EXHIBIT 99(E)
THIS WARRANT AND THE SECURITIES THAT MAY BE ACQUIRED UPON THE EXERCISE OF
THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT") OR UNDER THE PROVISIONS OF ANY APPLICABLE STATE SECURITIES
LAWS. NEITHER THIS WARRANT NOR THE SECURITIES THAT MAY BE ACQUIRED UPON THE
EXERCISE OF THIS WARRANT MAY BE SOLD, PLEDGED, TRANSFERRED, ASSIGNED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER PROVISIONS OF THE ACT AND ALL APPLICABLE STATE SECURITIES LAWS;
AND IN THE CASE OF ANY EXEMPTION, ONLY IF THE COMPANY HAS RECEIVED AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH TRANSACTION DOES NOT REQUIRE
REGISTRATION OF THE WARRANT OR THE OTHER SECURITIES.
WARRANT TO PURCHASE FORTY THOUSAND (40,000) SHARES OF COMMON STOCK OF
ORGANOGENESIS INC.
Warrant No. 2 Void After March 25, 2001
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THIS CERTIFIES THAT, for value received, Reedland Capital Partners of 00
Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxxxxx ("RCP") or assigns
(RCP, or such assigns who may be the registered holder or holders hereof, are
hereinafter referred to as the "Holder") is entitled to subscribe for and
purchase Forty Thousand (40,000) shares of the fully paid and nonassessable
Common Stock (as adjusted pursuant to Section 4 hereof, hereinafter, the
"Shares") of ORGANOGENESIS INC., a Delaware corporation (hereinafter, the
"Company"), at the price of $36.00 per share (such price and such other price as
shall result, from time to time, from the adjustments specified in Section 4
hereof is herein referred to as the "Exercise Price"), subject to the provisions
and upon the terms and conditions hereinafter set forth. As used herein, the
term "Common Stock" shall mean the Company's presently authorized Common Stock,
$.01 par value per share, and any stock into which such Common Stock may
hereafter be exchanged.
By acceptance of this Warrant the Holder agrees to comply with the terms,
conditions and obligations imposed by the Agreement.
1. Term. The purchase right represented by this Warrant is exercisable,
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in whole or in part, at any time or from time to time prior to 5:00 p.m. Boston
time on March 25, 2001.
2. Method of Exercise; Payment; Issuance of New Warrant.
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(a) Subject to the terms hereof, the purchase right represented by
this Warrant may be exercised by the Holder hereof, in whole or in part, by the
surrender of this Warrant (with the notice of exercise form attached hereto as
Exhibit A duly executed) at the principal office of the Company and by the
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payment to the Company, pursuant to Section 2(b) below, of an amount equal to
then applicable Exercise Price per share multiplied by the number of Shares then
being purchased. Certificates for the Shares purchased shall be delivered to the
Holder hereof within 30 days of the date of exercise and, unless this Warrant
has been fully exercised or expired, a new Warrant representing the unexercised
portion shall also be issued to the Holder hereof within such 30 day period.
(b) Method of Payment. Payment shall be made (i) by check payable
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to the Company, or (ii) by wire transfer in accordance with the Company's
written instructions, or (iii) as follows: the Holder may elect to receive,
without the payment by the Holder of any additional consideration, shares equal
to the value of this Warrant or any portion hereof by the surrender of this
Warrant or such portion to the Company, with the net issue election notice
annexed hereto duly executed, at the office of the Company. Thereupon, the
Company shall issue to the Holder such number of fully paid and nonassessable
shares of Common Stock as is computed using the following formula:
X = Y (A-B)
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A
where X = the number of shares to be issued to the Holder pursuant to this
Section 2.
Y = the number of shares covered by this Warrant in respect of which the
net issue election is made pursuant to this Section 2.
A = the fair market value of one share of Common Stock, as determined in
good faith by the Board, as at the time the net issue election is
made pursuant to this Section 2.
B = the Purchase Price in effect under this Warrant at the time the net
issue election is made pursuant to this Section 2.
The Board shall promptly respond in writing to an inquiry by the
Holder as to the fair market value of one share of Common Stock.
3. Stock Fully Paid; Reservation of Shares. All Shares which may be
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issued pursuant to this Warrant, shall, upon issuance, be duly authorized,
validly issued, fully paid and nonassessable, and free of any liens and
encumbrances except for restriction on transfer provided for herein or under
applicable federal and state securities laws. While this Warrant is
outstanding, the Company shall at all times have authorized, and reserved for
the purpose of the issue pursuant to this Warrant, a sufficient number of shares
of the Common Stock to provide for the exercise of the purchase right
represented by this Warrant.
