, rule or regulation to obtain any consent,
authorization or order of, or make any filing or registration with, any court or
governmental agency in order for it to execute, deliver or perform any of its
obligations under this Agreement and the Registration Rights Agreement and the
Certificate of Determination and the Warrants, or issue and sell the Preferred
Shares in accordance with the terms hereof and issue the Underlying Shares upon
conversion thereof and issue the Warrant Shares on exercise of the Warrants,
except for the registration provisions provided in the Registration Rights
Agreement, provided that, for purposes of the representation made in this
sentence, SciClone is assuming and relying upon the accuracy of the relevant
representations and agreements of the Investor herein.
(f) SEC Documents; Financial Statements. The Common Stock of
SciClone is registered pursuant to Section 12(g) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") and SciClone has filed all reports,
schedules, forms, statements and other documents required to be filed by it with
the Securities and Exchange Commission ("SEC") pursuant to the reporting
requirements of the Exchange Act, including material filed pursuant to Section
13(a) or 15(d), in addition to one or more registration statements and
amendments thereto heretofore filed by SciClone with the SEC (all of the
foregoing including filings incorporated by reference therein being referred to
herein as the "SEC Documents"). SciClone has delivered or made available to the
Investors true and complete copies of all SEC Documents (including, without
limitation, proxy information and solicitation materials and registration
statements) filed with the SEC since December 31, 1995 and all annual SEC
Documents filed with the SEC since December 31, 1994. SciClone has not provided
to the Investors any material non-public information or any information which,
according to applicable law, rule or regulation, should have been disclosed
publicly by SciClone but which has not been so disclosed. As of their respective
dates, SciClone's Form 10-K for the year ended December 31, 1996, and all
documents subsequently filed with the SEC (the "Current Filings"), together with
SciClone's fourth quarter 1997 earnings press release, dated February 2, 1998,
complied in all material respects with the requirements of the Exchange Act and
the rules and regulations of the SEC promulgated thereunder and other federal,
state and local laws, rules and regulations applicable to such Current Filings,
and none of the Current Filings contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. The Current Filings contain all
material information concerning SciClone, and no event or circumstance has
occurred which would require SciClone to disclose such event or circumstance in
order to make the statements in the Current Filings, taken as a whole, not
misleading on the date hereof or on the Closing Date but which has not been so
disclosed. The financial statements of SciClone included in the Current Filings
complied as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC or other
applicable rules and regulations with respect thereto at the time of filing.
Such financial statements were prepared in accordance with
6
7
generally accepted accounting principles applied on a consistent basis during
the periods involved (except (i) as may be otherwise indicated in such financial
statements or the notes thereto or (ii) in the case of unaudited interim
statements, to the extent they may not include footnotes or may be condensed or
summary statements) and fairly present in all material respects the financial
position of SciClone as of the dates thereof and the results of operations and
cash flows for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments).
(g) Principal Exchange/Market. The principal market on which the
Common Shares are currently traded is the Nasdaq National Market System.
(h) No Material Adverse Change. Since December 31, 1996, the date
through which the most recent report of SciClone on Form 10-K has been prepared
and filed with the SEC, a copy of which is included in the SEC Documents, no
Material Adverse Effect has occurred or exists with respect to SciClone or its
subsidiaries, except as otherwise disclosed or reflected in other SEC Documents
filed or press releases issued as of a date subsequent to December 31, 1996.
(i) No Undisclosed Liabilities. SciClone and its direct and
indirect subsidiaries have no liabilities or obligations not disclosed in the
SEC Documents, other than those liabilities incurred in the ordinary course of
SciClone's or its subsidiaries' respective businesses since December 31, 1996,
which liabilities, individually or in the aggregate, do not or would not have a
Material Adverse Effect on SciClone or its direct or indirect subsidiaries.
(j) No Undisclosed Events or Circumstances. No event or
circumstance has occurred or exists with respect to SciClone or its direct or
indirect subsidiaries or their respective businesses, properties, prospects,
operations or financial condition, which, under applicable law, rule or
regulation, requires public disclosure or announcement by SciClone but which has
not been so publicly announced or disclosed.
(k) No General Solicitation. Neither SciClone, nor any of its
affiliates, or, to its knowledge, any person acting on its or their behalf has
engaged in any form of general solicitation or general advertising (within the
meaning of Regulation D under the Securities Act of 1933, as amended (the
"Act")) in connection with the offer or sale of the Preferred Shares or Common
Shares.
(l) No Integrated Offering. Neither SciClone, nor any of its
affiliates, nor to its knowledge any person acting on its or their behalf has,
directly or indirectly, made any offers or sales of any security or solicited
any offers to buy any security, under circumstances that would require
registration of the Preferred Shares under the Act.
(m) Form S-3. SciClone is eligible to file the Registration
Statement (as defined in the Registration Rights Agreement) on Form S-3 under
the Act and rules promulgated thereunder, and Form S-3 is permitted to be used
for the resale by the
7
8
Investor to the public of the Registrable Securities (as defined in the
Registration Rights Agreement) under the Act and rules promulgated thereunder.
(n) Intellectual Property. SciClone (and/or its wholly-owned
subsidiaries) owns or has licenses to use certain patents, copyrights and
trademarks ("intellectual property") associated with its business. SciClone and
its subsidiaries have all intellectual property rights which are needed to
conduct the business of SciClone and its subsidiaries as it is now being
conducted or as proposed to be conducted as disclosed in the SEC Documents.
SciClone and its subsidiaries have no reason to believe that the intellectual
property rights which it owns are invalid or unenforceable or that the use of
such intellectual property by SciClone or its subsidiaries infringes upon or
conflicts with any right of any third party, and neither SciClone nor any of its
subsidiaries has received notice of any such infringement or conflict. SciClone
and its subsidiaries have no knowledge of any infringement of its intellectual
property by any third party.
(o) No Litigation. No litigation or claim (including those for
unpaid taxes) against SciClone or any of its subsidiaries is pending or, to
SciClone's knowledge, threatened, and no other event has occurred, which if
determined adversely would have a Material Adverse Effect on SciClone or would
materially adversely effect the transactions contemplated hereby.
(p) Brokers. SciClone has taken no action that would give rise to
any claim by any person for brokerage commissions, finder's fees or similar
payments by any Investor relating to this Agreement or the transactions
contemplated hereby.
Section 2.2 Representations and Warranties of the Investors. The
Investors hereby make the following representations and warranties to SciClone
as of the date hereof and on the Closing Date:
(a) Authorization; Enforcement. (i) The Investors have the
requisite power and authority to enter into and perform this Agreement and the
Registration Rights Agreement and to purchase the Preferred Shares being sold
hereunder and to acquire the Warrant Shares, (ii) the execution and delivery of
this Agreement and the Registration Rights Agreement by the Investors and the
consummation by each of them of the transactions contemplated hereby and thereby
have been duly authorized by all necessary partnership or other action, and
(iii) this Agreement and the Registration Rights Agreement constitute valid and
binding obligations of the Investors enforceable against the Investors in
accordance
8
9
with their terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally the enforcement of creditors' rights and
remedies or by other equitable principles of general application.
(b) No Conflicts. The execution, delivery and performance of this
Agreement and the Registration Rights Agreement and the Warrant and the
consummation by the Investors of the transactions contemplated hereby and
thereby do not and will not (i) result in a violation of the Investors'
organizational documents, or (ii) conflict with any agreement, indenture or
instrument to which any of the Investors is a party, or (iii) result in a
violation of any law, rule, or regulation, or any order, judgment or decree of
any court or governmental agency applicable to any of the Investors. The
Investors are not required to obtain any consent or authorization of any
governmental agency in order for it to perform its obligations under this
Agreement or the Registration Rights Agreement or the Warrants.
