Exhibit 4.1
HORIZON PHARMA, INC.
WARRANT TO PURCHASE COMMON STOCK
Warrant No.: 2012-[ ]
Number of Shares of Common Stock:
[ ] (subject to adjustment)
Exercise Price: $4.57 per share (subject to adjustment) (
“Exercise Price”
)
Date of Issuance: September [ ], 2012 (
“Issuance Date”
)
Expiration Date: September [ ], 2017 (
“Expiration Date”
)
THIS CERTIFIES THAT
, for value received,
[ ]
, or permitted assigns (the
“Holder”
), is entitled to subscribe for and purchase at the Exercise
Price (defined above) from Horizon Pharma, Inc., a Delaware corporation, with its principal office at 520 Lake Cook Road, Suite 520, Deerfield, Illinois 60015 (the
“Company”
) up to
[ ]
shares of the Common Stock of the Company (the
“Common Stock”
), subject to adjustment as
provided herein.
1. DEFINITIONS.
As used herein, the following terms shall have the following respective meanings:
(a)
“Exercise Period”
shall mean the period commencing on the Issuance Date and ending at 5:30 p.m., New
York time, on the Expiration Date.
(b)
“Exercise Shares”
shall mean the shares of the
Company’s Common Stock issued or issuable upon exercise of this Warrant, subject to adjustment pursuant to the terms herein, including but not limited to adjustment pursuant to Section 4 below.
(c)
“Person”
means an individual, a limited liability company, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization, any other entity and a government or any department or agency thereof.
(d)
“Trading Day”
means any day on which the Common Stock is traded on the The Nasdaq Global Market or The
Nasdaq Capital Market, or, if such markets are not the principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common Stock is then traded.
(e)
“Warrant Agent”
means Computershare Shareowner Services, LLC, with an address at 480 Washington
Boulevard, Jersey City, New Jersey 07310, Attn: Cory McQuillen (or such successor Warrant Agent as the Company may designate by notice in writing to the Holder).
2. EXERCISE OF WARRANT.
2.1
Method of Exercise.
The rights
represented by this Warrant may be exercised in whole or in part at any time during the Exercise Period, by delivery of the following to the Company at its address set forth above (or at such other address as it may designate by notice in writing to
the Holder):
(a)
An executed Notice of Exercise in the form attached hereto; and
(b)
Payment of the aggregate Exercise Price either (i) in cash or by check or wire transfer of immediately available funds,
or (ii) pursuant to a cashless exercise, if available, as described below.
The conditions set forth in clauses (a) and
(b) above are collectively referred to as the
“Exercise Conditions”
.
No ink-original Notice of
Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise form be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically
surrender this Warrant to the Company until the Holder has purchased all of the Exercise Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation
within three (3) Trading Days of the date the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Exercise Shares
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available hereunder shall have the effect of lowering the outstanding number of Exercise Shares purchasable hereunder in an amount equal to the applicable number of Exercise Shares purchased. The
Holder and the Company shall maintain records showing the number of Exercise Shares purchased and the date of such purchases.
The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of
this paragraph, following the purchase of a portion of the Exercise Shares hereunder, the number of Exercise Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
2.2
Cashless Exercise.
Notwithstanding any provisions herein to the contrary, if, at the time this Warrant is exercised,
(a) there is no effective registration statement registering, or the prospectus contained therein is not available for, the issuance of the Exercise Shares to the Holder, (ii) all of the Exercise Shares are not then registered for resale
by the Holder into the market at market prices from time to time on an effective registration statement for use on a continuous basis (or the prospectus contained therein is not available for use) and (iii) the Current Market Price (as defined
below) of one share of Common Stock is greater than the Exercise Price (at the date of calculation as set forth below), then in lieu of exercising this Warrant by payment of cash, the Holder may exercise this Warrant by a cashless exercise by
surrender of this Warrant at the principal office of the Company (or at such other address as it may designate by notice in writing to the Holder) together with the properly endorsed Notice of Exercise and the Company shall issue to the Holder a
number of shares of Common Stock computed using the following formula:
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X =
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Y (B-A)
B
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Where:
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X =
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the number of shares of Common Stock to be issued to the Holder.
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Y =
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the number of shares of Common Stock purchasable upon exercise of all of the Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being
exercised.
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A =
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the Exercise Price.
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B =
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the Current Market Price of one share of Common Stock.
