Exhibit 4.14
ALLOS THERAPEUTICS,
INC.
and
,
AS WARRANT AGENT
FORM OF DEBT
SECURITIES
WARRANT AGREEMENT
DATED AS OF
ALLOS THERAPEUTICS,
INC.
FORM OF DEBT SECURITIES
WARRANT AGREEMENT
DEBT SECURITIES WARRANT
AGREEMENT , dated as of
,
between ALLOS THERAPEUTICS, INC. , a Delaware
corporation (the “COMPANY”) and
,
a [corporation] [national banking association] organized and
existing under the laws of
and having a corporate trust office in
,
as warrant agent (the “WARRANT AGENT”).
WHEREAS, the Company has entered
into an indenture dated as of
[
(the “SENIOR INDENTURE”), with
,
as trustee (such trustee, and any successors to such trustee,
herein called the “SENIOR TRUSTEE”), providing for the
issuance from time to time of its unsubordinated debt securities,
to be issued in one or more series as provided in the Senior
Indenture (the “DEBT SECURITIES”);]
[ (the
“SUBORDINATED INDENTURE”), with
,
as trustee (such trustee, and any successors to such trustee,
herein called the “SUBORDINATED TRUSTEE”), providing
for the issuance from time to time of its subordinated debt
securities, to be issued in one or more series as provided in the
Subordinated Indenture (the “DEBT
SECURITIES”);]
WHEREAS, the Company proposes to
sell [If Warrants are sold with other securities—title of
such other Securities being offered (the “OTHER
SECURITIES”) with] warrant certificates evidencing one or
more warrants (the “WARRANTS” or, individually, a
“WARRANT”) representing the right to purchase [title of
Debt Securities purchasable through exercise of Warrants] (the
“WARRANT DEBT SECURITIES”), such warrant certificates
and other warrant certificates issued pursuant to this Agreement
being herein called the “WARRANT CERTIFICATES”;
and
WHEREAS, the Company desires the
Warrant Agent to act on behalf of the Company, and the Warrant
Agent is willing so to act, in connection with the issuance,
registration, transfer, exchange, exercise and replacement of the
Warrant Certificates, and in this Agreement wishes to set forth,
among other things, the form and provisions of the Warrant
Certificates and the terms and conditions on which they may be
issued, registered, transferred, exchanged, exercised and
replaced;
1
NOW, THEREFORE, in consideration of
the premises and of the mutual agreements herein contained, the
parties hereto agree as follows:
ARTICLE 1
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT
CERTIFICATES
1.1
Issuance of Warrants .
[If Warrants alone—Upon issuance, each Warrant Certificate
shall evidence one or more Warrants.][If Other Securities and
Warrants—Warrant Certificates shall be [initially] issued in
connection with the issuance of the Other Securities [but shall be
separately transferable on and after
(the “DETACHABLE DATE”)] [and shall not be separately
transferable] and each Warrant Certificate shall evidence one or
more Warrants.] Each Warrant evidenced thereby shall represent the
right, subject to the provisions contained herein and therein, to
purchase one Warrant Debt Security. [If Other Securities and
Warrants—Warrant Certificates shall be initially issued in
units with the Other Securities and each Warrant Certificate
included in such a unit shall evidence
Warrants for each
[$
principal amount]
[
shares] of Other Securities included in such unit.].
1.2
Execution and Delivery of Warrant Certificates
. Each Warrant Certificate, whenever
issued, shall be in registered form substantially in the form set
forth in Exhibit A hereto, shall be dated the date of its
countersignature by the Warrant Agent and may have such letters,
numbers, or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon
as the officers of the Company executing the same may approve
(execution thereof to be conclusive evidence of such approval) and
as are not inconsistent with the provisions of this Agreement, or
as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which the Warrants may be
listed, or to conform to usage. The Warrant Certificates shall be
signed on behalf of the Company by any of its present or future
chief executive officers, presidents, senior vice presidents, vice
presidents, chief financial officers, chief legal officers,
treasurers, assistant treasurers, controllers, assistant
controllers, secretaries or assistant secretaries under its
corporate seal reproduced thereon. Such signatures may be manual or
facsimile signatures of such authorized officers and may be
imprinted or otherwise reproduced on the Warrant Certificates. The
seal of the Company may be in the form of a facsimile thereof and
may be impressed, affixed, imprinted or otherwise reproduced on the
Warrant Certificates.
