Exhibit 10.2
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WARRANT AGREEMENT
by and between
ENDO PHARMACEUTICALS HOLDINGS INC.
and
UNITED STATES TRUST COMPANY OF NEW YORK,
as
Warrant Agent
___________
Dated as of July 17, 2000
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TABLE OF CONTENTS
Page
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Section 1. Appointment of Warrant Agent.............................. 1
Section 2. Warrant Certificates...................................... 2
Section 3. Execution of Warrant Certificates......................... 2
Section 4. Registration and Countersignature......................... 3
Section 5. Transfer and Exchange of Warrants......................... 3
Section 6. Registration of Transfers and Exchanges................... 5
Section 7. Terms of Warrants; Exercise of Warrants................... 8
Section 8. Payment of Taxes.......................................... 11
Section 9. Mutilated or Missing Warrant Certificates................. 12
Section 10. Reservation of Warrant Shares............................. 12
Section 11. Obtaining Stock Exchange Listings......................... 13
Section 12. Adjustment of Exercise Price and Number of Warrant
Shares Issuable........................................... 13
Section 13. Fractional Interests...................................... 20
Section 14. Notices to Warrant Holders; Reservation of Dividends...... 20
Section 15. Notices to the Company and Warrant Agent.................. 23
Section 16. Supplements and Amendments; Actions....................... 24
Section 17. Concerning the Warrant Agent.............................. 24
Section 18. Change of Warrant Agent................................... 27
Section 19. Successors................................................ 28
Section 20. Termination............................................... 28
Section 21. GOVERNING LAW............................................. 28
Section 22. Benefits of This Agreement................................ 28
Section 23. Counterparts.............................................. 28
Section 24. Headings.................................................. 29
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INDEX OF DEFINED TERMS
Affiliate................................................ 17
Agreement................................................ 1
Algos.................................................... 1
Business Day............................................. 9
Cashless Exercise........................................ 10
Class A Transferable Warrants............................ 1
Class A Warrant Certificates............................. 2
Class B Non-Transferable Warrants........................ 1
closing bid price........................................ 16
Common Stock............................................. 1, X-0, X-0
Xxxxxxx.................................................. 0, X-0
Current Market Value..................................... 16
Definitive Warrants...................................... 2
DTC...................................................... A-1
Exchange Act............................................. 16
Exercisability Date...................................... 9, A-5
Exercise Price........................................... 10, A-2
Exercise Rate............................................ 13
Expiration Date.......................................... 8, X-0, X-0
FDA...................................................... 9
Fully Diluted Shares..................................... 15
Global Warrants.......................................... 2
Holders.................................................. 3
Independent Financial Expert............................. 16
Legal Holiday............................................ 9
Merger Agreement......................................... 1
Ordinary Cash Distribution............................... 17
Reorganizations.......................................... 18
shares of Common Stock................................... 20
Sub...................................................... 1
Time of Determination.................................... 14
Transfer Agent........................................... 12
Transferor............................................... B-1
Ultimate Expiration Date................................. 8
Warrant.................................................. 1
Warrant Agent............................................ 1, A-5
Warrant Agreement........................................ X-0, X-0
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Warrant Register......................................... 3
Warrant Share............................................ A-2
Warrant Shares........................................... 1
Warrants................................................. X-0, X-0
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WARRANT AGREEMENT (the "Agreement"), dated as of July 17, 2000, by and
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between Endo Pharmaceuticals Holdings Inc., a Delaware corporation (together
with any successors and assigns, the "Company"), and United States Trust Company
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of New York, as Warrant Agent (the "Warrant Agent").
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WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated as of
November 26, 1999 (as may be amended and restated from time to time, the "Merger
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Agreement"), by and among the Company, Endo Inc., a Delaware corporation and
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wholly owned subsidiary of the Company ("Sub"), and Algos Pharmaceutical
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Corporation, a Delaware corporation ("Algos"), the Company proposes to issue
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warrants (each a "Warrant," and collectively, the "Warrants") for the purchase
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of an aggregate of up to 20,575,507 shares of common stock, par value $.01 per
share, of the Company (the "Common Stock," and the shares of Common Stock
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issuable upon exercise of the Warrants being referred to herein as the "Warrant
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Shares");
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WHEREAS, there shall be two classes of Warrants, Class A which shall be
transferable ("Class A Transferable Warrants") and Class B which shall not be
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transferable ("Class B Non-Transferable Warrants") and each holder of shares of
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common stock of Algos at the time of the stockholder vote relating to the Merger
Agreement may elect to receive all or a portion of such holder's Warrants to be
Class A Transferable Warrants or all or a portion of such holder's Warrants to
be Class B Non-Transferable Warrants and in the event any such holder of shares
of common stock of Algos does not make such an election, then such holder shall
be issued Class A Transferable Warrants. Such election, once made, will be
irrevocable;
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company and the Warrant Agent is willing to act in connection with the issuance,
transfer, exchange and exercise of Warrants as provided herein; and
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein, the Company and the Warrant Agent hereby agree as follows:
Section 1. Appointment of Warrant Agent. The Company hereby appoints the
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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.
Section 2. Warrant Certificates. The Class A Transferable Warrants will
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initially be issued in global form (the "Global Warrants"), substantially in the
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form of Exhibit A hereto. Any certificates evidencing the Global Warrants to be
delivered pursuant to this Agreement (the "Class A Warrant Certificates") shall
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be substantially in the form set forth in Exhibit A hereto. Such Global Warrants
shall represent such of the outstanding Class A Transferable Warrants as shall
be specified therein and each shall provide that it shall represent the
aggregate amount of outstanding Class A Transferable Warrants from time to time
endorsed thereon and that the aggregate amount of outstanding Class A
Transferable Warrants represented thereby may from time to time be reduced or
increased, as appropriate. Any endorsement of a Global Warrant to reflect the
amount of any increase or decrease in the amount of outstanding Class A
Transferable Warrants represented thereby shall be made by the Warrant Agent and
the Depositary (as defined below) in accordance with instructions given by the
holder thereof. The Depository Trust Company shall act as the Depositary with
respect to the Global Warrants until a successor shall be appointed by the
Company. Upon written request, a Warrant holder who holds Class A Transferable
Warrants may receive from the Depositary and Warrant Agent Class A Transferable
Warrants in registered form as definitive Warrant Certificates (the "Definitive
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Warrants") as set forth in Section 6 below. Class B Non-Transferable Warrants
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will be issued in certificated form, in the name of and in the denomination as
set forth in the applicable letter of transmittal accompanying the shares of
common stock of Algos surrendered by the holder thereof in connection with the
merger of Algos with and into Sub pursuant to the Merger Agreement.
Section 3. Execution of Warrant Certificates. Warrant Certificates shall
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be signed on behalf of the Company by its Chairman of the Board, its President,
Chief Executive Officer, Chief Operating Officer, Chief Financial Officer or
Treasurer or a Vice President and by its Secretary or an Assistant Secretary.
Each such signature upon the Warrant Certificates may be in the form of a
facsimile signature of the present or any future Chairman of the Board,
President, Chief Executive Officer, Chief Operating Officer, Chief Financial
Officer, Treasurer, Vice President, Secretary or Assistant Secretary and may be
imprinted or otherwise reproduced on the Warrant Certificates and for that
purpose the Company may adopt and use the facsimile signature of any person who
shall have been Chairman of the Board, President, Chief Executive Officer, Chief
Operating Officer, Chief Financial Officer, Treasurer, a Vice President,
Secretary or an Assistant Secretary, notwithstanding the fact that at the time
the Warrant Certificates shall be
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countersigned and delivered or disposed of such person shall have ceased to hold
such office.
In case any officer of the Company who shall have signed any of the Warrant
Certificates shall cease to be such officer before the Warrant Certificates so
signed shall have been countersigned by the Warrant Agent, or disposed of by the
Company, such Warrant Certificates nevertheless may be countersigned and
delivered or disposed of as though such person had not ceased to be such officer
of the Company; and any Warrant Certificate may be signed on behalf of the
Company by any person who, at the actual date of the execution of such Warrant
Certificate, shall be a proper officer of the Company to sign such Warrant
Certificate, although at the date of the execution of this Warrant Agreement any
such person was not such officer.
Warrant Certificates shall be dated the date of countersignature by the
Warrant Agent.
Section 4. Registration and Countersignature. The Warrants shall be
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numbered and shall be registered on the books of the Company maintained at the
principal office of the Warrant Agent in located at 000 Xxxx 00xx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Corporate Trust Division (the
"Warrant Register") as they are issued.
