Exhibit 10.1
THIS WARRANT AND THE SHARES ISSUABLE UPON THE EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR UNDER ANY APPLICABLE STATE SECURITIES LAWS
AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS CELL PATHWAYS, INC. RECEIVES AN
OPINION OF COUNSEL ACCEPTABLE TO IT THAT SUCH OFFER, SALE, PLEDGE OR
TRANSFER IS EXEMPT FROM ANY REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF THE SECRITIES ACT AND ANY APPLICABLE STATE SECURITIES
LAWS.
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CELL PATHWAYS, INC.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
No. __ _________ Shares
IN CONSIDERATION OF the covenants contained in the Purchase Agreement,
dated March 26, 2002, between Cell Pathways, Inc., a Delaware corporation (the
"Company"), and _________________. (the "Initial Holder") (the "Purchase
Agreement"), and for value received, the Company hereby certifies that the
Initial Holder or any registered assign of the Initial Holder (each of the
Initial Holder and any such registered assign being hereinafter referred to as
the "Holder") is entitled, subject to the provisions of this Warrant, to
purchase from the Company, at any time or from time to time on or after March
26, 2002 (the "Issue Date"), and before 5:00 p.m., Philadelphia time, on March
26, 2006 (the "Exercise Period"), the number of fully paid and nonassessable
shares of common stock of the Company, par value $.01 per share, set forth
above. The term "Common Stock" shall mean the aforementioned common stock of the
Company together with any other equity securities that may be issued by the
Company in connection therewith or in substitution therefor, as provided herein.
During the Exercise Period, the Holder may purchase such number of shares of
Common Stock at a purchase price per share equal to $4.74 (the "Original
Exercise Price"), as appropriately adjusted pursuant to Section 7 hereof. As
used herein, the term "Exercise Price" shall mean the Original Exercise Price
or, if the Original Exercise Price shall be adjusted pursuant to Section 7
hereof, the purchase price per share of Common Stock as determined by Section 7.
The number of shares of Common Stock to be received upon the exercise
of this Warrant and the price to be paid for a share of Common Stock are subject
to adjustment from time to time as hereinafter set forth. The shares of Common
Stock deliverable upon such exercise, as adjusted from time to time, are
hereinafter sometimes referred to as "Warrant Shares."
1. Exercise of Warrant.
(a) This Warrant may be exercised in whole or in part, at any
time or from time to time, during the Exercise Period by presentation and
surrender hereof to the Company at its principal office at 702 Electronic Drive,
Horsham, Pennsylvania 19044 (or at such other address as the Company or its
agent may hereafter designate in writing to the Holder), or at the office of its
warrant agent, with the Purchase Form contained herein duly executed and
accompanied by cash or a certified or official bank check drawn to the order of
"Cell Pathways, Inc." in the amount of the Exercise Price multiplied by the
number of Warrant Shares specified in such form. Prior to the deliveries
specified in the preceding sentence, the Holder may, if the Holder is required
(by any laws, statutes, rules or regulations applicable to the Holder) to
receive evidence of the Warrant Shares prior to payment therefor, provide the
Company with written notice of its intent to exercise this Warrant (the "Notice
of Intent"), which notice shall specify the number of Warrant Shares to be
purchased upon such exercise. Upon receipt of the Notice of Intent, the Company
shall direct the warrant agent or the transfer agent of its Common Stock to
prepare a share certificate for the Warrant Shares to be issued upon exercise of
the Warrant and shall provide a copy of such share certificate to the Holder. If
this Warrant should be exercised in part only, the Company shall, upon surrender
of this Warrant, execute and deliver a new Warrant evidencing the rights of the
Holder thereof to purchase the balance of the Warrant Shares purchasable
hereunder. Upon receipt by the Company during the Exercise Period of this
Warrant and the Purchase Form, in proper form for exercise, together with proper
payment of the Exercise Price, at such office, or by the warrant agent of the
Company at its office, the Holder shall be deemed to be the holder of record of
the number of Warrant Shares specified in such form; provided, however, that if
the date of such receipt by the Company or its agent is a date on which the
stock transfer books of the Company are closed, such person shall be deemed to
have become the record holder of such shares on, and such certificate shall be
dated, the next succeeding business day on which the stock transfer books of the
Company are open. The Company shall pay any and all documentary, stamp or
similar issue or transfer taxes payable in respect of the issue or delivery of
such Warrant Shares. Any new or substitute Warrant issued under this Section 1
shall be dated as of the date of this Warrant. Upon exercise of this Warrant in
accordance with this Section 1(a), the Company or its warrant agent shall
promptly cause to be issued and shall deliver upon written order of the Holder
of this Warrant, and in such name or names as such Holder may designate, a
certificate or certificates for the Warrant Shares, within five (5) business
days of such proper exercise and delivery of such written order (the "Required
Certificate Delivery Date"). If such certificate or certificates for the Warrant
Shares are not delivered to the Holder on or before the Required Certificate
Delivery Date, upon written notice to the Company by the Holder of such
non-delivery, the Company shall pay to the Holder, as liquidated damages for
such failure to timely deliver such certificate or certificates and not as a
penalty, one-half of a percent (0.5%) of the Exercise Price multiplied by the
number of Warrant Shares specified in the Purchase Form for which such
certificate or certificates were not timely delivered.
