EXHIBIT 10.2
WARRANT AGREEMENT
BY AND BETWEEN
REGENERON PHARMACEUTICALS, INC.
and
THE PROCTER & GAMBLE COMPANY
Dated as of May 13, 1997
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TABLE OF CONTENTS
SECTION 1. Warrant Certificates 1
SECTION 2. Execution of Warrant Certificates 1
SECTION 3. Registration 1
SECTION 4. Registration of Transfers and Exchanges 1
SECTION 5. Warrants; Exercise of Warrant 2
SECTION 6. Payment of Taxes 3
SECTION 7. Mutilated or Missing Warrant Certificates 3
SECTION 8. Reservation of Warrant Shares 4
SECTION 9. Obtaining Stock Exchange Listings 4
SECTION 10. Adjustment of Exercise Price and Number of Warrant
Shares Issuable 4
(a) Adjustment for Change in Capital Stock 4
(b) Adjustment for Rights Issue 5
(c) Adjustment for Other Distributions 6
(d) Adjustment for Common Stock Issue 7
(e) Adjustment for Convertible Securities Issue 8
(f) Current Market Price 8
(g) Consideration Received 9
(h) When De Minimis Adjustment May Be Deferred 9
(i) When No Adjustment Required 9
(j) Notice of Adjustment 10
(k) Voluntary Reduction 10
(l) Reorganization of Company 10
(m) Company Determination Final 11
(n) When Issuance or Payment May Be Deferred 11
(o) Adjustment in Number of Shares 11
(p) Form of Warrants 12
SECTION 11. Fractional Interests 12
SECTION 12. Notices of Warrants 12
SECTION 13. Notices to Company and Warrant Holder 13
SECTION 14. Supplements and Amendments 14
SECTION 15. Successors 14
SECTION 16. Termination 14
SECTION 17. Governing Law 14
SECTION 18. Benefits of This Agreement 14
SECTION 19. Counterparts 15
SIGNATURE PAGE 16
EXHIBIT A A-1
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THIS WARRANT AGREEMENT (the "Agreement") is dated as of May 13, 1997 and entered
into by and between Regeneron Pharmaceuticals, Inc., a New York corporation (the
"Company"), and The Procter & Gamble Company, an Ohio corporation ("Procter &
Gamble").
WHEREAS, the Company proposes to issue to Procter & Gamble, or its
designee, Common Stock Purchase Warrants, as hereinafter described (the
"Warrants"), to purchase shares of Common Stock, $.001 par value (the "Common
Stock"), of the Company (the Common Stock issuable on exercise of the Warrants
being referred to herein as the "Warrant Shares"), pursuant to a Securities
Purchase Agreement dated as of the date hereof (the "Securities Purchase
Agreement").
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
SECTION 1. Warrant Certificates. The certificates evidencing the
Warrants (the "Warrant Certificates") to be delivered pursuant to this Agreement
shall be in registered form only and shall be substantially in the form set
forth in EXHIBIT A attached hereto.
SECTION 2. Execution of Warrant Certificates. Warrant Certificates
shall be signed on behalf of the Company by its Chairman of the Board or its
President or a Vice President and by its Secretary or an Assistant Secretary
under its corporate seal. Each such signature upon the Warrant Certificates may
be in the form of a facsimile signature of the present or any future Chairman of
the Board, President, Vice President, Secretary or Assistant Secretary and may
be imprinted or otherwise reproduced on the Warrant Certificates and for that
purpose the Company may adopt and use the facsimile signature of any person who
shall have been Chairman of the Board, President, Vice President, Secretary, or
Assistant Secretary, notwithstanding the fact that at the time the Warrant
Certificates shall be delivered or disposed of he shall have ceased to hold such
office.
In case any officer of the Company who shall have signed any of the
Warrant Certificates shall cease to be such officer before the Warrant
Certificates so signed shall have been disposed of by the Company, such Warrant
Certificates nevertheless may be delivered or disposed of as though such person
had not ceased to be such officer of the Company; and any Warrant Certificate
may be signed on behalf of the Company by any person who, at the actual date of
the execution of such Warrant Certificate, shall be a proper officer of the
Company to sign such Warrant Certificate, although at the date of the execution
of this Warrant Agreement any such person was not such officer.
SECTION 3. Registration. The Company shall number and register the
Warrant Certificates in a register as they are issued.
SECTION 4. Registration of Transfers and Exchanges. The Company shall
from time to time register the transfer of any outstanding Warrant Certificates
in a Warrant register to be maintained by the Company upon surrender of such
Warrant Certificates accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company, duly executed by the registered
holder or holders thereof or by the duly appointed legal representative thereof
or by a duly authorized attorney. Upon any such registration of transfer, a new
Warrant Certificate shall be issued to the transferee(s) and the surrendered
Warrant Certificate shall be cancelled and disposed of by the Company.
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The Warrant holders agree that each certificate representing Warrant
Shares will bear the following legend:
"THIS WARRANT AND THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS
AND UNTIL, IN THE CASE OF THE SHARES, SUCH SHARES ARE REGISTERED UNDER
SUCH ACT OR, IN THE CASE OF THIS WARRANT AND THE SHARES, AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY IS OBTAINED TO THE EFFECT
THAT SUCH REGISTRATION IS NOT REQUIRED."
The Warrant holders further agree that they shall not offer, sell, or
otherwise transfer the Warrants or Warrant Shares in violation of the foregoing
legend.
Warrant Certificates may be exchanged at the option of the holder(s)
thereof, when surrendered to the Company at its office for another Warrant
Certificate or other Warrant Certificates of like tenor and representing in the
aggregate a like number of Warrants. Warrant Certificates surrendered for
exchange shall be cancelled and disposed of by the Company.