No Warrant Certificate shall be
valid for any purpose, and no Warrant evidenced thereby shall be
exercisable, until such Warrant Certificate has been countersigned
by the manual signature of the Warrant Agent. Such signature by the
Warrant Agent upon any Warrant Certificate executed by the Company
shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company
who shall have signed any of the Warrant Certificates either
manually or by facsimile signature shall cease to be such officer
before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such
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Warrant Certificates may be
countersigned and delivered notwithstanding that the person who
signed Warrant Certificates ceased to be such officer of the
Company; and any Warrant Certificate may be signed on behalf of the
Company by such persons as, at the actual date of the execution of
such Warrant Certificate, shall be the proper officers of the
Company, although at the date of the execution of this Agreement
any such person was not such officer.
The term “holder” or
“holder of a Warrant Certificate” as used herein shall
mean any person in whose name at the time any Warrant Certificate
shall be registered upon the books to be maintained by the Warrant
Agent for that purpose [If Other Securities and Warrants are not
immediately detachable—or upon the registration of the Other
Securities prior to the Detachable Date. Prior to the Detachable
Date, the Company will, or will cause the registrar of the Other
Securities to, make available at all times to the Warrant Agent
such information as to holders of the Other Securities as may be
necessary to keep the Warrant Agent’s records up to
date].
1.3
Issuance of Warrant Certificates . Warrant Certificates evidencing the right to
purchase Warrant Debt Securities may be executed by the Company and
delivered to the Warrant Agent upon the execution of this Warrant
Agreement or from time to time thereafter. The Warrant Agent shall,
upon receipt of Warrant Certificates duly executed on behalf of the
Company, countersign such Warrant Certificates and shall deliver
such Warrant Certificates to or upon the order of the
Company.
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
2.1
Warrant Price . During
the period specified in Section 2.2, each Warrant shall,
subject to the terms of this Warrant Agreement and the applicable
Warrant Certificate, entitle the holder thereof, to purchase the
principal amount of Warrant Debt Securities specified in the
applicable Warrant Certificate at an exercise price of
%
of the principal amount thereof [plus accrued amortization, if any,
of the original issue discount of the Warrant Debt Securities]
[plus accrued interest, if any, from the most recent date from
which interest shall have been paid on the Warrant Debt Securities
or, if no interest shall have been paid on the Warrant Debt
Securities, from the date of their initial issuance.] [The original
issue discount
($
for each $1,000 principal amount of Warrant Debt Securities) will
be amortized at a
%
annual rate, computed on a[n][semi-] annual basis [using a 360-day
year consisting of twelve 30-day months].] Such purchase price for
the Warrant Debt Securities is referred to in this Agreement as the
“WARRANT PRICE.”
2.2
Duration of Warrants .
Each Warrant may be exercised in whole or in part at any time, as
specified herein, on or after [the date thereof]
[ ] and
at or before
p.m.,
[City] time, on or such later date as the Company may designate by
notice to the Warrant Agent and the holders of Warrant Certificates
mailed to their addresses as set forth in the record books of the
Warrant Agent (the “EXPIRATION DATE”). Each Warrant not
exercised at or before
p.m.,
[City] time, on the Expiration Date shall become void, and all
rights of the holder of the Warrant Certificate evidencing such
Warrant under this Agreement shall cease.
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2.3
Exercise of Warrants .
