WARRANT To Purchase ______ Shares of Common Stock of COUGAR BIOTECHNOLOGY, INC.
Exhibit
4.3
WARRANT
To
Purchase ______ Shares of Common Stock
of
This
Warrant and the Securities issuable upon exercise of this Warrant have not
been
registered under the Securities Act of 1933 (the “1933 Act”) or under any state
securities or “Blue Sky” laws (“Blue Sky Laws”). No transfer, sale, assignment,
pledge, hypothecation or other disposition of this Warrant or the Securities
issuable upon exercise of this Warrant or any interest therein may be made
except (a) pursuant to an effective registration statement under the 1933
Act and any applicable Blue Sky Laws or (b) if the Corporation has been
furnished with an opinion of counsel for the holder, which opinion and counsel
shall be reasonably satisfactory to the Corporation, to the effect that no
registration is required because of the availability of an exemption from
registration under the 1933 Act and applicable Blue Sky laws.
THIS
CERTIFIES THAT,
for good
and valuable consideration [____________]
(the
“Holder”), or the Holder’s registered assigns, is entitled to subscribe for and
purchase from Cougar Biotechnology, Inc., a Delaware corporation (the
“Corporation”), at any time on or after __________, 2006, to and including
__________, 2011, ________________ (_____) fully paid and nonassessable shares
of the Common Stock of the Corporation at the price of $3.18 per share (the
“Warrant Exercise Price”), subject to the provisions in Section 5, of this
Warrant.
The
shares which may be acquired upon exercise of this Warrant are referred to
herein as the “Warrant Shares.” As used herein, the term “Holder” means the
Holder, any party who acquires all or a part of this Warrant as a registered
transferee of the Holder, or any record holder or holders of the Warrant Shares
issued upon exercise, whether in whole or in part, of the Warrant. The term
“Common Stock” means the common stock, $0.001 par value per share, of the
Corporation.
This
Warrant is subject to the following provisions, terms and
conditions:
1. Exercise;
Transferability.
(a) The
rights represented by this Warrant may be exercised by the Holder hereof, in
whole or in part (but not as to a fractional share of Common Stock), by written
notice of exercise (in the form attached hereto) delivered to the Corporation
at
the principal office of the Corporation prior to the expiration of this Warrant
and accompanied or preceded by the surrender of this Warrant along with a check
in payment of the Warrant Exercise Price for such Warrant Shares.
(b) Except
as
provided in Section 7 hereof, this Warrant may not be sold, transferred,
assigned, hypothecated or divided into two or more Warrants of smaller
denominations, nor may any Warrant Shares issued pursuant to exercise of this
Warrant be transferred. In no event may this Warrant be transferred and divided
(without any exercise hereof) into any denomination(s) of less than 100 Warrant
Shares.
2. Exchange
and Replacement.
Subject
to Sections 1 and 7 hereof, this Warrant is exchangeable upon the surrender
hereof by the Holder to the Corporation at its office for new Warrants of like
tenor and date representing in the aggregate the right to purchase the number
of
Warrant Shares purchasable hereunder, each of such new Warrants to represent
the
right to purchase such number of Warrant Shares (not to exceed the aggregate
total number purchasable hereunder) as shall be designated by the Holder at
the
time of such surrender. Upon receipt by the Corporation of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and, in case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to it, and upon surrender and cancellation of this
Warrant, if mutilated, the Corporation will make and deliver a new Warrant
of
like tenor, in lieu of this Warrant. This Warrant shall be promptly canceled
by
the Corporation upon the surrender hereof in connection with any exchange or
replacement. The Corporation shall pay all expenses, taxes (other than stock
transfer taxes), and other charges payable in connection with the preparation,
execution, and delivery of Warrants pursuant to this
Section 2.
3. Issuance
of the Warrant Shares.
(a) The
Corporation agrees that the Warrant Shares shall be and are deemed to be issued
to the Holder as of the close of business on the date on which this Warrant
shall have been surrendered and the payment made for such Warrant Shares as
aforesaid. Subject to the provisions of paragraph (b) of this Section 3,
certificates for the Warrant Shares so purchased shall be delivered to the
Holder within a reasonable time after the rights represented by this Warrant
shall have been so exercised, and, unless this Warrant has expired, a new
Warrant representing the right to purchase the number of Warrant Shares, if
any,
with respect to which this Warrant shall not then have been exercised shall
also
be delivered to the Holder.