In the event that a holder of Warrants (a "Selling Holder") desires to
transfer all or any part of its ownership of Warrants, the Company shall have
the following right of first refusal exercisable in connection with any such
transfer. The Selling Holder shall give the Company written notice specifying
the identify of the proposed purchasers, the number of Warrants to be sold, the
proposed purchase price, and the terms of the proposed purchase (the "Notice").
The Company shall have fifteen (15) days from the date of receiving the Notice
within which to exercise the right to acquire all or part of the Warrants that
are being offered at the price and upon the terms set forth in the Notice. Such
right shall be exercisable by written notice to the Selling Holder. If the
Company elects to purchase all or any part of the Warrants described in the
Notice, the Selling Holder shall consummate such transaction within thirty (30)
days form the date of the Notice, provided, in the event that the Company elects
to exercise its right to purchase part of the Warrants proposed to be sold in
the Notice, that such purchase would not decrease the price of each remaining
Warrant proposed to be sold in the Notice. If the Company does not elect to
purchase all or any part of such offered Warrants, then within sixty (60) days
from the date of the Notice, the Selling Holder may transfer all or part of such
Warrants to the proposed purchaser(s) on the terms and at the purchase price
specified in the Notice.
Subject to the foregoing right of first refusal of the Company and the
provisions of this Agreement, any holder may transfer all or any part of its
ownership of Warrants, provided that such sale, assignment, pledge, mortgage,
transfer or other disposition is not being made to an entity in the
pharmaceutical or biotechnology business, unless more than 50% of the voting
control of such entity is owned by the transferring holder. Notwithstanding the
foregoing, any holder of Warrants may transfer its Warrants to any wholly-owned
affiliate or subsidiary of such holder, whether now in existence or hereafter
created, formed or organized.
SECTION 5. Warrants; Exercise of Warrants. A Warrant may be exercised
upon surrender to the Company at its office designated for such purpose (the
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address of which is set forth in Section 13 hereof) of the certificate or
certificates evidencing the Warrants to be exercised with the form of election
to purchase duly filled in and signed, which signature shall be guaranteed by a
bank or trust company having an office or correspondent in the United States or
a broker or dealer which is a member of a registered securities exchange or the
National Association of Securities Dealers, Inc., and upon payment to the
Company of the exercise price (the "Exercise Price") which will be set forth in
Warrant Certificate, a form of which is attached hereto as Exhibit A, subject to
adjustment pursuant to Section 10, for the number of Warrant Shares in respect
of which such Warrants then exercised. Payment of the aggregate Exercise Price
shall be made in cash or by certified or official bank check payable to the
order of the Company.
Subject to the provisions of Section 6 hereof, upon such surrender of
Warrants and payment of the Exercise Price the Company shall issue and cause to
be delivered with all reasonable dispatch to or upon the written order of the
holder and in such name or names as the Warrant holder may designate, a
certificate or certificates for the number of full Warrant Shares issuable upon
the exercise of such Warrants together with cash as provided in Section 11;
provided, however, that if any reclassification, consolidation, merger or lease
or sale of assets is proposed to be effected by the Company as described in
subsection (l) of Section 10 hereof, or a tender offer or an exchange offer for
shares of Common Stock of the Company shall be made, upon such surrender of
Warrants and payment of the Exercise Price as aforesaid, the Company shall, as
soon as possible, but in any event not later than two business days thereafter,
issue and cause to be delivered the full number of Warrant Shares issuable upon
the exercise of such Warrants in the manner described in this sentence together
with cash as provided in Section 11. Such certificate or certificates shall be
deemed to have been issued and any person so designated to be named therein
shall be deemed to have become a holder of record of such Warrant Shares as of
the date of the surrender of such Warrants and payment of the Exercise Price.
The Warrants shall be exercisable, at the election of the holders
thereof, either in full or from time to time in part and, in the event that a
certificate evidencing Warrants is exercised in respect of fewer than all of the
Warrant Shares issuable on such exercise at any time prior to the date of
expiration of the Warrants, a new certificate evidencing the remaining Warrant
or Warrants will be issued and delivered pursuant to the provisions of this
Section and of Section 2 hereof.
All Warrant Certificates surrendered upon exercise of Warrants shall
be cancelled and disposed of by the Company. The Company shall keep copies of
this Agreement and any notices given or received hereunder available for
inspection by the holders during normal business hours at its office.
SECTION 6. Payment of Taxes. The Company will pay all documentary
stamp taxes, if any, attributable to the initial issuance of Warrant Shares
upon the exercise of Warrants.
SECTION 7. Mutilated or Missing Warrant Certificates. In case any of
the Warrant Certificates shall be mutilated, lost, stolen or destroyed, the
Company may in its discretion issue, in exchange and substitution for and upon
cancellation of the mutilated Warrant Certificate, or in lieu of and
substitution for the Warrant Certificate lost, stolen or destroyed, a new
Warrant Certificate of like tenor and representing an equivalent number of
Warrants, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction of such Warrant Certificate and
indemnity, if requested, also reasonably satisfactory to it. Applicants for such
substitute Warrant Certificates shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Company may prescribe.
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SECTION 8. Reservation of Warrant Shares. The Company will at all
times reserve and keep available, free from preemptive rights, out of the
aggregate of its authorized but unissued Common Stock or its authorized and
issued Common Stock held in its treasury, for the purpose of enabling it to
satisfy any obligation to issue Warrant Shares upon exercise of the Warrants,
the maximum number of shares of Common Stock which may then be deliverable upon
the exercise of all the outstanding Warrants.
The Company or, if appointed, the transfer agent for the Common Stock
(the "Transfer Agent") and every subsequent transfer agent for any shares of the
Company's capital stock issuable upon the exercise of any of the rights of
purchase aforesaid will be irrevocably authorized and directed at all times to
reserve such number of authorized shares as shall be required for such purpose.
