FORM OF WARRANT CERTIFICATE
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN
FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED
TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
_________Warrants
PALATIN TECHNOLOGIES, INC.
COMMON STOCK PURCHASE WARRANT CERTIFICATE
THE WARRANTS EVIDENCED BY THIS CERTIFICATE
ARE NOT EXERCISABLE AFTER 5:00 P.M.,
NEW YORK CITY TIME, ON
___________, 2005
THIS CERTIFIES THAT ________________________ or registered assigns is the
registered holder (the "Registered Holder") of the number of Warrants set forth
above, each of which represents the right to purchase one fully paid and
non-assessable share of Common Stock, par value $0.01 per share (the "Common
Stock"), of Palatin Technologies, Inc., a Delaware corporation (the "Company"),
at the initial exercise price of $0.01 per Warrant (the "Exercise Price") at any
time prior to the Expiration Date (as hereinafter defined), by surrendering this
Warrant Certificate, with the Form of Election to Purchase duly executed at the
principal office of the Company and by paying in full the Exercise Price, plus
transfer taxes, if any. Payment of the Exercise Price shall be made in United
States currency, by certified check or money order payable to the order of the
Company. The Warrants have been issued pursuant to a private placement of
Warrants. With respect to the Common Stock issuable on exercise of Warrants, the
Registered Holder has the registration rights set forth in the Appendix to this
Warrant certificate. By exercising a Warrant, the Registered Holder agrees to be
bound by the terms of the registration rights set forth in the Appendix.
EXERCISE OF WARRANTS
Issuance of Common Stock. As soon as practicable after the date of
exercise of any Warrants, the Company shall issue, or cause the transfer agent
for the Common Stock, if any, to issue a certificate or certificates for the
number of full shares of Common Stock to which such Registered Holder is
entitled, registered in accordance with the instructions set forth in the Form
of Election to Purchase. All shares of Common Stock issued upon the exercise of
any Warrants shall be validly authorized and issued, fully paid and
non-assessable, and free from all taxes, liens and charges created by the
Company in respect of the issue thereof. Each person in whose name any such
certificate for shares of Common Stock is issued shall for all purposes be
deemed to have become the holder of record of the Common Stock represented
thereby on the date of exercise of the Warrants resulting in the issuance of
such shares, irrespective of the date of issuance or delivery of such
certificate for shares of Common Stock.
Certificates for Unexercised Warrants. In the event that less than all
of the Warrants represented by a Warrant Certificate are exercised, the Company
shall execute and mail, by first-class mail, within 30 days of the date of
exercise, to the Registered Holder of such Warrant Certificate, or such other
person as shall be designated in the Form of Election to Purchase, a new Warrant
Certificate representing the number of full Warrants not exercised. In no event
shall a fraction of a Warrant be exercised, and the Company shall distribute no
Warrant Certificates representing fractions of Warrants. Final fractions of
shares shall be treated as provided for herein.
Reservation of Shares. The Company shall at all times reserve and keep
available for issuance upon the exercise of Warrants a number of its authorized
but unissued shares of Common Stock that will be sufficient to permit the
exercise in full of all outstanding Warrants.
ADJUSTMENTS AND NOTICE PROVISIONS
Adjustment of Exercise Price. Subject to the provisions hereof, 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 on the outstanding Common Stock payable in shares of its
capital stock, (ii) subdivide the outstanding Common Stock, (iii) combine the
outstanding Common Stock into a smaller number of shares, or (iv) issue any
shares of its capital stock by reclassification of the Common Stock (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, and the number of shares of Common Stock issuable upon exercise of the
Warrants in effect at the time of the record date for such dividend or of the
effective date of such subdivision, combination, or reclassification, shall be
proportionately adjusted so that the Holders of the Warrants after such time
shall be entitled to receive the aggregate number and kind of shares which, if
such Warrants had been exercised immediately prior to such time, such Registered
Holders would have owned upon such exercise and been entitled to receive by
virtue of such dividend, subdivision, combination or reclassification. Such
adjustment shall be made successively whenever any event listed above shall
occur.
(b) In case the Company shall issue or fix a record date for the
issuance to all holders of Common Stock of rights, options, or warrants to
subscribe for or purchase Common Stock (or securities convertible into or
exchangeable for Common Stock) at a price per share (or having a conversion or
exchange price per share, if a security convertible into or exchangeable for
Common Stock) less than the Current Market Price per share of Common Stock (as
determined below) on such record date, then, in each case, the Exercise Price
shall be adjusted by multiplying the Exercise Price in effect immediately prior
to such record date by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding on such record date plus the number of shares
of Common Stock which the aggregate offering price of the total number of shares
of Common Stock so to be offered (or the aggregate initial conversion or
exchange price of the convertible or exchangeable securities so to be offered)
would purchase at such Current Market Price and the denominator of which shall
be the number of shares of Common Stock outstanding on such record date plus the
number of additional shares of Common Stock to be offered for subscription or
purchase (or into which the convertible or exchangeable securities so to be
offered are initially convertible or exchangeable). Such adjustment shall become
effective at the close of business on such record date; provided, however, that,
to the extent the shares of Common Stock (or securities convertible into or
exchangeable for shares of Common Stock) are not delivered, the Exercise Price
shall be readjusted after the expiration of such rights, options, or warrants
(but only with respect to Warrants exercised after such expiration), to the
Exercise Price which would then be in effect had the adjustments made upon the
issuance of such rights, options, or warrants been made upon the basis of
delivery of only the number of shares of Common Stock (or securities convertible
into or exchangeable for shares of Common Stock) actually issued.
