Exhibit 10.2
SAVIENT
PHARMACEUTICALS, INC.
W ARRANT T O P URCHASE C OMMON S TOCK
Warrant No.: [___]
Number of Shares of Common Stock:
[_____________]
Date of Issuance: April 8, 2009 (“ Issuance Date
”)
Savient
Pharmaceuticals, Inc., a Delaware corporation (the “
Company ”), hereby certifies that, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, [______________], the registered holder hereof
or its permitted assigns (the “ Holder ”), is
entitled, subject to the terms set forth below, to purchase from
the Company, at the Exercise Price (as defined below) in effect at
the time of exercise, upon surrender of this Warrant to Purchase
Common Stock (including any Warrants to Purchase Common Stock
issued in exchange, transfer or replacement hereof, the “
Warrant "), at any time or times on or after the date
hereof, but not after 11:59 p.m., New York time, on the Expiration
Date (as defined below), [______________ (_____________)]
1 fully paid nonassessable shares of Common Stock (as
defined below) (the “ Warrant Shares ”). Except
as otherwise defined herein, capitalized terms in this Warrant
shall have the meanings set forth in Section 15 . As used
herein, the “ Exercise Period ” means the period
beginning on the date hereof and ending at 11:59 p.m., New York
time, on the Expiration Date. This Warrant is the Warrant to
purchase Common Stock issued pursuant to Section 2 of that
certain Subscription Agreement (the “ Subscription
Agreement ”), dated as of April 2, 2009 (the “
Subscription Date ”), by and between the Company and
the Holder (the “ Subscription Agreement ”), and
is issued pursuant to the Company’s Registration Statement on
Form S-3 (File number 333-146257) (the “ Registration
Statement ”).
1.
EXERCISE OF
WARRANT.
(a)
Mechanics of Exercise
. Subject to the terms and
conditions hereof, this Warrant may be exercised by the Holder on
any day during the Exercise Period, in whole or in part, by (i)
delivery of a written notice, in the form attached hereto as
Exhibit A (the “ Exercise Notice ”), of
the Holder's election to exercise this Warrant and (ii) (A) payment
to the Company of an amount equal to the Exercise Price in effect
at the time of exercise multiplied by the number of Warrant Shares
as to which this Warrant is being exercised (the “
Aggregate Exercise Price ”) in cash or by wire
transfer of immediately available funds or (B) by notifying the
Company that this Warrant is being exercised pursuant to a Cashless
Exercise (as defined in Section 1(e) ); provided
, however , that, notwithstanding Section
1(a)(ii)(A), at any time, upon receipt of an Exercise Notice, the
Company may, in its sole discretion, require that the Holder
exercise this Warrant on a Cashless Exercise basis (in which case,
if the Holder has exercised the Warrant by payment of the Aggregate
Exercise Price pursuant to Section 1(a)(ii)(A), the Company shall
promptly return such funds to an account designated by the Holder,
and the Holder shall, for all purposes hereunder, be deemed to have
delivered a notice of Cashless
_________________________
1 Insert a number of shares equal to 85% of the
number of shares of Common Stock purchased under the Subscription
Agreement.
