exv4w08



 





EXHIBIT 4.08




GUILFORD PHARMACEUTICALS INC.




and




[            ], as Warrant Agent




FORM OF DEBT SECURITIES

WARRANT AGREEMENT




Dated as of




[            ]




 









 








GUILFORD PHARMACEUTICALS INC.




DEBT SECURITIES WARRANT AGREEMENT




     DEBT SECURITIES WARRANT AGREEMENT, dated as of              between
Guilford Pharmaceuticals Inc., a Delaware corporation (the “Company”) and
                      , a [corporation] [national banking association]
organized and existing under the laws of              and having a
corporate trust office in                  , as warrant agent (the
“Warrant Agent”).



     WHEREAS, the Company has entered into an indenture dated as of
             [(the “Senior Indenture”) with                   as
trustee (such trustee, and any successors to such trustee, herein called the
“Senior Trustee”), providing for the issuance from time to time of its
unsubordinated debt securities, to be issued in one or more series as provided
in the Senior Indenture (the “Debt Securities”);] [the “Subordinated
Indenture”), with             , as trustee (such trustee, and any
successors to such trustee, herein called the “Subordinated Trustee”),
providing for the issuance from time to time of its subordinated debt
securities, to be issued in one or more series as provided in the Subordinated
Indenture (the “Debt Securities”);]



     WHEREAS, the Company proposes to sell [If Warrants are sold with other
securities—title of such other Securities being offered] (the “Other
Securities”) with] warrant certificates evidencing one or more warrants (the
“Warrants” or, individually, a “Warrant”) representing the right to purchase
[title of Debt Securities purchasable through exercise of Warrants] (the
“Warrant Debt Securities”), such warrant certificates and other warrant
certificates issued pursuant to this Agreement being herein called the “Warrant
Certificates”; and



     WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, registration, transfer, exchange, exercise and replacement of the
Warrant Certificates, and in this Agreement wishes to set forth, among other
things, the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, registered, transferred, exchanged,
exercised and replaced;



     NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:



 









 





ARTICLE 1




ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT CERTIFICATES




     Section 1.1
Issuance of Warrants. [If Warrants alone—Upon issuance,
each Warrant Certificate shall evidence one or more Warrants.] [If Other
Securities and Warrants—Warrant Certificates shall be [initially] issued in
connection with the issuance of the Other Securities [but shall be separately
transferable on and after              (the “Detachable Date”)] [and shall
not be separately transferable] and each Warrant Certificate shall evidence one
or more Warrants.] Each Warrant evidenced thereby shall represent the right,
subject to the provisions contained herein and therein, to purchase one Warrant
Debt Security. [If Other Securities and Warrants—Warrant Certificates shall
be initially issued in units with the Other Securities and each Warrant
Certificate included in such a unit shall evidence              Warrants
for each [$             principal amount] [              shares] of Other
Securities included in such unit.].



     Section 1.2 Execution and Delivery of Warrant Certificates. Each Warrant
Certificate, whenever issued, shall be in registered form substantially in the
form set forth in Exhibit A hereto, shall be dated the date of its
countersignature by the Warrant Agent and may have such letters, numbers, or
other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the officers of the Company
executing the same may approve (execution thereof to be conclusive evidence of
such approval) and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange on which the Warrants may be listed, or to conform to
usage. The Warrant Certificates shall be signed on behalf of the Company by
any of its present or future chief executive officers, presidents, senior vice
presidents, vice presidents, chief financial officers, chief legal officers,
treasurers, assistant treasurers, controllers, assistant controllers,
secretaries or assistant secretaries under its corporate seal reproduced
thereon. Such signatures may be manual or facsimile signatures of such
authorized officers and may be imprinted or otherwise reproduced on the Warrant
Certificates. The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.



     No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
issued hereunder.



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     In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to
be such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates may
be countersigned and delivered notwithstanding that the person who signed
Warrant Certificates ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this
Agreement any such person was not such officer.



     The term “holder” or “holder of a Warrant Certificate” as used herein
shall mean any person in whose name at the time any Warrant Certificate shall
be registered upon the books to be maintained by the Warrant Agent for that
purpose [If Other Securities and Warrants are not immediately detachable—or
upon the registration of the Other Securities prior to the Detachable Date.
Prior to the Detachable Date, the Company will, or will cause the registrar of
the Other Securities to, make available at all times to the Warrant Agent such
information as to holders of the Other Securities as may be necessary to keep
the Warrant Agent’s records up to date].



     Section 1.3 Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase Warrant Debt Securities may be executed by the
Company and delivered to the Warrant Agent upon the execution of this Warrant
Agreement or from time to time thereafter. The Warrant Agent shall, upon
receipt of Warrant Certificates duly executed on behalf of the Company,
countersign such Warrant Certificates and shall deliver such Warrant
Certificates to or upon the order of the Company.