Notwithstanding anything to the contrary contained herein, no adjustment shall
be made to the Exercise Price until any condition to the vesting of such rights,
options or warrants shall be fulfilled or satisfied (and then only with respect
to the portion thereof which shall have vested). In case any subscription price
may be paid in a consideration part or all of which shall be in a form other
than cash, the value of such consideration shall be as determined in good faith
by the board of directors of the Company, whose determination shall be
conclusive absent manifest error. Shares of Common Stock owned by or held for
the account of the Company or any majority-owned subsidiary shall not be deemed
outstanding for the purpose of any such computation.
(c) In case the Company shall distribute to all holders 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 continuing
corporation) evidences of its indebtedness, cash (other than any cash dividend
which, together with any cash dividends paid within the twelve (12) months prior
to the record date for such distribution, does not exceed 5% of the Current
Market Price at the record date for such distribution) or assets (other than
distributions and dividends payable in shares of Common Stock), or rights,
options, or warrants to subscribe for or purchase Common Stock, or securities
convertible into or exchangeable for shares of Common Stock (excluding those
with respect to the issuance of which an adjustment of the Exercise Price is
provided pursuant to the foregoing paragraph), 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 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, 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.
Current Market Price. For the purpose of any computation under this
Warrant, 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 fifteen (15)
consecutive trading days immediately preceding the date in question. The closing
price for each day shall be (a) 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 or
market system (including, for purposes hereof, the American Stock Exchange
("AMEX")) on which the Common Stock, is listed or admitted to trading, (b) if
the Common Stock, is not listed or admitted to trading on any national
securities exchange or market system, the highest reported bid price for the
Common Stock, as furnished by the National Association of Securities Dealers,
Inc. through AMEX or a similar organization if AMEX is no longer reporting such
information, or (c) if on any such date the Common Stock is not listed or
admitted to trading on any national securities exchange and is not quoted by
AMEX or any similar organization, as determined by reference to the "pink
sheets" published by the National Quotation Bureau or, if not so published, by
such other method of determining the market value of a share of Common Stock, as
the board of directors of the Company shall in good faith from time to time deem
to be fair, whose determination shall be conclusive absent manifest error.
No Adjustments to Exercise Price. No adjustment in the Exercise Price
shall be required if such adjustment is less than $.05; provided, however, that
any adjustments which by reason of this Warrant are not required to be made
shall be carried forward and taken into account in any subsequent adjustment.
All calculations under this Warrant shall be made to the nearest cent or to the
nearest one thousandth of a share, as the case may be.
Deferral of Adjustments to Exercise Price. In any case in which this
Warrant shall require that an adjustment in the Exercise Price be made effective
as of a record date for a specified event, the Company may elect to defer, until
the occurrence of such event, issuing to the Registered Holders of the Warrants,
if any Registered Holder has exercised a Warrant after such record date, the
shares of Common Stock, if any, issuable upon such exercise over and above the
shares of Common Stock, if any, issuable upon such exercise on the basis of the
Exercise Price in effect prior to such adjustment; provided, however, that the
Company shall deliver to such exercising Registered Holder a due bill or other
appropriate instrument evidencing such Registered Holder's right to receive such
additional shares upon the occurrence of the event requiring such adjustment.
Adjustment to Number of Shares. Upon each adjustment of the Exercise
Price as a result of the calculations made above the Warrants shall thereafter
evidence the right to purchase, at the adjusted Exercise Price, that number of
shares (calculated to the nearest thousandth) obtained by dividing (A) the
product obtained by multiplying the number of shares purchasable upon exercise
of the Warrants prior to adjustment of the number of shares by the Exercise
Price in effect prior to adjustment of the Exercise Price by (B) the Exercise
Price in effect after such adjustment of the Exercise Price.
Reorganization. In case of any capital reorganization, other than in
the cases referred to above, or the consolidation or merger of the Company with
or into another corporation (other than a merger or consolidation in which the
Company is the 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 the sale of the property of the Company as an
entirety or substantially as an entirety (collectively such actions being
hereinafter referred to as "Reorganizations"), there shall thereafter be
deliverable upon exercise of any Warrant (in lieu of the number of shares of
Common Stock theretofore deliverable) the number of shares of stock or other
securities or property to which a Registered Holder of the number of shares of
Common Stock which would otherwise have been deliverable upon the exercise of
such Warrant would have been entitled upon such Reorganization if such 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 interests of
Registered Holders so that the provisions set forth herein shall thereafter be
applicable, as nearly as practicable, in relation to any shares or other
property thereafter deliverable upon exercise of Warrants. 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 the Common Stock
outstanding at the effective time thereof, then such issuer, shall assume by
written instrument the obligation to deliver to the Registered Holder of any
Warrant Certificate such shares of stock, securities, cash or other property as
such holder shall be entitled to purchase in accordance with the foregoing
provisions. Notwithstanding anything to the contrary contained herein, in the
event of sale or conveyance or other transfer of all or substantially all of the
assets of the Company as a part of a plan for liquidation of the Company, all
rights to exercise any Warrant shall terminate thirty (30) days after the
Company gives written notice to each Registered Holder of a Warrant Certificate
that such sale or conveyance of other transfer has been consummated.
