Attached files
file | filename |
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8-K - FORM 8-K - JUNIPER PHARMACEUTICALS INC | y85451e8vk.htm |
EX-3.1 - EX-3.1 - JUNIPER PHARMACEUTICALS INC | y85451exv3w1.htm |
EX-10.2 - EX-10.2 - JUNIPER PHARMACEUTICALS INC | y85451exv10w2.htm |
EX-10.1 - EX-10.1 - JUNIPER PHARMACEUTICALS INC | y85451exv10w1.htm |
EX-99.1 - EX-99.1 - JUNIPER PHARMACEUTICALS INC | y85451exv99w1.htm |
EX-10.3 - EX-10.3 - JUNIPER PHARMACEUTICALS INC | y85451exv10w3.htm |
EX-99.2 - EX-99.2 - JUNIPER PHARMACEUTICALS INC | y85451exv99w2.htm |
EX-99.3 - EX-99.3 - JUNIPER PHARMACEUTICALS INC | y85451exv99w3.htm |
Exhibit 4.1
COLUMBIA LABORATORIES, INC.
WARRANT TO PURCHASE COMMON STOCK
No. W- | July 2, 2010 |
Void After July 2, 2015
THIS CERTIFIES THAT, for value received, , with its principal office at
, or its permitted assigns (the Holder), is entitled to
subscribe for and purchase at the Exercise Price (defined below) from Columbia Laboratories, Inc.,
a Delaware corporation, with its principal office at 354 Eisenhower Parkway, Livingston, New Jersey
07039 (the Company), up to shares of common stock of the Company, $0.01 par value per
share (the Common Stock), subject to adjustment as provided herein. This Warrant is one of a
series of substantially similar Warrants being issued as of the date hereof (the Issuance Date)
pursuant to the terms of those certain Note Purchase and Amendment Agreements (the NPA Warrants),
dated on or after March 3, 2010, each by and among the Company and certain other persons or
entities (each a Purchaser and together, the Purchasers), including the original Holder of this
Warrant (the Note Purchase Agreements and including the Note Purchase and Amendment Agreement,
dated as of March 3, 2010, between the Company and the original Holder, the Note Purchase
Agreement). Capitalized terms not otherwise defined herein shall have the respective meanings
ascribed to such terms in the Note Purchase Agreement.
1. DEFINITIONS. As used herein, the following terms shall have the following respective meanings:
(a) Business Day means any day other than Saturday, Sunday or other day on which commercial
banks in The City of New York are authorized or required by law to remain closed.
(b) Closing Bid Price and Closing Sale Price means, for any security as of any date, the
last closing bid price and last closing trade price, respectively, for such security on the
Principal Market, as reported by Bloomberg, or, if the Principal Market begins to operate on an
extended hours basis and does not designate the closing bid price or the closing trade price, as
the case may be, then the last bid price or last trade price, respectively, of such security prior
to 4:00:00 p.m., New York time, as reported by Bloomberg, or, if the Principal Market is not the
principal securities exchange or trading market for such security, the last closing bid price or
last trade price, respectively, of such security on the principal securities exchange or trading
market where such security is listed or traded as reported by Bloomberg, or if the foregoing do not
apply, the last closing bid price or last trade price, respectively, of such security in the
over-the-counter market on the electronic bulletin board for such security as reported by
Bloomberg, or, if no closing bid price or last trade price, respectively, is reported for such
security by Bloomberg, the average of the bid prices, or the ask prices, respectively, of any
market makers for such security as reported in the pink sheets by Pink Sheets LLC (formerly the
National Quotation
Bureau, Inc.). If the Closing Bid Price or the Closing Sale Price cannot be calculated for a
security on a particular date on any of the foregoing bases, the Closing Bid Price or the Closing
Sale Price, as the case may be, of such security on such date shall be the fair market value as
mutually determined by the Company and the Holder. All such determinations to be appropriately
adjusted for any stock dividend, stock split, stock combination or other similar transaction during
the applicable calculation period.
(c) Exercise Period shall mean the period commencing 180 days after the date hereof and
ending at 5:00 p.m., New York time, on July 2, 2015, unless sooner exercised or terminated as
provided below.
(d) Exercise Price shall mean $1.35, subject to adjustment pursuant to Section 5 below.
(e) Exercise Shares shall mean the shares of the Common Stock issued upon exercise of this
Warrant, subject to adjustment pursuant to the terms herein, including but not limited to
adjustment pursuant to Section 5 below.
