NEITHER THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY
IS EXERCISABLE HAVE 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 OR SOLD 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 AS EVIDENCED BY
A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE
SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY.
COMMON
STOCK PURCHASE WARRANT
ibiophArma,
INC.
|
Warrant Shares:
______
|
Initial
Exercise Date: August 19, 2008
|
THIS COMMON STOCK PURCHASE WARRANT (the “ Warrant
”) certifies that, for value received, __________ (the
“ Holder ”) is entitled, upon the terms and
subject to the limitations on exercise and the conditions
hereinafter set forth, at any time on or after the date hereof (the
“ Initial Exercise Date ”) and on or prior to
the close of business on the 5 year anniversary of the Initial
Exercise Date (the “ Termination Date ”) but not
thereafter, to subscribe for and purchase from iBioPharma, Inc. a
Delaware corporation (the “ Company ”), up to
____ shares (the “ Warrant Shares ”) of 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
. Capitalized terms used and not otherwise defined herein shall
have the meanings set forth in that certain Securities Purchase
Agreement (the “ Purchase Agreement ”), dated
August 19, 2008, among the Company and the purchasers signatory
thereto.
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
delivery to the Company of a duly executed facsimile copy of the
Notice of Exercise Form annexed hereto (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); and the Company shall have received
payment of the aggregate Exercise Price of the shares thereby
purchased by wire transfer or cashier’s check drawn on a
United States bank. Notwithstanding anything herein to the
contrary, the Holder shall not be required to physically surrender
this Warrant to the Company until the Holder has purchased all
of
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the Warrant Shares available hereunder and the Warrant has been
exercised in full, in which case, the Holder shall surrender this
Warrant to the Company for cancellation. Partial exercises of this
Warrant resulting in purchases of a portion of the total number of
Warrant Shares available hereunder shall have the effect of
lowering the outstanding number of Warrant Shares purchasable
hereunder in an amount equal to the applicable number of Warrant
Shares purchased. The Holder and the Company shall maintain records
showing the number of Warrant Shares purchased and the date of such
purchases. The Company shall deliver any objection to any Notice of
Exercise Form promptly following receipt of such notice. In the
event of any dispute or discrepancy, the records of the Holder
shall be controlling and determinative in the absence of manifest
error. The Holder and any assignee, by acceptance of this
Warrant, acknowledge and agree that, by reason of the provisions of
this paragraph, following the purchase of a portion of the Warrant
Shares hereunder, the number of Warrant Shares available for
purchase hereunder at any given time may be less than the amount
stated on the face hereof.
b) Exercise Price . The
exercise price per share of the Common Stock under this Warrant
shall be equal to [$_____] 1 of the per share Purchase
Price, subject to adjustment as provided in the Stock Purchase
Agreement (the “ Exercise Price ”).
c) Mechanics of Exercise .
i. Delivery of Certificates Upon
Exercise . Certificates for shares purchased hereunder shall be
transmitted by the transfer agent of the Company to the Holder by
crediting the account of the Holder’s prime broker with the
Depository Trust Company through its Deposit Withdrawal Agent
Commission (“ DWAC ”) system if the Company is a
participant in such system and there is an effective Registration
Statement permitting the resale of the Warrant Shares by the
Holder, and otherwise by physical delivery to the address specified
by the Holder in the Notice of Exercise.
ii. Delivery of New Warrants Upon
Exercise . If this Warrant shall have been exercised in part,
the Company shall, at the request of a Holder and upon surrender of
this Warrant certificate, at the time of delivery of the
certificate or certificates representing Warrant Shares, deliver to
Holder a new Warrant evidencing the rights of Holder to purchase
the unpurchased Warrant Shares called for by this Warrant, which
new Warrant shall in all other respects be identical with this
Warrant.
iii. 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 which Holder would otherwise be
____________________________________________
1 Note: Each Purchaser will be issued two
warrants, one at an exercise price which is a 50% premium to the
per share purchase price under the Securities Purchase Agreement,
and the balance at a 100% premium to the per share purchase
price.