Reclassifications. (a) In case of any reclassification or change of the
shares of Common Stock issuable upon exercise of the Warrants (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 Registered Holders of the
Warrants shall have the right thereafter to receive upon exercise of the
Warrants solely the kind and amount of shares of stock and other securities,
property, cash, or any combination thereof receivable upon such reclassification
or change by a Registered Holder of the number of shares of Common Stock for
which the Warrants might have been exercised immediately prior to such
reclassification or change. Thereafter, appropriate provision shall be as nearly
equivalent as practicable to the adjustments in this Warrant. The above
provisions of this paragraph shall similarly apply to successive
reclassifications and changes of shares of Common Stock.
(b) Notwithstanding anything to the contrary herein contained, in the
event of a transaction contemplated by the prior paragraph in which the
surviving, continuing, successor, or purchasing corporation demands that all
outstanding Warrants be extinguished prior to the closing date of the
contemplated transaction, the Company shall give prior notice (the "Merger
Notice") thereof to the Registered Holders advising them of such transaction.
The Registered Holders shall have ten (10) days after the date of the Merger
Notice to elect to (i) exercise the Warrants in the manner provided herein or
(ii) receive from the surviving, continuing, successor, or purchasing
corporation, with respect to outstanding Warrants, the same consideration
receivable by a Registered Holder of the number of shares of Common Stock for
which the Warrants might have been exercised immediately prior to such
consolidation, merger, sale, or purchase reduced by such amount of the
consideration as has a market value equal to the exercise price of the Warrants,
as determined by the Board of Directors of the Company, whose determination
shall be conclusive absent manifest error. If any Registered Holder fails to
timely notify the Company of its election, the Holder shall be deemed for all
purposes to have elected the option set forth in (ii) above. Any amounts
receivable by a Holder who has elected the option set forth in (ii) above shall
be payable at the same time as amounts payable to stockholders in connection
with any such transaction.
Verification of Computations. Whenever the Exercise Price is adjusted
as provided in this Warrant, the Company will promptly obtain a certificate of
the chief financial officer 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 Registered Holders of the
Warrant Certificates, at their addresses listed on the register maintained for
the purpose by the Company.
Exercise Price Not Less Than Par Value. In no event shall the Exercise
Price be adjusted below the par value per share of the Common Stock.
Notice of Certain Actions. In case at any time the Company shall
propose:
(a) to pay any dividend or make any distribution on shares of
Common Stock in shares of Common Stock or make any other distribution
(other than regularly scheduled cash dividends which are not in a
greater amount per share than the most recent such cash dividend) to
all holders of Common Stock; or
(b) to issue any rights, warrants, or other securities to all
holders of Common Stock entitling them to purchase any additional
shares of Common Stock or any other rights, warrants, or other
securities; or
(c) to effect any reclassification or change of outstanding
shares of Common Stock, or any consolidation, merger, sale, lease, or
conveyance of property, described above; or
(d) to effect any liquidation, dissolution, or winding-up of the
Company;
then, in each such case, the Company shall cause notice of such proposed action
to be mailed to each Registered Holder of a Warrant Certificate. Such notice
shall be mailed, at least ten (10) days prior to the record date for determining
holders of the Common Stock for purposes of receiving such payment or offer or
at least ten (10) days prior to the earlier of the date upon which such action
is to take place or any record date to determine holders of Common Stock
entitled to receive such securities or other property, as the case may be.
Notice of Adjustments. Whenever any adjustment is made pursuant to this
Warrant, the Company shall cause notice of such adjustment to be mailed to each
Registered Holder of a Warrant Certificate within fifteen (15) days thereafter,
such notice to include in reasonable detail (i) the events precipitating the
adjustment, (ii) the computation of any adjustments, and (iii) the Exercise
Price, the number of shares or the securities or other property purchasable upon
exercise of each Warrant after giving effect to such adjustment.
Warrant Certificate Amendments. Irrespective of any adjustments
pursuant to this Warrant, Warrant Certificates theretofore or thereafter issued
need not be amended or replaced, but certificates thereafter issued shall bear
an appropriate legend or other notice of any adjustments.
Fractional Shares. The Company shall not be required upon the exercise
of any Warrant to issue fractional shares of Common Stock which may result from
adjustments in accordance with this Warrant to the Exercise Price or number of
shares of Common Stock purchasable under each Warrant. If more than one Warrant
is exercised at one time by the same Registered Holder, the number of full
shares of Common Stock which shall be deliverable shall be computed based on the
number of shares deliverable in exchange for the aggregate number of Warrants
exercised. With respect to any final fraction of a share called for upon the
exercise of any Warrant or Warrants, the Company shall pay a cash adjustment in
respect of such final fraction in an amount equal to the same fraction of the
Current Market Price of a share of Common Stock calculated in accordance with
this Warrant.
Adjustments Not Provided For. If any change to the capitalization of
the Company should occur with respect to which a favorable adjustment to the
rights and interests of the Registered Holders of the Warrants should be made,
and such adjustment is not otherwise provided for in this Warrant, such
appropriate adjustment should be made as determined in good faith by the Board
of Directors of the Company.
No Warrant may be exercised after 5:00 P.M., New York City time, on the
expiration date (the "Expiration Date") which will be March 15, 2005. All
Warrants evidenced hereby shall thereafter become void.
OTHER PROVISIONS RELATING TO
RIGHTS OF REGISTERED HOLDERS
OF WARRANT CERTIFICATES
Rights of Warrant Holders. No Warrant Certificate shall entitle the
registered holder thereof to any of the rights of a stockholder of the Company,
including, without limitation, the right to vote, to receive dividends and other
distributions, to receive any notice of, or to attend, meetings of stockholders
or any other proceedings of the Company.
