EXHIBIT 10.18
UROGEN CORP.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
THIS COMMON STOCK AND WARRANT PURCHASE AGREEMENT (the "Agreement") is
made as of January 21, 2000 by and among UroGen Corp., a Delaware corporation
(the "Company"), with its principal office at 00000 Xxxxxx Xxx, Xxxxx 000, Xxx
Xxxxx, Xxxxxxxxxx 00000 and the investors whose names appear on the Schedule of
Investors attached hereto as Exhibit A (the "Investors").
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ARTICLE I
Purchase of Common Stock and Warrants
1.1 Units. Subject to the terms and conditions hereof, the Company
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will issue and sell to each Investor, and each Investor will each purchase from
the Company, severally, the number of investment units (the "Units") set forth
opposite such Investor's name on the Schedule of Investors. Each Unit consists
of two (2) shares (the "Shares") of the Company's Common Stock (the "Common
Stock"), and the right to purchase one share of Common Stock at $0.75 per share.
The foregoing rights shall be aggregated for each Investor and represented by a
warrant (each a "Warrant," and collectively, the "Warrants") to purchase such
shares (the "Warrant Shares"), in substantially the form attached hereto as
Exhibit B. The maximum aggregate number of Units issuable hereunder is
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1,456,954 Units.
1.2 Allocation of Purchase Price. The purchase price payable by each
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Investor for the Units to be purchased hereunder (the "Purchase Price") shall be
equal to the number of Units to be purchased by that Investor multiplied by
$1.51, as set forth opposite such Investor's name on the Schedule of Purchasers.
The Purchase Price paid for each Unit shall be allocated as follows: (i) $0.75
of each Unit shall be allocated to each Share contained in such Unit, and (ii)
$0.01 of each Unit shall be allocated to the right to purchase one share of
Common Stock represented by the Warrant.
1.3 Obligations of Investors. The obligations of the Investors
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hereunder are several and not joint.
ARTICLE II
Closing and Delivery
2.1 Place and Date of Closing. The initial closing of the
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transactions provided for herein (the "Closing") will be held at the offices of
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx
00000 at 10:00 a.m. on January 21, 2000 (the "Closing Date") or at such other
time and place as the parties shall mutually agree.
2.2 Subsequent Closings. The Company may, at its option, schedule
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additional closings (the "Additional Closings") after the first Closing has been
completed on such date or dates as the Company may determine, but not later than
February 29, 2000. The date of each Additional Closing is hereinafter referred
to as an "Additional Closing Date." The first Closing and each Additional
Closing are sometimes referred to herein individually as a "Closing," and the
first Closing Date and each Additional Closing Date are sometimes referred to
herein individually as a "Closing Date." At each Additional Closing, the
Company shall prepare a revised Schedule of Investors to include any additional
Investors, and each such additional Investor shall execute a signature page to
this Agreement.
2.3 Delivery. At the Closing, the Company will deliver to each
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Investor (i) a certificate representing the number of Shares set forth opposite
such Investor's name on the Schedule of Investors and (ii) a Warrant to purchase
the number of Warrant Shares set forth opposite such Investor's name on the
Schedule of Investors. Each Investor shall deliver to the Company the Purchase
Price set forth opposite such Investor's name on the Schedule of Investors by
check or by wire transfer.
ARTICLE III
Representations and Warranties of the Company
The Company hereby represents and warrants to each Investor as
follows:
3.1 Organization and Standing. The Company is a corporation duly
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organized and validly existing under, and by virtue of, the laws of the State of
Delaware and is in good standing under such laws. The Company has the requisite
corporate power to own and operate its properties and assets, and to carry on
its business as presently conducted and as proposed to be conducted.
3.2 Corporate Power. The Company will have at the Closing all
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requisite legal and corporate power to execute and deliver this Agreement, to
issue the Common Stock, the Warrants and the Warrant Shares and to carry out and
perform its obligations under the terms of this Agreement.
