Exhibit
4.3
NEITHER THIS WARRANT NOR
THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY APPLICABLE STATE SECURITIES LAW AND
NEITHER MAY BE SOLD OR OTHERWISE TRANSFERRED UNTIL (I) A
REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT AND SUCH
APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH
REGARD THERETO, OR (II) THE COMPANY SHALL HAVE RECEIVED A
WRITTEN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY TO THE EFFECT
THAT REGISTRATION UNDER SUCH SECURITIES ACT AND SUCH APPLICABLE
STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH
PROPOSED TRANSFER.
IGI LABORATORIES,
INC.
COMMON STOCK PURCHASE
WARRANT
Warrant No.
___
350,000
shares
Original Issue Date:
March 13, 2009
THIS CERTIFIES THAT, FOR
VALUE RECEIVED, ROCKPORT VENTURE SECURITIES, LLC or its registered
assigns (the " Holder ") is entitled to purchase, on
the terms and conditions hereinafter set forth, at any time in
whole or in part from the Original Issue Date set forth above until
5:00 p.m., Eastern Time, on the third anniversary of the Original
Issue Date, or if such date is not a day on which the Company (as
hereinafter defined) is open for business, then the next succeeding
day on which the Company is open for business (such date is the "
Expiration Date "), but not thereafter, three hundred
and fifty thousand (350,000) shares of the Common Stock, $0.01 par
value (the " Common Stock "), of IGI Laboratories,
Inc., a Delaware corporation (the " Company "), at
$0.41 per share (the " Exercise Price "), such number
of shares and Exercise Price being subject to adjustment upon the
occurrence of the contingencies set forth in this Warrant. Each
share of Common Stock as to which this Warrant is exercisable is a
" Warrant Share " and all such shares are
collectively referred to as the " Warrant Shares
."
Section 1.
Definitions .
(a) " Effective
Date " shall mean the date on which the Warrant shall be deemed
to have been exercised.
(b) " Initial
Issuance Date " shall mean the date on which shares of Series
B-1 Preferred Stock are first purchased pursuant to the Purchase
Agreement.
(c) " Liquidation
Event " shall mean (i) the liquidation, dissolution or winding
up of the affairs of the Company, whether voluntary or involuntary,
(ii) the consolidation or merger of the Company with or into any
other corporation or corporations in which the Company is not the
surviving entity, (iii) the sale of all or substantially all of the
assets of the Company or (iv) the effectuation by the Company of a
transaction or series of transactions in which more than 50% of the
voting shares of the Company is disposed of or conveyed.
(d) " Purchase
Agreement " shall mean the Securities Purchase Agreement by and
among the Company and the purchasers set forth on Schedule A
thereto, dated March 13, 2009.
(e) " Registration
Rights Agreement " shall mean the Registration Rights Agreement
by and among the Company, Rockport Venture Securities, LLC and the
purchasers set forth on Schedule A thereto, dated March 13,
2009.
(f) " Series B-1
Convertible Note " shall mean the secured convertible
promissory note convertible into shares of Series B-1 Preferred
Stock pursuant to the terms of the Purchase Agreement.
(g) " Series B-1
Preferred Stock " shall mean the Series B-1 Convertible
Preferred Stock of the Company, par value $0.01 per
share.
Section 2.
Exercise of Warrant;
Conversion of Warrant .
(a) Until such time as
the Company obtains stockholder approval for (i) the issuance of
the Series B-1 Preferred Stock on the Initial Issuance Date and
upon conversion of the Series B-1 Convertible Note (and the Common
Stock into which such Series B-1 Preferred Stock is convertible)
pursuant to the terms of the Purchase Agreement and (ii) any change
of control relating from such issuance, each pursuant to the
applicable requirements of Section 713 of the NYSE Alternext
Company Guide (the " Stockholder Approval "), this
Warrant shall be exercisable for no more than eighty-eight thousand
five hundred fifty (88,550) shares of Common Stock, subject to
adjustment upon the occurrence of the contingencies set forth in
this Warrant. From and after such time as the Stockholder Approval
is obtained, this Warrant may, at the option of the Holder, be
exercised in whole or in part. Notwithstanding the foregoing, in
the event of a Liquidation Event prior to the Company's receipt of
Stockholder Approval, this Warrant shall become exercisable, in
whole immediately prior to (and contingent upon) the consummation
by the Company of such Liquidation Event.