Lost, Stolen, Mutilated or Destroyed Warrant Certificates. If any
Warrant Certificate shall be mutilated, lost, stolen or destroyed, the Company
in its discretion may execute and deliver, in exchange and substitution for and
upon cancellation of a mutilated Warrant Certificate, or in lieu of or in
substitution for a lost, stolen or destroyed Warrant Certificate, a new Warrant
Certificate for the number of Warrants represented by the Warrant Certificate so
mutilated, lost, stolen or destroyed but only upon receipt of evidence of such
loss, theft or destruction of such Warrant Certificate, and of the ownership
thereof, and indemnity, if requested, all satisfactory to the Company.
Applicants for such substitute Warrant Certificates shall also comply with such
other reasonable regulations and pay such other reasonable charges incidental
thereto as the Company may prescribe. Any such new Warrant Certificate shall
constitute an original contractual obligation of the Company, whether or not the
allegedly lost, stolen, mutilated or destroyed Warrant Certificate shall be at
any time enforceable by anyone.
SPLIT UP, COMBINATION, EXCHANGE, TRANSFER,
AND CANCELLATION OF WARRANT CERTIFICATES
Split Up, Combination, Exchange and Transfer of Warrant Certificates.
Prior to the latest time at which the Warrants may be exercised, subject to any
applicable laws, rules or regulations restricting transferability, Warrant
Certificates, subject to the provisions hereof, may be split up, combined or
exchanged for other Warrant Certificates representing a like aggregate number of
Warrants or may be transferred in whole or in part. Any holder desiring to split
up, combine or exchange a Warrant Certificate or Warrant Certificates shall make
such request in writing delivered to the Company at its principal office and
shall surrender the Warrant Certificate or Warrant Certificates so to be split
up, combined or exchanged at said office with the Form of Assignment. Upon any
such surrender for split up, combination, exchange or transfer, the Company
shall execute and deliver to the person entitled thereto a Warrant Certificate
or Warrant Certificates, as the case may be, as so requested in the Form of
Assignment. The Company may require the holder to pay a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any split
up, combination, exchange or transfer of Warrant Certificates prior to the
issuance of any new Warrant Certificate.
Cancellation of Warrant Certificates. Any Warrant Certificate
surrendered upon the exercise of Warrants or for split up, combination, exchange
or transfer, or purchased or otherwise acquired by the Company, shall be
canceled and shall not be reissued by the Company; and, except as otherwise
provided herein in case of the exercise of less than all of the Warrants
evidenced by a Warrant Certificate or in case of a split up, combination,
exchange or transfer, no Warrant Certificate shall be issued hereunder in lieu
of such canceled Warrant Certificate. Any Warrant Certificate so canceled shall
be destroyed by the Company.
Agreement of Warrant Certificate Holders. Every holder of a Warrant
Certificate by accepting the same consents and agrees with the Company and with
every other holder of a Warrant Certificate that:
(a) transfer of the Warrant Certificates shall be registered
on the books of the Company only if surrendered at the principal office
of the Company, duly endorsed or accompanied by a proper instrument of
transfer; and
(b) prior to due presentment for registration of transfer, the
Company may deem and treat the person in whose name the Warrant
Certificate is registered as the absolute owner thereof and of the
Warrants evidenced thereby (notwithstanding any notations of ownership
or writing on the Warrant Certificates made by anyone other than the
Company) for all purposes whatsoever, and the Company shall not be
affected by any notice to the contrary.
OTHER MATTERS
Governing Law. The laws of the State of New York shall govern
this Warrant Certificate.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed.
PALATIN TECHNOLOGIES, INC.
By:
-----------------------------------------------
Stephen T. Wills, Vice President and
Chief Financial Officer
FORM OF
ELECTION TO PURCHASE
The undersigned hereby irrevocably elects to exercise of the Warrants
represented by this Warrant Certificate and to purchase the shares of Common
Stock issuable upon the exercise of said Warrants, and requests that
certificates for such shares be issued and delivered as follows:
ISSUE
TO:
(NAME)
(ADDRESS, INCLUDING ZIP CODE)
(SOCIAL SECURITY OR OTHER TAX IDENTIFYING NUMBER)
DELIVER
TO:
(NAME)
at
(ADDRESS, INCLUDING ZIP CODE)
If the number of Warrants hereby exercised is less than all the Warrants
represented by this Warrant Certificate, the undersigned requests that a new
Warrant Certificate representing the number of full Warrants not exercised be
issued and delivered as set forth below.
In full payment of the purchase price with respect to the Warrants
exercised and transfer taxes, if any, the undersigned hereby tenders payment of
$ by certified check or money order payable in United States currency to the
order of the Company.
Dated:
-----------------------
(Insert Social Security or (Signature of registered
other identifying number holder)
of holder)
(Signature of registered
holder, if co-owned)
NOTE: Signature must conform in all respects to name of holder as specified on
the face of the Warrant Certificate.
FORM OF
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto the
Assignee named below all of the rights of the undersigned represented by the
within Warrant Certificate, with respect to the number of Warrants set forth
below:
Name of Assignee Address No. of Warrants
and does hereby irrevocably constitute and appoint _________________________
Attorney to make such transfer on the books of Palatin Technologies, Inc.
maintained for that purpose, with full power of substitution in the premises.
Dated: , 20 .
