EXHIBIT 4.1
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Form of Warrant dated November 1, 1998
THIS WARRANT AND THE SECURITIES PURCHASABLE UPON ITS EXERCISE HAVE BEEN AND WILL
BE, AS THE CASE MAY BE, ISSUED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE
DISPOSED OF UNLESS SO REGISTERED OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE ACT IS AVAILABLE FOR SUCH SALE, TRANSFER, OR DISPOSITION.
WARRANT TO PURCHASE
COMMON STOCK
OF
IMPAX PHARMACEUTICALS, INC.
WARRANT NO. ______
ISSUE DATE: November 1, 1998
FOR VALUE RECEIVED, subject to the terms and conditions herein set
forth, _________________ (the "Holder") is entitled to purchase from IMPAX
PHARMACEUTICALS, INC., a California corporation (the "Company"), at a price per
share as set forth in Section 1 hereof (the "Warrant Price"), the number of
fully paid and non--assessable shares of Common Stock, as set forth in Section 2
hereof.
1. Warrant Price. The Warrant Price for each share of Common Stock
shall equal $2.50.
2. Number of Shares. The number of shares of Common Stock issuable upon
exercise of this Warrant shall be equal to ( ) (the "Warrant Shares").
3. No Shareholder Rights. This Warrant shall not entitle the Holder to
any of the rights of a shareholder of the Company.
4. Reservation of Shares. The Company covenants that during the period
this Warrant is exercisable it will reserve from its authorized and unissued
shares of Common Stock a sufficient number of units to provide for the issuance
of the number of shares of Common Stock which are issuable upon the exercise of
this Warrant. The Company agrees 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
Common Stock upon the exercise of this Warrant.
5. Exercise of Warrant.
5.1 Exercise. This Warrant may be exercised by the Holder, in whole
or in part, by the surrender of this Warrant at the principal office of the
Company, together with the Subscription Agreement duly completed and executed,
substantially in the form attached hereto as Exhibit A, accompanied by payment
in full of the aggregate Warrant Price for the shares of Common Stock being
purchased upon such exercise. Upon partial exercise hereof, a new warrant of
like tenor and date shall be issued by the Company to the Holder setting forth
the formula for determining the balance of shares of Common Stock not exercised
under this Warrant. A warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of its surrender for exercise as
provided above, and the Holder shall be treated for all purposes as the holder
of record of such shares as of the close of business on such date. As promptly
as practicable on or after such date, the Company shall issue and deliver to the
Holder a certificate for the number of shares of Common Stock issuable upon such
exercise, together with cash in lieu of any fraction of a share as provided
above.
5.2 Issuance of Stock Certificates. Issuance of certificates for the
shares upon the exercise of this Warrant shall be made without charge to the
registered holder hereof for any issue or transfer tax or other incidental
expense in respect of the issuance of such certificate, all of which taxes and
expenses shall be paid by the Company, and such certificates shall be issued in
the name of the registered holder of this Warrant.
6. Adjustments.
6.1 Adjustment for Reclassification, Exchange and Substitution. If
the Company shall at any time or from time to time effect a subdivision of the
outstanding capital stock, or shall issue a dividend of capital stock on its
outstanding capital stock, the Warrant Price then in effect immediately before
the subdivision or dividend shall be proportionately decreased, and conversely,
if the Company shall combine the outstanding shares of capital stock, the
Warrant Price then in effect immediately before the combination shall be
proportionately increased. Any adjustment under this Section 6.1 shall become
effective at the close of business on the date the subdivision or combination
becomes effective or on the date on which the dividend is declared.
6.2 Adjustment for Reclassification, Exchange and Substitution. If
the Common Stock issuable upon the exercise of this Warrant shall be changed
into the same or different number of shares of any class or series of stock,
whether by capital reorganization, reclassification or otherwise (other than a
subdivision or combination of shares or stock dividend, provided for above, or a
merger, consolidation, sale of assets), then, and in such event, the Holder of
this Warrant shall have the right thereafter to purchase pursuant to this
Warrant, the kind and amount of shares of stock and other securities and
property receivable upon such reorganization, reclassification or other change
by holders of the number of shares of Common Stock exercisable pursuant to this
Warrant immediately prior to such reorganization, reclassification or change,
all subject to further adjustment as provided herein.
