EXHIBIT 2.8
Warrant No: _______
THIS WARRANT AND THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR
APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE UNITED STATES OR TO A "U.S. PERSON"
(AS DEFINED IN REGULATION S UNDER THE ACT OR SUCH SUCCESSOR RULE OR REGULATION
THEN IN EFFECT) EXCEPT PURSUANT TO REGISTRATION IN COMPLIANCE WITH THE ACT AND
ANY APPLICABLE STATE SECURITIES LAWS, OR AN AVAILABLE EXEMPTION FROM SUCH
REGISTRATION REQUIREMENTS. THIS WARRANT MAY NOT BE EXERCISED BY OR ON BEHALF OF
A U.S. PERSON UNLESS REGISTERED UNDER THE ACT OR AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE.
WARRANT TO PURCHASE COMMON SHARES
22,222 Common Shares
YM BIOSCIENCES INC.
February 15, 2002
to
February 15, 2006
THIS CERTIFIES THAT, for good and valuable consideration, the receipt of
which is hereby acknowledged, ARAN ASSET MANAGEMENT SA (the "Warrantholder"), is
entitled to subscribe for and purchase from YM BioSciences Inc., a Nova Scotia
corporation (herein called the "Corporation"), at any time after the date hereof
to and including 5:00 p.m. (Eastern Standard Time) on February 15, 2006 (the
"Time of Expiry"), up to 22,222 fully paid and non-assessable common shares of
the of the Corporation ("Shares") at an exercise price of C$4.50 per Share,
subject to adjustment as provided below (collectively the "Exercise Price").
This Warrant is subject to the following provisions, terms and conditions:
1. DESIGNATION
These Warrants are designated and herein referred to as the Warrants of
the Corporation.
2. EXERCISE OF WARRANTS
(a) Election to Purchase. These Warrants may be exercised by the
Warrantholder in whole or in part and in accordance with the
provisions hereof by delivery of an Election to Purchase in a form
substantially the same as that attached hereto as Annex "A",
properly completed and executed, together with payment of the
Exercise Price for the number of Shares specified in the Election to
Purchase to the offices of CIBC Mellon Trust Company, the
Corporation's transfer agent, at Ground Floor, 320 Bay Street,
Toronto, Ontario Canada M5H 4A6, Attention: Toni Taccongna, or such
other address as may be notified in writing by the Corporation.
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(b) Exercise. The Corporation shall, on the date it receives a duly
executed Election to Purchase and the Exercise Price for the number
of Shares specified in the Election to Purchase (the "Exercise
Date"), issue that number of Shares specified in the Election to
Purchase as fully paid and non-assessable Shares. Such duly executed
Election to Purchase shall constitute the Warrantholder's
acknowledgement of and undertaking to comply to the reasonable
satisfaction of the Corporation and its counsel, with all applicable
laws, rules, regulations and policies of every stock exchange upon
which the Shares of the Corporation may from time to time be listed
or traded, and any other applicable regulatory authorities.
(c) Share Certificates. As promptly as practicable after the Exercise
Date (and in any event not later than 10 days after the Exercise
Date), the Corporation shall send to the Warrantholder, registered
in such name or names as the Warrantholder may direct or if no such
direction has been given, in the name of the Warrantholder, a
certificate or certificates for the number of Shares specified in
the Election to Purchase. To the extent permitted by law, such
exercise shall be deemed to have been effected as of the close of
business on the Exercise Date, and at such time the rights of the
Warrantholder with respect to the number of the Warrants which have
been exercised as such shall cease, and the person or persons in
whose name or names any certificate or certificates for Shares shall
then be issuable upon such exercise shall be deemed to have become
the holder or holders of record of the Shares represented thereby.
(d) Fractional Shares. No fractional Shares shall be issued upon
exercise of these Warrants and no payments or adjustment shall be
made upon any exercise on account of any cash dividends on the
Shares issued upon such exercise. If any fractional interest in a
Share would, except for the provisions of the first sentence of this
subsection 2(d), be deliverable upon the exercise of these Warrants,
the number of Shares to be issued to the Warrantholder upon the
exercise of the Warrants shall be rounded up to the next whole
number.
(e) Subscription for Less than Entitlement. The Warrantholder may from
time to time subscribe for and purchase a number of Shares less than
the aggregate number which the holder is entitled to purchase
pursuant to these Warrants. In the event of a purchase of a number
of Shares less than the aggregate number which may be purchased
pursuant to these Warrants, the holder thereof shall be entitled to
receive, without charge, a new Warrant Certificate in respect of the
balance of the Warrants which were not exercised by the
Warrantholder.