3.3 Authorization. All corporate action on the part of the Company,
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its officers, directors and stockholders that is necessary for the
authorization, execution and delivery of this Agreement by the Company, for the
performance of the Company's obligations hereunder, and for the authorization,
issuance and delivery of the Common Stock, the Warrants and the Warrant Shares,
has been taken or will be taken prior to the Closing. This Agreement and the
Warrants, when executed and delivered, shall constitute the legal and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms, subject to judicial principles respecting election of
remedies or limiting the availability of specific performance, injunctive
relief, and other equitable remedies, and bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
generally relating to or affecting creditors' rights.
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3.4 Capitalization.
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(a) As of December 31, 1999, the authorized capital stock of the
Company consisted of 40,000,000 shares of Common Stock, of which 12,104,101
shares were issued and outstanding; and 5,000,000 shares of preferred stock
("Preferred Stock"), of which 40,000 shares have been designated Series A
Preferred Stock, of which 5,830 shares were issued and outstanding; 10,000
shares have been designated Series B Preferred Stock, of which 2,998 shares were
issued and outstanding; and 17,000 shares have been designated Series C
Preferred Stock, of which no shares were issued or outstanding. The Series A
Preferred Stock converts to Common Stock on a 1,000-to-1 basis. The Series B
and C Preferred Stock convert to Common Stock based upon the fair market value
of the Common Stock at the date of conversion. All issued and outstanding
shares of Common Stock and Preferred Stock have been duly authorized and validly
issued, and are fully paid and non-assessable. The Company has agreed to repay
certain indebtedness to Xxxxxx Healthcare Corporation, under a Credit Agreement
dated July 8, 1998, in shares of Series B Preferred Stock. As of December 31,
1999, the amount of such indebtedness was $1,876,003, which will convert into
1,876 shares of Series B Preferred Stock. In addition, Xxxxxx is obligated to
purchase shares of Series C Preferred Stock upon the Company's achievement of
certain milestones.
(b) As of December 31, 1999, the Company had reserved 5,172,668
shares of Common Stock for issuance to employees, officers, directors and
consultants of the Company, as may be determined by the Company's Board of
Directors from time to time under the Company's 1995 Stock Plan, as amended, and
1999 Stock Plan (the "Option Plans"). As of December 31, 1999, options to
purchase 3,341,183 shares of Common Stock were outstanding. As of December 31,
1999, there were no outstanding rights, options, warrants, preemptive rights,
conversion rights, rights of first refusal or similar rights or agreements, oral
or written, for the purchase or acquisition from the Company of any shares of
its capital stock or any other securities, except for outstanding options under
the Option Plans and the following warrants: (i) in 1997, the Company issued a
warrant, expiring in July 2001, to purchase 200,000 shares of Common Stock at
$0.05 per share to an officer of the Company; (ii) in July 1998, in connection
with the issuance of convertible debt, the Company issued warrants, expiring in
July 2005, to purchase 515,000 shares of Common Stock at $0.74 per share; (iii)
in April 1999, in connection with the issuance of additional convertible debt,
the Company issued warrants, expiring in April 2006, to purchase 1,333,333
shares of Common Stock at $0.30 per share; (iv) in October 1999, in connection
with a capital lease line, the Company issued warrants, expiring in October
2006, to purchase 250,000 shares of Common Stock at $0.30 per share; (v) in
connection with a guaranty provided by Xxxxxx, the Company has committed to
issue warrants to Xxxxxx, expiring in January 2007, to purchase 500,000 shares
of Common Stock at $0.30 per share.
(c) Validity of Securities; Reservation of Shares. The Shares
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and Warrants, when issued, sold and delivered in accordance with the terms of
this Agreement, and the Warrant Shares, when issued, sold and delivered in
accordance with the terms of the Warrants, will be duly authorized, validly
issued, fully paid and nonassessable and will be free and clear of any liens or
encumbrances; provided, however, that each of the Shares, the Warrants or the
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Warrant Shares may be subject to restrictions on transfer to the extent provided
herein or under state
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and/or federal securities laws. Based in part upon the representations of the
Investors in this Agreement, the offer, sale and issuance of the Shares and the
Warrants (and the Warrant Shares) will be in compliance with all applicable
federal and state securities laws. The Company has reserved 1,456,954 shares of
Common Stock for exercise of the Warrants issued hereunder. The Company
covenants that, so long as any Warrants remain outstanding, it will at all times
reserve and keep available, solely for issuance to the holders of the Warrants
in accordance with this Agreement, sufficient shares of Common Stock issuable
upon exercise of the Warrants. If at any time the number of authorized but
unissued shares of Common Stock is not sufficient to effect the issuances
contemplated by this Agreement, the Company will take such corporate action as
may, in the opinion of its counsel, be necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall be sufficient
for such purpose.