(f) Principal Market means the principal securities exchange or securities market on which
the Common Stock is then traded.
(g) Trading Day means any day on which the Common Stock is traded on the Principal Market;
provided that Trading Day shall not include any day on which the Common Stock is scheduled to
trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is
suspended from trading during the final hour of trading on such exchange or market (or if such
exchange or market does not designate in advance the closing time of trading on such exchange or
market, then during the hour ending at 4:00:00 p.m., New York Time).
2. EXERCISE OF WARRANT.
2.1 Method of Exercise. Subject to the terms and conditions hereof (including, without limitation, the
limitations set forth in Section 2.5), this Warrant may be exercised by the Holder at any time
during the Exercise Period, in whole or in part, by (i) delivery of a written notice, in the form
attached hereto as Exhibit A (the Exercise Notice), of the Holders election to exercise this
Warrant to the Company and (ii) (A) payment to the Company of an amount equal to the applicable
Exercise Price multiplied by the number of shares of Common Stock as to which this Warrant is being
exercised (the Aggregate Exercise Price) in cash or by wire transfer of immediately available
funds or (B) by notifying the Company that this Warrant is being exercised pursuant to a Cashless
Exercise (as defined in Section 2.3). The Holder shall not be required to deliver the original
Warrant in order to effect an exercise hereunder. Execution and delivery of the Exercise Notice
with respect to less than all of the Common Stock shall have the same effect as cancellation of the
original Warrant and issuance of a new Warrant evidencing the right to purchase the remaining
number of Exercise Shares. On or before the first Business Day following the date on which the
Company has received each of the Exercise Notice and the Aggregate Exercise Price (or notice of a
Cashless Exercise) (the Exercise Delivery Documents), the Company shall transmit by facsimile an
acknowledgment of confirmation of receipt of the Exercise Delivery Documents to the Holder and the
Companys transfer agent (the Transfer Agent). On or before the third Business Day following the
date
on which the Company has received all of the Exercise Delivery Documents (the Share Delivery
Date), the Company shall (X) provided that the Transfer Agent is participating in The Depository
Trust Company (DTC) Fast Automated Securities Transfer Program, upon the request of the Holder,
credit such aggregate number of Exercise Shares to which the Holder is entitled pursuant to such
exercise to the Holders or its designees balance account with DTC through its Deposit Withdrawal
Agent Commission system, or (Y) if the Transfer Agent is not participating in the DTC Fast
Automated Securities Transfer Program, issue and dispatch by overnight courier to the address as
specified in the Exercise Notice, a certificate, registered in the Companys share register in the
name of the Holder or its designee, for the number of Exercise Shares to which the Holder is
entitled pursuant to such exercise which certificates shall not bear any restrictive legends unless
required pursuant to the Note Purchase Agreement or the Company places (or cauces to be placed) a
restrictive legend thereon in accordance with Section 4.3(b) hereof. Upon delivery of the Exercise
Delivery Documents, the Holder shall be deemed for all corporate purposes to have become the holder
of record of the Exercise Shares with respect to which this Warrant has been exercised,
irrespective of the date such Exercise Shares are credited to the Holders DTC account or the date
of delivery of the certificates evidencing such Exercise Shares as the case may be. If this
Warrant is submitted in connection with any exercise pursuant to this Section 2.1 and the number of
Exercise Shares represented by this Warrant submitted for exercise is greater than the number of
Exercise Shares being acquired upon an exercise, then the Company shall as soon as practicable and
in no event later than three Business Days after any exercise and at its own expense, issue a new
Warrant (in accordance with Section 2.4) representing the right to purchase the number of Exercise
Shares purchasable immediately prior to such exercise under this Warrant, less the number of
Exercise Shares with respect to which this Warrant is exercised. No fractional shares of Common
Stock are to be issued upon the exercise of this Warrant. Fractional shares shall be treated as
provided in Section 6. The Company shall pay any and all taxes which may be payable with respect
to the issuance and delivery of Exercise Shares upon exercise of this Warrant.