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4. Adjustment of Warrant Price and Number of Shares. The number and kind
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of securities purchasable upon the exercise of this Warrant and the Exercise
Price shall be subject to adjustment from time to time upon the occurrence of
certain events, as follows:
(a) Reclassification, Consolidation or Merger. In the case of any
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reclassification or change of the Common Stock issuable upon exercise of this
Warrant, the Company shall execute a new Warrant, providing that the Holder of
this Warrant shall have the right to exercise such new Warrant and upon such
exercise to receive, in lieu of each share of Common Stock theretofore issuable
upon exercise of this Warrant, the number and kind of shares of stock, other
securities, money or property receivable upon such reclassification or change in
respect of one share of the Common Stock. Such new Warrant shall provide for
further adjustments which shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Section.
(b) Split, Subdivision or Combination of Shares. If the Company at any
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time while this Warrant remains outstanding shall split, subdivide or combine
its Common Stock, the Exercise Price shall be proportionately decreased in the
case of a split or subdivision and increased in the case of a combination.
(c) Stock Dividends. If the Company at any time while this Warrant is
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outstanding shall pay a dividend with respect to the Common Stock payable in, or
make any other distribution with respect to the Common Stock (except any
distribution specifically provided for in Section 4(a) or 4(b) above) of, shares
of the Common Stock, then the Exercise Price shall be adjusted, from and after
the date of determination of the shareholders entitled to receive such dividend
or distribution, to that price determined by multiplying the Exercise Price in
effect immediately prior to such date of determination by a fraction (i) the
numerator of which shall be the total number of the Common Stock outstanding
immediately prior to such dividend or distribution, and (ii) the denominator of
which shall be the total number of shares of the Common Stock outstanding
immediately after such dividend or distribution.
(d) Adjustment of Number of Shares. Upon each adjustment in the
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Exercise Price, the number of Shares purchasable hereunder shall be adjusted, to
the nearest whole share, to the product obtained by multiplying the number of
Shares purchasable immediately prior to such adjustment in the Exercise Price by
a fraction (i) the numerator of which shall be the Exercise Price immediately
prior to such adjustment, and (ii) the denominator of which shall be the
Exercise Price immediately after such adjustment.
5. Transferability. The Holder hereby acknowledges that neither this
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Warrant nor any of the securities that may be acquired upon exercise of this
Warrant have been registered under the Securities Act of 1933, as amended, or
under the securities laws of any state. The Holder acknowledges that, upon
exercise of this Warrant, the securities to be issued upon such exercise may
come under applicable federal and state securities (or other) laws requiring
registration, qualification or
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approval of governmental authorities before such securities may be validly
issued or delivered upon notice of such exercise. The Company's sole obligation
to any Holder upon exercise hereof shall be to use its best efforts to obtain
exemptions from registration or qualification for the issuance of such
securities under applicable state and federal securities (or other) laws, and
the Holder further agrees that the issuance of such securities shall be deferred
until such exemptions shall have been obtained. With respect to any such
securities, this Warrant may not be exercised by, and securities shall not be
issued to, any Holder in any state in which such exercise would be unlawful. The
Holder agrees that the Company may place such legend or legends on certificates
representing securities issued upon exercise of this Warrant as the Company may
reasonably deem necessary to comply with applicable state and federal securities
laws for the issuance of such securities. The provisions of this Section shall
apply to the transfer of this Warrant and the shares of Common Stock purchasable
upon exercise of this Warrant.
6. Notice of Adjustments. Whenever any Exercise Price shall be adjusted
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pursuant to Section 4 hereof, the Company shall issue a certificate signed by
its Chief Financial Officer setting forth, in reasonable detail, the event
requiring the adjustment, the amount of the adjustment, the method by which such
adjustment was calculated and the Exercise Price or Exercise Prices after giving
effect to such adjustment, and shall cause a copy of such certificate to be
mailed (by first class mail, postage prepaid) to the Holder of this Warrant.
7. Fractional Shares. No fractional shares of the Common Stock shall be
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issued in connection with any exercise hereunder, but in lieu of such fractional
shares the Company shall make a cash payment therefor upon the basis of the
Exercise Price then in effect.
8. Prior Notice of Certain Events. The Company shall give the Holder of
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this Warrant prior written notice of any of the following transactions: (a) any
consolidation, merger or other corporate reorganization involving the Company;
(b) any transaction or series of related transactions by the Company in which in
excess of 50% of the Company's voting power is transferred; (c) any
reclassification of the Common Stock; or (d) a sale of all or substantially all
of the assets of the Company. Such notice shall be given to the Holder not
later than the earlier of (x) 20 days prior to the consummation of the
transaction, or (y) 15 days prior to the record date for shareholders entitled
to vote on or participate in the transaction. Such notice shall provide the
Holder with a description of the transaction. The Holder may, by so stating in
its notice of exercise, make any exercise of its rights under this Warrant to
purchase Shares for the Exercise Price effective immediately prior to but
conditional upon, the consummation of any such transaction.