3.5 Governmental Consent, etc. No consent, approval or authorization
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of or designation, declaration or filing with any state or federal governmental
authority on the part of the Company is required in connection with the valid
execution and delivery of this Agreement or the offer, sale or issuance of the
Shares and the Warrants (and the Warrant Shares), or the consummation of any
other transaction contemplated hereby (excluding Article VI hereof), except the
qualification (or the taking of such action as may be necessary to secure an
exemption from qualification, if available), under the California Corporate
Securities Law and other applicable blue sky laws, of the offer and sale of the
Shares and Warrants (and the Warrant Shares), which qualification, if required,
will be accomplished in a timely manner prior to or promptly upon completion of
the Closing.
3.6 SEC Documents; Parent Financial Statements. The Company has
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furnished or made available to the Investors true and complete copies of all
reports or registration statements filed by it with the U.S. Securities and
Exchange Commission (the "SEC") under the Securities Act of 1933 (the
"Securities Act") or the Securities Exchange Act of 1934 (the "Exchange Act")
since January 1, 1999, all in the form so filed (all of the foregoing being
collectively referred to as the "SEC Documents"), which are all the documents
(other than preliminary materials) that the Company was required to file with
the SEC since such date. As of their respective filing dates, the SEC Documents
complied in all material respects with the requirements of the Securities Act or
the Exchange Act, as the case may be, and none of the SEC Documents contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements made therein,
in light of the circumstances in which they were made, not misleading, except to
the extent corrected by a document subsequently filed with the SEC. The
financial statements of the Company, including the notes thereto, included in
the SEC Documents (the "Financial Statements") comply as to form in all material
respects with applicable accounting requirements and with the published rules
and regulations of the SEC with respect thereto, have been prepared in
accordance with generally accepted accounting principles consistently applied
(except as may be indicated in the notes thereto or, in the case of unaudited
statements, as permitted by Form 10-Q of the SEC) and present fairly the
consolidated financial position of the Company at the dates thereof and the
consolidated results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal recurring adjustments).
There has been no change in the Company's accounting policies except as
described in the notes to the Financial Statements.
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3.7 No Material Adverse Change. Since the date of the balance sheet
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included in the Company's most recently filed report on Form 10-QSB or Form 10-
KSB, the Company has conducted its business in the ordinary course and there has
not occurred: (a) any material adverse change in the financial condition,
liabilities, assets or business of the Company; (b) any amendment or change in
the Certificate of Incorporation or Bylaws of the Company; or (c) any damage to,
destruction or loss of any assets of the Company (whether or not covered by
insurance) that materially and adversely affects the financial condition or
business of the Company.
3.8 Litigation. There is no action, suit, proceeding, claim,
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arbitration or investigation pending, or as to which the Company has received
any notice of assertion against the Company, which in any manner challenges or
seeks to prevent, enjoin, alter or materially delay any of the transactions
contemplated by this Agreement.
ARTICLE IV
Representations and Warranties of the Investors
Each Investor represents and warrants to the Company, as of the
Closing Date and upon exercise of any Warrants, as follows (the Shares, the
Warrants and the Warrant Shares are collectively referred to as the
"Securities"):
4.1 Authorization. All action on the part of the Investor for the
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authorization, execution, delivery and performance by the Investor of this
Agreement has been taken, and this Agreement constitutes a valid and binding
obligation of the Investor, enforceable in accordance with its terms, except as
may be limited by applicable bankruptcy, insolvency, reorganization, or similar
laws relating to or affecting the enforcement of creditors' rights.
4.2 Experience/Risk. The Investor is experienced in evaluating and
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investing in new companies such as the Company. The Investor is a sophisticated
investor with such knowledge and experience in financial and business matters so
as to be capable of evaluating the merits and risks of a prospective investment
in the Securities and of bearing the economic risks of such investment.