The Company will keep a copy of this Agreement on file with the Transfer Agent
and with every subsequent transfer agent for any shares of the Company's capital
stock issuable upon the exercise of the rights of purchase represented by the
Warrants. The Company will furnish such Transfer Agent a copy of all notices of
adjustments and certificates related thereto, transmitted to each holder
pursuant to Section 12 hereof.
Before taking any action which would cause an adjustment pursuant to
Section 10 hereof to reduce the Exercise Price below the then par value (if any)
of the Warrant Shares, the Company will take any corporate action which may, in
the opinion of its counsel, be necessary in order that the Company may validly
and legally issue fully paid and nonassessable Warrant Shares at the Exercise
Price as so adjusted.
The Company covenants that all Warrant Shares which may be issued upon
exercise of Warrants will, upon issue, be fully paid, nonassessable, free of
preemptive rights and free from all documentary stamp taxes, liens, charges and
security interests with respect to the issue thereof.
SECTION 9. Obtaining Stock Exchange Listings. The Company will from
time to time take all action which may be necessary so that the Warrant Shares,
immediately upon their issuance upon the exercise of Warrants, will be listed on
the principal securities exchanges and markets within the United States of
America, if any, on which other shares of Common Stock are then listed.
SECTION 10. Adjustment of Exercise Price and Number of Warrant Shares
Issuable. The Exercise Price and the number of Warrant Shares issuable upon the
exercise of each Warrant are subject to adjustment from time to time upon the
occurrence of the events enumerated in this Section 10. For purposes of this
Section 10, "Common Stock" means shares now or hereafter authorized of any class
of common stock of the Company and any other stock of the Company, however
designated, that has the right (subject to any prior rights of any class or
series of preferred stock) to participate in any distribution of the assets or
earnings of the Company without limit as to per share amount, including, without
limitation, the Class A Common Stock, par value $.001, of the Company.
(a) Adjustment for Change in Capital Stock.
If the Company:
(1) pays a dividend or makes a distribution on its Common Stock in shares
of its Common Stock;
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(2) subdivides its outstanding shares of Common Stock into a greater number
of shares; or
(3) combines its outstanding shares of Common Stock into a smaller number
of shares;
then the Exercise Price in effect immediately prior to such action shall then be
adjusted in accordance with the formula:
O
1 --
Where: E = E x A
1
E = the adjusted Exercise Price
E = the current Exercise Price
O = the number of shares of Common Stock outstanding prior to such
action
A = the number of shares of Common Stock outstanding immediately
after such action
In the case of a dividend or distribution the adjustment shall become
effective immediately after the record date for determination of holders of
shares of Common Stock entitled to receive such dividend or distribution, and in
the case of a subdivision or combination, the adjustment shall become effective
immediately after the effective date of such corporate action.
If after an adjustment a holder of a Warrant upon exercise of it may
receive shares of two or more classes of capital stock of the Company, the
Company shall determine the allocation of the adjusted Exercise Price between
the classes of capital stock. After such allocation, the exercise privilege, the
number of shares issuable upon such exercise, and the Exercise Price of each
class of capital stock shall thereafter be subject to adjustment on terms
comparable to those applicable to Common Stock in this Section 10.
Such adjustment shall be made successively whenever any event listed
above shall occur.
(b) Adjustment for Rights Issue.
If the Company distributes any rights, options or warrants to all
holders of its Common Stock entitling them at any time after the record date
mentioned below to purchase shares of Common Stock at a price per share less
than the Current Market Price (as defined in SECTION 10(f)) per share of Common
Stock on that record date, the Exercise Price shall be adjusted in accordance
with the formula:
N x P
O + -------------
1 M
E = E x ------------------
O + N
where:
1
E = the adjusted Exercise Price.
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E = the current Exercise Price.
O = the number of shares of Common Stock outstanding on the record
date.
N = the number of additional shares of Common Stock issuable upon
exercise of the rights, options or warrants offered.
P = the exercise price per share of the additional shares issuable
upon exercise of the rights, options or warrants.
M = the Current Market Price per share of Common Stock on the
record date.
The adjustment shall be made successively whenever any such rights,
options or warrants are issued and shall become effective immediately after the
record date for the determination of stockholders entitled to receive the
rights, options or warrants. If at the end of the period during which such
rights, options or warrants are exercisable, not all rights, options or warrants
shall have been exercised, the Exercise Price shall be immediately readjusted to
what it would have been if "N" in the above formula had been the number of
shares actually issued.
(c) Adjustment for other Distributions.
If the Company distributes to all holders of its Common Stock any of its
assets (including but not limited to securities and cash), debt securities,
capital stock, or any rights or warrants to purchase assets, debt securities,
capital stock, or other securities of the Company, the Exercise Price shall be
adjusted in accordance with the formula:
1 M - F
E = E x -------------
M
where:
1
E = the adjusted Exercise Price.
E = the current Exercise Price.
M = the Current Market Price per share of Common Stock on the record
date mentioned below.
F = the fair market value on the record date of the assets, debt
securities, capital stock or rights or warrants applicable to
one share of Common Stock. The Board of Directors shall
determine the fair market value.
The adjustment shall be made successively whenever any such
distribution is made and shall become effective immediately after the record
date for the determination of stockholders entitled to receive the distribution.
This subsection does not apply to (i) dividends, distributions,
combinations or issuances referred to in subsection (a) of this Section 10, (ii)
rights, options or warrants
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referred to in subsection (b) of this Section 10, or (iii) non-extraordinary
quarterly cash dividends distributed to all holders of Common Stock.
(d) Adjustment for Common Stock Issue.
If the Company issues shares of Common Stock for a consideration per
share less than the Current Market Price per share of Common Stock on the date
the Company fixes the offering price of such additional shares, the Exercise
Price shall be adjusted in accordance with the formula:
P
O + -------------
M
1
E = E x -------------
A
where:
1
E = the adjusted Exercise Price.
