UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
__________________
FORM
8-K
Current
Report
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of
1934
__________________
Date
of
Report (Date of earliest event reported):
July
21, 2006
BIOSANTE
PHARMACEUTICALS, INC.
(Exact
name of registrant as specified in its charter)
|
Delaware
|
001-31812
|
58-2301143
|
|
(State
or other jurisdiction of incorporation)
|
(Commission
File Number)
|
(I.R.S.
Employer Identification Number)
|
|
111
Barclay Boulevard
Lincolnshire,
Illinois
|
60069
|
|
(Address
of principal executive offices)
|
(Zip
Code)
|
(847)
478-0500
(Registrant’s
telephone number, including area code)
N/A
(Former
name or former address, if changed since last report)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
| £ |
Written
communications pursuant to Rule 425 under the Securities Act (17
CFR
230.425)
|
| £ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
| £ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR
240.14d-2(b))
|
| £ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR
240.13e-4(c))
|
Section
1 — Registrant’s Business and Operations
Item
1.01 Entry
into a Material Definitive Agreement
On
July
21, 2006, BioSante Pharmaceuticals, Inc. closed its previously announced private
placement of 3,812,978 shares of its common stock and warrants to purchase
1,334,542 shares of its common stock at an aggregate price of approximately
$7.6
million, or $2.00 per unit, resulting in net proceeds to BioSante of
approximately $7.2 million, after deduction of estimated closing costs and
fees.
As
part
of the transaction, investors received warrants to purchase an aggregate of
1,334,542 shares of its common stock. The warrants are exercisable for a period
of four years and nine months, beginning six months and one day from the date
of
issuance, at an exercise price of $2.75 per share. The number of shares issuable
upon exercise of the warrants and the exercise price of the warrants are
adjustable in the event of stock splits, combinations and reclassifications,
but
not in the event of the issuance of additional securities.
The
foregoing description of the terms and conditions of the warrants issued by
BioSante in the private placement does not purport to be complete and is
qualified in its entirety by reference to the full text of the form of warrant
filed as Exhibit 10.2 to this Current Report on Form 8-K and incorporated herein
by reference.
Section
8 — Other Events
Item
8.01 Other
Events
On
July
21, 2006, BioSante Pharmaceuticals, Inc. closed its previously announced private
placement of 3,812,978 shares of its common stock and warrants to purchase
1,334,542 shares of its common stock at an aggregate price of approximately
$7.6
million, or $2.00 per unit, resulting in net proceeds to BioSante of
approximately $7.2 million, after deduction of estimated closing costs and
fees.
A
copy of
the press release announcing the completion of the private placement is filed
as
Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein
by
reference.
Item
9.01 Financial
Statements and Exhibits.
(d) Exhibits.
|
Exhibit
No.
|
Description
|
|
10.1
|
Form
of Subscription Agreement dated as of July 7, 2006 by and between
BioSante
Pharmaceuticals, Inc. and each of the subscribers party to the
Subscription Agreements (incorporated by reference to Exhibit 10.1
in
BioSante’s Current Report on Form 8-K dated July 7, 2006 (File No.
001-31812)
|
|
10.2
|
Form
of Warrant dated as of July 21, 2006 issued by BioSante Pharmaceuticals,
Inc. to each of the subscribers party to the Subscription Agreements
dated
as of July 7, 2006 (filed herewith)
|
|
99.1
|
BioSante
Pharmaceuticals, Inc. News Release dated July 24, 2006 (filed
herewith)
|
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
BIOSANTE
PHARMACEUTICALS, INC.
By:
/s/
Stephen M. Simes
Stephen
M. Simes
President
and Chief Executive Officer
Dated:
July 24, 2006
BIOSANTE
PHARMACEUTICALS, INC.
CURRENT
REPORT ON FORM 8-K
EXHIBIT
INDEX
|
Exhibit
No.
|
Description
|
Method
of Filing
|
|
10.1
|
Form
of Subscription Agreement dated as of July 7, 2006 by and between
BioSante
Pharmaceuticals, Inc. and each of the subscribers party to the
Subscription Agreements
|
Incorporated
by reference to Exhibit 10.1 in BioSante’s Current Report on Form 8-K
dated July 7, 2006 (File No. 001-31812)
|
|
10.2
|
Form
of Warrant dated as of July 21, 2006 issued by BioSante Pharmaceuticals,
Inc. to each of the subscribers party to the Subscription Agreements
dated
as of July 7, 2006
|
Filed
herewith
|
|
99.1
|
BioSante
Pharmaceuticals, Inc. News Release dated July 24, 2006
|
Filed
herewith
|
NEITHER
THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE 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, 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, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THESE SECURITIES AND THE SECURITIES ISSUABLE UPON EXERCISE OF THESE
SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT SECURED
BY SUCH SECURITIES.