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“Current Market Price”
means on any particular date:
(a)
if the Common Stock is traded on The Nasdaq Global Market or The Nasdaq Capital Market, the closing price of the Common Stock
of the Company on such market on the Trading Day prior to the applicable date of valuation;
(b)
if the Common Stock is
traded on any registered national stock exchange but is not traded on The Nasdaq Global Market or The Nasdaq Capital Market, the closing price of the Common Stock of the Company on such exchange on the Trading Day prior to the applicable date of
valuation;
(c)
if the Common Stock is traded over-the-counter, but not on The Nasdaq Global Market, The Nasdaq Capital
Market or a registered national stock exchange, the closing bid price of the Common Stock of the Company on the day prior to the applicable date of valuation; and
(d)
if there is no active public market for the Common Stock, the value thereof, as determined in good faith by the Board of Directors of the Company upon due consideration of the proposed
determination thereof by the Holder.
2.3
Exercise Limitation.
Anything to the contrary in this Warrant
notwithstanding, the Company shall not effect the exercise of this Warrant, and the Holder shall not have the right to exercise this Warrant, to the extent that after giving effect to such exercise, such Holder (together with such Holder’s
affiliates and any other Persons acting as a group together) would beneficially own in excess of 4.99% (the
“Maximum Percentage”
) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For
purposes of the foregoing sentence, the aggregate number of
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shares of Common Stock beneficially owned by such Person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which the
determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised portion of this Warrant beneficially owned by such Person and its affiliates and
(ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such Person and its affiliates (including, without limitation, any convertible notes or convertible preferred
stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance
with Section 13(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”
), it being acknowledged that the Company is not representing to the Holder that such calculation is in compliance with
Section 13(d) of the Exchange Act, and the Holder is solely responsible for any schedules required to be filed in accordance therewith. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, the Holder
may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Proxy Statement, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange
Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. For any reason at any time,
upon the written or oral request of the Holder, where such request indicates that it is being made pursuant to this Warrant, the Company shall within two Trading Days confirm orally and in writing to the 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 the Warrants, by the Holder and its affiliates since the
date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the Holder may increase or decrease the Maximum Percentage to any other percentage not in excess of 9.99% specified in such notice;
provided
, that (i) any such increase will not be effective until the 61
st
day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to the particular Holder delivering the notice and not to any subsequent holder of this
Warrant.
2.4 [Reserved]
2.5
No Settlement for Cash.
Except as provided in Section 4.3, this Warrant cannot be settled with the Company for cash.
2.6
Delivery of Shares.
Exercise Shares acquired hereunder shall be delivered to the Holder within three Trading Days after
the date on which this Warrant shall have been validly exercised pursuant to the Exercise Conditions. On or before the first Trading Day following the date on which the Exercise Notice is delivered, the Company shall transmit by email or facsimile
an acknowledgment of confirmation of receipt of the Exercise Notice and the aggregate Exercise Price (if applicable) to the Holder and the Company’s transfer agent for the Common Stock (the
“
Transfer
Agent
”
). The Company shall deliver any objection to the proper satisfaction of the Exercise Conditions on or before the first Trading Day following the date on which the Company has received the Exercise Notice. In the event of
any discrepancy or dispute, the records of the Company shall be controlling and determinative in the absence of manifest error. On or before the third Trading Day following the date on which the Exercise Conditions have been satisfied (the
“Share Delivery Date”
), the Company shall, upon the request of the Holder, credit such aggregate number of shares of Common Stock to which the Holder is entitled pursuant to such exercise to the Holder’s or its
designee’s balance account with The Depository Trust Company (
“DTC”
) through its Deposit Withdrawal Agent Commission system, or if the Transfer Agent is not participating in the Fast Automated Securities Transfer Program
(the
“
FAST Program
”
) or if the certificates are required to bear a legend regarding restriction on transferability, issue and dispatch by overnight courier to the address as specified in the Exercise Notice, a
certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of shares of Common Stock to which the Holder is entitled pursuant to such exercise. Upon satisfaction of the Exercise Conditions
and surrender of this Warrant (if required), the Holder shall be deemed for all corporate purposes to have become the holder of record of the Exercise Shares with respect to which this Warrant has been exercised, irrespective of the date such
Exercise Shares are credited to the Holder’s DTC account or the date of delivery of the certificates evidencing such Exercise Shares, as the case may be.