(b) Notwithstanding
the foregoing, however, the Corporation shall not be required to deliver any
certificate for Warrant Shares upon exercise of this Warrant except in
accordance with exemptions from the applicable securities registration
requirements or registrations under applicable securities laws. Except as
described in Section 9, nothing herein shall obligate the Corporation to effect
registrations under federal or state securities laws. If registrations are
not
in effect and if exemptions are not available when the Holder seeks to exercise
the Warrant, the Warrant exercise period will be extended, if need be, to
prevent the Warrant from expiring, until such time as either registrations
become effective or exemptions are available, and the Warrant shall then remain
exercisable for a period of at least 30 calendar days from the date the
Corporation delivers to the Holder written notice of the availability of such
registrations or exemptions. The Holder agrees to execute such documents and
make such representations, warranties and agreements as may be required solely
to comply with the exemptions relied upon by the Corporation, or the
registrations made, for the issuance of the Warrant Shares.
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4. Covenants
of the Corporation.
The
Corporation covenants and agrees that all Warrant Shares will, upon issuance,
be
duly authorized and issued, fully paid, non-assessable and free from all taxes,
liens and charges with respect to the issue thereof. The Corporation further
covenants and agrees that during the period within which the rights represented
by this Warrant may be exercised, the Corporation will at all times have
authorized and reserved for the purpose of issue or transfer upon exercise
of
the subscription rights evidenced by this Warrant a sufficient number of shares
of Common Stock to provide for the exercise of the rights represented by this
Warrant.
5. Anti-dilution
Adjustments.
The
provisions of this Warrant are subject to adjustment as provided in this
Section 5.
(a) Stock
Splits, Dividends and Combinations.
The
Warrant Exercise Price shall be adjusted from time to time such that in case
the
Corporation shall hereafter:
(i)
pay any
dividends on any class of stock of the Corporation payable in Common Stock
or
securities convertible into Common Stock;
(ii)
subdivide its then outstanding shares of Common Stock into a greater number
of
shares; or
(iii)
combine
outstanding shares of Common Stock, by reclassification or
otherwise;
then,
in
any such event, the Warrant Exercise Price in effect immediately prior to such
event shall (until adjusted again pursuant hereto) be adjusted immediately
after
such event to a price (calculated to the nearest full cent) determined by
dividing (A) the number of shares of Common Stock outstanding immediately
prior to such event, multiplied by the then existing Warrant Exercise Price,
by
(B) the total number of shares of Common Stock outstanding immediately
after such event (including in each case the maximum number of shares of Common
Stock issuable in respect of any securities convertible into Common Stock),
and
the resulting quotient shall be the adjusted Warrant Exercise Price per share.
An adjustment made pursuant to this Subsection shall become effective
immediately after the record date in the case of a dividend or distribution
and
shall become effective immediately after the effective date in the case of
a
subdivision, combination or reclassification. If, as a result of an adjustment
made pursuant to this Subsection, the Holder of any Warrant thereafter
surrendered for exercise shall become entitled to receive shares of two or
more
classes of capital stock or shares of Common Stock and other capital stock
of
the Corporation, the Board of Directors (whose determination shall be
conclusive) shall determine the allocation of the adjusted Warrant Exercise
Price between or among shares of such classes of capital stock or shares of
Common Stock and other capital stock. All calculations under this Subsection
shall be made to the nearest cent or to the nearest 1/100 of a share, as the
case may be. In the event that at any time as a result of an adjustment made
pursuant to this Subsection, the holder of any Warrant thereafter surrendered
for exercise shall become entitled to receive any shares of the Corporation
other than shares of Common Stock, thereafter the Warrant Exercise Price of
such
other shares so receivable upon exercise of any Warrant shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent
as
practicable to the provisions with respect to Common Stock contained in this
Section.
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(b) Mechanics
of Adjustment for Stock Splits, Dividends and Combinations.
Upon
each adjustment of the Warrant Exercise Price pursuant to Section 5(a)
above, the Holder of each Warrant shall thereafter (until another such
adjustment) be entitled to purchase at the adjusted Warrant Exercise Price
the
number of shares, calculated to the nearest full share, obtained by multiplying
the number of shares specified in such Warrant (as adjusted as a result of
all
adjustments in the Warrant Exercise Price in effect prior to such adjustment)
by
the Warrant Exercise Price in effect prior to such adjustment and dividing
the
product so obtained by the adjusted Warrant Exercise Price.
(c) Consolidations,
Mergers and Reorganization Events.
