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Exhibit 4.12
THIS SECURITY AND THE SECURITIES INTO WHICH THIS SECURITY IS
EXERCISABLE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE " SECURITIES ACT ") OR THE SECURITIES
LAWS OF ANY STATE OR OTHER JURISDICTION AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR
(2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES AND OTHER JURISDICTIONS, AND IN THE
CASE OF A TRANSACTION EXEMPT FROM REGISTRATION, UNLESS THE COMPANY
HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT
THAT SUCH TRANSACTION DOES NOT REQUIRE REGISTRATION UNDER THE
SECURITIES ACT AND SUCH OTHER APPLICABLE LAWS.
COMMON STOCK PURCHASE WARRANT
To Purchase 2,304,147 Shares of Common Stock
of
Oscient Pharmaceuticals Corporation
THIS COMMON STOCK PURCHASE WARRANT CERTIFIES that, for value
received, Paul Royalty Fund Holdings II (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
[Date] (the " Initial Exercise Date ") and on or prior to
the close of business on [the seventh anniversary following the
Closing Date (the " Termination Date ") but not thereafter,
to subscribe for and purchase from Oscient Pharmaceuticals
Corporation, a corporation incorporated in The Commonwealth of
Massachusetts (the " Company "), up to 2,304,147 shares (the
" Warrant Shares ") of Common Stock, par value $0.10 per
share, of the Company (the " Common Stock "). The purchase
price of one share of Common Stock (the " Exercise Price ")
under this Warrant shall be $0.8680, subject to adjustment
hereunder. The Exercise Price and the number of Warrant Shares for
which the Warrant is exercisable shall be subject to adjustment as
provided herein. Capitalized terms used and not otherwise defined
herein shall have the meanings set forth in that certain Common
Stock and Warrant Purchase Agreement (the " Purchase
Agreement "), dated July 21, 2006, between the Company and
the Holder.
1. Title to Warrant . Prior to the Termination Date and
subject to compliance with applicable laws and Section 7 of
this Warrant, this Warrant and all rights hereunder are
transferable, in whole or in part, at the office or agency of the
Company by the Holder in person or by duly authorized attorney,
upon surrender of this Warrant together with the Assignment Form
annexed hereto properly endorsed. The transferee shall sign an
investment letter in form and substance reasonably satisfactory to
the Company.
2. Authorization of Shares . The Company covenants that
all Warrant Shares which 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 in respect of the issue
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thereof (other than taxes in respect of any
transfer occurring contemporaneously with such issue). The Company
shall at all times reserve and keep available for issue upon the
exercise of this Warrant such number of its authorized but unissued
Common Stock as will be sufficient to permit the exercise in full
of this Warrant.
3. Exercise of Warrant .
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(a) Exercise of the purchase rights represented by this Warrant
may be made at any time or times on or after the Initial Exercise
Date and on or before the Termination Date by the surrender of this
Warrant and the Notice of Exercise Form annexed hereto duly
executed, at the office of the Company (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) to the attention of the Chief Financial
Officer and upon payment of the Exercise Price of the shares
thereby purchased the Holder shall be entitled to receive a
certificate for the number of Warrant Shares so purchased. Payment
of the Exercise Price may be made at the option of the Holder by
(i) by wire transfer or cashier’s check drawn on a
United States bank of United States dollars or (ii) the
surrender and cancellation of Warrant Shares issuable upon such
exercise of this Warrant, which shall be valued and credited toward
the total Exercise Price due the Company at the average of the
daily closing bid prices of Common Stock for the five consecutive
Trading Days prior to such exercise (the " Trading Price ").
Certificates for shares purchased hereunder shall be delivered to
the Holder (at an address in the United States specified by the
Holder) within three (3) Trading Days after the date on which
this Warrant shall have been exercised as aforesaid. This Warrant
shall be deemed to have been exercised and such certificate or
certificates shall be deemed to have been issued, and the Holder or
any other person so designated to be named therein shall be deemed
to have become a holder of record of such shares for all purposes,
as of the date the Warrant has been exercised by payment to the
Company of the Exercise Price, delivery of the required
documentation and all taxes required to be paid by the Holder, if
any, pursuant to Section 5 prior to the issuance of such
shares, have been paid. For purposes of this Warrant, a "
Trading Day " shall mean any day on which the national
securities exchange or the national market system of the NASD are
open for trading.
