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EXHIBIT 4-G
Warrant No. ___-___
Warrant to Purchase 140,000 Shares
SHARE PURCHASE WARRANT
To Purchase Shares of Common Stock (par value $0.25)
of
UNIMED Pharmaceuticals, Inc.
(Delaware corporation)
Expires March 1, 2001
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Warrant No. ___-___
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
HEREOF MAY BE TRANSFERRED EXCEPT IN A TRANSACTION REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR WHICH IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THAT ACT.
VOID AFTER 5:00 P.M. NEW YORK TIME, ON March 1, 2001
UNIMED Pharmaceuticals, Inc.
Warrant to Purchase Shares of Common Stock
140,000 Shares
THIS CERTIFIES that, for good and valuable consideration received, Sunrise
Securities Corp. (the "Holder"), is entitled to subscribe for and purchase from
UNIMED Pharmaceuticals, Inc., a Delaware corporation (the "Company"), upon the
terms and conditions set forth herein, at any time or from time to time from
March 1, 1997 until 5:00 P.M. New York City time on March 1, 2001 (the
"Exercise Period"), all or any portion of 140,000 shares of common stock of the
Company, par value $0.25 per share ("Common Stock"), subject to adjustment as
provided herein (the "Warrant Shares"), at a price of $7.20 per share, subject
to adjustment as provided herein (the "Exercise Price"). This Warrant shall
not be redeemable by the Company. This Warrant may be sold, transferred,
assigned or hypothecated at any time and the term the "Holder" as used herein
shall include any transferee to whom this Warrant has been transferred.
1. Method of Exercise. This Warrant may be exercised at any time during
the Exercise Period, as to the whole or any lesser number of Warrant Shares, by
the surrender of this Warrant (with the election at the end hereof duly
executed) to the Company at its office at 2150 East Lake Cook Road, Buffalo
Grove, Illinois 60089-1862 or at such other place as may be designated in
writing by the Company, together with a certified or bank cashier's check
payable to the order of the Company in an amount equal to the Exercise Price
multiplied by the number of Warrant Shares for which this Warrant is being
exercised. In lieu of the payment of the Exercise Price, the Holder shall have
the right (but not the obligation), during the Exercise Period, to require the
Company to convert this Warrant, in whole or in part, into the Warrant Shares
as provided for in this Section (the "Conversion Right"). Upon exercise of the
Conversion Right, the Company shall deliver to the Holder (without payment by
the Holder of the Exercise Price) that number of shares of Common Stock equal
to (i) the number of Warrant Shares issuable upon exercise of the portion of
the Warrant being converted, multiplied by (ii) the quotient obtained by
dividing (x) the value of the Warrant (on a per Warrant Share basis) at the
time the Conversion Right is exercised (determined by subtracting the Exercise
Price from the
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Current Market Price (as determined pursuant to Section 5(e) below), for the
shares of Common Stock issuable upon exercise of the Warrant immediately prior
to the exercise of the Conversion Right) by (y) the Current Market Price of one
share of Common Stock immediately prior to the exercise of the Conversion
Right. The Conversion Rights provided under this Section may be exercised in
whole or in part and at any time and from time to time while any Warrants
remain outstanding. In order to exercise the Conversion Right, the Holder
shall surrender to the Company, at its offices, this Warrant accompanied by the
form of Subscription Agreement duly filled in and signed and a duly completed
Conversion Notice in the form attached hereto. The presentation and surrender
shall be deemed a waiver of the Holder's obligation to pay all or any portion
of the aggregate purchase price payable for the Warrant Shares being issued
upon such exercise of this Warrant. This Warrant (or so much thereof as shall
have been surrendered for conversion) shall be deemed to have been converted
immediately prior to the close of business on the day of surrender of this
Warrant for conversion in accordance with the foregoing provisions. As
promptly as practicable on or after the conversion date, the Company shall
issue and shall deliver to the Holder (i) a certificate or certificates
representing the largest number of whole Warrant Shares which the Holder shall
be entitled as a result of the conversion, and (ii) if such Warrant is being
converted in part only, a new Warrant exercisable for the number of Warrant
Shares equal to the unconverted portion of the Warrant. Upon any exercise
(which term, as used herein, shall include any exercise of the Conversion
Right) of this Warrant, in lieu of any fractional Warrant Shares to which the
Holder shall be entitled, the Company shall pay to the Holder cash in
accordance with the provisions of Section 5(d) hereof.
2. Issuance of Certificates. Upon each exercise of the Holder's rights to
purchase Warrant Shares, the Holder shall be deemed to be the holder of record
of the Warrant Shares issuable upon such exercise, notwithstanding that the
transfer books of the Company shall then be closed or certificates representing
such Warrant Shares shall not then have been actually delivered to the Holder.
