EXHIBIT 8
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WARRANT AGREEMENT
THIS WARRANT AGREEMENT (the "Agreement") is dated as of June 29, 2005
between Auxilium Pharmaceuticals, Inc., a Delaware corporation (the "Company"),
and StockTrans, Inc., a Pennsylvania company (the "Warrant Agent").
The Company proposes to issue stock purchase warrants (hereinafter
called the "Warrants"). Each Warrant entitles the holder thereof to purchase,
within five years from the offering date, one share of common stock, par value
$0.01 per share (the "Common Stock"), at a purchase price equal to $5.84 per
share. The Warrant Agent, at the request of the Company, has agreed to act as
the agent of the Company in connection with the issuance, registration,
transfer, exchange, and exercise of Warrants.
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein set forth:
SECTION 1. Appointment of Warrant Agent. The Company hereby appoints
the Warrant Agent to act as agent for the Company in accordance with the
instructions hereinafter set forth in this Agreement, and the Warrant Agent
hereby accepts such appointment. The Company may from time to time appoint such
Co-Warrant Agents as it may deem necessary or desirable. The Warrant Agent shall
have no duty to supervise, and shall in no event be liable for, the acts or
omissions of any such Co-Warrant Agents. The Company shall promptly notify the
Warrant Agent from time to time in writing of the number of Warrants to be
issued and furnish written instructions in connection therewith.
SECTION 2. Form of Warrant Certificates. The Warrant Certificates (and
the forms of election to purchase shares and of assignment to be printed on the
reverse thereof) shall be substantially of the tenor and purport recited in
Exhibit A hereto and may have such letters, numbers or other marks of
identification or designation and such legends, summaries or endorsements
printed, lithographed or engraved thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this Warrant Agreement, or as
may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which
the Warrants may from time to time be listed, or to conform to usage, but any of
which do not affect the rights, immunities, duties or liabilities of the Warrant
Agent under this Agreement. The Warrant Certificates shall be dated as of the
date of issuance thereof by the Warrant Agent, either upon initial issuance or
upon transfer or exchange, and initially shall entitle the holders thereof to
purchase one share of Common Stock, but the number of such shares and the
purchase price per share of Common Stock shall be subject to adjustments as
provided herein.
SECTION 3. Countersignature and Registration. The Warrant Certificates
shall be executed on behalf of the Company by the Chief Executive Officer, the
Chief Financial Officer, the Chief Operating Officer or the Secretary, by
facsimile signature. The Warrant Certificates shall be manually countersigned by
the Warrant Agent and shall not be valid for any purpose unless so
countersigned. In case any officer of the Company who shall have signed any of
the Warrant Certificates shall cease to be such officer of the Company before
countersignature by the Warrant Agent and issuance and delivery by the Company,
such Warrant Certificates,
nevertheless, may be countersigned by the Warrant Agent, issued and delivered
with the same force and effect as though the person who signed such Warrant
Certificates had not ceased to be such officer of the Company; and any Warrant
Certificates may be signed on behalf of the Company by any person who, at the
actual date of the execution of such Warrant Certificates, shall be a proper
officer of the Company to sign such Warrant Certificates, although at the date
of the execution of this Warrant Agreement any such person was not such an
officer.
The Warrant Agent will keep or cause to be kept, at its office
designated for such purposes, books for registration and transfer of the Warrant
Certificates issued hereunder. Such books shall show the names and addresses of
the respective holders of the Warrant Certificates, the number of Warrants
evidenced on its face by each of the Warrant Certificates, and the date of each
of the Warrant Certificates.
The Warrant Agent shall countersign a Warrant Certificate only (a) upon
initial issuance of the Warrants in accordance with the written order signed by
the Chief Executive Officer, the President or any Vice President or (b) upon
exchange, transfer or substitution for one or more previously countersigned
Warrant Certificates as hereinafter provided.
SECTION 4. Transfer and Exchange. Subject to Section 6 hereof, the
Warrants shall not be sold or transferred unless the applicable Warrant
Certificate is surrendered for transfer to the Warrant Agent properly endorsed
and affixed with signature medallion guarantee, or accompanied by appropriate
instruments of transfer and written instructions for transfer, together with an
opinion of counsel reasonably satisfactory to the Company to the effect that
such transfer may occur without registration under the Securities Act of 1933,
as amended, at which time the Warrant Agent shall register the transfer of such
outstanding Warrant Certificate upon the books to be maintained by the Warrant
Agent for that purpose. Upon any such registration of transfer, a new Warrant
Certificate shall be issued to the transferee and the surrendered Warrant
Certificate shall be canceled by the Warrant Agent. Any Warrant Certificate may
be exchanged at the option of the holder thereof, upon surrender at the office
of the Warrant Agent specified in Section 21 hereof, for another Warrant
Certificate, or other Warrant Certificates of different denominations,
representing in the aggregate the right to purchase a like number of shares of
Common Stock. No fractional Warrant Certificates will be issued. The Company may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Warrant
Certificates. The Warrant Agent shall have no duty or obligation to take any
action under any Section of this Agreement which requires the payment by a
holder of a Warrant Certificate of applicable taxes and charges unless and until
the Warrant Agent is satisfied that all such taxes and/or charges have been
paid.