(a)
During the period specified in
Section 2.2, the Warrants may be exercised to purchase a whole
number of Warrant Debt Securities in registered form by providing
certain information as set forth on the reverse side of the Warrant
Certificate and by paying in full, in lawful money of the United
States of America, [in cash or by certified check or official bank
check in New York Clearing House funds] [by bank wire transfer in
immediately available funds] the Warrant Price for each Warrant
Debt Security with respect to which a Warrant is being exercised to
the Warrant Agent at its corporate trust office, provided that such
exercise is subject to receipt within five business days of such
payment by the Warrant Agent of the Warrant Certificate with the
form of election to purchase Warrant Debt Securities set forth on
the reverse side of the Warrant Certificate properly completed and
duly executed. The date on which payment in full of the Warrant
Price is received by the Warrant Agent shall, subject to receipt of
the Warrant Certificate as aforesaid, be deemed to be the date on
which the Warrant is exercised; provided, however, that if, at the
date of receipt of such Warrant Certificates and payment in full of
the Warrant Price, the transfer books for the Warrant Debt
Securities purchasable upon the exercise of such Warrants shall be
closed, no such receipt of such Warrant Certificates and no such
payment of such Warrant Price shall be effective to constitute the
person so designated to be named as the holder of record of such
Warrant Debt Securities on such date, but shall be effective to
constitute such person as the holder of record of such Warrant Debt
Securities for all purposes at the opening of business on the next
succeeding day on which the transfer books for the Warrant Debt
Securities purchasable upon the exercise of such Warrants shall be
opened, and the certificates for the Warrant Debt Securities in
respect of which such Warrants are then exercised shall be issuable
as of the date on such next succeeding day on which the transfer
books shall next be opened, and until such date the Company shall
be under no duty to deliver any certificate for such Warrant Debt
Securities. The Warrant Agent shall deposit all funds received by
it in payment of the Warrant Price in an account of the Company
maintained with it and shall advise the Company by telephone at the
end of each day on which a payment for the exercise of Warrants is
received of the amount so deposited to its account. The Warrant
Agent shall promptly confirm such telephone advice to the Company
in writing.
(b)
The Warrant Agent shall, from time
to time, as promptly as practicable, advise the Company of
(i) the number of Warrant Debt Securities with respect to
which Warrants were exercised, (ii) the instructions of each
holder of the Warrant Certificates evidencing such Warrants with
respect to delivery of the Warrant Debt Securities to which such
holder is entitled upon such exercise, (iii) delivery of
Warrant Certificates evidencing the balance, if any, of the
Warrants for the remaining Warrant Debt Securities after such
exercise, and (iv) such other information as the Company or
the [Senior][Subordinated] Trustee shall reasonably
require.
(c)
As soon as practicable after the
exercise of any Warrant, the Company shall issue, pursuant to the
Indenture, in authorized denominations, to or upon the order of the
holder of the Warrant Certificate evidencing such Warrant, the
Warrant Debt Securities to which such holder is entitled, in fully
registered form, registered in such name or names as may be
directed by such holder. If fewer than all of the Warrants
evidenced by such Warrant Certificate were exercised, the Company
shall execute, and an authorized officer of the Warrant Agent shall
manually countersign and deliver, a new Warrant Certificate
evidencing Warrants for the number of Warrant Debt Securities
remaining unexercised.
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(d)
The Company shall not be required to
pay any stamp or other tax or other governmental charge required to
be paid in connection with any transfer involved in the issue of
the Warrant Debt Securities, and in the event that any such
transfer is involved, the Company shall not be required to issue or
deliver any Warrant Debt Securities until such tax or other charge
shall have been paid or it has been established to the
Company’s satisfaction that no such tax or other charge is
due.
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT
CERTIFICATES
3.1
No Rights as Holders of Warrant Debt
Securities Conferred by Warrants or Warrant Certificates. No
Warrant Certificate or Warrant evidenced thereby shall entitle the
holder thereof to any of the rights of a holder of Warrant Debt
Securities, including, without limitation, the right to receive the
payment of principal of (or premium, if any) or interest, if any,
on the Warrant Debt Securities or to enforce any of the covenants
in the Indenture.
3.2
Lost, Stolen, Mutilated or Destroyed Warrant
Certificates . Upon
receipt by the Warrant Agent of evidence reasonably satisfactory to
it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and/or
indemnity reasonably satisfactory to the Warrant Agent and the
Company and, in the case of mutilation, upon surrender of the
mutilated Warrant Certificate to the Warrant Agent for
cancellation, then, in the absence of notice to the Company or the
Warrant Agent that such Warrant Certificate has been acquired by a
bona fide purchaser, the Company shall execute, and an authorized
officer of the Warrant Agent shall manually countersign and
deliver, in exchange for or in lieu of the lost, stolen, destroyed
or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing Warrants for a like principal amount of
Warrant Debt Securities. Upon the issuance of any new Warrant
Certificate under this Section 3.2, the Company may require
the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Warrant
Agent) in connection therewith. Every substitute Warrant
Certificate executed and delivered pursuant to this
Section 3.2 in lieu of any lost, stolen or destroyed Warrant
Certificate shall represent an additional contractual obligation of
the Company, whether or not the lost, stolen or destroyed Warrant
Certificate shall be at any time enforceable by anyone, and shall
be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly
executed and delivered hereunder. The provisions of this
Section 3.2 are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the
replacement of mutilated, lost, stolen or destroyed Warrant
Certificates.