As soon as practicable after each such exercise of this Warrant, the Company
shall issue and deliver to the Holder a certificate or certificates for the
Warrant Shares issuable upon such exercise, registered in the name of the
Holder or its designee. If this Warrant should be exercised in part only, upon
surrender of this Warrant for cancellation, the Company shall execute and
deliver a new Warrant evidencing the right of the Holder to purchase the
balance of the Warrant Shares (or portions thereof) subject to purchase
hereunder.
3. Recording of Transfer. Any warrants issued upon the transfer or
exercise in part of this Warrant shall be numbered and shall be registered in
an Warrant Register as they are issued. The Company shall be entitled to treat
the registered holder of any Warrant on the Warrant Register as the owner in
fact thereof for all purposes and shall not be bound to recognize any equitable
or other claim to or interest in such Warrant on the part of any other person,
and shall not be liable for any registration or transfer of Warrants which are
registered or to be registered in the name of a fiduciary or the nominee of a
fiduciary unless made with the actual knowledge that a fiduciary or
nominee is committing a breach of trust in requesting such registration or
transfer, or with the knowledge of such facts that its participation therein
amounts
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to bad faith. This Warrant shall be transferable only on the books of the
Company upon delivery thereof duly endorsed by the Holder or by his or its duly
authorized attorney or representative, or accompanied by proper evidence of
succession, assignment or authority to transfer. In all cases of transfer by
an attorney, executor, administrator, guardian or other legal representative,
duly authenticated evidence of his or its authority shall be produced. Upon
any registration of transfer, the Company shall deliver a new warrant or
warrants to the person entitled thereto. This Warrant may be exchanged, at the
option of the Holder hereof, for another warrant, or other warrants of
different denominations, of like tenor and representing in the aggregate the
right to purchase a like number of Warrant Shares (or portions thereof), upon
surrender to the Company or its duly authorized agent. Notwithstanding the
foregoing, the Company shall have no obligation to cause this Warrant to be
transferred on its books to any person if, in the written opinion of counsel to
the Company, such transfer does not comply with the provisions of the
Securities Act of 1933 (the "Act"), and the rules and regulations thereunder.
4. Reservation of Shares of Common Stock. The Company shall at all times
reserve and keep available out of its authorized and unissued shares of Common
Stock, solely for the purpose of providing for the exercise of the Warrants,
such number of shares of Common Stock as shall, from time to time, be
sufficient therefor. The Company covenants that all shares of Common Stock
issuable upon exercise of this Warrant, upon receipt by the Company of the full
payment therefor, shall be validly issued, fully paid, nonassessable and free
of preemptive rights.
5. Exercise Price Adjustments. Subject to the provisions of this Section
5, the Exercise Price in effect from time to time shall be subject to
adjustment, as follows:
(a) In case the Company shall at any time after the date hereof (i)
declare a dividend or make a distribution on the outstanding shares of Common
Stock payable in shares of its capital stock, (ii) subdivide the outstanding
shares of Common Stock, (iii) combine the outstanding shares of Common Stock
into a smaller number of shares of Common Stock, or (iv) issue any shares of
Common Stock by reclassification of shares of Common Stock (other than a change
in par value, or from par value to no par value, or from no par value to par
value, but including any such reclassification in connection with the
consolidation or merger of the Company with or into another corporation
(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing corporation)), then, in each
case, the Exercise Price in effect at the time of the record date of such
dividend or distribution or of the effective date of such subdivision,
combination, or reclassification shall be adjusted so that it shall equal the
price determined by multiplying the Exercise Price by a fraction, the numerator
of which shall be the number of shares of Common Stock outstanding immediately
prior to such action and the denominator of which shall be the number of shares
of Common Stock outstanding after giving effect to such action. Such
adjustment shall be made successively whenever any event listed above shall
occur.
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(b) In case the Company shall distribute to all holders of shares of
Common Stock (including any such distribution made to the stockholders of the
Company in connection with a consolidation or merger in which the Company is
the surviving or continuing corporation) evidences of its indebtedness, cash,
or assets (other than distributions and dividends payable in shares of Common
Stock), or rights, options, or warrants to subscribe for or purchase shares of
Common Stock or securities convertible into or exchangeable for shares of
Common Stock, then, in each case, the Exercise Price shall be adjusted by
multiplying the Exercise Price in effect immediately prior to the record date
for the determination of stockholders entitled to receive such distribution by
a fraction, the numerator of which shall be the Current Market Price (as
determined pursuant to Section 5(e) hereof) per share of Common Stock on such
record date, less the fair market value (as determined in good faith by the
board of directors of the Company, whose determination shall be conclusive
absent manifest error) of the portion of the evidences of indebtedness or
assets so to be distributed, or of such rights, options, or warrants or
convertible or exchangeable securities, or the amount of such cash, applicable
to one share of Common Stock, and the denominator of which shall be such
Current Market Price per share of Common Stock. Such adjustment shall become
effective at the close of business on such record date.