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(f) Corporate Changes. If the Corporation shall be a party to any
reorganization, merger, dissolution or sale of all or substantially
all of its assets, whether or not the Corporation is the surviving
entity, these Warrants shall be adjusted so as to apply to the
securities to which the holder of that number of Shares of the
Corporation subject to the number of unexercised Warrants would have
been entitled by reason of such reorganization, merger, dissolution
or sale of all or substantially all of its assets (the "Event"), and
the Exercise Price shall be adjusted to be the amount determined by
multiplying the Exercise Price in effect immediately prior to the
Event by the number of Shares subject to the number of unexercised
Warrants immediately prior to the Event, and dividing the product
thereof by the number of securities to which the holder of that
number of Shares subject to the number of unexercised Warrants would
have been entitled by reason of such Event; provided however, that
the Event shall not be carried into effect unless all necessary
steps have been taken to ensure that any surviving entity is subject
to the terms of these Warrants as adjusted.
(g) Subdivision or Consolidation of Shares
(i) In the event the Corporation shall subdivide its outstanding
Shares into a greater number of Shares, the Exercise Price in
effect immediately prior to such subdivision shall be
proportionately reduced, and conversely, in the event the
outstanding Shares of the Corporation shall be consolidated
into a smaller number of Shares, the Exercise Price in effect
immediately prior to such consolidation shall be
proportionately increased.
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(ii) Upon each adjustment of the Exercise Price as provided herein,
the Warrantholder shall thereafter be entitled to acquire, at
the Exercise Price resulting from such adjustment, the number
of Shares (calculated to the nearest tenth of a Share)
obtained by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of Shares
which may be acquired hereunder immediately prior to such
adjustment and dividing the product thereof by the Exercise
Price resulting from such adjustment.
(h) Change or Reclassification of Shares. In the event the Corporation
shall change or reclassify its outstanding Shares into a different
class of securities, the Warrants shall be adjusted as follows so as
to apply to the successor class of securities:
(i) the number of the successor class of securities which the
Warrantholder shall be entitled to acquire shall be that
number of the successor class of securities which a holder of
that number of Shares subject to the number of unexercised
Warrants immediately prior to the change or reclassification
would have been entitled to by reason of such change or
reclassification; and
(ii) the Exercise Price shall be determined by multiplying the
Exercise Price in effect immediately prior to the change or
reclassification by the number of Shares subject to the number
of unexercised Warrants immediately prior to the change or
reclassification, and dividing the product thereof by the
number of the successor class of securities determined in
paragraph 2(h)(i) hereof.
(i) Offering to Shareholders. If and whenever at any time prior to the
Time of Expiry the Corporation shall fix a record date or if a date
is otherwise established (any such date being hereinafter referred
to in this subsection 2(i) as the "record date") for the issuance of
rights, options or warrants to all or substantially all the holders
of the outstanding Shares of the Corporation entitling them, for a
period expiring not more than 45 days after such record date, to
subscribe for or purchase Shares of the Corporation or securities
convertible into or exchangeable for Shares at a price per share or,
as the case may be, having a conversion or exchange price per share
less than 95% of the Fair Market Value (as hereinafter defined) on
such record date, the Exercise Price shall be adjusted immediately
after such record date so that it shall equal the price determined
by multiplying the Exercise Price in effect on such record date by a
fraction, of which the numerator shall be the total number of Shares
outstanding on such record date plus a number equal to the number
arrived at by dividing the aggregate price of the total number of
additional Shares offered for subscription or purchase or, as the
case may be, the aggregate conversion or exchange price of the
convertible or exchangeable securities so offered by the Fair Market
Value, and of which the denominator shall be the total number of
Shares outstanding on such record date plus the total number of
additional Shares so offered (or into which the convertible or
exchangeable securities so offered are convertible or exchangeable);
Shares owned by or held for the account of the Corporation or any
subsidiary of the Corporation shall be deemed not to be outstanding
for the purpose of any such computation; such adjustment shall be
made successively whenever such a record date is fixed; to the
extent that any rights or warrants are not so issued or any such
rights or warrants are not exercised prior to the expiration
thereof, the Exercise Price shall then be readjusted to the Exercise
Price which would then be in effect if such record date had not been
fixed or to the Exercise Price which would then be in effect based
upon the number of Shares or conversion or exchange rights contained
in convertible or exchangeable securities actually issued upon the
exercise of such rights or warrants, as the case may be.
(j) Additional Subscriptions. If at any time the Corporation grants to
its shareholders the right to subscribe for and purchase pro rata
additional securities of the Corporation (other than securities
described in subsection (2)(i) hereof) or of any other corporation
or entity, there shall be no adjustments made to the number of
Shares or other securities subject to the Warrants in consequence
thereof and the Warrants shall remain unaffected.
