WARRANT NO. 1
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THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN ACQUIRED
BY THE HOLDER SOLELY FOR ITS OWN ACCOUNT FOR THE PURPOSE OF INVESTMENT AND NOT
WITH A VIEW TO OR FOR SALE IN CONNECTION WITH ANY DISTRIBUTION OF ANY THEREOF.
NEITHER THIS WARRANT NOR SUCH SECURITIES HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED ("ACT"), OR STATE SECURITIES LAWS AND MAY NOT
BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED OR ENCUMBERED EXCEPT IN
COMPLIANCE WITH THE TERMS AND CONDITIONS HEREOF.
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WARRANT
to
Purchase
250,000 shares of
COMMON STOCK
of
ALGOS PHARMACEUTICAL CORPORATION
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This certifies that, for value received and in reliance upon, and
subject to, the agreements and representations contained herein, including,
without limitation, in Article V hereof, BIOTECH TARGET S.A. (the "HOLDER,"
which term shall also include any transferee who acquires this Warrant in
accordance with the terms of Article III hereof) is entitled to purchase from
Algos Pharmaceutical Corporation, a Delaware corporation (the "COMPANY"), during
the period specified in Section 1.1, at a purchase price of $25.00 per share
(the "EXERCISE PRICE") Two Hundred and Fifty Thousand (250,000) fully paid and
non-assessable shares (the "WARRANT SHARES") of the Company's Common Stock, par
value $.0l per share (the "COMMON STOCK"), upon and subject to the terms and
conditions set forth in this Warrant. The Exercise Price and the number of
Warrant Shares purchasable upon exercise of this Warrant are subject to
adjustment from time to time as provided in Article II.
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ARTICLE I.
EXERCISE OF WARRANTS
1.1. Exercise Period. Subject to the provisions of Article III of this
Warrant, this Warrant may be exercised after November 9, 1999. Unless exercised,
this Warrant shall automatically expire at 5:00 p.m. New York, New York time on
November 9, 2003 (the "EXPIRATION DATE").
1.2. Method of Exercise. Subject to the provisions of Article III of
this Warrant, to exercise this Warrant in whole or in part, the Holder shall
deliver to the Company at the address specified in Section 8.9 hereof: (i) a
written notice, substantially in the form of the Exercise Notice appearing at
the end of this Warrant, of its election to exercise this Warrant, which notice
shall specify the number of shares of Common Stock to be purchased, (ii) a
certified or official bank check payable to the order of the Company in an
amount equal to the aggregate Exercise Price of the number of shares of Common
Stock being purchased, as adjusted as provided in Article II hereof, and (iii)
this Warrant. The Company shall as promptly as practicable, and in any event
within 20 days after receipt by the Company of such notice, execute and deliver
or cause to be executed and delivered, in accordance with said notice, a
certificate or certificates representing the aggregate number of shares of
Common Stock, specified in such notice, issued in the name of the Holder. Such
certificate or certificates shall be deemed to have been issued to the Holder,
and the Holder shall be deemed for all purposes to have become a holder of
record of such shares as of the date notice and payment is received by the
Company. If this Warrant shall have been exercised only in part, the Company
shall at the time of delivery of said certificate or certificates deliver to the
Holder a new Warrant evidencing the right of the Holder to purchase the
remaining Warrant Shares, which new warrant shall in all other respects be
identical to this Warrant or, at the request of the Holder, appropriate notation
shall be made on this Warrant and the same returned to the Holder.
1.3. Warrant Shares Fully Paid. All Warrant Shares issued upon the
exercise of this Warrant shall be validly issued, fully paid and non-assessable.
ARTICLE II.
