Exhibit 10.42
THESE SECURITIES 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 MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, ASSIGNED, 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.
COMMON STOCK PURCHASE WARRANT
To Purchase up to 2,745,098 Shares of Common
Stock of
PHARMATHENE, INC.
THIS COMMON STOCK PURCHASE WARRANT
(the “ Warrant ”) certifies that, for value
received, Kelisia Holdings Ltd., a company limited by shares
established under the laws of Cyprus, having its office at 29
Theklas Lyssioti Street; Cassandra Centre, 2nd Floor; 3731
Limassol; Cyprus (together with any permitted transferee, the
“ Holder ”), an indirect wholly owned subsidiary
of Panacea Biotec Limited, a public limited company established
under the laws of India, having its registered office at
Ambala-Chandigarh Highway, Lalru-140501, Punjab, India (“
PBL ”), is entitled, upon the terms and subject to the
limitations on exercise and the conditions hereinafter set forth,
at any time after the date hereof (the “ Initial Exercise
Date ”) and on or prior to 5:00 p.m. U.S. Eastern
Time on the first anniversary following the Initial Exercise Date
(the “ Termination Date ”) but not thereafter,
to subscribe for and purchase from PharmAthene, Inc, a Delaware
corporation (the “ Company ”), up to 2,745,098
shares (the “ Warrant Shares ”) of common stock,
par value US$0.0001 per share, of the Company (the “
Common Stock ”). The purchase price of one share
of Common Stock under this Warrant shall be equal to the Exercise
Price, as defined in Section 2(b).
Section 1.
Definitions
.
“Affiliate” means with respect to any Person, any Person
that directly or indirectly, Controls, is Controlled by, or is
under common Control with, such Person.
“ Business Day ”
means a day other than a Saturday or Sunday or a day on which banks
in Delaware are authorized or required by law to close.
“Control”
(including with correlative meaning,
Controlled by and under common Control with) shall mean, with
respect to any Person, the possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting
securities, by Contract or otherwise, provided that in all events
(and in addition to the above), the direct or indirect ownership of
more than 50% of the paid-up and issued voting share capital of a
Person shall be deemed to constitute control over such
Person.
“ Person ” means
an 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, whether
incorporated, registered or not.
Section 2.
Exercise
.
(a)
Exercise of
Warrant . Exercise of the
purchase rights represented by this Warrant may be made, in whole
or in part, at any time or times on or after the Initial Exercise
Date and on or before the Termination Date by (i) delivery to
the Company of a duly executed facsimile copy of the Notice of
Exercise annexed hereto (the “ Notice of Exercise ”) (or such other
office or agency of the Company as it may designate by notice in
writing to the registered Holder at the address of such Holder
appearing on the books of the Company); (ii) surrendering this
Warrant to the Company; and (iii) making payment to the
Company of the aggregate Exercise Price (as defined below) for the
shares thereby purchased by wire transfer to an account designated
by the Company of same-day funds or cashier’s check drawn on
a United States bank. The Company shall deliver any objection
to any Notice of Exercise within three Business Days of receipt of
such notice. In the event of any dispute or discrepancy, the
records of the Company shall be controlling and determinative in
the absence of manifest error.
(b)
Exercise
Price . The per share
exercise price for the Warrant Shares shall be US$5.10, subject to
adjustment hereunder (the “ Exercise Price ”).
(c)
Mechanics of
Exercise .
(i)
Authorization
of Warrant Shares . The Company covenants
that all Warrant Shares that may be issued upon the exercise of the
purchase rights represented by this Warrant will, upon exercise of
the purchase rights represented by this Warrant, be duly
authorized, validly issued, fully paid and nonassessable and free
from all taxes, liens and charges or any encumbrance of any nature
whatsoever in respect of the issue
thereof.
(ii)
Delivery of
Certificates Upon Exercise . Certificates for
shares purchased hereunder shall be transmitted by the transfer
agent of the Company to the Holder by physical delivery to the
address specified by the Holder in the Notice of Exercise within
five (5) Business Days following receipt by the Company of a
duly executed Notice of Exercise, this Warrant and the aggregate
Exercise Price as set forth above (“ Warrant Share Delivery Date ”). This Warrant
shall be deemed to have been exercised, the Warrant Shares shall be
deemed to have been issued, and the Holder shall be deemed to have
become a holder of record of such shares for all purposes, on the
date the Exercise Price is received by the Company (the
“ Exercise Date
”).
(iii)
Delivery of
New Warrants Upon Exercise . If this Warrant
shall have been exercised in part, the Company shall, at the
request of the Holder and upon surrender of this Warrant
certificate, at the time of delivery of the certificate or
certificates representing Warrant Shares, deliver to the Holder a
new Warrant evidencing the rights of the Holder to purchase the
unpurchased Warrant Shares called for by this Warrant, which new
Warrant shall, in all other respects, be identical to this
Warrant.
2
(iv)
No Fractional
Shares or Scrip . No fractional shares
or scrip representing fractional shares shall be issued upon the
exercise of this Warrant. As to any fraction of a share that
the Holder would otherwise be entitled to purchase upon such
exercise, the Company shall pay a cash adjustment in respect of
such final fraction in an amount equal to such fraction multiplied
by the Exercise Price.
(v)
Charges, Taxes
and Expenses . Issuance of
certificates for Warrant Shares shall be made without charge to the
Holder 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 Holder.
(vi)
Closing of
Books . The Company will not
close its stockholder books or records in any manner that prevents
the timely exercise of this Warrant pursuant to the terms
hereof.
(d)
Maximum
Exercise . The Holder shall not
be entitled to exercise the Warrant for any amount of Warrant
Shares that, if issued, would result on any such Exercise Date in
the aggregate number of shares that the Holder would otherwise
receive pursuant to the exercise of the Warrant, together with the
3,733,334 shares of Common Stock the Holder purchased pursuant to
the Securities Purchase Agreement, dated September 30, 2008,
between the Company and the Holder (the “ Securities Purchase Agreement
”), and any
other shares beneficially owned by PBL, Kelisia Holdings Ltd. and
any holder of Warrant Shares or shares of Common Stock issued
pursuant to the Securities Purchase Agreement, and of their
respective officers, directors and Affiliates, equaling or
exceeding twenty percent (20%) of the number of shares of Common
Stock outstanding on the date of the Securities Purchase Agreement
or on such Exercise Date.
Section 3.
Certain
Adjustments .
(a)
Stock
Dividends and Splits . If the Company, at
any time while this Warrant is outstanding, (i) pays a stock
dividend or otherwise makes a distribution or distributions on
shares of its Common Stock or any other equity or equity equivalent
securities payable in shares of Common Stock (which, for avoidance
of doubt, shall not include any shares of Common Stock issued by
the Company pursuant to this Warrant), (ii) subdivides
outstanding shares of Common Stock into a larger number of shares,
(iii) combines (including by way of reverse stock split)
outstanding shares of Common Stock into a smaller number of shares
or (iv) issues, by reclassification of shares of the Common
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