(c) Investment Representation. Each Investor is purchasing the
Preferred Shares and acquiring such Investor's Warrant for its own account and
not with a view to distribution in violation of any securities laws. Each
Investor has no present intention to sell the Preferred Shares, such Investor's
Warrant, Underlying Shares or Warrant Shares and each Investor has no present
arrangement (whether or not legally binding) to sell the Preferred Shares, such
Investor's Warrant, Underlying Shares or Warrant Shares to or through any person
or entity; provided, however, that by making the representations herein, each
Investor does not agree to hold the Preferred Shares, such Investor's Warrant,
Underlying Shares or Warrant Shares for any minimum or other specific term and
reserves the right to dispose of the Preferred Shares, the Warrants, Underlying
Shares or Warrant Shares at any time in accordance with Federal and state
securities laws applicable to such disposition. Each Investor is not the
Beneficial Owner (as defined in the Rights Agreement) of more than 4.9% of
SciClone's "common shares" (as defined in the Rights Agreement), including all
"common shares" which are aggregated with those of the Investor pursuant to a
Schedule 13D filed under Section 13(d) of the Securities Exchange Act of 1934.
(d) Accredited Investor. Each Investor is an "accredited
investor" as defined in Rule 501 promulgated under the Act. Each Investor has
such knowledge and experience in financial and business matters in general and
investments in particular, so that each Investor is able to evaluate the merits
and risks of an investment in the Preferred Shares and to protect its own
interests in connection with such investment. In addition (but without limiting
the effect of SciClone's representations and warranties contained herein), each
Investor has received such information as it considers necessary or appropriate
for deciding whether to purchase the Preferred Shares pursuant hereto.
(e) Rule 144. Each Investor understands that there is no public
trading market for the Preferred Shares, that none is expected to develop, and
that the Preferred Shares and Underlying Shares must be held indefinitely unless
such Preferred Shares or Underlying Shares are converted or registered under the
Act or an exemption from
9
10
registration is available. Each Investor has been advised or is aware of the
provisions of Rule 144 promulgated under the Act.
(f) Brokers. Each Investor has taken no action that would give
rise to any claim by any person for brokerage commissions, finder's fees or
similar payments by SciClone relating to this Agreement or the transactions
contemplated hereby.
(g) No Solicitation. No Investor was not contacted by SciClone
or any agent or representative of SciClone in connection with the offering of
Common Stock made pursuant to SciClone's registration statement on Form S-3
filed with the SEC on October 27, 1997.
(h) Reliance by SciClone. No Investor has not traded since
March 1, 1998, and will not trade until the Closing Date, in the public market
for SciClone stock or derivatives thereof. Each Investor understands that the
Preferred Shares are being, and the Underlying Shares will be, offered and sold
and the Warrants are being issued in reliance on a transactional exemption from
the registration requirements of Federal and state securities laws and that
SciClone is relying upon the truth and accuracy of the representations,
warranties, agreements, acknowledgments and understandings of each Investor set
forth herein in order to determine the applicability of such exemptions and the
suitability of such Investor to acquire the Preferred Shares, the Underlying
Shares and such Investor's Warrant.
ARTICLE III
COVENANTS
Section 3.1 Registration and Listing; Effective Registration. Until such
time as no Preferred Shares or Warrants are outstanding, SciClone will cause the
Common Shares to continue to be registered under Section 12(g) of the Exchange
Act, will comply in all respects with its reporting and filing obligations under
the Exchange Act, and will not take any action or file any document (whether or
not permitted by the Exchange Act or the rules thereunder) to terminate or
suspend such reporting and filing obligations. Until such time as no Preferred
Shares or Warrants are outstanding, SciClone shall continue the listing or
trading of the Common Shares on the Nasdaq National Market System and comply in
all respects with SciClone's reporting, filing and other obligations under the
bylaws or rules of the Nasdaq National Market System and any exchange or market
where the Common Shares are then traded. SciClone shall cause the Underlying
Shares and the Warrant Shares to be listed on the Nasdaq National Market System
and in addition on such other markets (e.g., the New York Stock Exchange or the
American Stock Exchange) on which the Common Shares are then trading prior to
the earlier of (i) the registration of the Underlying Shares or the Warrant
Shares under the Act or (ii) 90 days after the Closing hereunder, and shall
continue such listing(s) in accordance with SciClone's obligations under the
Registration Rights Agreement. As used herein and in the Registration Rights
Agreement, the Certificate of Determination, and the Warrants, the
10
11
term "Effective Registration" shall mean that all registration obligations of
SciClone pursuant to the Registration Rights Agreement have been satisfied, such
registration is not subject to any suspension or stop order, the prospectus for
the Underlying Shares issuable upon conversion of the Preferred Shares and the
Warrant Shares issuable upon exercise of the Warrants is current and such Common
Shares are listed for trading on the Nasdaq National Market System, and in
addition on such other markets (e.g., the New York Stock Exchange or the
American Stock Exchange) on which the Common Shares are then trading, and such
trading has not been suspended for any reason, and none of SciClone or any
direct or indirect subsidiary of SciClone is subject to any bankruptcy,
insolvency or similar proceeding.
Section 3.2 Certificates on Conversion and Warrants on Exercise.
(a) Upon any conversion by an Investor (or the holder of
Preferred Shares) of the Preferred Shares pursuant to the Certificate of
Determination, SciClone shall issue and deliver to such Investor (or holder)
within three (3) business days of the Conversion Date (as defined in the
Certificate of Determination) a new certificate or certificates for the number
of Preferred Shares which such Investor (or holder) has not yet elected to
convert but which are evidenced in part by the certificate(s) submitted to
SciClone in connection with such conversion (with the number of and denomination
of such new certificate(s) designated by such Investor or holder).
(b) Upon any partial exercise by an Investor (or the holder of a
Warrant) of a Warrant, SciClone shall issue and deliver to such Investor (or
holder) within three (3) business days of the date on which such Warrant is
exercised a new Warrant or Warrants representing the number of adjusted Warrant
Shares, in accordance with the terms of Section 2 of such Warrant.
Section 3.3 Replacement Certificates and Warrants.
(a) The certificate(s) representing the Preferred Shares held by
an Investor (or the holder) may be exchanged by such Investor (or such holder)
at any time and from time to time for certificates with different denominations
representing an equal aggregate number of Preferred Shares, as reasonably
requested by such Investor (or such holder) upon surrendering the same. No
service charge will be made for such registration or transfer or exchange.
(b) The Warrants are exchangeable at the option of an Investor
(or then holder of a Warrant) at the office of SciClone for another Warrant of
different denominations entitling the holder thereof to purchase in the
aggregate the same number of Warrant Shares as are purchasable under such
Warrant as reasonably requested by such Investor (or such holder) upon
surrendering the same. No service charge will be made for such transfer or
exchange.
11
12
Section 3.4 Expenses. SciClone shall pay, at the Closing and promptly
upon receipt of any further invoices relating to same, all reasonable due
diligence fees and expenses and reasonable attorneys' fees and expenses up to a
maximum amount of $10,000, incurred by the Investors in connection with the
preparation, negotiation, execution and delivery of this Agreement, the
Registration Rights Agreement, the Certificate of Determination, the Warrants
and the related agreements and documents and the transactions contemplated
hereunder and thereunder. At Closing, SciClone shall pay the amount due for such
fees and expenses (which may include fees and expenses estimated to be incurred
for completion of the transaction including post-closing matters). In the event
such amount is ultimately less than the actual fees and expenses, SciClone shall
promptly pay such deficiency upon receipt of an invoice regarding the same.
