EXHIBIT 4.2
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EXECUTION VERSION
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UNIT PURCHASE AGREEMENT
Gensia Sicor Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Ladies & Gentlemen:
The undersigned purchaser (the "Purchaser") hereby confirms its agreement
with you as follows:
1. This Unit Purchase Agreement (the "Purchase Agreement") is made by and
between Gensia Sicor Inc., a Delaware corporation (the "Company"), and the
Purchaser as of the date this Purchase Agreement is accepted by the Company
below (the "Effective Date").
2. The Company has authorized the issuance and sale of up to nine million
(9,000,000) units (the "Units"). Each Unit consists of one share of the
Company's Common Stock, par value $.01 per share (the "Common Stock"), and a
warrant (the "Warrant") to purchase one-half share of the Company's Common Stock
at a per share exercise price of $4.1875, such Warrant to be issued if and to
the extent that the Purchaser sells no Common Stock or other securities of the
Company for a period commencing on the Effective Date and ending on December 31,
1997, all as more fully described in this Purchase Agreement, the Warrant and
accompanying documents.
3. The Company and the Purchaser agree that the Purchaser will purchase
from the Company, and the Company will sell to the Purchaser
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Units, at a purchase price per Unit (the "Purchase Price") equal to $4.1875, and
pursuant to, the Terms and Conditions for Purchase of Units attached hereto as
Annex I and incorporated herein by reference as if fully set forth herein.
4. Units will be sold on a first come, first served basis. The Company
makes no representation that this Purchase Agreement will be accepted by the
Company.
5. Purchaser hereby agrees not to engage in the short sale of the
Company's Common Stock for a twenty (20) day period prior to and for a ninety
(90) day period following the Closing Date.
Please confirm that the foregoing correctly sets forth the agreement
between us by signing in the space provided below for that purpose.
PURCHASER
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Print Name
By:
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Title:
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Address:
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ACCEPTED as of Xxxxx 00, 0000
Xxxxxx Sicor Inc.
By:
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Title:
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ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF UNITS
1. Authorization and Sale of the Units.
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1.1 Authorization of the Units. The Company has authorized the issuance
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and sale of up to nine million (9,000,000) units (the "Units"), each Unit
consisting of one share of the Company's Common Stock, par value $.01 per share
(the "Common Stock") and a warrant to purchase one-half share of the Company's
Common Stock (the "Warrant") in the form attached hereto as Exhibit 1.1.
1.2 Sale of Units. Subject to the terms and conditions hereof, the
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Purchaser will purchase the number of Units agreed upon by the Purchaser at the
Purchase Price, as set forth in the Unit Purchase Agreement by and between the
Company and the Purchaser (the "Purchase Agreement"). The shares of Common
Stock sold to Purchaser pursuant to the Purchase Agreement are hereinafter
referred to as the "Initial Shares" and the shares of Common Stock arising from
the exercise of the Warrant are hereinafter referred to as the "Warrant Shares."
The Initial Shares, the Warrant and the Warrant Shares are hereinafter
collectively referred to as the "Securities."
2. Closing Date.
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2.1 Closing Date. The closing of the purchase and sale of the Units to
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the Purchaser hereunder (the "Closing") shall be held at the offices of
Pillsbury Madison & Sutro LLP, 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx 00000, at
9:00 A.M. California time, on March 26, 1997 or at such other time within five
(5) business days thereof as the Company may select. The date of the Closing is
hereinafter referred to as the "Closing Date." As of the Closing Date, the
Company shall prepare a certificate or certificates registered in the name of
the Purchaser representing the Initial Shares to be purchased by such Purchaser
under the Purchase Agreement, and the Purchaser shall send to the Company a wire
transfer (in accordance with the instructions set forth on Exhibit 2.l(a)
hereto) in the amount of the purchase price of the Units to be purchased by such
Purchaser, payable to the Company's order. Funds received prior to the Closing
Date will not bear interest.
2.2 Warrant Issuance. The Company will issue a Warrant to purchase one-
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half share of the Company's Common Stock at a per share exercise price of
$4.1875 (with such number of shares and purchase price as adjusted pursuant to
the provisions of Section 3 of the Warrant for any events which occur from and
after the Closing Date and on or prior to December 31, 1997) to each Purchaser
for each share of the Company's Common Stock purchased by the Purchaser at the
Closing and held by such Purchaser until December 31, 1997 (the "Warrant
Determination Date"). The
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Warrant will be issued by the Company promptly after the Warrant Determination
Date; provided, however, that for purposes of calculating the amount of the
Warrant, the number of shares purchased at the Closing and held until the
Warrant Determination Date will be reduced by any other sales of Company
securities (including short sales and sales or purchases of derivative
securities) by the Purchaser from the Closing Date until the Warrant
Determination Date. The Company may request an affidavit and other reasonable
supporting materials as to the foregoing from any Purchaser prior to issuance of
the Warrant.
3. Representations and Warranties of the Company. The Company
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represents and warrants to the Purchaser as of the Closing Date as follows:
3.1 Organization and Standing. The Company has been duly incorporated
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and is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation.
3.2 Corporate Power; Authorization. The Company has all requisite legal
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and corporate power and has taken all requisite corporate action to execute and
deliver the Purchase Agreement, to sell and issue the Securities and to carry
out and perform all of its obligations hereunder. The Purchase Agreement has
been duly authorized, executed and delivered on behalf of the Company and
constitutes the valid and binding agreement of the Company, enforceable in
accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization or similar laws relating to or affecting the
enforcement of creditors' rights generally, (ii) as limited by equitable
principles generally and (iii) rights to indemnification hereunder may be
limited by applicable law. The consummation of the transactions contemplated
herein and the fulfillment of the terms hereof will not result in a breach of
any of the terms or provisions of, or constitute a default under, the Company's
Certificate of Incorporation, the Company's by-laws, or any material indenture,
mortgage, deed of trust or other agreement or instrument to which the Company is
a party or by which it is bound.
3.3 Units; Warrant Shares. The Company has full corporate power and
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lawful authority to sell the Units on the terms and conditions contemplated
herein, and when so sold against payment therefor as provided herein, the
Initial Shares and, when issued, the Warrants will be validly authorized and
issued, fully paid and nonassessable. The issuance and delivery of each of the
Initial Shares and the Warrants is not subject to preemptive or any similar
rights of the stockholders of the Company or any liens or encumbrances arising
through the Company and when the Warrant Shares are issued in accordance with
the terms of the Warrants, they will be validly issued and outstanding, fully
paid and nonassessable and free of any liens or encumbrances arising through the
Company.
