COMMON STOCK PURCHASE WARRANT
NICHE PHARMACEUTICALS, INC.
Dated: ____________, 1997
120737.3
THE REGISTERED HOLDER OF THIS WARRANT BY ITS ACCEPTANCE HEREOF, AGREES THAT IT
WILL NOT SELL, TRANSFER OR ASSIGN THIS WARRANT EXCEPT AS HEREIN PROVIDED.
NOT EXERCISABLE PRIOR TO ________ __, 1998.* VOID AFTER 5:00 P.M. EASTERN TIME,
________ __, 2001.**
COMMON STOCK PURCHASE WARRANT
For the Purchase of 130,000 Shares of Common Stock
of
NICHE PHARMACEUTICALS, INC.
(A Delaware Corporation)
1. Warrant.
THIS CERTIFIES THAT, in consideration of $100.00 duly paid by
or on behalf of Xxxxxxxx Xxxxxx & Co., Inc. (or registered assigns succeeding to
ownership hereof pursuant to the provisions of Section 3.1 hereof) (the "Holder"
or "Representative"), as registered owner of this Warrant, to Niche
Pharmaceuticals, Inc.(the "Company"), the Holder is entitled, at any time and
from time to time on or after ________ __, 1998, and at or before 5:00 p.m.,
Eastern Time, ________ __, 2001, but not thereafter, to subscribe for, purchase
and receive, in whole or in part, up to one hundred and thirty thousand
(130,000) shares of Common Stock, $.01 par value (the "Common Stock"), of the
Company. If ________ __, 2001 is a day on which banking institutions are
authorized by law to close, then this Warrant may be exercised on the next
succeeding day that is not such a day in accordance with the terms hereof, at
or before 5:00 p.m. Eastern Time or such next succeeding day. This Warrant is
initially exercisable as to each share of Common Stock covered thereby at $7.50
per share, or 150% of the offering price per share of Common Stock (the
"Exercise Price") set forth on the cover page of the prospectus pursuant to
which 1,300,000 shares of Common Stock of the Company are being offered to the
ublic (the "Prospectus"). The term "Exercise Price" shall mean the initial
exercise price or such exercise price, as adjusted in the manner provided
herein, depending on the context. This Warrant, together with warrants of like
tenor, was originally issued pursuant to an Underwriting Agreement
dated ________ __, 1997 between the Company and the Representative.
* One year from date of issuance.
** Four years from date of issuance.
120737.3
2. Exercise.
In order to exercise this Warrant, the exercise form attached
hereto must be duly executed, completed and delivered to the Company, together
with this Warrant and payment of the Exercise Price for the shares of the Common
Stock being purchased. If the rights represented hereby shall not be exercised
at or before 5:00 p.m., Eastern Time, on ________ __, 2001, this Warrant shall
become and be void and without further force or effect and all rights
represented hereby shall cease and expire.
3. Transfer.
3.1 General Restrictions. The registered Holder of this
Warrant, by its acceptance hereof, agrees that it shall not sell, transfer or
assign or hypothecate this Warrant to anyone other than the Representative or an
officer or partner of the Representative prior to ____*____ __, 1998 in
compliance with the provisions of the Corporate Financing Rule, Section
2710(c)(7) of the National Association of Securities Dealers Regulation, Inc. In
order to make any permitted assignment, the Holder must deliver to the Company
the assignment form attached hereto duly executed and completed, together with
this Warrant and payment of all transfer taxes, if any, payable in connection
therewith. The Company shall immediately transfer the number of Warrants
specified in the assignment form on the books of the Company and shall execute
and deliver a new warrant or warrants of like tenor to the appropriate
assignee(s) expressly evidencing the right to purchase the number of shares of
Common Stock purchasable hereunder or such portion of such number as shall be
contemplated by such assignment.