Section 3.5 Securities Compliance. SciClone shall notify the SEC and the
Nasdaq National Market System, in accordance with their requirements, of the
transactions contemplated by this Agreement, the Certificate of Determination,
the Registration Rights Agreement and the Warrants, and shall take all other
necessary action and proceedings as may be required and permitted by applicable
law, rule and regulation, for the legal and valid issuance of the Preferred
Shares hereunder, the Common Shares issuable upon conversion thereof and the
Warrant Shares.
Section 3.6 Intercompany Transactions; Restrictive Covenant Termination
Date. Until the Restrictive Covenant Termination Date (as defined below),
SciClone shall not, and shall not permit any subsidiary to, transfer assets to
any direct or indirect subsidiary other than for value and for a proper business
purpose. The term "Restrictive Covenant Termination Date" shall mean the date
which is the earlier of (i) the date which is the last day of the 12th fiscal
month following the Effective Registration ("Maximum Restrictive Covenant
Termination Date"), or (ii) such date on which 80% of the Preferred Shares have
been converted for Common Shares, provided that the Maximum Restrictive Covenant
Termination Date shall not occur until such time as SciClone has performed all
material obligations under this Agreement, the Registration Rights Agreement,
the Certificate of Determination and the Warrants which were required under the
terms hereof or thereof to have been so performed prior to such date, and
provided further that the Maximum Restrictive Covenant Termination Date shall be
deferred one and one-half (1-1/2) days for each day that there is no Effective
Registration following 90 days after the Closing Date.
Section 3.7 Dividends or Distributions. So long as over 20% of the
Preferred Shares remain outstanding, SciClone agrees that it shall not (a)
declare or pay any dividends or make any distributions to any holder or holders
of Common Shares, (b) purchase or otherwise acquire for value, directly or
indirectly, any Common Stock or other equity security of SciClone either junior
to or on parity with the Preferred Shares as to priority in payment of dividends
and amounts payable in liquidation, or (c) authorize or issue any other equity
security senior to the Preferred Shares.
12
13
Section 3.8 No Senior Securities. Until the Restrictive Covenant
Termination Date, SciClone agrees that neither SciClone nor any direct or
indirect subsidiary of SciClone shall create, incur, assume, guarantee, secure
or in any manner become liable in respect of any indebtedness, or permit any
liens, claims or encumbrances to exist against SciClone or any direct or
indirect subsidiary of SciClone or any of their assets, except for such
indebtedness, liens, claims or encumbrances incurred in the ordinary course of
business consistent with past practices (which permitted debts include, without
limitation, license fees, royalties and pursuant to any lease) and except for a
working capital facility in form and substance and with a lender reasonably
satisfactory to the Investor, which working capital facility shall not exceed
$1,000,000.
Section 3.9 Notices. SciClone agrees to provide all holders of Preferred
Shares with copies of all notices and information, including without limitation
notices and proxy statements in connection with any meetings, that are provided
to the holders of shares of Common Shares, contemporaneously with the delivery
of such notices or information to such Common Share holders.
Section 3.10 Right of First Refusal. Until the earlier of (a) twelve
months after the Closing Date or (b) when the closing bid price of the Common
Stock is equal to or greater than $6.00 for 20 consecutive Trading Days (as
defined in the Certificate of Determination), SciClone shall not offer, sell,
contract or otherwise issue or deliver any securities convertible into,
exercisable for, or exchangeable for Common Shares in a Convertible Private
Placement (as defined in the SciClone Certificate of Determination as in effect
on the date hereof) unless such offer, sale, contract, issuance or delivery is
first offered to the Investors. SciClone shall make such offer by providing the
Investors with written notice of SciClone's intention to enter into the
Convertible Private Placement together with a term sheet containing the economic
terms and significant provisions of the Convertible Private Placement and any
other information reasonably requested by the Investors (the "Offer"). Such
Offer shall be given with respect to each Convertible Private Placement
contemplated by SciClone. Each Investor shall have eight (8) business days from
receipt of the Offer to deliver a written notice to SciClone that such Investor
wishes to accept the Offer in whole (subject to satisfactory due diligence and
reasonably acceptable definitive documentation) for the Private Placement. If an
Investor rejects the Offer or fails to respond within such eight (8) business
day period, then SciClone shall be permitted to complete such Private Placement
without such Investor on terms and conditions substantially the same as those
contained in the Offer. If any Private Placement is contemplated on terms and
conditions not substantially the same as those contained in the Offer, then such
Private Placement shall be deemed a new Private Placement and the Investors
shall again be entitled to receive an Offer for such Private Placement on such
new terms and conditions (and/or with such new definitive documentation if
applicable). If an Investor accepts the Offer but fails to close the Private
Placement within twenty (20) business days of acceptance of the Offer for any
reason other than (i) any breach by SciClone of its obligations hereunder or
thereunder, (ii) any delay by SciClone or reasonable delay by such Investor in
connection with execution of definitive documentation, (iii) failure of the
parties to reasonably agree on
13
14
definitive documentation, or (iv) reasonable dissatisfaction by such Investor
with their due diligence examination, the Offer to such Investor shall terminate
and such Investor shall not be entitled to receive any Offer in any future
Private Placement.
Section 3.11 Reservation of Stock Issuable Upon Conversion and Upon
Exercise of the Warrants. SciClone shall at all times reserve and keep available
out of its authorized but unissued Common Shares, solely for the purpose of
effecting the conversion of the Preferred Shares and the exercise of the
Warrants, such number of its Common Shares as shall from time to time be
sufficient to effect the conversion of all outstanding Preferred Shares and the
exercise of the Warrants, and if at any time the number of authorized but
unissued Common Shares shall not be sufficient to effect the conversion of all
the then outstanding Preferred Shares and the exercise of the Warrants, SciClone
will take such corporate action as may, in the opinion of its counsel, be
necessary to increase its authorized but unissued Common Shares to such number
of shares as shall be sufficient for such purpose, including without limitation
engaging in best efforts to obtain the requisite shareholder approval. Without
in any way limiting the foregoing, SciClone agrees to reserve and at all times
keep available solely for purposes of conversion of Preferred Shares and the
exercise of the Warrants 100,000 authorized but unissued Common Shares, which
number may be reduced by the number of Common Shares actually delivered pursuant
to conversion of Preferred Shares under the Certificate of Determination or
exercise of the Warrants and shall be appropriately adjusted for any stock
split, reverse split, stock dividend or reclassification of the Common Stock. If
at any time the number of authorized but unissued Common Shares is not
sufficient to effect the conversion of all the then outstanding Preferred Shares
or the exercise of the Warrants, the Investors shall be entitled to the
redemption rights provided in the Registration Rights Agreement.
Section 3.12 Limitations on Offerings. SciClone will not sell any equity
securities if the effect of such sale would be to reduce the number of Common
Shares that SciClone can issue to the Investors upon conversion of the
Preferred Shares without the approval, under the Nasdaq listing requirements, of
the shareholders of SciClone (the "Nasdaq Shareholders Approval Requirement").