Exercise with respect to such
exercise on the date on which the Exercise Notice was delivered, or
alternatively, at the election of the Holder, the Exercise Notice
shall be null and void). The Holder shall not be required to
deliver the original Warrant in order to effect an exercise
hereunder, but shall deliver the original Warrant within five (5)
Business Days thereafter. Execution and delivery of the Exercise
Notice with respect to less than all of the Warrant Shares 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 Warrant Shares. On or before the first (1
st ) Business Day following the date on which the
Company has received, as applicable, each of the Exercise Notice
and the Aggregate Exercise Price (or notice of a Cashless Exercise)
(the “ Exercise Delivery Documents ”), the
Company shall transmit by facsimile an acknowledgment of
confirmation of receipt of the Exercise Delivery Documents to the
Holder and the Company's transfer agent (the “ Transfer
Agent ”). On or before the third (3 rd )
Business Day following the date on which the Company has received
all of the Exercise Delivery Documents (the “ Share
Delivery Date ”), the Company shall (X) provided that the
Transfer Agent is participating in The Depository Trust Company
(“ DTC ”) Fast Automated Securities Transfer
Program, upon the request of the Holder, credit such aggregate
number of Warrant Shares to which the Holder is entitled pursuant
to such exercise to the Holder's or its designee's balance account
with DTC through its Deposit Withdrawal Agent Commission system, or
(Y) if the Transfer Agent is not participating in the DTC Fast
Automated Securities Transfer Program, issue and dispatch by
overnight courier to the address as specified in the Exercise
Notice, a certificate, registered in the Company's share register
in the name of the Holder or its designee, for the number of shares
of Common Stock to which the Holder is entitled pursuant to such
exercise. Upon delivery of the Exercise Delivery Documents, the
Holder shall be deemed for all corporate purposes to have become
the holder of record of the Warrant Shares with respect to which
this Warrant has been exercised, irrespective of the date such
Warrant Shares are credited to the Holder's DTC account or the date
of delivery of the certificates evidencing such Warrant Shares, as
the case may be. If this Warrant is submitted in connection with
any exercise pursuant to this Section 1(a) and the number of
Warrant Shares represented by this Warrant submitted for exercise
is greater than the number of Warrant Shares being acquired upon an
exercise, then the Company shall as soon as practicable and in no
event later than two Business Days after receipt by the Company,
following an exercise of the Warrant, of the original Warrant, and
at its own expense, issue a new Warrant (in accordance with
Section 8(d) ) representing the right to purchase the number
of Warrant Shares purchasable under this Warrant after giving
effect to such exercise of the Warrant. No fractional shares of
Common Stock are to be issued upon the exercise of this Warrant,
but rather the number of shares of Common Stock to be issued shall
be rounded up to the nearest whole number. The Company shall pay
any and all transfer taxes which may be payable with respect to the
issuance and delivery of Warrant Shares upon exercise of this
Warrant by the Holder of this Warrant.
(b)
Exercise Price
. For purposes of this
Warrant,“ Exercise Price ” initially means
$10.46, subject to adjustment as provided herein. In the event
that, during the Exercise Period, the Company publicly announces
that the United States Food and Drug Administration (“
FDA ”) has issued a “complete response”
letter (the “ Complete Response Letter ”) with
respect to the Company’s Biologics License Application for
the Company’s KRYSTEXXA product candidate (the “
BLA ”), as set forth in a writing by the FDA under 21
C.F.R. § 601.3 (the date of such announcement, the “
Complete Response Date ”), then the Exercise Price
shall, from and after the eleventh Trading Day following the
Complete Response
Date, be changed to be the Market
Price, subject to adjustment as provided herein; provided ,
however , that in no event shall the Exercise Price (i)
exceed $10.46 or (ii) be less than $1.57, in each case subject to
appropriate adjustment in the event of any stock dividend, stock
split, combination or other similar recapitalization with respect
to the Common Stock.
(c)
Market Price
. For purposes of this Warrant,
“ Market Price ” means the Weighted Average
Price for the Common Stock for the five (5) Trading Days
immediately preceding the tenth Trading Day following the Complete
Response Date.
(d)
Company's Failure to Timely
Deliver Securities . If
the Company shall fail for any reason or for no reason to issue to
the Holder within three (3) Business Days of receipt of the
Exercise Delivery Documents in compliance with the terms of this
Section 1 , a certificate for the number of shares of Common
Stock to which the Holder is entitled and register such shares of
Common Stock on the Company's share register or to credit the
Holder's balance account with DTC for such number of shares of
Common Stock to which the Holder is entitled upon the Holder's
exercise of this Warrant, and if on or after such Trading Day the
Holder purchases (in an open market transaction or otherwise)
shares of Common Stock to deliver in satisfaction of a sale by the
Holder of shares of Common Stock issuable upon such exercise that
the Holder anticipated receiving from the Company (a “
Buy-In ”), then the Company shall, within three (3)
Business Days after the Holder's request and in the Holder's
discretion, either (i) pay cash to the Holder in an amount equal to
the Holder's total purchase price (including brokerage commissions,
if any) for the shares of Common Stock so purchased (the “
Buy-In Price ”), at which point the Company's
obligation to deliver such certificate (and to issue such Warrant
Shares) shall terminate (and, if the Company’s transfer agent
delivers such Warrant Shares thereafter, the Holder will promptly
work with the transfer agent, at the Company’s expense, to
return such Warrant Shares), or (ii) promptly honor its obligation
to deliver to the Holder a certificate or certificates representing
such Warrant Shares and pay cash to the Holder in an amount equal
to the excess (if any) of the Buy-In Price over the product of (A)
such number of shares of Common Stock, times (B) the Closing Sale
Price on the date of exercise.