2.7
Failure to Deliver Exercise Shares
. If the Company fails to cause the Transfer Agent to transmit to the Holder the Exercise Shares pursuant to Section 2.6 by the end of the Share
Delivery Date, then the Holder will have the right to rescind such exercise prior to the delivery of the Exercise Shares. If the Company fails to deliver to the Holder Exercise Shares pursuant to Section 2.6 by the end of the Share Delivery
Date, and the Holder or the Holder’s brokerage firm
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thereafter (but before delivery of the Exercise Shares) purchases shares of the same class and series as the Exercise Shares to deliver in satisfaction of a sale by the Holder of the Exercise
Shares which the Holder anticipated receiving upon such exercise (a
“Buy-In”
), the Company shall (A) pay in cash to the Holder the amount by which,
(i)
the Holder’s total purchase price (including brokerage commissions, if any) for the shares so purchased, exceeds
(ii)
the amount obtained by multiplying (1) the number of Exercise Shares that the Company was required to
deliver to the Holder in connection with the exercise, by (2) the price at which the sell order giving rise to such purchase obligation was executed, and
(B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Exercise Shares for which such exercise was not honored (in which case such exercise shall be deemed
rescinded) 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.
The Holder shall provide the Company prompt written notice indicating the amounts payable to the Holder in respect of any Buy-In, together with applicable confirmations and other evidence reasonably
requested by the Company (a
“Buy-In Notice”
). The Company shall pay the amounts payable to the Holder in respect of any Buy-In within three Trading Days after the Company’s receipt of the Buy-In Notice.
3. COVENANTS OF THE COMPANY.
3.1
Covenants as to Exercise Shares.
The Company covenants and agrees that it will at all times during the Exercise Period, have authorized and reserved, free from preemptive rights, a
sufficient number of shares of its Common Stock to provide for the exercise of the rights represented by this Warrant. All Exercise Shares will, upon issuance, be validly issued and outstanding, fully paid and nonassessable, and free from all taxes,
liens and charges with respect to the issuance thereof. If at any time during the Exercise Period the number of authorized but unissued shares of Common Stock shall not be sufficient to permit exercise of this Warrant, the Company will take such
corporate action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued shares of Common Stock (or other securities as provided herein) to such number of shares as shall be sufficient for such purposes.
3.2
No Impairment
. Except and to the extent as waived or consented to by the Holder, the Company will not, by
amendment of its Certificate of Incorporation (as such may be amended from time to time), or through any means, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will
at all times in good faith assist in the carrying out of all the provisions of this Warrant and in the taking of all such action as may be necessary or appropriate in order to protect the exercise rights of the Holder against impairment.
4. CERTAIN ADJUSTMENTS.
4.1
Subdivisions, Combinations and Other Issuances.
In the event the Company pays a dividend in Common Stock or makes a
distribution in Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock to holders of its outstanding Common Stock; subdivides its outstanding Common Stock into a greater number of shares; combines its
outstanding Common Stock into a smaller number of shares; or issues any shares of its capital stock in a reclassification of the Common Stock, the number and class of shares available under this Warrant in the aggregate and the Exercise Price shall
be correspondingly adjusted to give the Holder of this Warrant, on exercise for the same aggregate Exercise Price, the total number, class, and kind of shares as the Holder would have owned had this Warrant been exercised prior to the event and had
the Holder continued to hold such shares until after the event requiring adjustment. The form of this Warrant need not be changed because of any adjustment in the number, class, and kind of shares subject to this Warrant. Upon request, the Company
shall promptly provide to the Holder a certificate from its Chief Financial Officer, which certificate shall specify the Exercise Price and number, class and kind of shares under this Warrant after giving effect to such adjustment.
4.2
Pro Rata Distributions.
If the Company, at any time while this Warrant is outstanding, distributes to holders of Common
Stock (i) evidences of its indebtedness, (ii) any security (other than a distribution of Common Stock
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subject to Section 4.1), (iii) rights or warrants to subscribe for or purchase any security, or (iv) any other asset (in each case,
“Distributed Property”
),
then in each such case the Holder shall be entitled upon exercise of this Warrant for the purchase of any or all of the Exercise Shares, to receive the amount of Distributed Property which would have been payable to the Holder had such Holder been
the holder of such Exercise Shares on the record date for the determination of stockholders entitled to such Distributed Property. The Company will at all times set aside and keep available for distribution to the Holder upon exercise of this
Warrant a portion of the Distributed Property to satisfy the distribution to which such Holder is entitled pursuant to the preceding sentence.