SciClone shall not offer or sell any equity securities, or any securities
convertible into or exchangeable or exercisable for equity securities (other
than a private placement of Common Stock to an affiliate of The Palladin Group,
L.P., a registered public offering of Common Stock (other than a continuous
offering pursuant to Rule 415), Common Stock issued in connection with the
acquisition of product rights, a private placement of Common Stock in which the
purchasers in such placement are not permitted to assign, sell, transfer or
otherwise dispose of such Common Stock for a period of at least one (1) year
from the date of purchase, and other shares or options issued or which may be
issued pursuant to SciClone's employee, director or consultant stock option
plans or shares issued upon exercise of options, warrants or rights outstanding
on the Closing Date listed in the SEC Documents), during the three (3) month
period commencing with the Closing Date. SciClone will not sell any equity
securities during the period beginning on the 91st day following the Closing
Date and ending on the 180th day following the Closing Date unless (i) the
Registration Statement (as defined in the Registration Rights Agreement) is
effective, and (ii) either (A) such equity securities are sold at a purchase
price per share equal to or greater than the Closing Price, or (B) legal
counsel to SciClone provides an opinion to the holders of Preferred Shares that
such issuance will not reduce the number of Common Shares that SciClone can
issue to the holders as a result of the application of the Nasdaq Shareholder
Approval Requirement.
Section 3.13 SciClone Redemption Option. SciClone shall, at all times,
maintain enough cash available to cover the cost of any possible redemption
which SciClone may elect to effect pursuant to Section 3(c)(i), Section 3(c)(vi)
or Section 3(c)(viii) of the Certificate of Determination. The amount of such
cash to be maintained shall be reduced ratably in accordance with the amount of
Series C Preferred Stock that
14
15
remains outstanding. No cash belonging to SciClone is required to be maintained
in an escrow account at any time for purposes of such possible future redemption
of Preferred Shares.
Section 3.14 Approval of Adjustment to Conversion Price. Each Investor
agrees, consistent with and subject to any fiduciary duties it may owe those for
whom it holds the Preferred Shares, not to unreasonably withhold approval of any
adjustment to the Conversion Price or corresponding amendment to the Certificate
of Determination as provided for in the fourth sentence of Section 3(n) of the
Certificate of Determination.
Section 3.15 Company's Failure to Timely Convert. If within ten (10)
business days of SciClone's or SciClone's Transfer Agent's receipt of the
certificates representing Preferred Shares to be converted (as provided in the
Certificate of Determination) and the originally executed Conversion Notice (as
defined in the Certificate of Determination), SciClone shall fail to issue a
certificate to a holder or credit the holder's balance account with the DTC for
the number of shares of Common Stock to which such holder is entitled upon such
holder's conversion of Preferred Shares or to issue a new certificate
representing the number of Preferred Shares to which such holder is entitled
pursuant to the Certificate of Determination, in addition to all other available
remedies which such holder may pursue hereunder and under the Certificate of
Determination (including indemnification pursuant to Section 7.5 hereof),
SciClone shall pay additional damages to such holder on each date after such
tenth (10th) business day that such conversion is not timely effected in an
amount equal to one percent (1%) of the product of (A) the number of shares of
Common Stock not issued to the holder on a timely basis pursuant to Section 3(h)
of the Certificate of Determination and to which such holder is entitled and, in
the event SciClone has failed to deliver a certificate representing Preferred
Shares to the holder on a timely basis, the number of shares of Common Stock
issuable upon conversion of the Preferred Shares represented by such
certificate, calculated as of the last possible date which SciClone could have
issued such certificate to such holder without violating Section 3(h) of the
Certificate of Determination and (B) the closing bid price of the Common Stock
on the last possible date which SciClone could have issued such Common Stock and
such certificate, as the case may be, to such holder without violating Section
3(h) of the Certificate of Determination.
ARTICLE IV
CONDITIONS
Section 4.1 Conditions Precedent to the Obligation of SciClone to Sell
the Preferred Shares. The obligation hereunder of SciClone to issue and/or sell
the Preferred Shares and Warrants to the Investors is subject to the
satisfaction, at or before the Closing, of each of the conditions set forth
below. These conditions are for SciClone's sole benefit and may be waived by
SciClone at any time in its sole discretion.
(a) Accuracy of the Investors' Representations and Warranties.
The representations and warranties of each Investor shall be true and correct in
all material respects as of the date when made and as of the Closing Date as
though made at that time (except for representations and warranties that speak
as of a particular date).
(b) Performance by the Investors. Each Investor shall have
performed all agreements and satisfied all conditions required to be performed
or satisfied by the Investors at or prior to the Closing.
(c) No Injunction. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction which
prohibits the consummation of any of the transactions contemplated by this
Agreement or the Registration Rights Agreement or the Certificate of
Determination or the Warrants.
Section 4.2 Conditions Precedent to the Obligation of the Investors to
Purchase the Preferred Shares. The obligation hereunder of each Investor to
acquire and pay for the Preferred Shares and acquire the Warrants is subject to
the satisfaction, at or before the Closing, of each of the conditions set forth
below. These conditions are for the Investors' sole benefit and may be waived by
any or all of the Investors at any time in such Investor's sole discretion.
(a) Accuracy of SciClone's Representations and Warranties. The
representations and warranties of SciClone shall be true and correct in
15
16
all material respects as of the date when made and as of the Closing Date as
though made at that time (except for representations and warranties that speak
as of a particular date).
(b) Performance by SciClone. SciClone shall have performed all
agreements and satisfied all conditions required to be performed or satisfied by
SciClone at or prior to the Closing.
(c) NASDAQ. From the date hereof to the Closing Date, trading in
SciClone's Common Shares shall not have been suspended by the SEC or the Nasdaq
National Market System, and trading in securities generally as reported by
Nasdaq National Market System shall not have been suspended or limited, and the
Common Shares shall not have been delisted from any exchange or market where
they are currently listed, and the market value of the outstanding Common Shares
shall not have decreased below $1.50 per share.
(d) No Injunction. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction which
prohibits the consummation of any of the transactions contemplated by this
Agreement or the Registration Rights Agreement or the Certificate of
Determination or the Warrants.
(e) Opinion of Counsel. At the Closing the Investors shall have
received an opinion of counsel to SciClone in the form attached hereto as
Exhibit 4.2(e) and such other opinions, certificates and documents as the
Investor or their counsel shall reasonably require incident to the Closing.
(f) Registration Rights Agreement. SciClone and the Investors
shall have executed and delivered the Registration Rights Agreement in the form
and substance of Exhibit 4.2(f) attached hereto.
(g) Adverse Changes. Since February 2, 1998, no event which had
or is likely to have a Material Adverse Effect on SciClone or any of its direct
or indirect subsidiaries shall have occurred.
(h) Officer's Certificate. SciClone shall have delivered to the
Investors a certificate in form and substance reasonably satisfactory to the
Investors, executed by an officer of SciClone, certifying as to satisfaction of
closing conditions, incumbency of signing officers, charter, by-laws, good
standing and authorizing resolutions of SciClone.
(i) Certificate of Determination Filed. The Investors shall have
received copies of the filed Certificate of Determination.
(j) Warrants. Each Investor shall have received such Investor's
Warrant executed by SciClone in the form and substance of Exhibit 1 hereto.
16
17
ARTICLE V
LEGEND AND STOCK
Each certificate representing the Preferred Shares and the Warrants
shall be stamped or otherwise imprinted with a legend substantially in the
following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD OR OFFERED FOR SALE
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT AND ANY
APPLICABLE STATE SECURITIES LAW OR UPON DELIVERY TO THIS CORPORATION OF AN
OPINION OF LEGAL COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION THAT AN
EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS IS AVAILABLE.
SciClone agrees to reissue certificates representing the Preferred
Shares and the Warrants without the legend set forth above at such time as (i)
the holder thereof is permitted to dispose of such Preferred Shares and/or the
Warrants pursuant to Rule 144(k) under the Act, or (ii) such Preferred Shares
and/or the Warrants are sold to a purchaser or purchasers who (in the opinion of
counsel to the seller or such purchaser(s), in form and substance reasonably
satisfactory to SciClone and its counsel) are able to dispose of such shares
publicly without registration under the Act.