BIOSANTE
PHARMACEUTICALS, INC.
WARRANT
Warrant
No. «Number»Date
of
Original Issuance: July 21, 2006
BioSante
Pharmaceuticals, Inc.,
a
Delaware corporation (the “Company”),
hereby certifies that, for value received, «Name»
or its
registered assigns (the “Holder”),
is
entitled to purchase from the Company up to a total of «Shares»
shares
of common stock, par value $0.0001 per share (the “Common
Stock”),
of
the Company (each such share, a “Warrant
Share”
and
all
such shares, the “Warrant
Shares”)
at an
exercise price equal to $2.75 per share (as adjusted from time to time as
provided in Section 9, the “Exercise
Price”),
at
any time and from time to time from and after January 22, 2007 and through
and
including October 21, 2011 (the “Expiration
Date”),
and
subject to the following terms and conditions:
1. Definitions.
In
addition to the terms defined elsewhere in this Warrant, capitalized terms
that
are not otherwise defined herein shall have the meanings given to such terms
in
the Subscription Agreement of even date herewith to which the Company and
the
original Holder are parties (the “Purchase
Agreement”).
2. 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. 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, absent actual notice to the contrary.
3. Registration
of Transfers.
Except
as otherwise provided below, 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
Company at its address specified herein. 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 by such transferee of all of the rights and obligations of a holder
of a Warrant.
4. Exercise
of Warrants.
(a) This
Warrant shall be exercisable by the registered Holder at any time and from
time
to time on or after January 22, 2007 to and including the Expiration Date.
At
6:30 p.m., New York City time on the Expiration Date, the portion of this
Warrant not exercised prior thereto shall be and become void and of no value.
The Company may not call or redeem all or any portion of this Warrant without
the prior written consent of the Holder.
(b) The
Company shall not effect any exercise of this Warrant, and a Holder shall
not
have the right to exercise any portion of this Warrant, pursuant to Section
4 or
otherwise, to the extent that after giving effect to such issuance after
exercise as set forth on the applicable Notice of Exercise, such Holder
(together with such Holder’s Affiliates (as defined in the Purchase Agreement),
and any other person or entity acting as a group together with such Holder
or
any of such Holder’s Affiliates), as set forth on the applicable Notice of
Exercise, would beneficially own in excess of the Beneficial Ownership
Limitation (as hereinafter defined). For purposes of the foregoing sentence,
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 such determination 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 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 4(b),
beneficial ownership shall be calculated in accordance with Section 13(d)
of the
Exchange Act and the rules and regulations promulgated thereunder, it being
acknowledged by a Holder that the Company is not representing to such Holder
that such calculation is in compliance with Section 13(d) of the Exchange
Act
and such Holder is solely responsible for any schedules required to be filed
in
accordance therewith. To the extent that the limitation contained in this
Section 4(b) applies, the determination of whether this Warrant is exercisable
(in relation to other securities owned by such Holder together with any
Affiliates) and of which a portion of this Warrant is exercisable shall be
in
the sole discretion of a Holder, and the submission of an Exercise shall
be
deemed to be each Holder’s determination of whether this Warrant is exercisable
(in relation to other securities owned by such Holder together with any
Affiliates) and of which portion of this Warrant is exercisable, in each
case
subject to such aggregate percentage limitation, and the Company shall have
no
obligation to verify or confirm the accuracy of such determination. In addition,
a determination as to any group status as contemplated above shall be determined
in accordance with Section 13(d) of the Exchange Act and the rules and
regulations promulgated thereunder. For purposes of this Section 2(d), in
determining the number of outstanding shares of Common Stock, a Holder may
rely
on the number of outstanding shares of Common Stock as reflected in (x) the
Company’s most recent Form 10-Q or Form 10-K, as the case may be, (y) a more
recent public announcement by the Company or (z) any other notice by the
Company
or the Company’s transfer agent setting forth the number of shares of Common
Stock outstanding. Upon the written or oral request of a Holder, the
Company shall within two trading days confirm orally and in writing to such
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 such Holder or its Affiliates since the date as
of
which such number of outstanding shares of Common Stock was reported. The
“Beneficial
Ownership Limitation”
shall be
4.99% of the number of shares of the Common Stock outstanding immediately
after
giving effect to the issuance of shares of Common Stock issuable upon exercise
of this Warrant. The Beneficial Ownership Limitation provisions of this Section
4(b) may be waived by such Holder, at the election of such Holder, upon not
less
than 61 days’ prior notice to the Company to change the Beneficial Ownership
Limitation to 9.99% of the number of shares of the Common Stock outstanding
immediately after giving effect to the issuance of shares of Common Stock
upon
exercise of this Warrant, and the provisions of this Section 4(b) shall continue
to apply. Upon such a change by a Holder of the Beneficial Ownership Limitation
from such 4.99% limitation to such 9.99% limitation, the Beneficial Ownership
Limitation may not be further waived by such Holder. The provisions of this
paragraph shall be construed and implemented in a manner otherwise than in
strict conformity with the terms of this Section 4(b) 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 give effect to such limitation.
