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NEITHER
THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE OF
THESE SECURITIES HAVE BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION (THE “COMMISSION”) OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”) AND APPLICABLE
STATE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD EXCEPT PURSUANT TO (I) AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (II) AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN
ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR BLUE SKY
LAWS.
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Warrant
No. ____
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Original
Issue Date: April 11, 2008
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NOVELOS THERAPEUTICS, INC.
WARRANT TO PURCHASE [_____________] SHARES OF
COMMON STOCK, PAR VALUE $0.00001 PER SHARE
FOR
VALUE RECEIVED,
[_________________
] (“
Warrantholder ”),
is entitled to purchase, subject to the provisions of this Warrant,
from NOVELOS THERAPEUTICS, INC. a Delaware corporation
(“
Corporation ”),
at any time not later than 5:00 P.M., Eastern time, on April 11,
2013 (the “
Expiration Date ”),
at an exercise price per share equal to $
0.65 (the
exercise price in effect being herein called the “
Warrant Price ”),
[______________] shares
(“
Warrant Shares ”)
of the Corporation’s Common Stock, par value $0.00001
per
share (“
Common Stock ”).
The number of Warrant Shares purchasable upon exercise of this
Warrant and the Warrant Price shall be subject to adjustment from
time to time as described herein. This Warrant has been issued
pursuant to a certain Securities Purchase Agreement, dated as of
March 26, 2008, as amended on April 9, 2008, by and among the
Corporation and the Investors signatory thereto (the “
Purchase Agreement ”).
All capitalized terms used but not defined herein shall have the
meanings ascribed thereto in the Purchase Agreement.
Section
1.
Registration .
The Corporation shall maintain books for the transfer and
registration of the Warrant. Upon the initial issuance of this
Warrant, the Corporation shall issue and register the Warrant in
the name of the Warrantholder.
Section
2.
Transfers .
As provided herein, this Warrant may be transferred only pursuant
to a registration statement filed under the Securities Act, or an
exemption from such registration. Subject to such restrictions, the
Corporation shall transfer this Warrant from time to time upon the
books to be maintained by the Corporation for that purpose, upon
surrender thereof for transfer properly endorsed or accompanied by
appropriate instructions for transfer and such other documents as
may be reasonably required by the Corporation, including, if
required by the Corporation, an opinion of its counsel to the
effect that such transfer is exempt from the registration
requirements of the Securities Act, to establish that such transfer
is being made in accordance with the terms hereof, and a new
Warrant shall be issued to the transferee and the surrendered
Warrant shall be canceled by the Corporation.
Section
3.
Exercise of Warrant .
(a)
Subject
to the provisions hereof, the Warrantholder may exercise this
Warrant in whole or in part at any time prior to its
expiration upon surrender of the Warrant, together with
delivery of the duly executed Warrant exercise form attached
hereto as
Appendix A (the
“
Exercise Agreement ”)
and payment by cash, certified check or wire transfer of funds for
the aggregate Warrant Price for that number of Warrant Shares then
being purchased, to the Corporation during normal business hours on
any Business Day at the Corporation’s principal executive
offices (or such other office or agency of the Corporation as it
may designate by notice to the holder hereof). The Warrant Shares
so purchased shall be deemed to be issued to the holder hereof or
such holder’s designee, as the record owner of such shares,
as of the close of business on the date on which this Warrant shall
have been surrendered (or evidence of loss, theft or destruction
thereof and security or indemnity satisfactory to the Corporation),
the Warrant Price shall have been paid and the completed Exercise
Agreement shall have been delivered. Certificates for the Warrant
Shares so purchased, representing the aggregate number of shares
specified in the Exercise Agreement, shall be delivered to the
holder hereof within a reasonable time, not exceeding three (3)
Business Day, after this Warrant shall have been so exercised. When
the Corporation is required to deliver certificates upon exercise,
if certificates are not delivered to the Warrantholder within such
three (3) Business Days, the Corporation shall be liable to the
Warrantholder for liquidated damages equal to 1.5% of the aggregate
Warrant Price for each 30-day period (or portion thereof) beyond
such three (3) Business Day-period that the certificates have not
been so delivered. The certificates so delivered shall be in such
denominations as may be requested by the holder hereof and shall be
registered in the name of such holder or such other name as shall
be designated by such holder. If this Warrant shall have been
exercised only in part, then, unless this Warrant has expired, the
Corporation shall, at its expense, at the time of delivery of such
certificates, deliver to the holder a new Warrant representing the
number of shares with respect to which this Warrant shall not then
have been exercised.