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3.4 SEC Documents; Financial Statements. The Company's Annual Report on
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Forms 10-K and 10-K/A for the Fiscal Year Ended December 31, 1995, the Company's
Quarterly Reports on Forms 10-Q for the quarterly period ended March 31, 1996,
the Company's Quarterly Report on Form 10-Q for the quarterly period ended June
30, 1996, the Company's Quarterly Report on Form 10-Q for the quarterly period
ended September 30, 1996, the Company's Form 8-K dated December 30, 1996, the
Company's definitive Proxy Statement dated January 15, 1997, and the Company's
Form 8-K dated February 28, 1997 (the "SEC Documents") as filed by the Company
with the Securities and Exchange Commission (the "Commission") have been
provided to the Purchaser. The SEC Documents conform in all material respects
to the requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as applicable, and the rules, regulations and instructions of
the Commission thereunder. The SEC Documents did not as of their dates contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements made therein,
in light of the circumstances in which they were made, not misleading. The
financial statements of the Company included in the SEC Documents (the
"Financial Statements") comply as to form in all material respects with
applicable accounting requirements and with the published rules and regulations
of the Commission with respect thereto. Except as may be indicated in the notes
to the Financial Statements, the Financial Statements have been prepared in
accordance with generally accepted accounting principles consistently applied
and fairly present the consolidated financial position of the Company and its
subsidiaries at the dates thereof and the consolidated results of their
operations, stockholders' equity and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal, recurring
adjustments).
3.5 Subsequent Events. Since February 28, 1997 (the date of the closing
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of the Gensia/Sicor combination), (i) neither the Company nor any of its
subsidiaries has incurred any liabilities or obligations, contingent or
otherwise, that are material in the aggregate to the Company and its
subsidiaries, taken as a whole, except in the ordinary course of business, and
(ii) there has been no material adverse change in the condition or results of
operations, financial or otherwise, of the Company and its subsidiaries, taken
as a whole.
3.6 Legal Proceedings. Except as set forth in the SEC Documents, there
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are no material legal proceedings to which the Company or any subsidiary is a
party or of which property of the Company or any subsidiary is the subject and,
to the Company's knowledge, no such proceedings are contemplated by governmental
authorities or others.
3.7 Validity of Securities. The Company has full corporate power and
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lawful authority to sell the Units on the terms and conditions contemplated in
the Purchase Agreement, and
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when so sold against payment therefor as provided therein, the Initial Shares
and the Warrant will be validly authorized and issued, fully paid and
nonassessable and will have the rights, preferences and privileges described in
the Certificate of Incorporation and the Warrant, respectively. The issuance and
delivery of the Initial Shares, when issued, and the Warrant are not subject to
preemptive or any similar rights of the stockholders of the Company or any liens
or encumbrances arising through the Company; and when the Warrant Shares are
issued in accordance with the terms of the Warrant, they will be validly issued
and outstanding, fully paid and nonassessable and free of any liens or
encumbrances arising through the Company. Subject to compliance with the
provisions of applicable securities laws of state or foreign jurisdictions, no
other approval of any public body (state or federal) is or will, on the Closing
Date be necessary in connection with the offer, issue and sale of the Initial
Shares and the Warrant as contemplated herein.
3.8 No Breach. The consummation of the transactions contemplated in the
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Purchase Agreement and the fulfillment of the terms thereof will not result in a
breach of any of the terms or provisions of, or constitute a default under, the
Company's Certificate of Incorporation, the Company's by-laws, or any material
indenture, mortgage, deed of trust or other agreement or installment to which
the Company is a party or by which it is bound.
3.9 Good Standing. Each of the Company and its subsidiaries has been duly
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incorporated and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation with full corporate power and
corporate authority to own, lease and operate its properties and conduct its
businesses as described in the SEC Documents; each of the Company and its
subsidiaries is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction in which the ownership or leasing of
properties or the conduct of its business as presently conducted require such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the condition (financial or otherwise), earnings,
operations, business or business prospects of the Company and its subsidiaries
taken as a whole; to the knowledge of the Company, each of the Company and its
subsidiaries is in possession of and operating in compliance with all
authorizations, licenses, certificates, consents, orders and permits from state,
federal and other regulatory authorities that are material to the conduct of its
business, all of which are valid and in full force and effect to the extent that
the failure of such would have a material adverse effect on the Company's
business or results from operations; and each of the Company and its
subsidiaries is not in violation of its respective charter or bylaws.
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3.10 Outstanding Stock. All outstanding shares of capital stock of the
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Company have been duly authorized and validly issued and are fully paid and
nonassessable; all issued and outstanding shares of capital stock of each
subsidiary of the Company have been duly authorized and validly issued and are
fully paid and nonassessable.
3.11 Intellectual Property. Except as set forth in the SEC Documents, to
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the best of the Company's knowledge, each of the Company and its subsidiaries
owns or possesses adequate rights to use all material patents, patent rights,
inventions, trade secrets, know-how, trademarks, service marks, trade names and
copyrights which are described in the SEC Documents; except as set forth in the
SEC Documents, the Company has not received any notice of, and has no knowledge
of, any infringement of or conflict with asserted rights of the Company by
others with respect to any patent, patent rights, inventions, trade secrets,
know-how, trademarks, service marks, trade names and copyrights which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a material adverse effect on the condition (financial or otherwise),
earnings, operations, business of the Company and its subsidiaries, taken as a
whole, as presently conducted; and, except as set forth in the SEC Documents,
the Company has not received any notice of, and has no knowledge of, any
infringement of or conflict with the asserted rights of others with respect to
any patent, patent rights, inventions, trade secrets, know-how, trademarks,
service marks, trade names and copyrights which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would have a material
adverse effect on the condition (financial or otherwise), earnings, operations,
business of the Company and its subsidiaries, taken as a whole, as presently
conducted.
3.12 Common Stock Registration. The Common Stock is registered pursuant
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to Section 12(g) of the Exchange Act and is listed on The Nasdaq National
Market, and the Company has taken no action designed to, or, to the Company's
knowledge, likely to have the effect of, terminating the registration of the
Common Stock under the Exchange Act or removing the Common Stock from quotation
on The Nasdaq National Market, nor has the Company received notification that
the Commission or the National Association of Securities Dealers, Inc. (the
"NASD") is contemplating terminating such registration or quotation.
3.13 Private Placement. The Company has not taken any action inconsistent
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with the treatment of the sale of the Units pursuant to the Purchase Agreement
as a private placement exempt from the registration requirements of the
Securities Act of 1933, as amended (the "Securities Act") pursuant to the
provisions of Section 4(2) thereof and Regulation D thereunder. Assuming the
accuracy of the purchasers' representations and warranties in the Purchase
Agreement and the compliance by each purchaser with all of its covenants and
agreements, the offer,
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sale, and issuance by the Company of the Units to the purchasers as contemplated
herein constitute transactions exempt from the registration requirements of
Section 5 of the Securities Act.
4. Representations and Warranties of the Purchaser; Access to
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Information; Independent Investigation. The Purchaser hereby represents and
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warrants to the Company as follows:
4.1 Investment Intent. The Purchaser is purchasing the Units for
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investment for its own account only and not with a view to, or for resale in
connection with, any "distribution" thereof within the meaning of the Securities
Act. The Purchaser understands that the Securities have not been registered
under the Securities Act or registered or qualified under any state securities
law in reliance on specific exemptions therefrom, which exemptions may depend
upon, among other things, the bona fide nature of Purchaser's investment intent
as expressed herein.
