Warrant No. EW- Dated: October [___], 2007
EXHIBIT 4.28
BIOPURE CORPORATION
WARRANT
| Warrant No. EW- | Dated: October [___], 2007 |
Biopure Corporation, a Delaware corporation (the “Company”), hereby certifies that, for value
received, ___ or its registered assigns (including permitted transferees, the “Holder”), as
registered owner of this warrant (the “Warrant”), is entitled to purchase from the Company up to a
total of ___ shares (as adjusted from time to time as provided in Section 9) of Common
Stock (as defined below), together with the associated preferred stock purchase rights under that
certain Rights Agreement (the “Rights Agreement”) dated as of September 24, 1999 between the
Company and American Stock Transfer & Trust Company, as rights agent, to the extent the Rights
Agreement is in effect on the date of such purchase, at an exercise price equal to $[___] per
share (as adjusted from time to time as provided in Section 9, the “Exercise Price”) (125%
of the public offering price per unit), at any time and from time to time from and after October
[___], 2007 (the “Initial Exercise Date”) to and including October [___], 2012 (the “Expiration
Date”), and subject to the following terms and conditions.
1. Definitions. The capitalized terms used herein and not otherwise defined shall
have the meanings set forth below:
“Affiliate” of any specified Person means any other person or entity directly or indirectly
controlling, controlled by or under direct or indirect common control with such specified Person.
For purposes of this definition, “control” means the power to direct the management and policies of
such Person or firm, directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise.
“Commission” means the United States Securities and Exchange Commission.
“Common Stock” means the Class A common stock of the Company, $0.01 par value per share.
“Eligible Market” means any of the New York Stock Exchange, the American Stock Exchange or
Nasdaq (as defined below), and any successor markets thereto.
“Exchange Act” means the Securities Exchange Act of 1934, as amended
“Market Price” shall mean (i) if the principal trading market for such securities is an
exchange, the average of the last reported sale prices per share for the last ten previous Trading
Days in which a sale was reported, as officially reported on any consolidated tape, (ii) if
clause (i) is not applicable, the average of the closing bid price per share for the last ten
previous Trading Days as set forth by Nasdaq or (iii) if clauses (i) and (ii) are not applicable,
the average of the closing bid price per share for the last ten previous Trading Days as set forth
in the National Quotation Bureau sheet listing for such securities. Notwithstanding the foregoing,
if
there is no reported sales price or closing bid price, as the case may be, on any of the ten
Trading Days preceding the event requiring a determination of Market Price hereunder, then the
Market Price shall be determined in good faith after reasonable investigation by resolution of the
Board of Directors of the Company.
“Nasdaq” means the Nasdaq Global Market or Nasdaq Capital Market, and any successor markets
thereto.
“Other Securities” refers to any capital stock (other than Common Stock) and other securities
of the Company or any other Person which the Holder of this Warrant at any time shall be entitled
to receive, or shall have received, pursuant to the terms hereof upon the exercise of this Warrant,
in lieu of or in addition to Common Stock.
“Person” means any court or other federal, state, local or other governmental authority or
other individual or corporation, partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company, government (or an agency or
subdivision thereof) or other entity of any kind.
“Registration Statement” means the Company’s Registration Statement on Form S-1 (File No.
333-138049), as such registration statement is amended, supplemented or replaced.
“Trading Day” means (a) any day on which the Common Stock is listed or quoted and traded on
any Eligible Market or (b) if the Common Stock is not then quoted and traded on any Eligible
Market, then a day on which trading occurs on the Nasdaq Global Market (or any successor thereto).
“Warrant Shares” shall initially mean shares of Common Stock (together with the associated
preferred stock purchase rights under the Rights Agreement to the extent the Rights Agreement is in
effect on the applicable date) and in addition may include Other Securities and Substituted
Property (as defined in Section 9(e)(x)) issued or issuable from time to time upon exercise
of this Warrant.