DISTRIBUTIONS, REORGANIZATIONS, CONVERSION AND MERGERS
2.1. Merger, Sale of Assets, etc. If at any time while this Warrant, or
any portion thereof, is outstanding and unexpired there shall be (a) a
reorganization of the Company (other than a combination, reclassification,
exchange or subdivision of shares otherwise provided for herein), (b) a merger
or consolidation of the Company with or into another corporation in which the
Company is not the surviving entity, or a reverse triangular merger in which the
Company is the surviving entity but the shares of the Company's capital stock
outstanding immediately prior to the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash or
otherwise, or (c) a sale or transfer of the Company's properties and assets as,
or substantially as, an entirety to any other person, then the Company shall
provide the Holder
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with not less than thirty (30) days, prior written notice of such event and an
opportunity to exercise this Warrant prior to the consummation of such event, so
that, as a part of such reorganization, merger, consolidation, sale or transfer,
the Holder shall be entitled to receive upon exercise of this Warrant the number
of shares of stock or other securities or property of the successor corporation
resulting from such reorganization, merger, consolidation, sale or transfer that
a holder of shares deliverable upon exercise of this Warrant would have been
entitled to receive in such reorganization, consolidation, merger, sale or
transfer. If the Holder does not exercise this Warrant prior to or
simultaneously with any such reorganization, consolidation, merger, sale,
transfer or other disposition, this Warrant shall be canceled. The Company shall
not effect any such consolidation, merger, sale, transfer or other disposition
unless prior to or simultaneously with the consummation thereof the successor
corporation (if other than the Company) resulting from such consolidation or
merger, or the corporation purchasing or otherwise acquiring such assets or
other appropriate corporation or entity shall agree to deliver to the Holder
upon its exercise and payment of the Exercise Price then in effect, such shares
of stock, securities or assets, as, in accordance with the foregoing provisions,
such Holder would be entitled to purchase.
2.2. Reclassification, etc. If the Company, at any time while this
Warrant, or any portion thereof, remains outstanding and unexpired, by
reclassification of securities or otherwise, shall change any of the securities
as to which purchase rights under this Warrant exist into the same or a
different number of securities or any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities that were subject to the purchase rights under this Warrant
immediately prior to such reclassification or other change and the Exercise
Price therefore shall be appropriately adjusted, all subject to further
adjustment as provided in this Section 2.
2.3. Split, Subdivision or Combination of Shares. If the Company at any
time while this Warrant, or any portion thereof, remains outstanding and
unexpired shall split, subdivide or combine the securities as to which purchase
rights under this Warrant exist, into a different number of securities of the
same class, the Exercise Price for such securities shall be proportionately
decreased in the case of a split or subdivision or proportionately increased in
the case of a combination.
2.4. Adjustments for Dividends in Stock or Other Securities or Property.
If while this Warrant, or any portion thereof, remains outstanding and unexpired
the holders of the securities as to which purchase rights under this Warrant
exist at the time shall have received, or, on or after the record date fixed for
the determination of eligible Stockholders, shall have become entitled to
receive, without payment therefore, other or additional stock or other
securities or property (other than cash) of the Company by way of dividend, then
and in each case, this Warrant shall represent the right to acquire, in addition
to the number of shares of the security receivable upon exercise of this
Warrant, and without payment of any additional consideration therefore, the
amount of such other or additional stock or other securities or property (other
than cash) of the Company that such Holder would hold on the date of such
exercise had it been the holder of record of the security receivable upon
exercise of this Warrant on the date hereof and
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had thereafter, during the period from the date hereof to and including the date
of such exercise, retained such shares and/or all other additional stock
available by it as aforesaid during such period, giving effect to all
adjustments called for during such period by the provisions of this Section 2.
2.5. Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment pursuant to this Section 2, the Company at its
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 written request, at
any time, of 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 that time would be received upon the
exercise of the Warrant.
2.6. No Impairment. The Company will not, by any voluntary action, avoid
or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all the provisions of this Section 2 and in
the taking of all such action as may be necessary or appropriate in order to
protect the rights of the Holder against impairment.
2.7. Notifications by the Company. If any time prior to the expiration
of this Warrant:
(i) an event described under Section 2.2, 2.3 or 2.4 occurs; or
(ii) there is a voluntary or involuntary dissolution, liquidation
or winding-up of the Company;
the Company shall give notice of such action to the Holder and, if applicable,
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 the date on which such
conversion, dissolution, liquidation or winding-up shall take place, as the case
may be. Such notice shall also specify the date as of which the holders of the
Company's capital stock of record shall participate in such dividend or
distribution, or shall be entitled to exchange their capital stock or securities
or other property deliverable upon such conversion, dissolution, liquidation or
winding-up, as the case may be. Such notice shall be given not less than 20 days
prior to the action in question and not less than 10 days prior to the record
date or the date on which the Company's transfer books are closed in respect
thereto. The notice required pursuant to this Section 2.7 is in addition to any
other notice the Company is required to provide pursuant to Sections 2.1 and 2.5
hereof.