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Warrant Certificates shall be manually countersigned by the Warrant Agent
and shall not be valid for any purpose unless so countersigned. The Warrant
Agent shall, upon written instructions of the Chairman of the Board, the
President, Chief Executive Officer, Chief Operating Officer, Chief Financial
Officer, Treasurer, a Vice President, the Secretary or an Assistant Secretary of
the Company, initially countersign and deliver Warrants entitling the holders
thereof to purchase not more than the number of Warrant Shares referred to above
in the first recital hereof and shall thereafter countersign and deliver
Warrants as otherwise provided in this Agreement.
The Company and the Warrant Agent may deem and treat the registered holders
(the "Holders") of the Warrant Certificates as the absolute owners thereof
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(notwithstanding any notation of ownership or other writing thereon made by
anyone) for all purposes, and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
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Section 5. Transfer and Exchange of Warrants. The Warrant Agent shall
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from time to time, subject to the limitations of Section 6 hereof, register the
transfer of any outstanding Warrants upon the records to be maintained by it for
that purpose, upon surrender thereof duly endorsed or accompanied (if so
required by it) by a written instrument or instruments of transfer in form
satisfactory to the Warrant Agent and a certificate in the form of Exhibit B
hereto, in each case, duly executed by the registered Holder or Holders thereof
or by the duly appointed legal representative thereof or by a duly authorized
attorney; provided that Class B Non-Transferable Warrants may only be
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transferred (i) as the result or assignment by operation of law (such as death
or merger or otherwise) or (ii) as required by law or any court of competent
jurisdiction (such as in connection with divorce, bankruptcy or liquidation). A
request for a transfer of a Class B Non-Transferable Warrant shall be
accompanied by such documentation establishing satisfaction of the conditions
set forth in clause (i) or (ii) above, as applicable, as may be reasonably
requested by the Company (including opinions of counsel, if appropriate). Upon
receipt of documentation reasonably satisfactory to the Company, the Company
shall authorize the Warrant Agent to permit the transfer of a Class B Non-
Transferable Warrant. The Warrant Agent shall not permit the transfer of a Class
B Non-Transferable Warrant until it is so authorized by the Company. Unless
otherwise authorized by the Company, Class B Non-Transferable Warrant
Certificate may only be transferred for another Class B Non-Transferable Warrant
Certificate. Subject to the terms of this Agreement, each Warrant Certificate
may be exchanged for another certificate or certificates entitling the Holder
thereof to purchase a like aggregate number of Warrant Shares as the certificate
or certificates surrendered then entitle each Holder to purchase. Any Holder
desiring to exchange a Warrant Certificate or Certificates shall make such
request in writing delivered to the Warrant Agent, and shall surrender, duly
endorsed or accompanied (if so required by the Warrant Agent) by a written
instrument or instruments of transfer in form satisfactory to the Warrant Agent,
the Warrant Certificate or Certificates to be so exchanged.
Upon registration of transfer, the Warrant Agent shall countersign and
deliver by certified or first class mail a new Warrant Certificate or
Certificates to the persons entitled thereto. The Warrant Certificates may be
exchanged at the option of the Holder thereof, when surrendered at the office or
agency of the Company maintained for such purpose, which initially will be the
corporate trust office of the Warrant Agent located at 00 Xxxxx Xxxxxx, 00/xx/
Xxxxx, Xxx Xxxx, Xxx Xxxx, 10004-2304, Attention: Corporate Trust Services, for
another Warrant Certificate, or other Warrant Certificates of different
denominations, of like tenor and representing in the aggregate the right to
purchase a like number of Warrant Shares.
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No service charge shall be made for any exchange or registration of
transfer of Warrant Certificates, but the Company may require payment of a sum
sufficient to cover any stamp or other tax or other governmental charge that is
imposed in connection with any such exchange or registration of transfer.
Section 6. Registration of Transfers and Exchanges.
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(1) Transfer and Exchange of Definitive Warrants. When Definitive Warrants
are presented to the Warrant Agent with a request:
(1) to register the transfer of the Definitive Warrants; or
(2) to exchange such Definitive Warrants for an equal number of
Definitive Warrants of other authorized denominations, the Warrant Agent
shall register the transfer or make the exchange as requested if its
requirements under this Agreement are met; provided, however, that the
Definitive Warrants presented or surrendered for registration of transfer
or exchange shall be duly endorsed or accompanied by a written instruction
of transfer in form satisfactory to the Warrant Agent, duly executed by the
Holder thereof or by such Holder's attorney, duly authorized in writing;
provided that a transfer of Definitive Warrants that are Class B Non-
Transferable Warrants shall be subject to the requirements of Section 5
hereof.
(2) Restrictions on Transfer of a Definitive Warrant for a Beneficial
Interest in a Global Warrant. The Warrant Agent may exchange a Definitive
Warrant for a beneficial interest in a Global Warrant only if the Warrant Agent
has received such Definitive Warrant, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Warrant Agent,
together with written instructions directing the Warrant Agent to make, or to
direct the Depositary to make, an endorsement on the Global Warrant to reflect
an increase in the aggregate amount of the Warrants represented by the Global
Warrant. If such conditions have been satisfied, the Warrant Agent shall cancel
such Definitive Warrant and cause, or direct the Depositary to cause, in
accordance with the standing instructions and procedures existing between the
Depositary and the Warrant Agent, the number of Warrant Shares represented by
the Global Warrant to be increased accordingly. If no Global Warrant is then
outstanding, the Company shall issue and the Warrant Agent shall countersign a
new Global Warrant in the appropriate amount.
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(3) Transfer and Exchange of Global Warrants. The transfer and exchange of
Global Warrants or beneficial interests therein shall be effected through the
Depositary, in accordance with this Warrant Agreement (including the
restrictions on transfer set forth herein) and the procedures of the Depositary
therefor.
(4) Transfer of a Beneficial Interest in a Global Warrant for a Definitive
Warrant.
(1) Any person having a beneficial interest in a Global Warrant may
upon his, her or its request exchange such beneficial interest for a
Definitive Warrant. Upon receipt by the Warrant Agent of written
instructions (or such other form of instructions as is customary for the
Depositary) from the Depositary or its nominee on behalf of any person
having a beneficial interest in a Global Warrant and upon receipt by the
Warrant Agent of a written order or such other form of instructions as is
customary for the Depositary or the person designated by the Depositary as
having such a beneficial interest containing registration instructions,
then the Warrant Agent will cause, in accordance with the standing
instructions and procedures existing between the Depositary and the Warrant
Agent, the aggregate amount of the Global Warrant to be reduced and,
following such reduction, the Company will execute and, upon receipt of a
countersignature, the Warrant Agent will countersign and deliver to the
transferee a Definitive Warrant. All such Warrants shall be Class A
Transferable Warrants.
(2) Definitive Warrants issued in exchange for a beneficial interest
in a Global Warrant pursuant to this Section 6(d) shall be registered in
such names and in such authorized denominations as the Depositary, pursuant
to instructions from its direct or indirect participants or otherwise,
shall instruct the Warrant Agent in writing, provided such designation is
in accordance with this Section 6(d). The Warrant Agent shall deliver such
Definitive Warrants to the persons in whose names such Definitive Warrants
are registered.
(5) Restrictions on Transfer and Exchange of Global Warrants.
Notwithstanding any other provisions of this Warrant Agreement (other than the
provisions set forth in subsection (f) of this Section 6), a Global Warrant may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the
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Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.
(6) Authentication of Definitive Warrants in Absence of Depositary.
If at any time:
(1) the Depositary for the Global Warrants notifies the Company
that the Depositary is unwilling or unable to continue as Depositary
for the Global Warrant and a successor Depositary for the Global
Warrant is not appointed by the Company within 90 days after delivery
of such notice; or
(2) the Company, at its sole discretion, notifies the Warrant
Agent in writing that it elects to cause the issuance of Definitive
Warrants under this Warrant Agreement, then the Company will execute,
and the Warrant Agent, upon receipt of an officers' certificate,
signed by the President, Chief Executive Officer, Chief Operating
Officer, Chief Financial Officer or a Vice President of the Company,
requesting the countersignature and delivery of Definitive Warrants,
will countersign and deliver Definitive Warrants, in an aggregate
number equal to the aggregate number of Warrants represented by the
Global Warrant, in exchange for such Global Warrant.