ARTICLE 2




WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS




     Section 2.1 Warrant Price. During the period specified in Section 2.2,
each Warrant shall, subject to the terms of this Warrant Agreement and the
applicable Warrant Certificate, entitle the holder thereof, to purchase the
principal amount of Warrant Debt Securities specified in the applicable Warrant
Certificate at an exercise price of             % of the principal amount thereof
[plus accrued amortization, if any, of the original issue discount of the
Warrant Debt Securities] [plus accrued interest, if any, from the most recent
date from which interest shall have been paid on the Warrant Debt
Securities, or, if no interest shall have been paid on the Warrant Debt
Securities, from the date of their initial issuance.] [The original issue
discount ($             for each $1,000 principal amount of Warrant



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Debt Securities) will be amortized at a             % annual rate, computed on a[n]
[semi-] annual basis [using a 360-day year consisting of twelve 30-day
months].] Such purchase price for the Warrant Debt Securities is referred to
in this Agreement as the “Warrant Price.”




     Section 2.2 Duration of Warrants. Each Warrant may be exercised in whole
or in part at any time, as specified herein, on or after [the date thereof]
[            ] and at or before [            ] p.m., [City] time, on             
or such later date as the Company may designate by notice to the Warrant Agent
and the holders of Warrant Certificates mailed to their addresses as set forth
in the record books of the Warrant Agent (the “Expiration Date”). Each Warrant
not exercised at or before [            ] p.m., [City] time, on the Expiration Date
shall become void, and all rights of the holder of the Warrant Certificate
evidencing such Warrant under this Agreement shall cease.



     Section 2.3 Exercise of Warrants.



     (a) During the period specified in Section 2.2, the Warrants may be
exercised to purchase a whole number of Warrant Debt Securities in registered
form by providing certain information as set forth on the reverse side of the
Warrant Certificate and by paying in full, in lawful money of the United States
of America, [in cash or by certified check or official bank check in New York
Clearing House funds] [by bank wire transfer in immediately available funds]
the Warrant Price for each Warrant Debt Security with respect to which a
Warrant is being exercised to the Warrant Agent at its corporate trust office,
provided that such exercise is subject to receipt within five business days of
such payment by the Warrant Agent of the Warrant Certificate with the form of
election to purchase Warrant Debt Securities set forth on the reverse side of
the Warrant Certificate properly completed and duly executed. The date on
which payment in full of the Warrant Price is received by the Warrant Agent
shall, subject to receipt of the Warrant Certificate as aforesaid, be deemed to
be the date on which the Warrant is exercised; provided, however, that if, at
the date of receipt of such Warrant Certificates and payment in full of the
Warrant Price, the transfer books for the Warrant Debt Securities purchasable
upon the exercise of such Warrants shall be closed, no such receipt of Warrant
Certificates and no such payment of such Warrant Price shall be effective to
constitute the person so designated to be named as the holder of record of such
Warrant Debt Securities on such date, but shall be effective to constitute such
person as the holder of record of such Warrant Debt Securities for all purposes
at the opening of business on the next succeeding day on which the transfer
books for the Warrant Debt Securities purchasable upon the exercise of such
Warrants shall be opened, and the certificates for the Warrant Debt Securities
in respect of which such Warrants are then exercised shall be issuable as
of the date on such next succeeding day on which the transfer books shall next
be opened, and until such date the Company shall be under no duty to deliver
any certificate for such Warrant Debt Securities. The Warrant Agent shall
deposit all



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funds received by it in payment of the Warrant Price in an account
of the Company maintained with it and shall advise the Company by telephone at
the end of each day on which a payment for the exercise of Warrants is received
of the amount so deposited to its account. The Warrant Agent shall promptly
confirm such telephone advice to the Company in writing.




     (b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company of (i) the number of Warrant Debt Securities
with respect to which Warrants were exercised, (ii) the instructions of each
holder of the Warrant Certificates evidencing such Warrants with respect to
delivery of the Warrant Debt Securities to which such holder is entitled upon
such exercise, (iii) delivery of Warrant Certificates evidencing the balance,
if any, of the Warrants for the remaining Warrant Debt Securities after such
exercise, and (iv) such other information as the Company or the [Senior]
[Subordinated] Trustee shall reasonably require.



     (c) As soon as practicable after the exercise of any Warrant, the Company
shall issue, pursuant to the Indenture, in authorized denominations, to or upon
the order of the holder of the Warrant Certificate evidencing such Warrant, the
Warrant Debt Securities to which such holder is entitled, in fully registered
form, registered in such name or names as may be directed by such holder. If
fewer than all of the Warrants evidenced by such Warrant Certificate were
exercised, the Company shall execute, and an authorized officer of the Warrant
Agent shall manually countersign and deliver, a new Warrant Certificate
evidencing Warrants for the number of Warrant Debt Securities remaining
unexercised.



     (d) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Debt Securities, and in the event that any
such transfer is involved, the Company shall not be required to issue or
deliver any Warrant Debt Securities until such tax or other charge shall have
been paid or it has been established to the Company’s satisfaction that no such
tax or other charge is due.



ARTICLE 3




OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF

WARRANT CERTIFICATES




     Section 3.1 No Rights as Holders of Warrant Debt Securities Conferred by
Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of
Warrant Debt Securities, including, without limitation, the right to receive



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the payment of principal of (or premium, if any) or interest, if any, on the
Warrant Debt Securities or to enforce any of the covenants in the Indenture.




