VOID AFTER 5:00 P.M., EASTERN TIME, ON APRIL 11, 2010
Exhibit
4.8
VOID
AFTER 5:00 P.M., EASTERN TIME,
ON
APRIL
11, 2010
THIS
WARRANT AND THE SHARES OF COMMON STOCK UNDERLYING THIS WARRANT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”),
AND
MAY NOT BE SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT
TO
AN EFFECTIVE REGISTRATION UNDER THE SECURITIES ACT OR IN A TRANSACTION THAT,
IN
THE OPINION OF COUNSEL TO JAVELIN PHARMACEUTICALS, INC., QUALIFIES AS AN
EXEMPT
TRANSACTION UNDER THE SECURITIES ACT AND THE RULES AND REGULATIONS PROMULGATED
THEREUNDER.
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No.
CS90
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20,000
Shares
|
JAVELIN
PHARMACEUTICALS, INC., a Delaware corporation (the “Company”),
hereby grants to TWO
RIVER GROUP HOLDINGS LLC
(the
“Initial
Holder”),
subject to the terms set forth in this Common Stock Purchase Warrant Agreement
(the “Warrant
Agreement”),
the
right to exercise Common Stock Purchase Warrants (the “Warrants”)
for
the purchase from the Company of up to 20,000
shares
(the “Shares”)
of the
Company’s Common Stock, at an exercise price of $3.00
per
share, subject to adjustment from time to time pursuant to Section 3 hereof
(the
“Exercise
Price”).
The
term “Common
Stock”
means,
unless the context otherwise requires, the Company’s Common Stock, par value
$.001 per share, or other securities or property at the time deliverable
upon
the exercise of this Warrant.
This
Warrant had been originally issued to the Initial Holder by Intrac, Inc.,
a
Nevada corporation (“Intrac”) in consideration for investor relations consulting
services through December 31, 2005, between the Initial Holder and Intrac,
Inc.
Effective September 7, 2005, Intrac merged with and into the Company, and
the
Company assumed all outstanding warrants to purchase Intrac common stock
on the
same terms as the Intrac warrants, except exercisable for shares of the
Company’s Common Stock.
1.
Exercise.
1.1 Timing
of Exercise.
The
Warrants shall be exercisable at any time in whole or in part from time to
time
commencing as of the date hereof and expiring at 5:00 P.M., New York time,
on
April 11, 2010 (the “Expiration
Date”),
subject to earlier termination as provided herein, and may not be exercised
thereafter.
1.2 Manner
of Exercise.
The
purchase rights evidenced by this Warrant Agreement shall be exercised by
the
Initial Holder or any person permitted by Section 6 hereof (collectively,
“the
Holder”),
by
surrendering this Warrant Agreement, together with the Notice of Exercise
in
the
form
of Exhibit
A
annexed
hereto duly executed by the Holder, to the Company at the address in Section
11
hereof for sending of notices, accompanied by payment (in cash, by wire transfer
or by certified or official bank check or checks) of the applicable Exercise
Price.
1.3 Net
Issue Exercise.
(a) In
lieu
of making payment a monetary payment as provided in Section 1.2 hereof upon
exercise, the Holder may elect, in its sole discretion, to receive shares
of
Common Stock equal to the value (as determined below) of the Warrants then
being
exercised by surrender of this Warrant Agreement to the Company, together
with
the Notice of Exercise and notice of the net issue election. Thereupon, the
Company shall issue to the Holder the number of Shares computed using the
following formula:
X
=
Y(A-B) / A
Where:
X
= the
number of Shares to be issued to the Holder pursuant to this Section
1.3.
Y=
the
number of Shares in respect of which the net issue exercise is being
made.
A=
the
current fair market value of one share of Common Stock.
B=
the
Exercise Price at the time the net issue exercise is being made.