(c) Whenever there shall be an adjustment as provided in this Section 5,
the Company shall within 15 days thereafter cause written notice thereof to be
sent by registered mail, postage prepaid, to the Holder, at its address as it
shall appear in the Warrant Register, which notice shall be accompanied by an
officer's certificate setting forth the number of Warrant Shares issuable
hereunder and the Exercise Price thereof after such adjustment and setting
forth a brief statement of the facts requiring such adjustment and the
computation thereof, which officer's certificate shall be conclusive evidence
of the correctness of any such adjustment absent manifest error.
(d) The Company shall not be required to issue fractions of shares of
Common Stock or other shares of the Company upon the exercise of this Warrant.
If any fraction of a share of Common Stock would be issuable upon the exercise
of this Warrant (or specified portions thereof), the Company may issue a whole
share in lieu of such fraction or the Company may purchase such fraction for an
amount in cash equal to the same fraction of the Current Market Price of such
shares of Common Stock on the date of exercise of this Warrant.
(e) The Current Market Price per share of Common Stock on any date shall
be deemed to be the average of the daily closing prices for the thirty (30)
consecutive trading days immediately preceding the date in question. The
closing price for each day shall be the last reported sales price regular way
or, in case no such reported sale takes place on such day, the closing bid
price regular way, in either case on the principal national securities exchange
on which the Common Stock is listed or admitted to trading or, if the Common
Stock is not listed or admitted to trading on any national securities exchange,
the highest reported bid price for the Common Stock as furnished by the
National Association of Securities Dealers, Inc. through NASDAQ or a similar
organization if NASDAQ is no longer reporting such information. If on
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any such date the Common Stock is not listed or admitted to trading on any
national securities exchange and is not quoted by NASDAQ or any similar
organization, the fair value of a share of Common Stock on such date, as
determined in good faith by the Board of Directors of the Company, whose
determination shall be conclusive absent manifest error, shall be used.
(f) No adjustment in the Exercise Price shall be required if such
adjustment is less than $0.05; provided, however, that any adjustments which by
reason of this Section 5 are not required to be made shall be carried forward
and taken into account in any subsequent adjustment. All calculations under
this Section 5 shall be made to the nearest cent or to the nearest thousandth
of a share, as the case may be.
(g) Upon each adjustment of the Exercise Price as a result of the
calculations made in this Section 5, the Warrants shall thereafter evidence the
right to purchase, at the adjusted Exercise Price, that number of shares of
Common Stock (calculated to the nearest hundredth) obtained by dividing (i) the
product obtained by multiplying the number of shares of Common Stock
purchasable upon exercise of the Warrants prior to adjustment of the number of
shares of Common Stock by the Exercise Price in effect prior to adjustment of
the Exercise Price by (ii) the Exercise Price in effect after such adjustment
of the Exercise Price.
(h) Whenever the Exercise Price is adjusted as provided in this
Section 5, the Company will promptly obtain a certificate of a firm of
independent public accountants of recognized standing selected by the board of
directors of the Company (which may be the regular auditors of the Company)
setting forth the Exercise Price as so adjusted and a brief statement of the
facts accounting for such adjustment, and will make available a brief summary
thereof to the holder of this Warrant, at its address listed on the register
maintained for that purpose (which summary may be included in any notice of
adjustment required by Section 5(c) hereof).
6. (a) Consolidations and Mergers. In case of any consolidation with
or merger of the Company with or into another corporation (other than a merger
or consolidation in which the Company is the surviving or continuing
corporation and which does not result in any reclassification of the
outstanding shares of Common Stock or the conversion of such outstanding shares
of Common Stock into shares of other stock or other securities or property), or
in case of any sale, lease or conveyance to another corporation of the property
and assets of any nature of the Company as an entirety or substantially as an
entirety (such actions being hereinafter collectively referred to as
"Reorganizations"), there shall thereafter be deliverable upon exercise of this
Warrant (in lieu of the number of shares of Common Stock theretofore
deliverable) the kind and amount of shares of stock or other securities, cash
or other property which would otherwise have been deliverable to a holder of
the number of shares of Common Stock upon the exercise of this Warrant upon
such Reorganization if this Warrant had been exercised in full immediately
prior to such Reorganization. In case of any Reorganization, appropriate
adjustment, as determined in good faith by the Board of Directors of the
Company, shall be made in the application of the provisions herein set forth
with respect to the rights and
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interests of the Holder so that the provisions set forth herein shall
thereafter be applicable, as nearly as possible, in relation to any shares or
other property thereafter deliverable upon exercise of this Warrant. Any such
adjustment shall be made by and set forth in a supplemental agreement between
the Company, or any successor thereto, and the Holder and shall for all
purposes hereof conclusively be deemed to be an appropriate adjustment. The
Company shall not effect any such Reorganization unless upon or prior to the
consummation thereof the successor corporation, or if the Company shall be the
surviving corporation in any such Reorganization and is not the issuer of the
shares of stock or other securities or property to be delivered to holders of
shares of Common Stock outstanding at the effective time thereof, then such
issuer, shall assume by written instrument the obligation to deliver to the
Holder such shares of stock, securities, cash or other property as the Holder
shall be entitled to purchase in accordance with the foregoing provisions.
