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Exhibit 4.6
NEITHER THIS SECURITY NOR THE
SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION
FROM REGISTRATION UNDER SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS THEREUNDER AND IN COMPLIANCE WITH
APPLICABLE STATE SECURITIES OR BLUE SKY LAWS.
RELIANT PHARMACEUTICALS,
INC.
COMMON STOCK PURCHASE
WARRANT
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| Warrant
No.
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Dated of Issue: April ,
2005 |
Reliant Pharmaceuticals,
Inc., a Delaware corporation (the “ Company ”),
hereby certifies that, for value received, [
], or its permitted registered successors and assigns (“
Holder ”), is entitled, subject to the terms set forth
below, to purchase from the Company up to a total of [
] shares of common stock, $.01 par value per share (the “
Common Stock ”), of the Company (each such share, a
“ Warrant Share ” and all such shares, the
“ Warrant Shares ”). The initial “
Exercise Price ” for Warrant Shares shall be
$20.00/share and shall be subject to adjustment from time to time
as provided in Section 7. The Holder may acquire Warrant Shares
under this Warrant at such times as is provided for in Section 3(a)
hereof.
This Warrant is issued by the
Company to the Holder in connection with that certain Third-Lien
Credit and Guaranty Agreement, dated as of April
, 2005, among the Company, certain
subsidiaries of the Company, various lenders, and Goldman Sachs
Credit Partners, L.P. (the “ Third-Lien Credit
Agreement ”).
This Warrant shall be subject
to the following terms and conditions:
1. Registration of
Warrant . The Company shall register this Warrant, upon records
to be maintained by the Company for that purpose (the “
Warrant Register ”), in the name of the record Holder
hereof from time to time. Except as provided in Section 2 below,
the Company may deem and treat the registered Holder of this
Warrant as the absolute owner hereof for the purpose of any
exercise hereof or any distribution to the Holder, and for all
other purposes, and the Company shall not be affected by notice to
the contrary.
2. Transferability;
Registration of Transfers and Exchanges .
(a) Each Holder of this
Warrant acknowledges that this Warrant, the Warrant Stock and the
Common Stock of the Company have not been registered under the
Securities Act
of 1933, as amended, (the “
Securities Act ”). Each Holder agrees not to sell,
pledge, distribute, offer for sale, transfer or otherwise dispose
of this Warrant, any Warrant Shares issued upon its exercise or any
other Common Stock of the Company in the absence of (i) an
effective registration statement under the Securities Act as to
this Warrant, such Warrant Shares or such Common Stock and
registration or qualification of this Warrant, such Warrant Shares
or such Common Stock under any applicable United States federal or
state securities law then in effect, or (ii) an opinion of counsel,
satisfactory to the Company, that such registration and
qualification are not required. Each certificate or other
instrument for Warrant Shares issued upon the exercise of this
Warrant shall bear a legend substantially to the foregoing
effect.
(b) Subject to the provisions
of Section 2(a) hereof and the terms of the
Stockholders’ Agreement, this Warrant and all rights
hereunder are transferable, in whole or in part, upon surrender of
the Warrant with a properly executed Form of Assignment attached
hereto at the principal office of the Company. Transfer of the
Warrant, in whole or in part, shall not effect the Holder’s
interest and/or rights in and obligations under the Third-Lien
Credit Agreement.
(c) The Company shall
register the transfer of any portion of this Warrant in the Warrant
Register, upon surrender of this Warrant, with the Form of
Assignment attached hereto duly completed and signed, to the
Transfer Agent or to the Company at its address for notice set
forth in Section 10. Upon any such registration or transfer, a new
warrant to purchase Common Stock, in substantially the form of this
Warrant (any such new warrant, a “ New Warrant
”), evidencing the portion of this Warrant so transferred
shall be issued to the transferee and a New Warrant evidencing the
remaining portion of this Warrant not so transferred, if any, shall
be issued to the transferring Holder. The acceptance of the New
Warrant by the transferee thereof shall be deemed the acceptance of
such transferee of all of the rights and obligations of a holder of
a Warrant.