Prior to the Registration Statement (as defined in the Registration
Rights Agreement) being declared effective, any Common Shares issued pursuant to
conversion of Preferred Shares or exercise of the Warrants shall bear a legend
in the same form as the legend indicated above. Upon such Registration Statement
becoming effective, SciClone agrees to issue instructions to its transfer agent
to issue new certificates representing Common Shares sold pursuant to the
Registration Statement without such legend upon such terms as shall be
reasonably satisfactory to the Investors. Any Common Shares issued pursuant to
conversion of Preferred Shares or exercise of the Warrants after the
Registration Statement has become effective shall be free and clear of any
legends, transfer restrictions and stop orders.
ARTICLE VI
MISCELLANEOUS
Section 7.1 Stamp Taxes; Agent Fees. SciClone shall pay all stamp and
other taxes and duties levied in connection with the issuance of the Preferred
Shares pursuant hereto and the Common Shares issued upon conversion thereof or
upon exercise of the Warrants.
17
18
Section 7.2 Specific Enforcement; Consent to Jurisdiction.
(a) SciClone and the Investors acknowledge and agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent or cure breaches of the provisions of
this Agreement and to enforce specifically the terms and provisions hereof, this
being in addition to any other remedy to which any of them may be entitled by
law or equity.
(b) SciClone and the Investors (i) hereby irrevocably submit to
the exclusive jurisdiction of the United States District Court, the New York
State courts and other courts of the United States sitting in New York County,
New York for the purposes of any suit, action or proceeding arising out of or
relating to this Agreement and (ii) hereby waive, and agree not to assert in any
such suit action or proceeding, any claim that it is not personally subject to
the jurisdiction of such court, that the suit, action or proceeding is brought
in an inconvenient forum or that the venue of the suit, action or proceeding is
improper. SciClone and the Investors consent to process being served in any such
suit, action or proceeding by mailing a copy thereof to such party at the
address in effect for notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice
thereof. Nothing in this paragraph shall affect or limit any right to serve
process in any other manner permitted by law.
Section 7.3 Entire Agreement; Amendment. This Agreement, together with
the Registration Rights Agreement, the Warrants and the agreements and documents
executed in connection herewith and therewith, contains the entire understanding
of the parties with respect to the matters covered hereby and thereby and,
except as specifically set forth herein or therein, neither SciClone nor the
Investors make any representation, warranty, covenant or undertaking with
respect to such matters. No provision of this Agreement may be waived or amended
other than by a written instrument signed by the party against whom enforcement
of any such amendment or waiver is sought.
Section 7.4 Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be effective upon
actual receipt of such notice. The addresses for such communications shall be:
to SciClone: SciClone Pharmaceuticals, Inc.
000 Xxxxxxxx Xxxxxx Xxxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxx X. Xxxxx
with copies to: Xxxx, Xxxx, Xxxx & Freidenrich LLP
000 Xxxxxxxx Xx.
00
00
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxxx Xxxxxx, Esq.
to the Investors: Halifax Fund, L.P.
c/o The Palladin Group
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx
Thermis Partners L.P.
Heracles Fund
(c/o) Promethean Investment Group L.L.C.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn: E. Xxxx Xxx
with copies to: Xxxxxx & Xxxxxx
000 Xxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Fax: (000) 000-0000
Attn: X. Xxxxxxxxx Xxxxxx, Esq.
Any party hereto may from time to time change its address for notices by
giving at least 10 days' written notice of such changed address to the other
parties hereto.
Section 7.5 Indemnity. Each party shall indemnify each other party
against any loss, cost or damages (including reasonable attorney's fees but
excluding consequential damages) incurred as a result of such parties' breach of
any representation, warranty, covenant or agreement in this Agreement.
Section 7.6 Waivers. No waiver by any party of any default with respect
to any provision, condition or requirement of this Agreement shall be deemed to
be a continuing waiver in the future or a waiver of any other provision,
condition or requirement hereof, nor shall any delay or omission of any party to
exercise any right hereunder in any manner impair the exercise of any such right
accruing to it thereafter.
Section 7.7 Headings. The headings herein are for convenience only, do
not constitute a part of this Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
Section 7.8 Successors and Assigns. Except as otherwise provided herein,
this Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. The parties hereto may amend this
Agreement without notice to or the consent of any third party. SciClone may not
assign this Agreement or any rights or obligations hereunder without the prior
written consent of the Investors (which consent may be withheld for any reason
in its sole discretion), except that SciClone may assign this Agreement in
connection with a merger, acquisition or the sale of all or substantially all of
its assets provided that SciClone is not released from any of its obligations
hereunder, such assignee assumes all obligations of SciClone hereunder, and
appropriate adjustment of the provisions contained in this Agreement, the
19
20
Registration Rights Agreement, the Certificate of Determination and the
Warrants is made, in form and substance satisfactory to the Investors, to place
the Investors in the same position as it would have been but for such
assignment, in accordance with the terms of the Certificate of Determination and
the Warrants. The Investors may not assign this Agreement (in whole or in part)
or any rights or obligations hereunder without the prior written consent of
SciClone (which consent shall not be unreasonably withheld) in connection with
any sale or transfer all or any portion of the Preferred Shares or the Warrants
held by the Investors; provided that upon giving prior written notice to
SciClone, an Investor may assign this Agreement (in whole or in part) or any
rights or obligations hereunder to an affiliate of such Investor without
SciClone's consent.
Section 7.9 No Third Party Beneficiaries. This Agreement is intended for
the benefit of the parties hereto and their respective permitted successors and
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
Section 7.10 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York without regard to such state's principles of conflict of laws.
Section 7.11 Survival. The representations and warranties and the
agreements and covenants of SciClone and the Investors contained herein shall
survive the Closing.
Section 7.12 Execution. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement, it
being understood that all parties need not sign the same counterpart.
Section 7.13 Publicity. SciClone agrees that it will not disclose, and
will not include in any public announcement, the name of the Investors without
such Investor's consent (which consent shall not be unreasonably withheld),
unless and until such disclosure is required by law or applicable regulation,
and then only to the extent of such requirement. SciClone agrees that it will
deliver a copy of any public announcement regarding the matters covered by this
Agreement or any agreement and document executed herewith to the Investors and
any public announcement including the name of an Investor to such Investor,
prior to publication of such announcements.
Section 7.14 Attorney's Fees. An Investor shall be entitled to recover
from SciClone the reasonable attorney's fees and expenses incurred by such
Investor in connection with enforcement by the Investor of any obligation of
SciClone under this Agreement or the Certificate of Determination.
20
21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
INVESTOR:
SCICLONE:
HALIFAX FUND, L.P.
SCICLONE PHARMACEUTICALS, INC. By: THE PALLADIN GROUP, L.P.
Attorney-in-fact
By: PALLADIN CAPITAL
By: _________________________ MANAGEMENT, L.L.C.,
NAME: Xxxxxx X. Xxxxxxx General Partner
Title: President and Chief Executive Officer
By: ____________________________
Name: Xxxxxxx X. Xxxxxx
Title: Duly Authorized Signatory
INVESTOR:
THEMIS PARTNERS L.P.