In case
of any consolidation or merger to which the Corporation is a party other than
a
merger or consolidation in which the Corporation is the continuing corporation,
or in case of any sale or conveyance to another corporation of the property
of
the Corporation as an entirety or substantially as an entirety, or in the case
of any statutory exchange of securities with another corporation (including
any
exchange effected in connection with a merger of a third corporation into the
Corporation), there shall be no adjustment under Subsection (a) of this
Section 5; but the Holder of each Warrant then outstanding shall have the right
thereafter to convert such Warrant into the kind and amount of shares of stock
and other securities and property which he would have owned or have been
entitled to receive immediately after such consolidation, merger, statutory
exchange, sale or conveyance had such Warrant been converted immediately prior
to the effective date of such consolidation, merger, statutory exchange, sale
or
conveyance and, in any such case, if necessary, appropriate adjustment shall
be
made in the application of the provisions set forth in this Section with respect
to the rights and interests thereafter of any Holders of the Warrant, to the
end
that the provisions set forth in this Section shall thereafter correspondingly
be made applicable, as nearly as may reasonably be, in relation to any shares
of
stock and other securities and property thereafter deliverable on the exercise
of the Warrant. The provisions of this Subsection shall similarly apply to
successive consolidations, mergers, statutory exchanges, sales or
conveyances.
(d) Certificate
as to Adjustments.
Upon
the occurrence of each adjustment or readjustment of the Warrant Exercise Price
or the number of Warrants covered hereby pursuant to this Section, the
Corporation, at its expense, shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to the Holder
a
certificate setting forth such adjustment or readjustment and showing in detail
the facts upon which such adjustment or readjustment is based. The Corporation
shall, upon the written request at any time of the Holder, furnish or cause
to
be furnished to the Holder a like certificate setting forth (i) such
adjustments and readjustments, (ii) the Warrant Exercise Price at the time
in effect, and (iii) the number of shares of Common Stock and the amount,
if any, of other property which at the time would be received upon the exercise
of this Warrant.
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6. No
Voting Rights.
This
Warrant shall not entitle the Holder to any voting rights or other rights as
a
stockholder of the Corporation.
7. Notice
of Transfer of Warrant or Resale of the Warrant Shares.
(a) Subject
to the sale, assignment, hypothecation or other transfer restrictions set forth
in Section 1 hereof, the Holder, by acceptance hereof, agrees to give
written notice to the Corporation before transferring this Warrant or
transferring any Warrant Shares of such Holder's intention to do so, describing
briefly the manner of any proposed transfer. Promptly upon receiving such
written notice, the Corporation shall present copies thereof to the
Corporation's counsel. If in the opinion of such counsel the proposed transfer
may be effected without registration or qualification (under any federal or
state securities laws), the Corporation, as promptly as practicable, shall
notify the Holder of such opinion, whereupon the Holder shall be entitled to
transfer this Warrant or to dispose of Warrant Shares received upon the previous
exercise of this Warrant, all in accordance with the terms of the notice
delivered by the Holder to the Corporation; provided that an appropriate legend
may be endorsed on this Warrant or the certificates for such Warrant Shares
respecting restrictions upon transfer thereof necessary or advisable in the
opinion of counsel and satisfactory to the Corporation to prevent further
transfers which would be in violation of Section 5 of the 1933 Act and
applicable state securities laws; and provided further that the prospective
transferee or purchaser shall execute such documents and make such
representations, warranties and agreements as may be required solely to comply
with the exemptions relied upon by the Corporation for the transfer or
disposition of the Warrant or Warrant Shares.
(b) If,
in
the opinion of the Corporation’s counsel, the proposed transfer or disposition
of this Warrant or such Warrant Shares described in the written notice given
pursuant to this Section 7 may not be effected without registration or
qualification of this Warrant or such Warrant Shares, the Corporation shall
promptly give written notice thereof to the Holder, and the Holder will limit
its activities in respect to such transfer or disposition as, in the opinion
of
such counsel, are permitted by law.
8. Fractional
Shares.