4.3 Investment. The Investor is acquiring the Securities for
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investment for its own account and not with a view to, or for resale in
connection with, any distribution. The Investor understands that the Securities
to be acquired have not been registered under the Securities Act by reason of a
specific exemption from the registration provisions of the Securities Act that
depends upon, among other things, the bona fide nature of the investment intent
as expressed herein.
4.4 Restricted Securities. The Investor acknowledges that the
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Securities must be held indefinitely unless subsequently registered under the
Securities Act or unless an exemption from such registration is available. The
Investor is aware of the provisions of Rule 144 promulgated under the Securities
Act, which permits limited resale of securities purchased in a private placement
subject to the satisfaction of certain conditions, including, in case the
Investor has held
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the Securities for less than two years or is an affiliate of the Company, among
other things: the availability of certain current public information about the
Company, the resale occurring not less than one year after a party has purchased
and paid for the Securities to be sold, the sale being through a "broker's
transaction" or in transactions directly with a "market maker," and the number
of Securities being sold during any three-month period not exceeding specified
limitations.
4.5 Limited Public Market. The Investor understands that only an
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extremely limited public market now exists for the Common Stock, that no public
market exists for the other Securities issued by the Company and that a public
market for the Common Stock may not develop or be sustained sufficiently to
permit the resale of the Securities.
4.6 Access to Data. The Investor has had an opportunity to discuss
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the Company's business, management and financial affairs with the Company's
management. The Investor understands that such discussions, as well as the
written information issued by the Company, were intended to describe the aspects
of the Company's business and prospects which it believes to be material but
were not necessarily a thorough or exhaustive description.
4.7 Accredited Investor Status. The Investor currently does and will
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as of the Closing Date qualify as an "accredited investor" within the meaning of
Regulation D (17 C.F.R. (S) 230.501) of the rules and regulations promulgated
under the Securities Act.
4.8 Government Consents. No consent, approval or authorization of or
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designation, declaration or filing with any state, federal or foreign
governmental authority on the part of the Investor is required in connection
with the valid execution and delivery of this Agreement by the Investor and the
consummation by the Investor of the transactions contemplated hereby.
4.9 Legends. Each certificate representing the Securities shall be
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endorsed with the following legend (in addition to any legend required under
applicable state securities laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. SUCH SECURITIES MAY NOT BE SOLD
OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION, UNLESS
SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENT OF SAID ACT. COPIES OF THE
AGREEMENT COVERING THE ACQUISITION OF THESE SECURITIES AND
RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY
WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS
CERTIFICATE TO THE SECRETARY OF THE CORPORATION AT THE
PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION.
The Company need not record, and may instruct its transfer agent not to record,
a transfer of Securities, unless the conditions specified in the foregoing
legend are satisfied.
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ARTICLE V
Transfer Restrictions; Rights as Stockholder
5.1 Restrictions on Transfer. Each Investor acknowledges that the
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Securities may not be transferred or assigned in whole or in part without (i)
the prior written consent of the Company and (ii) compliance with applicable
federal and state securities laws; provided, however, that the Securities may be
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transferred without the prior written consent of the Company in the following
transactions:
(a) A transfer of Securities in whole by a holder who is a natural
person during such holder's lifetime or on death by will or intestacy to such
holder's immediate family or to any custodian or trustee for the account of such
holder or such holder's immediate family. As used herein, "immediate family"
shall mean spouse, lineal descendant, father, mother, brother, or sister of the
holder.
(b) A transfer of Securities in whole to the Company or to any
stockholder of the Company.
(c) A transfer of Securities in whole or in part to a person who, at
the time of such transfer, is, or is an affiliate of, an officer or director of
the Company.
(d) A transfer of Securities in whole but not in part pursuant to and
in accordance with the terms of any merger, consolidation, reclassification of
shares or capital reorganization of a corporate stockholder or pursuant to a
sale of all or substantially all of the stock or assets of a corporate
stockholder.
(e) A transfer of Securities in accordance with Rule 144 under the
Securities Act.
(f) A transfer of Securities by a holder which is a limited or general
partnership to any of its partners or former partners.
(g) A transfer of Securities which is registered under the Securities
Act.