2. Registration of Warrant. 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.
3. Registration of Transfers. The Company shall register the transfer of any portion
of this Warrant in the Warrant Register, upon surrender of this Warrant, with the Form of
Assignment attached hereto as Appendix A duly completed and signed, to the Company at its
address specified herein. Upon any such registration and transfer, a new warrant in substantially
the form of a Warrant (any such new warrant, a “New Warrant”), evidencing the portion of this
Warrant so transferred shall be issued to the transferee and a New Warrant evidencing the remaining
portion of this Warrant not so transferred, if any, shall be issued to the transferring Holder.
The acceptance of the New Warrant by the transferee thereof shall be deemed the acceptance by such
transferee of all of the rights and obligations of a holder of a Warrant.
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4. Exercise and Duration of Warrant.
(a) This Warrant shall be exercisable, either in its entirety or for a portion of the number
of Warrant Shares, by the registered Holder at any time and from time to time from and
after the Initial Exercise Date to and including the Expiration Date. At 5:00 P.M. New York
City time on the Expiration Date, the portion of this Warrant not exercised prior thereto shall be
and become void and of no value, and the Holder hereof shall have no right to purchase any
additional Warrant Shares hereunder.
(b) A Holder may exercise this Warrant by delivering to the Company, in accordance with
Section 13, this Warrant, together with (i) an exercise notice, in the form attached hereto
as Appendix B (the “Exercise Notice”), appropriately completed and duly signed, and (ii)
payment of the Exercise Price for the number of Warrant Shares as to which this Warrant is being
exercised (as set forth in Section 4(c) below), and the date such items are received by the
Company is an “Exercise Date.” Execution and delivery of an Exercise Notice in respect of less
than all of the Warrant Shares issuable upon exercise of this Warrant shall result in the
cancellation of the original Warrant and issuance of a New Warrant evidencing the right to purchase
the remaining number of Warrant Shares.
(c) The Holder shall pay the Exercise Price in cash, by certified bank check payable to the
order of the Company or by wire transfer of immediately available funds in accordance with the
Company’s instructions.
(d) Except as otherwise provided for herein, this Warrant shall not entitle the Holder to any
voting rights or other rights as a stockholder of the Company by virtue of the ownership hereof.
(e) Notwithstanding anything to the contrary herein, after the sixth (6th) month
anniversary of the date hereof, the Company may, by written notice to the Holder, require that the
Holder execute and deliver to the Company an Exercise Notice exercising all of the Warrant Shares
then held by such Holder within twenty Business Days of the date of the Company’s notice; provided,
however, that the Company may only provide such notice if the daily volume weighted average price
per share of the Common Stock for each of the ten consecutive Trading Days ended immediately prior
to the Company’s notice is equal to or greater than the Exercise Price multiplied by 1.5. At
5:00 P.M. New York City time on such 20th Business Day, the portion of this Warrant not
exercised prior thereto shall be and become void and of no value, and the Holder hereof shall have
no right to purchase any additional Warrant Shares hereunder.
5. Delivery of Warrant Shares.
(a) Upon exercise of this Warrant, the Company shall promptly issue or cause to be issued and
deliver or cause to be delivered to the Holder, in such name or names as the Holder may designate,
a certificate for the Warrant Shares issuable upon such exercise (the “Certificate”) bearing no
restrictive legends. The Holder, or any Person so designated by the Holder to receive the Warrant
Shares, shall be deemed to have become holder of record of such Warrant Shares as of the Exercise
Date.