The limitations contained in this paragraph shall apply to a successor holder
of
this Warrant.
5. Delivery
of Warrant Shares.
(a) To
effect
exercises hereunder, the Holder shall not be required to physically surrender
this Warrant unless the aggregate Warrant Shares represented by this Warrant
is
being exercised. Upon delivery of the Exercise Notice to the Company (with
the
attached Warrant Shares Exercise Log) at its address for notice set forth
herein
and upon payment of the Exercise Price multiplied by the number of Warrant
Shares that the Holder intends to purchase hereunder, the Company shall promptly
(but in no event later than five business days after the Date of Exercise
(as
defined herein)) issue and deliver to the Holder, a certificate for the Warrant
Shares issuable upon such exercise, which, unless otherwise required by the
Purchase Agreement, shall be free of restrictive legends. Certificates for
Warrant Shares purchased hereunder shall be transmitted by the transfer agent
of
the Company to the Holder by crediting the account of the Holder’s prime broker
with the Depository Trust Company through its Deposit Withdrawal Agent
Commission (“DWAC”)
system
if the Company or its transfer agent is a participant in such system, and
otherwise by physical delivery to the address specified by the Holder in
the
Exercise Notice within 3 trading days from the delivery to the Company of
the
Exercise Date (as hereinafter defined) and surrender of this Warrant (if
required) (“Warrant
Share Delivery Date”).
This
Warrant shall be deemed to have been exercised on the date the Exercise Price
is
received by the Company. The Warrant Shares shall be deemed to have been
issued,
and Holder or any other person so designated to be named therein shall be
deemed
to have become a holder of record of such shares for all purposes, as of
the
date the Warrant has been exercised by payment to the Company of the Exercise
Price (or by cashless exercise). A “Date
of Exercise”
means
the date on which the Holder shall have delivered to Company: (i) the Exercise
Notice (with the Warrant Exercise Log attached to it), appropriately completed
and duly signed and (ii) if such Holder is not utilizing the cashless exercise
provisions set forth in this Warrant, payment of the Exercise Price for the
number of Warrant Shares so indicated by the Holder to be
purchased.
(b) If
by the
third business day after a Date of Exercise the Company fails to deliver
the
required number of Warrant Shares in the manner required pursuant to Section
5(a), then the Holder will have the right to rescind such exercise.
(c) In
addition to any other rights available to the Holder, if the Company fails
to
cause its transfer agent to transmit to the Holder a certificate or certificates
representing the Warrant Shares pursuant to an exercise on or before the
Warrant
Share Delivery Date, and if after such date the Holder is required by its
broker
to purchase (in an open market transaction or otherwise) shares of Common
Stock
to deliver in satisfaction of a sale by the Holder of the Warrant Shares
which
the Holder anticipated receiving upon such exercise (a “Buy-In”),
then
the Company shall (1) pay in cash to the Holder the amount by which (x) the
Holder’s total purchase price (including brokerage commissions, if any) for the
shares of Common Stock so purchased exceeds (y) the amount obtained by
multiplying (A) the number of Warrant Shares that the Company was required
to
deliver to the Holder in connection with the exercise at issue times (B)
the
price at which the sell order giving rise to such purchase obligation was
executed, and (2) at the option of the Holder, either reinstate the portion
of
the Warrant and equivalent number of Warrant Shares for which such exercise
was
not honored or deliver to the Holder the number of shares of Common Stock
that
would have been issued had the Company timely complied with its exercise
and
delivery obligations hereunder. For example, if the Holder purchases Common
Stock having a total purchase price of $11,000 to cover a Buy-In with respect
to
an attempted exercise of shares of Common Stock with an aggregate sale price
giving rise to such purchase obligation of $10,000, under clause (1) of the
immediately preceding sentence the Company shall be required to pay the Holder
$1,000. The Holder shall provide the Company written notice indicating the
amounts payable to the Holder in respect of the Buy-In and, upon request
of the
Company, evidence of the amount of such loss. 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
certificates representing shares of Common Stock upon exercise of the Warrant
as
required pursuant to the terms hereof.