4.2 Investment Experience. The Purchaser is an "accredited investor"
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within the meaning of Rule 501 of the Commission, and was not organized for the
specific purpose of acquiring the Units. The Purchaser is aware of the
Company's business affairs and financial condition and has acquired sufficient
information about the Company to reach an informed and knowledgeable decision to
acquire the Units. The Purchaser has such business and financial experience as
is required to give it the capacity to protect its own interests in connection
with the purchase of the Securities.
4.3 Authorization. This Purchase Agreement has been duly and validly
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authorized, executed and delivered on behalf of the Purchaser and is a valid and
binding agreement of the Purchaser enforceable in accordance with its terms,
subject as to enforceability to general principles of equity and to bankruptcy,
insolvency, moratorium and other similar laws affecting the enforcement of
creditors' rights generally.
4.4 Compliance with Securities Laws and Regulations. All subsequent
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offers and sales of the Securities by the Purchaser shall be made pursuant to
registration under the Securities Act and qualification under the applicable
state securities laws or pursuant to exemptions from registration and
qualification.
4.5 Reliance by Company. The Purchaser understands that the Units are
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being offered and sold to it in reliance on specific exemptions from the
registration and qualification requirements of United States federal and state
securities laws and that the Company is relying upon the truth and accuracy of,
and the Purchaser's compliance with the representations, warranties, agreements,
acknowledgments and understandings of the Purchaser set forth herein in order to
determine the availability of such exemptions and the eligibility of the
Purchaser to acquire the Securities.
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4.6 No Government Approval. The Purchaser understands that no United
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States federal or state agency or any other government or governmental agency
has passed on or made any recommendation or endorsement of the Units.
4.7 No Legal, Tax or Investment Advice. The Purchaser understands that
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nothing in the Purchase Agreement or any other materials presented to the
Purchaser in connection with the purchase and sale of the Units constitutes
legal, tax or investment advice. The Purchaser has consulted such legal, tax
and investment advisors as it, in its sole discretion, has deemed necessary or
appropriate in connection with its purchase of the Units.
4.8 Access to Information. The Purchaser acknowledges that it has had
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the opportunity to ask questions, to receive answers concerning the terms and
conditions of this offering from the Company and to obtain any additional
information from the Company that the Company possesses or can acquire without
unreasonable effort or expense regarding this offering.
4.9 Individual Investor. If Purchaser is a natural person, Purchaser
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makes the additional representations and warranties set forth on Exhibit 4.9
attached hereto
5. Restrictions on Transfer, Information and Registration Rights.
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5.1 Restrictions on Transferability. The Securities shall not be
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transferable in the absence of a registration under the Securities Act or an
exemption therefrom, or in the absence of compliance with any term of the
Purchase Agreement. Without limiting the foregoing, (i) the Securities may be
offered, resold, pledged or otherwise transferred only (A) in a transaction
meeting the requirements of Rule 144 of the Commission ("Rule 144"), or in
accordance with another exemption from the registration requirements of the
Securities Act (and based upon an opinion of counsel if the Company so requests)
or (B) pursuant to an effective registration statement under the Securities Act,
in each case in accordance with the applicable securities laws of any state of
the United States or any other applicable jurisdiction and (ii) Purchaser will
be required to notify any subsequent purchaser of the resale restrictions set
forth above. The Company shall be entitled to give stop transfer instructions
to the transfer agent with respect to the Securities in order to enforce the
foregoing restrictions.
5.2 Restrictive Legends. Each certificate representing any of the
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Securities shall bear substantially the following legends (in addition to any
legends required under applicable securities laws):
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In the Case of All Securities:
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "1933 ACT"). THE SECURITIES MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED OR HYPOTHECATED UNLESS REGISTERED UNDER THE 1933 ACT AND QUALIFIED
UNDER APPLICABLE STATE SECURITIES LAWS OR UNLESS SUCH SALE, TRANSFER,
ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE 1933 ACT AND THE QUALIFICATION REQUIREMENTS OF APPLICABLE STATE
SECURITIES LAWS OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION AND QUALIFICATION ARE
NOT REQUIRED. THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE
RIGHTS OF HOLDERS THEREOF ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER
AND OTHER RESTRICTIONS, AND THE HOLDER OF THE SECURITIES REPRESENTED BY
THIS CERTIFICATE (INCLUDING ANY FUTURE HOLDERS) IS BOUND BY THE TERMS OF A
UNIT PURCHASE AGREEMENT BETWEEN THE ORIGINAL PURCHASER AND THE COMPANY
(COPIES OF WHICH MAY BE OBTAINED FROM THE COMPANY) .
5.3 Registration on Form S-3.
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5.3.1 Filing of Registration Statement. The Company shall use its
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best efforts to secure effectiveness of, as soon as practicable, and shall file
no later than thirty (30) days after the Closing Date (unless such registration
is not permitted under the applicable rules and regulations of the Commission),
a registration statement on Form S-3 (the "Registration Statement") with the
Commission under the Securities Act to register the resale of the Initial Shares
and Warrant Shares (the "Registrable Securities"); provided however, that in the
event the Company fails (due to an action or inaction of the Company) to be
eligible to file a registration statement on Form S-3, the Company shall file a
registration statement on Form S-1.
5.3.2 Registration Expenses. The Company shall pay all Registration
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Expenses (as defined below) in connection with any registration, qualification
or compliance hereunder, and each holder of Registrable Securities (the
"Holders") shall pay all Selling Expenses (as defined below) and other expenses
that are not Registration Expenses relating to the Registrable Securities resold
by such Holder. "Registration Expenses" shall mean all expenses, except for
Selling Expenses, incurred by the Company in complying with the registration
provisions herein described, including, without limitation, all registration,
qualification and filing fees, printing expenses, fees and disbursements of
counsel for the Company, blue sky fees and expenses and the expense of any
special audits incident to or required by any such registration. "Selling
Expenses" shall mean all selling commissions, underwriting fees and stock
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transfer taxes applicable to the Registrable Securities and all fees and
disbursements of counsel for any Holder.
5.3.3 Additional Company Obligations. In the case of any
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registration effected by the Company pursuant to these registration provisions,
the Company will use its best efforts to: (i) keep such registration effective
until December 31, 2004 (or such earlier date as all of the Registrable
Securities have been sold or may be sold under Rule 144(k)); (ii) prepare and
file with the SEC such amendments and supplements to the Registration Statement
and the prospectus used in connection with the Registration Statement as may be
necessary to comply with the provisions of the Securities Act with respect to
the disposition of the Registrable Securities; (iii) furnish such number of
prospectuses and other documents incident thereto, including any amendment of or
supplement to the prospectus, as a Holder from time to time may reasonably
request; (iv) cause all such Registerable Securities registered as described
herein to be listed on each securities exchange and quoted on each quotation
service on which similar securities issued by the Company are then listed or
quoted; (v) provide a transfer agent and registrar for all Registrable
Securities registered pursuant to the Registration Statement and a CUSIP number
for all such Registrable Securities; (vi) use its best efforts to comply with
all applicable rules and regulations of the Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months, but not more than eighteen
months, beginning with the first month after the effective date of the
Registration Statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act; and (vii) advise Holders of the issuance of
any stop order by the SEC with respect to the Registration Statement or any
request by the SEC for an amendment to the Registration Statement, and notify
Holders of the happening of any event as a result of which the prospectus
included in the Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing; (viii) file the documents required of
the Company and otherwise use its best efforts to maintain requisite blue sky
clearance in (A) all jurisdictions in which any of the Registrable Securities
are originally sold and (B) all other states specified in writing by a Holder as
may reasonably be required to sell such Holder's Registrable Securities,
provided as to clause (B), however, that the Company shall not be required to
qualify to do business or consent to service of process in any state in which it
is not now so qualified or has not so consented.