2.2 Companys Failure to Timely Deliver Securities. If within three Trading Days after the Companys
receipt of the facsimile copy of a Exercise Notice the Company shall fail to issue and deliver a
certificate to the Holder and register such Exercise Shares on the Companys share register or
credit the Holders balance account with DTC for the number of Exercise Shares to which the Holder
is entitled upon such Holders exercise hereunder or if the Company fails to deliver to the Holder
the certificate or certificates representing the applicable Exercise Shares (or credit the Holders
balance account at DTC with the applicable Exercise Shares) within three Trading Days after its
obligation to do so under clause (ii) below and if on or after such Trading Day the Holder
purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in
satisfaction of a sale by the Holder of Exercise Shares issuable upon such exercise that the Holder
anticipated receiving from the Company (a Buy-In), then the Company shall, within three Business
Days after the Holders request and in the Holders discretion, either (i) pay cash to the Holder
in an amount equal to the Holders total purchase price (including brokerage commissions, if any)
for the shares of Common Stock so purchased (the Buy-In Price), at which point the Companys
obligation to deliver such certificate (and to issue such Exercise Shares) or credit such Holders
balance account with DTC shall terminate, or (ii) promptly honor its obligation to deliver to the
Holder a certificate or certificates representing such Exercise Shares or credit such Holders
balance account with DTC and pay cash to the Holder in an amount equal to the excess (if any) of
the Buy-In Price over the
product of (A) such number of Exercise Shares, times (B) the Closing Bid Price on the date of
exercise.
2.3 Cashless Exercise. Notwithstanding any provisions herein to the contrary, if, at any time during
the Exercise Period, the Current Market Price (as defined below) of one share of Common Stock is
greater than the Exercise Price (at the date of calculation as set forth below), in lieu of
exercising this Warrant by payment of cash, the Holder may exercise this Warrant by a cashless
exercise by surrender of this Warrant at the principal office of the Company together with the
properly endorsed Notice of Exercise and the Company shall issue to the Holder a number of Exercise
Shares computed using the following formula:
X = | Y (B-A)
|
|||||
B | ||||||
Where: | X = | the number of Exercise Shares to be issued to the Holder. | ||||
Y = | the number of Exercise Shares purchasable upon exercise of all of the Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being exercised. | |||||
A = the Exercise Price. | ||||||
B = the Current Market Price of one share of Common Stock. |
Current Market Price means on any particular date:
(a) if the Common Stock is traded on the Nasdaq Capital Market, the Nasdaq Global Market or
the Nasdaq Global Select Market (or their successors), the average of the closing prices of the
Common Stock of the Company on such market over the five trading days ending immediately prior to
the applicable date of valuation;
(b) if the Common Stock is traded on any registered national stock exchange but is not traded
on the Nasdaq Capital Market, the Nasdaq Global Market or the Nasdaq Global Select Market (or their
successors), the average of the closing prices of the Common Stock of the Company on such exchange
over the five trading days ending immediately prior to the applicable date of valuation;
(c) if the Common Stock is traded over-the-counter, but not on the Nasdaq Capital Market, the
Nasdaq Global Market, the Nasdaq Global Select Market or a registered national stock exchange, the
average of the closing bid prices over the 30-day period ending immediately prior to the applicable
date of valuation; and
(d) if there is no active public market for the Common Stock, the value thereof, as determined
in good faith by the Board of Directors of the Company upon due consideration of the proposed
determination thereof by the Holder.
2.4 Partial Exercise. If this Warrant is exercised in part only, the Company shall, upon surrender of
this Warrant, execute and deliver, within 10 days of the date of exercise,
a new Warrant evidencing the rights of the Holder, or, subject to Section 8, such other person as
shall be designated in the Notice of Exercise, to purchase the balance of the Exercise Shares
purchasable hereunder. In no event shall this Warrant be exercised for a fractional Exercise
Share, and the Company shall not distribute a Warrant exercisable for a fractional Exercise Share.
Fractional shares shall be treated as provided in Section 6.
2.5 Limitations on Exercise.
(a) The Company shall not effect the exercise of this Warrant, and the Holder shall not have
the right to exercise this Warrant, to the extent that after giving effect to such exercise, such
Person (together with such Persons affiliates) would beneficially own in excess of 9.99% of the
shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes
of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by
such Person and its affiliates shall include the number of shares of Common Stock issuable upon
exercise of this Warrant with respect to which the determination of such sentence is being made,
but shall exclude shares of Common Stock which would be issuable upon (i) exercise of the
remaining, unexercised portion of this Warrant beneficially owned by such Person and its affiliates
and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities
of the Company beneficially owned by such Person and its affiliates (including, without limitation,
any convertible notes or convertible preferred stock or warrants) subject to a limitation on
conversion or exercise analogous to the limitation contained herein. Except as set forth in the
preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in
accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended. For purposes of
this Warrant, in determining the number of outstanding shares of Common Stock, the Holder may rely
on the number of outstanding shares of Common Stock as reflected in (1) the Companys most recent
Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and
Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or
(3) any other notice by the Company or the Transfer Agent setting forth the number of shares of
Common Stock outstanding. For any reason at any time, upon the written request of the Holder, the
Company shall within one Business Day confirm in writing to the Holder the number of shares of
Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall
be determined after giving effect to the conversion or exercise of securities of the Company,
including the NPA Warrants, by the Holder and its affiliates since the date as of which such number
of outstanding shares of Common Stock was reported.