(7) Cancellation and/or Adjustment of a Global Warrant. At such time
as all beneficial interests in a Global Warrant have either been exchanged for
Definitive Warrants, redeemed, repurchased or cancelled, such Global Warrant
shall be returned to or retained and cancelled by the Warrant Agent. At any time
prior to such cancellation, if any beneficial interest in a Global Warrant is
exchanged for Definitive Warrants, redeemed, repurchased or cancelled, the
number of Warrants represented by such Global Warrant shall be reduced and an
endorsement shall be made on such Global Warrant, by the Warrant Agent to
reflect such reduction.
(8) Obligations with Respect to Transfers and Exchanges of Definitive
Warrants.
(1) To permit registrations of transfers and exchanges in
accordance with the terms of this Agreement, the Company shall
execute, and the Warrant Agent shall countersign Definitive Warrants
and Global Warrants.
(2) All Definitive Warrants and Global Warrants issued upon any
registration, transfer or exchange of Definitive Warrants or Global
Warrants
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shall be the valid obligations of the Company, entitled to the same
benefits under this Warrant Agreement as the Definitive Warrants or Global
Warrants surrendered upon the registration of transfer or exchange.
(3) Prior to due presentment for registration of transfer of any
Warrant, the Warrant Agent and the Company may deem and treat the person in
whose name any Warrant is registered as the absolute owner of such Warrant,
and neither the Warrant Agent nor the Company shall be affected by notice
to the contrary.
Section 7. Terms of Warrants; Exercise of Warrants. Subject to the terms
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of this Agreement, each Warrant Holder shall have the right, which may be
exercised commencing on or after the Exercisability Date (as defined below) and
until 5:00 p.m., New York City time, on the six-month anniversary of the
Exercisability Date (the "Expiration Date"), to receive from the Company the
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number of fully paid and nonassessable Warrant Shares which the Holder may at
the time be entitled to receive on exercise of such Warrants and payment of the
Exercise Price (as defined below) then in effect for such Warrant Shares
together, if applicable, with cash payable as provided in Section 13 hereof and
any dividends or distributions payable as provided in Section 14 hereof. If the
Exercisability Date is on or prior to March 31, 2002, the Holders shall then be
entitled to receive from the Company (on exercise of such Warrants and payment
of the Exercise Price then in effect for such Warrant Shares) (together, if
applicable, with cash payable as provided in Section 13 hereof and any dividends
or distributions payable as provided in Section 14 hereof) (a) 20,575,507
Warrant Shares (in the aggregate) (with each Warrant being exercisable for
1.153846 Warrant Shares) in the event the Adjustment Event (as defined in the
Merger Agreement) has not occurred prior to the Exercisability Date or (b)
17,832,106 Warrant Shares (in the aggregate) (with each Warrant being
exercisable for 1.000000 Warrant Shares) in the event the Adjustment Event has
occurred prior to the Exercisability Date. If the Exercisability Date is after
March 31, 2002 and on or prior to September 30, 2002, the Holder shall then be
entitled to receive from the Company (on exercise of such Warrants and payment
of the Exercise Price then in effect for such Warrant Shares) (together, if
applicable, with cash payable as provided in Section 13 hereof and any dividends
or distributions payable as provided in Section 14 hereof) (a) 11,302,039
Warrant Shares (in the aggregate) (with each Warrant being exercisable for
0.633803 Warrant Shares) in the event the Adjustment Event has not occurred
prior to the Exercisability Date or (b) 9,726,603 Warrant Shares (in the
aggregate) (with each Warrant being exercisable for 0.545455 Warrant Shares) in
the event the Adjustment Event has
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occurred prior to the Exercisability Date. If the Exercisability Date is after
September 30, 2002 and on or prior to March 31, 2003 (the "Ultimate Expiration
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Date"), the Holders shall then be entitled to receive from the Company (on
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exercise of such Warrants and payment of the Exercise Price then in effect for
such Warrant Shares) (together, if applicable, with cash payable as provided in
Section 13 hereof and any dividends or distributions payable as provided in
Section 14 hereof) (a) 4,692,659 Warrant Shares (in the aggregate) (with each
Warrant being exercisable for 0.263158 Warrant Shares) the event the Adjustment
Event has not occurred prior to the Exercisability Date or (b) 4,018,503 Warrant
Shares (in the aggregate) (with each Warrant being exercisable for 0.225352
Warrant Shares) in the event the Adjustment Event has occurred prior to the
Exercisability Date. Each Warrant not exercised prior to the Expiration Date
shall become void and all rights thereunder and all rights in respect thereof
under this Agreement shall cease as of the Expiration Date. Without limiting the
foregoing, in the event the Ultimate Expiration Date occurs before the
Exercisability Date, each Warrant shall become void and all rights thereunder
and all rights in respect thereof under this Agreement shall cease as of the
Ultimate Expiration Date. If applicable, dividends and other distributions will
be made upon exercise of the Warrants as set forth in Section 14 hereof.
"Exercisability Date" shall mean the fifth (5th) Business Day (as defined
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below) following the date on which the Company (or any of its subsidiaries)
receives approval from the U.S. Food and Drug Administration (the "FDA") with
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respect to its New Drug Application for MorphiDex(R) for the treatment of one
or more pain indications. In addition to the notices required by Section 14
hereof, the Company shall give prompt written notice to the Warrant Agent that
the Exercisability Date has occurred and shall cause the Warrant Agent, on
behalf of and at the expense of the Company, within 5 Business Days after such
notification is received by the Warrant Agent, to mail by first class mail,
postage prepaid, to each Holder a notice specifying that the Exercisability Date
has occurred and that the Warrant has become exercisable pursuant to its terms
and that the Warrant will expire at 5:00 p.m., New York City time, on the
Expiration Date. In addition, the Company shall post appropriate notices of the
Exercisability Date on its web pages and issue press releases to wire services.
A "Business Day" is a day that is not a Legal Holiday. A "Legal Holiday" is a
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Saturday, a Sunday, a federally recognized holiday or a day on which banking
institutions are not required to be open in the State of New York. From and
after the Effective Time, Parent agrees to use its reasonable efforts to
continue to process the FDA application for MorphiDex(R) in a timely fashion.
The parties acknowledge that there are many variables in the process of
obtaining FDA approval in such a situation and many different approaches which
may be used by an applicant in order to obtain such approval; as a result, the
parties hereto agree that all
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determinations relating to such process and all actions taken in connection with
seeking such approval shall be in the sole discretion of Parent and shall be
binding upon the parties for all purposes.
The parties further acknowledge that (i) on August 2, 1999, the Company
received notification from the FDA that such application was not approvable,
(ii) the failure to obtain such approval, either at all or on or before a
certain date, shall not be deemed a breach by Parent of the provisions hereof
and (iii) in any event Parent shall have no responsibility in connection with
the provisions of this paragraph, except for its willful breach hereof.
The initial price per share at which Warrant Shares shall be purchasable
upon exercise of Warrants (the "Exercise Price") shall equal $0.01. A Warrant
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may be exercised upon surrender at the office or agency of the Company
maintained for such purpose, which initially will be the corporate trust office
of the Warrant Agent or its agents in located at 114 West 00/xx/ Xxxxxx, 00/xx/
Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Corporate Trust Division of the
Warrant Certificate(s) evidencing the Warrants to be exercised with the form of
election to purchase on the reverse thereof duly filled in and signed, which
signature shall be guaranteed by a participant in a recognized Signature
Guarantee Medallion Program, and upon payment to the Warrant Agent for the
account of the Company of the Exercise Price, as adjusted as herein provided,
for the number of Warrant Shares together, if applicable, with cash payable as
provided in Section 13 hereof and any dividends or distributions as provided in
Section 14 hereof in respect of which such Warrants are then exercised. Payment
of the Exercise Price may be made (a) in the form of cash or by certified or
official bank check payable to the order of the Company in New York Clearing
House Funds, (b) by delivering to the Company a written notice accompanying the
surrender of a Warrant to, at the time of exercise, apply to the payment of the
Exercise Price such number of Warrant Shares as shall be specified in such
notice, in which case an amount equal to the excess of the Current Market Value
(as defined in Section 12(d) hereof) of such Warrant Shares on the date of
exercise over the Exercise Price required for such exercise shall be deemed to
have been paid to the Company and the number of Warrant Shares issuable upon
such exercise shall be reduced by such specified number (a "Cashless Exercise")
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or (c) any combination of (a) and (b) above. Subject to the provisions of
Section 6 hereof, upon such surrender of Warrants and payment of the Exercise
Price, the Company shall issue and cause to be delivered with all reasonable
dispatch to or upon the written order of the Holder and in such name or names as
the Warrant Holder may designate a certificate or certificates for the number of
full Warrant Shares issuable upon the exercise of
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such Warrants together with cash as provided in Section 13 hereof. Such
certificate or certificates shall be deemed to have been issued and any person
so named therein shall be deemed to have become a holder of record of such
Warrant Shares as of the date of the surrender of such Warrants and payment of
the Exercise Price. On or after the Exercisability Date, the Warrants shall be
exercisable, at the election of the Holders thereof, either in full or from time
to time in part and, in the event that a certificate evidencing Warrants is
exercised in respect of fewer than all of the Warrant Shares issuable on such
exercise at any time prior to the Expiration Date, a new certificate evidencing
the remaining Warrant or Warrants will be issued, and the Warrant Agent is
hereby irrevocably authorized to countersign and to deliver the required new
Warrant Certificate or Certificates pursuant to the provisions of this Section 7
and of Section 3 hereof, and the Company, whenever required by the Warrant
Agent, will promptly supply the Warrant Agent with Warrant Certificates duly
executed on behalf of the Company for such purpose.