9. No Rights of Shareholders. No Holder of this Warrant shall be entitled
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to vote or receive dividends or be deemed the holder of Common Stock or any
other securities of the Company which may at any time be issuable on the
exercise thereof for any purpose, nor shall anything contained herein be
construed to confer upon the Holder of this Warrant, as such, any of the rights
of a shareholder of the Company or any right to vote for the election of
directors or upon any matter submitted to shareholders at any meeting thereof,
or to give or withhold consent
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to any corporate action (whether upon any recapitalization, issuance of stock,
reclassification of stock, change of par value or change of stock to no par
value, consolidation, merger, conveyance or otherwise) or to receive notice of
meetings, or to receive dividends or subscription rights or otherwise until the
Warrant shall have been exercised as provided herein. Immediately upon any
exercise of this Warrant, and without waiting for the certificates for such
Shares to be issued and delivered, the Holder shall be deemed to be the record
holder of, and to have all rights of a shareholder with respect to, the Shares
issuable upon such exercise.
10. Notices. All notices and other communications from the Company to the
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Holder of this Warrant shall be mailed by first class registered or certified
mail, postage prepaid, or sent by telecopier, facsimile machine or telex to such
address as may have been furnished to the Company in writing by such Holder or,
until any such Holder furnishes to the Company an address, then to, and at the
address of, the last Holder of this Warrant who has so furnished an address to
the Company.
11. Transfer. Subject to the provisions of this Warrant and the
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Agreement, including without limitation the provisions of Section 5 hereof, this
Warrant and all rights hereunder are transferable, in whole or in part, at the
office or agency of the Company by the registered Holder thereof in person or by
a duly authorized attorney, upon surrender of this Warrant together with an
Assignment in the form attached hereto as Exhibit B properly endorsed. Until
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transfer hereof on the registration books of the Company, the Company may treat
the registered Holder hereof as the owner hereof for all purposes. Any
transferee of this Warrant and any rights hereunder, by acceptance thereof,
agrees to assume all of the obligations of a Holder thereunder and to be bound
by all of the terms and provisions of the Agreement.
12. Miscellaneous. In case any provision of this Warrant shall be
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invalid, illegal or unenforceable, or partially invalid, illegal or
unenforceable, the provision shall be enforced to the extent, if any, that it
may legally be enforced and the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby. This
Warrant and any term hereof may be changed, a waived, discharged or terminated
only by a statement in writing signed by the party against which enforcement of
such change, waiver, discharge or termination is sought. This Warrant
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior agreements. This Warrant shall be
governed by and construed in accordance with the domestic substantive laws (and
not the conflict of law rules) of The Commonwealth of Massachusetts. The
headings in this Warrant are for purposes of reference only, and shall not limit
or otherwise affect any of the terms hereof. This Warrant shall take effect as
an instrument under seal.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its duly authorized officer as of this 26th day of March, 1998.
ORGANOGENESIS INC.
By:_________________________________________
Xxxxx X. Xxxxx, President
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EXHIBIT A
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NOTICE OF EXERCISE
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TO: ORGANOGENESIS INC.
1. The undersigned hereby elects to purchase _____________________ shares
of the Common Stock of ORGANOGENESIS INC. pursuant to the terms of the attached
Warrant, and tenders herewith ____________________________________ ($_______) in
payment of the purchase price of such shares in full, together with all
applicable transfer taxes, if any.
2. Please issue a certificate or certificates representing said shares of
the Common Stock in the name of the undersigned or in such other name as is
specified below:
__________________________
(Name)
__________________________
__________________________
(Address)
3. The undersigned represents that the aforesaid shares of the Common
Stock are being acquired solely for his own account (or a trust account if the
holder is a trust) and not as a nominee for any other party, for investment only
and not with a view toward the resale or distribution thereof and that the
undersigned has no present intention of reselling, granting any participation in
or otherwise distributing such shares.
Date:______________________ By:_________________________________
(Signature must conform in all respects to
name of Holder as specified on the face of
the Warrant)
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EXHIBIT B
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FORM OF ASSIGNMENT
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The undersigned holder of this Warrant hereby sells, assigns and transfers
to ____________________________ all of the rights of the undersigned under this
Warrant with respect to ________________________ (________) shares of the Common
Stock of ORGANOGENESIS INC. and requests that a new Warrant of like tenor
evidencing this assignment be issued and delivered to
___________________________________ with an address at ________________________.
____________________________________________
By:_________________________________________
(Signature must conform in all respects to
name of Holder as specified on the face of
the Warrant)
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