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(b) At any time during the Exercise Period, provided that both
(1) the Registration Statement to be filed by the Company pursuant to Section
7.1 of the Purchase Agreement is not effective at the time the Notice of
Exchange (as defined below) is delivered, and (2) the Warrant Shares specified
in the Notice of Exchange cannot, by reason of Rule 144(k) of the Commission
under the Securities Act or any other rule of similar effect, be sold by the
Purchasers in ordinary market transactions without registration and without
compliance with any volume limitations immediately after exercise of the
Warrant, then, unless acquired pursuant to a Cashless Exercise (as defined
below), the Holder may, at its option, exchange this Warrant, in whole or in
part (a "Cashless Exercise") into the number of Warrant Shares determined in
accordance with this Section (1)(b), by surrendering this Warrant at the
principal office of the Company or at the office of its warrant agent or
transfer agent, accompanied by a notice stating such Holder's intent to effect
such exchange, the number of Warrant Shares to be exchanged and the date on
which the Holder requests that such Cashless Exercise occur (the "Notice of
Exchange"). The Cashless Exercise shall take place on the date specified in the
Notice of Exchange or, if later, the date the Notice of Exchange is received by
the Company (the "Exchange Date"). Certificates for the shares issuable upon
such Cashless Exercise and, if applicable, a new warrant of like tenor
evidencing the balance of the shares remaining subject to this Warrant, shall be
issued as of the Exchange Date and delivered to the Holder within five (5)
business days following the Exchange Date. In connection with any Cashless
Exercise, this Warrant shall represent the right to subscribe for and acquire
the number of Warrant Shares (rounded to the next highest integer) equal to (i)
the number of Warrant Shares specified by the Holder in its Notice of Exchange
(the "Total Number") less (ii) the number of Warrant Shares equal to the amount
obtained by dividing (A) the product of the Total Number and the existing
Exercise Price by (B) the Fair Market Value. "Fair Market Value" shall mean: (1)
if the Common Stock is listed on a National Securities Exchange or admitted to
unlisted trading privileges on such exchange or listed for trading on the Nasdaq
system, the average of the last reported sale prices of the Common Stock on such
exchange or system for the twenty (20) business days ending on the last business
day prior to the date for which the determination is being made; or (2) if the
Common Stock is not so listed or admitted to unlisted trading privileges, the
average of the means of the last reported bid and asked prices reported by the
National Quotation Bureau, Inc. for the twenty (20) business days ending on the
last business day prior to the date for which the determination is being made;
or (3) if the Common Stock is not so listed or admitted to unlisted trading
privileges and bid and asked prices are not so reported, an amount, not less
than book value thereof as at the end of the most recent fiscal year of the
Company ending prior to the Exchange Date, determined in such reasonable manner
as may be prescribed by the Board of Directors of the Company.