All Warrant Certificates surrendered upon exercise of Warrants shall be
cancelled by the Warrant Agent. Such cancelled Warrant Certificates shall then
be either delivered to the Company or disposed of by the Warrant Agent in a
manner consistent with the Warrant Agent's customary procedure for such disposal
and in a manner reasonably satisfactory to the Company. The Warrant Agent shall
account promptly to the Company with respect to Warrants exercised and
concurrently pay to the Company all monies received by the Warrant Agent for the
purchase of the Warrant Shares through the exercise of such Warrants.
The Warrant Agent shall keep copies of this Agreement available for
inspection by the Holders during normal business hours at its office. The
Company shall supply the Warrant Agent from time to time with such numbers of
copies of this Agreement as the Warrant Agent may request.
Section 8. Payment of Taxes. The Company will pay all documentary stamp
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taxes attributable to the initial issuance of Warrant Shares upon the exercise
of Warrants; provided, however, that the Company shall not be required to pay
any tax or taxes which may be payable in respect of any transfer involved in the
issue of any Warrant Certificates or any certificates for Warrant Shares in a
name other than that of the registered Holder of a Warrant Certificate
surrendered upon the exercise of a Warrant, and the Company shall not be
required to issue or deliver such Warrant Certificates unless or until the
person or persons requesting the issuance thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
11
Section 9. Mutilated or Missing Warrant Certificates. In case any of the
-----------------------------------------
Warrant Certificates shall be mutilated, lost, stolen or destroyed, the Company
may in its discretion issue and the Warrant Agent may countersign, in exchange
and substitution for and upon cancellation of the mutilated Warrant Certificate,
or in lieu of and substitution for the Warrant Certificate lost, stolen or
destroyed, a new Warrant Certificate of like tenor and representing an
equivalent number of Warrants, but only upon receipt of evidence satisfactory to
the Company and the Warrant Agent of such loss, theft or destruction of such
Warrant Certificate and indemnity, if requested, also satisfactory to them.
Applicants for such substitute Warrant Certificates shall also comply with such
other reasonable regulations and pay such other reasonable charges as the
Company or the Warrant Agent may prescribe.
Section 10. Reservation of Warrant Shares. The Company will at all times
-----------------------------
reserve and keep available, free from preemptive rights, out of the aggregate of
its authorized but unissued Common Stock or its authorized and issued Common
Stock held in its treasury, for the purpose of enabling it to satisfy any
obligation to issue Warrant Shares upon exercise of Warrants, the maximum number
of shares of Common Stock which may then be deliverable upon the exercise of all
outstanding Warrants.
The Company will keep a copy of this Agreement on file with the transfer
agent for the Common Stock (the "Transfer Agent") and with every subsequent
--------------
transfer agent for any shares of the Company's capital stock issuable upon the
exercise of the rights of purchase represented by the Warrants. The Warrant
Agent is hereby irrevocably authorized to requisition from time to time from
such Transfer Agent the stock certificates required to honor outstanding
warrants upon exercise thereof in accordance with the terms of this Agreement.
The Company will supply such Transfer Agent with duly executed certificates for
such purposes and will provide or otherwise make available any cash which may be
payable as provided in Section 13 hereof. The Company will furnish such Transfer
Agent a copy of all notices of adjustments and certificates related thereto
transmitted to each Holder pursuant to Section 14 hereof.
The Company covenants that all Warrant Shares which may be issued upon
exercise of Warrants will, upon payment of the Exercise Price therefor and
issue, be validly authorized and issued, fully paid, nonassessable, free of
preemptive rights and free from all taxes, liens, charges and security interests
with respect to the issuance thereof. The Company will use its reasonable best
efforts to obtain all such
12
authorizations, exemptions or consents from any public regulatory body having
jurisdiction thereof as may be necessary to enable the Company to perform its
obligations under this Agreement.
Section 11. Obtaining Stock Exchange Listings. The Company will from time
---------------------------------
to time take all action which may be necessary so that the Warrants and,
immediately upon their issuance upon exercise of the Warrants, the Warrant
Shares will be listed on the principal securities exchanges and markets within
the United States of America, if any, on which other shares of Common Stock are
then listed.
Section 12. Adjustment of Exercise Price and Number of Warrant Shares
---------------------------------------------------------
Issuable.
--------
(1) If the Company:
(1) pays a dividend or makes a distribution on its Common Stock in
shares of its Common Stock or other capital stock of the Company; or
(2) subdivides, splits, combines or reclassifies its outstanding
shares of Common Stock into a different number of securities of the same
class, then the number of shares of Common Stock issuable upon the exercise
of each Warrant (the "Exercise Rate") in effect immediately prior to such
-------------
action shall be proportionately adjusted so that the Holder of any Warrant
thereafter exercised may receive the aggregate number and kind of shares of
capital stock of the Company which such Holder would have owned immediately
following such action if such Warrant had been exercised immediately prior
to such action and the Exercise Price in effect immediately prior to such
action shall be adjusted to a price determined by multiplying the Exercise
Price in effect immediately prior to such action by a fraction, the
numerator of which shall be the number of shares of Common Stock
outstanding before giving effect to such action and the denominator of
which shall be the number of shares of Common Stock and/or such other
capital stock outstanding referred to in the foregoing clause (a)(1) after
giving effect to such action.
An adjustment pursuant to this Section 12(a) shall become effective
immediately after the record date in the case of a dividend or distribution and
immediately after the effective date in the case of a subdivision, combination
or reclassification. If, after an adjustment pursuant to this Section 12(a), a
Holder of a Warrant upon
13
exercise of it may receive shares of two or more classes of capital stock of the
Company, the board of directors of the Company shall determine the allocation of
the adjusted Exercise Price between the classes of capital stock. After such
allocation, the exercise privilege and the Exercise Price of each class of
capital stock shall thereafter be subject to adjustment on terms comparable to
those applicable to Common Stock in this Section 12.
Such adjustment shall be made successively whenever any event listed above
shall occur.
(2) Adjustment for Certain Issuances of Common Stock. If the Company
issues or sells to any Affiliate (as defined in Section 12(d) hereof) of the
Company shares of its Common Stock or distributes to any Affiliate of the
Company any rights, options or warrants entitling them to purchase shares of
Common Stock, or securities convertible into or exchangeable for Common Stock,
in each case, at a price per share less than the Current Market Value on the
record date for determining entitlements of such Affiliates to participate in
such issuance, sale or distribution (the "Time of Determination") and prior to
---------------------
such issuance, sale or distribution the Company did not first offer to issue,
sell or distribute such shares of its Common Stock or such rights, options or
warrants or such securities convertible into or exchangeable for Common Stock to
all holders of Common Stock on the same economic terms and on a pro rata basis
with the issuance, sale or distribution to the Affiliates of the Company, then
the Exercise Rate shall be adjusted in accordance with the formula:
E' = E x O + N
-----
O + N x P
-----
M
and the Exercise Price shall be adjusted in accordance with the following
formula:
EP' = EP x E
--
E'
14
where:
E' = the adjusted Exercise Rate.
E = the Exercise Rate immediately prior to the Time of Determination for
any such issuance, sale or distribution.
EP' = the Adjusted Exercise Price.
EP = the Exercise Price immediately prior to the Time of Determination for
any such issuance, sale or distribution.
O = the number of Fully Diluted Shares (as defined below) outstanding
immediately prior to the Time of Determination for any such issuance,
sale or distribution.
N = the number of additional shares of Common Stock issued, sold or
issuable upon exercise of such rights, options or warrants.
P = the per share price received and receivable by the Company in the
case of any issuance or sale of Common Stock or rights, options or
warrants as to which such adjustment is being made, inclusive of the
exercise price per share of Common Stock payable upon exercise of
such rights, options or warrants.