SECTION 5. Common Stock and Warrant Common Stock. As hereinafter used
in this Agreement, Common Stock shall mean stock of the Company of any class,
whether now or hereafter authorized, which has the right to participate in the
distribution of either earnings or assets of the Company without limit as to
amount or percentage, and Warrant Common Stock shall mean only Common Stock, and
stock of any other class into which such presently authorized Common Stock may
hereafter be changed, issuable upon exercise of Warrant. In case, by reason of
the operation of Section 7, the Warrants shall entitle the registered holders
thereof to purchase any other shares of stock or other securities or property of
the Company or of any other corporation, any reference in this Agreement to the
exercise of Warrants shall be deemed to
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refer to and include the purchase of such other shares of stock or other
securities or property upon such exercise.
SECTION 6. Warrant Price and Stock Conversion Date of Warrants. The
registered holder of any Warrant Certificate may exercise the Warrants evidenced
thereby in whole or in part at any time on or after the date hereof upon
surrender of the Warrant Certificate with the form of election to purchase on
the reverse side thereof duly executed, to the Warrant Agent at the Warrant
Agent's office designated for such purpose, together with payment of the
purchase price for each share of Common Stock as to which the Warrants are
exercised, at or prior to 3:30 p.m. Eastern Time on June 29, 2010 (the "Exercise
Date").
The purchase price for each share of Common Stock pursuant to the
exercise of a Warrant (the "Warrant Price") shall be equal to $5.84 per share,
in each case as adjusted pursuant to Section 7 hereof, and shall be payable in
lawful money of the United States of America.
Anything in this Agreement to the contrary notwithstanding, the Warrant
Agent shall have no duty (i) to determine or calculate the Warrant Price or (ii)
confirm or verify the accuracy or correctness of the Warrant Price; the Warrant
Agent's sole duty under this Section is to accept the Warrant Certificates and
take possession for the benefit of the Company of the payment of the Warrant
Price delivered to it by a holder of the Warrant Certificate.
SECTION 7. Warrant Adjustments.
(a) Stock Dividends, Subdivisions, Combinations and
Reclassifications. In case the Company shall at any time after the date of this
Agreement (i) declare a dividend on the Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the
outstanding Common Stock into a smaller number of shares, or (iv) issue any
shares of its capital stock in a reclassification of the Common Stock (including
any such reclassification in connection with a consolidation or merger in which
the Company is the continuing corporation), the Warrant Price in effect at the
time of the record date for such dividend or of the effective date of such
subdivision, combination or reclassification, and/or the number and kind of
shares of capital stock issuable upon exercise of the Warrants on such date
shall be proportionately adjusted so that the holder of any Warrant exercised
after such time shall be entitled to receive the aggregate number and kind of
shares of capital stock which, if such Warrant had been exercised immediately
prior to such date and at a time when the Common Stock transfer books of the
Company were open, such holder would have owned upon such exercise and been
entitled to receive by virtue of such dividend, subdivision, combination or
reclassification. Such adjustment shall be made successively whenever any event
listed above shall occur.
(b) Distributions. If at any time after the date hereof the Company
shall fix a record date for the making of a distribution to all holders of its
Common Stock of evidences of its indebtedness or assets (excluding distributions
of shares of Common Stock and cash distributions made as a dividend payable out
of earnings or out of surplus legally available for dividends under the laws of
the jurisdiction of the Company), then in each case provision shall be made so
that the holder of any Warrants will thereafter receive, upon the exercise
thereof in accordance with the terms of this Agreement, in addition to the
number of shares of Common Stock issuable
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thereunder, the kind and amount of indebtedness or assets which the holder of
the Warrant would have been entitled to receive had the Warrant been exercised
on the date of such event and had the holder of the Warrant thereafter, during
the period from the date of such event to and including the actual date of
exercise of the Warrant determined pursuant to Section 9, retained any such
securities receivable during such period, giving application to all adjustments
called for during such period under this Section 7 with respect to the rights of
the holder of the Warrant.
(c) Consolidation, Merger or Sale of Assets. If, prior to the
exercise of any Warrants, the Company shall at any time consolidate with or
merge into another corporation in a transaction in which the Common Stock is
converted into or exchanged for other securities or property, the holder of any
Warrants will thereafter receive, upon the exercise thereof in accordance with
the terms of this Agreement, the securities or property to which the holder of
the number of shares of Common Stock then deliverable upon the exercise or
conversion of such Warrants would have been entitled upon such consolidation or
merger, and the Company shall take such steps in connection with such
consolidation or merger as may be necessary to assure that the provisions hereof
shall thereafter be applicable, as nearly as reasonably may be, in relation to
any securities or property thereafter deliverable upon the exercise of the
Warrants. The Company or the successor corporation, as the case may be, shall
execute and deliver to the Warrant Agent a supplemental agreement so providing.
A sale of all or substantially all the assets of the Company for a consideration
(apart from the assumption of obligations) consisting primarily of securities
shall be deemed a consolidation or merger for the foregoing purposes. The
provisions of this subsection (c) shall similarly apply to successive mergers or
consolidations or sales or other transfers.
(d) Calculations to the Nearest Cent and One-Hundredth of a Share.
No adjustment in the Warrant Price shall be required unless such adjustment
would require an increase or decrease of at least 1% in such price; provided,
however, that any adjustments which by reason of this Section 7(d) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section 7 shall be made to
the nearest cent and to the nearest one-hundredth of a share as the case may be.