2. Warrant Register. This Warrant will be registered in a register (the
"Warrant Register") to be maintained by the Company or its agent at its
principal office in the name of the recordholder to whom it has been
distributed. The Company may deem and treat the registered holder of this
Warrant as the absolute owner thereof (notwithstanding any notation of ownership
or other writing hereon made by anyone), for
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the purpose of any exercise thereof or any distribution to the holder thereof
and for all other purposes, and the Company shall not be affected by any notice
to the contrary.
3. Reservation of Shares. The Company hereby agrees that at all times
there shall be reserved for issuance and delivery upon exercise of this Warrant
all shares of its Common Stock or other shares of capital stock of the Company
from time to time issuable upon exercise of this Warrant. All such shares shall
be duly authorized and, when issued upon such exercise, shall be validly issued,
fully paid and nonassessable, free and clear of all liens, security interests,
charges and other encumbrances or restrictions on sale and free and clear of all
preemptive rights.
4. Exchange, Transfer or Assignment.
(a) Neither this Warrant nor the Warrant Shares have been
registered under the Securities Act or any state securities law and may not be
offered, sold, pledged, assigned or otherwise transferred in the absence of such
registration or unless such offer, sale, pledge, assignment or transfer is
exempt from any registration and prospectus delivery requirements of the
Securities Act and any applicable state securities laws.
(b) If, at the time of the surrender of this Warrant in
connection with any exercise, transfer, or exchange of this Warrant, this
Warrant (or, in the case of any exercise, the issuance of the Warrant Shares
hereunder), shall not be registered under the Securities Act of 1933, as amended
(the "Securities Act"), and under applicable state securities or blue sky laws,
the Company may require, as a condition of allowing such exercise, transfer, or
exchange, (i) that the Holder of this Warrant furnish to the Company a written
opinion of counsel, which opinion and counsel are acceptable to the Company, to
the effect that such exercise, transfer, or exchange may be made without
registration under said Act and under applicable state securities or blue sky
laws, (ii) that the Holder or transferee execute and deliver to the Company an
investment letter in form and substance acceptable to the Company and (iii) that
the Holder or transferee be an "accredited investor" as defined in Rule 501(a)
promulgated under the Securities Act.
(c) The Initial Holder of this Warrant (and certain assignees
thereof, as and to the extent provided in the Purchase Agreement) is entitled to
the benefit of such registration rights in respect of resale of the Warrant
Shares as are set forth in the Purchase Agreement.
(d) Except as otherwise permitted by this Section 4, this
Warrant and any Warrant issued upon direct or indirect transfer of or in
substitution for this Warrant or any part thereof shall be stamped or otherwise
imprinted with a legend substantially in the form of the legend with respect to
transfer limitations and compliance with the Securities Act at the head of this
Warrant.
(e) Except as otherwise permitted by this Section 4, each
certificate for a Warrant Share issued upon exercise of this Warrant or any
Warrant issued upon
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direct or indirect transfer of or in substitution for this Warrant or any part
thereof shall be stamped or otherwise imprinted with a legend in substantially
the following form:
The Shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or
under any applicable state securities laws and may not be
offered, sold, pledged or transferred in the absence of such
registration unless the Company receives an opinion of
counsel, in form, substance and scope reasonably acceptable to
the Company, that such offer, sale, pledge or transfer is
exempt from any registration and prospectus delivery
requirements of the Securities Act and such applicable state
securities laws.
and; subject to 4(f) below, each certificate issued upon direct or indirect
transfer of any such Warrant Share shall be stamped or otherwise imprinted with
a legend in substantially the following form:
The Shares represented by this certificate have not
been registered under the Securities Act of 1933, as amended,
or under any applicable state securities laws and may not be
offered, sold, pledged or transferred in the absence of such
registration unless the Company receives an opinion of
counsel, in form, substance and scope reasonably acceptable to
the Company, that such offer, sale, pledge or transfer is
exempt from any registration and prospectus delivery
requirements of the Securities Act and such applicable state
securities laws.
(f) The Company shall, at the request of any registered holder
of a Warrant Share, exchange the certificate representing such security for a
certificate representing the same security not bearing the restrictive legend
required by Section 4(e) if the Warrant Shares may be sold or transferred
pursuant to the provisions of Rule 144(k) and, in the opinion of counsel to the
Company, such restrictive legend is no longer necessary.