M = the Current Market Value per share of Common Stock on the Time of
Determination for any such issuance, sale or distribution.
For purposes of this Section 12(b), the term "Fully Diluted Shares" shall
--------------------
mean (i) the shares of Common Stock outstanding as of a specified date, and (ii)
the shares of Common Stock into or for which rights, options, warrants or other
securities of the Company outstanding as of such date are exercisable or
convertible (other than the Warrants).
Any adjustments shall be made successively whenever any such rights,
options or warrants are issued and shall become effective immediately after the
relevant Time of Determination. Notwithstanding the foregoing, the Exercise
Rate and the Exercise Price shall not be subject to adjustment in connection
with (i) the issuance of any shares of Common Stock upon exercise of any such
rights, options
15
or warrants which have previously been the subject of an adjustment under this
Agreement for which the required adjustment has been made and (ii) any exercise
of the Warrants. If at the end of the period during which any such rights,
options or warrants are exercisable, not all rights, options or warrants shall
have been exercised, the Warrant shall be immediately readjusted to what it
would have been if "N" in each of the above formulas had been the number of
shares actually issued.
(3) When De Minimis Adjustment May Be Deferred. No adjustment in the
Exercise Rate need be made unless the adjustment would require an increase or
decrease of at least 1% in the Exercise Rate. Notwithstanding the foregoing, any
adjustments that are not made shall be carried forward and taken into account in
any subsequent adjustment, provided that no such adjustment shall be deferred
beyond the date on which a Warrant is exercised.
All calculations under this Section 12 shall be made to the nearest cent or
to the nearest 1/100th of a share, as the case may be.
(4) Certain Definitions. "Current Market Value" per share of Common Stock
--------------------
or of any other security (herein collectively referred to as a "Security") at
--------
any date shall be:
(1) if the Security is not registered under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), (i) the value of the Security
------------
determined in good faith by the board of directors of the Company and
certified in a board resolution, based on the most recently completed
arm's-length transaction between the Company and a person other than an
Affiliate of the Company and the closing of which occurs on such date or
shall have occurred within the six months preceding such date or (ii) if no
such transaction shall have occurred on such date or within such six-month
period, the value of the Security determined as of a date within 30 days
preceding such date by an Independent Financial Expert (as defined below),
or
(2) if the Security is registered under the Exchange Act, the average
of the daily closing bid prices of such Security for 30 consecutive
Business Days selected by the Company from the period of 45 Business Days
preceding such date, but only if such Security shall have been listed on a
national securities exchange or the Nasdaq National Market or traded
through an automated quotation system during such entire 45-Business Day
period.
16
The "closing bid price" for any Security on each Business Day means the
-----------------
closing price, regular way, on such day on the principal exchange on which such
Security is traded, or if no sale takes place on such day, the average of the
closing bid and asked prices on such day.
"Independent Financial Expert" shall mean any nationally recognized
----------------------------
investment banking firm that is not an Affiliate of the Company. Any such
person may receive customary compensation and indemnification by the Company for
opinions or services it provides as an Independent Financial Expert.
"Affiliate" of any specified person means any other person which directly
---------
or indirectly through one or more intermediaries controls or is controlled by,
or is under common control with, such specified person. For the purposes of
this definition, "control" (including with correlative meanings, the terms
"controlling," "controlled by" and "under common control with") as used with
respect to any person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
person, whether through the ownership of voting securities, by agreement or
otherwise.
"Ordinary Cash Distribution" means any quarterly cash dividend on the
--------------------------
Common Stock to the extent that the aggregate cash dividend per share of Common
Stock in any calendar quarter does not exceed the greater of (x) the amount per
share of Common Stock of the next preceding quarterly cash dividend on the
Common Stock (as adjusted to reflect subdivisions or combinations of the Common
Stock) and (y) 3.0% of the average of the last reported sales prices of the
Common Stock during the ten trading days immediately prior to the date of
declaration of such dividend.
(5) When No Adjustment Required. If an adjustment is made upon the
establishment of a record date for an issuance, sale or distribution subject to
subsection (a) or (b) hereof and such issuance, sale or distribution is
subsequently cancelled or is not otherwise made, the Exercise Rate and Exercise
Price then in effect shall be readjusted, effective as of the date when the
board of directors of the Company determines to cancel such issuance, sale or
distribution or when it is otherwise evident that such issuance, sale or
distribution will not be so made, to that which would have been in effect if
such record date had not been fixed. If an adjustment would be required under
both subsections (a) and (b) above, such adjustments will be determined without
duplication.
17
To the extent the Warrants become convertible into cash, no adjustment need
be made thereafter as to the amount of cash into which such Warrants are
exercisable. Interest will not accrue on the cash.
(6) Notice of Adjustment. Whenever the Exercise Rate or Exercise Price is
adjusted, the Company shall provide the notices required by Section 14 hereof.
(7) Voluntary Reduction. The Company from time to time may increase the
Exercise Rate or reduce the Exercise Price by any amount for any period of time
(including, without limitation, permanently) if the period is at least 20
Business Days after the Company has given notice of such increase or reduction
in accordance with Section 14 hereof.
An increase of the Exercise Rate or reduction in the Exercise Price under
this subsection (g) (other than a permanent increase) does not change or adjust
the Exercise Rate otherwise in effect for purposes of subsection (a) and (b) of
this Section 12.
(8) When Issuance or Payment May Be Deferred. In any case in which this
Section 12 shall require that an adjustment in the Exercise Rate or Exercise
Price be made effective as of a record date for a specified event, the Company
may elect to defer until the occurrence of such event (i) issuing to the Holder
of any Warrant exercised after such record date the Warrant Shares and other
capital stock of the Company, if any, issuable upon such exercise over and above
the Warrant Shares and other capital stock of the Company, if any, issuable upon
such exercise on the basis of the Exercise Rate prior to such adjustment, and
(ii) paying to such Holder any amount in cash in lieu of a fractional share
pursuant to Section 13 hereof; provided, however, that the Company shall deliver
to the Warrant Agent and shall cause the Warrant Agent, on behalf of and at the
expense of the Company, to deliver to such Holder a due xxxx or other
appropriate instrument evidencing such Holder's right to receive such additional
Warrant Shares, other capital stock and cash upon the occurrence of the event
requiring such adjustment.
(9) Reorganizations. In case of (i) any capital reorganization, other than
in the cases referred to in Section 12(a) and (b) hereof and other than any
capital reorganization that does not result in any reclassification of the
outstanding shares of Common Stock into shares of other stock or other
securities or property, or (ii) the consolidation or merger of the Company with
or into another corporation (other than a merger or consolidation in which the
Company is the continuing corporation and
18
which does not result in any reclassification of the outstanding shares of
Common Stock into shares of other stock or other securities or property), or
(iii) the sale of all or substantially all of the assets of the Company
(collectively such actions being hereinafter referred to as "Reorganizations"),
---------------
there shall thereafter be deliverable upon exercise of any Warrant in accordance
with the terms hereof (in lieu of the number of shares of Common Stock
theretofore deliverable) the number of shares of stock or other securities or
property to which a holder of the number of shares of Common Stock that would
otherwise have been deliverable upon the exercise of such Warrant would have
been entitled upon such Reorganization if the Exercisability Date had occurred
and such Warrant had been exercised in full immediately prior to such
Reorganization. In case of any Reorganization, appropriate adjustment, as
determined in good faith by the board of directors of the Company, whose
determination shall be described in a duly adopted resolution certified by the
Company's Secretary or Assistant Secretary, shall be made in the application of
the provisions herein set forth with respect to the rights and interests of
Holders so that the provisions set forth herein shall thereafter be applicable,
as nearly as possible, in relation to any such shares or other securities or
property thereafter deliverable upon exercise of Warrants.
The Company shall not effect any such Reorganization unless prior to or
simultaneously with the consummation thereof the successor corporation (if other
than the Company) resulting from such Reorganization or the corporation or other
entity purchasing such assets shall expressly assume, by a supplemental warrant
agreement or other acknowledgment executed and delivered to the Warrant Agent,
the obligation to deliver to the Warrant Agent and to cause the Warrant Agent to
deliver to each such Holder such shares of stock, securities or assets as, in
accordance with the foregoing provisions, such Holder may be entitled to
purchase in accordance with the terms hereof upon the occurrence of the
Exercisability Date, and the due and punctual performance and observance of each
and every covenant, condition, obligation and liability under this Agreement to
be performed and observed by the Company in the manner prescribed herein.
