AMERICAN DEPOSITARY SHARES PURCHASE WARRANT To Purchase __________ American Depositary Shares, each representing one Ordinary Share of GENTIUM S.p.A.
NEITHER
THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE
BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS.
To
Purchase __________ American Depositary Shares,
each
representing one Ordinary Share of
GENTIUM
S.p.A.
THIS
AMERICAN DEPOSITARY SHARES PURCHASE WARRANT (the “Warrant”)
certifies that, for value received, _____________ (the “Holder”),
is
entitled, upon the terms and subject to the limitations on exercise and the
conditions hereinafter set forth, at any time on or after December __, 2006
(the
“Initial
Exercise Date”)
and on
or prior to the close of business on April 28, 2011 (the “Termination
Date”)
but
not thereafter, to subscribe for and purchase from Gentium S.p.A., an Italian
corporation (the “Company”),
up to
______ American Depositary Shares, (the “Warrant
Shares”)
each
representing one ordinary share, par value €1.00, of the Company (the
“Ordinary
Shares”),
which
American Depositary Shares (“ADSs”)
will
be issued pursuant to the Deposit Agreement, dated June 15, 2005, with Bank
of
New York, as Depositary. The Warrant Shares shall be evidenced by American
Depositary Receipts (“ADRs”).
Each
ADS shall represent one Ordinary Share, and such ratio shall be deemed to be
maintained for all purposes hereunder, and to the extent such ratio is not
maintained, the adjustments pursuant to Section 3 hereof shall be adjusted
to
take into account any such change to such ratio. The purchase price of one
Warrant Share under this Warrant shall be equal to the Exercise Price, as
defined in Section 2(b).
Section
1. Definitions.
Capitalized terms used and not otherwise defined herein shall have the meanings
set forth in that certain Securities Subscription Agreement (the “Purchase
Agreement”),
dated
May 31, 2006, among the Company and the purchasers signatory
thereto.
Section
2. Exercise.
a) Exercise
of Warrant.
Exercise of the purchase rights represented by this Warrant may be made, in
whole or in part (provided that the exercise is for at least that number of
Ordinary Shares represented by one ADS), at any time or times on or after the
Initial Exercise Date and on or before the Termination Date by delivery to
the
Company, of (i) a duly executed facsimile copy of the Notice of Exercise Form
annexed hereto (or such other office or agency of the Company in the United
States as it may designate by notice in writing to the registered Holder at
the
address of such Holder appearing on the books of the Company); (ii) the original
of this Warrant and the accompanying Italian warrant certificate; and (3)
payment of the aggregate Exercise Price of the Warrant Shares thereby purchased
by wire transfer in immediately available funds to Account n. 12891 081 0001
at
Banca Intesa Spa - NY Branch, ABA n. ▇▇▇▇▇▇▇▇▇. The Company shall deliver any
objection to any Notice of Exercise Form within 3 Trading Days of receipt of
such notice.
b) Exercise
Price.
The
exercise price under this Warrant shall be $14.50, subject to adjustment
hereunder (the “Exercise
Price”);
provided that the Exercise Price, in any event, shall not be lower than Euro
2.80 per Warrant Share.
c) Mechanics
of Exercise.
i. Authorization
of Warrant Shares.
The
Company covenants that all Warrant Shares (and all Ordinary Shares represented
by such Warrant Shares) that may be issued upon the exercise of the purchase
rights represented by this Warrant will, upon exercise of the purchase rights
represented by this Warrant, be duly authorized, validly issued, fully paid
and
nonassessable and free from all taxes, liens and charges in respect of the
issue
thereof (other than taxes in respect of any transfer occurring contemporaneously
with such issue).
ii. Delivery
of Certificates Upon Exercise.