(b) The Company shall not be obligated to issue any shares of Common Stock upon exercise of
this Warrant, if the issuance of such shares of Common Stock would exceed that number of shares of
Common Stock which the Company may issue upon exercise, redemption or conversion, as applicable, of
the NPA Warrants or otherwise without breaching the Companys obligations under the rules or
regulations of the applicable Principal Market (the number of shares which may be issued without
violating such rules and regulations, the Exchange Cap), except that such limitation shall not
apply in the event that the Company (A) obtains the approval of its stockholders as required by the
applicable rules of the applicable Principal Market for issuances of shares of Common Stock in
excess of such amount or (B) obtains a written opinion from outside counsel to the Company that
such approval is not required, which opinion shall be reasonably satisfactory to the Holders.
Unless and until such
approval or written opinion is obtained, no Holder shall be issued in the aggregate, upon
exercise or conversion, as applicable, of any NPA Warrants, shares of Common Stock in an amount
greater than the product of the Exchange Cap multiplied by a fraction, the numerator of which is
the total number of shares of Common Stock underlying the NPA Warrants issued to such Holder
pursuant to the Note Purchase Agreements on the Issuance Date and the denominator of which is the
aggregate number of shares of Common Stock underlying the NPA Warrants issued to the Purchasers
pursuant to the Note Purchase Agreements on the Issuance Date (with respect to each Purchaser, the
Exchange Cap Allocation). In the event that any Holder shall sell or otherwise transfer any of
such Holders NPA Warrants, the transferee shall be allocated a pro rata portion of such Holders
Exchange Cap Allocation, and the restrictions of the prior sentence shall apply to such transferee
with respect to the portion of the Exchange Cap Allocation allocated to such transferee. In the
event that any Holder of NPA Warrants shall exercise all of such Holders NPA Warrants into a
number of shares of Common Stock which, in the aggregate, is less than such Holders Exchange Cap
Allocation, then the difference between such Holders Exchange Cap Allocation and the number of
shares of Common Stock actually issued to such Holder shall be allocated to the respective Exchange
Cap Allocations of the remaining holders of NPA Warrants on a pro rata basis in proportion to the
shares of Common Stock underlying the NPA Warrants then held by each such holder. In the event
that the Company is prohibited from issuing any Warrant Shares for which an Exercise Notice has
been received as a result of the operation of this Section 2.5(b), the Company shall pay cash in
exchange for cancellation of such Warrant Shares, at a price per Warrant Share equal to the
difference between the Closing Sale Price and the Exercise Price as of the date of the attempted
exercise.
2.6 Insufficient Authorized Shares. If at any time while any of the Warrants remain outstanding the
Company does not have a sufficient number of authorized and unreserved shares of Common Stock to
satisfy its obligation to reserve for issuance upon exercise of the Warrants at least a number of
shares of Common Stock equal to 100% of the number of shares of Common Stock as shall from time to
time be necessary to effect the exercise of all of the Warrants then outstanding (the Required
Reserve Amount) (such event an Authorized Share Failure), then the Company shall immediately
take all action necessary to increase the Companys authorized shares of Common Stock to an amount
sufficient to allow the Company to reserve the Required Reserve Amount for the Warrants then
outstanding. Without limiting the generality of the foregoing sentence, as soon as practicable
after the date of the occurrence of an Authorized Share Failure, but in no event later than 90 days
after the occurrence of such Authorized Share Failure, the Company shall hold a meeting of its
stockholders for the approval of an increase in the number of authorized shares of Common Stock.
In connection with such meeting, the Company shall provide each stockholder with a proxy statement
and shall use its best efforts to solicit its stockholders approval of such increase in authorized
shares of Common Stock and to cause its board of directors to recommend to the stockholders that
they approve such proposal.