3.3
Holder of Warrant Certificate May Enforce Rights
. Notwithstanding any of the
provisions of this Agreement, any holder of any Warrant
Certificate, without the consent of the Warrant Agent, the [Senior]
[Subordinated] Trustee, the holder of any Warrant Debt Securities
or the holder of any other Warrant Certificate, may, in such
holder’s own behalf and for such holder’s own benefit,
enforce, and may institute and maintain any suit, action or
proceeding against the Company suitable to enforce, or otherwise in
respect of, such holder’s
5
right to exercise the Warrants
evidenced by such holder’s Warrant Certificate in the manner
provided in such holder’s Warrant Certificates and in this
Agreement.
3.4
Merger, Sale, Conveyance or Lease . In case of (a) any share exchange, merger
or similar transaction of the Company with or into another person
or entity (other than a share exchange, merger or similar
transaction in which the Company is the acquiring or surviving
corporation) or (b) the sale, exchange, lease, transfer or
other disposition of all or substantially all of the properties and
assets of the Company as an entirety (in any such case, a
“REORGANIZATION EVENT”), then, as a condition of such
Reorganization Event, lawful provisions shall be made, and duly
executed documents evidencing the same from the Company’s
successor shall be delivered to the holders of the Warrants, so
that such successor shall succeed to and be substituted for the
Company, and assume all the Company’s obligations under, this
Agreement and the Warrants. The Company shall thereupon be relieved
of any further obligation hereunder or under the Warrants, and the
Company as the predecessor corporation may thereupon or at any time
thereafter be dissolved, wound up or liquidated. Such successor or
assuming entity thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of
the Warrants issuable hereunder which heretofore shall not have
been signed by the Company, and may execute and deliver securities
in its own name, in fulfillment of its obligations to deliver
Warrant Debt Securities upon exercise of the Warrants. All the
Warrants so issued shall in all respects have the same legal rank
and benefit under this Agreement as the Warrants theretofore or
thereafter issued in accordance with the terms of this Agreement as
though all of such Warrants had been issued at the date of the
execution hereof. In any case of any such Reorganization Event,
such changes in phraseology and form (but not in substance) may be
made in the Warrants thereafter to be issued as may be
appropriate.
The Warrant Agent may receive a
written opinion of legal counsel as conclusive evidence that any
such Reorganization Event complies with the provisions of this
Section 3.4.
3.5
Notice to Warrantholders . In case the Company shall (a) effect any
Reorganization Event or (b) make any distribution on or in
respect of the [title of Warrant Debt Securities] in connection
with the dissolution, liquidation or winding up of the Company,
then the Company shall mail to each holder of Warrants at such
holder’s address as it shall appear on the books of the
Warrant Agent, at least ten days prior to the applicable date
hereinafter specified, a notice stating the date on which such
Reorganization Event, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is
expected that holders of [title of Warrant Debt Securities] of
record shall be entitled to exchange their shares of [title of
Warrant Debt Securities] for securities or other property
deliverable upon such Reorganization Event, dissolution,
liquidation or winding up. No failure to mail such notice nor any
defect therein or in the mail in thereof shall affect any such
transaction.
ARTICLE 4
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
4.1
Exchange and Transfer of Warrant Certificates
. [If Other Securities with
Warrants which are immediately detachable—Upon][If Other
Securities with Warrants which are not immediately
detachable—Prior to the Detachable Date, a Warrant
Certificate may be
6
exchanged or transferred only
together with the Other Security to which the Warrant Certificate
was initially attached, and only for the purpose of effecting or in
conjunction with an exchange or transfer of such Other Security.
Prior to any Detachable Date, each transfer of the Other
Secu