3.2 Restrictions Imposed by the Act. The securities purchased
upon exercise of this Warrant shall not be transferred unless and until (i) the
Company has received the opinion of counsel for the Holder (reasonably
acceptable to the Company and its counsel) that the securities may be sold
pursuant to an exemption from registration under the Securities Act of 1933, as
amended (the "Act"), the availability of which is established to the reasonable
satisfaction of the Company, or (ii) a registration statement relating to such
securities has been filed by the Company and declared effective by the
Securities and Exchange Commission (the "Commission").
--------------
* First anniversary of the closing of the IPO.
120737.3
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Each certificate for securities purchased upon exercise of
this Warrant shall bear a legend as follows unless such securities have been
registered under the Act:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"). The securities may not be offered for sale, sold or
otherwise transferred except pursuant to an effective
registration statement under the Act, or pursuant to an
exemption from registration under the Act."
4. New Warrants to be Issued.
4.1 Partial Exercise or Transfer. Subject to the restrictions
in Section 3 hereof, this Warrant may be exercised or assigned in whole or in
part. In the event of the exercise or assignment hereof in part only, upon
surrender of this Warrant for cancellation, together with the duly executed
exercise or assignment form and funds sufficient to pay any required transfer
tax, the Company shall cause to be delivered to the Holder without charge a new
warrant or new warrants of like tenor with this Warrant in the name of the
Holder evidencing the right to purchase, in the aggregate, the remaining number
of underlying shares of Common Stock purchasable hereunder after giving effect
to any such partial exercise or assignment.
4.2 Lost Certificate. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant
and of an indemnification in favor of the Company, reasonably satisfactory to
it, the Company shall execute and deliver a new warrant of like tenor and date.
Any such new warrants executed and delivered as a result of such loss, theft,
mutilation or destruction shall constitute an additional contractual obligation
on the part of the Company replacing the Company's contractual obligations
pursuant to such lost, stolen, mutilated or destroyed warrant.
5. Registration Rights.
5.1 Demand Registration.
5.1.1 Grant of Right. The Company, upon written
demand (the "Demand Notice") of the Holder(s) agrees to register all or part of
the shares of Common Stock underlying such Warrants (the "Registrable
Securities") for up to five occasions. On such occasions, the Company shall file
a Registration Statement covering the Registrable Securities within thirty (30)
days after receipt of the Initial Demand Notice and shall use its best efforts
to have such registration statement declared effective promptly thereafter. The
demand for registration may be made at any time during a period
120737.3
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of five years beginning one year after the date of the Prospectus (the
"Effective Date"). The Company covenants and agrees to give written notice of
its receipt of any Initial Demand Notice by any Holder(s) to all other
registered Holders of the Warrants and/or the Registrable Securities within five
(5) days after the date of the receipt of any such Initial Demand Notice.
5.1.2 Terms. The Company shall bear all fees and
expenses attendant to registering the Registrable Securities relating to the
first three (3) exercises of the Holder(s) demand rights set forth in Section
5.1.1. The Holder(s) shall bear all the fees and expenses attendant to
regulating the Registrable Securities relating to the remaining exercises of the
Holders demand rights after the first three (3) demand rights have been
exercised, the Holder(s) shall pay any and all underwriting commissions and the
expenses of any legal counsel selected by the Holder(s) to represent them in
connection with any and all sale of the Registrable Securities and any
applicable transfer taxes. The Company agrees to use its prompt efforts to cause
the filing required herein to become effective and to qualify or register the
Registrable Securities in such states as are reasonably requested by the
Holder(s); provided, however, that in no event shall the Company be required to
register the Registrable Securities in a state in which such registration would
cause (i) the Company to be obligated to qualify to do business as a foreign
corporation in such State or to pay income, franchise or other similar taxes
solely as a result of such registration or to be subject to service of general
process, or (ii) the principal stockholders of the Company to be obligated to
escrow their shares of capital stock of the Company. The Company shall use best
efforts to cause any registration statement filed pursuant to the demand rights
granted under Section 5.1.1 to remain effective for a period of at least twelve
(12) consecutive months after the effective date of such registration statement.