(b)
(I)
Notwithstanding
anything herein to the contrary, in no event shall a
Warrantholder be entitled to exercise any portion of this
Warrant so held by such Warrantholder in excess of that
portion upon exercise of which the sum of (1) the number of
shares of Common Stock beneficially owned by such
Warrantholder and its Affiliates (other than shares of Common
Stock which may be deemed beneficially owned through ownership
of the unexercised shares of Common Stock underlying the
Warrant or the unexercised or unconverted portion of any other
security of the holder subject to a limitation on conversion
analogous to the limitations contained herein) and (2) the
number of shares of Common Stock issuable upon the exercise of
that portion of the Warrant with respect to which the
determination of this proviso is being made, would result in
beneficial ownership by such Warrantholder and its Affiliates
of any amount greater than 4.99% of the then outstanding
shares of Common Stock (whether or not, at the time of such
conversion, the Warrantholder and its Affiliates beneficially
own more than 4.99% of the then outstanding shares of Common
Stock). The waiver by a Warrantholder of any limitation
contained in a warrant or convertible security now or
hereafter held by such holder that is similar or analogous to
the limitations set forth in this Section 3(b)(I) shall not be
deemed a waiver or otherwise effect the limitation set forth
in this Section 3(b)(I), unless such waiver expressly states
it is a waiver of the provisions of this Section 3(b)(I). For
purposes of this Section 3(b)(I), beneficial ownership shall
be determined in accordance with Section 13(d) of the
Securities Exchange Act of 1934, as amended, and Regulations
13D-G thereunder, except as otherwise provided in clause (1)
of such proviso. Any Warrantholder may waive the limitations
set forth herein by sixty-one (61) days written notice to the
Corporation. The foregoing shall not affect the
Company’s right to redeem the Warrant pursuant to
Section 19.
(II)
Notwithstanding
anything herein to the contrary, in no event shall a
Warrantholder be entitled to exercise any portion of this
Warrant so held by such Warrantholder in excess of that
portion upon exercise of which the sum of (1) the number of
shares of Common Stock beneficially owned by such
Warrantholder and its Affiliates (other than shares of Common
Stock which may be deemed beneficially owned through ownership
of the unexercised shares of Common Stock or the unexercised
or unconverted portion of any other security of the holder
subject to a limitation on exercise analogous to the
limitations contained herein) and (2) the number of shares of
Common Stock issuable upon the exercise of that portion of the
Warrant with respect to which the determination of this
proviso is being made, would result in beneficial ownership by
such Warrantholder and its Affiliates of any amount greater
than 9.99% of the then outstanding shares of Common Stock
(whether or not, at the time of such conversion, the
Warrantholder and its Affiliates beneficially own more than
9.99% of the then outstanding shares of Common Stock). The
waiver by a Warrantholder of any limitation contained in a
warrant or convertible security now or hereafter held by such
holder that is similar or analogous to the limitations set
forth in this Section 3(b)(II) shall not be deemed a waiver or
otherwise effect the limitation set forth in this Section
3(b)(II), unless such waiver expressly states it is a waiver
of the provisions of this Section 3(b)(II). For purposes of
this Section 3(b)(II), beneficial ownership shall be
determined in accordance with Section 13(d) of the Securities
Exchange Act of 1934, as amended, and Regulations 13D-G
thereunder, except as otherwise provided in clause (1) of such
proviso. Any Warrantholder may waive the limitations set forth
herein by sixty-one (61) days written notice to the
Corporation. The foregoing shall not affect the
Company’s right to redeem the Warrant pursuant to
Section 19.
Section
4.