Notwithstanding the first sentence of this subsection (d), any adjustment
required by this Section 7 shall be made no later than the earlier of six months
from the date of the transaction which mandates such adjustment or the
expiration of the right to exercise any Warrant.
(e) Notice of Warrant Adjustment. Whenever the Warrant Price or the
number of shares purchasable upon exercise of a Warrant shall be adjusted as
provided in this Section 7, the Company shall forthwith file with the Warrant
Agent a certificate, signed by the Company's Chief Financial Officer, showing in
detail the facts requiring such adjustment and the Warrant Price and number of
shares so purchasable that will be effective after such adjustment. The Company
shall also cause a notice setting forth any adjustments to be sent by mailing
first class, postage prepaid, to each registered holder of a Warrant or Warrants
at its address appearing on the Warrant register and, at its option, may cause a
copy of such notice to be published once in an English language newspaper of
general circulation in the City of New York, New York. The Warrant Agent shall
have no duty with respect to any certificate filed with it except to keep the
same on file and available for inspection by registered holders of Warrants
during reasonable business hours. The Warrant Agent shall not at any time be
under any duty or responsibility to any holder of a Warrant to determine whether
any facts exist which may require any adjustment of the Warrant Price, or with
respect to the nature of any adjustment
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of the Warrant Price when made, or with respect to the method employed in making
such adjustment. The Warrant Agent shall not be deemed to have knowledge of any
adjustment or any such event unless and until it shall have received such
certificate.
(f) Other Notices. In case the Company after the date hereof shall
propose to take any action of the type described in subsections (b) and (c) of
this Section 7 or fix a record date for the purpose of determining the holders
thereof who are entitled to receive any right to subscribe for, purchase or
otherwise acquire shares of Common Stock (or securities convertible into shares
of Common Stock), the Company shall file with the Warrant Agent a certificate,
signed by the President or any Vice President of the Company and by its
Treasurer or Assistant Treasurer or Secretary or Assistant Secretary specifying,
in the case of any action of the type specified in subsection (c), the date on
which such action shall take place and shall also set forth such facts with
respect thereto as shall be reasonably necessary to indicate the effect of such
action (to the extent such facts may be known on the date of such notice) on the
Warrant Price and the number, or kind, or class of shares or other securities or
property which shall be purchasable upon exercise of Warrants. Such notice shall
be given in the case of any action of the type specified in subsection (b) or
any action to fix a record date for rights to subscribe, at least 12 days prior
to the record date with respect thereto and in the case of any action of the
type specified in subsection (c) at least 12 days prior to the taking of such
proposed action. The Company shall also cause a notice setting forth any
adjustments to be sent by mailing first class, postage prepaid, to each
registered holder of a Warrant Certificate or Warrant Certificates at its
address appearing on the Warrant register and, at its option, may cause a copy
of such notice to be published once in an English language newspaper of general
circulation in the City of New York, New York. Failure to give such notice or
any defect therein shall not affect the legality or validity of such action.
(g) No Change in Warrant Terms on Adjustment. Irrespective of any of
the adjustments in the Warrant Price or the number of shares of Warrant Common
Stock, Warrant Certificates theretofore or thereafter issued may continue to
express the same prices and number of shares as are stated in a similar Warrant
Certificate issuable initially, or at some subsequent time, pursuant to this
Agreement and such number of Shares specified therein shall be deemed to have
been so adjusted.
(h) Treasury Shares. Shares of Common Stock at any time owned by the
Company shall not be deemed to be outstanding for purposes of any computation
under this Section 7.
SECTION 8. Current Market Price. For all purposes of this Agreement,
the Current Market Price per share of Common Stock on any date shall be deemed
to be the average of the daily closing prices for the five consecutive business
days commencing before such date. The closing price for each day shall be the
average of the closing sales price regular way, as reported by the Nasdaq
National Market or a similar source selected from time to time by the Company
for the purpose. If on any such date the shares of Common Stock are not quoted
by any such source, the fair value of such shares on such date, as determined by
the Board of Directors of the Company, shall be used. Anything in this Agreement
to the contrary notwithstanding, the Warrant Agent shall have no duty (i) to
determine or calculate the Current Market Price or (ii) confirm or verify the
accuracy or correctness of the Current Market Price.
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SECTION 9. Exercise of Warrants. (a) Subject to the provisions of this
Agreement, each registered holder of Warrants shall have the right, which may be
exercised as in such Warrant Certificates expressed, to purchase from the
Company (and the Company shall issue and sell to such registered holders of
Warrants) all or part of the number of fully paid and nonassessable shares of
Warrant Common Stock specified in such Warrant Certificates (subject to the
adjustments as herein provided), upon surrender to the Company at the office of
the Warrant Agent designated for such purpose, of such Warrant Certificates with
the exercise form on the reverse thereof duly filled in and signed and affixed
with signature medallion guarantee, and upon payment to the Warrant Agent to the
account of the Company of the Warrant Price for the number of shares of Warrant
Common Stock in respect of which such Warrants are then exercised. The date of
exercise of any Warrant shall be deemed to be the date of its receipt by the
Warrant Agent duly filled in and signed and accompanied by proper funds as
hereinafter provided. Payment of such Warrant Price may be made in wire transfer
in immediately available funds, cash, or by certified or official bank check. No
adjustment shall be made for any cash dividends on shares of Warrant Common
Stock issuable upon exercise of a Warrant. Upon such surrender of Warrants, and
payment of the Warrant Price as aforesaid, the Company shall issue and cause to
be delivered with all reasonable dispatch to or upon the written order of the
registered holder of such Warrants and in such name or names as such registered
holder may designate, a certificate or certificates for the number of full
shares of Warrant Common Stock so purchased upon the exercise of such Warrants
together with cash as provided in Section 11 of this Agreement, in respect of
any fraction of a share of such stock issuable upon such surrender.