     Section 3.2 Lost, Stolen, Mutilated or Destroyed Warrant Certificates.
Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it and
the Company of the ownership of and the loss, theft, destruction or mutilation
of any Warrant Certificate and/or indemnity reasonably satisfactory to the
Warrant Agent and the Company and, in the case of mutilation, upon surrender of
the mutilated Warrant Certificate to the Warrant Agent for cancellation, then,
in the absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing Warrants for a like principal amount of Warrant Debt
Securities. Upon the issuance of any new Warrant Certificate under this
Section 3.2, the Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Warrant Agent)
in connection therewith. Every substitute Warrant Certificate executed and
delivered pursuant to this Section 3.2 in lieu of any lost, stolen or destroyed
Warrant Certificate shall represent an additional contractual obligation of the
Company, whether or not the lost, stolen or destroyed Warrant Certificate shall
be at any time enforceable by anyone, and shall be entitled to the benefits of
this Agreement equally and proportionately with any and all other Warrant
Certificates duly executed and delivered hereunder. The provisions of this
Section 3.2 are exclusive and shall preclude (to the extent lawful) other
rights and remedies with respect to the replacement of mutilated, lost, stolen
or destroyed Warrant Certificates.



     Section 3.3 Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of any
Warrant Certificate, without the consent of the Warrant Agent, the [Senior]
[Subordinated] Trustee, the holder of any Warrant Debt Securities or the holder
of any other Warrant Certificate, may, in such holder’s own behalf and for such
holder’s own benefit, enforce, and may institute and maintain any suit, action
or proceeding against the Company suitable to enforce, or otherwise in respect
of, such holder’s right to exercise the Warrants evidenced by such holder’s
Warrant Certificate in the manner provided in such holder’s Warrant
Certificates and in this Agreement.



     Section 3.4 Merger, Sale, Conveyance or Lease. In case of (a) any share
exchange, merger or similar transaction of the Company with or into another
person or entity (other than a share exchange, merger or similar transaction in
which the Company is the acquiring or surviving corporation) or (b) the sale,



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exchange, lease, transfer or other disposition of all or substantially all of
the properties and assets of the Company as an entirety (in any such case, a
“Reorganization Event”), then, as a condition of such Reorganization Event,
lawful provisions shall be made, and duly executed documents evidencing the
same from the Company’s successor shall be delivered to the holders of the
Warrants, so such successor shall succeed and be submitted for the Company, and
assume all the Company’s obligations under this Agreement and The Warrants.
The Company shall thereupon be relieved of any further obligation hereunder or
under the Warrants, and the Company as the predecessor corporation may
thereupon or at any time thereafter be dissolved, wound up or liquidated. Such
successor or assuming entity thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the
Warrants issuable hereunder which heretofore shall not have been signed by the
Company, and may execute and deliver securities in its own name, in fulfillment
of its obligations to deliver Warrant Debt Securities upon exercise of the
Warrants. All the Warrants so issued shall in all respects have the same legal
rank and benefit under this Agreement as the Warrants theretofore or thereafter
issued in accordance with the terms of this Agreement as though all of such
Warrants had been issued at the date of the execution hereof. In any case of
any such Reorganization Event, such changes in phraseology and form (but not in
substance) may be made in the Warrants thereafter to be issued as may be
appropriate.




     The Warrant Agent may receive a written opinion of legal counsel as
conclusive evidence that any such Reorganization Event complies with the
provisions of this Section 3.4.



     Section 3.5 Notice to Warrantholders. In case the Company shall (a)
effect any Reorganization Event or (b) make any distribution on or in respect
of the [title of Warrant Debt Securities] in connection
with the dissolution, liquidation or winding up of the Company, then the
Company shall mail to each holder of Warrants at such holder’s address as it
shall appear on the books of the Warrant Agent, at least ten days prior to the
applicable date hereinafter specified, a notice stating the date on which such
Reorganization Event, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that holders of
[title of Warrant Debt Securities] of record shall be entitled to exchange
their shares of [title of Warrant Debt Securities] for securities or other
property deliverable upon such Reorganization Event, dissolution, liquidation
or winding up. No failure to mail such notice nor any defect therein or in the
mailing thereof shall affect any such transaction.



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ARTICLE 4




EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES




     Section 4.1 Exchange and Transfer of Warrant Certificates. [If Other
Securities with Warrants which are immediately detachable—Upon] [If Other
Securities with Warrants which are not immediately detachable—Prior to the
Detachable Date, a Warrant Certificate may be exchanged or transferred only
together with the Other Security to which the Warrant Certificate was initially
attached, and only for the purpose of effecting or in conjunction with an
exchange or transfer of such Other Security. Prior to any Detachable Date,
each transfer of the Other Security shall operate also to transfer the related
Warrant Certificates. After the Detachable Date, upon] surrender at the
corporate trust office of the Warrant Agent, Warrant Certificates evidencing
Warrants may be exchanged for Warrant Certificates in other denominations
evidencing such Warrants or the transfer thereof may be registered in whole or
in part; provided that such other Warrant Certificates evidence Warrants for
the same aggregate principal amount of Warrant Debt Securities as the Warrant
Certificates so surrendered. The Warrant Agent shall keep, at its corporate
trust office, books in which, subject to such reasonable regulations as it may
prescribe, it shall register Warrant Certificates and exchanges and transfers
of outstanding Warrant Certificates, upon surrender of the Warrant Certificates
to the Warrant Agent at its corporate trust office for exchange or registration
of transfer, properly endorsed or accompanied by appropriate instruments of
registration of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent. No service charge shall be
made for any exchange or registration of transfer of Warrant Certificates, but
the Company may require payment of a sum sufficient to cover any stamp or other
tax or other governmental charge that may be imposed in connection with any
such exchange or registration of transfer. Whenever any Warrant Certificates
are so surrendered for exchange or registration of transfer, an authorized
officer of the Warrant Agent shall manually countersign and deliver to the
person or persons entitled thereto a Warrant Certificate or Warrant
Certificates duly authorized and executed by the Company, as so requested. The Warrant Agent shall not be
required to effect any exchange or registration of transfer which will result
in the issuance of a Warrant Certificate evidencing a Warrant for a fraction of
a Warrant Debt Security or a number of Warrants for a whole number of Warrant
Debt Securities and a fraction of a Warrant Debt Security. All Warrant
Certificates issued upon any exchange or registration of transfer of Warrant
Certificates shall be the valid obligations of the Company, evidencing the same
obligations and entitled to the same benefits under this Agreement as the
Warrant Certificate surrendered for such exchange or registration of transfer.