4.3
Fundamental Transactions.
If the Company consummates (i) a merger or consolidation with or into another entity, as a result of which the holders of the Company’s outstanding
voting securities as of immediately prior to such merger or consolidation hold less than a majority of the outstanding voting securities of the surviving or successor entity as of immediately after such merger or consolidation or (ii) a sale,
transfer or other disposition of all or substantially all its property, assets or business to another person or entity (any such transaction being hereinafter referred to as a
“Fundamental Transaction”
), then the Company
shall ensure that lawful and adequate provision shall be made whereby the Holder shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions herein specified and in lieu of the Exercise Shares immediately
theretofore issuable upon exercise of this Warrant, such shares of stock, securities or assets as would have been issuable or payable with respect to or in exchange for a number of Exercise Shares equal to the number of Exercise Shares immediately
theretofore issuable upon exercise of this Warrant, had such Fundamental Transaction not taken place. The provisions of this Section 4.3 shall similarly apply to successive consolidations, mergers, sales, transfers or other dispositions.
5.
FRACTIONAL SHARES.
No fractional shares shall be issued upon the exercise of this Warrant as a consequence of any adjustment
pursuant hereto. All Exercise Shares (including fractions) issuable upon exercise of this Warrant may be aggregated for purposes of determining whether the exercise would result in the issuance of any fractional share. If, after aggregation, the
exercise would result in the issuance of a fractional share, the Company shall, in lieu of issuance of any fractional share, pay the Holder otherwise entitled to such fraction a sum in cash equal to the product resulting from multiplying the then
Current Market Price of an Exercise Share by such fraction.
6.
NO STOCKHOLDER RIGHTS.
This Warrant in and of itself shall not
entitle the Holder to any voting rights or other rights as a stockholder of the Company.
7. REGISTRATION, TRANSFER AND REISSUANCE.
7.1 Registration
.
The Company or the Warrant Agent shall register this Warrant, upon the records to be
maintained by the Company or the Warrant Agent for that purpose (the
“Warrant Register”
), in the name of the record Holder hereof from time to time. The Company and the Warrant Agent 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. The Company or the Warrant Agent shall also register any
transfer, exchange, reissuance or cancellation of any portion of this Warrant in the Warrant Register.
7.2
Transfer.
This Warrant may be offered for sale, sold, transferred or assigned without the consent of the Company, except as may otherwise be required by applicable securities laws. Subject to applicable securities laws, if this Warrant is
to be transferred, the Holder shall surrender this Warrant to the Warrant Agent, together with all applicable transfer taxes, whereupon the Company will cause the Warrant Agent to, forthwith issue and deliver upon the order of the Holder a new
Warrant (in accordance with Section 7.4), registered as the Holder may request, representing the right to purchase the number of Exercise Shares being transferred by the Holder and, if less then the total number of Exercise Shares then
underlying this Warrant is being transferred, a new Warrant (in accordance with Section 7.4) to the Holder representing the right to purchase the number of Exercise Shares not being transferred. 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 in respect of the new Warrant that the Holder has in respect of this Warrant.
7.3
Lost, Stolen, Mutilated or Destroyed Warrant.
If this Warrant is lost, stolen, mutilated or destroyed, the Company may,
on such terms as to indemnity or otherwise as it may reasonably impose (which shall, in the case of a mutilated Warrant, include the surrender thereof to the Warrant Agent), cause the Warrant Agent to issue a new Warrant of like denomination and
tenor as the Warrant so lost, stolen, mutilated or destroyed.
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7.4
Issuance of New Warrants.
Whenever the Company or the Warrant Agent, as
directed by the Company, is required to issue a new Warrant pursuant to the terms of this Warrant, such new Warrant shall (a) be of like tenor with this Warrant, (b) represent, as indicated on the face of such new Warrant, the right to
purchase the Exercise Shares then underlying this Warrant (or in the case of a new Warrant being issued pursuant to Section 7.2 or Section 7.3, the Exercise Shares designated by the Holder which, when added to the number of shares of
Common Stock underlying the other new Warrants issued in connection with such issuance, does not exceed the number of Exercise Shares then underlying this Warrant), (c) have an issuance date, as indicated on the face of such new Warrant which
is the same as the Issuance Date and (d) have the same rights and conditions as this Warrant.