(g) Subject to the provisions of subsection (a), this Warrant
may be assigned, at the option of the Holder, upon surrender of this Warrant to
the Company or at the office of its warrant agent, with the Warrant Assignment
Form contained herein duly executed and accompanied by funds sufficient to pay
any transfer tax. The Company shall execute and deliver a new Warrant or
Warrants in the name of the assignee or assignees named in such instrument of
assignment and, if the Holder's entire interest in this Warrant is not being
transferred or assigned, in the name of the Holder, and this Warrant shall
promptly be cancelled.
(h) Apart from the payment of any transfer tax pursuant to (g)
above, any transfer or exchange of this Warrant shall be without charge to the
Holder. The term "Warrant", as used herein includes any Warrants into which this
Warrant may be divided or for which it may be exchanged or any new Warrant
issued pursuant to Section 1 hereof.
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5. Lost, Mutilated or Missing Warrant. Upon receipt by the Company of
evidence satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant, and (in the case of loss, theft or destruction) of satisfactory
indemnification, and upon surrender and cancellation of this Warrant, if
mutilated, the Company shall execute and deliver a new Warrant of like tenor and
date.
6. Rights of the Holder. The Holder shall not, by virtue hereof, be
entitled to any rights of stockholder in the Company, either at law or equity,
and the rights of the Holder are limited to those expressed in this Warrant.
7. Adjustments. The Exercise Price and the number of shares purchasable
hereunder are subject to adjustment from time to time as follows:
(a) Stock Dividend, Split or Subdivision of Shares. If the
number of shares of Common Stock outstanding at any time after the date hereof
is increased by a stock dividend payable to all holders of Common Stock in
shares of Common Stock or by a subdivision or split-up of shares of Common
Stock, then, following the record date fixed for the determination of holders of
Common Stock entitled to receive such stock dividend, subdivision or split-up,
the Exercise Price shall be appropriately decreased and the number of shares of
Common Stock issuable on exercise of each Warrant shall be increased in
proportion to such increase in outstanding shares.
(b) Combination of Shares. If, at any time after the date
hereof, the number of shares of Common Stock outstanding is decreased by a
combination or consolidation of the outstanding shares of Common Stock, by
reclassification, reverse stock split or otherwise, then, following the record
date for such combination, the Exercise Price shall be appropriately increased
and the number of shares of Common Stock issuable on exercise of each Warrant
shall be decreased in proportion to such decrease in outstanding shares.
(c) Calculations. All calculations under this Section 7 shall
be made to the nearest cent ($.01), or to the nearest one-tenth of a share, as
the case may be.
(d) Merger and Consolidation. If at any time there is a
capital reorganization or reclassification of shares of Common Stock or other
securities of the Company, or a merger or consolidation of the Company with or
into another corporation where the Company is not the surviving corporation, or
the sale of all or substantially all of the Company's properties and assets to
any other person, then as part of such reorganization, merger, consolidation or
sale, lawful provision shall be made so that the Holder shall thereafter be
entitled to receive upon exercise of its rights to purchase Common Stock, the
number of shares of Common Stock, cash, property or shares of the successor
corporation resulting from such merger or consolidation, to which a holder of
Common Stock, deliverable upon exercise of the rights to purchase Common Stock
hereunder, would have been entitled in such capital reorganization, merger or
consolidation or sale if the right to purchase such Common Stock hereunder had
been
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exercised immediately prior to such capital reorganization, merger,
consolidation or sale. In any such event, appropriate adjustment shall be made
in the application of the provisions of this Warrant with respect to the rights
and interests of the Holder after such capital reorganization, merger,
consolidation or sale so that the provisions of this Warrant (including Exercise
Price and the number of shares of Common Stock purchasable pursuant to the terms
and conditions of this Warrant) shall be applicable after that event as near as
reasonably may be, in relation to any shares deliverable upon the exercise of
the Holder's rights to purchase Common Stock pursuant to this Warrant.