7. Performance of Terms. The Company will not, by amendment of its
Article of Incorporation or Bylaws or through any reorganization,
recapitalization, transfer of assets, consolidation, merger, dissolution,
issuance of sale or securities or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms to be performed
hereunder by the Company, but will at all times in good faith assist in the
carrying out of all the provisions of this Warrant and in the taking of all such
action as may be reasonably necessary or appropriate in order to protect the
rights of Warrant Holder under this Warrant.
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8. Certain Transaction Rights. In the event of a merger or
consolidation of the Company with or into another corporation, limited liability
company, general or limited partnership, joint venture, association or other
legal entity (other than a merger or consolidation pursuant to which the Company
is the surviving corporation and the stockholders of the Company immediately
preceding such merger or consolidation continue to own at least fifty percent
(50%) of the capital stock of the Company entitled to vote following the closing
of such merger or consolidation and which does not result in any
reclassification of the Warrant Shares issuable upon the exercise of the rights
represented by this Warrant), or the sale of all or substantially all of the
assets or capital stock of the Company, the Company or any successor corporation
or other legal entity, as the case may be, shall execute a new Warrant the terms
of which provide that the holder of this Warrant shall have the right to
exercise the rights represented by such new Warrant, and procure upon such
exercise and payment of the same aggregate Exercise Price then in effect, in
lieu of the shares of Common Stock theretofore issuable upon exercise of the
rights represented by this Warrant, the kind and amount of shares of stock,
other securities, money and property receivable upon such merger, consolidation
or sale of assets or capital stock by a holder of an equivalent number of shares
of Common Stock. Such new Warrant shall provide for adjustments which are as
equivalent as practicable to the adjustments provided for in this Section 8. The
provisions of this Section 8 shall apply with equal force and effect to all
successive mergers, consolidations and sales of assets and capital stock of the
Company.
9. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Holder as follows:
9.1 Valid Authorization of Warrant. This Warrant has been duly
authorized and validly executed and delivered by the Company and constitutes a
valid and legally binding obligation of the Company enforceable against the
Company in accordance with its terms.
9.2 Valid Authorization of Warrant Shares. The Warrant Shares have
been duly and validly authorized and reserved for issuance by the Company upon
the exercise of the rights represented by this Warrant and, when issued upon the
exercise of such rights in accordance with the terms and conditions hereof, the
Warrant Shares will be (A) duly authorized and validly issued, fully paid and
nonassessable shares of Common Stock, (B) free from all preemptive rights,
rights of first refusal or first offer, taxes, liens, charges or other
encumbrances with respect to the issuance thereof by the Company, and (C) free
of any restrictions on the transfer thereof other than restrictions on transfer
under applicable federal and state securities laws. At all times during the term
hereof, the Company shall have authorized and reserved for issuance a sufficient
number of shares of Common Stock to provide for the exercise of the rights
represented by this Warrant.
9.3 No Violation of Charter Documents. The due execution and
delivery of this Warrant are not, and the issuance of the Warrant Shares upon
the exercise of the rights represented by this Warrant in accordance with the
terms hereof will not, conflict with the Certificate of Incorporation or Bylaws
of the Company, each as amended to the date of issuance hereof.
10. Representations and Warranties of the Holder. The Holder hereby
represents and warrants to the Company as follows:
10.1 Investment Intent. This Warrant is being acquired for such
Holder's own account, for investment and not with a view to, or for resale in
connection with, any distribution or public offering thereof within the meaning
of the Securities Act. Upon the exercise of the rights represented by this
Warrant, the Holder shall, if so requested by the Company, confirm in writing,
in a form reasonably satisfactory to the Company, that the Warrant Shares
issuable upon the exercise of such rights are being acquired for investment and
not with a view toward distribution or resale thereof.
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10.2 No Registration. The Holder understands that the Warrant and
the Warrant Shares have not been registered under the Securities Act by reason
of their issuance in a transaction exempt from the registration and prospectus
delivery requirements of the Securities Act pursuant to Section 4(2) thereof,
and that such Warrant and the Warrant Shares, as the case may be, must be held
by the Holder indefinitely, and therefore, that the Holder must bear the
economic risk of such investment indefinitely, unless a subsequent disposition
thereof is registered under the Securities Act or is exempt from such
registration requirements. The Holder further understands that the Warrant
Shares have not been qualified under the California Securities Law of 1968 (the
"California Law") by reason of their issuance in a transaction exempt from the
qualification requirements of the California Law pursuant to Section 25102(f)
thereof, which exemption depends upon, among other things, the bona fide nature
of such Holder's investment intent expressed herein.