8.
MODIFICATIONS AND WAIVER.
This Warrant and any provision hereof may be waived, modified or amended only by an instrument in writing signed by the Company and the Holder.
9.
NOTICES, ETC.
All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon
personal delivery to the party to be notified, (b) when sent by confirmed email, telex or facsimile if sent during normal business hours of the recipient, if not, then on the next business day, (c) five days after having been sent by
registered or certified mail, return receipt requested, postage prepaid, or (d) one business day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All
communications shall be sent to the Company at the address listed on the signature page and to the Holders at the addresses on the Company records, or at such other address as the Company or Holder may designate by ten days’ advance written
notice to the other party hereto.
10.
ACCEPTANCE.
Receipt of this Warrant by the Holder shall constitute acceptance of and
agreement to all of the terms and conditions contained herein.
11.
GOVERNING LAW.
This Warrant and all rights, obligations and
liabilities hereunder shall be governed by the laws of the State of New York without regard to the principles of conflict of laws.
12.
DESCRIPTIVE HEADINGS.
The descriptive headings of the several paragraphs of this Warrant are inserted for convenience only and do not constitute a part of this Warrant. The language in this Warrant shall be construed as to its fair meaning
without regard to which party drafted this Warrant.
13.
SEVERABILITY.
The invalidity or unenforceability of any provision of
this Warrant in any jurisdiction shall not affect the validity or enforceability of such provision in any other jurisdiction, or affect any other provision of this Warrant, which shall remain in full force and effect.
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.
ENTIRE AGREEMENT.
This Warrant constitutes the entire agreement between the parties pertaining to the subject matter contained in it
and supersedes all prior and contemporaneous agreements, representations, and undertakings of the parties, whether oral or written, with respect to such subject matter.
[Signature Page Follows]
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IN WITNESS WHEREOF
, the Company has caused this Warrant to be executed by its duly
authorized officer.
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H
ORIZON
P
HARMA
, I
NC
.
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By:
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Name:
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Title:
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Address:
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520 Lake Cook Road, Suite 520
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Deerfield, Illinois 60015
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Attention: Chief Executive Officer
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Fax: (847) 572-1372
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NOTICE OF EXERCISE
TO: HORIZON PHARMA, INC.
1.
The undersigned hereby elects to purchase
Exercise Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and
tenders herewith payment of the aggregate Exercise Price in full, together with all applicable transfer taxes, if any.
2.
Payment shall take the form of (check applicable box):
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in lawful money of the United States; or
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[if permitted] the cancellation of such number of Exercise Shares as is necessary, in accordance with the formula set forth in Section 2.2, to exercise this
Warrant with respect to the number of Exercise Shares being purchased pursuant to the cashless exercise procedure set forth in Section 2.2.
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3.
Please issue a certificate or certificates representing said Exercise Shares in the name of the undersigned or in such other name as is specified below:
The Exercise Shares shall be delivered to the following DWAC Account Number or by
physical delivery of a certificate to:
4.
By its delivery of this Exercise Notice, the undersigned represents and
warrants to the Company that in giving effect to the exercise evidenced hereby the Holder will not beneficially own in excess of the number of shares of Common Stock (determined in accordance with Section 13(d) of the Securities Exchange Act of
1934, as amended) permitted to be owned under Section 2.3 of the Warrant to which this notice relates.
DATED:
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(Signature must conform in all respects to name of the Holder as specified on the face of the Warrant)
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Registered Holder
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By:
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Name:
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Title:
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ASSIGNMENT FORM
(To assign the foregoing Warrant execute this form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED
, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name:
(Please Print)
Address:
(Please Print)
Dated:
, 201
Holder’s
Signature:
Holder’s
Address:
NOTE
: The signature to this Assignment Form must correspond with the name as it appears on the face of the Warrant, without alteration or
enlargement or any change whatever. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Warrant.
Exhibit 5.1
Sean M. Clayton
T: +1 858 550 6034
sclayton@cooley.com
September 20, 2012
Horizon Pharma, Inc.