2.8. Successive Application. The foregoing provisions of this Article II
shall similarly apply to successive reclassifications, capital reorganizations
and changes of shares of the Company's capital stock, and to successive
consolidations, mergers and sales.
2.9. Basis for Adjustments. Any adjustment effected pursuant to this
Article II shall be made on the basis of the number of Warrant Shares which the
Holder would have been
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entitled to acquire by exercise of this warrant immediately prior to the event
giving rise to the adjustment, and to the Exercise Price hereunder, per share,
on the basis of the respective Exercise Price in effect immediately prior to the
event giving rise to the adjustment. Promptly upon the occurrence of each
adjustment hereunder, the President or a Vice President of the Company shall
give written notice thereof to the Holder, which notice shall state the Exercise
Price resulting from such adjustment and the increase or decrease, if any, in
the number of Warrant Shares purchasable upon the exercise of this Warrant,
setting forth in reasonable detail the method of calculation and the facts upon
which such calculation is based.
ARTICLE III.
RESTRICTIONS ON EXERCISE AND TRANSFER
3.1. Restrictions on Exercise and Transfer. Notwithstanding any
provisions contained in this Warrant to the contrary, this Warrant shall not be
exercisable or transferable, in whole or in part, and the related Warrant Shares
shall not be transferable except with either the prior written consent of the
Company or upon satisfaction of the conditions specified in Section 3.2, which
conditions are intended, among other things, to insure compliance with the
provisions of the Act in respect of the exercise or transfer of this Warrant or
transfer of the Warrant Shares.
3.2. Conditions of Exercise and Transfer. The Holder, by its acceptance
hereof, agrees that it will not, directly or indirectly, offer, transfer, sell,
pledge, hypothecate or otherwise dispose of this Warrant, in whole or in part,
or any Warrant Shares (or solicit any offers to buy, purchase or otherwise
acquire or take a pledge of this Warrant, in whole or in part, or any of the
Warrant Shares) or exercise this Warrant, in whole or in part, except in
compliance with the Act, and the rules and regulations thereunder, and state
securities laws. If this Warrant (or any portion thereof) or any of the Warrant
Shares are offered, sold, transferred, pledged, hypothecated or otherwise
disposed of or exercised in accordance with an exemption from the registration
requirements of the Act, the Holder shall deliver to the Company (and to the
transfer agent with respect to the Company's Common Stock if so requested by the
Company) prior to the time of such offer, sale, transfer, pledge or other
disposition or exercise such documentation (including, without limitation,
opinions of counsel) as the Company may request in connection therewith.
3.3. Non-Recognition of Prohibited Transfers. Any transfer or attempt to
transfer this Warrant, in whole or in part, and/or any of the Warrant Shares
otherwise than in accordance with the terms and conditions of this Warrant
Agreement, or to a person younger than 18 years of age, shall be void and shall
not be binding upon the Company, and the purported transferee thereof shall not
be deemed to be the holder of such Warrants and/or Warrant Shares, nor entitled
to any of the rights of a holder thereof. The Company may refuse the transfer of
any Warrant and/or Warrant Shares on its books or records attempted to be made
in violation of this Agreement.
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ARTICLE IV.
CERTAIN COVENANTS OF THE COMPANY
4.1. Reservation of Shares. The Company covenants and agrees that it
will reserve and set apart and have at all times, free from preemptive rights, a
number of shares of Common Stock deliverable upon the exercise of this Warrant
sufficient to enable it at any time to fulfill its obligations under this
Warrant.
4.2. Binding Effect. This Warrant shall be binding upon any corporation
succeeding to the Company by merger, consolidation or acquisition of all or
substantially all of the Company's assets.
ARTICLE V.
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
5.1. Investment Intention. The Purchaser represents and warrants that it
is purchasing this Warrant and the Warrant Shares solely for its own account for
the purpose of investment and not with a view to or for sale in connection with
any distribution of any thereof.