(b) In case of any reclassification or change of the shares of Common
Stock issuable upon exercise of this Warrant (other than a change in par value
or from no par value to a specified par value, or as a result of a subdivision
or combination, but including any change in the shares into two or more classes
or series of shares), or in case of any consolidation or merger of another
corporation into the Company in which the Company is the continuing corporation
and in which there is a reclassification or change (including a change to the
right to receive cash or other property) of the shares of Common Stock (other
than a change in par value, or from no par value to a specified par value, or
as a result of a subdivision or combination, but including any change in the
shares into two or more classes or series of shares), the Holder shall have
the right thereafter to receive upon exercise of this Warrant solely the kind
and amount of shares of stock and other securities, property, cash or any
combination thereof receivable upon such reclassification, change,
consolidation or merger by a holder of the number of shares of Common Stock for
which this Warrant might have been exercised immediately prior to such
reclassification, change, consolidation or merger. Thereafter, appropriate
provision shall be made for adjustments which shall be as nearly equivalent as
practicable to the adjustments in Section 5.
(c) The above provisions of this Section 6 shall similarly apply to
successive reclassifications and changes of shares of Common Stock and to
successive consolidations, mergers, sales, leases, or conveyances.
7. Notice of Certain Events. In case at any time any of the following
occur:
(a) The Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company; or
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(b) The Company shall offer to all the holders of its shares of Common
Stock any additional shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the Company, or
any option, right or warrant to subscribe therefor; or
(c) The Company shall take any action to effect any reclassification
or change of outstanding shares of Common Stock or any consolidation, merger,
sale, lease or conveyance of property, described in Section 6; or
(d) The Company shall take any action to effect any liquidation,
dissolution or winding-up of the Company or a sale of all or substantially all
of its property, assets and business;
then, and in any one or more of such cases, the Company shall give written
notice thereof, by registered mail, postage prepaid, to the Holder at the
Holder's address as it shall appear in the Warrant Register, mailed at least
fifteen (15) days prior to (i) the date as of which the holders of record of
shares of Common Stock to be entitled to receive any such dividend,
distribution, rights, warrants or other securities are to be determined, (ii)
the date on which any such offer to holders of shares of Common Stock is made,
or (iii) the date on which any such reclassification, change of outstanding
shares of Common Stock, consolidation, merger, sale, lease, conveyance of
property, liquidation, dissolution or winding-up is expected to become
effective and the date as of which it is expected that holders of record of
shares of Common Stock shall be entitled to exchange their shares for
securities or other property, if any, deliverable upon such reclassification,
change of outstanding shares, consolidation, merger, sale, lease, conveyance of
property, liquidation, dissolution or winding-up.
8. Registration Rights. (a) If, at any time during the five-year period
commencing on the date hereof the Company shall file a registration statement
(other than on Form S-4, Form S-8, or any successor form) with the Securities
and Exchange Commission (the "Commission") while any Warrants or Warrant Shares
are outstanding, the Company shall give all of the then holders of any Warrants
(the "Eligible Holders") at least 45 days' prior written notice of the filing
of such registration statement. If requested by any Eligible Holder in writing
within 30 days after receipt of any such notice, the Company shall, at the
Company's sole expense (other than the fees and disbursements of counsel for
the Eligible Holders and the underwriting discounts, if any, payable in respect
of the Warrant Shares sold by any Eligible Holder), register or qualify all or,
at each Eligible Holder's option, any portion of the Warrant Shares and/or of
the Warrants of any Eligible Holders who shall have made such request,
concurrently with the registration of such other securities, all to the extent
requisite to permit the public offering and sale of the Warrant Shares
and/or the Warrants through the facilities of all appropriate securities
exchanges and the over-the-counter market, as applicable, and will use its best
efforts through its officers, directors, auditors, and counsel to cause such
registration statement to become effective as promptly as practicable.
Notwithstanding the foregoing, if the
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managing underwriter of any such offering shall advise the Company in writing
that, in its opinion, the distribution of all or a portion of the Warrant
Shares and/or the Warrants requested to be included in the registration
concurrently with the securities being registered by the Company would
materially adversely affect the distribution of such securities by the Company
for its own account, then any Eligible Holder who shall have requested
registration of his or its Warrant Shares and/or the Warrants shall delay the
offering and sale of such securities (or the portions thereof so designated by
such managing underwriter) for such period, not to exceed 90 days, as the
managing underwriter shall request (the "Delay Period"); provided that if any
securities of the Company are included in such registration statement and are
eligible for sale during the Delay Period for the account of any person other
than the Company, a pro rata portion of the securities which were requested to
be included and eligible for sale during the Delay Period shall also be
included in such registration statement and shall be eligible for sale during
the Delay Period. Any provision herein to the contrary notwithstanding, the
rights of the Eligible Holders to have their Shares included in registration
statements filed by others are subject to the rights of the John N. Kapoor
Trust (the "Kapoor Trust") and Laboratoires Besins Iscovesco ("Besins"), which
rights may limit the rights of the holders of Registrable Securities hereunder.
