EXHIBIT 4.7
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (this "Agreement"), dated as of
March 23, 1999 is by and between HEMASURE INC., a Delaware corporation
("HemaSure"), and SEPRACOR INC., a Delaware corporation (the "Holder").
W I T N E S S E T H:
WHEREAS, pursuant to a Securities Purchase Agreement of
even date herewith (the "Securities Purchase Agreement") by and between the
parties hereto, the Company (i) issued to the Holder 1,333,334 shares of common
stock, par value $.01 per share ("Common Stock"), of the Company, and (ii)
agreed to grant warrants (individually a "Warrant," and collectively, the
"Warrants") to purchase 667,000 shares of Common Stock, upon the terms and
conditions as set forth below.
NOW, THEREFORE, in consideration of these premises, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. Grant. The Holder is hereby granted the right to
purchase 667,000 shares of Common Stock, at an exercise price of $1.50 per share
(the "Exercise Price") of Common Stock, at any time prior to 5:00 p.m., New York
City time on March 22, 2004, subject to the terms and conditions of this
Agreement.
2. Warrant Certificate. The warrant certificate (the
"Warrant Certificate") to be delivered pursuant to this Agreement shall be in
the form set forth in Annex I attached hereto, and made a part hereof, with such
appropriate insertions, omissions, substitutions, and other variations as
required or permitted by this Agreement.
3. Exercise of Warrants. The Warrants are exercisable at
the aggregate Exercise Price for the number of Warrants so exercised at any time
prior to 5:00 p.m. New York City time on March 22, 2004, subject to adjustment
as provided in Section 8 hereof. Payment of such Exercise Price shall be made,
at the option of the Holder specified in its notice of exercise, (i) by wire
transfer or by certified or official bank check payable to the order of the
Company in immediately available funds in lawful money of the United States of
America; or (ii) by reducing the number of shares of Common Stock issuable to
the Holder by a number of shares of Common Stock that have a value equal to the
Exercise Price which otherwise would have been paid. For purposes hereof, the
value of a share of Common Stock (the "Share Value") shall be the last reported
sale price of the Common Stock on the OTC Bulletin Board, or any other
interdealer quotation system on which the Common Stock is included for
quotation, or, if none, the fair
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market value of such shares as reasonably determined by the Board of Directors
of the Company. Upon surrender of a Warrant Certificate with the annexed Form of
Election to Purchase duly executed, together with payment of the Exercise Price
for the shares of Common Stock purchased, if applicable, at HemaSure's principal
offices located at 000 Xxxxx Xxxxx, Xxxxxxxxxxx, XX 00000, the Holder shall be
entitled to receive a certificate or certificates for the shares of Common Stock
so purchased. The purchase rights represented by the Warrant Certificate are
exercisable at the option of the Holder thereof, in whole or in part (but not as
to fractional shares of the Common Stock underlying the Warrants), but in no
event for less than 25,000 shares at any one time. In the case of the purchase
of less than all the shares of Common Stock purchasable under any Warrant
Certificate, HemaSure shall cancel said Warrant Certificate upon the surrender
thereof and shall execute and deliver a new Warrant Certificate of like tenor
for the balance of the shares of Common Stock purchasable thereunder.
4. Mandatory Exercise of Warrants. The Company may require
the Investor to exercise the purchase rights represented by the Warrant
Certificate, in whole, at any time from and after the date on which the Company
consummates a transaction whereby a third party provides equity financing to the
Company in the principal amount of Five Million Dollars ($5,000,000) or more and
the closing price of the Company's Common Stock as reported on the OTC Bulletin
Board, or any other interdealer quotation system or stock market or exchange on
which the Common Stock is quoted or listed, is greater than $3.00 per share for
15 consecutive trading days.
5. Issuance of Certificates. Upon the exercise of the
Warrants, the issuance of certificates for shares of Common Stock or other
securities, properties or rights underlying such Warrants shall be made
forthwith (and in any event within ten (10) business days thereafter) without
charge to the Holder including, without limitation, any tax which may be payable
in respect of the issuance thereof, and such certificates shall be issued in the
name of, or in such names as may be directed by, the Holder thereof; provided,
however, that HemaSure shall not be required to pay any tax which may be payable
in respect of any transfer involved in the issuance and delivery of any such
certificates in a name other than that of the Holder, and HemaSure shall not be
required to issue or deliver such certificates unless or until the person or
persons requesting the issuance thereof shall have paid to HemaSure the amount
of such tax or shall have established to the satisfaction of HemaSure that such
tax has been paid.