Each person in whose name any certificate for shares of Common Stock is
issued upon the exercise of Warrants shall for all purposes be deemed to have
become the holder of record of the Common Stock represented thereby on, and such
certificate shall be dated, the date upon which the Warrant Certificate
evidencing such Warrants was duly surrendered and payment of the Warrant Price
(and any applicable transfer taxes) was made; provided, however, that if the
date of such surrender and payment is a date upon which the Common Stock
transfer books of the Company are closed, such person shall be deemed to have
become the record holder of such shares on, and such certificate shall be dated,
the next succeeding business day on which the Common Stock transfer books of the
Company are open.
(b) In addition to the method of payment set forth in paragraph 9(a)
and in lieu of any cash payment required thereunder, each registered holder of
the Warrants shall have the right at any time and from time to time to exercise
the Warrant in full or in part by surrendering to the Company at the office of
the Warrant Agent designated for such purpose, such Warrant Certificates with
the exercise form on the reverse thereof duly filled in and signed. The number
of Shares of Warrant common Stock to be issued pursuant to this paragraph (b)
shall be equal to the difference between:
(i) the number of Shares of Warrant Common Stock in respect
of which the Warrant Certificate if exercised; and
(ii) a fraction, the numerator of which shall be the number
of Shares of Common Stock in respect of which the Warrant Certificate is
exercised multiplied by the Warrant Price and the denominator of which shall be
the Current Market Price (as defined in Section 8 hereof) of the Common Stock.
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Anything in this Agreement to the contrary notwithstanding,
the Warrant Agent shall have no duty (i) to determine or calculate the Warrant
Price or (ii) confirm or verify the accuracy or correctness of the Warrant
Price; the Warrant Agent's sole duty under this Section is to accept the Warrant
Certificates and take possession for the benefit of the Company of the payment
of the Warrant Price delivered to it by a holder of the Warrant Certificate.
SECTION 10. Unexercised Warrants. To the extent that any Warrant
Certificates remain outstanding at the expiration of the period during which the
Warrants are exercisable, the unexercised Warrants represented thereby shall be
deemed null and void.
SECTION 11. Elimination of Fractions. The Company shall not be required
to issue fractional shares of stock upon any exercise of Warrants. As to any
final fraction of a share which the same registered holder of one or more
Warrants, the rights under which are exercised in the same transaction or series
of related transactions, would otherwise be entitled to purchase upon such
exercise, the Company shall pay a cash adjustment in respect of such final
fraction in an amount equal to the same fraction of the Current Market Price (as
determined in the manner prescribed in Section 8 hereof) on the business day
which next precedes the day of exercise. The Warrant Agent shall be fully
protected in relying upon such a Warrant and shall have no duty with respect to,
and shall not be deemed to have knowledge of, any payment for fractional shares
of stock under any Section of this Agreement relating to the payment of
fractional shares of stock unless and until the Warrant Agent shall have
received appropriate instructions from the Company and sufficient monies.
SECTION 12. Issue Taxes. The Company will pay documentary stamp taxes,
if any, attributable to the initial issuance of shares of Warrant Common Stock
upon the exercise of any Warrant; provided, however, that neither the Company
nor the Warrant Agent shall be required to pay any taxes or charges which may be
payable in respect of any transfer involved in the issue or delivery of any
certificates for shares of Warrant Common Stock in a name other than that of the
registered holder of Warrants, in respect of which such shares are initially
issued.
SECTION 13. Reservation of Shares. The Company shall at all times
reserve and keep available out of its authorized but unissued stock, for the
purpose of effecting the issuance of stock upon exercise of Warrants, such
number of shares of its duly authorized Warrant Common Stock as shall from time
to time be sufficient to effect the issuance of shares of Warrant Common Stock
upon exercise of all Warrants at the time outstanding.
SECTION 14. Merger or Consolidation or Change of Name of Warrant Agent.
Any person or entity into which the Warrant Agent may be merged or with which it
may be consolidated, or any person or entity resulting from any merger or
consolidation to which the Warrant Agent shall be a party, or any person or
entity succeeding to the Warrant Agent, shall be the successor to the Warrant
Agent hereunder without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In the case of Warrants which have been countersigned by the
Warrant Agent, but not delivered at the time any such successor to the Warrant
Agent succeeds to the agency created by this Agreement, any such successor may
adopt the countersignature of the original Warrant Agent and deliver such
Warrants so countersigned; and in case at that time any of the Warrants shall
not have been countersigned, any successor to the Warrant Agent may
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countersign such Warrants either in the name of the predecessor Warrant Agent or
in the name of the successor Warrant Agent; and in all such cases such Warrants
shall have the full force and effect provided in the Warrants and in this
Agreement.