5.2. Ability to Bear Risk. The Purchaser represents and warrants that
(a) its financial situation is such that it can afford to bear the economic risk
of holding the unregistered Warrant and Warrant Shares for an indefinite period
and (b) it can afford to suffer the complete loss of its investment in the
Warrant and Warrant Shares.
5.3. Access to Information; Evaluation of Risks. The Purchaser
represents and warrants that (a) it is an accredited investor, as the term is
defined in Regulation D under the Act, and that it understands and has taken
cognizance of all the risk factors related to the purchase of this Warrant and
the Warrant Shares, (b) it has received and carefully reviewed the Company's
Annual Report on Form 10-K for the year ended December 31, 1997 (the "ANNUAL
REPORT"), the Company's Quarterly Reports on Form 10-Q for the periods ended
March 31, 1998 and June 30, 1998 (the "QUARTERLY REPORTS") and the Company's
press releases dated August 19, 1998, September 14, 1998, September 24, 1998 and
October 20, 1998 (the "PRESS RELEASES") and has been granted the opportunity to
ask questions of, and receive answers from, representatives of the Company
concerning the terms and conditions of the purchase of the Warrants and to
obtain any additional information which it deems necessary to make an informed
investment decision with respect to the purchase of the Warrant and to verify
the accuracy of the information contained in the Annual Report, the Quarterly
Reports and the Press Releases and (c) its knowledge and experience in financial
and business matter is such that it is capable of evaluating the risks of the
investment in this Warrant and the Warrant Shares.
5.4. Federal Securities Laws Matters. The Purchaser represents that it
is familiar with Release No. 5226 issued by the Securities and Exchange
Commission (the "COMMISSION") under the Act, it has consulted with its counsel
with regard thereto, and it is fully aware of the position of the Commission
limiting the resale to the public of this Warrant or any of the Warrant Shares
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or any part thereof.
ARTICLE VI.
REGISTRATION RIGHTS
6.1. On or prior to November 9, 1999, the Company shall prepare and
cause to be filed with the Commission pursuant to Rule 415 under the Act a shelf
registration statement on the appropriate form relating to the offer and sale by
the Company of the Warrant Shares to the Holder upon exercise of this Warrant
and resales of the Warrant Shares by the Holder (the "REGISTRATION STATEMENT").
The Purchaser agrees to fully cooperate with the Company in connection with the
preparation and filing of the Registration Statement, including, without
limitation, by providing the Company with such information about the Purchaser
for inclusion in the Registration Statement as may be required by the Act, and
the Company's obligations under this Article VI shall be contingent upon the
Purchaser complying with its obligations set forth in this sentence.
6.2. The Company shall use its reasonable best efforts to cause such
Registration Statement to be declared effective by the Commission as promptly as
practicable following the filing thereof.
6.3. The Company shall use its reasonable best efforts to keep the
Registration Statement continuously effective under the Act until the Expiration
Date or such shorter period as will terminate on the earlier of (a) the date
when all the Warrants covered by the Registration Statement have been exercised
and (b) the date on which the Purchaser and its affiliates no longer own any of
the Warrants. Notwithstanding the foregoing, the Company shall not be required
to keep the Registration Statement effective in the event that (i) an event
occurs and is continuing as a result of which the Registration Statement, any
related prospectus or any document incorporated therein by reference as then
amended or supplemented would, in the Company's good faith judgment, contain an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (ii)(A) the Company determines in its
good faith judgment that the disclosure of such event at such time would have an
adverse effect on the business, operations or prospects of the Company or (B)
the disclosure otherwise relates to a material business transaction which has
not yet been publicly disclosed; which period shall not exceed an aggregate of
60 days in any twelve-month period. The Purchaser agrees to give the Company at
least one Business Day notice of its intent to exercise this Warrant and receive
Warrant Shares under the Registration Statement so that the Company can confirm
that no event mentioned in the preceding sentence has occurred and that the
Registration Statement is available for such use. The term "BUSINESS DAY" as
used herein means each Monday, Tuesday, Wednesday, Thursday and Friday that is
not a day on which banking institutions in New York are generally authorized or
obligated by law or executive order to close.
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ARTICLE VII.
