THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) AND IS NOT TRANSFERABLE EXCEPT AS PROVIDED HEREIN Warrant to Purchase _______ Shares of Class A Common Stock of Biopure Corporation (A Delaware Corporation)
EXHIBIT 4.1
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) AND
IS NOT TRANSFERABLE EXCEPT AS PROVIDED HEREIN
IS NOT TRANSFERABLE EXCEPT AS PROVIDED HEREIN
Warrant
to
Purchase _______ Shares of Class A Common Stock
of
Biopure Corporation
(A Delaware Corporation)
to
Purchase _______ Shares of Class A Common Stock
of
Biopure Corporation
(A Delaware Corporation)
THIS
CERTIFIES THAT, for value received, ______ or its assigns, (the “Holder”), as
registered owner of this warrant (the “Warrant”), is entitled to purchase and receive, in whole or
in part, subject to the provisions of this Warrant, from Biopure Corporation, a Delaware
corporation (the “Company”), up to ______ fully paid, validly issued and nonassessable shares of
Class A common stock, par value $.01 per share (the “Common Stock”), of the Company (the “Warrant
Shares”) at a price per share equal to $0.816 (the “Initial Exercise Price”) (120% of the initial
public offering price per share); provided, however, that the number and kind of securities for
which the Warrants are exercisable are subject to further adjustment in certain events, such as
mergers, splits, stock dividends, recapitalizations and the like, to prevent dilution, as set forth
herein. This Warrant shall be exercisable at any time and from time to time during the period
commencing one (1) year after (the “Commencement Date”) the date of hereof up to and including
December 20, 2010 (the “Expiration Date”), and subject to the terms and conditions set forth
herein. If the Expiration Date is a day on which banking institutions are authorized by law to
close, then this Warrant may be exercised on the next succeeding day which is not such a day in
accordance with the terms herein. During the period beginning on the Commencement Date and ending
on the Expiration Date, the Company agrees not to take any action that would terminate the Warrant.
Section 1. Exercise.
Section 1.1 Exercise Form. In order to exercise this Warrant, the exercise
form attached hereto must be duly executed and completed and delivered to the Company,
together with this Warrant and payment of the Exercise Price in cash or by certified check
or official bank check for the Warrant Shares being purchased. If the subscription rights
represented hereby shall not be exercised at or before 5:00 p.m., Eastern time, on the
Expiration Date, this Warrant shall become and be void without further force or effect, and
all rights represented hereby shall cease and expire.
Section 1.2 Conversion Right.
Section 1.2.1 Determination of Amount. In lieu of the payment of the Exercise
Price in the manner required by Section 1.1, the Holder shall have the right (but not the
obligation) to convert any exercisable but unexercised portion of this Warrant into Warrant
Shares (the “Conversion Right”) as follows. Upon exercise of the Conversion Right, the
Company shall deliver to the Holder (without payment by the Holder of any of the Exercise
Price in cash) that number of Warrant Shares equal to the quotient obtained by dividing (x)
the “Value” (as defined below), at the close of trading on the next to last trading day
immediately preceding the exercise of the Conversion Right, of the portion of the Warrant
being converted by (y) the “Market Price” (as
defined below). The “Value” of the portion of the Warrant being converted shall equal
the remainder derived from subtracting (a) the Exercise Price multiplied by the number of
Warrant Shares underlying that portion of the Warrant being converted from (b) the Market
Price of the Warrant Shares multiplied by the number of Warrant Shares underlying that
portion of the Warrant being converted. As used in this herein, the term “Market Price” at
any date shall be deemed to be the sum of (A) the average last reported sale price of the
shares for the five trading days ending on the next to last trading day immediately preceding
the exercise of the Conversion Right as officially reported by the principal securities
exchange on which the shares are listed or admitted to trading, or, if the shares are not
listed or admitted to trading on any national securities exchange or if any such exchange on
which the shares are listed is not its principal trading market, the average last reported
sale price for such five trading days as furnished by the NASD through the Nasdaq National
Market or Capital Market, or, if applicable, the OTC Bulletin Board, or if the shares are not
listed or admitted to trading on any of the foregoing markets, or similar organization, as
determined in good faith by resolution of the Board of Directors of the Company, based on the
best information available to it and (B) the intrinsic value of the Warrant using the
share price determined in (A).