E = the then current Exercise Price.
O = the number of shares outstanding immediately prior to the
issuance of such additional shares.
P = the aggregate consideration received for the issuance of such
additional shares.
M = the Current Market Price per share of Common Stock on the date of
issuance of such additional shares.
A = the number of shares outstanding immediately after the issuance
of such additional shares.
The adjustment shall be made successively whenever any such issuance
is made, and shall become effective immediately after such issuance.
This subsection (d) does not apply to:
(1) the exercise of Warrants,
(2) rights, options, warrants or other distributions referred to in
subsections (b), (c) or (e) of this Section 10,
(3) Common Stock issued to the Company's directors, employees and
non-employee service providers under bona fide benefit plans adopted by the
Board of Directors and approved by the holders of Common Stock when required by
law, if such Common Stock would otherwise be covered by this subsection (d),
(4) Common Stock issued in a bona fide public offering pursuant to a
firm commitment underwriting, or
(5) issuances of shares of Common Stock for a consideration per share
less than 100%, but greater than 92%, of the Current Market Price per share of
Common Stock on the date the Company fixes the offering price of such additional
shares.
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(e) Adjustment for Convertible Securities Issue.
If the Company issues any securities convertible into or exchangeable
for Common Stock (other than securities issued in transactions described in
subsections (b) and (c) of this Section 10) for a consideration per share of
Common Stock initially deliverable upon conversion or exchange of such
securities less than the Current Market Price per share of Common Stock on the
date of issuance of such securities, the Exercise Price shall be adjusted in
accordance with this formula:
P
O + -------------
M
1
E = E x -----------------
O + D
where:
1
E1 = the adjusted Exercise Price.
E = the then current Exercise Price.
O = the number of shares outstanding immediately prior to the
issuance of such securities.
P = the aggregate consideration received for the issuance of such
securities.
M = the Current Market Price per share of Common Stock on the date of
issuance of such securities.
D = the maximum number of shares deliverable upon conversion or in
exchange for such securities at the initial conversion or
exchange rate.
The adjustment shall be made successively whenever any such issuance
is made, and shall become effective immediately after such issuance.
If all of the Common Stock deliverable upon conversion or exchange of
such securities have not been issued when such securities are no longer
outstanding, then the Exercise Price shall promptly be readjusted to the
Exercise Price which would then be in effect had the adjustment upon the
issuance of such securities been made on the basis of the actual number of
shares of Common Stock issued upon conversion or exchange of such securities.
This subsection (e) does not apply to convertible securities issued in
a bona fide public offering pursuant to a firm commitment underwriting, nor does
this subsection apply to issuances of any securities convertible into or
exchangeable for Common Stock for a consideration per share of Common Stock
initially deliverable upon conversion or exchange of such securities less than
100%, but greater than 92%, of the Current Market Price per share of Common
Stock on the date of issuance of such securities.
(f) Current Market Price.
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As used in this Agreement, the "Current Market Price" means the
average (rounded to the nearest cent) of the Quoted Price of the Common Stock
for the 30 consecutive trading days commencing 45 trading days before (and not
including) the date in question. The "Quoted Price" of the Common Stock is the
last reported sales price of the Common Stock as reported by Nasdaq National
Market, or if the Common Stock is listed on a national securities exchange, the
last reported sales price of the Common Stock on such exchange (which shall be
for consolidated trading if applicable to such exchange), or if neither so
reported or listed, the last reported bid price of the Common Stock. In the
absence of one or more such quotations, the Board of Directors of the Company
shall determine the Current Market Price on the basis of such quotations as it
in good faith considers appropriate.
(g) Consideration Received.
For purposes of any computation respecting consideration received
pursuant to subsections (d) and (e) of this Section 10, the following shall
apply:
(1) in the case of the issuance of shares of Common Stock for cash,
the consideration shall be the amount of such cash, provided that in no case
shall any deduction be made for any commissions, discounts or other expenses
incurred by the Company for any underwriting of the issue or otherwise in
connection therewith;
(2) in the case of the issuance of shares of Common Stock for a
consideration in whole or in part other than cash, the consideration other than
cash shall be deemed to be the fair market value thereof as determined in good
faith by the Board of Directors (irrespective of the accounting treatment
thereof), whose determination shall be conclusive, and described in a Board
resolution; and
(3) in the case of the issuance of securities convertible into or
exchangeable for shares, the aggregate consideration received therefor shall be
deemed to be the consideration received by the Company for the issuance of such
securities plus the additional minimum consideration, if any, to be received by
the Company upon the conversion or exchange thereof (the consideration in each
case to be determined in the same manner as provided in clauses (1) and (2) of
this subsection).
(h) When De Minimis Adjustment May Be Deferred.
No adjustment in the Exercise Price need be made unless the adjustment
would require an increase or decrease of at least 1% in the Exercise Price. Any
adjustments that are not made shall be carried forward and taken into account in
any subsequent adjustment.
All calculations under this Section shall be made to the nearest cent
or to the nearest 1/100th of a share, as the case may be.
(i) When No Adjustment Required.
No adjustment need be made for a transaction referred to in
subsections (a), (b), (c), (d) or (e) of this Section 10 if Warrant holders are
to participate in the transaction on a basis and with notice that the Board of
Directors determines to be fair and appropriate in light of the basis and notice
on which holders of Common Stock participate in the transaction.
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No adjustment need be made for any issuances pursuant to the
Securities Purchase Agreement dated May 13, 1997.
No adjustment need be made for rights to purchase Common Stock
pursuant to a Company plan for reinvestment of dividends or interest.
No adjustment need be made for a change in the par value or no par
value of the Common Stock.