------------------- -----
(Insert Social Security or Signature
other identifying number
of holder)
(Signature must conform in all respects to name of holder as specified on the
face of the Warrant Certificate.)
APPENDIX
REGISTRATION RIGHTS
1. Registered Holder. The registration rights set forth below are solely for the
benefit of the Registered Holder as defined in the Common Stock purchase
Warrants of Palatin Technologies, Inc., a Delaware corporation (the "Company")
which expire on March 15, 2005 (the "Warrants"). Assignment of these
registration rights is limited as set forth in Section 4(b).
2. Registration Rights.
2.1 Certain Definitions. Unless otherwise defined in this Appendix, all
capitalized terms in this Appendix shall have the meanings defined in
the Warrants. As used in this Appendix, the following terms shall have
the following meanings:
(a) "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time
administering the Securities Act.
(b) "Form S-1, Form SB-1, Form S-2, Form SB-2 and Form
S-3" shall mean Form S-1, Form SB-1, Form S-2, Form
SB-2 or Form S-3, respectively, promulgated by the
Commission or any substantially similar form then in
effect.
(c) The terms "Register", "Registered" and "Registration"
refer to a registration effected by preparing and
filing a Registration Statement or Statements or
similar documents in compliance with the Securities
Act, and the declaration or ordering by the
Commission of the effectiveness of such Registration
Statement.
(d) "Registrable Securities" shall mean the Warrant
Shares so long as such shares are ineligible for sale
under subparagraph (k) of Rule 144.
(e) "Registration Expenses" shall mean all expenses
incurred by the Company in complying with this
Section 2, including, without limitation, all federal
and state registration, qualification and filing
fees, printing expenses, fees and disbursements of
counsel for the Company, accountant fees, blue sky
fees and expenses and, the expense of any special
audits incident to or required by any such
Registration.
(f) "Registration Statement" shall mean Form S-1, Form
SB-1, Form S-2, Form SB-2 or Form S-3, whichever is
applicable, unless otherwise specified herein.
(g) "Rule 144" shall mean Rule 144 promulgated by the
Commission pursuant to the Securities Act.
(h) "Securities Act" shall mean the Securities Act of 1933,
as amended.
(i) "Selling Expenses" shall mean all underwriting
discounts and selling commissions applicable to the
sale of Registrable Securities pursuant to this
Appendix.
(j) "Selling Stockholder" shall mean a holder of
Registrable Securities who requests Registration
under Section 2.2 hereof.
(k) "Warrant Shares" shall mean the shares of Common Stock
underlying the Warrants.
2.2 Piggyback Registration
(a) Until the time set forth in Section 2.2(g) hereof, each
time that the Company proposes to Register a public
offering of its Common Stock, other than (i) pursuant
to a Registration Statement on Form S-4 or Form S-8 or
similar or successor forms or (ii) on a Registration
Statement filed in connection with an exchange offer or
other offer of Common Stock solely to the then-existing
stockholders of the Company, the Company shall promptly
give written notice of such proposed Registration to
all Registered Holders, which shall offer such holders
the right to request inclusion of any Registrable
Securities in the proposed Registration.
(b) Each Registered Holder shall have ten (10) days or such
longer period as shall be set forth in the notice from
the receipt of such notice to deliver to the Company a
written request specifying the number of shares of
Registrable Securities such holder intends to sell and
the holder's intended plan of disposition.
(c) The Company shall have the exclusive right to select
all underwriters for any underwritten public offering
of securities of the Company, including all Warrant
Shares. In the event that the proposed Registration by
the Company is, in whole or in part, an underwritten
public offering of securities of the Company, any
request under Section 2.2(b) shall contain the holder's
agreement that the Registrable Securities will be
included in the underwriting on the same terms and
conditions as the shares of Common Stock, if any,
otherwise being sold through underwriters under such
Registration.
(d) Upon receipt of a written request pursuant to Section
2.2(b), the Company shall promptly use its best efforts
to cause all such Registrable Securities to be
Registered, to the extent required to permit sale or
disposition as set forth in the written request.
(e) Notwithstanding the foregoing, if the managing
underwriter of an underwritten public offering
determines and advises in writing that the inclusion of
all Registrable Securities proposed to be included in
the underwritten public offering, together with any
shares proposed to be sold by the Company for its own
account and any other issued and outstanding shares of
Common Stock proposed to be included therein by holders
other than the holders of Registrable Securities (such
other holders' shares hereinafter collectively referred
to as the "Other Shares"), would interfere with the
successful marketing of the securities proposed to be
included in the underwritten public offering, including
the price at which such securities can be sold, then
the number of such shares of persons other than the
Company that otherwise would be included in such
underwritten public offering shall be excluded from
such underwritten public offering in a number deemed
necessary by such managing underwriter, first by
excluding, to the extent necessary, other shares held
by persons who have not exercised contractual rights to
include such Shares in the offering pursuant to the
Prior Registration Rights Agreements (as hereinafter
defined), and then, to the extent necessary, by
excluding Registrable Securities participating in such
underwritten public offering, pro rata, based on the
number of shares of Registrable Securities each holder
proposes to include; and, then, excluding to the extent
necessary, other Shares proposed to be included by the
holders of other Shares who have exercised registration
rights granted to them under registration rights
agreements of the Company in effect on the date hereof
or any other registration rights in effect on the date
hereof (collectively, the "Prior Registration Rights
Agreements").