The foregoing provisions of this Section 12(i) shall apply to successive
Reorganization transactions.
(10) Form of Warrants. Irrespective of any adjustments in the number or
kind of shares purchasable upon the exercise of the Warrants, Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the Warrants initially issuable
pursuant to this Agreement.
19
(11) Warrant Agent's Disclaimer. The Warrant Agent has no duty to
determine when an adjustment under this Section 12 should be made, how it should
be made or what it should be. The Warrant Agent has no duty to determine whether
any provisions of a supplemental warrant agreement under subsection (i) of this
Section 12 are correct. The Warrant Agent makes no representation as to the
validity or value of any securities or assets issued upon exercise of Warrants.
The Warrant Agent shall not be responsible for the Company's failure to comply
with this Section 12.
(12) Miscellaneous. For purpose of this Section 12 the term "shares of
Common Stock" shall mean (i) shares of the class of stock designated as the
Common Stock, par value $.01 per share, of the Company as of the date of this
Agreement, and (ii) shares of any other class of stock resulting from successive
changes or reclassification of such shares consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value. In
the event that at any time, as a result of an adjustment made pursuant to this
Section 12, the Holders of Warrants shall become entitled to purchase any
securities of the Company other than, or in addition to, shares of Common Stock,
thereafter the number or amount of such other securities so purchasable upon
exercise of each Warrant shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Warrant Shares contained in subsections (a) through (l) of this
Section 12, inclusive, and the provisions of Sections 7, 8, 10 and 13 with
respect to the Warrant Shares or the Common Stock shall apply on like terms to
any such other securities.
Section 13. Fractional Interests. The Company shall not be required to
--------------------
issue fractional Warrant Shares on the exercise of Warrants. If more than one
Warrant shall be presented for exercise in full at the same time by the same
Holder, the number of full Warrant Shares which shall be issuable upon the
exercise thereof shall be computed on the basis of the aggregate number of
Warrant Shares purchasable on exercise of the Warrants so presented. If any
fraction of a Warrant Share would, except for the provisions of this Section 13,
be issuable on the exercise of any Warrants (or specified portion thereof), the
Company shall pay an amount in cash equal to the excess of the Current Market
Value of a Warrant Share over the Exercise Price on the day immediately
preceding the date the Warrant is presented for exercise, multiplied by such
fraction.
20
Section 14. Notices to Warrant Holders; Reservation of Dividends. No
----------------------------------------------------
later than April 6, 2001, the Company shall give written notice of the
occurrence or non-occurrence of the Adjustment Event to the Warrant Agent and
shall cause the Warrant Agent, on behalf of and at the expense of the Company,
within 10 days after such notification is received by the Warrant Agent, to mail
by first class mail, postage prepaid, to each Holder a notice of such occurrence
or non-occurrence of the Adjustment Event. Upon any adjustment pursuant to
Section 12 hereof, the Company shall give prompt written notice of such
adjustment to the Warrant Agent and shall cause the Warrant Agent, on behalf of
and at the expense of the Company, within 10 days after notification is received
by the Warrant Agent of such adjustment, to mail by first class mail, postage
prepaid, to each Holder a notice of such adjustment(s) and shall deliver to the
Warrant Agent a certificate of the Chief Financial Officer of the Company,
setting forth in reasonable detail (i) the number of Warrant Shares purchasable
upon the exercise of each Warrant and the Exercise Price of such Warrant after
such adjustment(s), (ii) a brief statement of the facts requiring such
adjustment(s) and (iii) the computation by which such adjustment(s) was made.
Where appropriate, such notice may be given in advance and included as a part of
the notice required under the other provisions of this Section 14.
In case the Exercisability Date has occurred and:
(a) the Company shall authorize the issuance to all holders of shares of
Common Stock of rights, options or warrants to subscribe for or purchase shares
of Common Stock or of any other subscription rights or warrants; or
(b) the Company shall authorize the distribution to all holders of shares
of Common Stock of evidences of its indebtedness or assets or cash; or
(c) of any consolidation or merger to which the Company is a party and for
which approval of any stockholders of the Company is required, or of the
conveyance or transfer of the properties and assets of the Company substantially
as an entirety, or of any reclassification or change of Common Stock issuable
upon exercise of the Warrants (other than a change in par value, or from par
value to no par value, or from no par value to par value, or as a result of a
subdivision or combination), or a tender offer or exchange offer for shares of
Common Stock; or
(d) of the voluntary or involuntary dissolution, liquidation or winding up
of the Company; or
21
(e) the Company proposes to take any action that would require an
adjustment to the Exercise Rate pursuant to Section 12 hereof; then the Company
shall give prompt written notice to the Warrant Agent and shall cause the
Warrant Agent, on behalf of and at the expense of the Company to give to each of
the registered holders of the Warrant Certificates at his, her or its address
appearing on the Warrant Register, at least 30 days (or 20 days in any case
specified in clauses (a) or (b) above) prior to the applicable record date
hereinafter specified, or the date of the event in the case of events for which
there is no record date, by first-class mail, postage prepaid, a written notice
stating (i) the date as of which the holders of record of shares of Common Stock
to be entitled to receive any such rights, options, warrants or distribution are
to be determined, or (ii) the initial expiration date set forth in any tender
offer or exchange offer for shares of Common Stock, or (iii) the date on which
any such consolidation, merger, conveyance, transfer, dissolution, liquidation
or winding up is expected to become effective or consummated, and the date as of
which it is expected that holders of record of shares of Common Stock shall be
entitled to exchange such shares for securities or other property, if any,
deliverable upon such reclassification, consolidation, merger, conveyance,
transfer, dissolution, liquidation or winding up. The failure by the Company or
the Warrant Agent to give such notice or any defect therein shall not affect the
legality or validity of any distribution, right, option, warrant, consolidation,
merger, conveyance, transfer, dissolution, liquidation or winding up, or the
vote upon any action.
The Company shall give prompt written notice to the Warrant Agent and shall
cause the Warrant Agent, on behalf of and at the expense of the Company to give
to each Holder written notice of any determination to make a distribution or
dividend to the holders of its Common Stock of any assets (including cash (other
than any Ordinary Cash Distribution)), debt securities, preferred stock, or any
rights or warrants to purchase debt securities, preferred stock, assets or other
securities (other than Common Stock, or rights, options, or warrants to purchase
Common Stock) of the Company, which notice shall state the nature and amount of
such planned dividend or distribution and the record date therefor, and shall be
given by the Company at least 20 days prior to such record date therefor.
At any time prior to the date that is 30 Business Days after the
Exercisability Date, with respect to any distribution or dividend made by the
Company to all of the holders of its Common Stock for which notice to the
Holders of the Warrants under this Section 14 would be required had such
dividend or distribution occurred after
22
the Exercisability Date and except for such distributions or dividends as are
provided for in Section 12 hereof, the Company shall hold in reserve the amount
of any such dividend or distribution that would have been payable to the Holders
in respect of their Warrant Shares had the Holders exercised their Warrants
immediately prior to such dividend or distribution. The Company shall release to
each Holder of Warrants his, her or its pro rata share of such reserved
dividends or distributions upon the exercise of such Holder's Warrants pursuant
to Section 7 hereof. Any notice delivered to the Holders by the Company pursuant
to this Section 14 shall state the nature and amount of such dividend or
distribution that shall be held in reserve.
Nothing contained in this Agreement or in any Warrant Certificate shall be
construed as conferring upon the Holders the right to vote or to consent or to
receive notice as stockholders in respect of the meetings of stockholders or the
election of directors of the Company or any other matter, or any rights
whatsoever as stockholders of the Company.
Section 15. Notices to the Company and Warrant Agent. Any notice or
----------------------------------------
demand authorized by this Agreement to be given or made by the Warrant Agent or
by any Holder to or on the Company shall be sufficiently given or made when
received at the office of the Company expressly designated by the Company as its
office for purposes of this Agreement (until the Warrant Agent is otherwise
notified in accordance with this Section 15 by the Company), as follows:
Endo Pharmaceuticals Holdings Inc.
c/o Kelso & Company
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Managing Director
with a copy to General Counsel
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
23
Any notice pursuant to this Agreement to be given by the Company or by any
Holder(s) to the Warrant Agent shall be sufficiently given when received by the
Warrant Agent at the address appearing below (until the Company is otherwise
notified in accordance with this Section by the Warrant Agent).