If the Company distributes or issues rights to all holders of its
Common Stock pursuant to a shareholder rights plan, then no adjustment shall be
made pursuant to this SECTION 10 upon such distribution or issuance if, upon
exercise of the Warrants, each holder thereof receives the same type and number
of unexpired rights it would have received (as adjusted for any event described
in Section 10(a) or 10(l)) had it exercised its Warrants, and been a holder of
the Warrant Shares issuable upon exercise thereof, prior to the record date for
such distribution or issuance.
To the extent Warrants become convertible into cash, no adjustment need be
made thereafter as to the cash. Interest will not accrue on the cash.
(j) Notice of Adjustment.
Whenever the Exercise Price is adjusted, the Company shall provide the
notices required by Section 12 hereof.
(k) Voluntary Reduction.
The Company from time to time may reduce the Exercise Price by any
amount for any period of time if the period is at least 20 days and if the
reduction is irrevocable during the period; provided, however, that in no event
may the Exercise Price be less than the par value of a share of Common Stock.
Whenever the Exercise Price is reduced pursuant to subsection 10(k),
the Company shall mail to Warrant holders a notice of the reduction. The Company
shall mail the notice at least 15 days before the date the reduced Exercise
Price takes effect. The notice shall state the reduced Exercise Price and the
period it will be in effect.
A reduction of the Exercise Price does not change or adjust the
Exercise Price otherwise in effect for purposes of subsections (a), (b), (c),
(d) and (e) of this Section 10.
(l) Reorganization of Company.
If any reclassification of the Common Stock of the Company or any
consolidation or merger of the Company with another entity, or the sale or lease
of all or substantially all of the Company's assets to another entity shall be
effected in such a way that holders of the Common Stock of the Company shall be
entitled to receive stock, securities or assets with respect to or in exchange
for such Common Stock, then, as a condition precedent to such reclassification,
consolidation,
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merger, sale or lease, lawful and adequate provisions shall be made whereby
the Warrant holder shall thereafter have the right to purchase and receive
upon the basis and the terms and conditions specified in this Agreement and in
lieu of the shares of Common Stock immediately theretofore purchasable and
receivable upon the exercise of the rights represented hereby, such shares of
stock, securities or assets as may be issued or payable in such
reclassification, consolidation, merger, sale or lease with respect to or in
exchange for the number of shares of Common Stock purchasable and receivable
upon the exercise of the rights represented hereby had such rights been
exercised immediately prior thereto, and in any such case appropriate provision
shall be made with respect to the rights and interests of the holders of the
Warrants to the end that the provisions hereof (including without limitation
provisions for adjustments of the Exercise Price and of the number of shares of
Common Stock purchasable and receivable upon the exercise of the Warrant) shall
thereafter be applicable, as nearly as may be, in relation to any shares of
stock, securities or assets thereafter deliverable upon the exercise hereof. The
Company will not effect any such reclassification, consolidation, merger, sale
or lease, unless prior to the consummation thereof the successor corporation (if
other than the Company) resulting from such reclassification, consolidation or
merger or the corporation purchasing or leasing such assets shall assume by a
supplemental Warrant Agreement, executed and mailed or delivered to the holders
of the Warrants at the last address thereof appearing on the books of Company,
the obligation to deliver to such holders such shares of stock, securities or
assets as, in accordance with the foregoing provisions, such holders may be
entitled to purchase.
If the issuer of securities deliverable upon exercise of Warrants
under the supplemental Warrant Agreement is an affiliate of the formed,
surviving, transferee or lessee corporation, that issuer shall join in the
supplemental Warrant Agreement.
If this subsection (l) applies, subsections (a), (b), (c), (d) and (e)
of this Section 10 do not apply.
(m) Company Determination Final.
Any determination that the Company or the Board of Directors must make
pursuant to this Section 10 is conclusive.
(n) When Issuance or Payment May Be Deferred.
In any case in which this Section 10 shall require that an adjustment
in the Exercise Price be made effective as of a record date for a specified
event, the Company may elect to defer until the occurrence of such event (i)
issuing to the holder of any Warrant exercised after such record date the
Warrant Shares and other capital stock of the Company, if any, issuable upon
such exercise over and above the Warrant Shares and other capital stock of the
Company, if any, issuable upon such exercise on the basis of the Exercise Price
and (ii) paying to such holder any amount in cash in lieu of a fractional share
pursuant to Section 11; provided, however, that the Company shall deliver to
such holder a due bill or other appropriate instrument evidencing such holder's
right to receive such additional Warrant Shares, other capital stock and cash
upon the occurrence of the event requiring such adjustment.
(o) Adjustment in Number of Shares.
Upon each adjustment of the Exercise Price pursuant to this SECTION
10, each Warrant outstanding prior to the making of the adjustment in the
Exercise Price shall thereafter evidence the right to receive upon payment of
the adjusted Exercise Price that number of shares of Common Stock (calculated to
the nearest hundredth) obtained from the following formula:
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1 E
N = N x -------------
1
E
where:
1
N = the adjusted number of Warrant Shares issuable upon exercise of a
Warrant by payment of the adjusted Exercise Price.
N = the number of Warrant Shares previously issuable upon exercise of
a Warrant by payment of the Exercise Price prior to adjustment.
1
E = the adjusted Exercise Price.
E = the Exercise Price prior to adjustment.
(p) Form of Warrants.
Irrespective of any adjustments in the Exercise Price or the number or
kind of shares purchasable upon the exercise of the Warrants, Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the Warrants initially issuable
pursuant to this Agreement.
SECTION 11. Fractions Interests. The Company shall not be required to
issue fractional Warrant Shares on the exercise of Warrants. If more than one
Warrant shall be presented for exercise in full at the same time by the same
holder, the number of full Warrant Shares which shall be issuable upon the
exercise thereof shall be computed on the basis of the aggregate number of
Warrant Shares purchasable on exercise of the Warrants so presented. If any
fraction of a Warrant Share would, except for the provisions of this SECTION 11,
be issuable on the exercise of any Warrants (or specified portion thereof), the
Company shall pay an amount in cash equal to the Current Market Price on the day
immediately preceding the date the Warrant is presented for exercise, multiplied
by such fraction.