In case at any time the name of the Warrant Agent shall be changed and
at such time any of the Warrants shall have been countersigned but not
delivered, the Warrant Agent may adopt the countersignature under its prior name
and deliver Warrant Certificates so countersigned, and in case at that time any
of the Warrant Certificates shall not have been countersigned, the Warrant Agent
may countersign such Warrant Certificates either in its prior name or in its
changed name; and in all such cases such Warrant Certificates shall have the
full force and effect provided in the Warrant Certificates and in this
Agreement.
SECTION 15. Disposition of Proceeds on Exercise of Warrants, etc. The
Warrant Agent shall account promptly to the Company with respect to Warrants
exercised and concurrently pay to the Company all moneys received by the Warrant
Agent for the purchase of shares of Common Stock through the exercise of such
Warrants.
The Warrant Agent shall keep copies of this Agreement available for
inspection by holders of Warrants during normal business hours at its office
specified in Section 21 hereof.
SECTION 16. Supplements and Amendments. The Warrant Agent may (but is
not required if the supplement or amendment changes the rights, immunities,
duties or liabilities of the Warrant Agent) from time to time, join the Company
in making supplements or amendments to this Agreement without the approval of
any holders of Warrants (i) to cure any ambiguity or to correct or supplement
any provision contained in this Agreement that may be defective or inconsistent
with any other provision contained herein and which supplement or amendment
shall not materially adversely affect the interests of the registered holders of
the Warrants, or (ii) to make such other provisions with respect to any change
or any supplemental agreement as the parties may deem necessary or desirable and
which supplement or amendment shall not adversely affect the interests of the
registered holders of the Warrants.
SECTION 17. Mutilated or Missing Warrant Certificates. If any Warrant
shall be mutilated, lost, stolen or destroyed the Warrant Agent shall deliver a
new Warrant Certificate of like tenor and denomination in exchange and
substitution therefor upon surrender and cancellation of the mutilated Warrant
Certificate or, in the case of a lost, stolen or destroyed Warrant Certificate,
upon receipt of evidence satisfactory to the Company and the Warrant Agent of
the loss, theft or destruction of such Warrant Certificate and, in either case,
upon receipt of such indemnity as the Company and the Warrant Agent may
reasonably require. Applicants for substitute Warrant Certificates shall also
comply with such other reasonable regulations and pay such other reasonable
charges as the Warrant Agent or the Company may prescribe. Any such new Warrant
Certificate shall constitute an original contractual obligation of the Company,
whether or not the allegedly lost, stolen, mutilated or destroyed Warrant
Certificate shall be at any time enforceable by anyone.
SECTION 18. Duties of the Warrant Agent. The Warrant Agent undertakes
the duties and obligations imposed by this Warrant Agreement upon the following
terms and conditions, by
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all of which the Company and the holders of Warrants, by their acceptance
thereof, shall be bound:
The Warrant Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the Warrant
Certificates (except its countersignature thereof and except such as describes
the Warrant Agent or action taken or to be taken by it) or be required to verify
the same, but all such statements and recitals are and shall be deemed to have
been made by the Company only. The Warrant Agent shall not be under any
responsibility in respect of the validity of this Agreement or the execution and
delivery hereof or in respect of the validity or execution of any Warrant
Certificate (except its countersignature thereof); nor shall it be responsible
for any breach by the Company of any covenant or condition contained in this
Agreement or in any Warrant Certificate to be complied with by the Company; nor
shall it be responsible for the making of any adjustment in the Warrant Price or
the number of shares issuable upon the exercise of a Warrant required under the
provisions of Section 7 or responsible for the manner, method or amount of any
such change or the ascertaining of the existence of facts that would require any
such change; nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any shares
to be issued pursuant to this Agreement or any Warrant or as to whether any
shares will, when issued, be validly issued and fully paid and non-assessable.
The Warrant Agent may execute and exercise any of the rights or powers
hereby vested in it or perform any duty hereunder either itself or by or through
its attorneys, agents or employees.
The Warrant Agent may consult at any time with legal counsel
satisfactory to it (who may be legal counsel for the Company) and the advice or
opinion of such counsel shall be full and complete authorization and protection
to the Warrant Agent as to any action taken or omitted by it in good faith and
in accordance with such advice or opinion.
The Warrant Agent shall incur no liability or responsibility to the
Company or to any holder of a Warrant Certificate for any action taken in
reliance on any notice, resolution, waiver, consent, order, certificate, or
other paper, document or instrument believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties.
The Company agrees to pay to the Warrant Agent reasonable compensation
for all services rendered by the Warrant Agent in the execution of this Warrant
Agreement, to reimburse the Warrant Agent for all expenses (including reasonable
counsel fees), taxes and governmental charges and other charges of any kind and
nature incurred by the Warrant Agent in the preparation, administration,
delivery, execution and amendment of this Warrant Agreement. The Company hereby
further agrees to indemnify the Warrant Agent and save it harmless against any
and all losses, liabilities and expenses, including judgments, damages, fines,
penalties, claims, demands, settlements, costs and reasonable counsel fees and
expenses, for anything done, suffered or omitted by the Warrant Agent arising
out of or in connection with this Agreement except as a result of its gross
negligence, willful misconduct or bad faith (each as finally determined by a
court of competent jurisdiction). The costs and expenses incurred by the Warrant
Agent in enforcing the right to indemnification shall be paid by the Company
unless it is determined by a final order, judgment, decree or ruling of a court
of competent jurisdiction that
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the Warrant Agent is not entitled to indemnification due to its own gross
negligence, willful misconduct or bad faith.