(b) The Warrant and the Warrant Shares have been registered pursuant to the Registration
Statement, and the Company covenants and agrees to maintain the effectiveness of the
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Registration
Statement until the Expiration Date. Notwithstanding the foregoing, in the event that, prior to
the Expiration Date, the Company ceases to be eligible under the Securities Act of 1933, as amended
(the “Act”) or the rules and regulations promulgated thereunder, to maintain a registration
statement on Form S-1, or in the event that the Warrant or the Warrant Shares cease to be eligible
for inclusion in such Registration Statement to the extent necessary
to permit the Holder to exercise the Warrant and sell the Warrant Shares without restriction under the Act,
the Company will promptly (and in any event within 10 days of the date that the Warrant or any
Warrant Shares cease to be so eligible), amend or file a new registration statement under the Act
on a form eligible for use by the Company for the registration of such securities and use its best
efforts to have such registration statement declared effective by the Commission as soon as
practicable after such filing, which registration statement shall include such information as may
be required to permit the exercise of the Warrant and the sale of the Warrant Shares without
restriction under the Act. The Holder acknowledges and agrees that the Warrant shall be
exercisable pursuant to any such registration statement only at such times as the registration
statement is effective or in accordance with any applicable exemption from the registration
requirements of the Act. Upon such Registration Statement being declared effective by the
Commission, the Company shall use its best efforts to cause the Registration Statement to remain
effective for a period of at least six (6) consecutive months from the date that the Holders of the
Warrants and Warrant Shares covered by such Registration Statement are first given the opportunity
to sell all of such securities. In the event that ninety (90) days prior to the Expiration Date,
the Registration Statement registering the Warrant Shares is not effective or is withdrawn or the
Commission issues a stop order suspending the effectiveness of such Registration Statement, the
Company hereby agrees to extend the Expiration Date for (x) an additional ninety (90) days or (y)
until the Registration Statement is declared effective by the Commission, whichever period is
longer. During such time as the Warrant Shares are registered pursuant to any registration
statement under the Act, the Company further covenants and agrees to make timely filings of all
documents required to be filed under the Act or the Exchange Act in order to ensure that the
registration statement, including the documents incorporated by reference therein, if any, do not
contain an untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not misleading.
(c) This Warrant is exercisable, either in its entirety or, from time to time, for a portion
of the number of Warrant Shares. Upon surrender of this Warrant following one or more partial
exercises, the Company shall issue or cause to be issued, at its expense, a New Warrant evidencing
the right to purchase the remaining number of Warrant Shares.
6. Charges, Taxes and Expenses. Issuance and delivery of certificates for shares of
Common Stock upon exercise of this Warrant shall be made without charge to the Holder for any issue
or transfer tax, withholding tax, transfer agent fee or other incidental tax or expense in respect
of the issuance of such certificates, all of which taxes and expenses shall be paid by the Company;
provided, however, that the Company shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issue, delivery or registration of any certificates for
Warrant Shares or Warrant in a name other than that of the Holder and that the Holder will be
required to pay any tax with respect to cash received in lieu of fractional shares. The Holder
shall be responsible for all other tax liability that may arise as a result of holding or
transferring this Warrant or receiving Warrant Shares upon exercise hereof.
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7. Replacement of Warrant. If this Warrant is mutilated, lost, stolen or destroyed,
the Company, at the sole expense of the Holder (such expenses, if any imposed by the Company to be
reasonable), shall issue or cause to be issued in exchange and substitution for and upon
cancellation hereof, or in lieu of and in substitution for this Warrant, a New Warrant, but only
upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction
and customary and reasonable indemnity, if requested by the Company.
8. Reservation of Warrant Shares. The Company covenants that it will at all times
reserve and keep available out of the aggregate of its authorized but unissued and otherwise
unreserved Common Stock, solely for the purpose of enabling it to issue Warrant Shares upon
exercise of this Warrant as herein provided, the number of Warrant Shares which are then issuable
and deliverable upon the exercise of this entire Warrant, free from all taxes, liens, claims,
encumbrances with respect to the issuance of such Warrant Shares and will not be subject to any
pre-emptive rights or similar rights (taking into account the adjustments and restrictions of
Section 9 hereof). The Company covenants that all Warrant Shares so issuable and
deliverable shall, upon issuance and the payment of the applicable Exercise Price in accordance
with the terms hereof, be duly and validly authorized, issued, fully paid and nonassessable. The
Company will take all such action as may be necessary to assure that such shares of Common Stock
may be issued as provided herein without violation of any applicable law or regulation, or of any
requirements of any securities exchange or automated quotation system upon which the Common Stock
may be listed or quoted, as the case may be; provided, however, that such actions shall only
require the Company’s best efforts (or other specified standard) to the extent specifically
provided for in this Warrant.
9. Certain Adjustments. The Exercise Price and number of Warrant Shares issuable
upon exercise of this Warrant are subject to adjustment from time to time as set forth in this
Section 9.