     Section 4.2 Treatment of Holders of Warrant Certificates. [If Other
Securities and Warrants are not immediately detachable—Prior to the



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Detachable Date, the Company, the Warrant Agent and all other persons may treat
the owner of the Other Security as the owner of the Warrant Certificates
initially attached thereto for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced by such Warrant
Certificates, any notice to the contrary notwithstanding. After the Detachable
Date and prior to due presentment of a Warrant Certificate for registration of
transfer, the] [The] Company, the Warrant Agent and all other persons may treat
the registered holder of a Warrant Certificate as the absolute owner thereof
for any purpose and as the person entitled to exercise the rights represented
by the Warrants evidenced thereby, any notice to the contrary notwithstanding.




     Section 4.3 Cancellation of Warrant Certificates. Any Warrant Certificate
surrendered for exchange, registration of transfer or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company, be delivered to the
Warrant Agent and all Warrant Certificates surrendered or so delivered to the
Warrant Agent shall be promptly canceled by the Warrant Agent and shall not be
reissued and, except as expressly permitted by this Agreement, no Warrant
Certificate shall be issued hereunder in exchange therefor or in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of canceled Warrant Certificates in a manner satisfactory to the
Company.



ARTICLE 5




CONCERNING THE WARRANT AGENT




     Section 5.1 Warrant Agent. The Company hereby appoints              as
Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein set forth, and
             hereby accepts such appointment. The Warrant Agent shall have
the powers and authority granted to and conferred upon it in the Warrant Certificates and hereby and such further
power and authority to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. All of the terms and provisions with
respect to such power and authority contained in the Warrant Certificates are
subject to and governed by the terms and provisions hereof.



     Section 5.2 Conditions of Warrant Agent’s Obligations. The Warrant Agent
accepts its obligations herein set forth upon the terms and conditions hereof,
including the following to all of which the Company agrees and to all of which
the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:



     (a) Compensation and Indemnification. The Company agrees promptly to pay
the Warrant Agent the compensation to be agreed upon with the Company for all
services rendered by the Warrant Agent and to reimburse the



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Warrant Agent for reasonable out-of-pocket expenses (including reasonable counsel fees) incurred
without negligence, bad faith or willful misconduct by the Warrant Agent in
connection with the services rendered hereunder by the Warrant Agent. The
Company also agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without negligence, bad faith
or willful misconduct on the part of the Warrant Agent, arising out of or in
connection with its acting as Warrant Agent hereunder, including the reasonable
costs and expenses of defending against any claim of such liability.




     (b) Agent for the Company. In acting under this Warrant Agreement and in
connection with the Warrant Certificates, the Warrant Agent is acting solely as
agent of the Company and does not assume any obligations or relationship of
agency or trust for or with any of the holders of Warrant Certificates or
beneficial owners of Warrants.



     (c) Counsel. The Warrant Agent may consult with counsel satisfactory to
it, which may include counsel for the Company, and the written advice of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
accordance with the advice of such counsel.



     (d) Documents. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or omitted by it in reliance
upon any Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.



     (e) Certain Transactions. The Warrant Agent, and its officers, directors
and employees, may become the owner of, or acquire any interest in, Warrants,
with the same rights that it or they would have if it were not the Warrant
Agent hereunder, and, to the extent permitted by applicable law, it or they may
engage or be interested in any financial or other transaction with the Company
and may act on, or as depositary, trustee or agent for, any committee or body
of holders of Warrant Debt Securities or other obligations of the Company as
freely as if it were not the Warrant Agent hereunder. Nothing in this Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as trustee
under any indenture to which the Company is a party including the [Senior]
[Subordinated] Trustee under the [Senior] [Subordinated] Indenture.



     (f) No Liability for Interest. Unless otherwise agreed with the Company,
the Warrant Agent shall have no liability for interest on any monies at any
time received by it pursuant to any of the provisions of this Agreement or of
the Warrant Certificates.



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     (g) No Liability for Invalidity. The Warrant Agent shall have no
liability with respect to any invalidity of this Agreement or any of the
Warrant Certificates (except as to the Warrant Agent’s countersignature
thereon).