By: Promethean Investment Group L.L.C.,
its General Partner
By: ____________________________
Name: E. Xxxx Xxx
Title: Duly Authorized Signatory
INVESTOR:
HERACLES FUND
By: Promethean Investment Group L.L.C.,
its Investment Advisor
By: ____________________________
Name: E. Xxxx Xxx
Title: Duly Authorized Signatory
21
22
EXHIBIT 1.1
SCHEDULE OF PURCHASERS
Investor Number of Shares Aggregate Purchase Price
-------- ---------------- ------------------------
Halifax Fund, L.P. 413,223 $2,500,000
Themis Partners L.P. 82,645 $500,000
Heracles Fund 165,289 $1,000,000
TOTAL: 661,157 $4,000,000
22
23
EXHIBIT 1.3
SCHEDULE OF WARRANTS
Investor Number of Shares Subject to Warrant
-------- -----------------------------------
Halifax Fund, L.P. 62,500
Themis Partners, L.P. 12,500
Heracles Fund 25,000
23
24
Exhibit A
Form of Warrant
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. IT MAY NOT BE SOLD
OR OFFERED FOR SALE EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAW OR AN
APPLICABLE EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS.
SCICLONE PHARMACUETICALS, INC.
Common Stock Purchase Warrant
SciClone Pharmaceuticals, Inc. a California corporation (the "Company"),
hereby certifies that for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, __________________, having an
address at _____________________________________________________________________
(the "Purchaser") or any other Warrant Holder is entitled, on the terms and
conditions set forth below, to purchase from the Company at any time beginning
on the date hereof and ending sixty (60) months after the date hereof, _______
fully paid and nonassessable shares of Common Stock, no par value, of the
Company (the "Common Stock"), at the Purchase Price per share set forth below.
1. Definitions.
(a) the term "Warrant Holder" shall mean the Purchaser or any
assignee of all or any portion of this Warrant.
(b) the term "Warrant Shares" shall mean the Shares of Common
Stock or other securities issuable upon exercise of this Warrant.
(c) the term "Registration Rights Agreement" shall mean the
Registration Rights Agreement, dated on or about the date hereof,
between the Company and the Purchaser.
(d) the term "Agreement" shall mean the Preferred Stock
Investment
25
Agreement, dated March 27, 1998, between the Company and the
Purchaser.
(e) the term "Preferred Shares" shall mean the shares of Series
C Preferred Stock of the Company.
(f) The term "Purchase Price" shall be 150% of the Closing
Price as defined in the Certificate of Determination.
2. Exercise of Warrant.
This Warrant may be exercised by the Warrant Holder, in whole or in
part, at any time and from time to time, on or prior to the fifth anniversary of
the date hereof, by either of the following methods:
(a) The Warrant Holder may surrender this Warrant, together with
cash, a check or wire transfer representing the aggregate
purchase price of the number of Warrant Shares for which the
Warrant is being surrendered and the form of subscription at the
end hereof duly executed by Warrant Holder ("Subscription
Notice"), at the offices of the Company or any transfer agent for
the Common Stock; or
(b) The Warrant Holder may also exercise this Warrant, in whole
or in part, in a "cashless" or "net-issue" exercise by delivering
to the offices of the Company or any transfer agent for the
Common Stock this Warrant, together with a Subscription Notice
specifying the number of Warrant Shares to be delivered to such
Warrant Holder ("Deliverable Shares") and the number of Warrant
Shares with respect to which this Warrant is being surrendered in
payment of the aggregate Purchase Price for the Deliverable
Shares ("Surrendered Shares"); provided that the Purchase Price
multiplied by the number of Deliverable Shares shall not exceed
the value of the Surrendered Shares; and provided further that
the sum of the number of Deliverable Shares and the number of
Surrendered Shares so specified shall not exceed the aggregate
Warrant Shares represented by this Warrant. For the purposes of
this provision, each Warrant Share as to which this Warrant is
surrendered will be attributed a value equal to the fair market
value (as defined below) of the Warrant Share minus the Purchase
Price of the Warrant Share.
In the event that the Warrant is not exercised in full, the number of
Warrant Shares shall be reduced by the number of such Warrant Shares for which
this Warrant is exercised, and the Company, at its expense, shall forthwith
issue and deliver or upon the order of Warrant Holder a new Warrant of like
tenor in the name of Warrant Holder or as Warrant Holder (upon payment by
Warrant Holder of any applicable transfer taxes) may request, reflecting such
adjusted Warrant Shares.
3. Delivery of Stock Certificates.
2
26
(a) Subject to the terms and conditions of this Warrant, as soon
as practicable after the exercise of this Warrant in full or in part, and in any
event within three (3) "trading days" (as defined below) thereafter, the Company
shall transmit the certificates (together with any other stock or other
securities or property to which Warrant Holder is entitled upon exercise) by
messenger or overnight delivery service to reach the address designated by such
holder within three (3) trading days after the receipt of the Warrant, the
Subscription Notice and payment of the aggregate Purchase Price in Section 2(a)
or 2(b), as appropriate ("T+3").
In lieu of delivering physical certificates representing the
Common Stock issuable upon exercise, provided the Company's transfer agent is
participating in the Depository Trust Company ("DTC") Fast Automated Securities
Transfer ("FAST") program, upon request of the Warrant Holder, the Company shall
use its best efforts to cause its transfer agent to electronically transmit the
Common Stock issuable upon exercise to the Warrant Holder by crediting the
account of Warrant Holder's prime broker with DTC through its Deposit Withdrawal
Agent Commission ("DWAC") system. The time periods for delivery described in the
immediately preceding paragraph shall apply to the electronic transmittals
described herein.
The term "trading day" means a day on which there is trading on
the Nasdaq National Market System or such other principal market or exchange on
which the Common Stock is then traded.
(b) This Warrant may not be exercised as to fractional shares of
Common Stock. In the event that the exercise of this Warrant, in full or in
part, would result in the issuance of any fractional share of Common Stock, then
in such event the Warrant Holder shall be entitled to cash equal to the fair
market value of such fractional share on the date of delivery of the
Subscription Notice. For purposes of this Warrant, "fair market value" shall
equal the closing trading price of the Common Stock, on the Nasdaq National
Market System, the American Stock Exchange or the New York Stock Exchange,
whichever is the principal trading exchange or market for the Common Stock (the
"Principal Market") on the date of determination or, if the Common Stock is not
listed or admitted to trading on any national securities exchange or quoted on
the Nasdaq National Market System, the average of the closing bid and asked
prices on the over-the-counter market as furnished by any New York Stock
Exchange member firm reasonably selected from time to time by the Company for
that purpose and reasonably acceptable to the Warrant Holder, or, if the Common
Stock is not listed or admitted to trading on any national securities exchange
or quoted on the Nasdaq National Market System or traded over-the-counter and
the average price cannot be determined a contemplated above, the fair market
value of the Common Stock shall be as reasonably determined in good faith by the
Company's Board of Directors with the concurrence of the Warrant Holder.
4. (A) Representations and Covenants of the Company.
(a) The Company shall comply with its obligations under the
Registration Rights Agreement with respect to the Warrant Shares, including,
without limitation, the Company's obligation to have filed and declared
effective a registration statement registering the Warrant Shares under the
Securities Act of 1933, as amended (the "Act").
3
27
(b) The Company shall take all necessary action and proceedings
as may be required and permitted by applicable law, rule and regulation,
including, without limitation, the notification of the Principal Market, for the
legal and valid issuance of this Warrant and the Warrant Shares to the Warrant
Holder under this Warrant.
(c) From the date hereof through the last date on which this
Warrant is exercisable, the Company shall take all steps reasonably necessary
and within its control to insure that the Common Stock remains listed on the
Principal Market and shall not amend its Articles of Incorporation or Bylaws so
as to adversely affect any rights of the Warrant Holder under this Warrant.