(b) If, on any two occasions during the five-year period commencing on the
date hereof, the Company shall receive a written request from Eligible Holders
who in the aggregate own (or upon exercise of all Warrants then outstanding
would own) a majority of the total number of shares of Common Stock then
included (or upon such exercises would be included) in the Warrant Shares (the
"Majority Holders"), to register the sale of all or part of the Warrant Shares
and/or of the Warrants, the Company shall, as promptly as practicable, prepare
and file with the Commission a registration statement sufficient to permit the
public offering and sale of the Warrant Shares and the Warrants (whether
covered by such request from the Majority Holders or by any other written
request from any Eligible Holder received within 30 days after such Eligible
Holder's receipt of the Company's notice, as described in the last sentence of
this Section 8(b)) through the facilities of all appropriate securities
exchanges and the over-the-counter market, and will use its best efforts
through its officers, directors, auditors, and counsel to cause such
registration statement to become effective as promptly as practicable;
provided, that the Company shall only be obligated to file one such
registration statement for which all expenses incurred in connection with such
registration (other than the fees and disbursements of counsel for the Eligible
Holders and underwriting discounts, if any, payable in respect of the Warrant
Shares and the Warrants sold by the Eligible Holders) shall be borne by the
Company. Within three business days after receiving any request contemplated
by this Section 8(b), the Company shall give written notice to all the other
Eligible Holders, advising each of them that the Company is proceeding with
such registration and offering to include therein all or any portion of any
such other Eligible Holder's Warrant Shares and/or, the Warrants, provided that
the Company receives a written request to do so from such Eligible Holder
within 30 days after receipt by him or it of the Company's notice. The Company
shall not be required to file any registration statement under this
Section 8(b) within six (6) months of the effective date of any
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registration statement covering an underwritten public offering which was not
withdrawn or abandoned, except with the prior consent of the Kapoor Trust.
(c) Notwithstanding anything herein to the contrary, in addition to the
registration rights under Sections 8(a) and 8(b) above, the Eligible Holder
shall be entitled to the same registration rights and all other rights and
benefits as the purchasers of securities of the Company are entitled to
pursuant to the Registration Rights Agreement, dated February 29, 1996, among
the purchasers described therein and the Company; provided, however, that in
the event that such registration rights shall conflict, the rights of such
purchasers shall rank prior to those of the Eligible Holder.
(d) In the event of a registration pursuant to the provisions of this
Section 8, the Company shall use its best efforts to cause the Warrants and/or
the Warrant Shares so registered to be registered or qualified for sale under
the securities or blue sky laws of such jurisdictions as the Holder or such
holders may reasonably request; provided, however, that the Company shall not
be required to qualify to do business in any state by reason of this Section
8(d) in which it is not otherwise required to qualify to do business or
otherwise subject itself to general service of process in any such state.
(e) The Company shall keep effective any registration or qualification
contemplated by this Section 8 and shall from time to time amend or supplement
each applicable registration statement, preliminary prospectus, final
prospectus, application, document and communication for such period of time as
shall be required to permit the Eligible Holders to complete the offer and sale
of the Warrants and/or the Warrant Shares covered thereby. The Company shall
in no event be required to keep any such registration or qualification in
effect for a period in excess of nine months from the date on which the
Eligible Holders are first free to sell such Warrants and/or Warrant Shares;
provided, however, that, if the Company is required to keep any such
registration or qualification in effect with respect to securities other than
the Warrants and/or the Warrant Shares beyond such period, the Company shall
keep such registration or qualification in effect as it relates to the Warrants
and/or the Warrant Shares for so long as such registration or qualification
remains or is required to remain in effect in respect of such other securities.
(f) In the event of a registration pursuant to the provisions of this
Section 8, the Company shall furnish to each Eligible Holder such number of
copies of the registration statement and of each amendment and supplement
thereto (in each case, including all exhibits), such reasonable number of
copies of each prospectus contained in such registration statement and each
supplement or amendment thereto (including each preliminary prospectus), all of
which shall conform to the requirements of the Act and the rules and
regulations thereunder, and such other documents, as any Eligible
Holder may reasonably request to facilitate the disposition of the Warrants
and/or the Warrant Shares included in such registration.
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(g) In the event of a registration pursuant to the provisions of this
Section 8, the Company shall furnish each Eligible Holder of any Warrants
and/or Warrant Shares so registered with an opinion of its counsel (reasonably
acceptable to the Eligible Holders) to the effect that (i) the registration
statement has become effective under the Act and no order suspending the
effectiveness of the registration statement, preventing or suspending the use
of the registration statement, any preliminary prospectus, any final prospectus
or any amendment or supplement thereto has been issued, nor has the Commission
or any securities or blue sky authority of any jurisdiction instituted or
threatened to institute any proceedings with respect to such an order, (ii) the
registration statement and each prospectus forming a part thereof (including
each preliminary prospectus), and any amendment or supplement thereto, complies
as to form with the Act and the rules and regulations thereunder, and (iii)
such counsel has no knowledge of any material misstatement or omission in such
registration statement or any prospectus, as amended or supplemented.