(e)
Cashless Exercise
. Upon the election of a Holder
pursuant to Section 1(a)(ii)(B) or an election by the
Company to require that this Warrant be exercised on a Cashless
Exercise basis pursuant to the proviso in the first sentence of
Section 1(a) , this Warrant shall be exercised by the Holder
hereof, in whole or in part and, in lieu of making a cash payment
otherwise contemplated to be made to the Company upon such exercise
in payment of the Aggregate Exercise Price, by the Holder’s
receiving upon such exercise the “Net Number" of shares of
Common Stock determined according to the following formula (a
“ Cashless Exercise ”):
Net
Number = (A x B) - (A x C)
B
For
purposes of the foregoing formula:
A= the total number of shares with respect to
which this Warrant is then being exercised.
B= the arithmetic average of the Closing Sale
Prices of the shares of Common Stock for the five (5) consecutive
Trading Days ending on the date immediately preceding the date of
the Exercise Notice; provided , however , that if the
Company requires that this Warrant be exercised on a Cashless
Exercise basis pursuant to the proviso in the first sentence of
Section 1(a), “B” shall instead equal the greater of
(i) the arithmetic average of the Closing Sale Prices of the shares
of Common Stock for the five (5) consecutive Trading Days ending on
the date immediately preceding the date of the Exercise Notice and
(ii) the Closing Sale Price on the date of the Exercise
Notice.
C= the
Exercise Price then in effect for the applicable Warrant Shares at
the time of such exercise.
(f)
Rule 144 . For purposes of Rule 144(d) promulgated under
the Securities Act, as in effect on the date hereof, assuming the
Holder is not an affiliate of the Company, it is intended that the
Warrant Shares issued in a Cashless Exercise shall be deemed to
have been acquired by the Holder, and the holding period for the
Warrant Shares shall be deemed to have commenced, on the date this
Warrant was originally issued pursuant to the Subscription
Agreement
(g)
Disputes . In the case of a dispute as to the
determination of the Exercise Price or the arithmetic calculation
of the Warrant Shares, the Company shall promptly issue to the
Holder the number of Warrant Shares, if any, that are not
disputed.