ADSs
representing shares purchased hereunder shall be transmitted to the Holder
by
crediting the account of the Holder’s prime broker with the Depository Trust
Company through its Deposit Withdrawal Agent Commission system, if available,
and otherwise by physical delivery of the ADRs representing such Warrant Shares
to the address specified by the Holder in the Notice of Exercise within 5
Trading Days from the delivery to the Company of the Notice of Exercise Form,
surrender of this Warrant and the accompanying Italian warrant certificate
and
payment of the aggregate Exercise Price as set forth above (“Warrant
Share Delivery Date”).
If
the Company fails to deliver to the Holder such ADRs representing such Warrant
Shares by the Warrant Share Delivery Date, the Holder will have the right to
rescind such exercise as set forth in Section 2(c)(iv)(2). This Warrant shall
be
deemed to have been exercised on the date the Exercise Price is received by
the
Company. The Warrant Shares (represented by the ADRs) shall be deemed to have
been issued, and Holder or any other person so designated to be named therein
shall be deemed to have become a holder of record of such shares for all
purposes, as of the date the Warrant has been exercised by payment to the
Company of the Exercise Price and all taxes required to be paid by the Holder,
if any, pursuant to Section 2(d)(vi) prior to the issuance of such shares,
have
been paid.
iii. Delivery
of New Warrants Upon Exercise.
If this
Warrant shall have been exercised in part, the Company shall, at the time of
delivery of the certificate or certificates representing Warrant Shares, deliver
to Holder a new Warrant evidencing the rights of Holder to purchase the
unpurchased Warrant Shares called for by this Warrant, which new Warrant shall
in all other respects be identical with this Warrant.
2
iv. Compensation
for Buy-In on Failure to Timely Deliver Certificates Upon
Exercise.
In
addition to any other rights available to the Holder, if the Company fails
to
cause its transfer agent to transmit to the Holder a certificate or certificates
representing the Warrant Shares pursuant to an exercise on or before the Warrant
Share Delivery Date, and if after such date the Holder is required by its broker
to purchase (in an open market transaction or otherwise) ADSs to deliver in
satisfaction of a sale by the Holder of the Warrant Shares which the Holder
anticipated receiving upon such exercise (a “Buy-In”),
then
the Company shall (1) pay in cash to the Holder the amount by which (x) the
Holder’s total purchase price (including brokerage commissions, if any) for the
ADSs so purchased exceeds (y) the amount obtained by multiplying (A) the number
of Warrant Shares that the Company was required to deliver to the Holder in
connection with the exercise at issue times (B) the price at which the sell
order giving rise to such purchase obligation was executed, and (2) at the
option of the Holder, either reinstate the portion of the Warrant and equivalent
number of Warrant Shares for which such exercise was not honored or deliver
to
the Holder the number of ADSs that would have been issued had the Company timely
complied with its exercise and delivery obligations hereunder. For example,
if
the Holder purchases ADSs having a total purchase price of $11,000 to cover
a
Buy-In with respect to an attempted exercise of ADSs with an aggregate sale
price giving rise to such purchase obligation of $10,000, under clause (1)
of
the immediately preceding sentence the Company shall be required to pay the
Holder $1,000. The Holder shall provide the Company written notice indicating
the amounts payable to the Holder in respect of the Buy-In, together with
applicable confirmations and other evidence reasonably requested by the Company.
Nothing herein shall limit a ▇▇▇▇▇▇’s right to pursue any other remedies
available to it hereunder, at law or in equity including, without limitation,
a
decree of specific performance and/or injunctive relief with respect to the
Company’s failure to timely deliver certificates representing Warrant Shares
upon exercise of the Warrant as required pursuant to the terms
hereof.
v. No
Fractional Shares or Scrip.
No
fractional shares or scrip representing fractional shares shall be issued upon
the exercise of this Warrant. As to any fraction of a share which Holder would
otherwise be entitled to purchase upon such exercise, the Company shall pay
a
cash adjustment in respect of such final fraction in an amount equal to such
fraction multiplied by the Exercise Price.
vi. Charges,
Taxes and Expenses.