3. COVENANTS OF THE COMPANY.
3.1 Covenants as to Exercise Shares. The Company covenants and agrees that all Exercise Shares that
may be issued upon the exercise of the rights represented by this Warrant will, upon issuance, be
validly issued and outstanding, fully paid and nonassessable, and free from all taxes, liens and
charges with respect to the issuance thereof. The Company further
covenants and agrees that the Company will at all times during the Exercise Period have authorized
and reserved, free from preemptive rights, a sufficient number of shares of its Common Stock to
provide for the exercise of the rights represented by this Warrant. If at any time during the
Exercise Period the number of authorized but unissued shares of Common Stock shall not be
sufficient to permit exercise of this Warrant, the Company will take such corporate action as may,
in the opinion of its counsel, be necessary to increase its authorized but unissued shares of
Common Stock (or other securities as provided herein) to such number of shares as shall be
sufficient for such purposes.
3.2 Notices of Record Date. In the event of any taking by the Company of a record of the holders of
any class of securities for the purpose of determining the holders thereof who are entitled to
receive any dividend (other than a cash dividend which is the same as cash dividends paid in
previous quarters) or other distribution, the Company shall mail to the Holder, at least ten days
prior to the date specified herein, a notice specifying the date on which any such record is to be
taken for the purpose of such dividend or distribution.
4. REPRESENTATIONS OF HOLDER.
4.1 Acquisition of Warrant for Personal Account. The Holder represents and warrants that it is
acquiring the Warrant and the Exercise Shares solely for its account for investment and not with a
present view toward the public sale or distribution of said Warrant or Exercise Shares or any part
thereof and has no present intention of selling or distributing said Warrant or Exercise Shares or
any arrangement or understanding with any other persons regarding the sale or distribution of said
Warrant or, except in accordance with the provisions of Article V of the Note Purchase Agreement,
if applicable, the Exercise Shares, and except as would not result in a violation of the Securities
Act of 1933, as amended. The Holder will not, directly or indirectly, offer, sell, pledge,
transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or
take a pledge of) the Warrant except in accordance with the Securities Act of 1933, as amended, and
will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit
any offers to buy, purchase or otherwise acquire or take a pledge of) the Exercise Shares except in
accordance with the provisions of Article V of the Note Purchase Agreement, if applicable, or
pursuant to and in accordance with the Securities Act of 1933, as amended.
4.2 Securities Are Not Registered.
(a) The Holder understands that the offer and sale of the Warrant or the Exercise Shares have
not been registered under the Securities Act of 1933, as amended, on the basis that no distribution
or public offering of the securities of the Company is to be effected and/or pursuant to specific
exemptions from the registration provisions of the Securities Act of 1933, as amended, which
exemptions depend upon, among other things, the bona fide nature of the Holders investment intent
as expressed herein. The Holder realizes that the basis for such exemptions may not be present if,
notwithstanding its representations, the Holder has a present intention of acquiring the Warrants
and/or the Exercise Shares for a fixed or determinable period in the future, selling (in connection
with a distribution or otherwise), granting any participation in, or otherwise distributing the
Warrants and/or the Exercise Shares. The Holder represents and warrants that it has no such
present intention.
(b) The Holder recognizes that the Warrant and the Exercise Shares must be held indefinitely
unless they are subsequently registered under the Securities Act of 1933, as amended, or an
exemption from such registration is available. The Holder recognizes that the Company has no
obligation to register the Warrant or, except as provided in the Note Purchase Agreement, if
applicable, the Exercise Shares, or to comply with any exemption from such registration.
4.3 Disposition of Warrant and Exercise Shares.
(a) The Holder further agrees not to make any disposition of all or any part of the Warrant or
Exercise Shares in any event unless and until:
(i) There is then in effect a registration statement under the Securities Act of 1933,
as amended, covering such proposed disposition and such disposition is made in accordance
with said registration statement;
(ii) Solely with respect to the Warrant, the Holder shall have furnished to the Company
the Certificate, after which the Holder may dispose of such Warrant in accordance with the
provisions of Rule 144 under the Securities Act of 1933, as amended;
(iii) Solely with respect to the Exercise Shares that the Holder acquires pursuant to
the cashless exercise provisions of Section 2.3 hereof, and only if the Holder shall have
furnished to the Company the Certificate at the time of such cashless exercise, the Holder
may dispose of such Exercise Shares in accordance with the provisions of Rule 144 under the
Securities Act of 1933, as amended; or
(iv) If reasonably requested by the Company, the Holder shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company, for the Holder
to the effect that such disposition will not require registration of such Warrant or
Exercise Shares under the Securities Act of 1933, as amended, or any applicable state
securities laws; provided, that no opinion shall be required for any disposition made or to
be made in accordance with the provisions of Rule 144 under the Securities Act of 1933, as
amended.