     (h) No Responsibility for Representations. The Warrant Agent shall not be
responsible for any of the recitals or representations herein or in the Warrant
Certificates (except as to the Warrant Agent’s countersignature thereon), all
of which are made solely by the Company.



     (i) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
which may tend to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates authenticated by the
Warrant Agent and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant Certificates.
The Warrant Agent shall have no duty or responsibility in case of any default
by the Company in the performance of its covenants or agreements contained
herein or in the Warrant Certificates or in the case of the receipt of any
written demand from a holder of a Warrant Certificate with respect to such
default, including, without limiting the generality of the foregoing, any duty
or responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.2 hereof, to make any demand upon
the Company.



     Section 5.3 Resignation, Removal and Appointment of Successors.



     (a) The Company agrees, for the benefit of the holders from time to time
of the Warrant Certificates, that there shall at all times be a Warrant Agent
hereunder until all the Warrants have been exercised or are no longer
exercisable.



     (b) The Warrant Agent may at any time resign as agent by giving written
notice to the Company of such intention on its part, specifying the date on
which its desired resignation shall become effective; provided that such date
shall not be less than three months after the date on which such notice is
given unless the Company otherwise agrees. The Warrant Agent hereunder may be
removed at any time by the filing with it of an instrument in writing signed by
or on behalf of the Company and specifying such removal and the intended date
when it shall become effective. Such resignation or removal shall take effect
upon the appointment by the Company, as hereinafter provided, of a successor
Warrant Agent (which shall be a bank or trust company authorized under the laws
of the



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jurisdiction of its organization to exercise corporate trust powers) and
the acceptance of such appointment by such successor Warrant Agent. The
obligation of the Company under Section 5.2(a) shall continue to the extent set
forth therein notwithstanding the resignation or removal of the Warrant Agent.




     (c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or shall commence a voluntary case under the Federal bankruptcy
laws, as now or hereafter constituted, or under any other applicable Federal or
state bankruptcy, insolvency or similar law or shall consent to the appointment
of or taking possession by a receiver, custodian, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Warrant Agent or its
property or affairs, or shall make an assignment for the benefit of creditors,
or shall admit in writing its inability to pay its debts generally as they
become due, or shall take corporate action in furtherance of any such action,
or a decree or order for relief by a court having jurisdiction in the premises
shall have been entered in respect of the Warrant Agent in an involuntary case
under the Federal bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal or state bankruptcy, insolvency or similar law, or a
decree or order by a court having jurisdiction in the premises shall have been
entered for the appointment of a receiver, custodian, liquidator, assignee,
trustee, sequestrator (or similar official) of the Warrant Agent or of its
property or affairs, or any public officer shall take charge or control of the
Warrant Agent or of its property or affairs for the purpose of rehabilitation,
conservation, winding up or liquidation, a successor Warrant Agent, qualified
as aforesaid, shall be appointed by the Company by an instrument in writing,
filed with the successor Warrant Agent. Upon the appointment as aforesaid of a
successor Warrant Agent and acceptance by the successor Warrant Agent of such
appointment, the Warrant Agent shall cease to be Warrant Agent hereunder.



     (d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, trusts, immunities, duties and obligations
of such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay
over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.



     (e) Any corporation into which the Warrant Agent hereunder may be merged
or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or



12









 





consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all substantially
all the assets and business of the Warrant Agent, provided that it shall be
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on
the part of any of the parties hereto.




ARTICLE 6




MISCELLANEOUS




     Section 6.1 Amendment. This Agreement may be amended by the parties
hereto, without the consent of the holder of any Warrant Certificate, for the
purpose of curing any ambiguity, or of curing, correcting or supplementing any
defective provision contained herein, or making any other provisions with
respect to matters or questions arising under this Agreement as the Company and
the Warrant Agent may deem necessary or desirable; provided that such action
shall not materially adversely affect the interests of the holders of the
Warrant Certificates.



     Section 6.2 Notices and Demands to the Company and Warrant Agent. If the
Warrant Agent shall receive any notice or demand addressed to the Company by
the holder of a Warrant Certificate pursuant to the provisions of the
Warrant Certificates, the Warrant Agent shall promptly forward such notice or
demand to the Company.



     Section 6.3 Addresses. Any communication from the Company to the Warrant
Agent with respect to this Agreement shall be addressed to                 ,
Attention:                  and any communication from the Warrant Agent to the
Company with respect to this Agreement shall be addressed to Guilford
Pharmaceuticals Inc., 6611 Tributary Street, Baltimore, Maryland 21224,
Attention: Corporate Secretary (or such other address as shall be specified in
writing by the Warrant Agent or by the Company).



     Section 6.4 Governing Law. This Agreement and each Warrant Certificate
issued hereunder shall be governed by and construed in accordance with the laws
of the State of New York.



     Section 6.5 Delivery of Prospectus. The Company shall furnish to the
Warrant Agent sufficient copies of a prospectus meeting the requirements of the
Securities Act of 1933, as amended, relating to the Warrant Debt Securities
deliverable upon exercise of the Warrants (the “Prospectus”), and the Warrant
Agent agrees that upon the exercise of any Warrant, the Warrant Agent will
deliver to the holder of the Warrant Certificate evidencing such Warrant, prior
to or



13









 





concurrently with the delivery of the Warrant Debt Securities issued upon
such exercise, a Prospectus.