(a) Stock Dividends. If the Company, at any time while this Warrant is outstanding, pays a
dividend on its Common Stock payable in additional shares of Common Stock or otherwise makes a
distribution on any class of capital stock that is payable in shares of Common Stock, then in each
such case the Exercise Price shall be multiplied by a fraction, (A) the numerator of which shall be
the number of shares of Common Stock outstanding immediately prior to the opening of business on
the day after the record date for the determination of stockholders entitled to receive such
dividend or distribution and (B) the denominator of which shall be the number of shares of Common
Stock outstanding immediately after the distribution date of such dividend or distribution. Any
adjustment made pursuant to this Section 9(a) shall become effective immediately after the
record date for the determination of stockholders entitled to receive such dividend or
distribution; provided, however, that if following such record date the Company rescinds or
modifies such dividend or distribution, the Exercise Price shall be appropriately adjusted (as of
the date that the Company effectively rescinds or modifies such dividend or distribution) to take
into account the effect of such rescinded or modified dividend or distribution on the Exercise
Price pursuant to this Section 9(a).
(b) Stock Splits. If the Company, at any time while this Warrant is outstanding,
(i) subdivides outstanding shares of Common Stock into a larger number of shares, or (ii) combines
outstanding shares of Common Stock into a smaller number of shares, then in each such case the
Exercise Price shall be multiplied by a fraction, (A) the numerator of which shall
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be the number of
shares of Common Stock outstanding immediately before such event and (B) the denominator of which
shall be the number of shares of Common Stock outstanding immediately after such event. Any
adjustment pursuant to this Section 9(b) shall become effective immediately after the
effective date of such subdivision or combination.
(c) Reclassifications. A reclassification of the Common Stock (other than any such
reclassification in connection with a merger or consolidation to which Section 9(e)
applies) into shares of any other class of stock shall be deemed:
(i) a distribution by the Company to the holders of its Common Stock of such shares of such
other class of stock for the purposes and within the meaning of this Section 9; and
(ii) if the outstanding shares of Common Stock shall be changed into a larger or smaller
number of shares of Common Stock as part of such reclassification, such change shall be deemed a
subdivision or combination, as the case may be, of the outstanding shares of Common Stock for the
purposes and within the meaning of Section 9(b).
(d) Other Distributions. If the Company, at any time while this Warrant is outstanding,
distributes to holders of Common Stock (i) evidences of its indebtedness, (ii) shares of any class
of capital stock, (iii) rights or warrants to subscribe for or purchase any shares of any class of
capital stock or (iv) any other asset, other than a distribution of Common Stock covered by
Section 9(a), (in each case, “Distributed Property”), then in each such case the Exercise
Price in effect immediately prior to the record date fixed for determination of stockholders
entitled to receive such distribution (and the Exercise Price thereafter applicable) shall be
adjusted (effective on and after such record date) to equal the product of such Exercise Price
multiplied by a fraction, (A) the numerator of which shall be Market Price on such record date less
the then fair market value of the Distributed Property distributed in respect of one outstanding
share of Common Stock, which, if the Distributed Property is other than cash or marketable
securities, shall be as determined in good faith by the Board of Directors of the Company whose
determination shall be described in a board resolution, and (B) the denominator of which shall be
the Market Price on such record date; provided, however, that if following the record date for such
distribution the Company rescinds or modifies such distribution, the Exercise Price shall be
appropriately adjusted (as of the date that the Company effectively rescinds or modifies such
distribution) to take into account the effect of such rescinded or modified distribution on the
Exercise Price pursuant to this Section 9(d).