(b) The Holder understands and agrees that all certificates evidencing the Exercise Shares to
be issued to the Holder may bear a legend in substantially the following form (except such legend
will not be placed on Exercise Shares acquired under the Warrant pursuant to a cashless exercise
pursuant to Section 2.3 if immediately prior to such cashless exercise the Holder provides the
Certificate to the Company):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE
SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, TRANSFERRED OR ASSIGNED
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER APPLICABLE
SECURITIES LAWS, OR UNLESS OFFERED, SOLD, PLEDGED,
HYPOTHECATED OR TRANSFERRED PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THOSE LAWS. COLUMBIA LABORATORIES, INC. SHALL BE ENTITLED TO REQUIRE AN
OPINION OF COUNSEL SATISFACTORY TO COLUMBIA LABORATORIES, INC. THAT SUCH REGISTRATION IS NOT
REQUIRED TO THE EXTENT THAT AN OPINION IS REQUIRED PURSUANT TO THE AGREEMENT UNDER WHICH THE
SECURITIES WERE ISSUED.
5. ADJUSTMENTS. In the event of changes in the outstanding Common Stock of the Company by reason of
any stock split, stock dividend, recapitalization, reclassification, combination or exchange of
shares, reorganization, liquidation, dissolution, consolidation or merger effected by the Company,
the number and class of shares available under the Warrant in the aggregate and the Exercise Price
shall be correspondingly adjusted to give the Holder of the Warrant, on exercise for the same
aggregate Exercise Price, the total number, class and kind of shares or other property, including
cash, as the Holder would have owned had the Warrant been exercised prior to the event and had the
Holder continued to hold such shares until after the event requiring adjustment. The form of this
Warrant need not be changed because of any adjustment in the Exercise Price and/or number, class
and kind of shares subject to this Warrant. The Company shall promptly provide a certificate from
its Chief Financial Officer notifying the Holder in writing of any adjustment in the Exercise Price
and/or the total number, class and kind of shares issuable upon exercise of this Warrant, which
certificate shall specify the Exercise Price and number, class and kind of shares under this
Warrant after giving effect to such adjustment. For the avoidance of doubt, if necessary to
effectuate the provisions of this paragraph 5, any successor to the Company or surviving entity in
a reorganization, consolidation or merger effected by the Company shall deliver to the Holder
confirmation (or a new warrant to the effect) that such successor or surviving entity shall have
all of the obligations of the Company under this Warrant with the same effect as if such successor
or surviving entity had been named as the Company herein, and that there shall be issued upon
exercise of this Warrant (or a new warrant) at any time after the consummation of such
reorganization, consolidation or merger, in lieu of the shares of Common Stock issuable upon the
exercise of this Warrant prior to such transaction, the total number, class and kind of shares or
other property, including cash, as the Holder would have owned had the Warrant been exercised prior
to such transaction and had the Holder continued to hold such shares until after such transaction.
6. FRACTIONAL SHARES. No fractional shares shall be issued upon the exercise of this Warrant as a
consequence of any adjustment pursuant hereto. All Exercise Shares (including fractions) issuable
upon exercise of this Warrant may be aggregated for purposes of determining whether the exercise
would result in the issuance of any fractional share. If, after aggregation, the exercise would
result in the issuance of a fractional share, the Company shall, in lieu of issuance of any
fractional share, pay the Holder otherwise entitled to such fraction a sum in cash equal to the
product resulting from multiplying the fair market value of the Common Stock on the date of
exercise of this Warrant by such fraction.
7. NO STOCKHOLDER RIGHTS. This Warrant in and of itself shall not entitle the Holder to any voting
rights or other rights as a stockholder of the Company.
8. TRANSFER OF WARRANT. Subject to applicable laws and compliance with Section 4.3, this Warrant and
all rights hereunder are transferable, by the Holder in person or by duly authorized attorney, upon
delivery of this Warrant and the form of assignment attached hereto to any transferee designated by
Holder.
8.1 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
shares of Common Stock without having a new Warrant issued.