     The Warrant Agent shall not, by reason of any such delivery, assume any
responsibility for the accuracy or adequacy of such Prospectus.



     Section 6.6 Obtaining of Governmental Approvals. The Company will from
time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities act filings under United States Federal and
state laws (including without limitation a registration statement in respect of
the Warrants and Warrant Debt Securities under the Securities Act of 1933, as
amended), which may be or become requisite in connection with the issuance,
sale, transfer, and delivery of the Warrant Debt Securities issued upon
exercise of the Warrants, the issuance, sale, transfer and delivery of the
Warrants or upon the expiration of the period during which the Warrants are
exercisable.



     Section 6.7 Persons Having Rights Under Warrant Agreement. Nothing in
this Agreement shall give to any person other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement.



     Section 6.8 Headings. The descriptive headings of the several Articles
and Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.



     Section 6.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which as so executed shall be deemed to be an original,
but such counterparts shall together constitute but one and the same
instrument.



     Section 6.10 Inspection of Agreement. A copy of this Agreement shall be
available at all reasonable times at the principal corporate trust office of
the Warrant Agent for inspection by the holder of any Warrant Certificate. The
Warrant Agent may require such holder to submit his Warrant Certificate for
inspection by it.



14









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.



	 	 	 	 	 
	 	 	GUILFORD PHARMACEUTICALS INC.
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	

	 
	 	 	 	 
	

	 	Its:	 	 
	

	 	 	








Attest:










	 	 	 	 	 
	 	 	

	 	 	Warrant Agent
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	

	 
	 	 	 	 
	

	 	Its:	 	 
	

	 	 	








Attest:










[SIGNATURE PAGE TO DEBT SECURITIES WARRANT AGREEMENT]




15









 








EXHIBIT A




FORM OF WARRANT CERTIFICATE

[Face of Warrant Certificate]




	 	 	 
	[Form if Warrants are attached to
Other Securities and are not
immediately detachable.

	 	Prior to                 , this

Warrant Certificate cannot be

transferred or exchanged unless

attached to a [Title of Other

Security].]
	[Form of Legend if Warrants are not
immediately exercisable.

	 	Prior to                 , Warrants

evidenced by this Warrant

Certificate cannot be exercised.]







EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT

AGENT AS PROVIDED HEREIN




VOID AFTER [                ] P.M., [CITY] TIME, ON                 ,




GUILFORD PHARMACEUTICALS INC.




WARRANT CERTIFICATE REPRESENTING

WARRANTS TO PURCHASE

[TITLE OF WARRANT DEBT SECURITIES]

                      




	 	 	 
	No.

	 	Warrants







     This certifies that                       
or registered assigns is the registered owner of the above indicated number of Warrants, each Warrant
entitling such Owner [If Warrants are attached to Other Securities and are not
immediately detachable—, subject to the registered owner qualifying as a “Holder” of this Warrant Certificate, as hereinafter defined]], to purchase, at
any time [after [           ] p.m., [City] time, on                       
and] on or before [           ]
p.m., [City] time, on                       
of $                      
principal amount of [Title of Warrant Debt Securities] (the “Warrant Debt Securities”), of Guilford
Pharmaceuticals Inc. (the “Company”), issued or to be issued under the Indenture (as hereinafter defined), on the following basis: during the period
from                       
, through and including                       , each Warrant shall entitle the Holder thereof, subject to the provisions of this Agreement, to
purchase the principal amount of Warrant Debt Securities stated in the Warrant
Certificate at the warrant price (the “Warrant Price”) of            % of the



A- 1









 





principal amount thereof [plus accrued amortization, if any, of the original
issue discount of the Warrant Debt Securities] [plus accrued interest, if any,
from the most recent date from which interest shall have been paid on the
Warrant Debt Securities or, if no interest shall have been paid on the Warrant
Debt Securities, from the date of their original issuance]. [The original
issue discount ($            for each $1,000 principal amount of Warrant Debt
Securities) will be amortized at a            % annual rate, computed on a[n] [semi-]
annual basis [using a 360-day year consisting of twelve 30-day months]. The
Holder may exercise the Warrants evidenced hereby by providing certain
information set forth on the back hereof and by paying in full, in lawful money
of the United States of America, [in cash or by certified check or official
bank check in New York Clearing House funds] [by bank wire transfer in
immediately available funds], the Warrant Price for each Warrant Debt Security
with respect to which this Warrant is exercised to the Warrant Agent (as
hereinafter defined) and by surrendering this Warrant Certificate, with the
purchase form on the back hereof duly executed, at the corporate trust office
of [name of Warrant Agent], or its successor as warrant agent (the “Warrant
Agent”), which is, on the date hereof, at the address specified on the reverse
hereof, and upon compliance with and subject to the conditions set forth herein
and in the Warrant Agreement (as hereinafter defined).




     The term “Holder” as used herein shall mean [If Warrants are attached to
Other Securities and are not immediately detachable—prior to            ,
                       (the “Detachable Date”), the registered owner of the
Company’s [title of Other Securities] to which this Warrant Certificate was
initially attached, and after such Detachable Date,] the person in whose name
at the time this Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose pursuant to Section 4 of the
Warrant Agreement.