(b) Subject to the
limitations described in Section 2(a) above, this Warrant may, at
the option of the Holder, be exercised in whole or in part from
time to time, on or before 5:00 p.m., Eastern Time, on the
Expiration Date, by delivery to the Company at its principal office
(i) a written notice of such Holder's election to exercise
this Warrant (the " Exercise Notice "), which notice
may be in the form of the Notice of Exercise attached hereto,
properly executed and completed by the Holder or an authorized
officer thereof, (ii) a check or other funds (the "
Funds ") payable to the order of the Company, in an
amount equal to the product of the Exercise Price multiplied
by the number of Warrant Shares specified in the Exercise
Notice, and (iii) this Warrant (the items specified in (i),
(ii), and (iii) are collectively the " Exercise
Materials "); provided, however , that if this
Warrant is not exercised in whole immediately prior to the
consummation by the Company of a Liquidation Event, then
immediately following the consummation by the Company of such
Liquidation Event, this Warrant will not be exercisable and shall
be null and void for all purposes. Notwithstanding anything in this
Warrant Agreement to the contrary, if this Warrant shall not have
been exercised in full immediately prior to a Liquidation Event,
then this Warrant shall be automatically exercised pursuant to
Section 3 below, without further action on the part of the Holder
(and the Holder hereof shall be deemed to be a holder of the Common
Stock issued upon such automatic exercise), immediately prior to
the Liquidation Event, unless at any time on or before such time,
the Holder shall notify the Company in writing that no such
automatic exercise is to occur.
(c) As promptly as
practicable, and in any event within five (5) business days after
the later of (i) its receipt of the Exercise Materials and (ii) the
clearing of the Funds, the Company shall execute or cause to be
executed and delivered to the Holder a certificate or certificates
representing the number of Warrant Shares specified in the Exercise
Notice, together with cash in lieu of any fraction of a share. The
stock certificate or certificates shall be registered in the name
of the Holder or such other name or names as shall be designated in
the Exercise Notice. The Effective Date and the date the person in
whose name any certificate evidencing the Common Stock issued upon
the exercise hereof is issued shall be deemed to have become the
holder of record of such shares, shall be the date the Company
receives the Exercise Materials, irrespective of the date of
delivery of a certificate or certificates evidencing the Common
Stock issued upon the exercise or conversion hereof, provided,
however , that if the Exercise Materials are received by
the Company on a date on which the stock transfer books of the
Company are closed, the Effective Date shall be the next succeeding
date on which the stock transfer books are open. If this Warrant
shall have been exercised only in part, then, unless this Warrant
has expired, the Company shall, at its expense, at the time of
delivery of such certificates, deliver to the Warrantholder a new
Warrant representing the right to purchase the number of shares
with respect to which this Warrant shall not then have been
exercised. In the
-2-
event that this Warrant
is exercised, in whole in connection with a Liquidation Event, the
Effective Date shall be the date of the consummation by the Company
of such Liquidation Event. All shares of Common Stock issued upon
the exercise or conversion of this Warrant will, upon issuance, be
fully paid and non-assessable and free from all taxes, liens, and
charges with respect thereto.
Section 3.
Cashless
Exercise . In
lieu of exercising this Warrant pursuant to Section 2(c) ,
the Holder may elect to receive, without payment by the Holder of
any additional consideration, shares of Common Stock equal to the
value of this Warrant (or the portion thereof being cancelled) by
surrender of this Warrant at the principal office of the Company
together with an Exercise Notice, in which event the Company shall
issue to the Holder a number of shares of Common Stock computed
using the following formula:
Y (A -
B)
X=
A
Where:
X =
The number of shares of
Common Stock to be issued to the
Holder pursuant to this
cashless exercise;
Y =
The number of Warrant
Shares in respect of which the cashless exercise election is
made;
A =
The fair market value of
one (1) share of Common Stock at the time the cashless exercise
election is made; and
B =
The Exercise Price (as
adjusted to the date of the cashless exercise)
For purposes of this
Section 3 , the fair market value of one (1) share of Common
Stock as of a particular date shall be determined as follows: (i)
if listed or quoted for trading on a securities market or exchange,
the value shall be deemed to be the average closing price of the
securities on such exchange over the thirty (30) day period ending
three (3) days prior to the cashless exercise election; (ii) if
traded over-
