EXHIBIT 10.32
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
______________, 2007
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 ________ fully paid and nonassessable shares 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 $_____ per Warrant (the "Exercise Price") at any time after
the date on which the shares of Common Stock issuable upon exercise of the
Warrants evidenced hereby have been registered under the Securities Act of 1933,
as amended, or such other action as may be required by federal or state law
relating to the issuance or distribution of securities shall have been taken, or
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. Unless otherwise defined herein, the capitalized terms used herein
shall have the meaning assigned to such terms in the Purchase Agreement.
The Warrants have been issued pursuant to a private placement of Common
Stock and Warrants.
This Warrant Certificate is issued under and in accordance with the
Purchase Agreement dated as of ___________, 2002, between the Company and the
Registered Holder, as amended and is subject to the terms and provisions
contained in said Purchase Agreement. The Registration Rights Agreement between
the Company and the Registered Holder governs the registration rights of the
shares of Common Stock underlying the Warrants.
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 nonassessable, 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.
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.
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.
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.
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 five (5) 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") Market System on which the
Common Stock, is listed (Symbol, PTN) 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. 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 shall be used.
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.
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.
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.
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.
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.
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.
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.
In no event shall the Exercise Price be adjusted below the par value per share
of the Common Stock.
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.
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.
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.
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.
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 ____________, 2007. All
Warrants evidenced hereby shall thereafter become void.
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.
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.
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.
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.
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.
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:
--------------------------------------------------
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)
at
-----------------------------------------------------------------------------
(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: , 200_.
-------------------
- ------------------------------- ---------------------------------------
(Insert Social Security or other Signature
identifying number of holder)
(Signature must conform in all respects to name of holder as
specified on the face of the Warrant Certificate.)