The Warrant Certificate and the certificates representing
the Shares shall be executed on behalf of HemaSure by the manual or facsimile
signature of the then present Chairman or Vice Chairman of the Board of
Directors or President or Chief Executive Officer or Vice President of HemaSure
under its corporate seal reproduced thereon, attested to by the manual or
facsimile signature of the then present Secretary or Assistant Secretary of
HemaSure. The Warrant Certificate shall be dated the date of execution by
HemaSure upon initial issuance, division, exchange, substitution or transfer.
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6. Restriction on Transfer of Warrants. The Holder of the
Warrant Certificate, by its acceptance thereof, covenants and agrees:
(i) that the Warrants and the shares of Common Stock
issuable on exercise of the Warrants (the "Shares") are being
acquired as an investment and not with a view to the distribution
thereof;
(ii) that it understands that neither the Warrants nor the
Shares have been registered under the Securities Act of 1933, as
amended (the "Securities Act"), in reliance on an exemption therefrom
for transactions not involving any public offering, and that neither
the Warrants nor the Shares have been approved or disapproved by the
United States Securities and Exchange Commission or by any other
Federal or state agency;
(iii) it understands that neither the Warrants nor the
Shares can be sold, transferred or assigned unless registered by
HemaSure pursuant to the Securities Act and any applicable state
securities laws, or unless an exemption therefrom is available, and,
accordingly, it may not be possible for the undersigned to liquidate
its investment in the Warrants and the Shares, and it agrees not to
sell, assign or otherwise transfer or dispose of the Warrants or the
Shares unless such Warrants or Shares, as applicable, have been so
registered or an exemption from registration is available;
(iv) the Holder hereby acknowledges that all documents,
records and books pertaining to HemaSure's business have been made
available to the Holder and the Holder's attorney and/or accountant
and/or representative. The Holder has had an opportunity to ask
questions and receive answers from HemaSure concerning the business
and assets of HemaSure and all such questions have been answered to
the full satisfaction of the Holder; and
(v) it is an accredited investor, as that term is defined
in Regulation D under the Securities Act.
7. Securities Act of 1933; Legends. Upon exercise, in part
or in whole, of the Warrants, certificates representing the Shares underlying
the Warrant and any of the other securities issuable upon exercise of the
Warrant (the "Warrant Shares") shall bear the following legend only if such
Warrant Shares are not then registered pursuant to an effective registration
statement under the Act:
The securities represented by this certificate have not
been registered under the Securities Act of 1933, as
amended (the "Act"), and may not be offered or sold except
pursuant to (i) an effective registration statement under
the Act, (ii) to the extent applicable, Rule 144 under the
Act (or any similar rule under such Act relating to the
disposition of securities), or (iii) an opinion of counsel,
if such opinion shall be reasonably satisfactory to counsel
to the
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issuer, that an exemption from registration under such Act
is available.
8. Subdivision and Combination. In case HemaSure shall at
any time subdivide or combine the outstanding shares of Common Stock, the
Exercise Price shall forthwith be proportionately decreased in the case of
subdivision or increased in the case of combination, and the number of shares
subject to the Warrant shall be proportionally increased or decreased, as the
case may be.
9. Merger or Consolidation. In case of any consolidation of
HemaSure with, or merger of HemaSure with, or merger of HemaSure into, another
corporation (other than a consolidation or merger which does not result in any
reclassification or change of the outstanding Common Stock), the corporation
formed by such consolidation or merger shall execute and deliver to the Holder a
supplemental warrant agreement having terms as nearly substantively equivalent
as practical to the terms hereof, providing that the Holder of each Warrant then
outstanding or to be outstanding shall have the right thereafter (until the
expiration of such Warrant) to receive, upon exercise of such warrant, the kind
and amount of shares of stock and other securities and property receivable upon
such consolidation or merger, by the Holder of the number of shares of Common
Stock of HemaSure for which such warrant might have been exercised immediately
prior to such consolidation, merger, sale or transfer. The above provision of
this subsection shall similarly apply to successive consolidations or mergers.
10. Exchange and Replacement of Warrant Certificates. Each
Warrant Certificate is exchangeable without expense, upon the surrender thereof
by the Holder at the principal executive office of HemaSure, for a new Warrant
Certificate of like tenor and date representing in the aggregate the right to
purchase the same number of Warrant Shares in such denominations as shall be
designated by the Holder thereof at the time of such surrender.