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(k) Adjustment for Lower Price Financing. If at any time on or before
April 1, 2002 the Corporation raises financing in the amount of C$1
million or more, as part of which equity securities are issued at a
price of less than C$4.50 per security or securities convertible
into common shares of the Corporation are issued having a conversion
price of less than C$4.50 per share (in either case a "Lower Price
Financing"), the Exercise Price shall be adjusted so that these
Warrants are exercisable at the issue price or conversion price
under the Lower Price Financing. In addition, corresponding
adjustments shall be made to these Warrants and the Exercise Price
in the circumstances described in section 2 of the letter agreement
between the Warrantholder and the Corporation dated January 17, 2002
(the "Stand-by Investment Agreement"), where a Lower Price Financing
is completed by the Corporation within a period of one year after
the Corporation has drawn down all or part of the Committed Amount
made available by the Warrantholder under the Stand-by Investment
Agreement.
(l) Carry Over of Adjustments. Except as may be required under
subsection 2(k) above, no adjustment of the Exercise Price shall be
made if the amount of such adjustment shall be less than 1% of the
Exercise Price in effect immediately prior to the event giving rise
to the adjustment, provided however, that in such case any
adjustment that would otherwise be required then to be made shall be
carried forward and shall be made at the time of and together with
the next subsequent adjustment which, together with any adjustment
so carried forward, shall amount to at least 1% per Share.
(m) Notice of Adjustment. Upon any adjustment of the number of Shares
and upon any adjustment of the Exercise Price, then and in each such
case the Corporation shall give written notice thereof to the
Warrantholder, which notice shall state the Exercise Price and the
number of Shares or other securities subject to the number of
unexercised Warrants resulting from such adjustment, and shall set
forth in reasonable detail the method of calculation and the facts
upon which such calculation is based. Upon the request of the
Warrantholder there shall be transmitted promptly to the
Warrantholder a statement of the firm of independent chartered
accountants retained to audit the financial statements of the
Corporation to the effect that such firm concurs in the
Corporation's calculation of the change.
(n) Other Notices. In case at any time:
(i) the Corporation intends to sign an underwriting agreement for
a stock exchange listed or quoted public offering of its
common shares;
(ii) the Corporation shall declare any dividend upon its Shares;
(iii) the Corporation shall offer for subscription pro rata to the
holders of its Shares any additional shares of any class or
other rights;
(iv) there shall be any capital reorganization or reclassification
of the capital stock of the Corporation, or consolidation,
amalgamation or merger of the Corporation with, or sale of all
or substantially all of its assets to, another corporation; or
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(v) there shall be a voluntary or involuntary dissolution,
liquidation or winding-up of the Corporation,
then, in any one or more of such cases, the Corporation shall give to the
Warrantholder (A) at least 10 days' prior written notice of the
anticipated signing of such an underwriting agreement, (B) at least 20
days' prior written notice of the date on which a record shall be taken
for such dividend, distribution or subscription rights or for determining
rights to vote in respect of any such reorganization, reclassification,
consolidation, merger, amalgamation, sale, dissolution, liquidation or
winding-up and (C) in the case of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding-up, at least 20 days' prior written notice of the date when the
same shall take place. Such notice in accordance with the foregoing clause
shall also specify (A) in the case of an initial public offering, the
expected date of closing of such offering, (B) in the case of any such
dividend, distribution or subscription rights, the date on which the
holders of Shares shall be entitled thereto, and (C) in the case of any
transaction described in the foregoing clauses (iv) and (v), the date on
which the holders of Shares are to be entitled to exchange their Shares
for securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, amalgamation, sale, dissolution,
liquidation or winding-up, as the case may be.
(o) Shares to be Reserved. The Corporation will at all times keep
available and reserve out of its authorized Shares, solely for the
purpose of issue upon the exercise of these Warrants, such number of
Shares as shall then be issuable upon the exercise of these
Warrants. The Corporation covenants and agrees that all Shares which
shall be so issuable will, upon issuance, be duly authorized and
issued, fully paid and non-assessable. The Corporation will take all
such action as may be necessary to assure that all such Shares may
be so issued without violation of any applicable requirements of any
stock exchange upon which the Shares of the Corporation may be
listed or in respect of which the Shares are qualified for unlisted
trading privileges. The Corporation will take all such action as is
within its power to assure that all such Shares may be so issued
without violation of any applicable law.
(p) Issue Tax. The issuance of certificates for Shares upon the exercise
of these Warrants shall be made without charge to the Warrantholder
for any issuance tax in respect thereto, provided that the
Corporation shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issuance and
delivery of any certificate in a name other than that of the
Warrantholder.