520 Lake Cook Road, Suite 520
Deerfield, IL 60015
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection with the issuance by Horizon Pharma, Inc., a Delaware corporation
(the “
Company
”), of up to 24,638,750 shares of the Company’s common stock, par value $0.0001 (the “
Shares
”), and warrants (the “
Warrants
”) to purchase up to 12,319,375
shares of the Company’s common stock (the “
Warrant Shares
”), including up to 3,213,750 Shares and Warrants to purchase up to 1,606,875 Warrant Shares that may be sold pursuant to the exercise of an overallotment option,
pursuant to a Registration Statement on Form S-3 (Registration No. 333-182975) (the
“Registration Statement”
) filed with the Securities and Exchange Commission (the
“Commission”
) under the
Securities Act of 1933, as amended (the
“Act”
), the prospectus filed with the Commission on August 9, 2012 and related to the Registration Statement (the “
Base Prospectus
”) and the prospectus
supplement dated September 20, 2012, filed with the Commission pursuant to Rule 424(b) promulgated under the Act (the “
Prospectus Supplement
”). The Base Prospectus and the Prospectus Supplement are collectively referred to as
the “
Prospectus
.” The Shares and Warrants are to be issued by the Company as described in the Registration Statement and the Prospectus.
In connection with this opinion, we have examined and relied upon the Registration Statement, the Prospectus, the form of Warrant, the Company’s Amended and Restated Certificate of Incorporation, its
Amended and Restated Bylaws, the Underwriting Agreement, dated September 20, 2012, by and among the Company, Cowen and Company, LLC, JMP Securities LLC, and Stifel, Nicolaus & Company, Incorporated (the
“Agreement”
),
and the originals or copies certified to our satisfaction of such records, documents, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed
the genuineness and authenticity of all documents submitted to us as originals; the conformity to originals of all documents submitted to us as copies; the accuracy, completeness and authenticity of certificates of public officials; and the due
authorization, execution and delivery of all documents where due authorization, execution and delivery are a prerequisite to the effectiveness thereof.
Our opinion is expressed only with respect to the federal laws of the United States of America, the General Corporation Law of the State of Delaware and, as to the Warrants constituting valid and legally
binding obligations of the Company, with respect to the laws of the State of New York. Our opinion is based on these laws as in effect on the date hereof. We express no opinion to the extent that the laws of any particular jurisdiction other than
those identified above are applicable to the subject matter hereof.
4401 EASTGATE MALL, SAN DIEGO, CA 92121 T:
(858) 550-6000 F: (858) 550-6420 WWW.COOLEY.COM
Horizon Pharma, Inc.
September 20, 2012
Page Two
With respect to the Warrant Shares, we express no opinion to the extent that, notwithstanding its current reservation of shares of common stock, future issuances of securities, including the Warrant
Shares, of the Company and/or adjustments to outstanding securities, including the Warrants, of the Company may cause the Warrants to be exercisable for more shares of common stock than the number that remain authorized but unissued. Further, we
have assumed the Exercise Price (as defined in the Warrants) will not be adjusted to an amount below the par value per share of the Company’s common stock.
On the basis of the foregoing, and in reliance thereon, we are of the opinion that (i) the Shares, when issued in accordance with the Registration Statement, the Prospectus and the Agreement, will be
validly issued, fully paid and nonassessable, (ii) provided that the Warrants have been duly executed and delivered by the Company and duly delivered to the purchasers thereof against payment therefor, the Warrants, when issued and sold as
contemplated in the Registration Statement, the Prospectus and the Agreement, will be valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited
by bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance, debtor and creditor, and similar laws which relate to or affect creditors’ rights generally, and by general principles of equity (including without limitation,
concepts of materiality, reasonableness, good faith and fair dealing) regardless of whether considered in a proceeding in equity or at law, and (iii) the Warrant Shares, when issued and paid for in accordance with the terms of the Warrants,
will be validly issued, fully paid and nonassessable.
We consent to the reference to our firm under the caption “Legal Matters” in
the Prospectus and to the filing of this opinion as an exhibit to a Current Report on Form 8-K to be filed with the Commission for incorporation by reference into the Registration Statement.