INDEMNITY
7.1. The Company agrees to indemnify and hold harmless the Holder, its
directors, officers and each person, if any, who controls the Holder (within the
meaning of Section 15 of the Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT")), from and against any and all losses,
claims, damages, liabilities, judgments, (including without limitation, any
legal or other expenses incurred in connection with investigating or defending
any matter, including any action that could give rise to any such losses,
claims, damages, liabilities or judgments) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement, preliminary prospectus or Prospectus (or any amendment or supplement
thereto) provided by the Company to the Holder or any prospective purchaser of
registered Warrant Shares, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by (i) an untrue statement or
omission or alleged untrue statement or omission that is based upon information
relating to the Holder furnished in writing to the Company by or on behalf of
the Holder or (ii) an untrue statement or omission or alleged untrue statement
or omission that is corrected in any subsequent Registration Statement,
preliminary prospectus or Prospectus (or any amendment or supplement thereto)
that was delivered to the Holder by the Company.
7.2. The Holder agrees to indemnify and hold harmless the Company and
its directors and officers, and each person, if any, who controls (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) the Company,
to the same extent as the foregoing indemnity from the Company set forth in
section 7.1 above, but only with reference to information relating to the Holder
furnished in writing to the Company by or on behalf of the Holder expressly for
use in any Registration Statement, insofar as such losses, claims, damages,
liabilities or judgments are caused by an untrue statement or omission or
alleged untrue statement or omission that was corrected in writing by the Holder
and delivered to the Company for use in the Registration Statement at issue
prior to the date of such Registration Statement.
7.3. In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 7.1 or 7.2 (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PERSON") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 7.1 and 7.2, the Holder shall not be required to assume the
defense of such action pursuant to this Section 7.3, but may employ separate
counsel and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of the Holder).
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the
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expense of the indemnified party unless (i) the employment of such counsel shall
have been specifically authorized in writing by the indemnifying party or (ii)
the indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party. In any such
case, the indemnifying party shall not, in connection with any one action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) for all indemnified parties and all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by the Holder, in the case of the parties indemnified pursuant to
Section 7.1, and by the Company, in the case of parties indemnified pursuant to
Section 7.2. The indemnifying party shall indemnify and hold harmless the
indemnified party from and against any and all losses, claims, damages,
liabilities and judgments by reason of any settlement of any action (i) effected
with its written consent or (ii) effected without its written consent if the
settlement is entered into more than twenty business days after the indemnifying
party shall have received a request from the indemnified party for reimbursement
for the fees and expenses of counsel (in any case where such fees and expenses
are at the expense of the indemnifying party) and, prior to the date of such
settlement, the indemnifying party shall have failed to comply with such
reimbursement request. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or threatened
action in respect of which the indemnified party is or could have been a party
and indemnity or contribution may be or could have been sought hereunder by the
indemnified party, unless such settlement, compromise or judgment (i) includes
an unconditional release of the indemnified party from all liability on claims
that are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
ARTICLE VIII.
MISCELLANEOUS
8.1. Entire Agreement. This Warrant constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof.
8.2. Binding Effects; Benefits. This Warrant shall inure to the benefit
of and shall be binding upon the Company and the Holder and their respective
heirs, legal representatives, successors and permitted assigns. Nothing in this
Warrant, expressed or implied, is intended to or shall confer on any person
other than the Company and the Holder, or their respective legal
representatives, successors or permitted assigns, any rights, remedies,
obligations or liabilities under or by reason of this Warrant.
8.3. Amendments and Waivers. This Warrant may not be modified or amended
except by an instrument or instruments in writing signed by the party against
whom enforcement of any such modification or amendment is sought. Either party
hereto may, by an instrument in writing, waive compliance by the other party
with any term or provision of this Warrant on the part of such other party
hereto to be performed or complied with. The waiver by any party hereto of a
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breach of any term or provision of this Warrant shall not be construed as a
waiver of any subsequent breach.
8.4. Assignment. Neither this Warrant nor any rights, remedy, obligation
or liability arising hereunder or by reason hereof shall be assignable by the
Holder, except in compliance with the provisions of Article III.
