Exhibit 4
FORM OF WARRANT
WARRANT
TO PURCHASE SHARES OF COMMON STOCK
OF
BIOMARIN PHARMACEUTICAL INC.
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF COMMON STOCK
ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AND NEITHER THESE WARRANTS NOR ANY INTEREST THEREIN MAY
BE TRANSFERRED, HYPOTHECATED OR OTHERWISE DISPOSED OF WITHOUT REGISTRATION UNDER
THAT ACT OR AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
No. _______ Warrant to Purchase _______ Shares
May 16, 2001 of Common Stock, $0.001 Per Share
WARRANT TO PURCHASE COMMON STOCK
of
BIOMARIN PHARMACEUTICAL INC.,
a Delaware corporation
Void after the date set forth in the first paragraph hereof
This certifies that, for value received, ______________, or registered
assigns ("Holder") is entitled, subject to the terms set forth below, to
purchase from BioMarin Pharmaceutical Inc., a Delaware corporation (the
"Company"), ______ shares of Common Stock, $0.001 par value, of the Company
(such class of stock being referred to herein as "Common Stock"), as constituted
on May 16, 2001 (the "Issue Date"), upon surrender of this Warrant, at the
principal office of the Company referred to below, with the subscription form
attached hereto duly executed, and simultaneous payment therefor in the
consideration specified in Section 1 hereof, at the price of $13.10 per share
(the "Purchase Price"). This Warrant must be exercised, if at all, prior to the
earlier to occur of (i) the third anniversary of the Issue Date or (ii) the date
of consummation of the acquisition of the Company (including, without
limitation, any reorganization, merger or consolidation) that results in the
stockholders of the Company immediately prior to such consummation date owning
less than 50% of the voting power of the surviving entity or the date of
consummation of the sale of all or substantially all of the assets of the
Company or the date of dissolution or liquidation of the Company (each a "Change
of Control Transaction"). The shares of Common Stock issued or issuable upon
exercise of this Warrant are sometimes referred to as the "Warrant Shares." The
term "Warrants" as used herein shall include this Warrant and any warrants
delivered in substitution or exchange therefor as provided herein.
9. Exercise. This Warrant may be exercised at any time or from time to
time, on any business day, for all or part of the full number of Warrant Shares
during the period of time described above, by surrendering it at the principal
office of the Company, 371 Bel Marin Keys Blvd., Suite 210, Novato, California
94949, with the subscription form in the form attached hereto duly executed,
together with payment for the Warrant Shares to be purchased, payable in cash,
cashier's check and/or wire transfer of immediately available funds. No other
form of consideration shall be acceptable for the exercise of this Warrant. A
Warrant shall be deemed to have been exercised immediately prior to the close of
business on the date of its surrender for exercise together with delivery of
payment therefor as provided above, and the person entitled to receive the
shares of Common Stock issuable upon such exercise shall be treated for all
purposes as the record holder of such shares as of the close of business on such
date. As soon as practicable on or after such date, and in any event within 10
days thereof, the Company shall issue and deliver to the person or persons
entitled to receive the same a certificate or certificates for the number of
shares of Common Stock issuable upon such exercise. Upon any partial exercise,
the Company will issue and deliver to Holder a new Warrant with respect to the
Warrant Shares not previously purchased. No fractional shares of Common Stock
shall be issued upon exercise of a Warrant. In lieu of any fractional share to
which Holder would be entitled upon exercise, the Company shall pay cash equal
to the product of such fraction multiplied by the then current fair market value
of one share of Common Stock, as determined in good faith by the Company.
10. Payment of Taxes. All shares of Common Stock issued upon the exercise
of a Warrant shall be duly authorized, validly issued and outstanding, fully
paid and non-assessable. Holder shall pay all taxes and other governmental
charges that may be imposed in respect of the issue or delivery thereof and any
tax or other charge imposed in connection with any transfer involved in the
issue of any certificate for shares of Common Stock in any name other than that
of the registered Holder of the Warrant surrendered in connection with the
purchase of such shares, and in such case the Company shall not be required to
issue or deliver any stock certificate until such tax or other charge has been
paid or it has been established to the Company's satisfaction that no tax or
other charge is due.