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5.4 Indemnification and Contribution.
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5.4.1 Indemnification by the Company. The Company agrees to
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indemnify and hold harmless each Holder from and against any losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) to which
such Holder may become subject (under the Securities Act or otherwise) insofar
as such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of, or are based upon, any claim by a third party
asserting any untrue statement of a material fact contained in the Registration
Statement, on the effective date thereof, or arise out of any failure by the
Company to fulfill any undertaking included in the Registration Statement, and
the Company will, as incurred, reimburse such Holder for any legal or other
expenses reasonably incurred in investigating, defending or preparing to defend
any such action, proceeding or claim; provided, however, that the Company shall
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not be liable in any such case to the extent that such loss, claim, damages or
liability arises out of, or is based upon (i) an untrue statement or alleged
untrue statement made in such Registration Statement in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Holder specifically for use in preparation of the Registration Statement or
(ii)) any untrue statement in any prospectus that is corrected in any subsequent
prospectus that was delivered to the Holder prior to the pertinent sale or sales
by the Holder.
5.4.2 Indemnification by Holder. Each Holder, severally and not
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jointly, agrees to indemnify and hold harmless the Company from and against any
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) to which the Company may become subject (under the Securities Act or
otherwise) insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon any claim by a
third party asserting (i) an untrue statement made in such Registration
Statement in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such Holder specifically for use in
preparation of the Registration Statement, provided, however, that no Holder
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shall be liable in any such case for any untrue statement included in any
Prospectus which statement has been corrected, in writing, by such Holder and
delivered to the Company at least three business days before the sale from which
such loss occurred or (ii) any untrue statement in any prospectus that is
corrected in any subsequent prospectus that was delivered to the Holder prior to
the pertinent sale or sales by the Holder, and each Holder, severally and not
jointly, will, as incurred, reimburse the Company for any legal or other
expenses reasonably incurred in investigating, defending or preparing to defend
any such action, proceeding or claim.
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5.4.3 Indemnification Procedures. Promptly after receipt by any
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indemnified person of a notice of a claim or the beginning of any action in
respect of which indemnity is to be sought against an indemnifying person
pursuant to this Section 5.4, such indemnified person shall notify the
indemnifying person in writing of such claim or of the commencement of such
action, and, subject to the provisions hereinafter stated, in case any such
action shall be brought against an indemnified person and the indemnifying
person shall have been notified thereof, the indemnifying person shall be
entitled to participate therein, and, to the extent that it shall wish, to
assume the defense thereof, with counsel reasonably satisfactory to the
indemnified person. After notice from the indemnifying person to such
indemnified person of the indemnifying person's election to assume the defense
thereof, the indemnifying person shall not be liable to such indemnified person
for any legal expenses subsequently incurred by such indemnified person in
connection with the defense thereof; provided, however, that if there exists or
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shall exist a conflict of interest that would make it inappropriate in the
reasonable opinion of counsel for the indemnified person for the same counsel to
represent both the indemnified person and such indemnifying person or any
affiliate or associate thereof, the indemnified person shall be entitled to
retain its own counsel at the expense of such indemnifying person; provided,
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however, that in the case of the immediately preceding proviso the indemnifying
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person shall not be responsible for the legal expenses of more than one counsel
for all indemnified persons.
5.4.4 Contribution in Lieu of Indemnity. If the indemnification
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provided for in this Section 5.4 is unavailable to or insufficient to hold
harmless an indemnified party under Section 5.4.1 or 5.4.2 above in respect of
any losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as result of such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
a Holder on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Holders agree that it would not be just and equitable if
contribution pursuant to this Section 5.4.4 were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to above in this Section 5.4.4. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this Section
5.4.4
11
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 5.4.4, no Holder
shall be required to contribute any amount in excess of the net amount received
by the Holder from the sale of the Registrable Securities to which such loss
relates. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11 (f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The Holders'
obligations in this Section 5.4.4 to contribute are several in proportion to
their respective sales of Registrable Securities to which such loss relates and
not joint.
5.4.5 Controlling Persons Indemnified. The obligations of the
-------------------------------
Company and the Holders under this Section 5.4 shall be in addition to any
liability which the Company and the respective Holders may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls the Company or any Holder within the meaning of the Securities Act.
5.5 Transfer of Registration Rights. The right to sell Registrable
-------------------------------
Securities pursuant to the registration statement described herein will
automatically be assigned to each transferee of at least 50,000 Initial Shares
or Warrant Shares. In the event that it is necessary, in order to permit a
Holder to sell Registrable Securities pursuant to the Registration Statement, to
amend the Registration Statement to name such Holder, such Holder shall, upon
written notice to the Company, be entitled to have the Company make such
amendment as soon as reasonably practicable. Notwithstanding the above
provisions relating to Registration Expenses, in the event that such an
amendment is requested, the Holder shall, at the request of the Company, be
obligated to reimburse the Company for reasonable Registration Expenses incurred
by it in connection with such amendment.
5.6 Reports Under the Exchange Act. With a view to make available to the
------------------------------
Purchasers or Holders the benefits of Rule 144 promulgated under the Securities
Act and any other rule or regulation of the SEC that may at any time permit a
Purchaser or Holder to sell Securities to the public without registration or
pursuant to a registration on Form S-3, the Company will covenant and agree to:
(i) make and keep public information available, as those terms are understood
and defined in Rule 144, at all times after the Closing; (ii) file with the SEC
in a timely manner all reports and other documents required of the Company under
the Securities Act and the Exchange Act; and (iii) furnish to any Purchaser or
Holder, so long as the Purchaser or Holder owns any Securities forthwith upon
request, (A) a written statement by the Company that it has complied with the
reporting requirements of Rule 144, the Securities Act and the Exchange
12
Act, (B) a copy of the most recent annual or quarterly report of the Company,
and (C) such other information as may be reasonably requested in order to avail
any Purchaser or Holder of any rule or regulation of the SEC that permits
the selling of any such Securities without registration or pursuant to such
Form S-3.
6. Miscellaneous.
-------------
6.1 Waivers and Amendments. Without the written consent of (i) the
----------------------
Company, (ii) the record holders of more than fifty percent (50%) of the
Securities (on a converted-to-Common Stock basis) then outstanding that have not
previously been sold in a public offering, and, (iii) all holders of 500,000 or
more Units, the terms of the Purchase Agreement may not be waived or amended.