(b) For
the
purpose of this Section, the fair market value of the Shares shall mean with
respect to each share of Common Stock:
(i) If
the
Shares are listed on any national securities exchange or quoted on the Nasdaq
National Market, Nasdaq Small Cap Market or the OTC Bulletin Board, the average
of the closing prices of the Shares, sold on the primary securities exchange
or
market on which the Shares are at the time listed or traded, for the ten
(10)
trading days immediately prior to the day the Notice of Exercise is received
by
the Company; or
(ii) If
the
Shares are not quoted on any national securities exchange or quoted on the
Nasdaq National Market, Nasdaq Small Cap Market or the OTC Bulletin Board,
the
average of the mean between the highest bid and lowest asked price on such
a day
in the domestic over-the-counter market as reported by the National Quotation
Bureau or any similar successor organization, for the thirty (30) calendar
days
immediately prior to the day the Notice of Exercise is received by the
Company;
(iii) If
there
is no public market for the Shares, the price determined by the Board of
Directors of the Company acting in good faith.
1.4 Partial
Exercise.
This
Warrant may be exercised for less than the full number of Shares available
for
exercise at the time the Notice of Exercise is submitted, in which case the
number of Shares receivable upon the exercise of this Warrant as a whole,
and
the amount payable upon the exercise of this Warrant as a whole, shall be
proportionately reduced. Upon any such partial exercise, the Company at its
expense will forthwith issue to the Holder a new
2
Warrant
Agreement of like tenor calling for Warrants to purchase the number of shares
of
Common Stock as to which rights have not been exercised.
2.
Delivery
of Stock Certificates Upon Exercise.
As soon
as practicable after the exercise of any Warrants, and in any event within
five
(5) business days thereafter, the Company, at its expense, will cause to
be
issued in the name of and delivered to the Holder or other person specified
in
the Notice of Exercise a certificate or certificates for the number of fully
paid and non-assessable shares of Common Stock to which the Holder shall
be
entitled upon such exercise, subject to compliance with Section 7 hereof.
Any
shares of Common Stock as to which this Warrant is exercised shall be deemed
issued on and as of the date of such exercise, and the Holder shall thereupon
be
deemed to be the owner of record of such Shares.
3.
Anti-Dilution
Adjustments.
3.1 Change
in Capitalization.
If the
Company shall at any time prior to the Expiration Date subdivide its outstanding
Common Stock, by forward stock split or otherwise, or combine its outstanding
Common Stock (including a reverse split), or issue additional shares of its
Common Stock in payment of a stock dividend in respect of its Common Stock,
the
Shares shall forthwith be proportionately increased in the case of a subdivision
or stock dividend, or proportionately decreased in the case of a combination,
and the Exercise Price then applicable to the Shares covered by the unexercised
portion of the Warrants shall forthwith be proportionately decreased in the
case
of a subdivision or stock dividend, or proportionately increased in the case
of
a combination.
3.2 Reclassification.
In case
of any reclassification, capital reorganization or change of the outstanding
Common Stock of the Company (other than as a result of a subdivision,
combination or stock dividend covered by Section 3.1 hereof), at any time
prior
to the Expiration Date, then, as a condition of such reclassification,
reorganization or change, lawful provision shall be made, and duly executed
documents evidencing the same from the Company or its successor shall be
delivered to the Holder, so that the Holder shall have the right prior to
the
Expiration Date to purchase, at a total price not to exceed that payable
upon
the exercise of the unexercised portion of the Warrants, the kind and amount
of
shares of stock and other securities and property receivable upon such
reclassification, reorganization or change, by a holder of the number of
shares
of Common Stock of the Company which might have been purchased by the Holder
immediately prior to such reclassification, reorganization or change, and
in any
such case appropriate provisions shall be made with respect to the rights
and
interest of the Holder to the end that the provisions hereof (including without
limitation, provisions for the adjustment of the Exercise Price and of the
number of Shares purchasable upon exercise of the Warrants) shall thereafter
be
applicable in relation to any shares of stock and other securities and property
thereafter deliverable upon exercise hereof.
3.3 Consolidation,
Merger and Sale of Assets.
In case
of any consolidation of the Company with or a merger of the Company into
another
corporation or in case of any sale or conveyance and to another corporation
of
the property of the Company as an entirety or substantially as an entirety,
upon
any such consolidation, merger, sale or conveyance (i) the surviving entity
or its parent corporation is a public reporting company under the Securities
Exchange Act of 1934, as amended, and (ii) the consideration to be received
by the holders of
3
the
Company’s Common Stock includes publicly traded equity securities in the
surviving entity or parent corporation, the Company agrees that a condition
of
such transaction will be that the successor or purchasing corporation, as
the
case may be, shall assume the obligations of the Company hereunder in writing.