SECTION 12. Notices to Warrant Holders. Upon any adjustment of the
Exercise Price pursuant to Section 10, the Company shall promptly thereafter (i)
cause to be filed with the Company a certificate of a firm of independent public
accountants of recognized standing selected by the Board of Directors of the
Company (who may be the regular auditors of the Company) setting forth the
Exercise Price after such adjustment and setting forth in reasonable detail the
method of calculation and the facts upon which such calculations are based and
setting forth the number of Warrant Shares (or portion thereof) issuable after
such adjustment in the Exercise Price, upon exercise of a Warrant and payment of
the adjusted Exercise Price, which certificate shall be conclusive evidence of
the correctness of the matters set forth therein, and (ii) cause to be given to
each of the registered holders of the Warrant Certificates at his address
appearing on the Warrant register written notice of such adjustments by
first-class mail, postage prepaid. Where appropriate, such notice may be given
in advance and included as a part of the notice required to be mailed under the
other provisions of this Section 12.
In case:
(a) the Company shall authorize the issuance to all holders of shares of
Common Stock of rights, options or warrants to subscribe for or purchase shares
of Common Stock or of any other subscription rights or warrants; or
-14-
(b) the Company shall authorize the distribution to all holders of shares
of Common Stock of evidences of its indebtedness or assets (other than cash
dividends or cash distributions payable out of earnings or earned surplus or
dividends or distributions payable in shares of Common Stock); or
(c) of any consolidation or merger to which the Company is a party and for
which approval of any shareholders of the Company is required, or of the
conveyance or transfer of all or substantially all of the properties and assets
of the Company, or of any reclassification or change of Common Stock issuable
upon exercise of the Warrants (other than a change in par value, or from par
value to no par value, or from no par value to par value, or as a result of a
subdivision or combination), or a tender offer or exchange offer for shares of
Common Stock; or
(d) of the voluntary or involuntary dissolution, liquidation or winding
up of the Company; or
(e) the Company proposes to take any action that would require an
adjustment in the Exercise Price pursuant to subsections (a), (b), (c), (d) or
(e) of Section 10 and if the Company does not arrange for Warrant holders to
participate pursuant to subsection (i) of Section 10, or if the Company takes
any action that would require a supplemental Warrant Agreement pursuant to
subsection (l) of Section 10, then the Company shall cause to be given to each
of the registered holders of the Warrant Certificates at his address appearing
on the Warrant register, at least 20 days (or 10 days in any case specified in
clauses (a), (b) or (c) above) prior to the applicable record date hereinafter
specified, or promptly in the case of events for which there is no record date,
by first-class mail, postage prepaid, a written notice stating (i) the date as
of which the holders of record of shares of Common Stock to be entitled to
receive any such rights, options, warrants or distribution are to be determined,
or (ii) the initial expiration date set forth in any tender offer or exchange
offer for shares of Common Stock, or (iii) the date on which any such
consolidation, merger, conveyance, transfer, dissolution, liquidation or winding
up is expected to become effective or consummated, and the date as of which it
is expected that holders of record of shares of Common Stock shall be entitled
to exchange such shares for securities or other property, if any, deliverable
upon such reclassification, consolidation, merger, conveyance, transfer,
dissolution, liquidation or winding up. The failure to give the notice required
by this Section 12 or any defect therein shall not affect the legality or
validity of any distribution, right, option, warrant, consolidation, merger,
conveyance, transfer, dissolution, liquidation or winding up, or the vote upon
any action.
Nothing contained in this Agreement or in any of the Warrant
Certificates shall be construed as conferring upon the holders thereof the right
to vote or to consent or to receive notice as shareholders in respect of the
meetings of shareholders or the election of Directors of the Company or any
other matter, or any rights whatsoever as shareholders of the Company.
SECTION 13. Notices to Company and Warrant Holder. Unless otherwise
provided herein, any notice, request, instruction or other document to be given
hereunder by any party to the others shall be in writing and delivered in person
or by courier, telegraphed, telexed or by facsimile transmission (with receipt
confirmed), or mailed by certified mail, postage prepaid, return receipt
requested (such mailed notice to be effective on the date such receipt is
acknowledged), as follows:
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If to the Company:
Regeneron Pharmaceuticals, Inc.
777 Old Saw Mill River Road
Tarrytown, New York 10591-6707
Attn: Corporate Secretary
Telecopy No.: (914) 347-2113
With a copy to:
Regeneron Pharmaceuticals, Inc.
777 Old Saw Mill River Road
Tarrytown, New York 10591-6707
Attn: General Counsel
Telecopy No.: (914) 345-7721
If to Warrant Holder:
The Procter & Gamble Company
One Procter & Gamble Plaza
Cincinnati, Ohio 45202
Attn: President
With a copy to:
Procter & Gamble Pharmaceuticals, Inc.
Blue Ash Office Center
10200 Alliance Road
Cincinnati, Ohio 45242-4716
Attn: Associate General Counsel
or to such other place and with such other copies as either party may designate
as to itself by written notice to the others.
SECTION 14. Supplements and Amendments. The Company may not supplement
or amend this Agreement without the prior written approval of the holders of
Warrant Certificates affected by such supplement or amendment.
SECTION 15. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company shall bind and inure to the
benefit of its respective successors and assigns hereunder.
SECTION 16. Termination. This Agreement shall terminate at 5:00 p.m.,
New York time on the fifth anniversary of the issuance of the final Warrant
issued pursuant to the Securities Purchase Agreement dated May 13, 1997.
Notwithstanding the foregoing, this Agreement will terminate on any earlier date
if all Warrants have been exercised.
