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):
June
13, 2007
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))
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Section
1 — Registrant’s Business and
Operations
Item
1.01 Entry into a Material Definitive
Agreement
On
June
13, 2007, BioSante Pharmaceuticals, Inc. completed its previously announced
private placement of 3,054,999 shares of common stock and warrants to purchase
763,750 shares of common stock for an aggregate purchase price of approximately
$18.3 million, resulting in net proceeds to BioSante of approximately $17.3
million, after deduction of placement agent commissions and estimated offering
expenses. The purchase price per unit was $6.00 and each unit was
comprised of one share of BioSante’s common stock and a warrant to purchase 0.25
of a share of common stock. The warrants are exercisable for a period
of three years, beginning six months and one day from the date of issuance,
at
an exercise price of $8.00 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.
A
form of
the subscription agreement between BioSante and each of the investors was filed
as Exhibit 10.1 to BioSante’s Current Report on Form 8-K, as filed with the
Securities and Exchange Commission on May 25, 2007, and is incorporated herein
by reference. A form of the warrant issued by BioSante to each of the
investors in the private placement is being filed as Exhibit 10.2 to this
Current Report on Form 8-K and is incorporated herein by
reference. The foregoing description of the terms and conditions of
the warrants 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.
Item
9.01 Financial
Statements and Exhibits.
(d) Exhibits.
|
Exhibit
No.
|
Description
|
|
10.1
|
Form
of Subscription Agreement dated as of May 25, 2007 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 May 25, 2007 (File No.
001-31812)
|
|
10.2
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Form
of Warrant dated as of June 13, 2007 issued by BioSante Pharmaceuticals,
Inc. to each of the subscribers party to the Subscription Agreements
dated
as of May 25, 2007 (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: June
13, 2007
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 May 25, 2007 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 May 25, 2007 (File No. 001-31812)
|
|
10.2
|
Form
of Warrant dated as of June 13, 2007 issued by BioSante Pharmaceuticals,
Inc. to each of the subscribers party to the Subscription Agreements
dated
as of May 25, 2007
|
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
Date
of Original Issuance: June 13, 2007
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 $8.00 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
December 14, 2007 (the “Initial Exercise Date”) and through and
including December 13, 2010 (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 the Initial Exercise Date 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
if the
Holder makes certain representations as set forth in the Exercise Notice
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
fifth 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
second
business day following 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. If at any time after one year from the date of the
Purchase Agreement there is no effective registration statement registering,
or
no current prospectus available for, the resale of the Warrant Shares by
the
Holder, the Holder may notify the Company, during any such periods, 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]
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
BIOSANTE
PHARMACEUTICALS, INC.
WARRANT
ORIGINALLY ISSUED [ ],
2007
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 10(b), to exercise
this
Warrant with respect to the maximum number of Warrant Shares purchasable
pursuant to the cashless exercise procedure set forth in subsection
10(b).
(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.
(5) The
undersigned hereby agrees that it will sell the Warrant Shares issuable
in
connection with this Notice of Exercise pursuant to either the registration
requirements of the Securities Act of 1933, as amended, including any applicable
prospectus delivery requirements, or an exemption therefrom, and that if
Warrant
Shares are sold pursuant to a Registration Statement, they will be sold
in
compliance with the plan of distribution set forth therein, and the undersigned
hereby acknowledges that the removal of the restrictive legend from certificates
representing the Warrant Shares is predicated upon the Company's reliance
upon
this understanding and representation.
[SIGNATURE
OF HOLDER]
Name
of
Investing Entity:
Signature
of Authorized Signatory of Investing Entity:
Name
of
Authorized Signatory:
Title
of
Authorized Signatory:
Date:
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
|
BIOSANTE
PHARMACEUTICALS, INC.
WARRANT
ORIGINALLY ISSUED [ ],
2007
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:
__________________________