(d) The
Company’s obligations to issue and deliver Warrant 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 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 of any obligation to the Company or any violation or alleged violation
of
law by the Holder or any other Person, and irrespective of any other
circumstance which might otherwise limit such obligation of the Company to
the
Holder in connection with the issuance of Warrant 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 certificates representing shares of Common Stock upon exercise
of
the Warrant as required pursuant to the terms hereof.
6. Charges,
Taxes and Expenses.
Issuance and delivery of certificates for shares of Common Stock upon exercise
of this Warrant shall be made without charge to the Holder for any issue
or
transfer tax, withholding tax, transfer agent fee or other incidental tax
or
expense in respect of the issuance of such certificates, all of which taxes
and
expenses shall be paid by the Company; 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.
7. 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 customary and reasonable indemnity (which shall
not
include a surety bond), if requested. Applicants for a New Warrant under
such
circumstances shall also comply with such other reasonable regulations and
procedures and pay such other reasonable third-party costs as the Company
may
prescribe. If a New Warrant is requested as a result of a mutilation of this
Warrant, then the Holder shall deliver such mutilated Warrant to the Company
as
a condition precedent to the Company’s obligation to issue the New
Warrant.
8. 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 and otherwise unreserved 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 contingent purchase rights of persons
other
than the Holder (taking into account the adjustments and restrictions of
Section
9).
The
Company covenants that all Warrant Shares 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.
9. 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
9.
(a) Stock
Dividends and Splits.
If the
Company, at any time while this Warrant is outstanding, (i) pays a stock
dividend on its Common Stock or otherwise makes a distribution on any class
of
capital stock that is payable in shares of Common Stock, (ii) subdivides
outstanding shares of Common Stock into a larger number of shares, or (iii)
combines outstanding shares of Common Stock into a smaller number of shares,
then in each such case the Exercise Price shall be multiplied by a fraction
of
which the numerator shall be the number of shares of Common Stock outstanding
immediately before such event and of which the denominator shall be the number
of shares of Common Stock outstanding immediately after such event. Any
adjustment made pursuant to clause (i) of this paragraph shall become effective
immediately after the record date for the determination of stockholders entitled
to receive such dividend or distribution, and any adjustment pursuant to
clause
(ii) or (iii) of this paragraph shall become effective immediately after
the
effective date of such subdivision or combination. If any event requiring
an
adjustment under this paragraph occurs during the period that an Exercise
Price
is calculated hereunder, then the calculation of such Exercise Price shall
be
adjusted appropriately to reflect such event.
(b) Fundamental
Transactions.
If, at
any time while this Warrant is outstanding, (1) the Company effects any merger
or consolidation of the Company with or into another Person, (2) the Company
effects any sale of all or substantially all of its assets in one or a series
of
related transactions, (3) any tender offer or exchange offer (whether by
the
Company or another Person) is completed pursuant to which holders of Common
Stock are permitted to tender or exchange their shares for other securities,
cash or property, or (4) the Company effects any reclassification of the
Common
Stock or any compulsory share exchange pursuant to which the Common Stock
is
effectively converted into or exchanged for other securities, cash or property
(in any such case, a “Fundamental
Transaction”),
then
the Holder shall have the right thereafter to receive, upon exercise of this
Warrant, the same amount and kind of securities, cash or property as it would
have been entitled to receive upon the occurrence of such Fundamental
Transaction if it had been, immediately prior to such Fundamental Transaction,
the holder of the number of Warrant Shares then issuable upon exercise in
full
of this Warrant (the “Alternate
Consideration”).