6.2 Governing Law. The Purchase Agreement shall be governed in all
-------------
respects by the laws of the State of California as such laws are applied to
agreements between California residents entered into and to be performed
entirely within California.
6.3 Survival. The representations, warranties, covenants and
--------
agreements made herein shall survive any investigation made by the Company or
the Purchaser and the Closing.
6.4 Successors and Assigns. Subject to Section 5.5, the provisions
----------------------
hereof shall inure to the benefit of, and be binding upon, the successors,
assigns, heirs, executors and administrators of the parties hereto (specifically
including successors in interest to the Shares).
6.5 Entire Agreement. The Purchase Agreement (including all
----------------
Exhibits thereto) constitutes the full and entire understanding and agreement
between the parties with regard to the subject hereof.
6.6 Notices, etc. All notices and other communications required or
-------------
permitted hereunder shall be effective upon receipt and shall be in writing and
may be delivered in person, by facsimile, or express delivery service, addressed
(a) if to the Purchaser, at the address set forth on the signature page hereof
or at such other address as the Purchaser shall have furnished the Company in
writing, or (b) if to the Company, at its address set forth at the beginning of
the Purchase Agreement, or at such other address as the Company shall have
furnished to the Purchaser in writing.
6.7 Severability. If any provision of the Purchase Agreement shall
------------
be judicially determined to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
13
6.8 Titles and Subtitles. The titles of the paragraphs and
--------------------
subparagraphs of the Purchase Agreement are for convenience of reference and
shall not, by themselves, determine the construction of the Purchase Agreement.
6.9 Counterparts. The Purchase Agreement may be executed in any
------------
number of counterparts, each of which be an original, but all of which together
shall constitute one instrument.
14
Exhibit 1.1
-----------
Warrant No. GS -
------------
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "1933 ACT"). THE SECURITIES MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED OR HYPOTHECATED UNLESS REGISTERED UNDER THE 1933 ACT AND QUALIFIED
UNDER APPLICABLE STATE SECURITIES LAWS OR UNLESS SUCH SALE, TRANSFER,
ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE 1933 ACT AND THE QUALIFICATION REQUIREMENTS OF APPLICABLE STATE
SECURITIES LAWS OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION AND QUALIFICATION ARE
NOT REQUIRED. THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE
RIGHTS OF HOLDERS THEREOF ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER
AND OTHER RESTRICTIONS, AND THE HOLDER OF THE SECURITIES REPRESENTED BY
THIS CERTIFICATE (INCLUDING ANY FUTURE HOLDERS) IS BOUND BY THE TERMS OF A
UNIT PURCHASE AGREEMENT BETWEEN THE ORIGINAL PURCHASER AND THE COMPANY
(COPIES OF WHICH MAY BE OBTAINED FROM THE COMPANY).
WARRANT TO PURCHASE SHARES OF COMMON STOCK
OF GENSIA SICOR INC.
This certifies that (the "Holder"), for value received is entitled
--------
to purchase from Gensia Sicor Inc., a Delaware corporation (the "Company"),
( ) fully paid and nonassessable shares of the Company's
---------------- --------
Common Stock (the "Warrant Shares") at a price of $4.1875 per share (the "Stock
Purchase Price") at any time or from time to time on or after the Commencement
Date (as defined below) up to and including 5:00 p.m. (Pacific time) on the
Expiration Date (as defined below), upon surrender to the Company at its
principal office at 0000 Xxxxx Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 (or at
such other location as the Company may advise Holder in writing) of this Warrant
properly endorsed with the Form of Subscription attached hereto duly filled in
and signed and upon payment by cash, cashier's check or wire transfer of
immediately available funds of the aggregate Stock Purchase Price for the number
of shares for which this Warrant is being exercised determined in accordance
with the provisions hereof, such exercise to be conditioned upon the accuracy of
all representations and warranties contained in such Form of Subscription. The
Stock Purchase Price and the number of shares purchasable hereunder are subject
to adjustment as provided in Section 3 of this Warrant. "Commencement Date"
means December 31, 1997 (the date of issuance of this Warrant) and "Expiration
Date" means the earlier of (i) December 31, 2002 (five years from the
Commencement Date) or (ii) the occurrence of an event, proposal of which is
described in subsection (d) of Section 3.4 which causes termination of this
Warrant under
1
Section 3.4. This Warrant is issued pursuant to the Unit Purchase Agreement
between the Company and Holder dated as of the date hereof (the "Purchase
Agreement").
This Warrant is subject to the following terms and conditions:
1. Exercise of Warrant
-------------------
1.1 Issuance of Certificates. This Warrant is exercisable at the option
------------------------
of Holder at any time or from time to time on or after the Commencement Date and
prior to or on the Expiration Date for all or a portion of the shares of Warrant
Shares which may be purchased hereunder. The Company agrees that the Warrant
Shares purchased under this Warrant shall be and are deemed to be issued to
Holder as the record owner of such shares as of the close of business on the
date on which this Warrant shall have been surrendered and payment made for such
shares. Subject to the provisions of Section 2, certificates for the Warrant
Shares so purchased, together with any other securities or property to which
Holder is entitled upon such exercise, shall be delivered to Holder by the
Company's transfer agent at the Company's expense within a reasonable time after
this Warrant has been exercised. Each stock certificate so delivered shall be
in such denominations of Warrant Shares as may be requested by Holder and shall
be registered in the name of Holder or such other name as shall be designated by
Holder, subject to the limitations contained in Section 2. If, upon exercise of
this Warrant, fewer than all of the Warrant Shares evidenced by this Warrant are
purchased prior to the date of expiration of this Warrant, one or more new
warrants substantially in the form of, and on the terms in, this Warrant will be
issued for the remaining number of Warrant Shares not purchased upon exercise of
this Warrant.
1.2 Payment. Payment of the Stock Purchase Price shall be made at the
-------
option of Holder by surrender to the Company of this Warrant properly endorsed
with the Form of Subscription attached hereto duly filled in and signed and (i)
payment by cash, cashier's check or wire transfer of immediately available funds
or (ii) by surrender of this Warrant to the Company, with a duly executed
exercise notice marked to reflect "Net Issue Exercise," and, in either case,
specifying the number of Warrant Shares to be purchased, during normal business
hours on any day that is not a Saturday or Sunday or a day on which banks are
required or permitted to be closed in the State of California. Upon a Net Issue
Exercise, Holder shall be entitled to receive Warrant Shares equal to the value
of this Warrant (or the portion thereof being exercised by Net Issue Exercise)
by surrender of this Warrant to the Company together with notice of such
election, in which event the Company shall issue to Holder a number of Warrant
Shares computed as of the date of surrender of this Warrant to the Company using
the following formula:
2
X = Y x (A-B)
---------
A
Where X = the number of Warrant Shares to be issued to Holder pursuant
to this Section 1.2;
Y = the number of Warrant Shares otherwise purchasable under
this Warrant, or any lesser number of Warrant Shares as to
which this Warrant is being exercised (at the date of such
calculation);
A = the fair market value of one share of the Company's Common
Stock (at the date of such calculation);
B = the Stock Purchase Price (as adjusted to the date of such
calculation).