The Warrant Agent and any stockholder, director, officer or employee of
the Warrant Agent may buy, sell, or deal in any of the Warrants or other
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were not Warrant Agent
under this Warrant Agreement. Nothing herein shall preclude the Warrant Agent
from acting in any other capacity for the Company or for any other legal entity.
The Warrant Agent shall act hereunder solely as agent for the Company
and in a ministerial capacity, and its duties shall be determined solely by the
express provisions hereof (and no duties, unless expressly stated shall be
implied). The Warrant Agent shall not be liable for anything which it may do or
refrain from doing in connection with this Agreement except for its own gross
negligence, willful misconduct or bad faith (each as finally determined by a
court of competent jurisdiction). In no event will the Warrant Agent be liable
for special, indirect, incidental, punitive or consequential loss or damage of
any kind whatsoever, even if the Warrant Agent has been advised of the
possibility of such loss or damage. Any liability of the Warrant Agent under
this Agreement to the Company will be limited to the amount of fees agreed to be
paid by the Company to the Warrant Agent.
In the event that the Warrant Agent shall in any instance, after
seeking the advice of legal counsel pursuant to this Agreement, in good faith be
uncertain as to its duties or rights hereunder, it shall be entitled to refrain
from taking any action in that instance until it shall be directed otherwise in
writing by the Chairman of the Board, the President, the Chief Financial
Officer, a Vice President, the Secretary or the Treasurer of the Company which
eliminates such ambiguity or uncertainty to the satisfaction of Warrant Agent,
or by a final, nonappealable order of a court of competent jurisdiction;
provided, however, in the event that the Warrant Agent has not received such
written direction or court order within one hundred eighty (180) calendar days
after requesting the same, it shall have the right to interplead the Company in
any court of competent jurisdiction and request that such court determine its
rights and duties hereunder.
The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from any
one of the Chairman of the Board, the President, the Chief Financial Officer, a
Vice President, the Secretary or the Treasurer of the Company, and to apply to
such officers for advice or instructions in connection with its duties, and such
instructions shall be full authorization and protection to the Warrant Agent,
and the Warrant Agent shall not be liable for any action taken, suffered or
omitted to be taken by it in accordance with instructions of any such officer.
No provision of this Agreement shall require the Warrant Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of its rights if
it believes that repayment of such funds or adequate indemnification against
such risk or liability is not reasonably assured to it.
The provisions of this Section shall survive the termination of this
Agreement, the exercise or expiration of the Warrants and the resignation or
removal of the Warrant Agent.
10
SECTION 19. Change of Warrant Agent. The Warrant Agent may resign and
be discharged from its duties under this Agreement, subject to appointment of a
successor Warrant Agent in accordance with the terms of this Section 19, upon 30
days' notice in writing mailed to the Company by registered or certified mail,
and to the holders of the Warrant Certificates by first-class mail. The Company
may remove the Warrant Agent or any successor Warrant Agent upon 30 days' notice
in writing, mailed to the Warrant Agent or successor Warrant Agent, as the case
may be, and to each transfer agent of the Common Stock by registered or
certified mail, and to the holders of the Warrant Certificates by first-class
mail. If the Warrant Agent shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a successor to the Warrant Agent.
If the Company shall fail to make such appointment within a period of 30 days
after such removal or after it has been notified in writing of such resignation
or incapacity by the resigning or incapacitated Warrant Agent or by the holder
of a Warrant Certificate (who shall, with such notice, submit such holder's
Warrant Certificate for inspection by the Company), then the registered holder
of any Warrant Certificate may apply to any court of competent jurisdiction for
the appointment of a new Warrant Agent. Any successor Warrant Agent, whether
appointed by the Company or by such a court, shall be a nationally recognized
entity organized and doing business under the laws of the United States or of
the State of New York, in good standing, which is subject to supervision or
examination by federal or state authority. After appointment, the successor
Warrant Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Warrant Agent without
further act or deed; but the predecessor Warrant Agent shall deliver and
transfer to the successor Warrant Agent any property at the time held by it
hereunder, and execute and deliver any further assurance, conveyance, act or
deed necessary for the purpose. Not later than the effective date of such
appointment the Company shall file notice thereof in writing with the
predecessor Warrant Agent and each transfer agent of the Common Stock, and mail
a notice thereof in writing to the registered holders of the Warrant
Certificates. Failure to give any notice provided for in this Section 19,
however, or any defect therein, shall not affect the legality or validity of the
resignation or removal of the Warrant Agent or the appointment of the successor
Warrant Agent, as the case may be.
SECTION 20. Identity of Transfer Agent. Forthwith upon the appointment
of any subsequent Transfer Agent for shares of the Common Stock, the Company
will file with the Warrant Agent a statement setting forth the name and address
of such Transfer Agent.
SECTION 21. Notices. Any notice pursuant to this Agreement to be given
by the Warrant Agent or by the registered holder of any Warrant to the Company
shall be sufficiently given if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing by the Company with the
Warrant Agent) as follows:
Auxilium Pharmaceuticals, Inc.
00 Xxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxxxxxx Xxxxx Xxxxxx, Esq.
Executive Vice President, Secretary and General Counsel
11
with copies to:
Xxxxxx, Xxxxx & Bockius LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Any notice pursuant to this Agreement to be given by the Company or by
the registered holder of any Warrant to the Warrant Agent shall be sufficiently
given if sent by first-class mail, postage prepaid, addressed (until another
address is filed in writing by the Warrant Agent with the Company) as follows:
StockTrans, Inc.