(e) Fundamental Transactions. If, at any time following the Initial Exercise Date, (i) the
Company effects any merger or consolidation of the Company with or into another Person, (ii) the
Company effects any sale of all or substantially all of its assets in one or a series of related
transactions or (iii) there shall occur any merger of another Person into the Company whereby the
Common Stock is cancelled, converted or reclassified into or exchanged for other securities, cash
or property (in any such case, a “Fundamental Transaction”), then, as a condition to the
consummation of such Fundamental Transaction, the Company shall (or, in the case of any Fundamental
Transaction in which the Company is not the surviving entity, the Company shall take all reasonable
steps to cause such other Person to) execute and deliver to the Holder of this Warrant a written
instrument providing that:
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(x) so long as this Warrant remains outstanding, upon the exercise hereof at any time on or
after the consummation of such Fundamental Transaction and on such terms and subject to such
conditions as shall be nearly equivalent as may be practicable to the provisions set forth in this
Warrant, this Warrant shall be exercisable into, in lieu of Common Stock issuable upon such
exercise prior to such consummation, the securities or other property (the “Substituted Property”)
that would have been received in connection with such Fundamental Transaction by a holder of the
number of shares of Common Stock into which this Warrant was exercisable immediately prior to such
Fundamental Transaction, assuming such holder of Common Stock:
(A) is not a Person with which the Company consolidated or
into which the Company merged or which merged into the Company or to which such sale or
transfer was made, as the case may be (a “Constituent Person”), or an Affiliate of a Constituent
Person; and
(B) failed to exercise such ▇▇▇▇▇▇’s rights of election, if any, as to the kind or amount of
securities, cash and other property receivable in connection with such Fundamental Transaction
(provided, however, that if the kind or amount of securities, cash or other property receivable in
connection with such Fundamental Transaction is not the same for each share of Common Stock held
immediately prior to such Fundamental Transaction by a Person other than a Constituent Person or an
Affiliate thereof and in respect of which such rights of election shall not have been exercised (a
“Non-Electing Share”), then, for the purposes of this Section 9(e), the kind and amount of
securities, cash and other property receivable in connection with such Fundamental Transaction by
each Non-Electing Share shall be deemed to be the kind and amount so receivable per share by a
plurality of the Non-Electing Shares); and
(y) the rights and obligations of the Company (or, in the event of a transaction in which the
Company is not the surviving Person, such other Person) and the Holder in respect of Substituted
Property shall be as nearly equivalent as may be practicable to the rights and obligations of the
Company and Holder in respect of Common Stock hereunder.
Such written instrument shall provide for adjustments which, for events subsequent to the
effective date of such written instrument, shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Section 9. The above provisions of this
Section 9(e) shall similarly apply to successive Fundamental Transactions.
(f) Adjustment of Warrant Shares. Simultaneously with any adjustment to the Exercise Price
pursuant to paragraphs (a) through (d) of this Section 9, the number of Warrant Shares that
may be purchased upon exercise of this Warrant shall be increased or decreased proportionately, so
that after such adjustment the aggregate Exercise Price payable hereunder for the increased or
decreased number of Warrant Shares shall be the same as the aggregate Exercise Price payable for
the Warrant Shares immediately prior to such adjustment.
(g) Calculations. All calculations under this Section 9 shall be made to the nearest
cent or the nearest 1/100th of a share, as applicable. The number of shares of Common Stock
outstanding at any given time shall not include shares owned or held by or for the account of the
Company, and the disposition of any such shares shall be considered an issue or sale of Common
Stock.
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(h) Adjustments. Notwithstanding any provision of this Section 9, no adjustment of
the Exercise Price shall be required if such adjustment is less than $0.01; provided, however, that
any adjustments which by reason of this Section 9(h) are not required to be made shall be
carried forward and taken into account for purposes of any subsequent adjustment required to be
made hereunder.
(i) Notice of Adjustments. Upon the occurrence of each adjustment pursuant to this
Section 9, the Company will promptly deliver to the Holder a certificate executed by the
Company’s Chief Financial Officer setting forth, in reasonable detail, the event requiring such
adjustment and the method by which such adjustment was calculated, the adjusted Exercise Price and
the adjusted number or type of Warrant Shares or other securities issuable upon exercise of
this Warrant (as applicable). The Company will retain at its office copies of all such
certificates and cause the same to be available for inspection at said office during normal
business hours by the Holder or any prospective purchaser of the Warrant designated by the Holder.