     The Warrants evidenced by this Warrant Certificate may be exercised to
purchase Warrant Debt Securities in the principal amount of $1,000 or any
integral multiple thereof in registered form. Upon any exercise of fewer than
all of the Warrants evidenced by this Warrant Certificate, there shall be
issued to the Holder hereof a new Warrant Certificate evidencing Warrants for
the aggregate principal amount of Warrant Debt Securities remaining
unexercised.



     This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of                       ,             (the “Warrant Agreement”),
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the Holder of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent.



A- 2









 





     The Warrant Debt Securities to be issued and delivered upon the exercise
of Warrants evidenced by this Warrant Certificate will be issued under and in
accordance with an Indenture, [dated as of                       ,             (the “Senior
Indenture”), between the Company and            , as trustee (such trustee, and
any successors to such trustee, the “Senior Trustee”)] [dated as of
                      ,            , (the “Subordinated Indenture”), between the Company and
                      , as trustee (such trustee, and any successors to such trustee, the
“Subordinated Trustee”)] and will be subject to the terms and provisions
contained in the Warrant Debt Securities and in the Indenture. Copies of the
[Senior] [Subordinated] Indenture, including the form of the Warrant Debt
Securities, are on file at the corporate trust office of the Trustee.



     [If Warrants are attached to Other Securities and are not immediately
detachable—Prior to the Detachable Date, this Warrant Certificate may be
exchanged or transferred only together with the [Title of Other Securities]
(the “Other Securities”) to which this Warrant Certificate was initially
attached, and only for the purpose of effecting or in conjunction with, an
exchange or transfer of such Other Security. Additionally, on or prior to the
Detachable Date, each transfer of such Other Security on the register of the
Other Securities shall operate also to transfer this Warrant Certificate.
After such date, transfer of this] [If Warrants are attached to Other
Securities and are immediately detachable—Transfer of this] Warrant
Certificate may be registered when this Warrant Certificate is surrendered at
the corporate trust office of the Warrant Agent by the registered owner or such
owner’s assigns, in the manner and subject to the limitations provided in the
Warrant Agreement.



     [If Other Securities with Warrants which are not immediately detachable—Except as provided in the immediately preceding paragraph, after] [If Other
Securities with Warrants which are immediately detachable or Warrants alone—After] countersignature by the Warrant Agent and prior to the expiration of
this Warrant Certificate, this Warrant Certificate may be exchanged at the
corporate trust office of the Warrant Agent for Warrant Certificates
representing Warrants for the same aggregate principal amount of Warrant Debt
Securities.



     This Warrant Certificate shall not entitle the Holder hereof to any of the
rights of a holder of the Warrant Debt Securities, including, without
limitation, the right to receive payments of principal of (and premium, if any)
or interest, if any, on the Warrant Debt Securities or to enforce any of the
covenants of the Indenture.



     Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.



A- 3









 





     This Warrant Certificate shall not be valid or obligatory for any purpose
until countersigned by the Warrant Agent.



     IN WITNESS WHEREOF, the Company has caused this Warrant to be executed in
its name and on its behalf by the facsimile signatures of its duly authorized
officers.



	 	 	 	 	 	 	 
	 	 	 	 	GUILFORD PHARMACEUTICALS INC.
	 
	 	 	 	 	 	 
	Dated:

	 	 	 	By:	 	 
	

	 	

	 	 	 	

	 
	 	 	 	 	 	 
	

	 	 	 	Its:
	 	








Attest:










Countersigned:







As Warrant Agent



By:


Authorized Signature



A- 4









 








[REVERSE OF WARRANT CERTIFICATE]




(Instructions for Exercise of Warrants)




     To exercise any Warrants evidenced hereby for Warrant Debt Securities (as
hereinafter defined), the Holder must pay, in lawful money of the United States
of America, [in cash or by certified check or official bank check in New York
Clearing House funds] [by bank wire transfer in immediately available funds],
the Warrant Price in full for Warrants exercised, to [Warrant Agent] [address
of Warrant Agent], Attn:                 , which payment must specify the
name of the Holder and the number of Warrants exercised by such Holder. In
addition, the Holder must complete the information required below and present
this Warrant Certificate in person or by mail (certified or registered mail is
recommended) to the Warrant Agent at the appropriate address set forth above.
This Warrant Certificate, completed and duly executed, must be received by the
Warrant Agent within five business days of the payment.



(To be executed upon exercise of Warrants)




     The undersigned hereby irrevocably elects to exercise                 
Warrants, represented by this Warrant Certificate, to purchase $             principal
amount of the [Title of Warrant Debt Securities] (the “Warrant Debt
Securities”) of Guilford Pharmaceuticals Inc. and represents that he has
tendered payment for such Warrant Debt Securities, in lawful money of the
United States of America, [in cash or by certified check or official bank check
in New York Clearing House funds] [by bank wire transfer in immediately
available funds], to the order of Guilford Pharmaceuticals Inc., c/o [insert
name and address of Warrant Agent], in the amount of $                 in
accordance with the terms hereof. The undersigned requests that said principal
amount of Warrant Debt Securities be in fully registered form in the authorized
denominations, registered in such names and delivered all as specified in
accordance with the instructions set forth below.



