EXHIBIT 4.12
ALLOS THERAPEUTICS,
INC.
and
,
AS WARRANT AGENT
FORM OF PREFERRED
STOCK
WARRANT AGREEMENT
DATED AS OF
ALLOS THERAPEUTICS,
INC.
FORM OF PREFERRED STOCK WARRANT AGREEMENT
PREFERRED STOCK 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 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
Preferred Stock purchasable through exercise of Warrants] (the
“WARRANT 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;
NOW THEREFORE, in consideration of
the premises and of the mutual agreements herein contained, the
parties hereto agree as follows:
1
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—Warrants 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 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 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
2
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 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
number of Warrant Securities specified in the applicable Warrant
Certificate at an exercise price of
$
per Warrant Security, subject to adjustment upon the occurrence of
certain events, as hereinafter provided. Such purchase price per
Warrant Security 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.
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 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
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
3
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 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 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
Securities on such date, but shall be effective to constitute such
person as the holder of record of such Warrant Securities for all
purposes at the opening of business on the next succeeding day on
which the transfer books for the Warrant Securities purchasable
upon the exercise of such Warrants shall be opened, and the
certificates for the Warrant 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 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 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 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 Securities after such exercise, and
(iv) such other information as the Company shall reasonably
require.
(c)
As soon as practicable after the
exercise of any Warrant, the Company shall issue to or upon the
order of the holder of the Warrant Certificate evidencing such
Warrant the Warrant 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 are 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 Securities remaining
unexercised.
(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 Securities, and in the event that any such transfer is
involved, the Company shall not be required to issue or deliver any
Warrant Security 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.
(e)
Prior to the issuance of any
Warrants there shall have been reserved, and the Company shall at
all times through the Expiration Date keep reserved, out of its
authorized
4
but unissued Warrant Securities, a
number of shares sufficient to provide for the exercise of the
Warrants.
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT
CERTIFICATES
3.1
No Rights As Warrant Securityholder 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
Securities, including, without limitation, the right to receive the
payment of dividends or distributions, if any, on the Warrant
Securities or to exercise any voting rights, except to the extent
expressly set forth in this Agreement or the applicable Warrant
Certificate.
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 number of Warrant
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 a Warrant Certificate,
without the consent of the Warrant Agent, the holder of any Warrant
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 right to exercise the Warrants
evidenced by such holder’s Warrant Certificate in the manner
provided in such holder’s Warrant Certificate and in this
Agreement.
5
3.4
Adjustments .
(a)
In case the Company shall at any
time subdivide its outstanding shares of [title of Preferred Stock
purchasable through exercise of Warrants] into a greater number of
shares, the Warrant Price in effect immediately prior to such
subdivision shall be proportionately reduced and the number of
Warrant Securities purchasable under the Warrants shall be
proportionately increased. Conversely, in case the outstanding
shares of [title of Preferred Stock purchasable through exercise of
Warrants] of the Company shall be combined into a smaller number of
shares, the Warrant Price in effect immediately prior to such
combination shall be proportionately increased and the number of
Warrant Securities purchasable under the Warrants shall be
proportionately decreased.
(b)
If at any time or from time to time
the holders of [title of Preferred Stock purchasable through
exercise of Warrants] (or any shares of stock or other securities
at the time receivable upon the exercise of the Warrants) shall
have received or become entitled to receive, without payment
therefore,
(i)
[title of Preferred Stock
purchasable through exercise of Warrants] or any shares of stock or
other securities which are at any time directly or indirectly
convertible into or exchangeable for [title of Preferred Stock
purchasable through exercise of Warrants], or any rights or options
to subscribe for, purchase or otherwise acquire any of the
foregoing by way of dividend or other distribution;
(ii)
any cash paid or payable otherwise
than in accordance with the terms of [title of Preferred Stock
purchasable through exercise of Warrants] or otherwise than as a
cash dividend paid or payable out of the Company’s current or
retained earnings;
(iii)
any evidence of the Company’s
indebtedness or rights to subscribe for or purchase the
Company’s indebtedness; or
(iv)
[title of Preferred Stock
purchasable through exercise of Warrants] or additional stock or
other securities or property (including cash) by way of spinoff,
split-up, reclassification, combination of shares or similar
corporate rearrangement (other than shares of [title of Preferred
Stock purchasable through exercise of Warrants] issued as a stock
split or adjustments in respect of which shall be covered by the
terms of Section 3.4(a) above), then and in each such
case, the holder of each Warrant shall, upon the exercise of the
Warrant, be entitled to receive, in addition to the number of
Warrant Securities receivable thereupon, and without payment of any
additional consideration therefore, the amount of stock and other
securities and property (including cash and indebtedness (or rights
to subscribe for or purchase indebtedness) which such holder would
hold on the date of such exercise had he been the holder of record
of such Warrant Securities as of the date on which holders of
[title of Preferred Stock purchasable through exercise of Warrants]
received or became entitled to receive such shares or all other
additional stock and other securities and property.
(c)
In case of (i) any
reclassification, capital reorganization, or change in the [title
of Preferred Stock purchasable through the exercise of the
Warrants] of the Company (other than as a result of a subdivision,
combination or stock dividend provided for in
Section 3.4(a) or
6
Section 3.4(b) above),
(ii) 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 and which does not result in any
change in the [title of Preferred Stock purchasable through the
exercise of the Warrants] other than the issuance of additional
shares of [title of Preferred Stock purchasable through the
exercise of the Warrants]) or (iii) 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 or its
successor shall be delivered to the holders of the Warrants, so
that the holders of the Warrants shall have the right at any time
prior to the expiration of the Warrants to purchase, at a total
price equal to that payable upon the exercise of the Warrants, the
kind and amount of shares of stock and other securities and
property receivable in connection with such Reorganization Event by
a holder of the same number of shares of [title of Preferred Stock
purchasable through the exercise of the Warrants] as were
purchasable by the holders of the Warrants immediately prior to
such Reorganization Event. In any such case appropriate provisions
shall be made with respect to the rights and interests of the
holders of the Warrants so that the provisions hereof shall
thereafter be applicable with respect to any shares of stock or
other securities and property deliverable upon exercise the
Warrants, and appropriate adjustments shall be made to the Warrant
Price payable hereunder provided the aggregate purchase price shall
remain the same. In the case of any transaction described in
clauses (ii) and (iii) above, 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 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.
(d)
The Company may, at its option, at
any time until the Expiration Date, reduce the then current Warrant
Price to any amount deemed appropriate by the Board of Directors of
the Company for any period not exceeding twenty consecutive days
(as evidenced in a resolution adopted by such Board of Directors),
but only upon giving the notices required by Section 3.5 at
least ten days prior to taking such action.
(e)
Except as herein otherwise expressly
provided, no adjustment in the Warrant Price shall be made by
reason of the issuance of any securities of the Company or for any
other reason whatsoever.
7
(f)
No fractional Warrant Securities
shall be issued upon the exercise of Warrants. If more than one
Warrant shall be exercised at one time by the same holder, the
number of full Warrant Securities which shall be issuable upon such
exercise shall be computed on the basis of the aggregate number of
Warrant Securities purchased pursuant to the Warrants so exercised.
Instead of any fractional Warrant Security which would otherwise be
issuable upon exercise of any Warrant, the Company shall pay a cash
adjustment in respect of such fraction in an amount equal to the
same fraction of the last sales price (or bid price if there were
no sales) per Warrant Security, in either case as reported on the
New York Stock Exchange Composite Tape on the business day which
next precedes the day of exercise or, if the Warrant Securities are
not then listed or admitted to trading on the New York Stock
Exchange, on the principal national securities exchange on which
the Warrant Securities are listed or admitted to trading or, if not
listed or admitted to trading on any national securities exchange,
on the National Market System of the National Association of
Securities Dealers, Inc. Automated Quotations System
(“NASDAQ”), or if the Warrant Securities are not then
listed or admitted to trading on an