5.1.3 Repurchase of Warrants and Registrable
Shares. Anything in this Section 5.1 to the contrary notwithstanding, the
Company shall have no such obligation to prepare and file a registration
statement as provided for in this Section 5.1 if, within twenty (20) days after
it receives a demand therefor, it agrees to purchase the Warrants and/or the
underlying Registrable Securities from the Holder(s) thereof at a price, in the
case of the Warrants, equal to the product of multiplying the number of Warrants
or underlying Common Stock sought to be registered by the difference between (a)
the Exercise Price and (b) the current market price of the Common Stock. The
current market price of the Common Stock shall be as follows:
(i) if traded on a securities exchange or the Nasdaq National
Market System, the fair market value shall be deemed to the average of the
closing prices of the Common Stock on such
120737.3
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exchange or System over the 10 day period preceding the demand for
registration;
(ii) if traded over-the-counter, the fair market value shall
be deemed to be the average of the closing or last bid and asked prices of the
Common Stock over the 10 day period preceding the demand for registration; and
(iii) if there is no public market for the Common Stock, then fair
market value shall be determined by the Board of Directors of the Company.
5.2 "Piggy-Back" Registration.
5.2.1 Grant of Right. In addition to the demand
right of registration, the Holder(s) of the Warrants shall have the right for a
period of five (5) years beginning one year after the Effective Date, to include
the Registrable Securities as part of any other registration of securities filed
by the Company (other than in connection with a transaction contemplated by Rule
145(a) promulgated under the Act or pursuant to Form S-8) provided, however,
that if, in the written opinion of the Company's managing underwriter or
underwriters, if any, for such offering, the inclusion of the Registrable
Securities, when added to the securities being registered by the Company or the
selling shareholder(s), will exceed the maximum amount of the Company's
securities that can be marketed (i) at a price reasonably related to their then
current market value, or (ii) without materially and adversely affecting the
entire terms of the offering, the Company shall nevertheless register all or any
portion of the Registrable Securities required to be so registered but such
Registrable Securities shall not be sold by the Holder(s) until 180 days after
the registration statement for such offering has become effective and provided
further that, if any securities are registered for sale on behalf of other
shareholders in such offering and such shareholders have not agreed to defer
such sale until the expiration of such 180-day period, the number of securities
to be sold by all shareholders in such public offering during such 180- day
period shall be apportioned pro rata among all such selling shareholders,
including all holders of the Registrable Securities, according to the total
amount of securities of the Company owned by said selling shareholders,
including all holders of the Registrable Securities.
5.2.2 Terms. The Company shall bear all fees and
expenses attendant to registering the Registrable Securities, but the Holder(s)
shall pay any and all underwriting commissions, the expenses of any legal
counsel selected by the Holder(s) to represent them in connection with the sale
of the Registrable Securities and applicable transfer taxes, if any. In the
event of such a proposed registration, the Company shall furnish the then
Holder(s) of outstanding Registrable Securities with not less than
120737.3
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thirty (30) days' written notice prior to the proposed date of filing of such
registration statement. Such notice to the Holder(s) shall continue to be given
for each registration statement filed by the Company until such time as all of
the Registrable Securities have been registered and sold. The holders of the
Registrable Securities shall exercise the "piggyback" rights provided for herein
by giving written notice, within twenty (20) days after the receipt of the
Company's notice of its intention to file a registration statement. The Company
shall use best efforts to cause any registration statement filed pursuant to the
above "piggyback" rights to remain effective for at least twelve (12) months
from the date that the Holder(s) of the Registrable Securities are first given
the opportunity to sell all of such securities.