Issuance of certificates for Warrant Shares (including the ADRs) shall be made
without charge to the Holder for any issue or transfer tax, or fees or expenses
of The Bank of New York (as depositary) for such issuance, or other incidental
expense in respect of the issuance of such certificate, all of which taxes,
fees
and expenses shall be paid by the Company, and such certificates shall be issued
in the name of the Holder or in such name or names as may be directed by the
Holder; provided,
however,
that in
the event certificates for Warrant Shares are to be issued in a name other
than
the name of the Holder, this Warrant when surrendered for exercise shall be
accompanied by the Assignment Form attached hereto duly executed by the Holder;
and the Company may require, as a condition thereto, the payment of a sum
sufficient to reimburse it for any transfer tax incidental thereto.
3
vii. Closing
of Books.
The
Company will not close its stockholder books or records in any manner which
prevents the timely exercise of this Warrant, pursuant to the terms
hereof.
d) Notwithstanding
anything herein to the contrary, the Holder shall not have the right to exercise
any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent
that after giving effect to such issuance after exercise, the Holder (together
with the Holder’s affiliates), as set forth on the applicable Notice of
Exercise, would beneficially own in excess of 9.99% of the number of Ordinary
Shares outstanding immediately after giving effect to such issuance. For
purposes of the foregoing sentence, the number of Ordinary Shares beneficially
owned by the Holder and its affiliates shall include the number of Ordinary
Shares issuable upon exercise of this Warrant with respect to which the
determination of such sentence is being made, but shall exclude the number
of
shares of Ordinary Shares which would be issuable upon (A) exercise of the
remaining, nonexercised portion of this Warrant beneficially owned by the Holder
or any of its affiliates and (B) exercise or conversion of the unexercised
or
nonconverted portion of any other securities of the Company (including, without
limitation, any other Warrants) subject to a limitation on conversion or
exercise analogous to the limitation contained herein beneficially owned by
the
Holder or any of its affiliates. Except as set forth in the preceding sentence,
for purposes of this provision, beneficial ownership shall be calculated in
accordance with Section 13(d) of the Securities Exchange Act of 1934, as
amended. To the extent that the limitation contained in this provision applies,
the determination of whether this Warrant is exercisable (in relation to other
securities owned by the Holder) and of which a portion of this Warrant is
exercisable shall be in the sole discretion of such Holder, and the submission
of a Notice of Exercise shall be deemed to be such Holder’s determination of
whether this Warrant is exercisable (in relation to other securities owned
by
such Holder) and of which portion of this Warrant is exercisable, in each case
subject to such aggregate percentage limitation, and the Company shall have
no
obligation to verify or confirm the accuracy of such determination. For purposes
of this provision, in determining the number of outstanding shares of Ordinary
Shares, the Holder may rely on the number of outstanding shares of Ordinary
Shares as reflected in (x) the Company’s most recent Form 20-F, as the case may
be, (y) a more recent public announcement by the Company or (z) any other notice
by the Company or the Company’s Transfer Agent setting forth the number of
Ordinary Shares outstanding. In any case, the number of outstanding Ordinary
Shares shall be determined after giving effect to the conversion or exercise
of
securities of the Company, including this Warrant, by the Holder or its
affiliates since the date as of which such number of outstanding Ordinary Shares
was reported.
4
Section
3. Certain
Adjustments.
a) Stock
Dividends and Splits.
If the
Company, at any time while this Warrant is outstanding: (A) pays a stock
dividend or otherwise make a distribution or distributions on its Ordinary
Shares or any other equity or equity equivalent securities payable in Ordinary
Shares (which, for avoidance of doubt, shall not include any Ordinary Shares
issued by the Company pursuant to this Warrant), (B) subdivides outstanding
Ordinary Shares into a larger number of shares, (C) combines (including by
way
of reverse stock split) outstanding Ordinary Shares into a smaller number of
shares, or (D) issues, by reclassification of the Ordinary Shares, any shares
of
capital stock of the Company, then in each case the Exercise Price shall be
multiplied by a fraction of which the numerator shall be the number of Ordinary
Shares (excluding treasury shares, if any) outstanding immediately before such
event and of which the denominator shall be the number of Ordinary Shares
outstanding immediately after such event and the number of Warrant Shares
issuable upon exercise of this Warrant shall be proportionately adjusted. Any
adjustment made pursuant to this Section 3(a) shall become effective immediately
after the record date for the determination of stockholders entitled to receive
such dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or
re-classification.
b) Fundamental
Transaction.