11. Transfer and Exchange. Subject to the restrictions set forth in Section
8.1(d), this Warrant and all rights hereunder are transferable, in whole but not
in part, only with the prior approval of the Company, which consent shall not be
unreasonably withheld. If such a proposed transfer is so approved, this Warrant
is transferable on the books of the Company maintained for such purpose at its
principal office referred to above by Holder in person or by duly authorized
attorney, upon surrender of this Warrant properly endorsed and upon payment of
any necessary transfer tax or other governmental charge imposed upon such
transfer. Each taker and holder of this Warrant, by taking or holding the same,
consents and agrees that this Warrant, when endorsed in blank, shall be deemed
negotiable and that when this Warrant shall have been so endorsed, the Holder
hereof may be treated by the Company and all other persons dealing with this
Warrant as the absolute owner hereof for any purpose and as the person entitled
to exercise the rights represented hereby or to the transfer hereof on the books
of the Company, any notice to the contrary notwithstanding; but until such
transfer on such books, the Company may treat the registered Holder hereof as
the owner for all purposes.
12. Certain Adjustments.
12.1 Adjustment for Reorganization, Consolidation, Merger. Other than in
any case a Change of Control Transaction, in case of any reclassification of the
Common Stock, or other securities issuable upon exercise of this Warrant, or in
case of any reorganization of the Company (or, in each case, any other
corporation, the stock or other securities of which are at the time receivable
on the exercise of this Warrant) after the Issue Date, or in case, after such
date, the Company (or any such other corporation) shall consolidate with or
merge into another corporation, then and in each such case Holder, upon the
exercise hereof as provided in Section 1 at any time after the consummation of
such reorganization, consolidation, merger or conveyance, shall be entitled to
receive, in lieu of the stock receivable upon the exercise of this Warrant prior
to such consummation, the stock or other securities or property to which such
Holder would have been entitled upon such consummation if such Holder had
exercised this Warrant immediately prior thereto.
12.2 Adjustments for Dividends in Common Stock. If the Company at any time
or from time to time after the Issue Date makes, or fixes a record date for the
determination of holders of Common Stock entitled to receive, a dividend payable
in additional shares of Common Stock, then and in each such event the Purchase
Price then in effect shall be decreased as of the time of such issuance or, in
the event such record date is fixed, as of the close of business on such record
date, by multiplying the Purchase Price then in effect by a fraction (1) the
numerator of which is the total number of shares of Common Stock issued and
outstanding immediately prior to the time of such issuance or the close of
business on such record date, and (2) the denominator of which shall be the
total number of shares of Common Stock issued and outstanding immediately prior
to the time of such issuance or the close of business on such record date plus
the number of shares of Common Stock issuable in payment of such dividend;
provided, however, that if such record date is fixed and such dividend is not
fully paid on the date fixed therefore, the Purchase Price shall be recomputed
accordingly as of the close of business on such record date and thereafter the
Purchase Price shall be adjusted pursuant to this Section 4.2 as of the time of
actual payment of such dividends.
12.3 Stock Split and Reverse Stock Split. If the Company at any time or
from time to time after the Issue Date effects a subdivision of the outstanding
Common Stock, the Purchase Price then in effect immediately before that
subdivision shall be proportionately decreased and the number of shares of
Common Stock theretofore receivable upon the exercise of this Warrant shall be
proportionately increased. If the Company at any time or from time to time after
the Issue Date combines the outstanding shares of Common Stock into a smaller
number of shares, the Purchase Price then in effect immediately before that
combination shall be proportionately increased and the number of shares of
Common Stock theretofore receivable upon the exercise of this Warrant shall be
proportionately decreased. Each adjustment under this Section 4.3 shall become
effective at the close of business on the date the subdivision or combination
becomes effective.
12.4 Accountants' Certificate as to Adjustment. In each case of an
adjustment in the Purchase Price or shares of Common Stock receivable on the
exercise of the Warrants, the Company at its expense shall cause independent
public accountants of recognized standing selected by the Company (who may be
the independent public accountants then auditing the books of the Company) to
compute such adjustment in accordance with the terms of this Warrant and prepare
a certificate setting forth such adjustment and showing the facts upon which
such adjustment is based. Any such certificate as prepared by the independent
public accountants shall, upon delivery to the Holder, be conclusive evidence of
the accuracy of such adjustment.