Fractional shares shall not be issued upon the exercise of this Warrant, but
in
any case where the holder would, except for the provisions of this Section,
be
entitled under the terms hereof to receive a fractional share, the Corporation
shall, upon the exercise of this Warrant for the largest number of whole shares
then called for, pay a sum in cash equal to the sum of (a) the excess, if
any, of the Market Price of such fractional share over the proportional part
of
the Warrant Exercise Price represented by such fractional share, plus
(b) the proportional part of the Warrant Exercise Price represented by such
fractional share. For purposes of this Section, the term “Market Price” with
respect to shares of Common Stock of any class or series means the last reported
sale price or, if none, the average of the last reported closing bid and asked
prices on any national or regional securities exchange or quoted in the National
Association of Securities Dealers, Inc.'s Automated Quotations System
(“Nasdaq”), or if not listed on a national or regional securities exchange or
quoted in Nasdaq, the average of the last reported closing bid and asked prices
as reported by the OTC Bulletin Board from quotations by market makers in such
Common Stock, or if no quotations in such Common Stock are available, the fair
market value of the shares as determined in good faith by the Board of Directors
of the Corporation.
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9. Registration
Rights. If
at any
time prior to the expiration of this Warrant the Corporation shall propose
to
file any registration statement (other than any registration on Form ▇-▇, ▇-▇
or
any other similarly inappropriate form, or any successor forms thereto) under
the 1933 Act covering a public offering of the Common Stock (a “Registration
Statement”), it will notify the Holder hereof at least twenty (20) days prior to
each such filing and will use its best efforts to include in the Registration
Statement (to the extent permitted by applicable regulation), the Warrant Shares
to the extent requested by the Holder hereof within ten (10) days after receipt
of notice of such filing (which request shall specify the interest in this
Warrant or the Warrant Shares intended to be sold or disposed of by such Holder
and describe the nature of any proposed sale or other disposition thereof);
provided,
however,
that if
a greater number of Warrant Shares is offered for participation in the proposed
offering than in the reasonable opinion of the managing underwriter of the
proposed offering can be accommodated without adversely affecting the proposed
offering, then the amount of Warrant Shares proposed to be offered by such
Holders for registration, as well as the number of securities of any other
selling shareholders participating in the registration, shall be proportionately
reduced to a number deemed satisfactory by the managing underwriter. The
Corporation shall bear all expenses and fees incurred in connection with the
preparation, filing, and amendment of the Registration Statement, except that
the Holder shall pay all fees, disbursements and expenses of any counsel or
expert retained by the Holder and all underwriting discounts and commissions,
filing fees and any transfer or other taxes relating to the Warrant Shares
included in the Registration Statement. As a condition precedent to the
Corporation’s obligations under this Section 9, the Holder agrees to cooperate
with the Corporation in the preparation and filing of any Registration
Statement, and in the furnishing of information concerning the Holder for
inclusion therein, or in any efforts by the Corporation to establish that the
proposed sale is exempt under the 1933 Act as to any proposed
distribution.
Signature
page follows.
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IN
WITNESS WHEREOF,
Cougar
Biotechnology, Inc. has caused this Warrant to be signed by its duly authorized
officer and this Warrant to be dated _______, 2006.
| COUGAR BIOTECHNOLOGY, INC. | ||
| |
|
|
| By: | ||
|
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
||
| Its: Chief Executive Officer | ||
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NOTICE
OF EXERCISE OF WARRANT
-- To
Be
Executed by the Registered Holder in Order to Exercise the Warrant
The
undersigned hereby irrevocably elects to exercise the attached Warrant to
purchase for cash, __________________
of the
shares issuable upon the exercise of such Warrant, and requests that
certificates for such shares (together with a new Warrant to purchase the number
of shares, if any, with respect to which this Warrant is not exercised) shall
be
issued in the name of
| __________________________________________ | |
| (Print Name) | |
|
Please
insert social security
or
other identifying number
of
registered Holder of
certificate
(_____________)
|
Address: |
| __________________________________________ | |
| __________________________________________ | |
| Dated: ____________ | __________________________________________ |
|
Signature*
|
*The
signature on the Notice of Exercise of Warrant must correspond to the name
as
written upon the face of the Warrant in every particular without alteration
or
enlargement or any change whatsoever. When signing on behalf of a corporation,
partnership, trust or other entity, PLEASE indicate your position(s) and
title(s) with such entity.
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ASSIGNMENT
FORM
To
be
signed only upon authorized transfer of Warrants.
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns, and transfers unto
_______________________________ the right to purchase the securities of Cougar
Biotechnology, Inc. to which the within Warrant relates and appoints
______________________, attorney, to transfer said right on the books of Cougar
Biotechnology, Inc. with full power of substitution in the
premises.
| Dated: ____________ | __________________________________________ |
|
(Signature)
|
|
|
Address:
|
|
| __________________________________________ | |
| __________________________________________ |
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