Amendment to General Statement of Beneficial Ownership — Schedule 13D Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: SC 13D/A Halozyme Therapeutics, Inc Sc13-D A 6-23-2008 HTML 141K
4: EX-4.1 Instrument Defining the Rights of Security Holders HTML 33K
2: EX-10.1 Material Contract HTML 35K
3: EX-99.1 Miscellaneous Exhibit HTML 11K
EX-4.1 — Instrument Defining the Rights of Security Holders
THE
SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED
UNLESS (i) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT
COVERING SUCH SECURITIES, (ii) THE SALE IS MADE IN ACCORDANCE WITH RULE 144
UNDER THE ACT, OR (iii) THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE
HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO THE COMPANY STATING THAT
SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT.
1. Number of Shares Subject to
Warrant. FOR VALUE RECEIVED, subject to the terms and
conditions herein set forth, Kirkfield, L.L.C. (the “Holder”), is entitled to
purchase from Halozyme Therapeutics, Inc., a Nevada corporation (the “Company”), at any time before
the termination of this Warrant pursuant to Section 3 hereof, at a price
per share equal to the Warrant Price (as defined below), the Warrant Stock (as
defined below) upon exercise of this Warrant pursuant to Section 7
hereof.
This
Warrant represents the remaining Warrant Stock exercisable from that certain
Callable Stock Purchase Warrant originally issued by Deliatroph Pharmaceuticals,
Inc. (the Company’s predecessor entity) to Bonanza Master Fund, LTD (“Bonanza”) on or about January28, 2004 (the “Original
Warrant”). On June 24, 2008 the Original Warrant was
transferred in whole by Bonanza to the Holder. The Company has previously
exercised its call rights under the Original Warrant on November 9, 2004, and
August 9, 2006, and this Warrant represents all available remaining shares
issuable to the Holder. The Original Warrant was one of a series of
warrants (the “Original
Warrants”) issued in connection with the January 2004 financing of
Deliatroph Pharmaceuticals, Inc. The Original Warrants, as well as
all replacement warrants issued in connection with the Company’s call right or
warrant exercises are collectively referred to herein as “Callable
Warrants.”
2. Definitions. As
used in this Warrant, the following terms shall have definitions ascribed to
them below:
(a) “Holder” shall mean Kirkfield,
L.L.C. or its assigns.
(b) “Warrant Price” shall be $1.75
per share.
(c) “Warrant Stock” shall mean
136,300 shares of the Common Stock of the Company.
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3.
Termination. This
Warrant shall terminate and no longer be exercisable at 5:00 p.m.,
California time, on January 28, 2009.
4. Fractional
Shares. No fractional shares shall be issuable upon exercise
or conversion of the Warrant and the number of shares to be issued shall be
rounded down to the nearest whole share. If a fractional share
interest arises upon any exercise or conversion of the Warrant, the Company
shall eliminate such fractional share interest by paying the Holder an amount
computed by multiplying the fractional interest by the fair market value of a
full share.
4A. Callable
Warrant. This warrant may be redeemed by the Company upon
thirty (30) days advance written notice “Notice of Redemption” to
Holder, for a price of $0.01 per share, provided that (i) a registration
statement with the Securities and Exchange Commission is then in effect as to
the shares of Common Stock underlying the Warrant and will be in effect as of a
date thirty (30) days from the date of giving the Notice of Redemption;
(ii) that for a period of twenty (20) trading days prior to the giving of
the Notice of Redemption the Common Stock has closed at a price of $2.00 per
share or higher; and (iii) that Callable Warrants, covering no more than an
aggregate of 1,913,100 shares of Common Stock underlying the Callable Warrants,
have been or will be called for redemption in the ninety (90) day period
proceeding or following the giving of the Notice of Redemption.
5. No Shareholder
Rights. This Warrant, by itself, as distinguished from any
shares purchased hereunder, shall not entitle the Holder to any of the rights of
a shareholder of the Company.
6. Reservation of
Stock. The Company will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the issuance
of Warrant Stock upon the exercise of this Warrant. Issuance of this
Warrant shall constitute full authority to the Company’s officers who are
charged with the duty of executing stock certificates to execute and issue the
necessary certificates for shares of Warrant Stock issuable upon the exercise or
conversion of this Warrant.
7.
