THIS WARRANT
AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE
UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED,
PLEDGED OR HYPOTHECATED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS.
ALSERES PHARMACEUTICALS,
INC.
COMMON STOCK PURCHASE
WARRANT
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Warrant No.
[ ]
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Dated:
, 2008
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Alseres
Pharmaceuticals, Inc., a Delaware corporation (the “
Company ”), hereby certifies that, for value received,
[Name of Holder] or its registered assigns (the “
Holder ”), is entitled to purchase from the Company up
to a total of [
] shares of common stock, $0.01 par value per share (the
“ Common Stock ”), of the Company (each such
share as adjusted from time to time as provided in Section 9,
a “ Warrant Share ” and all such shares, the
“ Warrant Shares ”) at an exercise price equal
to $[ ] 1 (as
adjusted from time to time as provided in Section 9, the
“ Exercise Price ”), at any time and from time
to time on or after six months and one day after the Closing Date
(the “ Initial Exercise Date ”) and through and
including the date that is two years from the Initial Exercise Date
(the “ Expiration Date ”), and subject to the
following terms and conditions. This warrant (this “
Warrant ”) is one of a series of similar warrants
issued pursuant to that certain Securities Purchase Agreement,
dated as of November [ ], 2008, by and among the Company and the
Investors identified therein (the “ Purchase Agreement
”). All such warrants are referred to herein, collectively,
as the “ Warrants .”
1.
Definitions . In addition to the terms defined elsewhere in
this Warrant, capitalized terms that are not otherwise defined
herein have the meanings given to such terms in the Purchase
Agreement.
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 Holder (which shall include the initial Holder or, as the
case may be, any registered assignee to which this Warrant is
permissibly assigned hereunder from time to time). The Company may
deem and treat the registered Holder as the absolute owner of this
Warrant for the purpose of any exercise hereof or any distribution
to the Holder, and for all other purposes, absent actual notice to
the contrary.
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1
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Equal to fair
market value on the closing date.
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3.
Transfers . Neither this Warrant nor the Warrant Shares
shall be sold or transferred unless either (i) they first
shall have been registered under the Securities Act or
(ii) the Company first shall have been furnished with an
opinion of legal counsel, reasonably satisfactory to the Company,
to the effect that such sale or transfer is exempt from the
registration requirements of the Securities Act. In addition, the
Holder acknowledges and agrees that this Warrant and the Warrant
Shares may not be assigned or transferred in whole or in part
except to an Affiliate (as defined below) of the Holder. If the
assignment or transfer is to an Affiliate of the Holder, no
registration or opinion of counsel shall be required and the
Company shall register any such assignment or transfer of all or
any portion of this Warrant in the Warrant Register, upon
(i) surrender of this Warrant, with the Form of Assignment
attached hereto duly completed and signed, and (ii) delivery
by the transferee of a written statement to the Company certifying
that the transferee is an Affiliate of the Holder and an
“accredited investor” as defined in Rule 501(a) under
the Securities Act and making the representations and
certifications as set forth in Section 3.2 of the Purchase
Agreement, in each case, to the Company at its address specified in
the Purchase Agreement. Upon any such registration or transfer, a
new Warrant to purchase Common Stock, in substantially the form of
this 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 shall be deemed the acceptance by such
transferee of all of the rights and obligations in respect of the
New Warrant that the Holder has in respect of this
Warrant.
4.
Exercise and Duration of Warrants .
(a) This
Warrant shall be exercisable by the registered Holder at any time
and from time to time on or after the Initial Exercise Date and
through and including the Expiration Date. At 6:30 p.m., Boston
time on the Expiration Date, the portion of this Warrant not
exercised prior thereto shall be and become void and of no value
and this Warrant shall be terminated and no longer
outstanding.
(b) The
Holder may exercise this Warrant by delivering to the Company (with
copies to its counsel) in accordance with the notice provisions of
this Warrant (i) by surrendering this Warrant along with an
exercise notice, in the form attached hereto (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, and
the date such items are delivered to the Company (as determined in
accordance with the notice provisions hereof) is an “
Exercise Date ”. The delivery by (or on behalf of) the
Holder of the Exercise Notice, the Warrant and the applicable
Exercise Price as provided above shall constitute the
Holder’s certification to the Company that its
representations contained in Section 3.2 of the Purchase
Agreement are true and correct as of the Exercise Date as if remade
in their entirety (or, in the case of any assignee Holder that is
not a party to the Purchase Agreement, such assignee Holder’s
certification to the Company that such representations are true and
correct as to such assignee Holder as of the Exercise
Date).
5.
Delivery of Warrant Shares .