(h) In the event of a registration pursuant to the provision of this
Section 8, the Company shall enter into a cross-indemnity agreement and a
contribution agreement, each in customary form, with each underwriter, if any,
and, if requested, enter into an underwriting agreement containing conventional
representations, warranties, allocation of expenses and customary closing
conditions, including, without limitation, opinions of counsel and accountants'
cold comfort letters, with any underwriter who acquires any Warrants and/or
Warrant Shares.
(i) The Company agrees that until all the Warrants and/or the Warrant
Shares have been sold under a registration statement or pursuant to Rule 144
under the Act, it shall, so long as it is so required by applicable law, timely
file all reports, statements and other materials required to be filed with the
Commission to permit holders of the Warrants and/or the Warrant Shares to sell
such securities under Rule 144.
(j) The Company will not, without the written consent of the Majority
Holders, which such consent shall not be unreasonably withheld, grant to any
persons the right to request the Company to register any securities of the
Company, provided that the Company may grant such registration rights to other
persons so long as such rights are subordinate to the rights of the Eligible
Holders.
(k) Subject to the conditions set forth below, the Company agrees to
indemnify and hold harmless each Eligible Holder, its officers, directors,
partners, employees, agents and counsel, and each person, if any, who controls
any such person within the meaning of Section 15 of the Act or Section 20(a) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), from and
against any and all loss, liability, charge, claim, damage and expense
whatsoever (which shall include, for all purposes of this Section 8, without
limitation, reasonable attorneys' fees and any and all expense
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), as and when incurred,
arising out
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of, based upon, or in connection with (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in any registration
statement, preliminary prospectus or final prospectus (as from time to time
amended and supplemented), or any amendment or supplement thereto, relating to
the sale of any of the Warrants and/or the Warrant Shares, or (B) in any
application or other document or communication (in this Section 8 collectively
called an "application") executed by or on behalf of the Company or based upon
written information furnished by or on behalf of the Company filed in any
jurisdiction in order to register or qualify any of the Warrants and/or the
Warrant Shares under the securities or blue sky laws thereof or filed with the
Commission or any securities exchange; or any omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, unless such statement or omission was made
in reliance upon and in conformity with written information furnished to the
Company with respect to such Eligible Holder by or on behalf of such person
expressly for inclusion in any registration statement, preliminary prospectus,
or final prospectus, or any amendment or supplement thereto, or in any
application, as the case may be, or (ii) any breach of any representation,
warranty, covenant or agreement of the Company contained in this Warrant. The
foregoing agreement to indemnify shall be in addition to any liability the
Company may otherwise have, including liabilities arising under this Warrant.
If any action is brought against any Eligible Holder or any of its
officers, directors, partners, employees, agents or counsel, or any controlling
persons of such person (an "indemnified party") in respect of which indemnity
may be sought against the Company pursuant to the foregoing paragraph, such
indemnified party or parties shall promptly notify the Company in writing of
the institution of such action (but the failure so to notify shall not relieve
the Company from any liability other than pursuant to this Section 8(k) and
shall not relieve the Company from any liability pursuant to this Section 8(k)
except to the extent the Company has been prejudiced in any material respect by
such failure) and the Company shall promptly assume the defense of such action,
including the employment of counsel (reasonably satisfactory to such
indemnified party or parties) and payment of expenses. Such indemnified party
or parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless the employment of such counsel shall have
been authorized in writing by the Company in connection with the defense of
such action or the Company shall not have promptly employed counsel reasonably
satisfactory to such indemnified party or parties to have charge of the defense
of such action or such indemnified party or parties shall have reasonably
concluded that there may be one or more legal defenses available to it or them
or to other indemnified parties which are different from or additional to those
available to the Company, in any of which events such fees and expenses shall
be borne by the Company, and the Company shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties. Anything
in this Section 8 to the contrary notwithstanding, the Company shall not be
liable for any settlement of any such claim or action effected without its
written consent, which shall not be unreasonably withheld. The Company
shall not, without the prior written consent (which shall not be unreasonably
withheld) of each indemnified party that is not released as described in this
sentence, settle or compromise any
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action, or permit a default or consent to the entry of judgment in or otherwise
seek to terminate any pending or threatened action, in respect of which
indemnity may be sought hereunder (whether or not any indemnified party is a
party thereto), unless such settlement, compromise, consent or termination
includes an unconditional release of each indemnified party from all liability
in respect of such action. The Company agrees promptly to notify the Eligible
Holders of the commencement of any litigation or proceedings against the
Company or any of its officers or directors in connection with the sale of any
Warrants and/or Warrant Shares or any preliminary prospectus, prospectus,
registration statement or amendment or supplement thereto, or any application
relating to any sale of any Warrants and/or Warrant Shares.