00 Xxxx Xxxxxxxxx Xxx.
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
SECTION 22. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
SECTION 23. Governing Law. This Agreement and each Warrant issued
hereunder shall be deemed to be a contract made under the laws of the state of
New York, and for all purposes shall be construed in accordance with the laws of
the state of New York, without regard to principles of conflict of laws.
SECTION 24. Benefits of this Agreement. Nothing in this Agreement shall
be construed to give to any person or entity other than the Company, the Warrant
Agent and the registered holders of the Warrant Certificates any legal or
equitable right, remedy or claim under this Agreement; but this Agreement shall
be for the sole and exclusive benefit of the Company, the Warrant Agent and the
registered holders of the Warrant Certificates.
SECTION 25. Counterparts. This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
SECTION 26. Registration of Shares of Common Stock. The Company will
furnish to the Warrant Agent, upon request, an opinion of counsel to the effect
that (i) a Registration Statement under the Securities Act of 1933 is then in
effect with respect to the Warrants and/or the shares of Warrant Common Stock
issuable upon exercise of the Warrants and the Prospectuses hereinafter referred
to comply as to form in all material respects with the requirements of said Act
and the rules and regulations of the Securities and Exchange Commission
thereunder; or (ii) a Registration Statement under said Act with respect to said
warrants and/or shares is not required (such opinion to also contain appropriate
advice regarding the legending of such shares). In the event that said opinion
states that such a Registration Statement is in effect the Company will, from
time to time, furnish the Warrant Agent with current Prospectuses meeting the
requirements of said Act and all rules and regulations
12
thereunder in sufficient quantity to permit the Warrant Agent to deliver a
Prospectus to each transferee of a Warrant Certificate and each holder of a
Warrant Certificate upon exercise or conversion thereof. The Company further
agrees to pay all fees, costs and expenses in connection with the preparation
and delivery to the Warrant Agent of the foregoing opinions and Prospectuses.
If any shares of Warrant Common Stock issuable upon the exercise of the
Warrants or the issuance thereof requires registration or approval of any
governmental authority, including, without limitation, the filing of necessary
amendments, supplements or post-effective amendments to a Registration Statement
of the Company under the Securities Act of 1933, or the taking of any other
action under the laws of the United States of America or any political
subdivision hereof or under the laws of any state of the United States of
America before such shares may be validly and legally issued, then the Company
covenants that it will in good faith and as expeditiously as possible endeavor
to secure and keep effective such registration or approval or to take such other
action, as the case may be.
13
IN WITNESS WHEREOF, the parties hereto have caused this Warrant
Agreement to be executed and delivered as of the day and year first above
written.
AUXILIUM PHARMACEUTICALS, INC.
/s/ Xxxxx X. Xxxxxxx
-----------------------------
By: Xxxxx X. Xxxxxxx
Its: CEO
STOCKTRANS, INC.
as Warrant Agent
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------
By: Xxxxxx X. Xxxxxxxx
Its: Assistant to Vice President,
Operations
14
EXHIBIT A
THIS WARRANT AND ANY SHARES ACQUIRED UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
ASSIGNED OR TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH
SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND SUCH REGISTRATION
OR QUALIFICATION AS MAY BE REQUIRED UNDER THE SECURITIES LAWS OF ANY STATE OR AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH SECURITIES LAWS.
THIS WARRANT IS SUBJECT TO THE TERMS AND, CONDITIONS AND RESTRICTIONS OF A
WARRANT AGREEMENT AMONG THE COMPANY AND STOCKTRANS, INC., AS THE WARRANT AGENT.
A COPY OF THE WARRANT AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST
MADE BY THE HOLDER OF RECORD OF THIS WARRANT TO THE WARRANT AGENT.
FORM OF WARRANT
EXERCISABLE AT ANY TIME AT OR PRIOR TO
3:30 P.M. NEW YORK, EASTERN TIME
ON JUNE 29, 2010
WARRANT CERTIFICATE
AUXILIUM PHARMACEUTICALS, INC.
NO. W-29
This certifies that Perseus-Xxxxx Biopharmaceutical Fund, L.P. or
registered assigns is the registered holder of the number of Warrants set forth
above, and is entitled, upon surrender of this Warrant Certificate at the office
of StockTrans, Inc., Warrant Agent (or any successor as such Warrant Agent),
designated by the Warrant Agent for such purpose, at any time on or after the
offering date and at or prior to 3:30 p.m. Eastern Time on June 29, 2010, to
purchase 153,022 shares of Common Stock, par value $0.01, of Auxilium
Pharmaceuticals, Inc., a Delaware corporation (the "Company"), at the price
equal to $5.84 per share.
The applicable per share purchase price shown above and the number of
shares issuable upon exercise of the Warrants represented by this Warrant
Certificate are subject to adjustment for the occurrence of certain events,
including stock dividends and split-ups, combinations, reorganizations and
reclassifications, as set forth in the Warrant Agreement hereinafter referred
to. A complete statement with respect to such adjustments and to other terms and
conditions pertaining to the Warrants is contained in the Warrant Agreement,
dated as of June 29, 2005, between the Company and StockTrans, Inc., Warrant
Agent, a copy of which may be examined by the registered holder hereof at the
office of the Warrant Agent.
