|
|
|
|
Document Preview Warrant Agreement |
||||
|
|
||||
|
Click "Add to Cart" button to purchase document. |
||||
|
|
||||
|
Title: |
Warrant Agreement |
|||
|
Entities: |
||||
|
Date: |
2003 |
|||
|
Size: |
Preview shows 9KB of 74KB total |
|||
|
Price: |
$53 |
|||
|
ID: |
#409084 |
|||
|
|
||||
|
||||
|
|
||||
|
Start of Preview |
||||
WARRANT AGREEMENT, dated as of October 7, 2003 (this
"Agreement"), between Akorn, Inc., a Louisiana corporation (the "Company"), and
The John N. Kapoor Trust dtd 9/20/89 (the "Initial Holder").
W I T N E S S E T H:
WHEREAS, La Salle Bank National Association requires the
personal guaranty of the Initial Holder (the "Guaranty") in order to provide to
the Company credit facilities (the "Credit Facilities") under the credit
agreement to be entered into among the Company, Akorn (New Jersey), Inc., La
Salle Bank National Association and the financial institutions that are or may
from time to time become parties thereto (as may be amended, the "Credit
Agreement"), and the Company desires to have the Initial Holder enter into that
Guaranty;
WHEREAS, in consideration for having the Initial Holder enter
into the Guaranty, the Company desires to grant to the Initial Holder warrants
to purchase shares of Common Stock (as defined below);
WHEREAS, this Agreement governs the issuance of the Warrant
Certificates (as defined below) and the other matters as provided herein,
including, without limitation, for the purpose of defining the terms and
provisions of the Warrants (as defined below) and the respective rights and
obligations thereunder of the Company and the Initial Holder together with any
subsequent record holders thereof (together with the holders of shares of Common
Stock (or other securities) received upon exercise thereof, the "Holders").
NOW, THEREFORE, in consideration of the foregoing and of the
mutual agreements contained herein, the Company and the Initial Holder hereby
agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
"Above Market Repurchase" means any purchase (by tender or
exchange offer, open market purchase, privately negotiated purchased or
otherwise) for all or any portion of the Company's Common Stock where such
purchase is for aggregate consideration having a Fair Market Value as of the
earlier (i) the date of such purchase or (ii) the date immediately prior to the
date of the public announcement of such purchase, that exceeds the product of
(x) the aggregate number of shares being purchased, multiplied by (y) the
Current Market Value of the Common Stock on such date.
1
{PAGE}
"Additional Shares" has the meaning specified in Section
4.1(a)(ii) hereof.
"Affiliate" of any specified Person means any other Person,
directly or indirectly, controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Available Shares" means the 12,883,000 shares of Common Stock
the Company currently has duly authorized and available to be reserved for
issuance upon exercise of the Warrants.
"Board" means the board of directors of the Company from time
to time.
"Business Day" means a day except a Saturday, Sunday or other
day on which commercial banks in The City of New York, are authorized by law to
close.
"Cashless Exercise" has the meaning specified in Section 3.3
hereof.
"Cashless Exercise Ratio" has the meaning specified in Section
3.3 hereof.
"Closing Date" means the date hereof.
"Common Stock" means the common stock, no par value per share,
of the Company, and any other capital stock of the Company into which such
Common Stock may be converted or reclassified or that may be issued in respect
of, in exchange for, or in substitution of, such Common Stock by reason of any
stock splits, stock dividends, distributions, mergers, consolidations or other
like events.
"Convertible Securities" means any options or warrants to
purchase or rights to subscribe for shares of Common Stock, securities by their
terms convertible into or exchangeable for shares of Common Stock, or options or
warrants to purchase or rights to subscribe for such convertible or exchangeable
securities.
"Credit Agreement" has the meaning specified in the recitals
to this Agreement.
"Credit Facilities" has the meaning specified in the recitals
to this Agreement.
"Current Market Value" has the meaning specified in Section
3.3 hereof.
"Exchange Act" means the United States Securities Exchange Act
2
{PAGE}
of 1934, as amended.
"Excluded Issuances" means the issuance or reissuance of any
shares of Common Stock or Convertible Securities (whether treasury shares or
newly issued shares) pursuant to or in connection with (1) a dividend or
distribution on, or subdivision, combination, consolidation or reclassification
of, the outstanding Common Stock requiring an adjustment in the Exercise Price
pursuant to Section 4(a)(i), (2) any Convertible Security outstanding as of the
Closing Date, including, without limitation, the Note Warrants and the Preferred
Stock Warrants (except as otherwise provided in Section 4.1(a)(iv)(5)(D)), (3)
the exercise of Warrants, (4) the grant or exercise of any stock or stock
options to employees, directors or consultants of the Company that may be
granted to or exercised by any employee, director or consultant under any stock
option or similar benefit plan of the Company now existing or to be implemented
in the future, (5) any transaction involving the Company's issuance of
securities in connection with an acquisition (the primary purpose of which is
not to raise equity capital), (6) any transaction involving the Company's
issuance of securities in connection with any strategic partnership or joint
venture (the primary purpose of which is not to raise equity capital), (7) any
issuance of securities by the Company as consideration for the acquisition of a
license by the Company, or (8) the issuance of securities pursuant to any
financing from a bank or similar financial or lending institution approved by
the Board; provided, however, that issuances of securities described in the
forgoing sub-clauses (4), (6), (7) and (8) subsequent to the Closing Date which
exceed, in the aggregate, 10% of the outstanding Common Stock of the Corporation
outstanding as of the Closing Date (as adjusted for any split, subdivision,
combination, consolidation, recapitalization or similar event with respect to
the Common Stock), as determined on a fully-diluted basis, shall not be deemed
to be Excluded Issuances.
"Exercise Date" means the date upon which a Holder exercises a
Warrant or Warrants in accordance with Section 3.2.
"Exercise Price" has the meaning specified in Section 3.1
hereof.
"Expiration Date" means for each Warrant, the third
anniversary of the Issue Date of such Warrant.
"Fair Market Value" with respect to any securities, assets or
property means the fair value thereof as determined by an independent investment
banking or appraisal firm experienced in the valuation of such securities or
property; provided that the value of any securities that trade on a national
securities exchange or inter-dealer quotation system shall be the Current Market
Value thereof as of the date such value is determined.
"Guaranty" has the meaning specified in the recitals to this
Agreement.
3
{PAGE}
"Holders" has the meaning specified in the recitals to this
Agreement.
"Issue Date" shall mean with respect to each Warrant, the date
of issuance of such Warrant.
"Laws" shall include all foreign, federal, state and local
laws, statutes, ordinances, rules, regulations, orders, judgments, decrees and
|
End of Preview |
Home Intelligence Services Subscriptions News About Us