5.3 General Terms.
5.3.1 Indemnification. The Company shall indemnify
the Holder(s) of the Registrable Securities to be sold pursuant to any
registration statement hereunder and each person, if any, who controls such
Holder(s) within the meaning of Section 15 of the Act or Section 20(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), against all
loss, claim, damage, expense or liability (including all reasonable attorneys'
fees and other expenses reasonably incurred in investigating, preparing or
defending against any claim whatsoever) to which any of them may become subject
under the Act, the Exchange Act or otherwise, arising from such registration
statement but only to the same extent and with the same effect as the provisions
pursuant to which the Company has agreed to indemnify the Underwriter contained
in Section 6 of the Underwriting Agreement. The Holder(s) of the Registrable
Securities to be sold pursuant to such registration statement, and their
successors and assigns, shall severally, and not jointly, indemnify the Company
against all loss, claim, damage, expense or liability (including all reasonable
attorneys' fees and other expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which they may become
subject under the Act, the Exchange Act or otherwise, arising from information
furnished by or on behalf of such Xxxxxx(s), or their successors or assigns, in
writing, for specific inclusion in such registration statement to the same
extent and with the same effect as the provisions contained in Section 6 of the
Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify
the Company.
5.3.2 Exclusivity. The Company shall not permit
the inclusion of any securities other than the Registrable Securities to be
included in any registration statement filed pursuant to Section 5.1 hereof
without the prior written consent of the Representative.
120737.3
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5.3.3 Documents Delivered to Holders. The Company
shall furnish to each Holder participating in any of the foregoing offerings and
to each underwriter of any such offering, if any, a signed counterpart,
addressed to such Holder or underwriter, of (i) an opinion of counsel to the
Company, dated the effective date of such registration statement (and, if such
registration includes an underwritten public offering, an opinion dated the date
of the closing under any underwriting agreement related thereto), and (ii) a
"cold comfort" letter dated the effective date of such registration statement
(and, if such registration includes an underwritten public offering, a letter
dated the date of closing under the underwriting agreement) signed by
independent public accountants who have issued a report on the Company's
financial statements included in such registration statement, in each case
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of such
accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's counsel
and in accountants' letters delivered to underwriters in underwritten public
offerings of securities as appropriate for the form of registration statement
used. The Company shall also deliver promptly to each Holder participating in
the offering requesting the correspondence and memoranda described below and to
the managing underwriter copies of all correspondence between the Commission and
the Company, its counsel or auditors and all memoranda relating to discussions
with the Commission or its staff with respect to the registration statement and
permit each Holder and underwriter to do such investigation, upon reasonable
advance notice, with respect to information contained in or omitted from the
registration statement as it deems reasonably necessary to comply with
applicable securities laws or rules of the National Association of Securities
Dealers, Inc. ("NASD"). Such investigation shall include access to books,
records and properties and opportunities to discuss the business of the Company
with its officers and independent auditors, all to such reasonable extent and at
such reasonable times and as often as any such Holder shall reasonably request.
Following the effective date of any such registration, the Company shall upon
the request of any owner of Warrants and/or Registrable Securities forthwith
supply such a number of prospectuses meeting the requirements of the Act, as
shall be reasonably requested to make a public offering of the Registrable
Securities from time to time offered or sold by such owner.
5.3.4 Underwriting Agreement. The Company shall
enter into an underwriting agreement with the managing underwriter(s) selected
by any Xxxxxx(s) whose Registrable Securities are being registered pursuant to
this Section 5. Such agreement shall be reasonably satisfactory in form and
substance to the Company, each Holder and such managing underwriters, and shall
contain such representations, warranties and covenants by the
120737.3
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Company and such other terms as are customarily contained in agreements of that
type used by the managing underwriter. The Holder(s) shall be parties to any
underwriting agreement relating to an underwritten sale of their Registrable
Securities and may, at their option, require that any or all of the
representations, warranties and covenants of the Company to or for the benefit
of such underwriters shall also be made to and for the benefit of such
Holder(s). Such Holder(s) shall not be required to make any representations or
warranties to or agreements with the Company or the underwriters except as they
may relate to such Holder(s) and their intended methods of distribution.
6. Adjustments to Exercise Price and Number of Securities.
6.1 Subdivision and Combination. In case the Company shall at
any time subdivide or combine the outstanding shares of Common Stock, the
Exercise Price shall forthwith be proportionately decreased in the case of
subdivision or increased in the case of combination.