For
purposes of any such exercise, the determination of the Exercise Price shall
be
appropriately adjusted to apply to such Alternate Consideration based on
the
amount of Alternate Consideration issuable in respect of one share of Common
Stock in such Fundamental Transaction, and the Company shall apportion the
Exercise Price among the Alternate Consideration in a reasonable manner
reflecting the relative value of any different components of the Alternate
Consideration. If holders of Common Stock are given any choice as to the
securities, cash or property to be received in a Fundamental Transaction,
then
the Holder shall be given the same choice as to the Alternate Consideration
it
receives upon any exercise of this Warrant following such Fundamental
Transaction. Any successor to the Company or surviving entity in such
Fundamental Transaction shall issue to the Holder a new warrant substantially
in
the form of this Warrant and consistent with the foregoing provisions and
evidencing the Holder’s right to purchase the Alternate Consideration for the
aggregate Exercise Price upon exercise thereof. The terms of any agreement
pursuant to which a Fundamental Transaction is effected shall include terms
requiring any such successor or surviving entity to comply with the provisions
of this paragraph (b) and insuring that the Warrant (or any such replacement
security) will be similarly adjusted upon any subsequent transaction analogous
to a Fundamental Transaction.
(c) Number
of Warrant Shares.
Simultaneously with any adjustment to the Exercise Price pursuant to paragraph
(a) of this Section, the number of Warrant Shares that may be purchased upon
exercise of this Warrant shall be increased or decreased proportionately,
so
that after such adjustment the aggregate Exercise Price payable hereunder
for
the adjusted number of Warrant Shares shall be the same as the aggregate
Exercise Price in effect immediately prior to such adjustment.
(d) Calculations.
All
calculations under this Section
9
shall be
made to the nearest cent or the nearest 1/100th
of a
share, as applicable. The number of shares of Common Stock outstanding at
any
given time shall not include shares owned or held by or for the account of
the
Company, and the disposition of any such shares shall be considered an issue
or
sale of Common Stock.
(e) Notice
of Adjustments.
Upon
the occurrence of each adjustment pursuant to this Section
9,
the
Company at its expense will promptly compute such adjustment in accordance
with
the terms of this Warrant and prepare a certificate setting forth such
adjustment, including a statement of the adjusted Exercise Price and adjusted
number or type of Warrant Shares or other securities issuable upon exercise
of
this Warrant (as applicable), describing the transactions giving rise to
such
adjustments and showing in detail the facts upon which such adjustment is
based.
Upon written request, the Company will promptly deliver a copy of each such
certificate to the Holder and to the Company’s transfer agent.
(f) Notice
to Allow Exercise by Holder.
If (A)
the Company shall declare a dividend (or any other distribution in whatever
form) on the Common Stock; (B) the Company shall declare a special nonrecurring
cash dividend on or a redemption of the Common Stock; (C) the Company shall
authorize the granting to all holders of the Common Stock rights or warrants
to
subscribe for or purchase any shares of capital stock of any class or of
any
rights; (D) the approval of any stockholders of the Company shall be required
in
connection with any reclassification of the Common Stock, any consolidation
or
merger to which the Company is a party, any sale or transfer of all or
substantially all of the assets of the Company, of any compulsory share exchange
whereby the Common Stock is converted into other securities, cash or property;
(E) the Company shall authorize the voluntary or involuntary dissolution,
liquidation or winding up of the affairs of the Company; then, in each case,
the
Company shall cause to be mailed to the Holder at its last address as it
shall
appear upon the warrant register of the Company, at least 10 calendar days
prior
to the applicable record or effective date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of
such
dividend, distribution, redemption, rights or warrants, or if a record is
not to
be taken, the date as of which the holders of the Common Stock of record
to be
entitled to such dividend, distributions, redemption, rights or warrants
are to
be determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer or share exchange is expected to become effective
or
close, and the date as of which it is expected that holders of the Common
Stock
of record shall be entitled to exchange their shares of the Common Stock
for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange; provided that the
failure to mail such notice or any defect therein or in the mailing thereof
shall not affect the validity of the corporate action required to be specified
in such notice.
10. Payment
of Exercise Price.
The
Holder may pay the Exercise Price in one of the following manners:
(a) Cash
Exercise.
The
Holder may deliver immediately available funds; or
(b) Cashless
Exercise.
The
Holder may notify the Company in an Exercise Notice of its election to utilize
cashless exercise, in which event the Company shall issue to the Holder the
number of Warrant Shares determined as follows:
X
= Y
[(A-B)/A]
where:
X
= the
number of Warrant Shares to be issued to the Holder.
Y
= the
number of Warrant Shares with respect to which this Warrant is being
exercised.
A
= the
VWAP on the trading day immediately prior to the Exercise Date.
B
= the
Exercise Price.