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(q) Fair Market Value. For the purposes of any computation hereunder,
the "Fair Market Value" at any date shall be: (i) if the
Corporation's common shares are listed on a stock exchange or quoted
on a similar securities market, the weighted average sale price per
share for the common shares for any 20 consecutive trading days
(selected by the Corporation) commencing not more than 25 trading
days before such date on the principal stock exchange or similar
securities market upon which the common shares are listed or quoted,
as the case may be; or (ii) if the computation is being made in
connection with the initial public offering of the Corporation's
common shares, the gross offering price per share under the
offering; or (iii) in all other cases, the Fair Market Value shall
be determined by the directors in good faith, which determination
shall be conclusive. The weighted average sale price shall be
determined by dividing the aggregate sale price of all such shares
sold on the said exchange or market during the said 20 consecutive
trading days by the total number of such shares so sold.
3. TRANSFER
Subject to compliance by the Warrantholder with any applicable resale
restrictions, the Corporation acknowledges and agrees that these Warrants may be
assigned or transferred by the Warrantholder at the Warrantholder's option. It
is the sole responsibility of the Warrantholder to ensure that all such
restrictions have been observed. Upon any permitted assignment or transfer, the
Warrantholder shall furnish the Corporation with such information regarding the
transferee as the Corporation may reasonably require to register these Warrants
in the name of the transferee.
4. REPLACEMENT
Upon receipt of evidence satisfactory to the Corporation of the loss,
theft, destruction or mutilation of these Warrants and, if requested by the
Corporation, upon delivery of a bond of indemnity satisfactory to the
Corporation (or, in the case of mutilation, upon surrender of these Warrants),
the Corporation will issue to the Warrantholder replacement Warrants (containing
the same terms and conditions as these Warrants).
5. EXPIRY DATE
These Warrants shall expire and all rights to purchase Shares hereunder
shall cease and become null and void at 5:00 p.m. (Eastern Standard Time) on
February 15, 2006 or upon the happening of certain events as herein provided.
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6. INABILITY TO DELIVER SHARES
Notwithstanding any other provision hereof, if for any reason beyond the
Corporation's control (other than the failure or default of the Warrantholder)
the Corporation is unable to issue and deliver the Shares or other securities as
contemplated herein to the Warrantholder upon the proper exercise by the
Warrantholder of the Warrants to purchase any of the Shares covered by these
Warrants, the Corporation may pay, at its option and in complete satisfaction of
its obligations hereunder, to the Warrantholder, in cash, an amount equal to the
difference between the applicable Exercise Price and the Fair Market Value of
such Shares or other securities on the Exercise Date.
7. GOVERNING LAW
The laws of the Province of Ontario and applicable federal laws of Canada
shall govern these Warrants.
8. SUCCESSORS
These Warrants shall enure to the benefit of and shall be binding upon the
Warrantholder and the Corporation and their respective successors.
IN WITNESS WHEREOF the Corporation has caused these Warrants to be signed
by its duly authorised officers and its corporate seal hereto affixed.
DATED: February 15, 2002.
YM BIOSCIENCES INC.
By:
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ANNEX "A" TO SHARE PURCHASE WARRANT
ELECTION TO PURCHASE
The undersigned Warrantholder hereby irrevocably elects to exercise
Warrants issued by YM BIOSCIENCES INC. dated February 15, 2002 for the number of
common shares (or other property or securities subject thereto) ("Shares") as
set forth below:
(a) Number of Shares to be Acquired: __________
(b) Exercise Price per Share: C$__________
(c) Aggregate Purchase Price C$__________
[(a) multiplied by (b)]
and hereby tenders a certified or cashier's cheque or bank draft for such
aggregate purchase price, and directs such Shares to be registered and a
certificate therefor to be issued as directed below.
DATED this ________ day of __________ , 200_.
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Witness Signature
Direction as to Registration
Name of Registered Holder:
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Address of Registered Holder:
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ANNEX "B"
TO: YM BIOSCIENCES INC.
FOR VALUE RECEIVED, the undersigned hereby sells, transfers and assigns
unto ________ the within warrant (herein called the "warrant"). The undersigned
hereby irrevocably instructs you to transfer the warrant on your books of
registration and to issue in substitution therefor a new warrant in the same
aggregate number of warrants as the warrant.
DATED this ________ day of __________ , 200_.
Signature of Transferor is hereby guaranteed:
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(Signature of Transferor)
Note: The signature to this warrant transfer must correspond with the name as
set forth on the face of the warrant in every particular without alteration or
enlargement or any change whatsoever, and must be guaranteed by a bank or other
financial institution acceptable to the Corporation.