     If the number of Warrants exercised is less than all the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
evidencing the Warrants for the aggregate principal amount of Warrant Debt
Securities remaining unexercised be issued and delivered to the undersigned
unless otherwise specified in the instructions below.



	 	 	 	 	 	 	 
	Dated:

	 	 	 	Name
	 	 
	 
	 	
	 	 	 	

	 	 	 	 	 	 	(Please Print)
	 
	

	 	 	 	Address:	 	 
	

	 	 	 	 	 	








A- 5









 






	 	 	 
	 

	 	

	 
	 	 
	

	 	

	 
	 	 
	

	 	

(Insert Social Security or Other Identifying Number
of Holder)
	 
	 	 
	Signature Guaranteed

	 	

	 
	 	 
	


	 	

Signature
	 
	 	 
	

	 	(Signature must conform in all respects to
name of holder as specified on the face of
this Warrant Certificate and must bear a
signature guarantee by a bank, trust
company or member broker of the New York,
Midwest or Pacific Stock Exchange)







This Warrant may be exercised at the following addresses:




	 	 	 	 	 
	 

	 	By Hand at
	 	 
	 
	 	 	 	

	 
	 	 	 	

	

	 	 	 	 
	

	 	By mail at
	 	 
	 
	 	 	 	

	

	 	 	 	








[Instructions as to form and delivery of Warrant Debt Securities and, if
applicable, Warrant Certificates evidencing Warrants for the number of Warrant
Debt Securities remaining unexercised—complete as appropriate.]




A- 6









 








ASSIGNMENT




[Form of assignment to be executed if

Warrant Holder desires to transfer Warrant)




     FOR VALUE RECEIVED,                 hereby sells, assigns and transfers unto:



	 	 	 
	

	 	 
	

	 	 
	

(Please print name and address
   including
zip code)

	 	

Please insert Social Security or other
   identifying
number







the right represented by the within Warrant to purchase $                 aggregate
principal amount of [Title of Warrant Debt Securities] of Guilford
Pharmaceuticals Inc. to which the within Warrant relates and appoints
                                 attorney to transfer such right on the books of the Warrant
Agent with full power of substitution in the premises.




	 	 	 
	Dated
	 	 
	


	 	

Signature
	 
	 	 
	

	 	(Signature must conform in all
respects to name of holder as
specified on the face of the
Warrant)
	 
	 	 
	Signature Guaranteed
	 	 
	 
	 	 
	

	 	 







A-7









 






TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page

	ARTICLE 1
	 	 	 	 
	ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT CERTIFICATES
	 	 	2	 
	Section 1.1 Issuance of Warrants
	 	 	2	 
	Section 1.2 Execution and Delivery of Warrant Certificates
	 	 	2	 
	Section 1.3 Issuance of Warrant Certificates
	 	 	3	 
	ARTICLE 2
	 	 	 	 
	WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
	 	 	3	 
	Section 2.1 Warrant Price
	 	 	3	 
	Section 2.2 Duration of Warrants
	 	 	4	 
	Section 2.3 Exercise of Warrants
	 	 	4	 
	ARTICLE 3
	 	 	 	 
	OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES
	 	 	5	 
	Section 3.1 No Rights as Holders of Warrant Debt Securities Conferred by Warrants or Warrant Certificates
	 	 	5	 
	Section 3.2 Lost, Stolen, Mutilated or Destroyed Warrant Certificates
	 	 	6	 
	Section 3.3 Holder of Warrant Certificate May Enforce Rights
	 	 	6	 
	Section 3.4 Merger, Sale, Conveyance or Lease
	 	 	6	 
	Section 3.5 Notice to Warrantholders
	 	 	7	 
	ARTICLE 4
	 	 	 	 
	EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
	 	 	8	 
	Section 4.1 Exchange and Transfer of Warrant Certificates
	 	 	8	 







-i-




 









 








	 	 	 	 	 
	 	 	Page

	Section 4.2 Treatment of Holders of Warrant Certificates
	 	 	8	 
	Section 4.3 Cancellation of Warrant Certificates
	 	 	9	 
	ARTICLE 5
	 	 	 	 
	CONCERNING THE WARRANT AGENT
	 	 	9	 
	Section 5.1 Warrant Agent
	 	 	9	 
	Section 5.2 Conditions of Warrant Agent’s Obligations
	 	 	9	 
	Section 5.3 Resignation, Removal and Appointment of Successors
	 	 	11	 
	ARTICLE 6
	 	 	 	 
	MISCELLANEOUS
	 	 	13	 
	Section 6.1 Amendment
	 	 	13	 
	Section 6.2 Notices and Demands to the Company and Warrant Agent
	 	 	13	 
	Section 6.3 Addresses
	 	 	13	 
	Section 6.4 Governing Law
	 	 	13	 
	Section 6.5 Delivery of Prospectus
	 	 	13	 
	Section 6.6 Obtaining of Governmental Approvals
	 	 	14	 
	Section 6.7 Persons Having Rights Under Warrant Agreement
	 	 	14	 
	Section 6.8 Headings
	 	 	14	 
	Section 6.9 Counterparts
	 	 	14	 
	Section 6.10 Inspection of Agreement
	 	 	14	 







-ii-