To exercise the Warrants represented by this Warrant Certificate the
form of election to purchase on the reverse hereof must be duly executed and the
accompanying instructions for the registration and delivery of the stock must be
filled in.
The Warrants represented by this Warrant Certificate are transferable
(subject to the conditions set forth in the preceding paragraphs and in the
Warrant Agreement) at the office of the Warrant Agent (or of its successor as
Warrant Agent) designated for such purpose by the registered holder thereof in
person or by attorney duly authorized in writing, upon surrender of this Warrant
Certificate and delivery of an opinion of counsel reasonably satisfactory to the
Company to the effect that such transfer may occur without registration under
the Securities Act of 1933, as amended. Upon any such transfer, a new Warrant
Certificate, representing the right to purchase a like number of shares of the
Company's Common Stock, will be issued to the transferee in exchange for this
Warrant Certificate.
This Warrant Certificate and similar Warrant Certificates when
surrendered at the office of the Warrant Agent (or of its successor as Warrant
Agent) designated for such purpose by the registered holder hereof in person or
by attorney duly authorized in writing may be exchanged for another Warrant
Certificate or Warrant Certificates, representing in the aggregate the right to
purchase a like number of shares of the Company's Common Stock.
If the Warrants evidenced by this Warrant Certificate remain
outstanding at the expiration of the period during which Warrants are
exercisable, as set forth in the first paragraph of this Warrant Certificate,
such Warrants shall thereupon be deemed null and void.
No fractional shares of Common Stock will be issued upon the exercise
of any Warrant or Warrants evidenced hereby, but in lieu thereof, a cash payment
will be made, as provided in the Warrant Agreement.
No holder of this Warrant Certificate shall be entitled to vote or
receive cash dividends or be deemed for any purpose the holder of Common Stock
or of any other securities of the Company which may at any time be issuable on
the exercise hereof, nor shall anything contained in the Warrant Agreement or
herein be construed to confer upon the holder hereof, as such, any of the rights
of a stockholder of the Company or any right to vote upon any matter submitted
to stockholders at any meeting thereof, or to give or withhold consent to any
corporate action (whether upon any recapitalization, issue of stock,
reclassification of stock, change of par value, consolidation, merger,
conveyance, or otherwise) or, except as provided in the Warrant Agreement, to
receive notice of meetings, or to receive dividends or subscription rights or
otherwise, until the Warrant or Warrants evidenced by this Warrant Certificate
shall have been exercised as provided in the Warrant Agreement.
AUXILIUM PHARMACEUTICALS, INC.
By:
----------------------------------------
Its:
---------------------------------------
This Warrant Certificate is not valid until countersigned by the Warrant Agent.
2
Dated: Countersigned:
STOCKTRANS, INC.
as Warrant Agent
By:
--------------------------------
Authorized Officer
3
FORM OF EXERCISE
(FORM OF EXERCISE TO BE EXECUTED BY THE WARRANT
HOLDER AT THE TIME OF EXERCISE)
To STOCKTRANS, INC. or its successor as Warrant Agent:
The undersigned, holder of the within Warrant Certificate, hereby (1)
irrevocably exercises the undersigned's right to purchase _________ shares of
Common Stock, par value $0.01 per share, of Auxilium Pharmaceuticals, Inc. (the
"Company") which the undersigned is entitled to purchase under the terms of the
within Warrant Certificate, or such other securities as the undersigned shall be
entitled to purchase under the terms of the Warrant Agreement referred to in
such Warrant Certificate by reason of the occurrence of certain events specified
therein, and (2) elects to make payment in full for the number of shares of
Common Stock so purchased by payment of $______ in wire transfer in immediately
available funds, cash or by certified or official bank check or (3) elects to
exercise this Warrant pursuant to the provisions of Section 9(b) of the Warrant
Agreement.
Please issue the certificate for shares of Common Stock in the name of,
and pay any cash for any fractional share to:
Print or type name
Social Security or other Identifying Number
Street Address
City State Zip Code
If such number of shares shall not be all the shares purchasable upon
the exercise of the Warrants evidenced by this Warrant Certificate, a new
Warrant Certificate for the balance of such Warrants remaining unexercised shall
be registered in the name of and delivered to:
Please insert social security or other identifying number: ____________
(Please print name and address)
Dated: ___________, _______
Signature (Signature must conform in all respects to name of holder as
specified on the face of the Warrant Certificate)
(Signature Medallion Guaranteed): ______________ Date: ________________
(If the Common Stock, cash in lieu of fractional shares, or Warrants
for any unexercised balance are to be issued or paid to a person other than the
person in whose name the within Warrant is registered, or if otherwise requested
by the Company or the Warrant Agent, a signature Medallion guarantee is
required.)
ASSIGNMENT
(FORM OF ASSIGNMENT TO BE EXECUTED IF WARRANT
HOLDER DESIRES TO TRANSFER WARRANT)
FOR VALUE RECEIVED, __________________________________ hereby sells,
assigns, and transfer unto ____________________ this Warrant Certificate
together with all right, title or interest therein and does hereby irrevocably
appoint ___________________ attorney to transfer the within Warrant Certificate
on the books of the Warrant Agent with full power of substitution in the
premises.
Dated: _____________
Signature (Signature must conform in all respects to name of holder as
specified on the face of the Warrant Certificate)
(Signature Medallion Guaranteed): ________________ Date: ______________