2. Shares to be Fully Paid; Reservation of Shares. The Company covenants
----------------------------------------------
and agrees that all Warrant Shares which may be issued upon the exercise of the
rights represented by this Warrant will, upon issuance, be duly authorized,
validly issued, fully paid and nonassessable and free from all preemptive rights
of any stockholder and free of all taxes, liens and charges with respect to the
issue thereof. The Company further covenants and agrees that during the period
within which the rights represented by this Warrant may be exercised, the
Company will use its best efforts to at all times have authorized and reserved,
for the purpose of issue or transfer upon exercise of this Warrant, a sufficient
number of shares of authorized but unissued Common Stock. When and as required
to provide for the exercise of the rights represented by this Warrant, the
Company will take all such action as may be necessary to assure that such shares
of Common Stock may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of any domestic securities
exchange or automated quotation system upon which the Common Stock may be
listed. If for any reason the Company does not have available sufficient
authorized but unissued shares to permit full exercise of this Warrant at any
time, then it may, in its discretion, pay to the Holder an amount in cash equal
to the fair market value of the Warrant Shares the Holder has elected to
purchase by exercise of this Warrant, instead of issuing Warrant Shares to the
Holder. For purposes of this Warrant, the fair market value of one Warrant
Share shall mean, to the extent it applies to the Company's Common Stock, the
average of the daily high and low trading prices of the Company's Common Stock
on the Nasdaq National Market (or other exchange or market that is the primary
trading market for the Company's Common Stock at that time, as determined by the
Company's Board of Directors in good faith) on the ten trading days prior to the
date the Warrant is exercised and, to the extent it applies to other securities
or property, as determined by the Company's Board of Directors in good faith.
3
3. Adjustment of Stock Purchase Price; Number of Shares. The Stock
----------------------------------------------------
Purchase Price and the number of shares of Warrant Shares purchasable upon the
exercise of this Warrant shall be subject to adjustment from time to time upon
the occurrence of certain events described in this Section 3.
3.1 Adjustment of Purchase Price. In the event that the Company at
----------------------------
any time or from time to time after the issuance of this Warrant shall declare
or pay, without consideration, any dividend on the Common Stock payable in
Common Stock or in any right to acquire Common Stock for no consideration, or
shall effect a subdivision of the outstanding shares of Common Stock into a
greater number of shares of Common Stock (by stock split, reclassification or
otherwise than by payment of a dividend in Common Stock or in any right to
acquire Common Stock), or in the event the outstanding shares of Common Stock
shall be combined or consolidated, by reclassification or otherwise, into a
lesser number of shares of Common Stock, then the Stock Purchase Price in effect
immediately prior to such event shall, concurrently with the effectiveness of
such event, be proportionately decreased or increased, as appropriate. In the
event that the Company shall declare or pay, without consideration, any dividend
on the Common Stock payable in any right to acquire Common Stock for no
consideration, then the Company shall be deemed to have made a dividend payable
in Common Stock in an amount of shares equal to the maximum number of shares
issuable upon exercise of such rights to acquire Common Stock. Upon each
adjustment of the Stock Purchase Price pursuant to this Section 3.1, the holder
of this Warrant shall thereafter be entitled to purchase, at the Stock Purchase
Price resulting from such adjustment, the number of shares of Common Stock
obtained by multiplying the Stock Purchase Price in effect immediately prior to
such adjustment by the number of shares of Common Stock purchasable pursuant
hereto immediately prior to such adjustment, and dividing the product thereof by
the Stock Purchase Price resulting from such adjustment.
3.2 Adjustments for Reclassification and Reorganization. If the
---------------------------------------------------
Common Stock shall be changed into the same or a different number of shares of
any other class or classes of stock, whether by capital reorganization,
reclassification or otherwise (other than a subdivision or combination of shares
provided for in Section 3.1), the Stock Purchase Price then in effect shall,
concurrently with the effectiveness of such reorganization or reclassification,
be proportionately adjusted so that this Warrant shall represent the right to
purchase, in lieu of the number of shares of Common Stock which this Warrant
would otherwise represent the right to purchase, a number of shares of such
other class or classes of stock equivalent to the number of shares of Common
Stock which this Warrant would have otherwise entitled the holder to purchase
immediately before that change.
3.3 Notice of Adjustment. Upon any adjustment of the Stock Purchase
--------------------
Price or any increase or decrease in the number of shares of Common Stock
purchasable upon the exercise of this
4
Warrant, the Company shall within five business days give written notice
thereof, by first class mail, postage prepaid, (or by international delivery
service, for international addresses) addressed to the registered holder of this
Warrant at the address of such holder as shown on the books of the Company. The
notice shall be signed by the Company's chief financial officer and shall state
the Stock Purchase Price resulting from such adjustment and the increase or
decrease, if any, in the number of shares purchasable at such price upon the
exercise of this Warrant, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based.
3.4 Other Notices. If at any time:
-------------
(a) the Company shall propose to declare any cash dividend upon
its Common Stock;
(b) the Company shall propose to declare or make any dividend
or other distribution to the holders of its Common Stock, whether in cash,
property or other securities;
(c) the Company shall propose to effect any reorganization or
reclassification of the capital stock of the Company or any consolidation or
merger of the Company with or into another corporation or any sale, lease or
conveyance of all or substantially all of the property of the Company; or
(d) the Company shall propose to effect a voluntary or
involuntary dissolution, liquidation or winding-up of the Company;
then, in any one or more of said cases, the Company shall give, by certified or
registered mail, postage prepaid, or international delivery service for
international deliveries, addressed to the holder of this Warrant at the address
of such holder as shown on the books of the Company, (i) at least fifteen (15)
business days' prior written notice of the date on which the books of the
Company shall close or a record shall be taken for such dividend or distribution
or for determining rights to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, lease, conveyance, dissolution,
liquidation or winding-up, and (ii) in the case of any such reorganization,
reclassification, consolidation, merger, sale, lease, conveyance, dissolution,
liquidation or winding-up, at least fifteen (15) business days' written notice
of the date when the same shall take place. Any notice given in accordance with
clause (i) above shall also specify, in the case of any such dividend or
distribution, the record date for such dividend or distribution, if after the
Commencement Date. Any notice given in accordance with clause (ii) above shall
also specify the date on which the holders of Common Stock shall be entitled to
exchange their Common Stock for securities or other property, if any,
deliverable upon such reorganization, reclassification, consolidation/merger,
sale, lease, conveyance, dissolution, liquidation or winding-up, as the case may
be. In the event that the Holder of the Warrant
5
does not exercise this Warrant prior to the occurrence of an event described in
clause (a) or (b) above, the Holder shall not be entitled to receive the
benefits accruing to existing holders of the Common Stock in such event. Upon
the occurrence of an event described in clause (c), the Holder shall be entitled
thereafter, upon payment of the Stock Purchase Price in effect immediately prior
to such action, to receive upon exercise of this Warrant the class and number of
shares which the Holder would have been entitled to receive after the occurrence
of such event had this Warrant been exercised immediately prior to such event.