Section 1.2.2 Mechanics of Conversion. The Conversion Right may be exercised by
the Holder on any business day on or after the Commencement Date and not later than the
Expiration Date by delivering the Warrant with a duly executed exercise form attached hereto
with the Conversion Right section completed to the Company, exercising the Conversion Right
and specifying the total number of Warrant Shares that the Holder will purchase pursuant to
such Conversion Right.
Section 1.3 Notwithstanding anything to the contrary herein, after the sixth (6th)
month anniversary of the date hereof, the Company may, by written notice to the Holder, require
that the Holder execute and deliver to the Company an Exercise Notice exercising all of the Warrant
Shares then held by such Holder within twenty (20) Business Days of the date of the Company’s
notice; provided, however, that the Company may only provide such notice if the daily volume
weighted average price per share of the Common Stock for each of the ten (10) consecutive trading
days ended immediately prior to the Company’s notice is equal to or greater than the Exercise Price
multiplied by 1.5. At 5:00 P.M. New York City time on such twentieth (20th) Business
Day, the portion of this Warrant not exercised prior thereto shall be and become void and of no
value, and the Holder hereof shall have no right to purchase any additional Warrant Shares
hereunder.
Section 2. Transfer.
Section 2.1 General Restrictions. The registered Holder of this Warrant, by
its acceptance hereof, agrees that it will not sell, transfer or assign or hypothecate this
Warrant prior to the one hundred eighty (180) days from the Effective Date to anyone other
than (i) an officer or partner of such Holder, (ii) an officer of either Xxxxxx Xxxxx
Securities, Inc. or Noble International Investments, Inc., the underwriters of the public
offering with respect to which this Warrant has been issued (“Underwriters”) or an officer
or partner of any selected dealer in connection with the Company’s public offering with
respect to which this Warrant has been issued, or (iii) any selected dealer. On and after
the Commencement Date, transfers to others may be made subject to compliance with or
exemptions from applicable securities laws. In order to make any permitted assignment, the
Holder must deliver to the Company the assignment form attached hereto duly executed and
completed, together with the Warrant and payment of all transfer taxes, if any, payable in
connection therewith. The Company shall immediately transfer this Warrant on the books of
the Company and shall execute and deliver a new Warrant of like
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tenor to the appropriate
assignee(s) expressly evidencing the right to purchase the aggregate number of Warrant Shares purchasable hereunder or such portion of such number as shall
be contemplated by any such assignment.
Section 2.2 Restrictions Imposed by the Act. This Warrant and the Warrant
Shares underlying this Warrants hall not be transferred unless and until (i) the Company has
received the opinion of counsel for the Holder that this Warrant or the Warrant Shares, as
the case may be, may be transferred pursuant to an exemption from registration under the Act
and applicable state law, the availability of which is established to the reasonable
satisfaction of the Company (the Company hereby agreeing that an opinion of Cozen X’Xxxxxx
shall be deemed satisfactory evidence of the availability of an exemption), or (ii) a
registration statement relating to such Warrant or Warrant Shares, as the case may be, has
been filed by the Company and declared effective by the Securities and Exchange Commission
(the “Commission”) and compliance with applicable state law.
Section 3. New Warrants to be Issued.
Section 3.1 Partial Exercise or Transfer. Subject to the restrictions in
Section 3 hereof, this Warrant may be exercised or assigned in whole or in part. In the
event of the exercise or assignment hereof in part only, upon surrender of this Warrant for
cancellation, together with the duly executed exercise or assignment form and funds
sufficient to pay any Exercise Price and/or transfer tax, the Company shall cause to be
delivered to the Holder without charge a new Warrant of like tenor to this Warrant in the
name of the Holder evidencing the right of the Holder to purchase the aggregate number of
Warrant Shares purchasable hereunder as to which this Warrant has not been exercised or
assigned.