If, at
any time while this Warrant is outstanding, (A) the Company effects any merger
or consolidation of the Company with or into another Person, (B) the Company
effects any sale of all or substantially all of its assets in one or a series
of
related transactions, (C) any tender offer or exchange offer (whether by the
Company or another Person) is completed pursuant to which holders of Ordinary
Shares are permitted to tender or exchange their shares for other securities,
cash or property, or (D) the Company effects any reclassification of the
Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary
Shares are effectively converted into or exchanged for other securities, cash
or
property (in any such case, a “Fundamental
Transaction”),
then,
upon any subsequent exercise of this Warrant, the Holder shall have the right
to
receive, for each Warrant Share that would have been issuable upon such exercise
immediately prior to the occurrence of such Fundamental Transaction, at the
option of the Holder, (a) upon exercise of this Warrant, the number of shares
of
common stock of the successor or acquiring corporation or of the Company, if
it
is the surviving corporation, and any additional consideration (the
“Alternate
Consideration”)
receivable upon or as a result of such reorganization, reclassification, merger,
consolidation or disposition of assets by a Holder of the number of Ordinary
Shares represented by the ADSs for which this Warrant is exercisable immediately
prior to such event or (b) if the Company is acquired in an all cash
transaction, cash equal to the value of this Warrant as determined in accordance
with the Black-Scholes option pricing formula. For purposes of any such
exercise, the determination of the Exercise Price shall be appropriately
adjusted to apply to such Alternate Consideration based on the amount of
Alternate Consideration issuable in respect of one Ordinary Share in such
Fundamental Transaction, and the Company shall apportion the Exercise Price
among the Alternate Consideration in a reasonable manner reflecting the relative
value of any different components of the Alternate Consideration. If holders
of
Ordinary Shares are given any choice as to the securities, cash or property
to
be received in a Fundamental Transaction, then the Holder shall be given the
same choice as to the Alternate Consideration it receives upon any exercise
of
this Warrant following such Fundamental Transaction. To the extent necessary
to
effectuate the foregoing provisions, any successor to the Company or surviving
entity in such Fundamental Transaction shall issue to the Holder a new warrant
consistent with the foregoing provisions and evidencing the Holder’s right to
exercise such warrant into Alternate Consideration. The terms of any agreement
pursuant to which a Fundamental Transaction is effected shall include terms
requiring any such successor or surviving entity to comply with the provisions
of this Section 3(b) and insuring that this Warrant (or any such replacement
security) will be similarly adjusted upon any subsequent transaction analogous
to a Fundamental Transaction.
5
c) Calculations.
All
calculations under this Section 3 shall be made to the nearest cent or the
nearest 1/100th of a share, as the case may be. For purposes of this Section
3,
the number of Ordinary Shares deemed to be issued and outstanding as of a given
date shall be the sum of the number of Ordinary Shares (excluding treasury
shares, if any) issued and outstanding.
d) Voluntary
Adjustment By Company.
The
Company may at any time during the term of this Warrant reduce the then current
Exercise Price to any amount and for any period of time deemed appropriate
by
the Board of Directors of the Company.
e) Notice
to Holders.
i. Adjustment
to Exercise Price.
Whenever the Exercise Price is adjusted pursuant to this Section 3, the Company
shall promptly mail to each Holder a notice setting forth the Exercise Price
after such adjustment and setting forth a brief statement of the facts requiring
such adjustment.
ii. Notice
to Allow Exercise by ▇▇▇▇▇▇.