(f) All Warrant Shares that are not included in an
underwritten public offering pursuant to Section 2.2
shall be withheld from the market by the holders
thereof for a period, not to exceed 12 months following
a public offering, that the managing underwriter
reasonably determines is necessary in order to effect
the underwritten public offering. The holders of such
Warrant Shares shall execute such documentation as the
managing underwriter reasonably requests to evidence
this lock-up.
(g) The registration rights provided by this Appendix shall
expire with respect to any Registrable Security upon
the earliest to occur of (i) the effectiveness of a
Registration Statement that includes in the
Registration effected thereby, at the request of a
Selling Stockholder, such Registrable Security; (ii)
the date on which such Registrable Security is eligible
for resale under Rule 144 without regard to the volume
limitations thereof; and (iii) five years from the date
hereof.
2.3 Preparation and Filing. If and whenever the Company is under
an obligation pursuant to the provisions of this Section 2 to
use its best efforts to effect the Registration of any
Registrable Securities, the Company shall, as expeditiously as
practicable:
(a) prepare and file with the Commission a Registration
Statement with respect to such Registrable
Securities, using such form of available Registration
Statement as is reasonably selected by the Company
(unless otherwise specified herein), and use its best
efforts to cause such Registration Statement to
become and remain effective, keeping each Selling
Stockholder advised as to the initiation, progress
and completion of the Registration;
(b) prepare and file with the Commission such amendments
and supplements to such Registration Statements and
the prospectus used in connection therewith as may be
necessary to keep such Registration Statement
effective for six months, and to comply with the
provisions of the Securities Act with respect to the
sale or other disposition of all Registrable
Securities covered by such Registration Statement;
(c) furnish to each Selling Stockholder such number of
copies of any summary prospectus or other prospectus,
including a preliminary prospectus and all amendments
and supplements thereto, in conformity with the
requirements of the Securities Act, and such other
documents as such Selling Stockholder may reasonably
request in order to facilitate the public sale or
other disposition of such Registrable Securities;
provided, however, that no such prospectus need be
furnished more than six months after the effective
date of the Registration Statement related thereto;
(d) use its best efforts to register or qualify the
Registrable Securities covered by such Registration
Statement under the securities or blue sky laws of such
jurisdictions as each Selling Stockholder shall
reasonably request and do any and all other acts or
things which may be reasonably necessary or advisable
to enable such holder to consummate the public sale or
other disposition in such jurisdictions of such
Registrable Securities; provided, however, that the
Company shall not be required to consent to general
service of process, qualify to do business as a foreign
corporation where it would not be otherwise required to
qualify or submit to liability for state or local taxes
where it is not liable for such taxes or provide any
undertaking or make any change in its Certificate of
Incorporation; and
(e) at any time when a prospectus covered by such
Registration Statement is required to be delivered
under the Securities Act within the appropriate period
mentioned in Section 2.3(b) hereof, notify each Selling
Stockholder of the happening of any event as a result
of which the prospectus included in such Registration
Statement, as then in effect, includes an untrue
statement of a material fact or omits to state a
material fact required to be stated therein or
necessary to make the statements therein not misleading
in the light of the circumstances then existing and, at
the request of such seller, prepare, file and furnish
to such seller a reasonable number of copies of a
supplement to or an amendment of such prospectus as may
be necessary so that, as thereafter delivered to the
purchasers of such shares, such prospectus shall not
include an untrue statement of a material fact or omit
to state a material fact required to be stated therein
or necessary to make the statement therein not
misleading in the light of the circumstances then
existing. The Company may delay amending or
supplementing the prospectus for a period of up to 90
days if the Company is then engaged in negotiations
regarding a material transaction that has not been
publicly disclosed, and the Selling Stockholders shall
suspend their sale of Shares until an appropriate
supplement or prospectus has been forwarded to them or
the proposed transaction is abandoned.
Notwithstanding the foregoing, with respect to the proposed
Registration of Registrable Securities pursuant to Section 2.2 hereof,
the Company may withdraw or cease proceeding with any proposed
Registration of Registrable Securities if it has withdrawn or ceased
proceeding with the proposed Registration of Common Stock of the
Company with which the Registration of such Registrable Securities was
to be included.
2.4 Expenses. The Company shall pay all Registration Expenses
incurred by the Company in complying with this Section 2.
2.5 Information Furnished by Registered Holder. It shall be a
condition precedent to the Company's obligations under this
Appendix as to any Selling Stockholder that each Selling
Stockholder furnish to the Company in writing such information
regarding such Selling Stockholder and the distribution
proposed by such Selling Stockholder as the Company may
reasonably request.
2.6 Indemnification.
2.6.1 Company's Indemnification of Registered Holders. The
Company shall indemnify each Selling Stockholder, each of
its officers, directors and constituent partners, and each
person controlling (within the meaning of the Securities
Act) such Selling Stockholder, against all claims, losses,
damages or liabilities (or actions in respect thereof)
suffered or incurred by any of them, to the extent such
claims, losses, damages or liabilities arise out of or are
based upon any untrue statement (or alleged untrue
statement) of a material fact contained in any prospectus or
any related Registration Statement incident to any such
Registration, or 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, or
any violation by the Company of any rule or regulation
promulgated under the Securities Act applicable to the
Company and relating to actions or inaction required of the
Company in connection with any such Registration; and the
Company will reimburse each such Selling Stockholder, each
of its officers, directors and constituent partners and each
person who controls any such Selling Stockholder, for any
reasonable, documented legal and other expenses incurred in
connection with investigating or defending any such claim,
loss, damage, liability or action; provided, however, that
the indemnity contained in this Section 2.6.1 shall
not apply to amounts paid in settlement of any such
claim, loss, damage, liability or action if settlement is
effected without the consent of the Company (which consent
shall not unreasonably be withheld); and provided, further,
that the Company will not be liable in any
such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based upon any
untrue (or alleged untrue) statement or omission based upon
written information furnished to the Company by such Selling
Stockholder, underwriter, controlling person or other
indemnified person and stated to be for use in connection
with the offering of securities of the Company.