(j) Notice of Corporate Events. If the Company (i) declares a dividend or any other
distribution of cash, securities or other property in respect of its Common Stock, including,
without limitation, any granting of rights or warrants to subscribe for or purchase any capital
stock of the Company or any subsidiary of the Company, (ii) authorizes, approves, enters into any
agreement contemplating, or solicits stockholder approval for, any Fundamental Transaction or
(iii) authorizes the voluntary dissolution, liquidation or winding up of the affairs of the
Company, then the Company shall deliver to the Holder a notice describing the material terms and
conditions of such transaction at least 15 calendar days prior to the applicable record or
effective date on which a Person would need to hold Common Stock in order to participate in or vote
with respect to such transaction, and the Company will take all steps reasonably necessary in order
to ensure that the Holder is given the practical opportunity to exercise this Warrant prior to such
time so as to participate in or vote with respect to such transaction; provided, however, that the
failure to deliver such notice or any defect therein shall not affect the validity of the corporate
action required to be described in such notice.
10. Fractional Shares. The Company shall not be required to issue or cause to be
issued fractional Warrant Shares on the exercise of this Warrant. If any fraction of a Warrant
Share would, except for the provisions of this Section 10, be issuable upon exercise of
this Warrant, the Company shall make a cash payment to the Holder equal to (a) such fraction
multiplied by (b) the Market Price on the Exercise Date of one full Warrant Share.
11. Listing on Securities Exchanges. The Company has listed, and will use its best
efforts to maintain the listing of, the Warrant Shares on Nasdaq. In furtherance and not in
limitation of any other provision of this Warrant, if the Company at any time shall list any Common
Stock on any Eligible Market other than Nasdaq, the Company will, at its expense, simultaneously
list the Warrant Shares (and use its best efforts to maintain such listing) on such Eligible
Market, upon official notice of issuance following the exercise of this Warrant; and the Company
will so list, register and use its best efforts to maintain such listing on any Eligible Market any
Other Securities, if and at the time that any securities of like class or similar type shall be
listed on such Eligible Market by the Company.
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12. Remedies. The Company stipulates that the remedies at law of the Holder of this
Warrant in the event of any default or threatened default by the Company in the performance of or
compliance with any of the terms of this Warrant are not and will not be adequate, and that such
terms may be specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms hereof or otherwise.
13. Notices. Any and all notices or other communications or deliveries hereunder
(including without limitation any Exercise Notice) shall be in writing and shall be mailed by
certified mail, return receipt requested, or by a nationally recognized courier service or
delivered (in person or by facsimile), against receipt to the party to whom such notice or other
communication is to be given. Any notice or other communication given by means permitted by this
Section 13 shall be deemed given at the time of receipt thereof. The address for such
notices or communications shall be as set forth below:
| If to the Company: | Biopure Corporation | |||
| ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||
| Cambridge, MA 02141 | ||||
| If to the Holder: | c/o Biopure Corporation | |||
| ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||
| Cambridge, MA 02141 |
Or such other address as is provided to such other party in accordance with this Section
13.
14. Warrant Agent. The Company shall serve as warrant agent under this Warrant.
Upon a prompt written notice to the Holder, the Company may appoint a new warrant agent. Any
Person into which any new warrant agent may be merged, any Person resulting from any consolidation
to which any new warrant agent shall be a party or any Person to which any new warrant agent
transfers substantially all of its corporate trust or shareholders services business shall be a
successor warrant agent under this Warrant without any further act. Any such successor warrant
agent shall promptly cause notice of its succession as warrant agent to be mailed (by first class
mail, postage prepaid) to the Holder at the Holder’s last address as shown on the Warrant Register.
15. Miscellaneous.
(a) This Warrant may be assigned by the Holder. This Warrant may not be assigned by the
Company, except to a successor in the event of a Fundamental Transaction. This Warrant shall be
binding on and inure to the benefit of the parties hereto and their respective successors and
assigns. Subject to the preceding sentence, nothing in this Warrant shall be construed to give to
any Person other than the Company and the Holder any legal or equitable right, remedy or cause of
action under this Warrant. This Warrant may be amended only in writing signed by the Company and
the Holder and their successors and assigns.