Exercise of
Warrant. This Warrant may be exercised at any time prior to
its termination and prior to the expiration of the thirty (30) days Notice of
Redemption, in case the warrants have been called pursuant to 4A above, by the
surrender of this Warrant, together with the Notice of Exercise and the
Investment Representation Statement in the forms attached hereto as Attachments 1 and
2, respectively, duly completed and executed at the principal office of
the Company, specifying the portion of the Warrant to be exercised and
accompanied by payment in full of the Warrant Price in cash or by check with
respect to the shares of Warrant Stock being purchased. This Warrant
shall be deemed to have been exercised immediately prior to the close of
business on the date of its surrender for exercise as provided above, and the
person entitled to receive the shares of Warrant Stock issuable upon exercise
shall be treated for all purposes as Holder of such shares of record as of the
close of business on such date. As promptly as practicable after such
date, the Company shall issue and deliver to the person or persons entitled to
receive the same a certificate or certificates for the number of full shares of
Warrant Stock issuable upon such exercise. If the Warrant shall be
exercised for less than the total number of shares of Warrant Stock then
issuable upon exercise, promptly after surrender of the Warrant upon such
exercise, the Company will execute and deliver a new Warrant, dated the date
hereof, evidencing the right of the Holder to the balance of the Warrant Stock
purchasable hereunder upon the same terms and conditions set forth
herein.
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8. Adjustment of Exercise Price
and Number of Shares. The number of shares issuable upon
exercise of this Warrant (or any shares of stock or other securities or property
at the time receivable or issuable upon exercise of this Warrant) and the
Warrant Price therefor are subject to adjustment upon the occurrence of the
following events:
(a) Adjustment for Stock Splits,
Stock Dividends, Recapitalizations, etc. The Warrant Price and
the number of shares issuable upon exercise of this Warrant shall each be
proportionally adjusted to reflect any stock dividend, stock split, reverse
stock split, combination of shares, reclassification, recapitalization or other
similar event altering the number of outstanding shares of the Company’s capital
stock.
(b) Adjustment for Other
Dividends and Distributions. In case the Company shall make or
issue, or shall fix a record date for the determination of eligible holders
entitled to receive, a dividend or other distribution with respect to the shares
payable in securities of the Company then, and in each such case, the Holder, on
exercise of this Warrant at any time after the consummation, effective date or
record date of such event, shall receive, in addition to the Warrant Stock (or
such other stock or securities) issuable on such exercise prior to such date,
the securities of the Company to which such Holder would have been entitled upon
such date if such Holder had exercised this Warrant immediately prior thereto
(all subject to further adjustment as provided in this Warrant).
9. Adjustment for Capital
Reorganization, Consolidation or Merger. If any capital
reorganization of the capital stock of the Company, or any consolidation or
merger of the Company with or into another corporation, or the sale of all or
substantially all of the Company’s assets to another corporation shall be
effected in such a way that holders of the Company’s capital stock will be
entitled to receive stock, securities or assets with respect to or in exchange
for the Company’s capital stock, and in each such case the Holder, upon the
exercise of this Warrant, at any time after the consummation of such capital
reorganization, consolidation, merger, or sale, shall be entitled to receive, in
lieu of the stock or other securities and property receivable upon the exercise
of this Warrant prior to such consummation, the stock or other securities or
property to which such Holder would have been entitled upon such consummation if
such Holder had exercised this Warrant immediately prior to the consummation of
such capital reorganization, consolidation, merger, or sale, all subject to
further adjustment as provided in this Section 9; and in each such case, the
terms of this Warrant shall be applicable to the shares of stock or other
securities or property receivable upon the exercise of this Warrant after such
consummation.
10. “Market Stand-Off”
Agreement. The Holder agrees in connection with any
underwritten registration of the Company’s securities (other than a registration
of securities in a Rule 415 of the Securities Act of 1933, as amended, (“Securities Act”) transaction
or with respect to an employee benefit plan), upon request of the Company or the
underwriters managing any underwritten offering of the Company’s securities, not
to sell, make any short sale of, loan, pledge (or otherwise encumber or
hypothecate), grant any option for the purchase of, or otherwise directly or
indirectly dispose of any of its shares of Common Stock (other than those
included in the registration) without the prior written consent of the Company
and such managing underwriters for 180 days following the effective date of the
registration statement for such offering under the Securities Act; provided,
however, that such agreement shall not be required unless all officers and
directors of the Company enter into similar agreements, and provided further
that such agreement shall not be required with respect to shares underlying the
warrant if the warrant has been called for redemption under paragraph 4A within
30 days before or 180 days after the filing of the registration statement with
respect to such underwritten offering.