2.6.2 Selling Stockholder's Indemnification of Company. Each
Selling Stockholder shall indemnify the Company, each of its
directors and officers, each underwriter, if any, of the
Company's securities covered by a Registration Statement,
each person who controls the Company or such underwriter
within the meaning of the Securities Act, and each other
Selling Stockholder, each of its officers, directors and
constituent partners and each person controlling such other
Selling Stockholder, against all claims, losses, damages and
liabilities (or actions in respect thereof) suffered or
incurred by any of them and arising out of or based upon any
untrue statement (or alleged untrue statement) of a material
fact contained in such Registration Statement or related
prospectus, or 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, or
any violation by such Selling Stockholder of any rule or
regulation promulgated under the Securities Act applicable
to such Selling Stockholder and relating to actions or
inaction required of such Selling Stockholder in connection
with the Registration of the Registrable Securities pursuant
to such Registration Statement; and will reimburse the
Company, such other Selling Stockholders, such directors,
officers, partners, persons, underwriters and controlling
persons for any reasonable, documented legal and other
expenses incurred in connection with investigating or
defending any such claim, loss, damage, liability or action;
provided, however, that such indemnification and
reimbursement shall be to the extent, ------- but only to
the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such
Registration Statement or prospectus in reliance upon and in
conformity with written information furnished to the Company
by such Selling Stockholder and stated to be for use in
connection with the offering of Registrable Securities.
2.6.3 Indemnification Procedure. Promptly after receipt by an
indemnified party under this Section 2.6 of notice of the
commencement of any action which may give rise to a claim
for indemnification hereunder, such indemnified party will,
if a claim in respect thereof is to be made against an
indemnifying party under this Section 2.6, notify the
indemnifying party in writing of the commencement thereof
and generally summarize such action. The indemnifying party
shall have the right to participate in and to assume the
defense of such claim, and shall be entitled to select
counsel for the defense of such claim with the approval of
any parties entitled to indemnification, which approval
shall not be unreasonably withheld. Notwithstanding the
foregoing, the parties entitled to indemnification shall
have the right to employ separate counsel (reasonably
satisfactory to the indemnifying party) to participate in
the defense thereof, but the fees and expenses of such
separate counsel shall be at the expense of such indemnified
parties unless the named parties to such action or
proceedings include both the indemnifying party and the
indemnified parties and the indemnifying party or such
indemnified parties shall have been advised by counsel that
there are one or more legal defenses available to the
indemnified parties which are different from or additional
to those available to the indemnifying party (in which case,
if the indemnified parties notify the indemnifying party in
writing that they elect to employ separate counsel at the
reasonable expense of the indemnifying party, the
indemnifying party shall not have the right to assume the
defense of such action or proceeding on behalf of the
indemnified parties, it being understood, however, that the
indemnifying party shall not, in connection with any such
action or proceeding or separate or substantially similar or
related action or proceeding in the same jurisdiction
arising out of the same general allegations or
circumstances, be liable for the reasonable, documented fees
and expenses of more than one separate counsel at any time
for all indemnified parties, which counsel shall be
designated in writing by the Registered Holders of a
majority of the Registrable Securities).
2.6.4 Contribution. If the indemnification provided for in this
Section 2.6 from an indemnifying party is unavailable to an
indemnified party hereunder in respect to any losses,
claims, damages, liabilities or expenses referred to herein,
then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such
losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault
of the indemnifying party and indemnified party in
connection with the statements or omissions which result in
such losses, claims, damages, liabilities or expenses, as
well as any other relevant equitable considerations. The
relative fault of such indemnifying party and indemnified
party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied by such
indemnifying party or indemnified party and the parties'
relative intent, knowledge, access to information supplied
by such indemnifying party or indemnified party and
opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result
of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include any documented
legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any
action, suit, proceeding or claim, or in collecting such
indemnity or reimbursement from the indemnifying party.
3. Covenants of the Company.
------------------------
The Company agrees to:
(a) Notify the holders of Registrable Securities included in a
Registration Statement (i) of the issuance by the Commission
of any stop order suspending the effectiveness of such
Registration Statement and (ii) upon learning of the
initiation of any proceedings for the purpose of suspending
such effectiveness, the existence of such proceedings. The
Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued,
to obtain the lifting thereof at the earliest possible time.
(b) If the Common Stock is then listed on a national securities
exchange, use its best efforts to cause the Registrable
Securities to be listed on such exchange. If the Common Stock
is not then listed on a national securities exchange, use its
best efforts to facilitate the reporting of the Registrable
Securities on Nasdaq.
(c) Take all other reasonable actions necessary to expedite and
facilitate disposition of the Registrable Securities by the
holders thereof pursuant to the Registration Statement.
