Exhibit 4.1
OPTIMER PHARMACEUTICALS,
INC.
WARRANT TO PURCHASE COMMON
STOCK
To Purchase [
] Shares of Common Stock
Date of Issuance: March ,
2009
VOID AFTER MARCH ,
2014
THIS CERTIFIES THAT, for value
received,
[ ],
or permitted registered assigns (the “ Holder
”), is entitled to subscribe for and purchase at the Exercise
Price (defined below) from Optimer Pharmaceuticals, Inc., a
Delaware corporation (the “ Company ”), up to
[ ]
shares of the common stock of the Company, par value $0.001 per
share (the “ Common Stock ”). This warrant is
one of a series of warrants issued by the Company as of the date
hereof (individually a “ Warrant ”, and
collectively, the “ Warrants ”) pursuant to the
Common Stock and Warrant Purchase Agreement between the Company and
the Holder, dated as of March , 2009 (the “ Purchase
Agreement ”).
1. DEFINITIONS .
Capitalized terms used herein but not otherwise defined herein
shall have their respective meanings as set forth in the Purchase
Agreement. As used herein, the following terms shall have the
following respective meanings:
(A) “ Eligible
Market ” means any of the New York Stock Exchange, the
American Stock Exchange, The NASDAQ Global Market, The NASDAQ
Global Select Market or The NASDAQ Capital Market.
(B) “ Exercise
Period ” shall mean the period commencing six
(6) months after the date hereof and ending 5:00 P.M. New
York City time on March , 2014, unless sooner terminated as
provided below.
(C) “ Exercise
Price ” shall mean $10.93 per share, subject to
adjustment pursuant to Section 4 below.
(D) “ Exercise
Shares ” shall mean the shares of Common Stock issuable
upon exercise of this Warrant.
(E) “ Trading Day
” shall mean (a) any day on which the Common Stock is
listed or quoted and traded on its primary Trading Market,
(b) if the Common Stock is not then listed or quoted and
traded on any Eligible Market, then a day on which trading occurs
on the OTC Bulletin Board (or any successor thereto), or
(c) if trading does not occur on the OTC Bulletin Board (or
any successor thereto), any business day.
(F) “ Trading
Market ” shall mean the NASDAQ Global Market or any other
Eligible Market, or any national securities exchange, market or
trading or quotation facility on which the Common Stock is then
listed or quoted.
2. EXERCISE OF WARRANT
. The rights represented by this Warrant may be exercised in whole
or in part at any time during the Exercise Period, by delivery of
the following to the Company at its address set forth on the
signature page hereto (or at such other address as it may
designate by notice in writing to the Holder):
(A) An executed Notice of
Exercise in the form attached hereto;
(B) Payment of the Exercise
Price either (i) in cash or by check, or (ii) pursuant to
Section 2.1 below; and
(C) This Warrant.
Execution and delivery of the Notice
of Exercise shall have the same effect as cancellation of the
original Warrant and issuance of a new Warrant evidencing the right
to purchase the remaining number of Exercise Shares, if
any.
1
Anything to the contrary
notwithstanding, the Company shall not be under any obligation to
issue cash upon exercise of this Warrant, except as explicitly
provided in Sections 4, 5, 6 and except for the payment of any
taxes and expenses required to be paid by the Company pursuant to
Section 2.3
Certificates for shares purchased
hereunder shall be transmitted by the Company’s transfer
agent (the “ Transfer Agent ”) to the Holder by
crediting the account of the Holder’s prime broker with the
Depository Trust Company through its Deposit Withdrawal Agent
Commission system if the Company is a participant in such system,
or, if the Company reasonably determines that the Holder is an
affiliate of the Company at the time of exercise or the Holder
otherwise requests, by physical delivery to the address specified
by the Holder in the Notice of Exercise within three
(3) business days from the delivery to the Company of the
Notice of Exercise, surrender of this Warrant and payment of the
aggregate Exercise Price as set forth above. This Warrant shall be
deemed to have been exercised on the date the Exercise Price is
received by the Company.
The person in whose name any
certificate or certificates for Exercise Shares are to be issued
upon exercise of this Warrant shall be deemed to have become the
holder of record of such shares on the date on which this Warrant
was surrendered and payment of the Exercise Price was made,
irrespective of the date of delivery of such certificate or
certificates, except that, if the date of such surrender and
payment is a date when the stock transfer books of the Company are
closed, such person shall be deemed to have become the holder of
such shares at the close of business on the next succeeding date on
which the stock transfer books are open.
Subject to Section 2.4 ,
to the extent permitted by law, the Company’s obligations to
issue and deliver Exercise Shares in accordance with the terms
hereof are absolute and unconditional, irrespective of any action
or inaction by the Holder to enforce the same, any waiver or
consent with respect to any provision hereof, the recovery of any
judgment against any person or entity or any action to enforce the
same, or any setoff, counterclaim, recoupment, limitation or
termination, or any breach or alleged breach by the Holder or any
other person or entity of any obligation to the Company or any
violation or alleged violation of law by the Holder or any other
person or entity, and irrespective of any other circumstance which
might otherwise limit such obligation of the Company to the Holder
in connection with the issuance of Exercise Shares. Nothing herein
shall limit a Holder’s right to pursue any other remedies
available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive
relief with respect to the Company’s failure to timely
deliver Exercise Shares upon exercise of this Warrant as required
pursuant to the terms hereof. If, at the time the Holder
exercises this Warrant, the Company is not permitted to issue the
Exercise Shares pursuant to the Registration Statement (or any
other registration statement that the Company may have filed for
such purpose), then nothing in this Warrant shall obligate the
Company to register the issuance of the Exercise Shares or their
subsequent resale.