SECTION 17. Governing Law. This Agreement and each Warrant Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of New York and for all purposes shall be construed in accordance with the
internal laws of said State.
SECTION 18. Benefits of This Agreement. Nothing in this Agreement
shall be construed to give to any person or corporation other than the Company
and the registered holders of the Warrant Certificates any legal or equitable
right, remedy or claim
-16-
under this Agreement; but this Agreement shall be for the sole and exclusive
benefit of the Company and the registered holders of the Warrant Certificates.
SECTION 19. Counterparts. This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
[Signature Page To Follow]
-17-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
REGENERON PHARMACEUTICALS, INC.
By: ________________________________
Name:
Title:
- --------------------------------
Seal
Attest: ________________________
Secretary
THE PROCTER & GAMBLE COMPANY
By: ________________________________
Name:
Title:
- --------------------------------
Seal
Attest: ________________________
Secretary
-18-
EXHIBIT A
[Form of Warrant Certificate]
THIS WARRANT AND THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL, WITH
RESPECT TO THE SHARES, SUCH SHARES ARE REGISTERED UNDER SUCH ACT OR, WITH
RESPECT TO THIS WARRANT OR THE SHARES, AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY IS OBTAINED TO THE EFFECT THAT SUCH REGISTRATION IS
NOT REQUIRED.
EXERCISABLE ON OR BEFORE 5:00 P.M., NEW YORK TIME, ______________________, 20__
No. ______
Warrants
Warrant Certificate
REGENERON PHARMACEUTICALS, INC.
This Warrant Certificate certifies that The Procter & Gamble Company.,
or registered assigns, is the registered holder of ___________ Warrants expiring
__________, 20__ (the "Warrants") to purchase Common Stock, $.001 par value (the
"Common Stock"), of Regeneron Pharmaceuticals, Inc., a New York corporation (the
"Company"). Each Warrant entitles the holder to receive from the Company upon
exercise on or before 5:00 p.m. New York Time on ___________ __, 20__, one fully
paid and nonassessable share of Common Stock (a "Warrant Share") at the initial
exercise price (the "Exercise Price") of $_______ payable in lawful money of the
United States of America upon surrender of this Warrant Certificate and payment
of the Exercise Price as defined in the Securities Purchase Agreement at the
office of the Company designated for such purpose, subject to the conditions set
forth herein and in the Warrant Agreement referred to herein.
No Warrant may be exercised after 5:00 p.m., New York Time on
______________,200__, and to the extent not exercised by such time such Warrants
shall become void.
A-1
The Warrants evidenced by this Warrant Certificate are issued pursuant
to a Warrant Agreement dated as of May 13, 1997 (the "Warrant Agreement"), duly
executed and delivered by the Company, which Warrant Agreement is hereby
incorporated by reference in and made a part of this instrument and is hereby
referred to for a description of the rights, limitation of rights, obligations,
duties and immunities thereunder of the Company and the holders (the words
"holders" or "holder" meaning the registered holders or registered holder) of
the Warrants. A copy of the Warrant Agreement may be obtained by the holder
hereof upon written request to the Company. This Warrant is being issued
pursuant to the Securities Purchase Agreement dated May 13, 1997.
Warrants may be exercised at any time on or before 5:00 p.m., New York
time on _____________ __, 20__. The holder of Warrants evidenced by this Warrant
Certificate may exercise them by surrendering this Warrant Certificate, with the
form of election to purchase set forth hereon properly completed and executed,
together with payment of the Exercise Price at the office of the Company
designated for such purpose. In the event that upon any exercise of Warrants
evidenced hereby the number of Warrants exercised shall be less than the total
number of Warrants evidenced hereby, there shall be issued to the holder hereof
or his assignee a new Warrant Certificate evidencing the number of Warrants not
exercised. No adjustment shall be made for any dividends on any Common Stock
issuable upon exercise of this Warrant.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted. If the Exercise Price is adjusted, the Warrant
Agreement provides that the number of shares of Common Stock issuable upon the
exercise of each Warrant shall be adjusted. No fractions of a share of Common
Stock will be issued upon the exercise of any Warrant, but the Company will pay
the cash value thereof determined as provided in the Warrant Agreement.
The holders of Warrants are entitled to certain registration rights
with respect to the Common Stock purchasable upon exercise thereof. Said
registration rights are set forth in full in a Registration Rights Agreement
dated as of May 13, 1997, between the Company and Procter & Gamble. A copy of
the Registration Rights Agreement may be obtained by the holder hereof upon
written request to the Company.
Warrant Certificates, when surrendered at the office of the Company by
the registered holder thereof in person or by legal representative or attorney
duly authorized in writing, may be exchanged, in the manner and subject to the
limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Company a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
A-2
The Company may deem and treat the registered holder(s) thereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, of any distribution to the holder(s) hereof, and for all other
purposes, and the Company shall not be affected by any notice to the contrary.
Neither the Warrants nor this Warrant Certificate entitles any holder hereof to
any rights of a stockholder of the Company.
This Warrant Certificate shall not be valid unless countersigned by
the Company, as such term is used in the Warrant Agreement.
This Warrant Certificate shall not be offered, sold or otherwise
transferred in violation of the legend on the first page hereof.
[Signature Page To Follow]
A-3
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be signed by its President and by its Secretary and has caused
its corporate seal to be affixed hereunto or imprinted hereon.
Dated: _____________ , ____
REGENERON PHARMACEUTICALS, INC.
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
A-4
S-1
[Form of Election to Purchase]
(To Be Executed Upon Exercise Of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to receive ___________ shares of Common
Stock and herewith tenders payment for such shares to the order of REGENERON
PHARMACEUTICALS, INC. in the amount of $___________ in accordance with the terms
hereof. The undersigned requests that a certificate for such shares be
registered in the name of _______________, whose address is ________________ and
that such shares be delivered to ______________________________ whose address is
__________________________________. If said number of shares is less than all of
the shares of Common Stock purchasable hereunder, the undersigned requests that
a new Warrant Certificate representing the remaining balance of such shares be
registered in the name of [ ], whose address is ________________________,
and that such Warrant Certificate be delivered to ______________________, whose
address is _________________________________________________________.