For
purposes of Rule 144 promulgated under the Securities Act, it is intended,
understood and acknowledged that the Warrant Shares issued in a cashless
exercise transaction 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.
“VWAP”
means, for any date, the price determined by the first of the following clauses
that applies: (a) if the Common Stock is then listed or quoted on the American
Stock Exchange (“AMEX”), Nasdaq or another national securities exchange, the
daily volume weighted average price of the Common Stock for such date (or
the
nearest preceding date) on AMEX, Nasdaq or another national securities exchange
on which the Common Stock is then listed or quoted for trading as reported
by
Bloomberg Financial L.P. (based on a Trading Day from 9:30 a.m. (New York
City
time) to 4:02 p.m. (New York City time); (b) if the Common Stock is not so
listed or quoted for trading, the volume weighted average price of the Common
Stock for such date (or the nearest preceding date) on the OTC Bulletin Board;
(c) if the Common Stock is not then quoted for trading on the OTC Bulletin
Board
and if prices for the Common Stock are then reported in the “Pink Sheets”
published by Pink Sheets, LLC (or a similar organization or agency succeeding
to
its functions of reporting prices), the most recent bid price per share of
the
Common Stock so reported; or (d) in all other cases, the fair market value
of a share of Common Stock as determined by an independent appraiser selected
in
good faith by the Holder and reasonably acceptable to the Company.
11. No
Fractional Shares.
No
fractional shares of Warrant Shares will be issued in connection with any
exercise of this Warrant. In lieu of any fractional shares which would,
otherwise be issuable, the Company shall pay cash equal to the product of
such
fraction multiplied by the closing price of one Warrant Share as reported
by the
American Stock Exchange or such other national exchange on which the Common
Stock is then traded on the date of exercise.
12. Notices.
Any and
all notices or other communications or deliveries hereunder (including, without
limitation, any Exercise Notice) shall be in writing and shall be deemed
given
and effective on the earliest of (i) the date of transmission, if such notice
or
communication is delivered via facsimile at the facsimile number specified
in
this Section prior to 6:30 p.m. (New York City time) on a business day, (ii)
the
next business day after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number specified
in
this Section on a day that is not a business day or later than 6:30 p.m.
(New
York City time) on any business day, (iii) the business day following the
date
of mailing, if sent by nationally recognized overnight courier service, or
(iv)
upon actual receipt by the party to whom such notice is required to be given.
The addresses for such communications shall be: (i) if to the Company, to
BioSante Pharmaceuticals, Inc., Attn: Chief Financial Officer, Facsimile
No.:
(847) 478-9263, or (ii) if to the Holder, to the address or facsimile number
appearing on the Warrant Register or such other address or facsimile number
as
the Holder may provide to the Company in accordance with this
Section.
13. Warrant
Agent.
The
Company shall serve as warrant agent under this Warrant. Upon 30 days’ notice to
the Holder, the Company may appoint a new warrant agent. Any corporation
into
which the Company or any new warrant agent may be merged or any corporation
resulting from any consolidation to which the Company or any new warrant
agent
shall be a party or any corporation to which the Company or any new warrant
agent transfers substantially all of its corporate trust or shareholders
services business shall be a successor warrant agent under this Warrant without
any further act. Any such successor warrant agent shall promptly cause notice
of
its succession as warrant agent to be mailed (by first class mail, postage
prepaid) to the Holder at the Holder’s last address as shown on the Warrant
Register.
14. Miscellaneous.
(a) This
Warrant does not entitle the Holder to any voting or other rights as a
stockholder of the Company prior to exercise and payment for the Warrant
Price
in accordance with the terms hereof.
(b) Any
notice, request or other document required or permitted to be given or delivered
to the Holder by the Company shall be delivered in accordance with the notice
provisions of the Purchase Agreement.
(c) No
provision hereof, in the absence of any affirmative action by Holder to exercise
this Warrant to purchase Warrant Shares, and no enumeration herein of the
rights
or privileges of Holder, shall give rise to any liability of Holder for the
purchase price of any Common Stock or as a stockholder of the Company, whether
such liability is asserted by the Company or by creditors of the
Company.
(d) The
Holder, in addition to being entitled to exercise all rights granted by law,
including recovery of damages, will be entitled to specific performance of
its
rights under this Warrant. The Company agrees that monetary damages would
not be
adequate compensation for any loss incurred by reason of a breach by it of
the
provisions of this Warrant and hereby agrees to waive and not to assert the
defense in any action for specific performance that a remedy at law would
be
adequate.