(l) Each of the Holder and any Eligible Holder severally agrees to
indemnify and hold harmless the Company, each director of the Company, each
officer of the Company who shall have signed any registration statement
covering Warrants and/or Warrant Shares held by the Holder and any Eligible
Holder, each other person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act, and its or their
respective counsel, to the same extent as the foregoing indemnity from the
Company to the Holder in Section 8(k), but only with respect to statements or
omissions, if any, made in any registration statement or final prospectus, or
any amendment or supplement thereto, or in any application, in reliance upon
and in conformity with written information furnished to the Company with
respect to the Holder by or on behalf of the Holder or with respect to any
Eligible Holder or by or on behalf of such Eligible Holder expressly for
inclusion in any such registration statement or final prospectus, or any
amendment or supplement thereto, or in any application, as the case may be;
provided, however, that the Holder and each Eligible Holder shall be liable
only for written information furnished to the Company by it or on its own
behalf for inclusion in a registration statement; and provided, further, that
no Eligible Holder shall be liable in an amount greater than the net proceeds
received by such Eligible Holder in connection with the applicable
registration. If any action shall be brought against the Company or any other
person so indemnified based on any such registration statement or final
prospectus, or any amendment or supplement thereto, or in any application, and
in respect of which indemnity may be sought against the Holder pursuant to this
Section 8(l), the Holder and each Eligible Holder, as the case may be, shall
have the rights and duties given to the Company, and the Company and each other
person so indemnified shall have the rights and duties given to the indemnified
parties, by the provisions of Section 8(k).
(m) To provide for just and equitable contribution, if (i) an indemnified
party makes a claim for indemnification pursuant to Section 8(k) or 8(l)
(subject to the limitations thereof) but it is found in a final judicial
determination, not subject to further appeal, that such indemnification may not
be enforced in such case, even though this Agreement expressly provides for
indemnification in such case, or (ii) any indemnified or indemnifying party
seeks contribution under the Act, the Exchange Act or otherwise, then the
Company (including for this purpose any contribution made by or on behalf of
any director of the Company, any officer of the Company who signed any
such registration statement, any controlling person of the Company, and its or
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their respective counsel), as one entity, and the Eligible Holders of the
Warrant Shares included in such registration in the aggregate (including for
this purpose any contribution made by or on behalf of an indemnified party), as
a second entity, shall contribute to the losses, liabilities, claims, damages
and expenses whatsoever to which any of them may be subject, on the basis of
relevant equitable considerations such as the relative fault of the Company and
such Eligible Holders in connection with the facts which resulted in such
losses, liabilities, claims, damages and expenses. The relative fault, in the
case of an untrue statement, alleged untrue statement, omission or alleged
omission, shall be determined by, among other things, whether such statement,
alleged statement, omission or alleged omission relates to information supplied
by the Company or by such Eligible Holders, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement, alleged statement, omission or alleged omission. The Company and
the Holder agree that it would be unjust and inequitable if the respective
obligations of the Company and the Eligible Holders for contribution were
determined by pro rata or per capita allocation of the aggregate losses,
liabilities, claims, damages and expenses (even if the Holder and the other
indemnified parties were treated as one entity for such purpose) or by any
other method of allocation that does not reflect the equitable considerations
referred to in this Section 8(m). In no case shall any Eligible Holder be
responsible for a portion of the contribution obligation imposed on all
Eligible Holders in excess of its pro rata share based on the number of shares
of Common Stock owned (or which would be owned upon exercise of all Warrants)
by it and included in such registration as compared to the number of shares of
Common Stock owned (or which would be owned upon exercise of all Warrants) by
all Eligible Holders and included in such registration nor shall any Eligible
Holder be responsible for an amount greater than the net proceeds received by
such Eligible Holder in connection with the applicable registration. No person
guilty of a fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who is not guilty
of such fraudulent misrepresentation. For purposes of this Section 8(m), each
person, if any, who controls any Eligible Holder within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act and each officer, director,
partner, employee, agent and counsel of each such Eligible Holder or control
person shall have the same rights to contribution as such Eligible Holder or
control person and each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, each
officer of the Company who shall have signed any such registration statement,
each director of the Company and its or their respective counsel shall have the
same rights to contribution as the Company, subject in each case to the
provisions of this Section 8(m). Anything in this Section 8(m) to the contrary
notwithstanding, no party shall be liable for contribution with respect to the
settlement of any claim or action effected without its written consent. This
Section 8(m) is intended to supersede any right to contribution under the Act,
the Exchange Act or otherwise.
9. Taxes. The issuance of any shares or other securities upon the
exercise of this Warrant and the delivery of certificates or other instruments
representing such shares or other securities shall be made without
charge to the Holder for any tax or other charge in respect of such issuance.