(d) The Warrant Shares, when issued in accordance with the terms
hereof, will be duly authorized and, when paid for or issued in accordance with
the terms hereof, shall be validly issued, fully paid and non-assessable. The
Company has authorized and reserved for issuance to Warrant Holder the requisite
number of shares of Common Stock to be issued pursuant to this Warrant.
(e) The Company shall at all times reserve and keep available,
solely for issuance and delivery as Warrant Shares hereunder, such number of
shares of Common Stock as shall from time to time be issuable pursuant to this
Warrant.
(f) With a view to making available to Warrant Holder the
benefits of Rule 144 promulgated under the Act and any other rule or regulation
of the Securities and Exchange Commission ("SEC") that may at any time permit
Warrant Holder to sell securities of the Company to the public without
registration, the Company agrees to use its reasonable best efforts, while this
Warrant is outstanding, to:
(i) make and keep public information available, as those
terms are understood and defined in Rule 144, at all times;
(ii) file with the SEC in a timely manner all reports
and other documents required of the Company under the Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); and
(iii) furnish to any Warrant Holder forthwith upon
request a written statement by the Company that it has complied with the
reporting requirements of Rule 144 and of the Act and the Exchange Act, a copy
of the most recent annual or quarterly report of the Company, and such other
reports and documents so filed by the Company as may be reasonably requested to
permit any such Warrant Holder to take advantage of any rule or regulation of
the SEC permitting the selling of any such securities without registration.
(B) Representations and Covenants of the Purchaser.
The Purchaser shall not resell Warrant Shares, unless
such resale is pursuant to an effective registration statement under the Act or
pursuant to an applicable exemption from such registration requirements.
4
28
5. Adjustment of Purchase Price and Number of Shares. The number of and
kind of securities purchasable upon exercise of this Warrant and the Purchase
Price shall be subject to adjustment from time to time as follows:
(a) Subdivisions, Combinations and other Issuances. If the
Company shall at any time after the date hereof but prior to the expiration of
this Warrant subdivide its outstanding securities as to which purchase rights
under this Warrant exist, by split-up, spinoff, or otherwise, or combine its
outstanding securities as to which purchase rights under this Warrant exist, the
number of Warrant Shares as to which this Warrant is exercisable as of the date
of such subdivision, split-up, spin-off or combination shall forthwith be
proportionately increased in the case of a subdivision, or proportionately
decreased in the case of a combination. Appropriate proportional adjustments
(decrease in the case of subdivision, increase in the case of combination) shall
also be made to the Purchase Price payable per share, so that the aggregate
Purchase Price payable for the total number of Warrant Shares purchasable under
this Warrant as of such date shall remain the same.
(b) Stock Dividend. If at any time after the date hereof but
prior to the expiration of this Warrant, the Company declares a dividend or
other distribution on Common Stock payable in Common Stock or other securities
or rights convertible into Common Stock ("Common Stock Equivalents") without
payment of any consideration by holders of Common Stock for the additional
shares of Common Stock or the Common Stock Equivalents (including the additional
shares of Common Stock issuable upon exercise or conversion thereof), then the
number of shares of Common Stock for which this Warrant may be exercised shall
be increased as of the record date (or the date of such dividend distribution if
no record date is set) for determining which holders of Common Stock shall be
entitled to receive such dividends, in proportion to the increase in the number
of outstanding shares (and shares of Common Stock issuable upon conversion of
all such securities convertible into Common Stock) of Common Stock as a result
of such dividend, and the Purchase Price shall be proportionately reduced so
that the aggregate Purchase Price for all the Warrant Shares issuable hereunder
immediately after the record date (or on the date of such distribution, if
applicable), for such dividend shall equal the aggregate Purchase Price so
payable immediately before such record date (or on the date of such
distribution, if applicable).
(c) Other Distributions. If at any time after the date hereof but
prior to the expiration of this Warrant, the Company distributes to holders of
its Common Stock, other than as part of its dissolution, liquidation or the
winding up of its affairs, any shares of its capital stock, any evidence of
indebtedness or any of its assets (other than cash, Common Stock or securities
convertible into Common Stock), then the number of Warrant Shares for which this
Warrant is exercisable shall be increased to equal: (i) the number of Warrant
Shares for which this Warrant is exercisable immediately prior to such event,
(ii) multiplied by a fraction, (A) the numerator of which shall be the fair
market value per share of Common Stock on the record date for the dividend or
distribution, and (B) the denominator of which shall be the fair market value
price per share of Common Stock on the record date for the dividend or
distribution minus the amount allocable to one share of Common Stock of the
value (as jointly determined in good faith by the Board of Directors of the
Company and the Warrant Holder) of any and all such evidences
5
29
of indebtedness, shares of capital stock, other securities or property, so
distributed. The Purchase Price shall be reduced to equal: (i) the Purchase
Price in effect immediately before the occurrence of any such event (ii)
multiplied by a fraction, (A) the numerator of which is the number of Warrant
Shares for which this Warrant is exercisable immediately before the adjustment,
and (B) the denominator of which is the number of Warrant Shares for which this
Warrant is exercisable immediately after the adjustment.
(d) Merger, etc. If at any time after the date hereof there shall
be a merger or consolidation of the Company with or into or a transfer of all or
substantially all of the assets of the Company to another entity, then the
Warrant Holder shall be entitled to receive upon or after such transfer, merger
or consolidation becoming effective, and upon payment of the Purchase Price then
in effect, the number of shares or other securities or property of the Company
or of the successor corporation resulting from such merger or consolidation,
which would have been received by Warrant Holder for the shares of stock subject
to this Warrant had this Warrant been exercised just prior to such transfer,
merger or consolidation becoming effective or to the applicable record date
thereof, as the case may be. The Company will not merge or consolidate with or
into any other corporation, or sell or otherwise transfer its property, assets
and business substantially as an entirety to another corporation, unless the
corporation resulting from such merger or consolidation (if not the Company), or
such transferee corporation, as the case may be, shall expressly assume, by
supplemental agreement reasonably satisfactory in form and substance to the
Warrant Holder, the due and punctual performance and observance of each and
every covenant and c6ndition of this Warrant to be performed and observed by the
Company.
(e) Reclassification, etc. If at any time after the date hereof
there shall be a reorganization or reclassification of the securities as to
which purchase rights under this Warrant exist into the same or a different
number of securities of any other class or classes, then the Warrant Holder
shall thereafter be entitled to receive upon exercise of this Warrant, during
the period specified herein and upon payment of the Purchase Price then in
effect, the number of shares or other securities or property resulting from such
reorganization or reclassification, which would have been received by the
Warrant Holder for the shares of stock subject to this Warrant had this Warrant
at such time been exercised.
6. No Impairment. The Company will not, by amendment of its Articles of
Incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Warrant Holder against
impairment. Without limiting the generality of the foregoing, the Company (a)
will not increase the par value of any Warrant Shares above the amount payable
therefor on such exercise, and (b) will take all such action as may be
reasonably necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable Warrant Shares on the exercise of
this Warrant.
7. Notice of Adjustments. Whenever the Purchase Price or number of
Shares purchasable hereunder shall be adjusted pursuant to Section 5 hereof, the
Company shall execute
6
30
and deliver to the Warrant Holder a certificate setting forth, in reasonable
detail, the event requiring the adjustment, the amount of the adjustment, the
method by which such adjustment was calculated and the Purchase Price and number
of shares purchasable hereunder after giving effect to such adjustment, and
shall cause a copy of such certificate to be mailed (by first class mail,
postage prepaid) to the Warrant Holder.