(e) This
Warrant shall be binding on and inure to the benefit of the parties hereto
and
their respective successors and assigns. Subject to the preceding sentence,
nothing in this Warrant shall be construed to give to any Person other than
the
Company and the Holder any legal or equitable right, remedy or cause of action
under this Warrant. This Warrant may be amended only in writing signed by
the
Company and the Holder and their successors and assigns.
(f) All
questions concerning the construction, validity, enforcement and interpretation
of this Warrant shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each party hereto hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right
to
trial by jury in any legal proceeding arising out of or relating to this
Warrant
or the transactions contemplated hereby. If either party shall commence a
proceeding to enforce any provisions of this Warrant, then the prevailing
party
in such proceeding shall be reimbursed by the other party for its attorney’s
fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such Proceeding.
(g) The
headings herein are for convenience only, do not constitute a part of this
Warrant and shall not be deemed to limit or affect any of the provisions
hereof.
(h) In
case
any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Warrant shall not in any way be affected or
impaired thereby and the parties will attempt in good faith to agree upon
a
valid and enforceable provision which shall be a commercially reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK,
SIGNATURE
PAGE FOLLOWS]
11
07/21/2006
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
by its
authorized officer as of the date first indicated above.
BIOSANTE
PHARMACEUTICALS, INC.
By:
Name: Phillip
B. Donenberg
Title: Chief
Financial Officer
07/21/2006
BIOSANTE
PHARMACEUTICALS, INC.
WARRANT
ORIGINALLY ISSUED [ ], 2006
WARRANT
NO. [ ]
EXERCISE
NOTICE
To BIOSANTE
PHARMACEUTICALS, INC.:
(1) The
undersigned hereby elects to purchase ________ Warrant Shares of the Company
pursuant to the terms of the attached Warrant (only if exercised in full),
and
tenders herewith payment of the exercise price in full, together with all
applicable transfer taxes, if any.
(2) Payment
shall take the form of (check applicable box):
[
] in
lawful money of the United States; or
[
] [if
permitted] the cancellation of such number of Warrant Shares as is necessary,
in
accordance with the formula set forth in subsection 2(c), to exercise this
Warrant with respect to the maximum number of Warrant Shares purchasable
pursuant to the cashless exercise procedure set forth in subsection
2(c).
(3) Please
issue a certificate or certificates representing said Warrant Shares in the
name
of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number or
by
physical delivery of a certificate to:
_______________________________
_______________________________
_______________________________
(4) Accredited
Investor.
The
undersigned is an “accredited investor” as defined in Regulation D promulgated
under the Securities Act of 1933, as amended.
[SIGNATURE
OF HOLDER]
Name
of
Investing Entity:
Signature
of Authorized Signatory of Investing Entity:
Name
of
Authorized Signatory:
Title
of
Authorized Signatory:
Date:
07/21/2006
Warrant
Shares Exercise Log
|
Date
|
Number
of Warrant Shares Available to be Exercised
|
Number
of Warrant Shares Exercised
|
Number
of Warrant Shares Remaining to be Exercised
|
07/21/2006
BIOSANTE
PHARMACEUTICALS, INC.
WARRANT
ORIGINALLY ISSUED [ ],
2006
WARRANT
NO. [ ]
FORM
OF ASSIGNMENT
[To
be
completed and signed only upon transfer of Warrant]
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________ the right represented by the above-captioned
Warrant to purchase ____________ shares of Common Stock to which such Warrant
relates and appoints ________________ attorney to transfer said right on
the
books of the Company with full power of substitution in the
premises.
Dated: _______________,
____
_______________________________________
(Signature
must conform in all respects to name of holder as specified on the face of
the
Warrant)
_______________________________________
Address
of Transferee
_______________________________________
_______________________________________
In
the
presence of:
__________________________
BioSante
Pharmaceuticals, Inc.
111
Barclay Boulevard
Lincolnshire,
Illinois 60069
www.biosantepharma.com
FOR
IMMEDIATE RELEASE Amex:
BPA
BioSante
Pharmaceuticals Closes $7.6 Million
Private
Placement of Common Stock
LINCOLNSHIRE,
Illinois (July 24, 2006) -- BioSante Pharmaceuticals, Inc. (Amex: BPA) today
announced that it has closed its previously announced $7.6 million private
placement of shares of its common stock and warrants to institutional and other
accredited investors. A total of 3,812,978 shares of common stock were sold
at a
purchase price of $2.00 per share. Investors also received warrants to purchase
1,334,542 shares of common stock at an exercise price of $2.75 per share. Rodman
& Renshaw, LLC served as placement agent for the transaction.