(d) With a view to making available to the holders of Registrable
Securities the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the
Commission that may at any time permit the Registered Holders
to sell securities of the Company to the public without
registration, the Company agrees to:
(i) make and keep adequate current public information
with respect to the Company available, as those terms
are understood and defined in Rule 144, at all times
after 90 days after the effective date of the first
Registration Statement filed by the Company for the
offering of its securities to the general public;
(ii) file with the Commission in a timely manner all
reports and other documents required of the Company
under the Securities Act and the Securities Exchange
Act of 1934 (the "1934 Act"); and
(iii) furnish to each holder of Warrant Shares, so long as
such holder of Warrant Shares owns any Warrant Shares,
forthwith upon written request (a) a written statement
by the Company as to whether it has complied with the
reporting requirements of Rule 144, the Securities Act
and the 1934 Act, (b) a copy of the most recent annual
or quarterly report of the Company and such other
reports and documents so filed by the Company and (c)
such other information as may be reasonably requested
and as is publicly available in availing the holders of
Shares of any rule or regulation of the Commission
which permits the selling of any such securities
without registration.
(e) Prior to the filing of a Registration Statement or any
amendment thereto (whether pre-effective or post-effective),
and prior to the filing of any prospectus or prospectus
supplement related thereto, the Company will provide each
Selling Stockholder with copies of all pages thereto, if any,
which reference such Selling Stockholder.
(f) If the Registration Statement relates to an underwritten
offering, enter into and perform its obligations under an
underwriting agreement, in usual and customary form,
including, without limitation, customary indemnification and
contribution obligations, with the underwriter's
representative.
(g) Make generally available to its security holders as soon as
practicable, but not later than forty five (45) days after the
close of the period covered thereby, the Company's financial
statements as filed with the Commission.
(h) At the request of the Registered Holders who hold a
majority in interest of the Registrable Securities
being sold, furnish to the underwriters, if any, on the
date that Registrable Securities are delivered to the
underwriters for sale in connection with a registration
pursuant to this Appendix (i) an opinion, dated such
date, of the counsel representing the Company for the
purposes of such registration, in form and substance as
is customarily given to underwriters in an underwritten
public offering, addressed to the underwriters, and
(ii) a letter, dated such date, from the independent
certified public accountants of the Company, in form
and substance as is customarily given by independent
certified public accountants to underwriters in an
underwritten public offering, addressed to the
underwriters.
(i) Make available for inspection by any underwriters
participating in the offering and the counsel, accountants or
other agents retained by such underwriter, all pertinent
financial and other records, corporate documents and
properties of the Company, and cause the Company's officers,
directors and employees to supply all information reasonably
requested by such underwriters in connection with the
Registration Statement.
(j) Provide a transfer agent and registrar, which may be a single
entity, for the Registrable Securities not later than the
effective date of the Registration Statement.
(k) Take all actions reasonably necessary to facilitate the timely
preparation and delivery of certificates (not bearing any
restrictive legend) representing the Registrable Securities
sold pursuant to the Registration Statement and to enable such
certificates to be in such denominations and registered in
such names as the Registered Holders or any underwriters may
reasonably request.
4. Miscellaneous.
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(a) This Appendix shall be governed by and construed under the laws
of the State of New York.
(b) This Appendix may not be assigned by a Registered Holder other
than to the purchaser or transferee of more than 5,000 of the
Registered Holder's Warrants Warrant Shares, which purchaser
or transferee shall be a permitted assign under the Warrants.
Except as otherwise expressly provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon, the
Registered Holders, their successors, permitted assigns,
heirs, executors and administrators.
(c) The Warrants, together with this Appendix, constitute the full
and entire understanding and agreement among the Company and the
Registered Holders with regard to the subjects hereof and no
party shall be liable or bound to any other party in any manner
by any representations, warranties, covenants or agreements
except as specifically set forth herein or therein. Nothing in
this Appendix, express or implied, is intended to confer upon any
party, other than the Company and the Registered Holders and
their respective successors and permitted assigns, any rights,
remedies, obligations, or liabilities under or by reason of this
Appendix, except as expressly provided herein.
(d) In the event that any provision of this Appendix shall be
invalid, illegal or unenforceable, it shall, to the extent
practicable, be modified so as to make it valid, legal and
enforceable and to retain as nearly as practicable the intent
of the parties, and the validity legality, and enforceability
of the remaining provisions shall not in any way be affected
or impaired thereby. To the extent permitted by law, the
parties waive the benefit of any provision of law that renders
any provision of the Appendix invalid or unenforceable in any
respect.
(e) Except as otherwise provided herein, any term of this Appendix
may be amended, and the observance of any term of this
Appendix may be waived (either generally or in a particular
instance, either retroactively or prospectively, and either
for a specified period of time or indefinitely), with the
written consent of the Company and the Registered Holder.
(f) All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed effectively
given upon personal delivery, on the first business day
following mailing by overnight courier, or on the fifth day
following mailing by registered or certified mail, return
receipt requested, postage prepaid, addressed to the Company
at its address as set forth in the Warrants and to the
Registered Holder at its address as shown on the books of the
Company.
(g) The titles of the paragraphs and subparagraphs of this
Appendix are for convenience of reference only and are not to
be considered in construing this Appendix.
(h) No waiver by the Company or the Registered Holder of any one
or more defaults by any other party or parties in the
performance of any of the provisions hereof shall operate or
be construed as a waiver of any future default or defaults,
whether of a like or different nature. Except as expressly
provided herein, no failure or delay on the part of any party
in exercising any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy preclude any other
or further exercise thereof or the exercise of any other
right, power or remedy.
[END OF APPENDIX]