(e) Certification as to Adjustments. Upon the occurrence of
each adjustment or readjustment pursuant to this Section 7, the Company, at its
own expense, shall promptly compute such adjustment or readjustment in
accordance with the terms hereof and furnish to each Holder a certificate
setting forth such adjustment or readjustment and showing in detail the facts
upon which such adjustment or readjustment is based. The Company shall, upon the
written request, at any time, of any such Holder, furnish or cause to be
furnished to such Holder a like certificate setting forth: (a) such adjustments
and readjustments; (b) the Exercise Price at the time in effect; and (c) the
number of shares and the amount, if any of other property that at the time would
be received upon the exercise of the Warrant.
8. Fractional Shares. No fractional shares of Common Stock or scrip
shall be issued to any Holder in connection with the exercise of this Warrant.
Instead of any fractional shares of Common Stock that would otherwise be
issuable to such Holder, the Company shall make a cash refund therefor equal in
amount to the product of the applicable fraction multiplied by the Exercise
Price paid by the Holder for one Warrant Share upon such exercise.
9. Listing on Securities Exchanges. The Company will list on the Nasdaq
National Market or any other trading market, on which any Common Stock may at
any time be listed, all shares of Common Stock from time to time issuable upon
the exercise of this Warrant, subject to official notice of issuance upon the
exercise of this Warrant, and will maintain such listing so long as any other
shares of its Common Stock are so listed; and the Company shall so list on the
Nasdaq National Market or any other trading market, and shall maintain such
listing of, any other shares of capital stock of the Company issuable upon the
exercise of this Warrant if and so long as any shares of capital stock of the
same class are listed on the Nasdaq National Market or any other trading market,
by the Company. Any such listing will be at the Company's expense.
10. Successors. All the provisions of this Warrant by or for the
benefit of the Company or the Holder shall bind and inure to the benefit of
their respective successors, assigns, heirs and personal representatives.
11. Headings. The headings of sections of this Warrant have been
inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions
hereof.
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12. Notices. Unless otherwise provided in this Warrant, all notices,
requests, consents and other communications hereunder shall be in writing, shall
be sent by a nationally recognized overnight express courier postage prepaid,
and shall be deemed given one day after being so sent, or if delivered by hand
shall be deemed given on the date of such delivery to such party or, if mailed,
shall be deemed given on the fifth day after the date of mailing, or if sent to
such party by certified or registered mail or air mail postage prepaid, shall be
deemed to be delivered upon receipt by the addressee, addressed to it (in the
case of a Holder) at its address in the Warrant Register that will be maintained
by the Company or its agent in accordance with Section 2 hereof or (in the case
of the Company) at its address set forth above, Attention: President and Chief
Executive Officer, or to such other address as is designated by written notice,
similarly given to the other party hereto.
13. GOVERNING LAW. THIS WARRANT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER THE LAWS OF THE STATE OF DELAWARE AND FOR ALL PURPOSES SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF SAID STATE AS APPLIED TO CONTRACTS MADE AND TO BE
PERFORMED IN DELAWARE BETWEEN DELAWARE RESIDENTS.
Capitalized terms used in this Warrant but not defined herein shall
have the meanings set forth in the Purchase Agreement.
IN WITNESS WHEREOF, the Company has duly caused this Warrant to be
signed and attested by its duly authorized officers and to be dated as of March
26, 2002.
CELL PATHWAYS, INC.
By: _______________________________
Robert J. Towarnicki
President and Chief Executive Officer
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PURCHASE FORM
Dated: ___________ __, 20__
The undersigned hereby irrevocably elects to exercise this Warrant to
purchase _________ Shares of Common Stock and hereby makes payment of
$____________ in payment of the exercise price thereof.
Signature: __________________
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WARRANT ASSIGNMENT FORM
FOR VALUE RECEIVED, ___________________________ hereby sells, assigns
and transfers to:
Name: ________________________________________ (the "Assignee")
[please type or print in block letters]
Address: ________________________________________________________________
its rights to purchase up to _____________ shares of Common Stock represented by
this Warrant and does hereby irrevocably constitute and appoint _______________,
Attorney, to transfer the same on the books of the Company, with full power of
substitution in the premises.
Dated: ____________ __, 20__
Signature: _______________
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