In the case of any such consolidation, merger or sale or conveyance, the
Holder
shall have the right until the Expiration Date upon payment of the Exercise
Price in effect immediately prior to such action, to receive the kind and
amount
of shares and other securities and/or property which it would have owned
or have
been entitled to receive after the happening of such consolidation, merger,
sale
or conveyance had this Warrant been exercised immediately prior to such action,
subject to adjustments which shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Section 3. The provisions of this
Section 3.3 shall similarly apply to successive consolidations, mergers,
sales
or conveyances.
3.4 Non-Public
Successor.
In case
of any consolidation of the Company with or a merger of the Company into
another
corporation or in case of any sale or conveyance to another corporation of
the
property of the Company as an entirety or substantially as an entirety, upon
any
such consolidation, merger, sale or conveyance (i) the surviving entity is
not a public reporting company (as defined above), or (ii) the
consideration to be received by the holders of the Company’s Common Stock does
not include any publicly traded equity securities in the surviving entity
or its
parent corporation, the Company agrees that a condition of such transaction
will
be that the Company shall mail to the Holder at the earliest applicable time
(and, in any event not less than ten (10) days before any record date for
determining the persons entitled to receive the consideration payable in
such
transaction) written notice of such record date. Such notice shall also set
forth facts as shall indicate the effect of such action (to the extent such
effect may be known at the date of such notice) on the Exercise Price of
and the
kind and amount of the Shares and other securities and property deliverable
upon
exercise of the Warrants. Upon the closing of the transaction referenced
in the
foregoing notice, this Warrant Agreement and the Warrants hereunder to the
extent then unexercised shall terminate.
3.5 Exchanges
and Distributions With Respect to Common Stock.
If the
Company shall exchange for its Common Stock or distribute with respect to
its
Common Stock other securities issued by it, the Company shall give notice
thereof to the Holder, and the Holder shall have the right thereafter (until
the
Expiration Date) to exercise the Warrants for the kind and amount of shares
of
stock and other securities retained or received by a holder of the number
of
shares of Common Stock of the Company into which the Warrants might have
been
exercised immediately prior to such exchange or distribution, subject to
adjustment as provided hereinabove.
3.6 Officer’s
Certificate.
Whenever the Exercise Price or the number of shares of Common Stock subject
to
this Warrant Agreement is adjusted, the Company shall promptly mail to the
Holder a notice of adjustment. The notice of adjustment shall include a brief
statement of the facts requiring the adjustment and the manner of computing
it,
and shall be certified by the chief financial officer of the Company. The
determination of the adjustment shall be made by the Company in its sole
discretion and shall be final and binding upon the Holder.
4.
Shares
to Be Fully Paid; Reservation of Capital Stock Issuable Upon Exercise of
Warrants.
The
Company covenants and agrees that any ▇▇▇▇▇▇ issued hereunder will,
upon
4
issuance,
be fully paid and non-assessable and free from all taxes, liens and charges
with
respect to the issuance thereof. The Company shall at all times reserve and
keep
available out of its authorized but unissued capital stock, solely for the
issuance and delivery upon the exercise of the Warrants, such number of its
duly
authorized shares of Common Stock as from time to time shall be issuable
upon
the exercise of the Warrants.
5.
Fractional
Shares.
The
Company shall not issue fractions of shares of Common Stock upon exercise
of the
Warrants or scrip in lieu thereof. If any fraction of a share of Common Stock
would, except for the provisions of this Section 5, be issuable upon exercise
of
the Warrants, then the number of shares of Common Stock to be issued shall
be
rounded up or down to the nearest whole share.
6.
Transfer
Restrictions.
A
Holder, including the Initial Holder or any subsequent Holder, may transfer
this
Warrant Agreement only to (i) any entity controlled by, controlling or
under common control of the Holder, or for which the Holder is acting as
the
representative, (ii) one or more of its shareholders, directors, officers,
members, employees or limited or general partners, or (iii) any member of
the immediate family (which shall be deemed to include a spouse, parent,
or
child) of an individual Holder or trust for the benefit of any such individual.