Section 3.2 Lost Certificate. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant and of
reasonably satisfactory indemnification, and upon surrender and cancellation of the
Warrants, if mutilated, the Company shall execute and deliver a new Warrant of like tenor
and date. Any such new Warrant executed and delivered as a result of such loss, theft,
mutilation or destruction shall constitute a substitute contractual obligation on the part
of the Company.
3
Section 4. Registration Rights.
Section 4.1 Registration. This Warrant and the Warrant Shares issuable upon
exercise of the Warrant (the Warrant and Warrant Shares collectively referred to hereinafter
as the “Registrable Securities”) shall be registered pursuant to the Registration Statement
(as defined hereinbelow), and the Company covenants and agrees to maintain the effectiveness
of the Registration Statement until the Expiration Date. Notwithstanding the foregoing, in
the event that, prior to the Expiration Date, the Company ceases to be eligible under the
Securities Act of 1933, as amended (the “Act”) or the rules and regulations promulgated
thereunder, to maintain a registration statement on Form S-3, or in the event that the
Warrant or the Warrant Shares cease to be eligible for inclusion in such Registration
Statement to the extent necessary to permit the Holder to exercise the Warrants and sell the
Warrant Shares without restriction under the Act, the Company will promptly (and in any
event within 10 days of the date that the Warrants or any Warrant Shares cease to be so
eligible), amend or file a new registration statement under the Act on a form eligible for
use by the Company for the registration of such securities and use its best efforts to have
such registration statement declared effective by the Commission as soon as practicable
after such filing, which registration statement shall include such information as may be
required to permit the exercise of the Warrant and the sale of the Warrant Shares without
restriction under the Act. The Holder acknowledges and agrees that the Warrant shall be
exercisable pursuant to any such registration statement only at such times as the
registration statement is effective or in accordance with any applicable exemption from the
registration requirements of the Act. Upon such Registration Statement’s being declared
effective by the Commission, the Company shall use its best efforts to cause the
Registration Statement to remain effective for a period of at least six (6) consecutive
months from the date that the holders of the Warrant and the Warrant Shares are covered by
such Registration Statement are first given the opportunity to sell all of such securities.
During such time as the Warrant Shares registered pursuant to any registration statement
under the Act, the Company further covenants and agrees to make timely filings of all
documents required by be filed under the Act or the Exchange Act in order to ensure that the
registration statement, including the documents incorporated by reference therein, if any,
do not contain an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements therein not
misleading.
”Registration
Statement” means the Company’s Registration Statements
(File Nos. 333-114559 and
333-106288), as such registration statements are amended, supplemented or replaced.
4
Section 4.2 Expenses. The Company shall bear all fees and expenses attendant to
registering the Registrable Securities.
Section 4.3 Exercise of Warrants. Nothing contained in this Warrant shall be
construed as requiring the Holder(s) to exercise their Warrants prior to or after the
initial filing of any registration statement or the effectiveness thereof.
Section 4.4 Documents to be Delivered by Holder(s). Each of the Holder(s)
participating in any of the foregoing offerings shall furnish to the Company a completed and
executed questionnaire provided by the Company requesting information customarily sought of
selling securityholders.
Section 4.5 Remedies. The Company stipulates that the remedies at law of the
Holder of this Warrant in the event of any default or threatened default by the Company in
the performance of or compliance with any of the terms of this Warrant are not and will not
be adequate, and that such terms may be specifically enforced by a decree for the specific
performance of any agreement contained herein or by an injunction restraining any breach,
actual or threatened, of the terms of this Warrant, without the necessity of showing
economic loss. The remedies provided herein shall be cumulative and in addition to all other
remedies available under this Warrant, at law or in equity, and nothing herein shall limit
the right of the Holder to pursue actual damages for any failure by the Company to comply
with the terms of the Warrant.
Section 5. Adjustments.