If (A)
the Company shall declare a dividend (or any other distribution) on the Ordinary
Shares; (B) the Company shall declare a special nonrecurring cash dividend
on or
a redemption of the Ordinary Shares; (C) the Company shall authorize the
granting to all holders of the Ordinary Share rights or warrants to subscribe
for or purchase any shares of capital stock of any class or of any rights;
(D)
the approval of any stockholders of the Company shall be required in connection
with any reclassification of the Ordinary Shares, any consolidation or merger
to
which the Company is a party, any sale or transfer of all or substantially
all
of the assets of the Company, of any compulsory share exchange whereby the
Ordinary Shares is converted into other securities, cash or property; or (E)
the
Company shall authorize the voluntary or involuntary dissolution, liquidation
or
winding up of the affairs of the Company; then, in each case, the Company shall
cause to be mailed to the Holder at its last address as it shall appear upon
the
Warrant Register of the Company, at least 10 calendar days prior to the
applicable record or effective date hereinafter specified, a notice stating
(x)
the date on which a record is to be taken for the purpose of such dividend,
distribution, redemption, rights or warrants, or if a record is not to be taken,
the date as of which the holders of the Ordinary Shares of record to be entitled
to such dividend, distributions, redemption, rights or warrants are to be
determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer or share exchange is expected to become effective or
close, and the date as of which it is expected that holders of the Ordinary
Shares of record shall be entitled to exchange their Ordinary Shares for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange; provided,
that
the failure to mail such notice or any defect therein or in the mailing thereof
shall not affect the validity of the corporate action required to be specified
in such notice.
6
Section
4. Transfer
of Warrant.
a) Transferability.
Subject
to compliance with any applicable securities laws and the conditions set forth
in Sections 5(a) and 4(d) hereof and to the provisions of Section 4.1 of the
Purchase Agreement, this Warrant and all rights hereunder are transferable,
in
whole or in part, upon surrender of this Warrant at the principal office of
the
Company, together with a written assignment of this Warrant substantially in
the
form attached hereto duly executed by the Holder or its agent or attorney and
funds sufficient to pay any transfer taxes payable upon the making of such
transfer. Upon such surrender and, if required, such payment, the Company shall
execute and deliver a new Warrant or Warrants in the name of the assignee or
assignees and in the denomination or denominations specified in such instrument
of assignment, and shall issue to the assignor a new Warrant evidencing the
portion of this Warrant not so assigned, and this Warrant shall promptly be
cancelled. A Warrant, if properly assigned, may be exercised by a new holder
for
the purchase of Warrant Shares without having a new Warrant issued.
b) New
Warrants.
This
Warrant may be divided or combined with other Warrants upon presentation hereof
at the aforesaid office of the Company, together with a written notice
specifying the names and denominations in which new Warrants are to be issued,
signed by the Holder or its agent or attorney. Subject to compliance with
Section 4(a), as to any transfer which may be involved in such division or
combination, the Company shall execute and deliver a new Warrant or Warrants
in
exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice.
c) Warrant
Register.
The
Company shall register this Warrant, upon records to be maintained by the
Company for that purpose (the “Warrant
Register”),
in
the name of the record Holder hereof from time to time. The Company may deem
and
treat the registered Holder of this Warrant as the absolute owner hereof for
the
purpose of any exercise hereof or any distribution to the Holder, and for all
other purposes, absent actual notice to the contrary.
d) Transfer
Restrictions.