(d) This Warrant is
exchangeable, upon the surrender hereof by the Holder to the office
of the Company at its address for notice set forth in Section 10
for one or more New Warrants, evidencing in the aggregate the right
to purchase the number of Warrant Shares which may then be
purchased hereunder. Any such New Warrant will be dated the date of
such exchange.
(e) This Warrant has been
issued subject to certain investment representations of the
original Holder set forth in the Third Lien Credit Agreement and
may only be transferred or exchanged in compliance with the
transfer restrictions contained therein. `
(f) As a condition to the
initial exercise of this Warrant (or any New Warrant), Holder shall
execute a joinder to the Stockholders’ Agreement of the
Company, if any, as then in effect (the “
Stockholders’ Agreement ”), agreeing to be bound
as a stockholder holding Common Stock thereunder.
(g) The Company shall use its
commercially reasonable efforts to amend the Second Amended and
Restated Registration Rights Agreement of the Company dated as of
September 25, 2003 (as the same may be amended from time to time,
the “ Registration Rights Agreement ”) to
include the Warrant Shares in the definition of Warrant Units
thereunder. In the event that the Company is not successful in
effecting such amendment within ninety (90) days following the date
hereof, then within one hundred and twenty (120) days following the
date
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hereof, the Company shall enter into a
new registration rights agreement with respect to the Warrant
Shares with the holders of Warrants issued pursuant to or in
connection with the Third Lien Credit Agreement on terms
substantially similar to the Registration Rights Agreement (the
“ New RRA ”). The Holder, once he or it executes
a joinder to the Registration Rights Agreement or the New RRA, as
applicable, shall be entitled to registration rights in respect of
the Warrant Shares pursuant to the terms and conditions of that
certain Registration Rights Agreement or the New RRA, as
applicable
3. Duration and Exercise
of Warrants .
(a) This Warrant shall be
exercisable by the registered Holder on any business day before
5:00 P.M. Eastern time, and from time to time from and after the
date hereof and through and including April
, 2015 (the “ Expiration
Date ”). At 5:00 P.M., Eastern time on the Expiration
Date, the portion of this Warrant not exercised prior thereto shall
be and become void and of no value. Prior to the Expiration Date,
the Company may not call or otherwise redeem this Warrant without
the prior written consent of the Holder.
(b) Upon surrender of this
Warrant, with the Form of Election to Purchase attached hereto and
a joinder to the Stockholders Agreement as required by Section 2(f)
above each duly completed and signed, to the Company at its address
for notice set forth in Section 10 and upon payment of the Exercise
Price multiplied by the number of Warrant Shares that the Holder
intends to purchase hereunder, in the manner provided hereunder,
all as specified by the Holder in the Form of Election to Purchase,
the Company shall promptly (but in no event later than five (5)
business days after the Date of Exercise (as defined herein)) issue
or cause to be issued and cause to be delivered to or upon the
written order of the Holder and in such name or names as the Holder
may designate, a certificate for the Warrant Shares issuable upon
such exercise, free of restrictive legends except (i) either in the
event that a registration statement covering the resale of the
Warrant Shares and naming the Holder as a selling stockholder
thereunder is not then effective or the Warrant Shares are not
freely transferable without volume restrictions pursuant to Rule
144(k) promulgated under the Securities Act of 1933, as amended
(the “ Securities Act ”), (ii) if this Warrant
shall have been issued pursuant to a written agreement between the
original Holder and the Company, as required by such agreement or
(iii) as provided in the Stockholders Agreement or the Registration
Rights Agreement or New RRA, as applicable. Any person so
designated by the Holder to receive Warrant Shares shall be deemed
to have become the holder of record of such Warrant Shares as of
the Date of Exercise of this Warrant.
(c) A “ Date of
Exercise ” means the date on which the Company shall have
received (i) this Warrant (or any New Warrant, as applicable) with
the Form of Election to Purchase attached hereto (or attached to
such New Warrant) appropriately completed and duly signed, and (ii)
payment of the Exercise Price for the number of Warrant Shares so
indicated by the Holder hereof to be purchased.