2
(a) As
soon as practicable after the exercise of this Warrant (but in no
event later than five business days after the Exercise Date) in
whole or in part, the Company, at its expense, will cause to be
issued in the name of, and delivered to, the Holder, or as the
Holder (upon payment by the Holder of any applicable transfer
taxes) may direct, a certificate or certificates for the number of
full Warrant Shares to which the Registered Holder shall be
entitled upon such exercise.
(b) This
Warrant is exercisable, either in its entirety or, from time to
time, for a portion of the 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 transfer
agent fee or other incidental expense in respect of the issuance of
such certificates, all of which 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 registration of any certificates for Warrant Shares
or Warrant in a name other than that of the Holder. 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.
7.
Replacement of Warrant . If this Warrant is mutilated, lost,
stolen or destroyed, the Company shall issue or cause to be issued
in exchange and substitution for and upon cancellation hereof, or
in lieu of and 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 bond or indemnity, if requested. Applicants for a New
Warrant under such circumstances shall also comply with such other
reasonable regulations and procedures and pay such other reasonable
third-party costs as the Company may prescribe.
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 in full of this Warrant. 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 and fully paid and nonassessable.
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 and Splits . If the Company, at any time
while this Warrant is outstanding, (i) pays a stock dividend
on its Common Stock or otherwise makes a distribution on any class
of capital stock that is payable in shares of Common Stock,
(ii) subdivides outstanding shares of Common Stock into a
larger number of shares of Common Stock, or (iii) combines
outstanding shares of Common Stock into a smaller number of shares
of
3
Common Stock,
then in each such case the Exercise Price shall be adjusted by
multiplying a fraction of which the numerator shall be the number
of shares of Common Stock outstanding immediately before such event
and of which the denominator shall be the number of shares of
Common Stock outstanding immediately after such event. Any
adjustment made pursuant to clause (i) of this paragraph shall
become effective immediately after the record date for the
determination of stockholders entitled to receive such dividend or
distribution; provided, however, that if such record date shall
have been fixed and such dividend is not fully paid or if such
distribution is not fully made on the date fixed therefor, the
Exercise Price shall be recomputed accordingly as of the close of
business on such record date and thereafter the Exercise Price
shall be adjusted pursuant to this paragraph as of the time of
actual payment of such dividends or distributions. Any adjustment
pursuant to clause (ii) or (iii) of this paragraph shall
become effective immediately after the effective date of such
subdivision or combination.
(b)
Pro Rata Distributions . If the Company, at any time while
this Warrant is outstanding, distributes to holders of Common Stock
(i) evidence of its indebtedness, (ii) any security
(other than a distribution of Common Stock covered by the preceding
paragraph), (iii) rights or warrants to subscribe for or
purchase any security, or (iv) any other asset (in each case,
“ Distributed Property ”), then in each such
case the Holder shall be entitled upon any exercise of the Warrant
that occurs after the record date fixed for determination of
stockholders entitled to receive such distribution, the Holder
shall be entitled to receive, in addition to the Warrant Shares
otherwise issuable upon such exercise (if applicable), the kind and
amount of Distributed Property which the Holder would have been
entitled to receive had this Warrant been exercised immediately
prior to the record date for such distribution and had the Holder
thereafter, during the period from such record date to and
including the Exercise Date, retained any such evidence of
indebtedness, securities, rights or warrants or other assets
receivable during such period, giving application to all
adjustments called for during such period under this Section 9
with respect to the rights of the Holder.
(c)
Fundamental Transactions . If, at any time while this
Warrant is outstanding, (A) the Company effects any merger or
consolidation of the Company with or into another Person,
(B) the Company effects any sale of all or substantially all
of its assets in one or a series of related transactions,
(C) any tender offer or exchange offer (whether by the Company
or another Person) is completed pursuant to which holders of Common
Stock are permitted to tender or exchange their shares for other
securities, cash or property, or (D) the Company effects any
reclassification of the Common Stock or any compulsory share
exchange pursuant to which the Common Stock is effectively
converted into or exchanged for other securities, cash or property
(each “ Fundamental Transaction ”
), then, upon any subsequent exercise of this Warrant, the Holder
shall have the right to receive, for each Warrant Share that would
have been issuable upon such exercise immediately prior to the
occurrence of such Fundamental Transaction, the number of shares of
Common Stock of the successor or acquiring corporation or of the
Company, if it is the surviving corporation, and any additional
consideration (the “ Alternate Consideration
” ) receivable as a result of such merger,
consolidation or disposition of assets by a holder of the number of
shares of Common Stock for which this Warrant is exercisable
immediately prior to such event. For purposes of any such exercise,
the determination of the Exercise Price shall
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