8. Rights As Stockholder. Prior to exercise of this Warrant, the Warrant
Holder shall not be entitled to any rights as a shareholder of the Company with
respect to the Warrant Shares, including (without limitation) the right to vote
such shares, receive dividends or other distributions thereon or be notified of
shareholder meetings. However, in the event of any taking by the Company of a
record of the holders of any class of securities for the purpose of determining
the holders thereof who are entitled to receive any dividend (other than a cash
dividend) or other distribution, any right to subscribe for, purchase or
otherwise acquire any shares of stock of any class or any other securities or
property, or to receive any other right, the Company shall mail to each Warrant
Holder, at least 10 days prior to the date specified therein, a notice
specifying the date on which any such record is to be taken for the purpose of
such dividend, distribution or right, and the amount and character of such
dividend, distribution or right.
9. Limitation on Exercise. Notwithstanding anything to the contrary
contained herein, this Warrant may not be exercised by the Warrant Holder to the
extent that, after giving effect to Warrant Shares to be issued pursuant to a
Subscription Notice, the total number of shares of Common Stock deemed
beneficially owned by such holder (other than by virtue of ownership of this
Warrant, or ownership of other securities that have limitations on the holder's
rights to convert or exercise similar to the limitations set forth herein),
together with all shares of Common Stock deemed beneficially owned by the
holder's "affiliates" (as defined in Rule 144 of the Act) that would be
aggregated for purposes of determining whether a group under Section 13(d) of
the Securities Exchange Act of 1934 exists, would exceed 4.9% of the total
issued and outstanding shares of the Common Stock. The delivery of a
Subscription Notice by the Warrant Holder shall be deemed a representation by
such holder that it is in compliance with this paragraph.
The term "deemed beneficially owned" as used in this Warrant shall
exclude shares that might otherwise be deemed beneficially owned by reason of
the exercise of this Warrant.
10. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of the
Warrant and, in the case of any such loss, theft or destruction of the Warrant,
on delivery of an indemnity agreement or security reasonably satisfactory in
form and amount to the Company or, in the case of any such mutilation, on
surrender and cancellation of such Warrant, the Company at its expense will
execute and deliver, in lieu thereof a new Warrant of like tenor.
11. Specific Enforcement, Consent to Jurisdiction and Choice of Law
(a) The Company and the Warrant Holder acknowledge and agree that
irreparable damage would occur in the event that any of the provisions of this
Warrant were not
7
31
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall he entitled to an injunction or
injunctions to prevent or cure breaches of the provisions of this Warrant and to
enforce specifically the terms and provisions hereof, this being in addition to
any other remedy to which either of them may be entitled by law or equity.
(b) Each of the Company and the Warrant Holder (i) hereby
irrevocably submits to the exclusive jurisdiction of the state and federal court
located in New York County, New York for the purposes of any suit, action or
proceeding arising out of or relating to this Warrant and (ii) hereby waives,
and agrees not to assert in any such suit, action or proceeding, any claim that
it is not personally subject to the jurisdiction of such court, that the suit,
action or proceeding is brought in an inconvenient forum or that the venue of
the suit, action or proceeding is improper. Each of the Company and the Warrant
Holder consents to process being served in any such suit, action or proceeding
by mailing a copy thereof to such party at the address in effect for notices to
it under this Warrant and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing in this paragraph
shall affect or limit any right to serve process in any other manner permitted
by law.
(c) This Warrant shall be governed by and construed and enforced
in accordance with the internal laws of the State of New York without regard to
such state's principles of conflict of laws.
12. Entire Agreement: Amendments. This Warrant, the Exhibits hereto and
the provisions contained in the Agreement or the Registration Rights Agreement
and incorporated into this Warrant and the Warrant Shares contain the entire
understanding of the parties with respect to the matters covered hereby and
thereby and, except as specifically set forth herein and therein, neither the
Company nor the Warrant Holder makes any representation, warranty, covenant or
undertaking with respect to such matters. No provision of this Agreement may be
waived or amended other than by a written instrument signed by the party against
whom enforcement of any such amendment or waiver is sought.
13. Notices. Any notice or other communication required or permitted to
be given hereunder shall be in writing and shall be effective (a) upon hand
delivery or delivery by telex (with correct answer back received), telecopy or
facsimile at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the second business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses for such
communications shall be:
to the Company:
SciClone Pharmaceuticals, Inc.
000 Xxxxxxxx Xxxxxx Xxxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
8
32
Attention: Xxxxx X. Xxxxx
with copies to:
Xxxx, Xxxx, Xxxx & Friedenrich LLP
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx, Esq.
to the Purchaser:
__________________________________
__________________________________
__________________________________
__________________________________
with copies to:
__________________________________
__________________________________
__________________________________
__________________________________
Either party hereto may from time to time change its address for notices
under this Section 13 by giving at least 10 days prior written notice of such
changed address to the other party hereto.
14. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. The headings in this Warrant are for purposes of reference only, and
shall not limit or otherwise affect any of the terms hereof. The invalidity or
unenforceability of any provision hereof shall in no way affect the validity or
enforceability of any other provision.
15. Assignment. This Warrant may not be assigned, by the Warrant Holder,
in whole or in part, without the prior written consent of the Company; provided
that upon written notice to the Company, the Warrant Holder may assign this
Warrant, in whole or in part, to an affiliate of the Warrant Holder without the
Company's consent. In either case, to effect a transfer of this Warrant, the
Warrant Holder shall submit this Warrant to the Company together with a duly
executed Assignment in substantially the form and substance of the Form of
Assignment which
9
33
accompanies this Warrant and, upon the Company's receipt hereof, and in any
event, within three (3) business days thereafter, the Company shall issue a
Warrant to the Warrant Holder to evidence that portion of this Warrant, if any
as shall not have been so transferred or assigned.
Dated:___________________ SCICLONE PHARMACEUTICALS, INC.
By:
Name:
Title:
Attest:
By: _____________________
Its
____________________________________
By: ________________________________
Title:
10
34
(SUBSCRIPTION NOTICE)
FORM OF WARRANT EXERCISE
(TO BE SIGNED ONLY ON EXERCISE OF WARRANT)
TO _______________
The undersigned, the holder of the within Warrant, hereby
irrevocably elects to exercise this Warrant:
_____(A) for, and to purchase thereunder, _______________ shares of
Common Stock of SciClone Pharmaceuticals, Inc., a
California corporation (the "Common Stock"), and herewith,
or by wire transfer, makes payment of $_____therefor; or
_____(B) in a "cashless" or "net-issue exercise" for, and to
purchase thereunder _______________ shares of Common
Stock, and herewith makes payment therefor with __________
Surrendered Warrant Shares.
The undersigned requests that the certificates for
such shares be issued in the name of, and
_____(A) delivered to ___________________, whose address is
_____________________; or
_____(B) electronically transmitted and credited to the account of
______________ undersigned's prime broker (Account No.
_______________) with Depository Trust Company through its
Deposit Withdrawal Agent Commission system.
Dated: _______________
_________________________________________
(Signature must conform to name of holder
as specified on the face of the Warrant)
_________________________________________
(Address)
Tax Identification Number: _____________
______________
11
35
FORM OF ASSIGNMENT
(TO BE SIGNED ONLY ON 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 SciClone Pharmaceuticals, Inc., a California
corporation, to which the within Warrant relates, and appoints _________
Attorney to transfer such right on the books of SciClone Pharacueticals, Inc., a
California corporation, with full power of substitution of premises.
Dated: _______________
_________________________________________
(Signature must conform to name of holder
as specified on the face of the Warrant)
________________________________________
(Address)
Signed in the presence of:
__________________________
12