If,
at the
time
of
the surrender of this Warrant in connection with any transfer of this Warrant,
the transfer of this Warrant shall not be permitted under Rule 144 or registered
pursuant to an effective registration
statement under the Securities Act
and
under
applicable state securities or blue sky laws, the Company may require, as a
condition of allowing such transfer (i) that the Holder or transferee of this
Warrant, as the case may be, furnish to the Company a written opinion of counsel
(which opinion shall be in form, substance and scope customary for opinions
of
counsel in comparable transactions) to the effect that such transfer may be
made
without
registration under the
Securities Act and under applicable state securities or blue sky laws, (ii)
that
the holder or transferee execute and deliver to the Company an investment letter
in form and substance acceptable to the Company and (iii) that the transferee
be
an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7),
or (a)(8) promulgated under the Securities Act or a qualified institutional
buyer as defined in Rule 144A(a) under the Securities Act.
7
Section
5. Miscellaneous.
a) Title
to Warrant.
Prior
to the Termination Date and subject to compliance with applicable laws and
Section 4 of this Warrant, this Warrant and all rights hereunder are
transferable, in whole or in part, at the office or agency of the Company by
the
Holder in person or by duly authorized attorney, upon surrender of this Warrant
together with the Assignment Form annexed hereto properly endorsed. The
transferee shall sign an investment letter in form and substance reasonably
satisfactory to the Company.
b) No
Rights as Shareholder Until Exercise.
This
Warrant does not entitle the Holder to any voting rights or other rights as
a
shareholder of the Company prior to the exercise hereof. Upon the surrender
of
this Warrant and the payment of the aggregate Exercise Price (or by means of
a
cashless exercise), the Warrant Shares so purchased shall be and be deemed
to be
issued to such Holder as the record owner of such shares as of the close of
business on the later of the date of such surrender or payment.
c) Loss,
Theft, Destruction or Mutilation of Warrant.
The
Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant
or any stock certificate relating to the Warrant Shares, and in case of loss,
theft or destruction, of indemnity or security reasonably satisfactory to it
(which, in the case of the Warrant, shall not include the posting of any bond),
and upon surrender and cancellation of such Warrant or stock certificate, if
mutilated, the Company will make and deliver a new Warrant or stock certificate
of like tenor and dated as of such cancellation, in lieu of such Warrant or
stock certificate.
d) Saturdays,
Sundays, Holidays, etc.
If the
last or appointed day for the taking of any action or the expiration of any
right required or granted herein shall be a Saturday, Sunday or a legal holiday,
then such action may be taken or such right may be exercised on the next
succeeding day not a Saturday, Sunday or legal holiday.
e) Authorized
Shares.
The
Company covenants that during the period the Warrant is outstanding, it will
reserve from its authorized and unissued Ordinary Shares a sufficient number
of
shares (including the ADSs) to provide for the issuance of the Warrant Shares
upon the exercise of any purchase rights under this Warrant. The Company further
covenants that its issuance of this Warrant shall constitute full authority
to
its officers who are charged with the duty of executing stock certificates
to
execute and issue the necessary certificates for the Warrant Shares upon the
exercise of the purchase rights under this Warrant. The Company will take all
such reasonable action as may be necessary to assure that such Warrant Shares
may be issued as provided herein without violation of any applicable law or
regulation, or of any requirements of the Trading Market upon which the Ordinary
Shares may be listed. For so long as the Warrant is outstanding, the Company
shall maintain the Deposit Agreement, and shall neither terminate the Deposit
Agreement nor allow it to lapse due to the Company's failure to appoint a
successor Depositary upon the resignation of the Depositary under Section 21
of
the Depositary Agreement.
8
Except
and to the extent as waived or consented to by the Holder, the Company shall
not
by any action, including, without limitation, amending its certificate of
incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of
this
Warrant, but will at all times in good faith assist in the carrying out of
all
such terms and in the taking of all such actions as may be necessary or
appropriate to protect the rights of Holder as set forth in this Warrant against
impairment. Without limiting the generality of the foregoing, the Company will
(a) not increase the par value of any Warrant Shares above the amount payable
therefor upon such exercise immediately prior to such increase in par value,
(b)
take all such action as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable Warrant
Shares upon the exercise of this Warrant, and (c) use commercially reasonable
efforts to obtain all such authorizations, exemptions or consents from any
public regulatory body having jurisdiction thereof as may be necessary to enable
the Company to perform its obligations under this Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant
Shares for which this Warrant is exercisable or in the Exercise Price, the
Company shall obtain all such authorizations or exemptions thereof, or consents
thereto, as may be necessary from any public regulatory body or bodies having
jurisdiction thereof.
f) Italian
Warrant Certificates.