Prior to any such transfer, the Holder must deliver the Assignment Form in
the
form of Exhibit
B
hereto
and provide information to the Company, in writing, regarding the proposed
transferee sufficient for the Company to determine the eligibility of such
transferee under this Section 6.
7.
Securities
Law Compliance.
7.1 Investment.
Unless
the Shares to be issued upon exercise of the Warrants are then included in
an
effective registration statement filed under the Securities Act of 1933,
as
amended (the “Securities
Act”),
the
Holder, by accepting this Warrant Agreement, covenants and agrees that, at
the
time of exercise hereof, and at the time of any proposed transfer of the
Warrants of Shares acquired upon exercise hereof, the Holder shall deliver
to
the Company a written statement that the securities acquired by the Holder
upon
exercise hereof are for the account of the Holder or are being held by the
Holder as trustee, investment manager, investment advisor or as any other
fiduciary for the account of the beneficial owner or owners for investment
and
are not acquired with a view to, or for sale in connection with, any
distribution thereof (or any portion thereof) and with no present intention
(at
any such time) of offering and distributing such securities (or any portion
thereof), and including such other representations as may be reasonably
requested by counsel to the Company. Further, the Holder shall comply with
such
provisions of applicable state securities laws as counsel to the Company
or
other counsel reasonably acceptable to the Company shall advise.
7.2 Legend.
Unless
the Shares issuable upon exercise of the Warrants are registered under the
Securities Act, upon exercise of any part of the Warrants and the issuance
of
any of such Shares, the Company shall instruct its transfer agent to enter
stop
transfer orders with respect to such Shares, and all certificates representing
the Shares issued upon exercise hereof shall bear on the face thereof
substantially the following legend, insofar as is consistent with applicable
law:
5
“The
shares of Common Stock represented by this Certificate have not been registered
under the Securities Act of 1933, as amended, and may not be sold, offered
for
sale, assigned, transferred or otherwise disposed of unless registered pursuant
to the provisions of that Act or an opinion of counsel to the Company is
obtained stating that such disposition is in compliance with an available
exemption from such registration.”
7.3 No
Registration Rights.
The
Holder acknowledges that it will have no demand, “piggy-back” or other rights
for inclusion of the Shares in any registration statement which may hereafter
be
filed by the Company under the Securities Act.
8.
Replacement
of Warrant Agreement.
Upon
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant Agreement and (in the case of loss,
theft or destruction) upon delivery of an indemnity agreement, and if requested
by the Board of Directors, a bond in an amount reasonably satisfactory to
it, or
(in the case mutilation) upon surrender and cancellation hereof, the Company
will issue in lieu thereof a new Warrant Agreement of like tenor.
9.
Rights
as a Warrant Holder.
The
Holder shall not, by virtue hereof, be entitled to any rights of a stockholder
in the Company, either at law or equity except with respect to certificates
representing shares of Common Stock issued upon exercise of this Warrant.
The
rights of the Holder are limited to those expressed in this Warrant Agreement
and are not enforceable against the Company except to the extent set forth
herein. Prior to due presentment for transfer of this Warrant Agreement,
the
Company may deem and treat the Holder as the absolute owner of this Warrant
Agreement for purposes of any exercise hereof and for all other purposes
and
such right of the Company shall not be affected by any notice to the
contrary.
10. Subdivision
of Rights.
This
Warrant Agreement (as well as any new Warrants issued pursuant to the provisions
of this Section) is exchangeable upon the surrender hereof by the Holder
at the
principal office of the Company for any number of new Warrants of like tenor
and
date representing in the aggregate the right to subscribe for and purchase
the
number of shares of Common Stock of the Company that may be purchased
hereunder.
11. Sending
of Notices.
All
notices and other communications with respect to this Warrant Agreement shall
be
in writing and sent by express mail or courier service or by personal delivery,
if to the Holder, to the address set forth at the end of this Warrant Agreement,
and if to the Company, to ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, or to such other address as either party hereto may duly give to the
other.
12. Headings.
The
headings in this Warrant Agreement are for purposes of reference only and
shall
not limit or otherwise affect the meaning of the terms hereof.
13. Change,
Waiver, Discharge or Termination.