entitled to purchase upon such exercise, the Company shall at
its election, either pay a cash adjustment in respect of such final
fraction in an amount equal to such fraction multiplied by the
Exercise Price or round up to the next whole share.
iv. 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 or in
such name or names as may be directed by the Holder;
provided , however , that in the event certificates
for Warrant Shares are to be issued in a name other than the name
of the Holder, this Warrant when surrendered for exercise shall be
accompanied by the Assignment Form attached hereto duly executed by
the Holder; and the Company may require, as a condition thereto,
the payment of a sum sufficient to reimburse it for any transfer
tax incidental thereto.
v. Closing of Books . The
Company will not close its stockholder books or records in any
manner which prevents the timely exercise of this Warrant, pursuant
to the terms hereof.
Section 3 . Certain
Adjustments .
a) Stock Dividends and Splits
. If the Company, at any time while this Warrant is outstanding:
(A) pays a stock dividend or otherwise make 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 upon exercise of this Warrant),
(B) subdivides outstanding shares of Common Stock into a larger
number of shares, (C) combines (including by way of reverse stock
split) outstanding shares of Common Stock into a smaller number of
shares, or (D) issues by reclassification of shares of the Common
Stock any shares of capital stock of the Company, then in each case
the Exercise Price shall be multiplied by a fraction of which the
numerator shall be the number of shares of Common Stock (excluding
treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of shares of
Common Stock outstanding immediately after such event and the
number of shares issuable upon exercise of this Warrant shall be
proportionately adjusted such that the aggregate Exercise Price of
this Warrant shall remain unchanged. Any adjustment made pursuant
to this Section 3(a) shall become effective immediately after the
record date for the determination of stockholders entitled to
receive such dividend or distribution and shall become effective
immediately after the effective date in the case of a subdivision,
combination or re-classification.
b) Exercise Price Adjustment .
If, at any time while this Warrant is outstanding the Company shall
offer, issue or agree to issue any Common Stock or Common Stock
Equivalents (or modify any of the foregoing which may be
outstanding)
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to any Person (each, a “Third Party Purchaser”) at a
price per share of Common Stock or exercise price per share of
Common Stock Equivalents which shall be less than the per share
Purchase Price of the Shares of the Purchasers holding Shares, then
the Company shall issue, for each such occasion, additional shares
of Common Stock to each Purchaser so that the average per share
purchase price of the shares of Common Stock issued to the
Purchaser (of only the Shares still owned by the Purchaser) is
equal to a price determined by multiplying the per share Purchase
Price by a fraction (i) the numerator of which shall be
(A) the number of shares of Common Stock outstanding
immediately prior to such issue or sale, plus (B) the number
of shares of Common Stock which the aggregate consideration
received by the Company for the total number of additional shares
of Common Stock so issued would purchase at the per share Purchase
Price, and (ii) the denominator of which shall be the number
of shares of Common Stock outstanding immediately prior to such
issue or sale plus the total number of additional shares of Common
Stock so issued.
c) Fundamental Transaction .
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 be appropriately adjusted to apply to such Alternate
Consideration based on the amount of Alternate Consideration
issuable in respect of one share of Common Stock in such
Fundamental Transaction, and the Company shall apportion the
Exercise Price among the Alternate Consideration in a reasonable
manner reflecting the relative value of any different components of
the Alternate Consideration. If holders of Common Stock are given
any choice as to the securities, cash or property to be received in
a Fundamental Transaction, then the Holder shall be given the same
choice as to the Alternate Consideration it receives upon any
exercise of this Warrant following such Fundamental Transaction. To
the extent necessary to effectuate the foregoing provisions, any
successor to the Company or surviving entity in such Fundamental
Transaction shall issue to the Holder a new warrant consistent with
the foregoing provisions and evidencing the Holder’s right to
exercise such warrant into Alternate Consideration. The terms of
any agreement pursuant to which a Fundamental Transaction is
effected shall include terms requiring any such successor or
surviving entity to comply with the provisions of this Section 3(e)
and insuring that this
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