13. Loss or Mutilation. Upon receipt by the Company of evidence
satisfactory to it (in the exercise of reasonable discretion) of the ownership
of and the loss, theft, destruction or mutilation of any Warrant and (in the
case of loss, theft or destruction) of indemnity satisfactory to it (in the
exercise of reasonable discretion), and (in the case of mutilation) upon
surrender and cancellation thereof, the Company will execute and deliver in lieu
thereof a new Warrant of like tenor.
14. Reservation of Common Stock. The Company shall at all times reserve and
keep available out of its authorized but unissued shares of Common Stock, solely
for the purpose of effecting the exercise of the Warrant, such number of its
shares of Common Stock as shall from time to time be sufficient to effect
exercise of the Warrant; and if at any time the number of authorized but
unissued shares of Common Stock shall not be sufficient to effect such exercise,
the Company will take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of Common
Stock to such number of shares as shall be sufficient for such purpose.
15. Notices of Record Date. In the event of (i) any taking by the Company
of a record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend or
other distribution, or (ii) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company, any
merger or consolidation of the Company with or into any other corporation (other
than a merger of a wholly owned subsidiary into the Company), or any transfer of
all or substantially all of the assets of the Company to any other person or any
voluntary or involuntary dissolution, liquidation or winding up of the Company,
the Company shall provide to the Holder, at least ten (10) days prior to the
record date specified therein, a notice specifying (1) the date on which any
such record is to be taken for the purpose of such dividend or distribution and
a description of such dividend or distribution, (2) the date on which any such
reorganization, reclassification, transfer, consolidation, merger, dissolution,
liquidation or winding up is expected to become effective, and (3) the date, if
any, that is to be fixed, as to when the holders of record of Common Stock (or
other securities) shall be entitled to exchange their shares of Common Stock (or
other securities) for securities or other property deliverable upon such
reorganization, reclassification, transfer, consolidation, merger, dissolution,
liquidation or winding up.
16. Investment Representation and Restriction on Transfer.
16.1 Securities Law Requirements.
(a) By its acceptance of this Warrant, Holder hereby represents and
warrants to the Company that this Warrant and the Warrant Shares will be
acquired for investment for its own account, not as a nominee or agent, and not
with a view to the sale or distribution of any part thereof, and that it has no
present intention of selling, granting participations in or otherwise
distributing the same. By acceptance of this Warrant, Holder further represents
and warrants that it does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations to any
person, with respect to this Warrant or the Warrant Shares.
(b) By its acceptance of this Warrant, Holder understands that this Warrant
is not, and the Warrant Shares will not be, registered under the Securities Act
of 1933, as amended (the "Act"), on the basis that the issuance of this Warrant
and the Warrant Shares are exempt from registration under the Act pursuant to
Section 4(2) thereof, and that the Company's reliance on such exemption is
predicated on Holder's representations and warranties set forth herein.
(c) By its acceptance of this Warrant, Holder understands that the Warrant
and the Warrant Shares may not be sold, transferred, or otherwise disposed of
without registration under the Act, or an exemption therefrom, and that in the
absence of an effective registration statement covering the Warrant and the
Warrant Shares or an available exemption from registration under the Act, the
Warrant and the Warrant Shares must be held indefinitely. In particular, Holder
is aware that the Warrant and the Warrant Shares may not be sold pursuant to
Rule 144 promulgated under the Act unless all of the conditions of Rule 144 are
satisfied. Among the conditions for use of Rule 144 are the availability of
current information about the Company to the public, prescribed holding periods
which will commence only upon Holder's payment for the securities being sold,
manner of sale restrictions, volume limitations and certain other restrictions.
By its acceptance of this Warrant, Holder represents and warrants that, in the
absence of an effective registration statement covering the Warrant or the
Warrant Shares, it will sell, transfer or otherwise dispose of the Warrant and
the Warrant Shares only in a manner consistent with its representations and
warranties set forth herein and then only in accordance with the provisions of
Section 8.1(d).
(d) By its acceptance of this Warrant, Holder agrees that in no event will
it transfer or dispose of any of the Warrants or the Warrant Shares other than
pursuant to an effective registration statement under the Act, unless and until
(i) Holder shall have notified the Company of the proposed disposition and shall
have furnished the Company with a statement of the circumstances surrounding the
disposition, and (ii) if requested by the Company, at the expense of the Holder
or transferee, it shall have furnished to the Company an opinion of counsel,
reasonably satisfactory to the Company, to the effect that (A) such transfer may
be made without registration under the Act and (B) such transfer or disposition
will not cause the termination or the non-applicability of any exemption to the
registration and prospectus delivery requirements of the Act or to the
qualification or registration requirements of the securities laws of any other
jurisdiction on which the Company relied in issuing the Warrant or the Warrant
Shares.