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Division
Section 16. Supplements and Amendments; Actions. The Company and the
-----------------------------------
Warrant Agent may from time to time supplement or amend this Agreement without
the approval of any holders of Warrants in order to cure any ambiguity or to
correct or supplement any provision contained herein which may be defective or
inconsistent with any other provision herein, or to make any other provisions in
regard to matters or questions arising hereunder which the Company and the
Warrant Agent may deem necessary or desirable and which shall not in any way
adversely affect the rights of any holder of Warrants hereunder. Any amendment
or supplement to this Agreement that has a material adverse effect on the rights
of holders hereunder shall require the written consent of registered holders of
a majority of the then outstanding Warrants, which consent shall then be
effective against all the Holders of Warrants hereunder. The consent of each
holder of a Warrant affected shall be required for any amendment pursuant to
which the Exercise Price would be increased or the number of Warrant Shares
purchasable upon exercise of Warrants would be decreased (not including
adjustments contemplated hereunder). The Warrant Agent shall be entitled to
receive and shall be fully protected in relying upon an officers' certificate
and opinion of counsel as conclusive evidence that any such amendment or
supplement is authorized or permitted hereunder, that it is not inconsistent
herewith, and that it will be valid and binding upon the Company in accordance
with its terms.
Any actions seeking enforcement of the rights of Holders hereunder
(including paragraph 3 of Section 7 hereof) may be brought either by the Warrant
Agent or the Holders of more than 50% of the Warrants issued hereunder and then
outstanding.
24
Section 17. Concerning the Warrant Agent. The Warrant Agent undertakes
----------------------------
the duties and obligations imposed by this Agreement upon the following terms
and conditions, by all of which the Company and the Holders, by their acceptance
of Warrants, shall be bound:
(a) The statements contained herein and in the Warrant Certificate shall
be taken as statements of the Company, and the Warrant Agent assumes no
responsibility for the correctness of any of the same except such as describe
the Warrant Agent or any action taken by it. The Warrant Agent assumes no
responsibility with respect to the distribution of the Warrants except as herein
otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the
Company to comply with the covenants contained in this Agreement or in the
Warrants to be complied with by the Company.
(c) The Warrant Agent may execute and exercise any of the rights or powers
hereby vested in it or perform any duty hereunder either itself (through its
employees) or by or through its attorneys or agents (which shall not include its
employees) and shall not be responsible for the misconduct of any agent
appointed with due care.
(d) The Warrant Agent may consult at any time with legal counsel
satisfactory to it (who may be counsel for the Company), and the Warrant Agent
shall incur no liability or responsibility to the Company or to any Holder in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in accordance with the opinion or the advice of such counsel.
(e) Whenever in the performance of its duties under this Agreement the
Warrant Agent shall deem it necessary or desirable that any fact or matter be
proved or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless such evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by the Chairman of the Board, the President,
Chief Financial Officer, one of the Vice Presidents, the Treasurer or the
Secretary of the Company and delivered to the Warrant Agent; and such
certificate shall be full authorization to the Warrant Agent for any action
taken or suffered in good faith by it under the provisions of this Agreement in
reliance upon such certificate.
25
(f) The Company agrees to pay the Warrant Agent reasonable compensation
for all services rendered by the Warrant Agent in the performance of its duties
under this Agreement, to reimburse the Warrant Agent for all expenses, taxes and
governmental charges and other charges of any kind and nature incurred by the
Warrant Agent (including reasonable fees and expenses of the Warrant Agent's
counsel and agents) in the performance of its duties under this Agreement, and
to indemnify the Warrant Agent and save it harmless against any and all
liabilities, including judgments, costs and counsel fees, for anything done or
omitted by the Warrant Agent in the performance of its duties under this
Agreement, except as a result of the Warrant Agent's negligence or bad faith.
(g) The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to involve
expense unless the Company or one or more Holders shall furnish the Warrant
Agent with reasonable security and indemnity satisfactory to the Warrant Agent
for any costs and expenses which may be incurred, but this provision shall not
affect the power of the Warrant Agent to take such action as the Warrant Agent
may consider proper, whether with or without any such security or indemnity. All
rights of action under this Agreement or under any of the Warrants may be
enforced by the Warrant Agent without the possession of any of the Warrants or
the production thereof at any trial or other proceeding relative thereto, and
any such action, suit or proceeding instituted by the Warrant Agent shall be
brought in its name as Warrant Agent, and any recovery of judgment shall be for
the ratable benefit of the Holders, as their respective rights or interests may
appear.
(h) 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 transactions
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 Agreement or such director, officer or employee. Nothing herein shall
preclude the Warrant Agent from acting in any other capacity for the Company or
for any other legal entity including, without limitation, acting as Transfer
Agent or as a lender to the Company or an Affiliate thereof.
(i) The Warrant Agent shall act hereunder solely as agent, and its duties
shall be determined solely by the provisions hereof. 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 negligence or bad faith.
26
(j) The Warrant Agent will not incur any liability or responsibility to
the Company or to any Holder for any action taken in reliance on any notice,
resolution, waiver, consent, order, certificate, or other paper, document or
instrument reasonably believed by it to be genuine and to have been signed, sent
or presented by the proper party or parties.
(k) The Warrant Agent shall not be under any responsibility in respect of
the validity of this Agreement or the execution and delivery hereof (except the
due execution hereof by the Warrant Agent) or in respect of the validity or
execution of any Warrant (except its countersignature thereof); nor shall the
Warrant Agent by any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any Warrant Shares (or other
stock) to be issued pursuant to this Agreement or any Warrant, or as to whether
any Warrant Shares (or other stock) will, when issued, be validly issued, fully
paid and nonassessable, or as to the Exercise Price or the number or amount of
Warrant Shares or other securities or other property issuable upon exercise of
any Warrant.
(l) The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the President, any Vice President or the Secretary of the
Company, and to apply to such officers for advice or instructions in connection
with its duties, and shall not be liable for any action taken or suffered to be
taken by it in good faith and without negligence in accordance with instructions
of any such officer or officers.
Section 18. Change of Warrant Agent. The Warrant Agent may resign at any
-----------------------
time and be discharged from its duties under this Agreement by giving to the
Company 30-days' notice in writing. The Warrant Agent may be removed by like
notice to the Warrant Agent from the Company. 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 any Holder (who shall with such notice submit
his, her or its Warrant for inspection by the Company), then any Holder may
apply to any court of competent jurisdiction for the appointment of a successor
to the Warrant Agent. Pending appointment of a successor warrant agent, either
by the Company or by such court, the duties of the Warrant Agent shall be
carried out by the Company.
27
Any successor warrant agent, whether appointed by the Company or such a court,
shall be a bank or trust company in good standing, incorporated under the laws
of the United States of America or any State thereof or the District of Columbia
and having at the time of its appointment as warrant agent a combined capital
and surplus of at least $10,000,000. 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 former 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 such purpose. Failure
to file any notice provided for in this Section 18, 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. In the event of such resignation or removal, the Company or the
successor warrant agent shall mail by first class mail, postage prepaid, to each
Holder, written notice of such removal or resignation and the name and address
of such successor warrant agent.
Section 19. Successors. All the covenants and provisions of this
----------
Agreement by or for the benefit of the Company, the Warrant Agent or any holder
of Warrants shall bind and inure to the benefit of their respective successors
and assigns hereunder.
Section 20. Termination. This Agreement shall terminate at 5:00 p.m., New
-----------
York City time, on the Expiration Date. Notwithstanding the foregoing, this
Agreement will terminate on any earlier date if all Warrants have been exercised
pursuant to this Agreement.
Section 21. GOVERNING LAW. THIS AGREEMENT AND EACH WARRANT CERTIFICATE
-------------
ISSUED HEREUNDER SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE
STATE OF NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF SAID STATE, WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
Section 22. Benefits of This Agreement. Nothing in this Agreement shall
--------------------------
be construed to give to any person or corporation 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
28
for the sole and exclusive benefit of the Company, the Warrant Agent and the
registered Holders of the Warrant Certificates.
Section 23. 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 24. Headings. The headings in this Agreement are for convenience
--------
of reference only and shall not limit or otherwise affect the meaning hereof.
29
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
ENDO PHARMACEUTICALS HOLDINGS INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
UNITED STATES TRUST COMPANY OF NEW YORK,
as Warrant Agent
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
EXHIBIT A
[Form of Warrant Certificate]
[Face]
THIS SECURITY IS A GLOBAL CERTIFICATE AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS
SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE WARRANT AGREEMENT, DATED AS OF JULY 17, 2000, BY AND BETWEEN
THE COMPANY AND THE WARRANT AGENT (THE "WARRANT AGREEMENT"), AND NO TRANSFER OF
THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE WARRANT AGREEMENT. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (A NEW YORK CORPORATION) ("DTC") TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-1
EXERCISABLE ON OR AFTER THE EXERCISABILITY DATE
AND ON OR BEFORE THE EXPIRATION DATE
No. _______ ___ Class A Transferable Warrants
Class A Transferable Warrant Certificate
ENDO PHARMACEUTICALS HOLDINGS INC.