This
Warrant Agreement sets forth the entire agreement between the Company and
the
Holder with respect to the matters herein, and supersedes any warrant agreement
between the Initial Holder and Intrac as to the the right to purchase Intrac
securities. Neither this Warrant Agreement nor any term hereof may be
changed,
6
waived,
discharged or terminated orally, but only by an instrument in writing signed
by
the party against which enforcement of the change, waiver, discharge or
termination is sought.
14. Binding.
This
Warrant Agreement shall be binding upon and inure to the benefit of the Company
and the Holder, and their respective successors and assigns.
15. Governing
Law.
This
Warrant Agreement shall be governed by, and construed in accordance with,
the
laws of the State of Delaware, without giving effect to principles of conflicts
of law.
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By:
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Dated:
September 7, 2005
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Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇, MD
Title:
Chief Executive Officer
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|
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Agreed
to:
TWO
RIVERS GROUP HOLDINGS LLC
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By:
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Name:
Title:
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▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
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Tax
Identification No.
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7
EXHIBIT
A
NOTICE
OF EXERCISE
(To
be
executed by a Holder desiring to exercise the right to purchase Shares
pursuant
to a Warrant.)
The
undersigned Holder of the attached Warrant Agreement hereby:
1. Irrevocably
elects
to
exercise the Warrant therein by (please check the applicable box):
(a) o Cash
Exercise to the extent of purchasing ________ Shares at $ ____ per Share,
and
makes payment in full of the aggregate Exercise Price for those Shares
in the
amount of $___________ by wire transfer or the delivery of certified
funds or a
bank cashier’s check; or
(b) o
Net
Issue
Exercise pursuant to the provision of Section 1.3 for the purchase of
________
Shares at $____ per Share, such number of Shares and Exercise Price subject
to
Section 3 of the Warrant Agreement.
2. Requests
that a certificate for the Shares be issued in the name of the undersigned,
or,
if the name and address of some other person is specified below, in the
name of
such other person:
___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
(Name,
address and tax identification number of person other
than
the
undersigned in whose name Shares are to be registered.)
3. Requests,
if the number of Shares purchased are not all the Shares purchasable
pursuant to
the unexercised portion of the Warrants, that a new Warrant Agreement
of like
tenor for the remaining Shares purchasable pursuant to the Warrants be
issued
and delivered to the undersigned at the address stated below.
|
Dated:
_________________________________________
|
__________________________________________________
Signature
|
(This
signature must conform in all respects to the name of the Holder as specified
on
the face of the Warrant Agreement)
|
_______________________________________________
Social
Security or Tax Identification Number
|
__________________________________________________
Printed
Name
|
Address:
_____________________________________________
______________________________________________
Stock
Warrant No.: ##
EXHIBIT
B
ASSIGNMENT
FORM
FOR
VALUE RECEIVED, the
undersigned,
________________________________,
hereby sells, assigns and transfers unto:
Name:
__________________________________________________
(Please
type or print in block letters.)
Address:
________________________________________________
________________________________________________________
the
right
to purchase _______________ shares (the “Shares”) of Javelin Pharmaceuticals,
Inc. (the “Company”) pursuant to the terms and conditions of the Warrant
Agreement held by the undersigned. The undersigned hereby authorizes
and directs
the Company (i) to issue and deliver to the above-named assignee at the
above address a new Warrant Agreement pursuant to which the rights to
purchase
being assigned may be exercised, and (ii) if there are rights to purchase
Shares remaining pursuant to the undersigned’s Warrants after the assignment
contemplated herein, to issue and deliver to the undersigned at the address
stated below a new Warrant Agreement evidencing the right to purchase
the number
of Shares remaining after issuance and delivery of the Warrants to the
above-named assignee. Except for the number of Shares purchasable, the
new
Warrant Agreement to be issued and delivered by the Company is to contain
the
same terms and conditions as the undersigned’s Warrant Agreement. This
Assignment is subject to receipt by the Company of such investment
representations by the assignee, as may be reasonably required under
the
Securities Act of 1933, as amended.
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Dated:
_________________________________________
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__________________________________________________
Signature
|
(This
signature must conform in all respects to the name of the Holder as
specified on
the face of the Warrant Agreement)
|
_______________________________________________
Social
Security or Tax Identification Number
|
__________________________________________________
Printed
Name
|
Address:
_____________________________________________
______________________________________________
Stock
Warrant No.: ##