Section 5.1 Adjustments to Exercise Price and Number of Securities. The
Exercise Price and the number of the Warrant Shares underlying the Warrant shall be subject
to adjustment from time to time as hereinafter set forth:
Section 5.1.1 If after the date hereof, and subject to the provisions of Section 5.2
below, the number of outstanding shares of Common Stock is increased by a stock dividend
payable in shares of Common Stock or by a split-up of shares of Common Stock or other similar
event, then, on the effective date thereof, the number of shares of Common Stock underlying
the Warrant shall be increased in proportion to such increase in outstanding shares.
Section 5.1.2 If after the date hereof, and subject to the provisions of Section 5.2,
the number of outstanding shares of Common Stock is decreased by a consolidation, combination
or reclassification of shares of Common Stock or other similar event, then, on the effective
date thereof, the number of shares of Common Stock underlying the Warrant shall be decreased
in proportion to such decrease in outstanding shares.
Section 5.1.3
In case of any reclassification or reorganization of the outstanding shares of Common Stock other than a change covered by Section 5.1.1 or 5.1.2 hereof or that
solely affects the par value of such shares of Common Stock, or in the case of any merger or
consolidation of the Company with or into another corporation (other than a consolidation or
merger in which the Company is the continuing corporation and that does not result in any
reclassification or reorganization of the outstanding shares of Common Stock), or in the case
of any sale or conveyance to another corporation or entity of the property of the Company as
an entirety or substantially as an entirety in connection with which the Company is
dissolved, the Holder of this Warrant shall have the right thereafter (until the expiration
of the right of exercise of this Warrant) to receive upon the exercise hereof, for the same
aggregate Exercise Price payable
5
hereunder immediately prior to such event, the kind and
amount of shares of stock or other securities or property (including cash) receivable upon such reclassification,
reorganization, merger or consolidation, or upon a dissolution following any such sale or
transfer, by a Holder of the number of shares of Common Stock of the Company obtainable upon
exercise of this Warrant immediately prior to such event; and if any reclassification also
results in a change in shares of Common Stock covered by Section 5.1.1 or 5.1.2, then such
adjustment shall be made pursuant to Sections 5.1.1, 5.1.2 and this Section 5.1.3. The
provisions of this Section 5.1.3 shall similarly apply to successive reclassifications,
reorganizations, mergers or consolidations, sales or other transfers.
Section 5.1.4 This form of Warrant need not be changed because of any change pursuant to
this Section, and Warrants issued after such change may state the same Exercise Price and the
same number of Warrant Shares as are stated in the Warrant initially issued pursuant to this
Agreement. The acceptance by any Holder of the issuance of new Warrant reflecting a required
or permissive change shall not be deemed to waive any rights to an adjustment occurring after
the Commencement Date or the computation thereof.
Section 5.1.5 In case of any consolidation of the Company with, or merger of the Company
with, or merger of the Company into, another corporation (other than a consolidation or
merger which does not result in any reclassification or change of the outstanding Common
Stock), the corporation formed by such consolidation or merger shall execute and deliver to
the Holder a replacement Warrant providing that the holder of each Warrant then outstanding
or to be outstanding shall have the right thereafter (until the stated expiration of such
Warrant) to receive, upon exercise of such Warrant the kind and amount of shares of stock and
other securities and property receivable upon such consolidation or merger, by a holder of
the number of shares of Common Stock of the Company for which such Warrant might have been
exercised immediately prior to such consolidation, merger, sale or transfer. Such replacement
Warrant shall provide for adjustments which shall be identical to the adjustments provided in
Section 5. The above provision of this Section shall similarly apply to successive
consolidations or mergers.
Section 5.2 Elimination of Fractional Interests. The Company shall not be
required to issue certificates representing fractions of shares of Common Stock or Warrants
upon the exercise of the Warrant, nor shall it be required to issue scrip or pay cash in
lieu of any fractional interests, it being the intent of the parties that all fractional
interests shall be eliminated by rounding any fraction down to the nearest whole number of
Warrants, shares of Common Stock or other securities, properties or rights.
Section 6. Reservation and Listing.