In connection with the transactions described in clause (c), the Company will
require each person (other than the Company) that may be required to deliver any
cash, stock, securities or other property upon the exercise of this Warrant as
provided herein to assume, by written instrument delivered to, and reasonably
satisfactory to, the holder of this Warrant (x) the obligations of the Company
under this Warrant and (y) the obligation to deliver to such holder such cash,
stock, securities or other property as such holder may be entitled to receive in
accordance with the provisions of this Section 3. Upon the occurrence of an
event the proposal of which is described in clause (d), this Warrant shall
terminate. Notwithstanding any other provision hereof, no Holder shall have the
right to obtain an injunction or restraining order or otherwise interfere with
or prevent the occurrence of any of the actions described in (a) - (d) above.
4. Issue Tax. The issuance of certificates for the Warrant Shares upon
---------
the exercise of the Warrant shall be made without charge to the holder of the
Warrant for any issue tax in respect thereof; provided, however, that the
Company shall not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance and delivery of any certificate in a name
other than that of the then holder of the Warrant being exercised.
5. No Voting or Dividend Rights; Limitation of Liability. Nothing
-----------------------------------------------------
contained in this Warrant shall be construed as conferring upon the holder
hereof the right to vote or to consent or to receive notice as a stockholder in
respect of meetings of stockholders for the election of directors of the Company
or any other matters or any rights whatsoever as a stockholder of the Company.
Except for the adjustment to the Stock Purchase Price pursuant to Section 3.2 in
the event of a dividend on the Common Stock payable in shares of Common Stock,
no dividends or interest shall be payable or accrued in respect of this Warrant
or the interest represented hereby or the shares purchasable hereunder until,
and only to the extent that, this Warrant shall have been exercised. No
provisions hereof, in the absence of affirmative action by the holder to
purchase shares of Warrant Shares, and no mere enumeration herein of the rights
or privileges of the holder hereof, shall give rise to any liability of such
holder for the Stock Purchase Price or as a stockholder of the Company whether
such liability is asserted by the Company or by its creditors.
6
6. Restrictions on Transferability of Securities: Compliance With
--------------------------------------------------------------
Securities Act.
--------------
6.1 Restrictions on Transferability. The Warrant and the Warrant
-------------------------------
Shares (collectively, the "Securities") shall not be transferable except upon
the conditions specified in the Purchase Agreement, which conditions are
intended to insure compliance with the provisions of the Securities Act and
applicable "blue sky" law (the "Law").
6.2 Restrictive Legend. Each certificate representing the
------------------
Securities or any other securities issued in respect of the Securities upon any
stock split, stock dividend, recapitalization, merger, consolidation or similar
event, shall (unless otherwise permitted by the provisions of the Purchase
Agreement) be stamped or otherwise imprinted with a legend substantially in the
following form (in addition to any legend required under applicable state
securities laws):
In the Case of Warrant and Warrant Shares:
-----------------------------------------
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "1933 ACT"). THE SECURITIES MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED OR HYPOTHECATED UNLESS REGISTERED UNDER THE 1933 ACT AND QUALIFIED
UNDER APPLICABLE STATE SECURITIES LAWS OR UNLESS SUCH SALE, TRANSFER,
ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE 1933 ACT AND THE QUALIFICATION REQUIREMENTS OF APPLICABLE STATE
SECURITIES LAWS OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION AND QUALIFICATION ARE
NOT REQUIRED. THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE
RIGHTS OF HOLDERS THEREOF ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER
AND OTHER RESTRICTIONS, AND THE HOLDER OF THE SECURITIES REPRESENTED BY
THIS CERTIFICATE (INCLUDING ANY FUTURE HOLDERS) IS BOUND BY THE TERMS OF A
UNIT PURCHASE AGREEMENT BETWEEN THE
7
ORIGINAL PURCHASER AND THE COMPANY (COPIES OF WHICH MAY BE OBTAINED FROM
THE COMPANY).
6.3 Exchange of Warrant. Subject to the terms and conditions
-------------------
hereof, including the restrictions on transfer in this Section 6 and in the
Purchase Agreement, upon surrender of this Warrant to the Company with a duly
executed Assignment Form in the form attached hereto and funds sufficient to pay
any transfer tax, the Company shall, without charge, execute and deliver a new
Warrant or Warrants of like tenor in the name of the assignee named in such
Assignment Form and this Warrant shall promptly be canceled. The term "Warrant"
as used herein shall be deemed to include any Warrants issued in exchange for
this Warrant.
6.4 Ownership of Warrant. The Company may deem and treat the
--------------------
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in Section 6.3.
7. Modification and Waiver. Except as otherwise provided herein, this
-----------------------
Warrant and any provision hereof may be changed, waived, discharged or
terminated only by an instrument in writing signed by the party against which
enforcement of the same is sought.
8. Notices. Except as otherwise provided herein, any notice, request or
-------
other document required or permitted to be given or delivered to the holder
hereof or the Company shall be delivered or shall be sent by United States
certified or registered mail, postage prepaid, (or international delivery
service for international deliveries) to Holder at its address as shown on the
books of the Company or to the Company at the address indicated therefor in the
first paragraph of this Warrant.
9. Descriptive Headings and Governing Law. The descriptive headings of
--------------------------------------
the several sections and paragraphs of this Warrant are inserted for convenience
only and do not constitute a part of this Warrant. This Warrant shall be
construed and enforced in accordance with, and the rights of the parties shall
be governed by, the laws of the State of California (without regard to its
conflicts of law provisions).
10. Lost Warrants or Stock Certificates. The Company represents and
-----------------------------------
warrants to Holder that upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction, or mutilation of any Warrant or stock
certificate and, in the case of any such loss, theft or destruction, upon
receipt of an indemnity and, if requested, bond reasonably satisfactory to the
Company, or, in the case of any such mutilation, upon surrender and cancellation
of such Warrant or stock certificate, the Company at its expense will make and
8
deliver a new Warrant or stock certificate, of like tenor, in lieu of the lost,
stolen, destroyed or mutilated Warrant or stock certificate.
11. Amendment. This Warrant may be amended only with the written
---------
approval of the Company and the Holder of this Warrant.
12. Binding Effect; Benefits. This Warrant shall inure to the benefit of
------------------------
and shall be binding upon the Company and the Warrantholder and their respective
heirs, legal representatives, successors and assigns. Nothing in this Warrant,
expressed or implied, is intended to or shall confer on any person other than
the Company and the Warrantholder, or their respective heirs, legal
representatives, successors or assigns, any rights, remedies, obligations or
liabilities under or by reason of this Warrant.
13. Fractional Shares. No fractional shares shall be issued upon exercise
-----------------
of this Warrant. The Company shall, in lieu of issuing any fractional share,
pay the Holder entitled to such fraction a sum in cash equal to such fraction
multiplied by the market price of the Common Stock, which shall be, on any date,
the closing price for the Common Stock or the closing bid if no sales were
reported, as quoted on the Nasdaq National Market.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its officers, thereunto duly authorized this 31st day of December, 1997.