6.2 Adjustment in Number of Shares. Upon each adjustment of
the Exercise Price pursuant to the provisions of this Section 6, the number of
shares of Common Stock issuable upon the exercise of this Warrant shall be
adjusted to the nearest full number obtained by multiplying the Exercise Price
in effect immediately prior to such adjustment by the number of shares of Common
Stock issuable upon exercise of this Warrant immediately prior to such
adjustment and dividing the product so obtained by the adjusted Exercise Price.
6.3 Recapitalization. For the purpose of this Warrant, the
term "Common Stock" shall also mean any other class of stock resulting from
successive changes or reclassifications of Common Stock consisting solely of
changes in par value, or from par value to no par value, or from no par value to
par value.
6.4 Merger or Consolidation. In case of any consolidation of
the Company with, or merger of the Company with, or merger of the Company into,
another corporation (other than a consolidation or merger which does not result
in any reclassification or change of the outstanding Common Stock), the
corporation formed by such consolidation or merger shall execute and deliver to
the Holder(s) a supplemental warrant providing that the holder of each warrant
then outstanding or to be outstanding shall have the right thereafter (until the
stated expiration of such warrant) to receive, upon exercise of such warrant,
the kind and amount of shares of stock and other securities and property
receivable upon such consolidation or merger, by a holder of the number of
shares of Common Stock of the Company for which such warrants might have been
exercised immediately prior to such consolidation, merger, sale or transfer.
Such supplemental warrants shall provide for adjustments which shall be
identical to
120737.3
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the adjustments provided in Section 6. The above provision of this Section shall
similarly apply to successive consolidations or mergers.
6.5 No Adjustment of Exercise Price in Certain Cases.
No adjustment of the Exercise Price shall be made:
(i) Upon the issuance or sale of the shares of Common Stock
issuable upon the exercise of (i) this Warrant or (ii) the options granted under
the stock option plans described in the Prospectus; or
(ii) If the amount of said adjustment shall be less than $.10
per share of Common Stock, provided, however, that in such case, any adjustment
that would otherwise be required then to be made shall be carried forward and
shall be made at the time of and together with the next subsequent adjustment
which, together with any adjustment so carried forward, shall amount to at least
$.10 per share of Common Stock.
6.6 Redemption of Warrants. Except as provided in Section
5.1.3 hereof, this Warrant cannot be redeemed by the Company without the prior
written consent of the Holder.
6.7 Dividends and Other Distributions. In the event that the
Company shall at any time prior to the exercise in full of this Warrant declare
a non-cash dividend (other than a dividend consisting solely of shares of Common
Stock) or otherwise distribute to its stockholders any assets, property, rights,
evidences of indebtedness, securities (other than shares of Common Stock),
whether issued by the Company or by another, or any other thing of value other
than cash, the Holder of this Warrant shall thereafter be entitled, in addition
to the shares of Common Stock or other securities and property receivable upon
the exercise thereof, to receive, upon the exercise of such Warrant, the same
property, assets, rights, evidences of indebtedness, securities or any other
thing of value that it would have been entitled to receive at the time of such
dividend or distribution as if the Warrant had been exercised immediately prior
to such dividend or distribution. At the time of any such dividend or
distribution, the Company shall make appropriate reserves to ensure the timely
performance of the provisions of this Section 6.10.
6.8 Elimination of Fractional Interests. The Company shall not
be required to issue certificates representing fractions of shares of Common
Stock upon the exercise of the Warrant, nor shall it be required to issue scrip
or pay cash in lieu of any fractional interests, it being the intent of the
parties that all fractional interests shall be eliminated by rounding any
fraction up to the nearest whole number of shares of Common Stock or other
securities, properties or rights as shall be issuable upon the exercise thereof.