This Warrant Certificate certifies that, or registered assigns, is the
registered holder of Class A Transferable Warrants expiring on or before the
Expiration Date (the "Warrants") to purchase shares of Common Stock, par value
$.01 per share (the "Common Stock"), of Endo Pharmaceuticals Holdings Inc., a
Delaware corporation (the "Company"). Each Warrant entitles the holder upon
exercise to receive from the Company on or after the Exercisability Date and on
or before 5:00 p.m. New York City Time on the six-month anniversary of the
Exercisability Date (the "Expiration Date") a number of fully paid and
nonassessable shares of Common Stock (each such share, a "Warrant Share") as
determined in the following paragraph at the initial exercise price (the
"Exercise Price") equal to $0.01 per share payable upon surrender of this
Warrant Certificate and payment of the Exercise Price in the manner set forth in
the Warrant Agreement, subject only to the conditions set forth herein and in
the Warrant Agreement referred to on the reverse hereof.
If the Exercisability Date is on or prior to March 31, 2002, the Holder
shall then be entitled to receive from the Company (on exercise of such Warrants
and payment of the Exercise Price then in effect for such Warrant Shares)
(together, if applicable, with cash payable as provided in Section 13 hereof and
any dividends or distributions payable as provided in Section 14 hereof) (a)
1.153846 Warrant Shares in the event the Adjustment Event (as defined in that
certain Agreement and Plan of Merger, dated as of November 26, 1999, by and
among the Company, Endo Inc., a Delaware corporation and wholly owned subsidiary
of the Company, and Algos Pharmaceutical Corporation, a Delaware corporation)
has not occurred prior to the Exercisability Date or (b) 1.000000 Warrant Shares
in the event the Adjustment Event has occurred prior to the Exercisability Date.
If the Exercisability Date is after March 31, 2002 and on or prior to September
30, 2002, the Holder shall then be entitled to receive from the Company (on
exercise of such Warrants and payment of the Exercise Price then in effect for
such Warrant Shares) (together, if applicable, with cash payable as provided in
Section 13 hereof and any dividends or distributions payable as provided in
Section 14 hereof) (a) 0.633803 Warrant Shares in the event the Adjustment Event
has not occurred prior to the Exercisability Date or (b) 0.545455 Warrant Shares
in the event the Adjustment Event has occurred prior to
A-2
the Exercisability Date. If the Exercisability Date is after September 30, 2002
and on or prior to March 31, 2003, the Holders shall then be entitled to receive
from the Company (on exercise of such Warrants and payment of the Exercise Price
then in effect for such Warrant Shares) (together, if applicable, with cash
payable as provided in Section 13 hereof and any dividends or distributions
payable as provided in Section 14 hereof) (a) 0.263158 Warrant Shares in the
event the Adjustment Event has not occurred prior to the Exercisability Date or
(b) 0.225352 Warrant Shares in the event the Adjustment Event has occurred prior
to the Exercisability Date.
The Exercise Price and number of Warrant Shares issuable upon exercise of
the Warrants are subject to adjustment upon the occurrence of certain events as
set forth in the Warrant Agreement.
No Warrant may be exercised before the Exercisability Date or after 5:00
p.m., New York City Time, on the Expiration Date and to the extent not exercised
by such time such Warrants shall become void.
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent, as such term is used in the Warrant Agreement.
THIS WARRANT CERTIFICATE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
A-3
IN WITNESS WHEREOF, Endo Pharmaceuticals Holdings Inc. has caused this
Warrant Certificate to be signed by an officer and by its Secretary, each by a
facsimile of his or her signature, and has caused a facsimile of its corporate
seal to be affixed hereunto or imprinted hereon.
Dated:
ENDO PHARMACEUTICALS HOLDINGS INC.
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
Countersigned:
UNITED STATES TRUST COMPANY
OF NEW YORK,
as Warrant Agent
By: _________________________________
Name:
Title:
A-4
[Form of Warrant Certificate]
[Reverse]
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants expiring on the "Expiration Date," entitling the
holder on exercise to receive shares of Common Stock, par value $.01 per share,
of the Company (the "Common Stock"), and are issued or to be issued pursuant to
a Warrant Agreement dated as of July 17, 2000 (the "Warrant Agreement"), duly
executed and delivered by the Company to United States Trust Company of New
York, as warrant agent (the "Warrant Agent"), which Warrant Agreement is hereby
incorporated by reference in and made a part of this instrument and is hereby
referred to for a description of the rights, limitation of rights, obligations,
duties and immunities thereunder of the Warrant Agent, the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants. A copy of the Warrant Agreement may be
obtained by the holder hereof upon written request to the Company.
Warrants may be exercised at any time on or after the "Exercisability Date"
and on or before the "Expiration Date." The holder of Warrants evidenced by this
Warrant Certificate may exercise them by surrendering this Warrant Certificate,
with the form of election to purchase set forth hereon properly completed and
executed, together with payment in the manner provided for in the Warrant
Agreement at the office of the Warrant Agent. In the event that upon any
exercise of Warrants evidenced hereby, the number of Warrants exercised shall be
less than the total number of Warrants evidenced hereby, there shall be issued
to the holder hereof or his, her or its assignee a new Warrant Certificate
evidencing the number of Warrants not exercised.
The Warrant Agreement provides that upon the occurrence of certain events
the number of Warrants set forth on the face hereof and the Exercise Price may,
subject to certain conditions, be adjusted. No fractions of a share of Common
Stock will be issued upon the exercise of any Warrant, but the Company will pay
the cash value thereof determined as provided in the Warrant Agreement.
Warrant Certificates, when surrendered at the office of the Warrant Agent
by the registered holder thereof in person or by legal representative or
attorney duly authorized in writing, may be exchanged, in the manner and subject
to the limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
A-5
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Warrant Agent a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company and the Warrant Agent may deem and treat the registered
holder(s) thereof as the absolute owner(s) of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, of any distribution to the
holder(s) hereof, and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary. Neither the
Warrants nor this Warrant Certificate entitles any holder hereof to any rights
of a stockholder of the Company.
A-6
[Form of Election to Purchase]
(To Be Executed upon Exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to receive shares of Common Stock and
herewith tenders payment for such shares to the order of Endo Pharmaceuticals
Holdings Inc. in the amount of $_______ payable in (select one or more: (i) cash
and/or (ii) pursuant to a Cashless Exercise) in accordance with the terms hereof
and of the Warrant Agreement. The undersigned requests that a certificate for
such shares be registered in the name of _____________________, whose address is
___________________________________ and that such shares be delivered to
______________________whose address is ______________________________. If said
number of shares is less than all of the shares of Common Stock purchasable
hereunder, the undersigned requests that a new Warrant Certificate representing
the remaining balance of such shares be registered in the name of
_____________________, whose address is _____________________________, and that
such Warrant Certificate be delivered to__________________________, whose
address is __________________________.
Signature:
Date:
Signature Guaranteed:
A-7
SCHEDULE OF EXCHANGES OF CERTIFICATED WARRANTS
The following exchanges of a part of this Global Warrant for certificated
Warrants have been made:
Number of
Warrants of
Amount of Amount of this Global
decrease in increase in Warrant Signature of
Number of Number of following authorized
Date of Warrants of this Warrants of this such decrease officer of
Exchange Global Warrant Global Warrant (or increase) Warrant Agent
---------- ---------------- ---------------- ------------- -------------
A-8
EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF
CLASS A TRANSFERABLE WARRANTS
Re: Class A Transferable Warrants to Purchase Common Stock (the "Warrants") of
Endo Pharmaceuticals Holdings Inc.
This Certificate relates to Warrants held in* book-entry or * certificated
form by (the "Transferor").
The Transferor:*
[_] has requested the Warrant Agent by written order to deliver in exchange for
its beneficial interest in the Global Warrant held by the depository a
Warrant or Warrants in definitive, registered form equal to its beneficial
interest in Warrants represented by such Global Warrant (or the portion
thereof indicated above); or
[_] has requested the Warrant Agent by written order to deliver in exchange or
register the transfer of a Warrant or Warrants.
_____________________________________
[INSERT NAME OF TRANSFEROR]
By: _________________________________
Date: ______________________
*Check applicable box.
B-1