(d) This Warrant shall be
exercisable, either in its entirety or, from time to time, for a
portion of the number of Warrant Shares representing not less than
10% of the original Warrant Shares or such lesser amount as is then
remaining available for exercise. If less than all of the Warrant
Shares which may be purchased under this Warrant are purchased at
any time, the Company shall issue or cause to be issued, at its
expense, a New Warrant evidencing the right to purchase the
remaining number of Warrant Shares for which no exercise has been
evidenced by this Warrant.
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4. Payment of Taxes .
The Company will pay all documentary stamp taxes attributable to
the issuance of Warrant Shares upon the exercise 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 registration of any certificates for Warrant 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 Warrant Shares
upon exercise hereof.
5. Replacement of
Warrant . If this Warrant is mutilated, lost, stolen or
destroyed, the Company shall issue or cause to be issued in
exchange and substitution for and upon cancellation hereof, or in
lieu of and substitution for this Warrant, a New Warrant, but only
upon receipt of evidence reasonably satisfactory to the Company of
such loss, theft or destruction and indemnity, if requested,
satisfactory to it. Applicants for a New Warrant under such
circumstances shall also comply with such other reasonable
regulations and procedures and pay such other reasonable charges as
the Company may prescribe.
6. Reservation of Warrant
Shares . The Company covenants that it will at all times
reserve and keep available out of the aggregate of its authorized
but unissued Common Stock, solely for the purpose of enabling it to
issue Warrant Shares upon exercise of this Warrant as herein
provided, the number of Warrant Shares which are then issuable and
deliverable upon the exercise of this entire Warrant, free from
preemptive rights or any other actual or contingent purchase rights
of persons other than the Holder (taking into account the
adjustments and restrictions of Section 7). The Company covenants
that all Warrant Shares that shall be so issuable and deliverable
shall, upon issuance and the payment of the applicable Exercise
Price in accordance with the terms hereof, be duly and validly
authorized, issued and fully paid and nonassessable.
7. Certain Adjustments
. The Exercise Price and number of Warrant Shares issuable upon
exercise of this Warrant are subject to adjustment from time to
time as set forth in this Section 7. Upon each such adjustment of
the Exercise Price pursuant to this Section 7, the Holder shall
thereafter prior to the Expiration Date be entitled to purchase, at
the Exercise Price resulting from such adjustment, the number of
Warrant Shares obtained by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of Warrant
Shares issuable upon exercise of this Warrant immediately prior to
such adjustment and dividing the product thereof by the Exercise
Price resulting from such adjustment.
(a) If the Company, at any
time while this Warrant is outstanding, (i) shall pay a stock
dividend (except scheduled dividends paid on preferred stock which
contain a stated dividend rate) or otherwise make a distribution or
distributions on shares of its Common Stock or on any other class
of capital stock payable in shares of Common Stock, (ii) subdivide
outstanding shares of Common Stock into a larger number of shares,
or (iii) combine outstanding shares of Common Stock into a smaller
number of shares, then the Exercise Price shall be multiplied by a
fraction, of which the numerator shall be the number of shares of
Common Stock (excluding treasury shares, if any) outstanding before
such event and of which the denominator shall be the number of
shares of Common Stock (excluding treasury shares, if any)
outstanding
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after such event. Any adjustment made
pursuant to this Section shall become effective immediately after
the record date for the determination of stockholders entitled to
receive such dividend or distribution and shall become effective
immediately after the effective date in the case of a subdivision
or combination, and shall apply to successive subdivisions and
combinations.
(b) In case of any
reclassification of the Common Stock or any compulsory share
exchange pursuant to which the Common Stock is converted into other
securities, cash or property, then the Holder shall have the right
thereafter to exercise this Warrant only into the shares of stock
and other securities and property receivable upon or deemed to be
held by holders of Common Stock following such reclassification or
share exchange, and the Holder shall be entitled upon such event to
receive such amount of securities or property equal to the amount
of Warrant Shares such Holder would have been entitled to had such
Holder exercised this Warrant immediately prior to such
reclassification or share exchange. The terms of any such
reclassification or share exchange shall include such terms so as
to continue to give to the Holder the right to receive the
securities or property set forth in this Section 7(b) upon any
exercise following any such reclassification or share
exchange.
(c) If the Company, at any
time while this Warrant is outstanding, shall distribute to all
holders of Common Stock (and not to the Holder of this Warrant)
evidences of its inde
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