(b) If this Warrant shall have been exercised in part, the
Company shall, 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.
(c) The Holder understands that, until such time as the
Registration Statement has been declared effective or the Warrant
Shares may be sold pursuant to Rule 144 under the Securities Act
without any restriction as to the number of securities as of a
particular date that can then be immediately sold, the certificates
representing any Warrants Shares issued upon exercise of this
Warrant will bear a restrictive legend in substantially the
following form:
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"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "
SECURITIES ACT ") OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. THE SECURITIES MAY NOT BE OFFERED, SOLD OR
OTHERWISE
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TRANSFERRED EXCEPT (1) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR
(2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES AND OTHER JURISDICTIONS, AND IN THE
CASE OF A TRANSACTION EXEMPT FROM REGISTRATION, UNLESS THE COMPANY
HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT
THAT SUCH TRANSACTION DOES NOT REQUIRE REGISTRATION UNDER THE
SECURITIES ACT AND SUCH OTHER APPLICABLE LAWS."
(d) If the Company shall fail for any reason or for no reason to
issue to the Holder (at an address in the United States specified
by the Holder) within three (3) Trading Days after the date
the Warrant is validly exercised by payment to the Company of the
Exercise Price, delivery of the required documentation and payment
of all taxes required to be paid by the Holder, if any, pursuant to
Section 5 (a " Valid Exercise "), a certificate for the
number of Warrant Shares to which the Holder is entitled and
register such Warrant Shares on the Company’s share register
or to credit the Holder’s balance account with the Depository
Trust Company (" DTC ") for such number of Warrant Shares to
which the Holder is entitled upon the Holder’s exercise of
this Warrant, then, in addition to all other remedies available to
the Holder, the Company shall pay in cash to the Holder on each day
after such third Trading Day that the issuance of such shares of
Common Stock is not timely effected an amount equal to 2.0% of the
product of (A) the number of Warrant Shares not issued to the
Holder on a timely basis and to which the Holder is entitled and
(B) the closing sale price of the Common Stock on the Trading
Day immediately preceding the last possible date which the Company
could have issued such Warrant Shares to the Holder without
violating this Section 3(e) (the " Delivery Date Price
"); provided , however , that in no event shall the
Company be obligated to pay damages pursuant to this sentence in an
aggregate amount that exceeds 100% of the Delivery Date Price per
Warrant Share. In addition to the foregoing, if within three
(3) Trading Days after the date of a Valid Exercise the
Company shall fail to issue and deliver a certificate to the Holder
(at an address in the United States specified by the Holder) and
register such Warrant Shares on the Company’s share register
or credit the Holder’s balance account with DTC for the
number of Warrant Shares to which the Holder is entitled upon the
Holder’s exercise hereunder, 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 Warrant Shares issuable upon such exercise
that the Holder anticipated receiving from the Company (a "
Buy-In "), then the Company shall, within three
(3) Trading Days after the Holder’s request promptly
honor its obligation to deliver to the Holder a certificate or
certificates representing such Warrant Shares and pay cash to the
Holder in an amount equal to the excess (if any) of the
Holder’s total purchase price (including brokerage
commissions, if any) for the shares of Common Stock so purchased
over the product of (A) such number of shares of Common Stock,
times (B) the Delivery Date Price.
4. 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 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
Trading Price.
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5. 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 (provided the Holder has complied with the
restrictions on transfer set forth herein) 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.
6. 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.
7. Transfer, Division and Combination .
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(a) Subject to compliance with any applicable securities laws
and the conditions set forth in Sections 1 and 7(e) hereof, this
Warrant and all rights hereunder are transferable, in whole or in
part, upon surrender of this Warrant at the principal office of the
Company, together with a written assignment of this Warrant
substantially in the form attached hereto duly executed by the
Holder or its agent or attorney and funds
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