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11. Transfer of
Warrant. This Warrant may be transferred or assigned by the
Holder hereof in whole or in part, provided that the transferor provides, at the
Company’s request, an opinion of counsel satisfactory to the Company that such
transfer does not require registration under the Securities Act and the
securities law applicable with respect to any other applicable
jurisdiction.
12.
Amendments and
Waivers. This Warrant and any term hereof may only be amended,
waived, discharged or terminated by a written instrument signed by the Company
and the holders of at least 66 2/3% of the shares issuable upon exercise of the
Callable Warrants then outstanding.
13. Miscellaneous. This
Warrant shall be governed by the laws of the State of California, as such laws
are applied to contracts to be entered into and performed entirely in California
by California residents. The headings in this Warrant are for
purposes of convenience and reference only, and shall not be deemed to
constitute a part hereof. Neither this Warrant nor any term hereof
may be changed or waived orally, but only by an instrument in writing signed by
the Company and the Holder of this Warrant. All notices and other
communications from the Company to the Holder of this Warrant shall be
delivered, personally or mailed by first class mail, postage prepaid, to the
address furnished to the Company in writing by the last Holder of this Warrant
who shall have furnished an address to the Company in writing, and if mailed
shall be deemed given three days after deposit in the United States
mail.
1. The
undersigned hereby elects to purchase ________ shares of the Warrant Stock of
Halozyme Therapeutics, Inc. pursuant to the terms of the attached Warrant, and
tenders herewith payment of the purchase price in full, together with all
applicable transfer taxes, if any.
2. Please
issue a certificate or certificates representing said shares of Warrant Stock in
the name of the undersigned or in such other name as is specified
below:
____________________________________ (Name)
____________________________________
(Address)
(Date)
(Authorized
Signature of Warrant Holder)
Attachment
2
INVESTMENT
REPRESENTATION STATEMENT
Shares
of Warrant Stock (as defined in the attached Warrant) of
HALOZYME
THERAPEUTICS, INC.
In connection with the purchase of the
above-listed securities, the undersigned hereby represents to Halozyme
Therapeutics, Inc. (the “Company”) as
follows:
(a) The
securities to be received upon the exercise of the Warrant (the “Warrant Stock”) will be
acquired for investment for its own account; not as a nominee or agent, and not
with a view to the sale or distribution of any part thereof, and the undersigned
has no present intention of selling, granting participation in or otherwise
distributing the same, but subject, nevertheless, to any requirement of law that
the disposition of its property shall at all times be within its
control. By executing this Statement, the undersigned further
represents that it does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer, or grant participation to such
person or to any third person, with respect to any Warrant Stock issuable upon
exercise of the Warrant.
(b) The
undersigned understands that the Warrant Stock issuable upon exercise of the
Warrant at the time of issuance may not be registered under the Securities Act,
and applicable state securities laws, on the ground that the issuance of such
securities is exempt pursuant to Section 4(2) of the Securities Act and
state law exemptions relating to offers and sales not by means of a public
offering, and that the Company’s reliance on such exemptions is predicated on
the undersigned’s representations set forth herein. If the Warrant
Stock is registered under the Securities Act at the time of exercise, the
undersigned represents that it will sell the Warrant Stock in accordance with
the terms of such registration statement or in accordance with some other
applicable exemption from registration.
(c) The
undersigned acknowledges that an investment in the Company is highly speculative
and represents that it is able to fend for itself in transactions of this type,
has such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of its investments, and has the
ability to bear the economic risks (including the risk of a total loss) of its
investment.
(d) The
undersigned acknowledges that the Warrant Stock issuable upon exercise of the
Warrant must be held indefinitely unless registered under the Securities Act or
an exemption from such registration is available. The undersigned is
aware of the provisions of Rule 144 promulgated under the Securities Act
which permit limited resale of shares purchased in a private placement subject
to the satisfaction of certain conditions, including, among other things, the
availability of certain current public information about the Company, certain
holding periods for the security to be sold, certain manner of sale restrictions
and certain volume of sale restrictions.
(Date)
(Authorized
Signature of Warrant Holder)
Dates Referenced Herein and Documents Incorporated by Reference