(h)
Beneficial Ownership
. The Holder shall not have the
right to exercise this Warrant to the extent that after giving
effect to such exercise, the Holder (together with the
Holder’s affiliates) would beneficially own in excess of
[4.99/9.99%] (the “ Maximum Percentage ”) of the
shares of Common Stock outstanding immediately after giving effect
to such exercise. If the Holder has delivered an Exercise Notice,
the Company shall be entitled to assume that such exercise will not
result in the Holder exceeding the Maximum Percentage as a result
of the exercise contemplated by such Exercise Notice. For purposes
of the foregoing sentence, the aggregate 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 shares of Common Stock
which would be issuable upon (i) exercise of the remaining,
unexercised portion of this Warrant beneficially owned by such
Person and its affiliates and (ii) exercise or conversion of the
unexercised or unconverted portion of any other securities of the
Company beneficially owned by such Person and its affiliates
(including, without limitation, any convertible notes or
convertible preferred stock or warrants) subject to a limitation on
conversion or exercise analogous to the limitation contained
herein. Except as set forth in the immediately preceding sentence,
for purposes of this paragraph, beneficial ownership shall be
calculated in accordance with Section 13(d) of the Securities
Exchange Act of 1934, as amended. For purposes of this Warrant, in
determining the number of outstanding shares of Common Stock, the
Holder may rely on the number of outstanding shares of Common Stock
as reflected in the most recent of (1) the Company's most recent
Form 10-K, Form 10-Q, Current Report on Form
8-K or
other public filing with the Securities and Exchange Commission, as
the case may be, (2) a public announcement by the Company or (3)
any other notice by the Company or the Transfer Agent setting forth
the number of shares of Common Stock outstanding. For any reason at
any time, upon the written or oral request of the Holder, the
Company shall within two (2) Business Days confirm orally and in
writing to the Holder the number of shares of Common Stock then
outstanding. In any case, the number of outstanding shares of
Common Stock shall be determined after giving effect to the
conversion or exercise of securities of the Company, including this
Warrant, by the Holder and its affiliates since the date as of
which such number of outstanding shares of Common Stock was
reported. By written notice to the Company, the Holder may from
time to time increase or decrease the Maximum Percentage to any
other percentage specified in such notice and not in excess of
[4.99/9.99%]; provided that any such increase will not be
effective until the sixty-first (61 st ) day after such
notice is delivered to the Company. The provisions of this
paragraph shall be construed and implemented in a manner otherwise
than in strict conformity with the terms of this Section
1(h) to correct this paragraph (or any portion hereof) which
may be defective or inconsistent with the intended beneficial
ownership limitation herein contained or to make changes or
supplements necessary or desirable to properly and reasonably give
effect to such limitation.
2.
ADJUSTMENT OF EXERCISE PRICE AND
NUMBER OF WARRANT SHARES . The Exercise Price and the number of Warrant
Shares shall be adjusted from time to time as follows:
(a)
Adjustment upon Subdivision or
Combination of Common Stock . If the Company at any time on or after the
Subscription Date subdivides (by any stock split, stock dividend,
recapitalization, reorganization, scheme, arrangement or otherwise)
one or more classes of its outstanding shares of Common Stock into
a greater number of shares, the Exercise Price in effect
immediately prior to such subdivision will be proportionately
reduced and the number of Warrant Shares will be proportionately
increased. If the Company at any time on or after the Subscription
Date combines (by any stock split, stock dividend,
recapitalization, reorganization, scheme, arrangement or otherwise)
one or more classes of its outstanding shares of Common Stock into
a smaller number of shares, the Exercise Price in effect
immediately prior to such combination will be proportionately
increased and the number of Warrant Shares will be proportionately
decreased. Any adjustment under this Section 2(b) shall become
effective at the close of business on the date the subdivision or
combination becomes effective. For the avoidance of doubt, if the
Exercise Price is adjusted as a result of the occurrence of the
Complete Response Date, then the Exercise Price so adjusted shall
be in effect, without regard to any adjustment as a result of any
subdivision or combination of the Common Stock described in this
Section 2(a) that may have occurred prior to the date on which the
adjustment resulting from the occurrence of the Complete Response
Date occurs, but the Exercise Price shall thereafter be adjusted to
reflect any subdivision or combination of the Common Stock
described in this Section 2(a) that may occur on or after the date
on which the adjustment resulting from the occurrence of the
Complete Response Date occurs.
3.
RIGHTS UPON DISTRIBUTION OF
ASSETS . If the Company
shall declare or make any dividend or other distribution of its
assets (or rights to acquire its assets) to holders of shares of
Common Stock, by way of return of capital or otherwise (including,
without limitation, any distribution of cash, stock or other
securities, property or options by way of a
dividend,
spin off, reclassification, corporate rearrangement, scheme of
arrangement or other similar transaction) (a “
Distribution ”), at any time after the issuance of
this Warrant, then, in each such case:
(a)
any Exercise Price in effect
immediately prior to the close of business on the record date fixed
for the determination of holders of shares of Common Stock entitled
to receive the Distribution shall be reduced, effective as of the
close of business on such record date, to a price determined by
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