16.2 Legends; Stop Transfer.
(a) All certificates evidencing the Warrant Shares shall bear a legend in
substantially the following form:
The securities represented by this certificate have not been
registered under the Securities Act of 1933. These securities
have been acquired for investment and not with a view to
distribution and may not be offered for sale, sold, pledged or
otherwise transferred in the absence of an effective
registration statement for such securities under the
Securities Act of 1933 or an opinion of counsel reasonably
satisfactory in form and content to the issuer that such
registration is not required under such Act.
(b) The certificates evidencing the Warrant Shares shall also bear any
legend required by any applicable state securities law.
(c) In addition, the Company shall make, or cause its transfer agent to
make, a notation regarding the transfer restrictions of the Warrant and the
Warrant Shares in its stock books, and the Warrant and the Warrant Shares shall
be transferred on the books of the Company only if transferred or sold pursuant
to an effective registration statement under the Act covering the same or
pursuant to and in compliance with the provisions of Section 3 and Section
8.1(d).
17. Notices. All notices and other communications from the Company to the
Holder of this Warrant shall be mailed by first-class registered or certified
mail, postage prepaid, to the address furnished to the Company by Holder and
shall be deemed received five (5) business days after mailing.
18. Change; Waiver. Neither this Warrant nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
19. Headings. The headings in this Warrant are for purposes of convenience
in reference only, and shall not be deemed to constitute a part hereof.
[Reminder of Page Intentionally Blank]
20. Governing Law. This Warrant is delivered in California and shall be
construed and enforced in accordance with and governed by the internal laws, and
not the law of conflicts, of such State; provided however, that to the extent
that an issue of determination is one of corporation law, then the Delaware
General Corporation Law shall govern.
BIOMARIN PHARMACEUTICAL INC.,
a Delaware corporation
By: /s/ Raymond W. Anderson
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Raymond W. Anderson, Chief Operating Officer
SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant)
The undersigned, registered owner of this Warrant, irrevocably exercises
this Warrant and purchases ____________ of the number of shares of Common Stock,
$0.001 par value, of BioMarin Pharmaceutical Inc., a Delaware corporation,
purchasable with this Warrant, and herewith makes payment therefor, all at the
price and on the terms and conditions specified in this Warrant.
DATED: ______________
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(Signature of Registered Owner)
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(Street Address)
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(City) (State) (Zip)
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned, registered owner of this Warrant,
hereby sells, assigns and transfers unto the Assignee named below all of the
rights of the undersigned under the within Warrant, with respect to the number
of shares of Common Stock, $0.001 par value, set forth below:
Name of Assignee Address No. of Shares
and does hereby irrevocably constitute and appoint
_________________________ _________________________________________________
Attorney to make such transfer on the books of BioMarin Pharmaceutical Inc., a
Delaware corporation, maintained for the purpose, with full power of
substitution in the premises.
DATED: ___________________
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(Signature)
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(Witness)
Schedule of Warrant Holders
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Warrant Holder Number of Warrants
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BayStar Capital LP 21,164
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BayStar International Ltd. 10,582
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equityfourlife (Bahamas) Ltd. 95,238
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Perceptive Life Sciences Fund LP 15,873
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MPM BioEquities Master Fund LP 63,492
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Pequot Scout Fund L.P. 20,635
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Pequot Navigator Offshore Fund, Inc. 11,111
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Caduceus Capital Trust 54,750
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Caduceus Capital II, LP 30,750
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PW Eucalyptus Fund, L.L.C. 66,750
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PW Eucalyptus Fund, Ltd 6,750
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Franklin California Growth Fund- Class A (2) 142,857
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Franklin Biotechnology Discovery Fund (3) 95,238
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Orbitex Health & Biotechnology Fund (4) 41,269
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Orbitex Life Science & Biotechnology Fund (5) 4,762
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Monument Medical Science Fund (6) 17,460
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Ursus Capital L.P. 12,476
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Ursus Offshore Ltd. 3,397
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Biotech Value Plus Ltd. 15,873
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SCO Securities LLC 22,000
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