(b) The Company will not, by amendment of its governing documents 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
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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 action as may be necessary or appropriate in order to protect
the rights of the Holder against impairment. Without limiting the generality of the
foregoing, the Company (i) will not increase the par value of any Warrant Shares above the amount
payable therefor upon exercise thereof, and (ii) will take all such action as may be reasonably
necessary or appropriate in order that the Company may validly and legally issue fully paid and
nonassessable Warrant Shares on the exercise of this Warrant, free from all taxes, liens, claims
and encumbrances and (iii) will not close its shareholder books or records in any manner which
interferes with the timely exercise of this Warrant.
(c) This Warrant shall be governed by and construed and enforced in accordance with the laws
of the State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of
the state and Federal courts sitting in the City of New York, Borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding that it is not personally subject to the jurisdiction of any such
court or that such suit, action or proceeding is improper. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with
evidence of delivery) to such party at the address in effect for notices to it under this Warrant
and agrees that such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. THE PARTIES HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY.
(d) Neither party shall be deemed in default of any provision of this Warrant, to the extent
that performance of its obligations or attempts to cure a breach hereof are delayed or prevented by
any event reasonably beyond the control of such party, including, without limitation, war,
hostilities, acts of terrorism, revolution, riot, civil commotion, national emergency, strike,
lockout, unavailability of supplies, epidemic, fire, flood, earthquake, force of nature, explosion,
embargo, or any other Act of God, or any law, proclamation, regulation, ordinance, or other act or
order of any court, government or governmental agency, provided that such party gives the other
party written notice thereof promptly upon discovery thereof and uses reasonable efforts to cure or
mitigate the delay or failure to perform.
(e) The headings herein are for convenience only, do not constitute a part of this Warrant
and shall not be deemed to limit or affect any of the provisions hereof.
(f) In case any one or more of the provisions of this Warrant shall be deemed invalid or
unenforceable in any respect, the validity and enforceability of the remaining terms and provisions
of this Warrant shall not in any way be affected or impaired thereby and the parties will attempt
in good faith to agree upon a valid and enforceable provision which shall be a commercially
reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision
in this Warrant.
[REMAINDER OF ▇▇▇▇ INTENTIONALLY LEFT BLANK,
SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by its authorized
officer as of the date first indicated above.
| BIOPURE CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Public Warrant]
APPENDIX A
FORM OF ASSIGNMENT
(to be completed and signed only upon transfer of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
the right represented by the within Warrant to purchase
shares of Common Stock of Biopure Corporation to which the within warrant relates and
appoints attorney to transfer said right on the books of Biopure
Corporation with full power of substitution in the premises.
Dated: |
||||||||
| (Signature must conform in all respects to name of ▇▇▇▇▇▇ as specified on face of the Warrant) | ||||||||
| Address of Transferee: | ||||||||
| In the presence of: | ||||||||
APPENDIX B
FORM OF EXERCISE NOTICE
(To be executed by the Holder to exercise the right to purchase shares of Common Stock under the
foregoing Warrant)
| To: | Biopure Corporation |
The undersigned is the Holder of Warrant No. [ ] (the “Warrant”) issued by Biopure
Corporation, a Delaware corporation (the “Company”). Capitalized terms used herein and not
otherwise defined have the respective meanings set forth in the Warrant.
| 1. | The Warrant is currently exercisable to purchase a total of ___ Warrant Shares. | |
| 2. | The undersigned Holder hereby exercises its right to purchase ___ Warrant Shares pursuant to the Warrant. | |
| 3. | The Holder shall pay the sum of $___ to the Company in accordance with the terms of the Warrant. | |
| 4. | Pursuant to this exercise, the Company shall deliver to the Holder Warrant Shares in accordance with the terms of the Warrant | |
| 5. | Following this exercise, the Warrant shall be exercisable to purchase a total of ___ Warrant Shares. |
| Dated: | Name of Holder: | |||||||
| (Print) | ||||||||
| By: | ||||||||
| Title: | ||||||||
| (Signature must conform in all respects to name of ▇▇▇▇▇▇ as specified on face of the Warrant) | ||||||||