Gensia Sicor Inc.
By:
--------------------------------------
Name:
Title:
9
FORM OF SUBSCRIPTION
--------------------
(To be signed only upon exercise of Warrant)
To: Gensia Sicor Inc.
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise such Warrant for, and to purchase thereunder,
( ) shares of Common Stock of Gensia Sicor Inc. (the
---------------- --------
"Company"), and herewith makes payment in the amount of $ therefore.
--------
The certificates for such shares should be issued in the name of, and delivered
to, whose address is .
---------------- ----------------
The undersigned represents, unless the exercise of this Warrant has been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
that (i) the undersigned is acquiring such Common Stock for his or its own
account for investment and not with a view to or for sale in connection with any
distribution thereof (except for any resale pursuant to a registration statement
under the Securities Act), (ii) the undersigned has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of the undersigned's investment in the shares of Common Stock,
(iii) the undersigned has received all of the information the undersigned
requested from the Company and the undersigned considers necessary or
appropriate for deciding whether to purchase the shares, (iv) the undersigned
has the ability to bear the economic risks of the undersigned's prospective
investment and (v) the undersigned is able, without materially impairing his
financial condition, to hold the shares of Common Stock for an indefinite period
of time and to suffer complete loss on the undersigned's investment.
The undersigned is an "accredited investor" as defined in Regulation D of
the Securities and Exchange Commission on the date hereof.
DATED:
------------------------
--------------------------------------------
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant)
--------------------------------------------
--------------------------------------------
(Address)
10
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT FILED UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT.
ASSIGNMENT FORM
---------------
(To be executed only upon transfer of this Warrant)
For value received, the undersigned registered holder of the within Warrant
hereby sells, assigns and transfers unto (the "Assignee")
--------------------
the right represented by such Warrant to purchase Warrant Shares and
----------
all other rights of the Warrantholder with respect thereto under the within
Warrant, and appoints as Attorney to make such transfer on the
-----------------
books of Gensia Sicor Inc. maintained for such purpose, with full power of
substitution in the premises.
The undersigned also represents that, by assignment hereof, the Assignee
acknowledges that this Warrant and the Warrant Shares to be issued upon exercise
hereof are being acquired for investment and that the Assignee will not offer,
sell or otherwise dispose of this Warrant or any Warrant Shares to be issued
upon exercise hereof except under circumstances that will not result in a
violation of the Securities Act of 1933, as amended, or any state securities
laws. Further, the Assignee has acknowledged that upon exercise of this
Warrant, the Assignee shall, if requested by the Company, confirm in writing, in
a form satisfactory to the Company, that the Warrant Shares so purchased are
being acquired for investment and not with a view toward distribution or resale.
Dated: .
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Signature
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(Print Name)
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(Street Address)
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(City) (State) (Zip Code)
11
Exhibit 2.1(a)
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WIRE TRANSFER INSTRUCTIONS
Bank: Bank of New York
IOC565 Institutional Custody
New York, NY
ABA #: 000-000-000
Credit: 131375
Name of: Gensia Sicor Inc.
Exhibit 4.9
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INVESTMENT REPRESENTATION STATEMENT
1. Acquisition Entirely for Own Account. Purchaser represents and
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warrants that Purchaser is acquiring the Securities solely for Purchaser's own
account for investment and not with a view to sale or distribution of the
Securities or any portion or component thereof, and Purchaser will not sell,
offer to sell or otherwise dispose of or distribute the Securities or any
portion or component thereof in any transaction other than a transaction
complying with the registration requirements of the Securities Act, and
applicable state securities or "Blue Sky" laws, or pursuant to an exemption
therefrom. Purchaser also represents that the entire legal and beneficial
interest of the Securities that Purchaser is acquiring is being acquired for,
and will be held for Purchaser's account only, and neither in whole nor in part
for any other person or entity.
2. Information Concerning the Company. Purchaser represents and warrants
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that Purchaser has been provided with such information concerning the Company
that Purchaser deems necessary and appropriate to enable Purchaser to evaluate
the financial risk inherent in making an investment in the Securities.
Purchaser further acknowledges that Purchaser has received satisfactory and
complete information concerning the business and financial condition of the
Company in response to all inquiries in respect thereof.
3. Economic Risk and Suitability. Purchaser represents and warrants as
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follows:
3.1 Purchaser realizes that Purchaser's purchase of the Securities
involves a high degree of risk and will be a highly speculative investment and
that Purchaser is able, without impairing Purchaser's financial condition, to
hold the Securities for an indefinite period of time and to suffer a complete
loss of Purchaser's investment.
3.2 Purchaser has carefully considered and has, to the extent
Purchaser believes such discussions necessary, discussed with Purchaser's
professional, legal, tax and financial advisors the suitability of an investment
in the Securities for the particular legal, tax and financial situation of
Purchaser and that Purchaser and/or Purchaser's advisors have determined that
the Securities are a suitable investment for Purchaser.
3.3 Purchaser has such knowledge and experience in business and
financial matters as will enable Purchaser to evaluate the merits and risks of
an investment in the Securities and to make an informed investment decision.
3.4 Purchaser has carefully read this Agreement and the Company has
made available to Purchaser or Purchaser's advisors all information and
documents requested by Purchaser
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relating to investment in the Securities, and has provided answers to
Purchaser's satisfaction to all of Purchaser's questions concerning the Company
and the Securities to be acquired.
3.5 Purchaser understands that neither the Company nor any of its
officers/directors, has any obligation to register the Securities under any
federal or state securities act or law except as otherwise expressly set forth
in Section 5 of the Purchase Agreement.
3.6 All information that Purchaser has provided concerning himself
or herself, his or her financial position and (each of) his/her Purchaser
Representative(s), if any, is correct and complete as of the date set forth
below, and if there should be any material change in such information, Purchaser
will provide such information to the Company as soon as practicable thereafter.
3.7 Purchaser understands that the Company is relying on the truth
and accuracy of the declarations, representations, warranties and agreements
made by Purchaser to the Company herein in transferring the Securities to
Purchaser.
3.8 Purchaser confirms that Purchaser has received no general
solicitation or general advertisement and has attended no seminar or meeting
(whose attendees have been invited by any general solicitation or general
advertisement) and has received no advertisement, article, notice or other
communication published in any newspaper, magazine, or similar media or
broadcast or television or radio regarding the offering of the Securities.
4. Status of Purchaser. Purchaser represents and warrants that Purchaser
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is an "Accredited Investor", as defined in Rule 501 of the Commission because
Purchaser is either:
(a) A natural person whose individual net worth, or joint net worth
with that person's spouse, at the time of his/her purchase, exceeds $1 million;
or
(b) A natural person who had individual income in excess of $200,000
in each of the two most recent years or joint income with that person's spouse
in excess of $300,000 in each of those years and has a reasonable expectation
of reaching the same income level in the current year.
5. Residency. The undersigned is a bona fide resident of .
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2