Under
Italian law, the Holder’s right to purchase the Warrant Shares must be
represented by an Italian warrant certificate and associated regulations (which
set forth the terms and conditions). In the event of a conflict between the
terms of this warrant and the terms of the Italian warrant certificate and
associated regulations, the latter shall govern. However, the fact that some
terms of this warrant do not appear in the Italian warrant certificate and
associated regulations does not mean that such terms of this warrant are not
binding upon the Company.
g) Governing
Law.
This
Warrant shall be construed in accordance with and governed by the laws of the
State of New York without regard to principles of conflicts of laws, except
for
the application of the provisions of Italian law concerning the proper
authorization and issuance of Italian warrant certificates.
9
h) Restrictions.
The
Holder acknowledges that the Warrant Shares acquired upon the exercise of this
Warrant, if not registered, will have restrictions upon resale imposed by state
and federal securities laws.
i) Nonwaiver
and Expenses.
No
course of dealing or any delay or failure to exercise any right hereunder on
the
part of Holder shall operate as a waiver of such right or otherwise prejudice
Holder’s rights, powers or remedies, notwithstanding the fact that all rights
hereunder terminate on the Termination Date. If the Company willfully and
knowingly fails to comply with any provision of this Warrant, which results
in
any material damages to the Holder, the Company shall pay to Holder such amounts
as shall be sufficient to cover any costs and expenses including, but not
limited to, reasonable attorneys’ fees, including those of appellate
proceedings, incurred by Holder in collecting any amounts due pursuant hereto
or
in otherwise enforcing any of its rights, powers or remedies
hereunder.
j) Restrictions.
The
Holder acknowledges that the Warrant Shares acquired upon the exercise of this
Warrant, will have restrictions upon resale imposed by state and federal
securities laws and that any ADRs issued may have legends to that
effect.
k) Notices.
Except
as otherwise expressly specified herein, all notices, requests and other
communications required or permitted hereunder shall be in writing and shall
be
sent by an internationally recognized overnight courier service; by certified
or
registered mail, return receipt requested (or, in the case of a notice sent
to
an address in Italy, by international express mail, return receipt requested);
by facsimile transmission, by e-mail or by hand delivery.
if
to the
Company: Gentium
S.p.A.
▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇
22079
Villa Guardia Como
Italy
Attention:
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▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇-▇▇▇
E-mail: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇
and,
if
to the Holder, to the name, address, facsimile number or e-mail address
specified with respect to such person or entity in the Warrant register
maintained by the Company pursuant to Section 4(c) hereof.
Any
party
may designate a different notice address, contact person, telephone number,
facsimile number or e-mail address with respect to such party by providing
a
notice describing such changes to the other party hereto in accordance with
the
provisions of this Section 5(k). Any notice sent by internationally recognized
overnight mail courier service shall be deemed to be delivered to the address
shown on the mailing receipt on the expected date of delivery upon proper
evidence of mailing for purposes of this Section 5(k). Any notice sent by
certified or registered mail, return receipt requested (or, in the case of
a
notice sent to an address in Italy, by international express mail, return
receipt requested), shall be deemed to be delivered three business days after
mailing. Any notice sent by facsimile transmission or by e-mail shall be deemed
delivered as of the open of business on the business day following the date
on
which sent provided that within 48 hours such notice is also sent by certified
or registered mail, return receipt requested or, in case of a notice sent to
an
address in Italy, by international express mail, return receipt requested or
by
an internationally-recognized overnight mail courier service to the appropriate
address specified above. Any notice sent by hand delivery shall be deemed
delivered as of the date of delivery. As used in this Section 5(k), “business
day” means any day other than a day on which banking institutions in the State
of New York are legally closed for business.