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Very truly yours,
Cooley
LLP
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By:
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/s/ Sean M. Clayton
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Sean M. Clayton
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4401 EASTGATE MALL, SAN DIEGO, CA 92121 T: (858) 550-6000 F: (858) 550-6420 WWW.COOLEY.COM
Exhibit 99.2
Horizon Pharma Prices $75 Million Public Offering of Common Stock and
Warrants to Purchase Common Stock
Deerfield, Ill.—
September 20, 2012
—
Horizon Pharma, Inc. (NASDAQ: HZNP) announced today the pricing of an underwritten public offering of 21,425,000 units, with each unit consisting
of one share of its common stock and a warrant to purchase 0.5 of a share of its common stock. The shares of common stock and warrants are being offered at a combined price to the public of $3.50 per unit. The gross proceeds to Horizon from this
offering are expected to be approximately $75 million, before deducting underwriting discounts and other offering expenses payable by Horizon. The warrants will be exercisable at $4.57 per share and will expire five years from the date of issuance.
The shares of common stock and warrants are immediately separable and will be issued separately. Horizon has granted the underwriters a 30-day option to purchase up to an aggregate of 3,213,750 additional shares of common stock and warrants to
purchase 1,606,875 shares of common stock to cover overallotments, if any. All of the units in the offering are being sold by Horizon. The offering is expected to close on or about September 25, 2012, subject to customary closing conditions. Horizon
expects to use the net proceeds from the offering primarily to fund ongoing commercialization activities for
DUEXIS
®
and RAYOS
®
, as well as for general corporate purposes.
Cowen and
Company, LLC, JMP Securities LLC and Stifel Nicolaus Weisel are acting as joint book-running managers for the offering.
The securities
described above are being offered by Horizon pursuant to a shelf registration statement previously filed with and declared effective by the Securities and Exchange Commission (the “SEC”). A final prospectus supplement related to the
offering will be filed with the SEC and will be available on the SEC’s website located at http://www.sec.gov. Copies of the final prospectus supplement and the accompanying prospectus relating to this offering, when available, may be obtained
from Cowen and Company, LLC (c/o Broadridge Financial Services) at 1155 Long Island Avenue, Edgewood, NY, 11717, Attn: Prospectus Department, or by calling (631) 274-2806, from JMP Securities LLC at 600 Montgomery Street, 10th Floor, San
Francisco, California 94111, Attn: Prospectus Department, by emailing
ccornell@jmpsecurities.com
, or by calling (415) 835-8985, or from Stifel, Nicolaus & Company, Incorporated at One Montgomery Street, Suite 3700, San
Francisco, CA 94104, or by calling (415) 364-2720.
This press release shall not constitute an offer to sell or the solicitation of an
offer to buy these securities, nor shall there be any sale of these securities in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any
such state or other jurisdiction.
520 Lake Cook Road, Suite 520 Deerfield, IL 60015
About Horizon Pharma
Horizon Pharma, Inc. (NASDAQ: HZNP) is a biopharmaceutical company that is developing and commercializing innovative medicines to target unmet therapeutic needs in arthritis, pain and inflammatory
diseases. For more information, please visit
www.horizonpharma.com
.
Forward Looking Statements
This press release contains “forward-looking statements,” including those relating to Horizon’s expectations with respect to the
completion, timing and size of the offering, the expected gross proceeds from the offering and its anticipated use of proceeds from the offering. Actual results may differ materially from those set forth in this press release due to the risks and
uncertainties associated with market conditions and the satisfaction of customary closing conditions related to the offering, as well as those inherent in Horizon’s business and financial condition, including, without limitation, risks
regarding Horizon’s ability to commercialize products successfully, changes in Horizon’s strategy as to when to launch RAYOS in the United States and on which approved indications it will focus its initial commercial efforts, whether
physicians will prescribe and patients will use Horizon’s products, competition in the market for Horizon’s products, unexpected future requirements for cash resources, the possibility of early maturity of Horizon’s senior secured
debt facility or requirements to prepay all or part of the outstanding balance of the debt facility, Horizon’s ability to comply with the covenants and obligations under the debt facility and other risks detailed in the “Risk Factors”
section of the final prospectus supplement related to the offering and Horizon’s reports with the SEC, including in its Quarterly Report on Form 10-Q for the quarter ended June 30, 2012. Horizon undertakes no obligation to revise or update
information herein to reflect events or circumstances in the future, even if new information becomes available.
###
Contacts
Robert J. De
Vaere
Executive Vice President and Chief Financial Officer
investor-relations@horizonpharma.com
Media
Geoff Curtis
DJE Science
312-550-8138
geoff.curtis@djescience.com
Investors
Kathy Galante
Burns McClellan, Inc.
212-213-0006
kgalante@burnsmc.com
520 Lake Cook Road, Suite 520 Deerfield, IL 60015