10.3 Sophisticated Investor. The Holder has such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of the purchase of this Warrant and the Warrant Shares and
of protecting its interests in connection therewith.
10.4 Economic Risk. The Holder is able to bear the economic risk of
the purchase of the Warrant Shares pursuant to the terms of this Warrant.
11. Lock-Up Agreement. The Holder hereby agrees that, upon request of
the Company or the managing underwriter of a public offering of any securities
of the Company, such Holder shall not sell, make any short sale of, loan, grant
any option for the purchase of, or otherwise dispose of all or any portion of
the Warrant Shares without the prior written consent of the Company or the
managing underwriter, as the case may be, for such period of time (not to exceed
one hundred eighty (180) days from the date upon which the registration
statement relating to such public offering is declared or ordered effective by
the Securities and Exchange Commission) as may be requested by the Company or
the underwriters, as the case may be.
12. Miscellaneous.
12.1 Governing Law. This Warrant is being delivered in the State of
California and shall be construed and enforced in accordance with and governed
by the laws of such State. The parties expressly stipulate that any litigation
under this Warrant shall be brought in the State court of the County of Alameda,
California and in the United States District Court for the Northern District of
California. The parties agree to submit to the jurisdiction and venue of such
courts.
12.2 Notice Procedures. Any written notice by the Company required
hereunder shall be made by hand delivery or first class mail, postage prepaid,
addressed to the Holder at the address set forth on the books of the Company.
12.3 Successors and Assigns. Neither this Warrant, nor any rights
hereunder, may be assigned or transferred without the express written consent of
the Company. The terms of this Warrant shall be binding upon and shall inure to
the benefit of any successors or assigns of the Company and of the Holder or
Holders of this Warrant and the Warrant Shares issued or issuable upon the
exercise of the rights represented by this Warrant.
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12.4 Entire Agreement. This Warrant constitutes the full and entire
understanding and agreement between the parties with respect to the subject
matter hereof and supersedes in their entirety any prior or contemporaneous
agreements by and between the Company and the Holder with respect to such
matters.
12.5 Further Assurances: No Impairment. The Company shall not, by
amendment of its Articles of Incorporation or through any other means, directly
or indirectly, avoid or seek to avoid the observance or performance of any of
the terms of this Warrant and shall 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 of this
Warrant against impairment. The Company shall at no time close its transfer
books against the transfer of this Warrant or of any Warrant Shares issued or
issuable upon the exercise of the rights represented by this Warrant in any
matter which interferes with a timely exercise of such rights. The Company shall
not, by any action, seek to avoid the observance or performance of any of the
terms of this Warrant, but shall at all times in good faith seek to carry out
all such terms and take all such actions as may be necessary or appropriate in
order to protect the rights of the Holder under this Warrant against impairment.
12.6 Lost Warrant. Upon receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this Warrant
and, in the case of any such loss, theft or destruction, upon delivery of an
indemnity agreement reasonably satisfactory in form and amount to the Company
or, in the case of any such mutilation, upon surrender and cancellation of such
Warrant, the Company at the Holder's expense shall execute and deliver to the
Holder, in lieu thereof, a new Warrant of like date and tenor.
12.7 Amendments. This Warrant and any provision hereof may be
amended, waived or terminated (either generally or in a particular instance,
retroactively or prospectively and for a specified period of time or
indefinitely) only by a written instrument signed by the Company and the Holder,
or, in the event of any partial transfer of the rights represented by this
Warrant, the Holders of rights to purchase more than fifty percent (50%) of the
Warrant Shares issuable upon exercise of the rights represented by this Warrant,
and with the same consent the Company may enter into a supplementary agreement
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Warrant or the Warrants, as the case
may be; provided, however, that no such amendment, waiver, termination or
supplemental agreement shall reduce the aforesaid percentage which is required
for consent to any amendment, waiver, termination or supplemental agreement
without the consent of all of the Holders of the rights represented by this
Warrant.
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13. Expiration of Warrant. This Warrant shall expire and shall no
longer be exercisable on or after December 31, 2003.
Issued this 1st day of November, 1998
IMPAX PHARMACEUTICALS, INC.
By:______________________________
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