8.2 If, at the time of the surrender of this Warrant in connection with any transfer of this
Warrant, (i) the transfer of this Warrant shall not be registered pursuant to an effective
registration statement under the Securities Act of 1933, as amended, and under applicable state
securities or blue sky laws, and (ii) the Holder has not furnished to the Company the Certificate
at such time, the Company may require, as a condition of allowing such transfer (A) 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 of 1933, as amended, and under applicable state securities or blue sky laws, and
(B) that the holder or transferee execute and deliver to the Company an investment letter in form
and substance acceptable to the Company; provided, in any case, that the transferee shall
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 of 1933, as amended, or a qualified institutional buyer as
defined in Rule 144A(a) under the Securities Act of 1933, as amended.
9. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is lost, stolen, mutilated or
destroyed, the Company may, on such terms as to indemnity or otherwise as it may reasonably impose
(which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new
Warrant of like denomination and tenor as the Warrant so lost, stolen, mutilated or destroyed. Any
such new Warrant shall constitute an original contractual obligation of the Company, whether or not
the allegedly lost, stolen, mutilated or destroyed Warrant shall be at any time enforceable by
anyone.
10. MODIFICATIONS AND WAIVER. This Warrant and any provision hereof may be changed, waived, discharged
or terminated only by an instrument in writing signed by the Company and (i) Purchasers holding
Warrants representing at least a majority of the number of Exercise Shares then issuable upon
exercise of any then unexercised Warrants issued pursuant to the Note Purchase Agreements,
provided, however, that such modification, amendment or waiver is made with respect
to all unexercised Warrants issued pursuant to the Note Purchase Agreements and does not adversely
affect the Holder without adversely affecting all holders of Warrants in a similar manner; or
(ii) the Holder.
11. NOTICES, ETC. All notices required or permitted hereunder shall be in writing and shall be deemed
effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by
confirmed email, telex or facsimile if sent during normal business hours of the
recipient, if not, then on the next business day, (c) five days after having been sent by
registered or certified mail, return receipt requested, postage prepaid, or (d) one business day
after deposit with a nationally recognized overnight courier, specifying next day delivery, with
written verification of receipt. All communications shall be sent to the Company at the address
listed on the signature page and to the Holders at the addresses on the Company records, or at such
other address as the Company or Holder may designate by ten days advance written notice to the
other party hereto.
12. ACCEPTANCE. Receipt of this Warrant by the Holder shall constitute acceptance of and agreement to
all of the terms and conditions contained herein.
13. GOVERNING LAW. This Warrant and all rights, obligations and liabilities hereunder shall be
governed by the laws of the State of New York without regard to the principles of conflict of laws.
14. DESCRIPTIVE HEADINGS. The descriptive headings of the several paragraphs of this Warrant are
inserted for convenience only and do not constitute a part of this Warrant. The language in this
Warrant shall be construed as to its fair meaning without regard to which party drafted this
Warrant.
15. SEVERABILITY. The invalidity or unenforceability of any provision of this Warrant in any
jurisdiction shall not affect the validity or enforceability of such provision in any other
jurisdiction, or affect any other provision of this Warrant, which shall remain in full force and
effect.
16. ENTIRE AGREEMENT. This Warrant constitutes the entire agreement between the parties pertaining to
the subject matter contained in it and supersedes all prior and contemporaneous agreements,
representations, and undertakings of the parties, whether oral or written, with respect to such
subject matter.
17. REMEDIES, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Warrant
shall be cumulative and in addition to all other remedies available under this Warrant and the Note
Purchase Agreements, at law or in equity (including a decree of specific performance and/or other
injunctive relief), and nothing herein shall limit the right of the Holder right to pursue actual
damages for any failure by the Company to comply with the terms of this Warrant. The Company
acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the
Holder and that the remedy at law for any such breach may be inadequate. The Company therefore
agrees that, in the event of any such breach or threatened breach, the holder of this Warrant shall
be entitled, in addition to all other available remedies, to an injunction restraining any breach,
without the necessity of showing economic loss and without any bond or other security being
required.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its duly authorized
officer as of July 2, 2010.
COLUMBIA LABORATORIES, INC. |
||||
By: | ||||
Name: | Frank C. Condella, Jr. | |||
Title: | Chief Executive Officer | |||
Address: | 354 Eisenhower Parkway, Livingston, New Jersey 07039 | |||
Attention: | General Counsel | |||
Facsimile: | 973.994.3001 | |||