The Company shall at all times reserve and keep available out of its authorized shares
of Common Stock, solely for the purpose of issuance upon exercise of the Warrant such number
of shares of Common Stock or other securities, properties or rights as shall be issuable
upon the exercise thereof. The Company covenants and agrees that, upon exercise of the
Warrant and payment of the Exercise Price therefor, all shares of Common Stock and other
securities issuable upon such exercise shall be duly and validly issued, fully paid and
non-assessable and not subject to preemptive rights of any stockholder. As long as the
Warrant shall be outstanding, the Company shall use its best efforts to cause all Warrant
Shares issuable upon exercise of the Warrant to be listed (subject to official notice of
issuance) on all securities exchanges (or, if applicable on the Nasdaq National Market,
Capital Market, OTC Bulletin Board or any successor
6
trading market) on which the Common
Stock or the Public Warrants issued to the public in connection herewith may then be listed
and/or quoted.
Section 7. Certain Notice Requirements.
Section 7.1 Holder’s Right to Receive Notice. Nothing herein shall be
construed as conferring upon the Holder the right to vote or consent as a stockholder for
the election of directors or any other matter, or as having any rights whatsoever as a
stockholder of the Company. If, however, at any time prior to the expiration of the Warrant
and its exercise, any of the events described in Section 7.2 shall occur, then, in one or
more of said events, the Company shall give written notice of such event at least fifteen
(15) days prior to the date fixed as a record date or the date of closing the transfer books
for the determination of the stockholders entitled to such dividend, distribution,
conversion or exchange of securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record
date or the date of the closing of the transfer books, as the case may be. Notwithstanding
the foregoing, the Company shall deliver to the Holder a copy of each notice given to the
other stockholders of the Company at the same time and in the same manner that such notice
is given to the stockholders.
Section 7.2 Enumerated Events. The Company shall be required to give the notice
described in this Section 7 upon one or more of the following events: (i) if the Company
shall take a record of the holders of its shares of Common Stock for the purpose of
entitling them to receive a dividend or distribution payable otherwise than in cash, or a
cash dividend or distribution payable otherwise than out of retained earnings, as indicated
by the accounting treatment of such dividend or distribution on the books of the Company, or
(ii) the Company shall offer to all the holders of its Common Stock any additional shares of
capital stock of the Company or securities convertible into or exchangeable for shares of
capital stock of the Company, or any option, right or warrant to subscribe therefor, or
(iii) a dissolution, liquidation or winding up of the Company (other than in connection with
a consolidation or merger) or a sale of all or substantially all of its property, assets and
business shall be proposed by the Company.
Section 7.3 Change in Exercise Price. The Company shall, promptly after an
event requiring a change in the Exercise Price pursuant to Section 7 hereof, send notice to
the Holder of such event and change (the “Price Notice”). The Price Notice shall describe
the event causing the change and the method of calculating same and shall be certified as
being true and accurate by the Company’s President and Chief Financial Officer.
Section 7.4 Transmittal of Notices. All notices, requests, consents and other
communications under this Warrant shall be in writing and shall be deemed to have been duly
made on the date of delivery if delivered personally or sent by overnight courier, with
acknowledgement of receipt to the party to which notice is given, or on the fifth day after
mailing if mailed to the party to whom notice is to be given, by registered or certified
mail, return receipt requested, postage prepaid and properly addressed as follows: (i) if
to the registered Holder of the Warrant, to the address of such Holder as shown on the books
of the Company, or (ii) if to the Company, to its principal executive office.
Section 8. Miscellaneous.
Section 8.1 Amendments. The Company and the Underwriters may from time to time
supplement or amend this Warrant without the approval of any of the Holders in
7
order to cure
any ambiguity, to correct or supplement any provision contained herein which may be
defective or inconsistent with any other provisions herein, or to make any other provisions
in regard to matters or questions arising hereunder which the Company and the Underwriters
may deem necessary or desirable and which the Company and the Underwriters deem shall not
adversely affect the interest of the Holders. All other modifications or amendments
shall require the written consent of the party against whom enforcement of the modification
or amendment is sought.
Section 8.2 Headings. The headings contained herein are for the sole purpose
of convenience of reference, and shall not in any way limit or affect the meaning or
interpretation of any of the terms or provisions of this Warrant.