10
l) Limitation
of Liability.
No
provision hereof, in the absence of any affirmative action by Holder to exercise
this Warrant or purchase Warrant Shares, and no enumeration herein of the rights
or privileges of Holder, shall give rise to any liability of Holder for the
purchase price of any Ordinary Shares or as a stockholder of the Company,
whether such liability is asserted by the Company or by creditors of the
Company.
m) Remedies.
Holder,
in addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Warrant. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of
the
provisions of this Warrant and hereby agrees to waive the defense in any action
for specific performance that a remedy at law would be adequate.
n) Successors
and Assigns.
Subject
to applicable securities laws, this Warrant and the rights and obligations
evidenced hereby shall inure to the benefit of and be binding upon the
successors of the Company and the successors and permitted assigns of Holder.
The provisions of this Warrant are intended to be for the benefit of all Holders
from time to time of this Warrant and shall be enforceable by any such Holder
or
holder of Warrant Shares.
o) Amendment.
This
Warrant may be modified or amended or the provisions hereof waived with the
written consent of the Company and the Holder.
p) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Warrant shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
q) Headings.
The
headings used in this Warrant are for the convenience of reference only and
shall not, for any purpose, be deemed a part of this Warrant.
r) Identity
of Transfer Agent.
The
Transfer Agent for the Ordinary Shares as represented by the ADSs is The Bank
of
New York and the contact information for the Transfer Agent is The
Bank
Of New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, telephone (▇▇▇) ▇▇▇-▇▇▇▇, facsimile (▇▇▇) ▇▇▇-▇▇▇▇, e-mail
▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇. Upon the appointment of any subsequent transfer agent
or American depositary agent for the ADSs or other securities issuable upon
the
exercise of the rights of purchase represented by the Warrant, the Company
will
mail to the Holder a statement setting forth the name and address of such
transfer agent or American depositary agent.
********************
11
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
officer thereunto duly authorized.
| Dated: June 6, 2006 | ||
| GENTIUM S.p.A. | ||
| |
|
|
| By: | ||
|
Name: ▇▇▇▇▇ ▇▇▇▇▇, M.D. |
||
|
Title:
Chairperson of the Board of
Directors
|
||
NOTICE
OF EXERCISE
TO: _______________________
(1) The
undersigned hereby elects to purchase ________ Warrant Shares of the Company
pursuant to the terms of the attached Warrant (only if exercised in full),
and
tenders herewith payment of the exercise price in full, together with all
applicable transfer taxes, if any.
(2) Payment
shall take the form of in lawful money of the United States.
(3) Please
issue a certificate or certificates representing said Warrant Shares in the
name
of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following:
_______________________________
_______________________________
_______________________________
(4) Accredited
Investor.
The
undersigned is an “accredited investor” as defined in Regulation D promulgated
under the Securities Act of 1933, as amended.
Name
of
Investing Entity:
________________________________________________________________________
Signature
of Authorized Signatory of Investing Entity:
_________________________________________________
Name
of
Authorized Signatory:
___________________________________________________________________
Title
of
Authorized Signatory:
____________________________________________________________________
Date:
________________________________________________________________________________________
ASSIGNMENT
FORM
(To
assign the foregoing warrant, execute
this
form
and supply required information.
Do
not
use this form to exercise the warrant.)
FOR
VALUE
RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby
assigned to
_______________________________________________
whose address is
_______________________________________________________________.
_______________________________________________________________
Dated:
______________, _______
Holder’s
Signature: _____________________________
Holder’s
Address: _____________________________
_____________________________
Signature
Guaranteed: ___________________________________________
NOTE:
The
signature to this Assignment Form must correspond with the name as it appears
on
the face of the Warrant, without alteration or enlargement or any change
whatsoever, and must be guaranteed by a bank or trust company. Officers of
corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing
Warrant.