After
deducting estimated closing costs and fees, the company received net proceeds
of
approximately $7.2 million. BioSante expects to use the net proceeds to progress
Bio-E-Gel®
to
approval of its New Drug Application (NDA) for the treatment of menopausal
symptoms, which application is currently under review by the U.S. Food and
Drug
Administration (FDA), and to initiate Phase III clinical trials of
LibiGel®
in the
treatment of female sexual dysfunction, as well as for general corporate
purposes.
“This
private placement provides us with capital to continue to implement our plan
to
move our hormone therapy programs forward," said Stephen M. Simes, president
and
chief executive officer of BioSante. "We are pleased that in addition to certain
quality returning investors, we have been able to expand our institutional
stockholder base with new investors in this financing who we believe will help
increase BioSante’s visibility in the investment community. Investors in this
placement include Perceptive Life Sciences, Quogue Capital, Crestview Capital,
Hunt BioVentures, L.P., Mallette Capital Management, Inc., and Valesco Capital
Management and entities affiliated with Paramount BioCapital.”
Based
on
its current cash balance and commitments, BioSante believes that with the net
proceeds from this private placement, it should be able to maintain its current
planned development activities and the corresponding level of expenditures
through at least the next twelve months, although no assurance can be given
that
it will not need additional cash prior to such time.
The
securities sold in this placement have not been registered under the Securities
Act of 1933, as amended, or state securities laws, and cannot be offered or
sold
in the United States absent registration with the Securities and Exchange
Commission (SEC) or an applicable exemption from the registration requirements.
As part of the transaction, the company has agreed to file a registration
statement with the SEC covering the resale of the shares of common stock issued
in the offering, including the shares of common stock issuable upon exercise
of
the warrants. This news release is neither an offer to sell nor a solicitation
of an offer to buy any of the securities discussed herein and is being issued
under Rule 135c of the Securities Act of 1933.
About
BioSante Pharmaceuticals, Inc.
BioSante
is developing a pipeline of hormone therapy products to treat both men and
women. These hormone therapy products are gel formulations for transdermal
administration that deliver bioidentical estradiol and testosterone. BioSante's
lead products include Bio-E-Gel®
(transdermal estradiol gel) for the treatment of women with menopausal symptoms,
and LibiGel®
(transdermal testosterone gel) for the treatment of female sexual dysfunction
(FSD). A Bio-E-Gel new drug application (NDA) was submitted to the FDA in the
first quarter 2006 and is under review. The current market in the U.S. for
estrogen and testosterone products is approximately $2.5 billion. The
transdermal gel formulations used in the women's gel products are licensed
by
BioSante from Antares Pharma Inc. The company also is developing its calcium
phosphate nanotechnology (CaP) for novel vaccines, including avian flu and
biodefense vaccines for toxins such as anthrax and ricin, and drug delivery
systems. Additional information is available online at: www.biosantepharma.com.
This
news release contains forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995. The statements regarding
BioSante contained in this news release that are not historical in nature,
particularly those that utilize terminology such as "may," "will," "should,"
"likely," "expects," "anticipates," "estimates," "believes", "plans, "hopes",
or
comparable terminology, are forward-looking statements. Forward-looking
statements are based on current expectations and assumptions, and entail various
risks and uncertainties that could cause actual results to differ materially
from those expressed in such forward-looking statements. Important factors
known
to BioSante that cause actual results to differ materially from those expressed
in such forward-looking statements are the difficulty of developing
pharmaceutical products, obtaining regulatory and other approvals and achieving
market acceptance, and other factors identified and discussed from time to
time
in BioSante's filings with the Securities and Exchange Commission, including
those factors discussed on pages 22 to 34 in BioSante's most recent Form 10-K,
which discussion also is incorporated herein by reference. Additional
risk factors include the risk that the closing of the private placement will
not
take place or that BioSante’s product development activities will be more
expensive than contemplated and that BioSante’s cash balances will not be
sufficient to continue its current planned development activities for at least
the next 12 months. All
forward-looking statements speak only as of the date of this news release.
BioSante undertakes no obligation to update or revise any forward-looking
statement, whether as a result of new information, future events or
otherwise.
For
more information, please contact:
Phillip
B. Donenberg, CFO
847-478-0500
ext 101
donenber@biosantepharma.com