The Company shall not, however, be required to pay any tax which may be
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payable in respect of any transfer involved in the issue and delivery of any
certificate in a name other than that of the Holder (except for any tax that is
payable in respect of any such transfer and any related exercise of this
Warrant and that would be payable pursuant to the first sentence of this
Section 9 were such certificate to be issued in the name of the Holder) and the
Company shall not be required to issue or deliver any such certificate unless
and until the person or persons requesting the issue thereof shall have paid to
the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
10. Legend. Unless registered pursuant to the provisions of Section 8
hereof, the certificate or certificates evidencing the Warrant Shares, shall
bear the following legend:
"THE SHARES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR STATE SECURITIES
LAWS. SUCH SHARES MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO (i) A REGISTRATION
STATEMENT UNDER SUCH ACT, OR (ii) AN EXEMPTION
FROM REGISTRATION UNDER SUCH ACT."
11. Replacement of Warrants. Upon receipt of evidence satisfactory to the
Company of the loss, theft, destruction or mutilation of any Warrant (and upon
surrender of any Warrant if mutilated), and upon reimbursement of the Company's
reasonable incidental expenses, the Company shall execute and deliver to the
Holder thereof a new Warrant of like date, tenor and denomination.
12. No Rights as Stockholder. The Holder of any Warrant shall not have,
solely on account of such status, any rights of a stockholder of the Company,
either at law or in equity, or to any notice of meetings of stockholders or of
any other proceedings of the Company, except as provided in this Warrant.
13. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly made when
delivered, or mailed by registered or certified mail, return receipt requested:
(a) If to the registered Holder of this Warrant, to the address of such
Holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth on the first page of this
Warrant, Attention: Chief Financial Officer or to such other address as the
Company may designate by notice to the Holder.
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14. Successors. All the covenants, agreements, representations and
warranties contained in this Warrant shall bind the parties hereto and their
respective heirs, executors, administrators, distributees, successors and
assigns.
15. Headings. The Article and Section headings in this Warrant are
inserted for purposes of convenience only and shall have no substantive effect.
16. Governing Law. This Warrant shall be construed in accordance with the
laws of the State of New York applicable to contracts made and performed within
such State, without regard to principles of conflicts of law.
17. Modification of Agreement. This Warrant shall not otherwise be
modified, supplemented or amended in any respect unless such modification,
supplement or amendment is in writing and signed by the Company and the Holder
of this Warrant and Holders of any portion of the Warrant subsequently assigned
or transferred in accordance with the terms of this Warrant.
18. Consent to Jurisdiction. The Company and the Holder irrevocably
consent to the jurisdiction of the courts of the State of New York and of any
federal court located in such State in connection with any action or proceeding
arising out of or relating to this Warrant, any document or instrument
delivered pursuant to, in connection with or simultaneously with this Warrant,
or a breach of this Warrant or any such document or instrument. In any such
action or proceeding, the Company waives personal service of any summons,
complaint or other process and agrees that service thereof may be made in
accordance with Section 13 hereof. Within 30 days after such service, or such
other time as may be mutually agreed upon in writing by the attorneys for the
parties to such action or proceeding, the Company shall appear to answer such
summons, complaint, or other process. Should the Company so served fail to
appear or answer within such 30-day period or such extended period, as the case
may be, the Company shall be deemed in default and judgment may be entered
against the Company for the amount as demanded in any summons, complaint, or
other process so served.
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IN WITNESS WHEREOF, the undersigned has executed this instrument as of the
date set forth below.
Dated: February 29, 1996
UNIMED PHARMACEUTICALS, INC.
By:
Name: ________________
Title: _______________
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FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to
transfer the attached Warrant.)
FOR VALUE RECEIVED, _______________________ hereby sells, assigns, and
transfers unto _________________, having an address at
______________________________ _______________________, the attached Warrant to
the extent of the right to purchase ____________ shares of Common Stock of
$0.25 par value per share, of UNIMED Pharmaceuticals, Inc. (the "Company"),
together with all right, title, and interest therein, and does hereby
irrevocably constitute and appoint _________________ as attorney to transfer
such Warrant on the books of the Company, with full power of substitution.
Dated: _______________, 199_
_____________________________
Print name of holder of Warrant
By:
Name:
Title:
NOTICE
The signature on the foregoing Assignment must correspond to the name as
written upon the face of this Warrant in every particular, without alteration
or enlargement or any change whatsoever.
19
To:
The undersigned hereby exercises its rights to purchase _________ Warrant
Shares covered by the within Warrant and tenders payment herewith in the amount
of $_____________ in accordance with the terms thereof, and requests that
certificates for such securities be issued in the name of, and delivered to:
(Print Name, Address and Social Security
or Tax Identification Number)
and, if such number of Warrant Shares shall not be all the Warrant Shares
covered by the within Warrant, that a new Warrant for the balance of the
Warrant Shares covered by the within Warrant be registered in the name of, and
delivered to, the undersigned at the address stated below.
Dated: _________________________ Name:____________________________
(Print)
______________________________
(Signature)
(Signature must conform to the
name of the Warrant Holder
specified on the face of the
Warrant)
Address: