|
EXHIBIT
4.12
JAZZ
PHARMACEUTICALS, INC.
and
, AS WARRANT AGENT
FORM OF COMMON
STOCK
WARRANT
AGREEMENT
DATED AS OF
JAZZ PHARMACEUTICALS,
INC.
FORM OF COMMON STOCK
WARRANT AGREEMENT
C OMMON S
TOCK W ARRANT A
GREEMENT (this “Agreement”), dated
as of
between J AZZ P HARMACEUTICALS
, I NC ., 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”).
W
HEREAS , 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 Common Stock of the Company, par
value $0.0001 per share (the “Warrant Securities”),
such warrant certificates and other warrant certificates issued
pursuant to this Agreement being herein called the “Warrant
Certificates”; and
W
HEREAS , the Company desires the Warrant Agent
to act on behalf of the Company, and the Warrant Agent is willing
so to act, in connection with the issuance, registration, transfer,
exchange, exercise and replacement of the Warrant Certificates, and
in this Agreement wishes to set forth, among other things, the form
and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, registered, transferred,
exchanged, exercised and replaced.
N OW T
HEREFORE , in consideration of the premises and
of the mutual agreements herein contained, the parties hereto agree
as follows:
ARTICLE 1
ISSUANCE OF WARRANTS AND
EXECUTION AND DELIVERY OF WARRANT CERTIFICATES
1.1 Issuance Of
Warrants . [If Warrants alone—Upon issuance, each Warrant
Certificate shall evidence one or more Warrants.] [If Other
Securities and Warrants—Warrant Certificates shall be
[initially] issued in connection with the issuance of the Other
Securities [but shall be separately transferable on and after
(the “Detachable Date”)] [and shall not be separately
transferable] and each Warrant Certificate shall evidence one or
more Warrants.] Each Warrant evidenced thereby shall represent the
right, subject to the provisions contained herein and therein, to
purchase one Warrant Security. [If Other Securities and
Warrants—Warrant Certificates shall be initially issued in
units with the Other Securities and each Warrant Certificate
included in such a unit shall evidence
Warrants for each [$
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 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., [
] 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., [
] 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 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 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.
3.4
Adjustments.
(a) In case the
Company shall at any time subdivide its outstanding shares of
Common Stock 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 Common Stock 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 Common Stock (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) Common Stock or
any shares of stock or other securities which are at any time
directly or indirectly convertible into or exchangeable for Common
Stock, 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 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) Common Stock 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
Common Stock 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 Common Stock 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 Common Stock of the Company (other than as a result of a
subdivision, combination, or stock dividend provided for in
Section 3.4(a) or 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 Common Stock other than the issuance of additional shares of
Common Stock) 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 Warrant Securities 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.
(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 shares of Common Stock,
or securities convertible into or exchangeable for shares of Common
Stock, or securities carrying the right to purchase any of the
foregoing or for any other reason whatsoever.
(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, the average of the closing high bid and low
asked prices in the over-the-counter market, as reported by The
Nasdaq Stock Market, Inc. (“NASDAQ”) or the Financial
Industry Regulatory Authority, Inc. (“FINRA”), as
applicable, or such other system then in use, or if on any such
date the Warrant Securities are not quoted by any such
organization, an amount equal to the same fraction of the average
of the closing bid and asked prices as furnished by any New York
Stock Exchange firm selected from time to time by the Company for
that purpose at the close of business on the business day which
next precedes the day of exercise.
(g) Whenever the
Warrant Price then in effect is adjusted as herein provided, the
Company shall mail to each holder of the Warrants at such
holder’s address as it shall appear on the books of the
Company a statement setting forth the adjusted Warrant Price then
and thereafter effective under the provisions hereof, together with
the facts, in reasonable detail, upon which such adjustment is
based.
3.5 Notice To
Warrantholders . In case the Company shall (a) effect any
dividend or distribution described in Section 3.4(b),
(b) effect any Reorganization Event, (c) make any
distribution on or in respect of the Common Stock in connection
with the dissolution, liquidation or winding up of the Company, or
(d) reduce the then current Warrant Price pursuant to
Section 3.4(d), 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 (x) the record date
for such dividend or distribution, or, if a record is not to be
taken, the date as of which the holders of record of Common Stock
that will be entitled to such dividend or distribution are to be
determined, (y) 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
Common Stock of record shall be entitled to exchange their shares
of Common Stock for securities or other property deliverable upon
such Reorganization Event, dissolution, liquidation or winding up,
or (z) the first date on which the then current Warrant Price
shall be reduced pursuant to Section 3.4(d). No failure to
mail such notice nor any defect therein or in the mailing thereof
shall affect any such transaction or any adjustment in the Warrant
Price required by Section 3.4.
3.6 [If The Warrants Are
Subject To Acceleration By The Company, Insert—Acceleration
Of Warrants By The Company.
(a) At any time on or
after
, the Company shall have the right to accelerate any or
all
|