8.5. Section and Other Headings. The Article, Section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
8.6. Limitations of Liability; Not Stockholders. No provision of this
Warrant shall be construed as conferring upon the Holder the right to vote,
consent, receive dividends or receive notice other than as expressly provided
herein in respect of meetings of stockholders for the election of directors of
the Company or any other matter whatsoever as a stockholder of the Company. No
provision hereof, in the absence of affirmative action by the Holder to purchase
Warrant Shares, and no mere enumeration herein of the rights or privileges of
the Holder, shall give rise to any liability of the Holder for the purchase
price of any Warrant Shares or as a stockholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
8.7. Loss, Destruction, Etc. of Warrants. Upon receipt of evidence
satisfactory to the Company of the loss, theft, mutilation or destruction of
this Warrant and, in the case of any such loss, theft or destruction upon
delivery of a bond of indemnity in such form and amount as shall be reasonably
satisfactory to the Company, or in the event of such mutilation upon surrender
and cancellation of the Warrant, the Company will make and deliver a new
Warrant, of like tenor, in lieu of such lost, stolen, destroyed or mutilated
Warrant. Any Warrant issued under the provisions of this Section 8.7 in lieu of
any Warrant alleged to be lost, destroyed or stolen, or in lieu of any mutilated
Warrant, shall constitute an original contractual obligation on the part of the
Company.
8.8. Law Governing. This Warrant shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York without regard to
its conflicts of law principles.
8.9. Notices. All notices and other communications required or permitted
to be given under this Warrant shall be in writing and shall be deemed to have
been duly given if delivered personally or sent by United States mail, postage
prepaid, to the parties hereto at the following addresses or to such other
address as any party hereto shall hereafter specify by notice to the other party
hereto:
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if to the Company, to:
Algos Pharmaceutical Corporation
1333 Campus Parkway
Neptune, New Jersey 07753
Attention: President and Chief Executive Officer
with a copy to:
Algos Pharmaceutical Corporation
1333 Campus Parkway
Neptune, New Jersey 07753
Attention: General Counsel
and
Latham & Watkins
885 Third Avenue
New York, New York 10022
Attention: Raymond Y. Lin
if to the Holder:
Biotech Target S.A.
Swiss Bank Tower
Panama 1
Republic of Panama
with a copy to:
Baker & McKenzie
815 Connecticut Avenue, N.W.
Washington, D.C. 20006-4078
Attention: Thomas J. Egan, Jr.
Except as otherwise provided herein, all such notices and communications shall
be deemed to have been received when delivered personally, on the date of
delivery thereof, or when mailed, on the fifth business day after the mailing
thereof.
8.10. Separability. Any term or provision of this Warrant which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Warrant or affecting the validity or enforceability of any of the terms or
provisions of this Warrant in any other jurisdiction.
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8.11. Fractional Shares. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Holder an amount in cash equal to such fraction
multiplied by the then applicable Exercise Price of a share of Common Stock as
of the date of such exercise.
8.12. Counterparts. This Warrant may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the parties hereto has signed, or caused
this Warrant to be signed by its duly authorized officer, as of November 9,
1998.
ALGOS PHARMACEUTICAL CORPORATION
By: /s/ W. Bradford Middlekauff
---------------------------------
BIOTECH TARGET S.A.
By: /s/ A. Hove
---------------------------------
A. Hove
Title: Signatory Authority
BIOTECH TARGET S.A.
By: /s/ A. Bremer
---------------------------------
A. Bremer
Title: Signatory Authority
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EXERCISE NOTICE
(To be executed upon exercise of this Warrant)
ALGOS PHARMACEUTICAL CORPORATION
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant, to purchase ________ shares of Common Stock covered
by this Warrant and herewith tenders payment for such Warrant Shares by
certified or official bank check payable to the order of ALGOS PHARMACEUTICAL
CORPORATION in the amount of $_____________ in accordance with the terms of this
Warrant. The undersigned requests that (a) a certificate for such Warrant Shares
be registered in the name of __________________* and that such certificates be
delivered to __________________________________whose address is
___________________________________ and (b) if such shares do not include all of
the shares issuable as provided in this Warrant, that a new Warrant of like
tenor and date for the balance of the Warrant Shares issuable hereunder be
delivered to ___________________________.*
Date______________________ Signature_______________________
Social Security Number__________
Address_________________________
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* Either the Holder or a transferee approved in accordance with Article III of
this Warrant.
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