2.1 NET EXERCISE . If during
the Exercise Period, the Company is not permitted to issue the
Exercise Shares pursuant to the Registration Statement, as defined
in the Purchase Agreement, and the fair market value of one share
of the Common Stock is greater than the Exercise Price (at the date
of calculation as set forth below), in lieu of exercising this
Warrant by payment of cash or by check, the Holder may elect to
receive shares equal to the value (as determined below) of this
Warrant (or the portion thereof being canceled) by surrender of
this Warrant at the principal office of the Company together with
the properly endorsed Notice of Exercise in which event the Company
shall issue to the Holder a number of shares of Common Stock
computed using the following formula:
X = Y (A-B)
A
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Where
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X =
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the number of shares of Common Stock to be
issued to the Holder
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Y =
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the number of shares of Common Stock purchasable
under the Warrant or, if only a portion of the Warrant is being
exercised, the portion of the Warrant being canceled (at the date
of such calculation)
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A =
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the fair market value of one share of the
Company’s Common Stock (at the date of such
calculation)
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2
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B =
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Exercise Price (as adjusted to the date of such
calculation)
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For purposes of the above
calculation, the “fair market value” of one share of
Common Stock shall mean (i) the average of the closing sales
prices for the shares of Common Stock on the Nasdaq Global Market
or other Eligible Market where the Common Stock is listed or traded
as reported by Bloomberg Financial Markets (or a comparable
reporting service of national reputation selected by the Company
and reasonably acceptable to the Holder if Bloomberg Financial
Markets is not then reporting sales prices of such security)
(collectively, “ Bloomberg ”) for the five
(5) consecutive trading days immediately prior to the Exercise
Date, or (ii) if the Nasdaq Global Market is not the principal
Trading Market for the shares of Common Stock, the average of the
reported sales prices reported by Bloomberg on the principal
Trading Market for the Common Stock during the same period, or, if
there is no sales price for such period, the last sales price
reported by Bloomberg for such period, or (iii) if neither of
the foregoing applies, the last sales price of such security in the
over-the-counter market on the pink sheets or bulletin board for
such security as reported by Bloomberg, or if no sales price is so
reported for such security, the last bid price of such security as
reported by Bloomberg or (iv) if fair market value cannot be
calculated as of such date on any of the foregoing bases, the fair
market value shall be as determined by the Board of Directors of
the Company in the exercise of its good faith judgment.
2.2 ISSUANCE OF NEW WARRANTS
. Upon any partial exercise of this Warrant, the Company, at its
expense, will forthwith and, in any event within five business
days, issue and deliver to the Holder a new warrant or warrants of
like tenor, registered in the name of the Holder, exercisable, in
the aggregate, for the balance of the number of shares of Common
Stock remaining available for purchase under this
Warrant.
2.3 PAYMENT OF TAXES AND
EXPENSES . The Company shall pay any recording, filing, stamp
or similar tax which may be payable in respect of any transfer
involved in the issuance of, and the preparation and delivery of
certificates (if applicable) representing, (i) any Exercise
Shares purchased upon exercise of this Warrant and/or (ii) new
or replacement warrants in the Holder’s name or the name of
any transferee of all or any portion of this Warrant; provided,
however , that the Company shall not be required to pay any tax
which may be payable in respect of any transfer involved in the
issuance, delivery or registration of any certificates for Exercise
Shares or Warrants in a name other than that of the Holder. The
Holder shall be responsible for all other tax liability that may
arise as a result of holding or transferring this Warrant or
receiving Exercise Shares upon exercise hereof.
2.4 EXERCISE LIMITATIONS;
HOLDER’S RESTRICTIONS . A Holder shall not have the right
to exercise any portion of this Warrant, pursuant to
Section 2 or otherwise, to the extent that after giving
effect to such issuance after exercise, such Holder (together with
such Holder’s affiliates), as set forth on the applicable
Notice of Exercise, would beneficially own in excess of 9.9% of the
number of shares of the Common Stock outstanding immediately after
giving effect to such issuance. For purposes of this
Section 2.4 , the number of shares of Common Stock
beneficially owned by such Holder and its affiliates shall include
the number of shares of Common Stock issuable upon exercise of this
Warrant with respect to which the determination of such sentence is
being made, but shall exclude the number of shares of Common Stock
which would be issuable upon (A) exercise of the remaining,
nonexercised portion of this Warrant beneficially owned by such
Holder or any of its affiliates and (B) exercise or conversion
of the unexercised or nonconverted portion of any other securities
of the Company (including, without limitation, any other shares of
Common Stock or Warrants) subject to a limitation on conversion or
exercise analogous to the limitation contained herein beneficially
owned by such Holder or any of its affiliates. Except as set forth
in the preceding sentence, for purposes of this
Section 2.4 , beneficial ownership shall be calculated
in accordance with Section 13(d) of the Exchange Act, it
being acknowledged by a Holder that the Company is not representing
to such Holder that such calculation is in compliance
wit