Upon receipt by HemaSure of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of any Warrant
Certificate, and, in case of loss, theft or destruction, of an indemnity
agreement reasonably satisfactory to it, and upon surrender and cancellation of
the Warrants, if mutilated, HemaSure will make and deliver a new Warrant
Certificate of like tenor, in lieu thereof.
11. Elimination of Fractional Interests. HemaSure shall not
be required to issue certificates representing fractions of shares of Common
Stock upon the exercise of the Warrants, nor shall it be required to issue scrip
or pay cash in lieu of fractional interests, it being the intent of the parties
that all fractional interests shall be eliminated by rounding any fraction up to
the nearest whole number of shares of Common Stock or other securities,
properties or rights.
12. Reservation of Securities. HemaSure shall at all times
reserve and keep available out of its authorized shares of Common Stock, solely
for the purpose of issuance upon the exercise of the Warrants, such number of
shares of Common Stock or other securities, properties or rights as shall be
issuable upon the exercise thereof.
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13. Notices to the Holder. Nothing contained in this
Agreement shall be construed as conferring upon the Holder the right to vote or
to consent or to receive notice as a stockholder in respect of any meetings of
stockholders for the election of directors or any other matter, or as having any
rights whatsoever as a stockholder of HemaSure. If, however, at any time prior
to the expiration of the Warrants and their exercise, any of the following
events shall occur:
(a) HemaSure shall take a record of the holders
of its shares of Common Stock for the purpose of entitling
them to receive a dividend or distribution payable
otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of current or retained earnings,
as indicated by the accounting treatment of such dividend
or distribution on the books of HemaSure;
(b) HemaSure shall offer to all of the holders of
its Common Stock any additional shares of capital stock of
HemaSure or securities convertible into or exchangeable for
shares of capital stock of HemaSure, or any option, right
or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of
HemaSure (other than in connection with a consolidation or
merger) or a sale of all or substantially all of its
property, assets and business as an entirety shall be
proposed;
then, in any one or more of said events, HemaSure shall give written notice of
such event at least fifteen (15) days prior to the date fixed as a record date
or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall specify
such record date or the date of closing the transfer books, as the case may be.
Failure to give such notice or any defect therein shall not affect the validity
of any action taken in connection with the declaration or payment of any such
dividend, or the issuance of any convertible or exchangeable securities, or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
14. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
duly made and sent when delivered, or mailed by registered or certified mail,
return receipt requested:
(a) If to the Holder, to the address of the Holder as
shown on the books of HemaSure; or
(b) If to HemaSure, to the address set forth in
Section 3 hereof or to such other address as HemaSure may
designate by notice to the Holder.
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15. Successors. All the covenants and provisions of this
Agreement shall be binding upon and inure to the benefit of HemaSure, the Holder
and their respective successors and assigns hereunder.
16. Termination. This Agreement shall terminate in its
entirety at 5:00 p.m., New York City time, on March 22, 2004.
17. Entire Agreement; Modification. This Agreement contains
the entire understanding between the parties hereto with respect to the subject
matter hereof and may not be modified or amended except by a writing duly signed
by the party against whom enforcement of the modification or amendment is
sought.
18. Severability. If any provision of this Agreement shall
be held to be invalid or unenforceable, such invalidity or unenforceability
shall not affect any other provision of this Agreement.
19. Captions. The caption headings of the Sections of this
Agreement are for convenience of reference only and are not intended, nor should
they be construed as, a part of this Agreement and shall be given no substantive
effect.
20. Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any person or corporation other than HemaSure or
the Holder any legal or equitable right, remedy or claim under this Agreement.
21. Governing Law. This Agreement shall be deemed to have
been made in the State of New York and the validity of this Agreement, the
construction, interpretation and enforcement thereof, and the rights of the
parties thereto shall be determined under, governed by, and construed in
accordance with the internal laws of the State of New York, without regard to
principles of conflicts of law.
22. Arbitration. Any dispute or controversy arising under,
out of, in connection with, or in relation to this Agreement shall be determined
and settled by arbitration in New York by a panel of three (3) members in
accordance with the commercial rules of the American Arbitration Association.
Any award rendered therein shall be final and binding upon the parties and their
legal representatives, successors and assigns and judgment may be entered in any
court having jurisdiction thereof.
23. Counterparts. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and such counterparts shall together constitute but
one and the same instrument. Photocopies or facsimiles of executed copies of
this Agreement may be treated as originals.
(Signatures on Following Page)
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the day and year first above written.
HEMASURE INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Senior Vice President of Finance
and Administration
SEPRACOR INC.
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Senior Vice President of Finance
and Adminstration
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