Compliance with the Securities Act of 1933 .
The Corporation may cause the legend set forth on the first page of
this Warrant to be set forth on each Warrant or similar legend on
any security issued or issuable upon exercise of this Warrant,
unless counsel for the Corporation is of the opinion as to any such
security that such legend is unnecessary.
Section
5.
Payment of Taxes .
The Corporation will pay any documentary stamp taxes attributable
to the initial issuance of Warrant Shares issuable upon the
exercise of the Warrant;
provided ,
however ,
that the Corporation shall not be required to pay any tax or taxes
which may be payable in respect of any transfer involved in the
issuance or delivery of any certificates for Warrant Shares in a
name other than that of the registered holder of this Warrant in
respect of which such shares are issued, and in such case, the
Corporation shall not be required to issue or deliver any
certificate for Warrant Shares or any Warrant until the person
requesting the same has paid to the Corporation the amount of such
tax or has established to the Corporation’s reasonable
satisfaction that such tax has been paid. The holder shall be
responsible for income taxes due under federal, state or other law,
if any such tax is due.
Section
6.
Mutilated or Missing Warrants .
In case this Warrant shall be mutilated, lost, stolen, or
destroyed, the Corporation shall issue in exchange and substitution
of and upon cancellation of the mutilated Warrant, or in lieu of
and substitution for the Warrant lost, stolen or destroyed, a new
Warrant of like tenor and for the purchase of a like number of
Warrant Shares, but only upon receipt of evidence reasonably
satisfactory to the Corporation of such loss, theft or destruction
of the Warrant, and with respect to a lost, stolen or destroyed
Warrant, reasonable indemnity or bond with respect thereto, if
requested by the Corporation.
Section
7.
Reservation of Common Stock .
The Corporation hereby represents and warrants that there have been
reserved, and the Corporation shall at all applicable times keep
reserved until issued (if necessary) as contemplated by this
Section 7, out of the authorized and unissued shares of Common
Stock, 100% of the number of shares issuable upon exercise of the
rights of purchase represented by this Warrant. The Corporation
agrees that all Warrant Shares issued upon due exercise of the
Warrant shall be, at the time of delivery of the certificates for
such Warrant Shares, duly authorized, validly issued, fully paid
and non-assessable shares of Common Stock of the
Corporation.
Section
8.
Adjustments .
Subject and pursuant to the provisions of this Section 8, the
Warrant Price and number of Warrant Shares subject to this Warrant
shall be subject to adjustment from time to time as set forth
hereinafter.
(a)
If
the Corporation shall, at any time or from time to time while
this Warrant is outstanding, pay a dividend or make a
distribution on its Common Stock in shares of Common Stock,
subdivide its outstanding shares of Common Stock into a
greater number of shares or combine its outstanding shares of
Common Stock into a smaller number of shares or issue by
reclassification of its outstanding shares of Common Stock any
shares of its capital stock (including any such
reclassification in connection with a consolidation or merger
in which the Corporation is the continuing corporation), then
the number of Warrant Shares purchasable upon exercise of the
Warrant and the Warrant Price in effect immediately prior to
the date upon which such change shall become effective, shall
be adjusted by the Corporation so that the Warrantholder
thereafter exercising the Warrant shall be entitled to receive
the number of shares of Common Stock or other capital stock
which the Warrantholder would have received if the Warrant had
been fully exercised immediately prior to such event upon
payment of a Warrant Price that has been adjusted to reflect a
fair allocation of the economics of such event to the
Warrantholder. Such adjustments shall be made successively
whenever any event listed above shall occur.
(b)
If
any capital reorganization, reclassification of the capital
stock of the Corporation, consolidation or merger of the
Corporation with another corporation in which the Corporation
is not the survivor, or sale, transfer or other disposition of
all or substantially all of the Corporation’s assets to
another corporation shall be effected, then, the Corporation
shall use its best effo
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COMMON STOCK, PAR VALUE $0.00001 PER SHARE | Document Parties: NOVELOS THERAPEUTICS, INC.](/images/dev/header/icon-document.gif){kind=icon}
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