120737.3
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7. Reservation and Listing. The Company shall at all times reserve and keep
available out of its authorized shares of Common Stock, solely for the purpose
of issuance upon exercise of the Warrant, such number of shares of Common Stock
or other securities, properties or rights as shall be issuable upon the exercise
thereof. The Company covenants and agrees that, upon exercise of the Warrant and
payment of the Exercise Price therefor, all shares of Common Stock and other
securities issuable, properties and rights upon such exercise shall be duly and
validly issued, fully paid and nonassessable and not subject to preemptive
rights of any stockholder. The Company further covenants and agrees that upon
exercise of this Warrant and payment of the Exercise Price therefor, all shares
of Common Stock and other securities issuable upon such exercises shall be duly
and validly issued, fully paid and nonassessable and not subject to preemptive
rights of any stockholder. As long as this Warrant shall be outstanding, the
Company shall use its best efforts to cause all shares of Common Stock issuable
upon exercise of the Warrant to be listed (subject to official notice of
issuance) on all securities exchanges (or, if applicable on NASDAQ) on which the
Common Stock may then be listed and/or quoted.
8. Certain Notice Requirements.
8.1 Holder's Right to Receive Notice. Nothing herein shall be
construed as conferring upon the Holder the right to vote or consent or to
receive notice as a stockholder for the election of directors or any other
matter, or as having any rights whatsoever as a stockholder of the Company. If,
however, at any time prior to the expiration of the Warrant and its exercise,
any of the events described in Section 8.2 shall occur, then, in one or more of
said events, the Company shall give written notice of such event at least
fifteen (15) days prior to the date fixed as a record date or the date of
closing the transfer books for the determination of the stockholders entitled to
such dividend, distribution, conversion or exchange of securities or
subscription rights, or entitled to vote on such proposed dissolution,
liquidation, winding up or sale. Such notice shall specify such record date or
the date of the closing of the transfer books, as the case may be.
8.2 Events Requiring Notice. The Company shall be required to
give the notice described in this Section 8 upon one or more of the following
events: (i) if the Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of retained earnings, as indicated by the accounting
treatment of such dividend or distribution on the books of the Company, or (ii)
the Company shall offer to all the holders of its Common Stock any additional
shares of capital stock of the Company or securities convertible into or
exchangeable for shares
120737.3
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of capital stock of the Company, or any option, right or warrant to subscribe
therefor, or (iii) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business shall be proposed.
8.3 Notice of Change in Exercise Price. The Company shall,
promptly after an event requiring a change in the Exercise Price pursuant to
Section 6 hereof, send notice to the Holders of such event and change (the
"Price Notice"). The Price Notice shall describe the event causing the change
and the method of calculating same and shall be certified as being true and
accurate by the Company's Chief Executive Officer and Chief Financial Officer,
or principal accounting officer if the Company does not have a Chief Financial
Officer.
8.4 Transmittal of Notices. All notices, requests, consents
and other communications under this Warrant shall be in writing and shall be
deemed to have been duly given or made when hand delivered, or when delivered by
responsible overnight courier:
(i) If to the registered Holder of this Warrant,
to:
Xxxxxxxx Xxxxxx & Co., Inc.
000 Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
with a copy to:
Olshan Xxxxxxxx Frome & Xxxxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
(ii) if to the Company, to:
Niche Pharmaceuticals, Inc.
000 Xxxxx Xxx
X.X. Box 449
Roanoke, Texas 76262
Attention: Xxxxx X. Xxxxxxx
with a copy to:
Certilman Balin Xxxxx & Xxxxx, LLP
00 Xxxxxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx, Esq.
Either of the Holder or the Company may change the foregoing address by notice
given pursuant to this Section 8.4.
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9. Miscellaneous.
9.1 Amendments. The Company and the Holder may from time to
time supplement or amend this Warrant without the approval of any other Holder
in order to cure any ambiguity, to correct or supplement any provision contained
herein which may be defective or inconsistent with any other provisions herein,
or to make any other provisions in regard to matters or questions arising
hereunder which the Company and Representative may deem necessary or desirable
and which the Company and Representative deem shall not adversely affect the
interest of the Holder. All other modifications or amendments shall require the
written consent of the party against whom enforcement of the modification or
amendment is sought.
9.2 Headings. The headings contained herein are for the sole
purpose of convenience of reference, and shall not in any way limit or affect
the meaning or interpretation of any of the terms or provisions of this Warrant.