Section 8.3 Entire Agreement. This Warrant (together with the other agreements
and documents being delivered pursuant to or in connection with this Warrant) constitutes
the entire agreement of the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements and understandings of the parties, oral and written, with
respect to the subject matter hereof.
Section 8.4 Binding Effect. This Warrant shall inure solely to the benefit of
and shall be binding upon, the Holder and the Company and their respective successors, legal
representatives and assigns, and no other person shall have or be construed to have any
legal or equitable right, remedy or claim under or in respect of or by virtue of this
Warrant or any provisions herein contained.
8
Section 8.5 Governing Law; Submission to Jurisdiction. This Warrant shall be
governed by and construed and enforced in accordance with the laws of the State of New York,
without giving effect to conflict of laws. The Company hereby agrees that any action,
proceeding or claim against it arising out of, or relating in any way to this Warrant shall
be brought and enforced in the courts of the State of New York or of the United States of
America for the Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. The Company hereby waives any objection to such
exclusive jurisdiction and that such courts represent an inconvenient forum. Any process or
summons to be served upon the Company may be served by transmitting a copy thereof by
registered or certified mail, return receipt requested, postage prepaid, addressed to
Biopure Corporation, 00 Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, Attn: Xxxx Xxxxx, Esq. Such
mailing shall be deemed personal service and shall be legal and binding upon the Company in
any action, proceeding or claim. The Company and the Holder, by acceptance hereof, agree
that the prevailing party(ies) in any such action shall be entitled to recover from the
other party(ies) all of its reasonable attorneys’ fees and expenses relating to such action
or proceeding and/or incurred in connection with the preparation therefor.
Section 8.6 Waiver, Etc. The failure of the Company or the Holder to at any
time enforce any of the provisions of this Warrant shall not be deemed or construed to be a
waiver of any such provision, nor to in any way affect the validity of this Warrant or any
provision hereof or the right of the Company or any Holder to thereafter enforce each and
every provision of this Warrant. No waiver of any breach, non-compliance or non-fulfillment
of any of the provisions of this Warrant shall be effective unless set forth in a written
instrument executed by the party or parties against whom or which enforcement of such waiver
is sought; and no waiver of any such breach, non-compliance or non-fulfillment shall be
construed or deemed to be a waiver of any other or subsequent breach, non-compliance or
non-fulfillment.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its duly authorized
officer as of the ___ day of December 2005.
| Biopure Corporation |
||||
| By: | ||||
| Xxxxxxx X. Xxxxxxxxx | ||||
| President and Chief Executive Officer | ||||
9
Form to be used to exercise Warrant:
Biopure Corporation
Date: , 200___
The undersigned hereby elects irrevocably to exercise the within Warrant and to purchase ___
Biopure Corporation and hereby makes payment of $ (at the rate of $ per Share)
in payment of the Exercise Price pursuant thereto. Please issue the Share as to which this Warrant
is exercised in accordance with the instructions given below.
or
The undersigned hereby elects irrevocably to exercise the within Warrant and to purchase
Biopure Corporation by surrender of the unexercised portion of the within Warrant (with a
“Value” of $ based on a “Market Price” of $ .) Please issue the Warrant Shares as
to which this Warrant is exercised in accordance with the instructions given below.
NOTICE: The signature to this form must correspond with the name as written upon the face of
the within Warrant in every particular without alteration or enlargement or any change whatsoever.
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name |
||
| (Print in Block Letters) | ||
Address |
||
10
Form to be used to assign Warrant:
ASSIGNMENT
(To be executed by the registered Holder to effect a transfer of the within Warrant):
FOR VALUE RECEIVED, does hereby sell, assign and transfer
unto the right to purchase of Biopure Corporation
(“Company”) evidenced by the within Warrant and does hereby authorize the Company to transfer such
right on the books of the Company.
Dated: , 200_
NOTICE: The signature to this form must correspond with the name as written upon the face of
the within Warrant in every particular without alteration or enlargement or any change whatsoever,
and must be guaranteed by a bank, other than a savings bank, or by a trust company or by a firm
having membership on a registered national securities exchange.
11