Signature: _________________________________
Date: ________________________
Signature Guaranteed: ______________________
-5-
EXHIBIT A
[Form of Warrant Certificate]
THIS WARRANT AND THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL, WITH
RESPECT TO THE SHARES, SUCH SHARES ARE REGISTERED UNDER SUCH ACT OR, WITH
RESPECT TO THIS WARRANT OR THE SHARES, AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY IS OBTAINED TO THE EFFECT THAT SUCH REGISTRATION IS
NOT REQUIRED.
EXERCISABLE ON OR BEFORE 5:00 P.M., NEW YORK TIME, _______________________, 20__
No. ______ Warrants
Warrant Certificate
REGENERON PHARMACEUTICALS, INC.
This Warrant Certificate certifies that The Procter & Gamble Company.,
or registered assigns, is the registered holder of ___________ Warrants expiring
__________, 20__ (the "Warrants") to purchase Common Stock, $.001 par value (the
"Common Stock"), of Regeneron Pharmaceuticals, Inc., a New York corporation (the
"Company"). Each Warrant entitles the holder to receive from the Company upon
exercise on or before 5:00 p.m. New York Time on ___________ __, 20__, one fully
paid and nonassessable share of Common Stock (a "Warrant Share") at the initial
exercise price (the "Exercise Price") of $_______ payable in lawful money of the
United States of America upon surrender of this Warrant Certificate and payment
of the Exercise Price as defined in the Securities Purchase Agreement at the
office of the Company designated for such purpose, subject to the conditions set
forth herein and in the Warrant Agreement referred to herein.
No Warrant may be exercised after 5:00 p.m., New York Time on _______,
200__, and to the extent not exercised by such time such Warrants shall become
void.
-6-
The Warrants evidenced by this Warrant Certificate are issued pursuant
to a Warrant Agreement dated as of May 13, 1997 (the "Warrant Agreement"), duly
executed and delivered by the Company, which Warrant Agreement is hereby
incorporated by reference in and made a part of this instrument and is hereby
referred to for a description of the rights, limitation of rights, obligations,
duties and immunities thereunder of the Company and the holders (the words
"holders" or "holder" meaning the registered holders or registered holder) of
the Warrants. A copy of the Warrant Agreement may be obtained by the holder
hereof upon written request to the Company. This Warrant is being issued
pursuant to the Securities Purchase Agreement dated May 13, 1997.
Warrants may be exercised at any time on or before 5:00 p.m., New York
time on ____ __, 20__. The holder of Warrants evidenced by this Warrant
Certificate may exercise them by surrendering this Warrant Certificate, with the
form of election to purchase set forth hereon properly completed and executed,
together with payment of the Exercise Price at the office of the Company
designated for such purpose. In the event that upon any exercise of Warrants
evidenced hereby the number of Warrants exercised shall be less than the total
number of Warrants evidenced hereby, there shall be issued to the holder hereof
or his assignee a new Warrant Certificate evidencing the number of Warrants not
exercised. No adjustment shall be made for any dividends on any Common Stock
issuable upon exercise of this Warrant.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted. If the Exercise Price is adjusted, the Warrant
Agreement provides that the number of shares of Common Stock issuable upon the
exercise of each Warrant shall be adjusted. No fractions of a share of Common
Stock will be issued upon the exercise of any Warrant, but the Company will pay
the cash value thereof determined as provided in the Warrant Agreement.
The holders of Warrants are entitled to certain registration rights
with respect to the Common Stock purchasable upon exercise thereof. Said
registration rights are set forth in full in a Registration Rights Agreement
dated as of May 13, 1997, between the Company and Procter & Gamble. A copy of
the Registration Rights Agreement may be obtained by the holder hereof upon
written request to the Company.
Warrant Certificates, when surrendered at the office of the Company by
the registered holder thereof in person or by legal representative or attorney
duly authorized in writing, may be exchanged, in the manner and subject to the
limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Company a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
-7-
The Company may deem and treat the registered holder(s) thereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, of any distribution to the holder(s) hereof, and for all other
purposes, and the Company shall not be affected by any notice to the contrary.
Neither the Warrants nor this Warrant Certificate entitles any holder hereof to
any rights of a stockholder of the Company.
This Warrant Certificate shall not be valid unless countersigned by
the Company, as such term is used in the Warrant Agreement.
This Warrant Certificate shall not be offered, sold or otherwise
transferred in violation of the legend on the first page hereof.
[Signature Page To Follow]
-8-
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate
to be signed by its President and by its Secretary and has caused its
corporate seal to be affixed hereunto or imprinted hereon.
Dated: _____________ , ____
REGENERON PHARMACEUTICALS, INC.
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
-9-
[Form of Election to Purchase]
(To Be Executed Upon Exercise Of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to receive ___________ shares of Common
Stock and herewith tenders payment for such shares to the order of REGENERON
PHARMACEUTICALS, INC. in the amount of $___________ in accordance with the terms
hereof. The undersigned requests that a certificate for such shares be
registered in the name of ______________, whose address is _________________ and
that such shares be delivered to ______________________________ whose address is
______________________________. If said number of shares is less than all of the
shares of Common Stock purchasable hereunder, the undersigned requests that a
new Warrant Certificate representing the remaining balance of such shares be
registered in the name of [ ], whose address is ______________________, and that
such Warrant Certificate be delivered to _____________________, whose address is
____________________________________.
Signature: _________________________________
Date: ________________________
Signature: _________________________________
Guaranteed: ________________________________
-10-
-11-