9.3 Entire Agreement. This Warrant (together with the other
agreements and documents being delivered pursuant to or in connection with this
Warrant) constitute the entire agreement of the parties hereto with respect to
the subject matter hereof, and supersede all prior agreements and understandings
of the parties, oral and written, with respect to the subject matter hereof.
9.4 Binding Effect. This Warrant shall inure solely to the
benefit of and shall be binding upon, the Holder and the Company and their
permitted assignees, respective successors, legal representatives and assigns,
and no other person shall have or be construed to have any legal or equitable
right, remedy or claim under or in respect of or by virtue of this Warrant or
any provisions herein contained.
9.5 Governing Law; Submission to Jurisdiction. This
Warrant shall be governed by and construed and enforced in accordance with the
laws of the State of Delaware, without giving effect to conflict of laws rules
of such state. Any action, proceeding or claim against the Company or the
Holder arising out of, or relating in any way to this Warrant shall be brought
and enforced in the courts of the State of New York or of the United States of
America for the Southern District of New York, and the Company and the Holder
irrevocably submit to such jurisdiction, which jurisdiction shall be exclusive.
The parties hereto waive any objection to such exclusive jurisdiction and that
such courts represent an inconvenient forum. The prevailing party in any such
action shall be entitled to recover from the other party all of its reasonable
attorneys' fees and expenses relating to such action or proceeding and/or
incurred in connection with the preparation therefor.
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9.6 Waiver, Etc. The failure of the Company or the Holder to
at any time enforce any of the provisions of this Warrant shall not be deemed or
construed to be a waiver of any such provision, nor to in any way affect the
validity of this Warrant or any provision hereof or the right of the Company or
any Holder to thereafter enforce each and every provision of this Warrant. No
waiver of any breach, noncompliance or nonfulfillment of any of the provisions
of this Warrant shall be effective unless set forth in a written instrument
executed by the party or parties against whom or which enforcement of such
waiver is sought; and no waiver of any such breach, noncompliance or
nonfulfillment shall be construed or deemed to be a waiver of any other or
subsequent breach, noncompliance or nonfulfillment.
120737.3
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed by its duly authorized officer on the ___ day of ________, 1997.
NICHE PHARMACEUTICALS, INC.
By:
Name:
Title:
120737.3
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Form to be used to exercise Warrant:
NICHE PHARMACEUTICALS, INC.
000 Xxxxx Xxx
X.X. Box 449
Roanoke, Texas 76262
Date: ________________, 19__
The Undersigned hereby elects irrevocably to exercise the
within Warrant and to purchase __________ shares of Common Stock of Niche
Pharmaceuticals, Inc. and hereby makes payment of $_____________ (at the rate of
$_____ per share) in payment of the Exercise Price pursuant thereto. Please
issue the shares as to which this Warrant is exercised in accordance with the
instructions given below.
Signature
Signature Guaranteed
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name
(Print in Block Letters)
Address
NOTICE: The signature to this form must correspond with the
name as written upon the face of the within Warrant in every particular without
alteration or enlargement or any change whatsoever, and must be guaranteed by a
bank, other than a savings bank, or by a trust company or by a firm having
membership on a registered national securities exchange.
120737.3
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Form to be used to assign Warrant:
ASSIGNMENT
(To be executed by the registered Holder to effect a transfer
of the within Warrant):
FOR VALUE RECEIVED, ________________________________ does
hereby sell, assign and transfer unto __________________________ the right to
purchase ____________ shares of Common Stock of Niche Pharmaceuticals, Inc. (the
"Company") evidenced by the within Warrant and does hereby authorize the Company
to transfer such right on the books of the Company.
Dated:__________________, 19__
Signature
Signature Guaranteed
NOTICE: The signature to this form must correspond with the
name as written upon the face of the within Warrant in every particular without
alteration or enlargement or any change whatsoever, and must be guaranteed by a
bank, other than a savings bank, or by a trust company or by a firm having
membership on a registered national securities exchange.
120737.3
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