5.2 No Rights or Liability as a Stockholder. The Warrants shall not
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entitle the holder thereof to any voting rights or other rights as a stockholder
of the Company. No provisions of the Warrants, in the absence of affirmative
action by the holder thereof to purchase Warrant Shares, and no enumeration
herein of the rights or privileges of the holder hereof, shall give rise to any
liability of such holder as a stockholder of the Company.
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ARTICLE VI
Registration Rights
6.1 Registrable Securities. The Shares and the Warrant Shares shall be
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deemed "Registrable Securities," and the holders of such shares (the "Holders")
shall be entitled to registration rights with respect thereto as set forth in
this Article VI.
6.2 Registration. The Company shall use commercially reasonable efforts
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to cause the Registrable Securities held by each Holder to be registered under
the Securities Act so as to permit the resale thereof, and in connection
therewith shall use all commercially reasonable efforts to prepare and file with
the Securities and Exchange Commission (the "SEC") on or before 90 days after
the date hereof, and shall use commercially reasonable efforts to cause to
become effective as soon as practicable thereafter, a registration statement
under the Securities Act covering the Registrable Securities; provided, however,
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that each Holder shall provide all such information and materials to the Company
and take all such action as may be required in order to permit the Company to
comply with all applicable requirements of the SEC and to obtain any desired
acceleration of the effective date of such registration statement. Such
provision of information and materials is a condition precedent to the
obligations of the Company to such Holder pursuant to this Article VI. The
Company shall not be required to effect more than one (1) registration under
this Article VI.
6.3 Company Obligations. The Company shall (i) for the Shares and the
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Warrant Shares, keep the registration statement filed in accordance with Section
6.2 hereof effective until the earlier of (A) two years after the registration
statement has been declared effective by the SEC or (B) such time as no Holders
shall own any Shares; (ii) forthwith prepare and file with the SEC such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to comply with the provisions
of the Securities Act with respect to the sale or other disposition of all
securities proposed to be registered in such registration statement; (iii)
furnish to each Holder such number of copies of any prospectus (including any
preliminary prospectus and any amended or supplemented prospectus) in conformity
with the requirements of the Securities Act, and such other documents, as each
Holder may reasonably request in order to effect the offering and sale of the
shares of the Registrable Securities to be offered and sold, but only while the
Company shall be required under the provisions hereof to cause the registration
statement to remain current; (iv) provide a CUSIP number, transfer agent and
registrar for all Registrable Securities; and (v) use its commercially
reasonable efforts to register or qualify the shares of the Registrable
Securities covered by such registration statement under the securities or blue
sky laws of such jurisdictions as each Holder shall reasonably request (provided
that the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such jurisdiction where it has not been qualified). The Company
agrees to pay to each Holder an amount equal to $0.00075 per Unit held by such
Holder for each day that the Company has failed to have filed a registration
statement as required by Section 6.2 hereof beyond 90 days after the date
hereof.
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6.4 Underwriting. If the distribution of the Registrable Securities
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covered by a registration pursuant to this Article VI is to be effected by means
of a firm commitment underwriting, the right of any Holder to include
Registrable Securities in such registration shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein.
(a) The Company (together with all Holders proposing to distribute
their securities through such underwriting) shall enter into an underwriting
agreement in customary form with a managing underwriter of nationally recognized
standing selected for such underwriting by the Company but subject to the
approval of a majority in interest of the Holders, which approval shall not
unreasonably be withheld. Notwithstanding any other provision of this Article
VI, if the managing underwriter determines that marketing factors require a
limitation of the number of shares to be underwritten, then the underwriters may
limit the number of shares of Registrable Securities that may be included in the
registration and underwriting, provided that no shares other than Registrable
Securities are included in such registration and underwriting. The shares so
limited shall be allocated among Holders in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities held by such
Holders at the time of filing the registration statement. No Registrable
Securities excluded from the underwriting by reason of the managing
underwriter's marketing limitation shall be included in such registration. If
any Holder disapproves of the terms of the underwriting, such Holder may elect
to withdraw therefrom by written notice to the Company and the managing
underwriter. The Registrable Securities so withdrawn from such underwriting
shall also be withdrawn from registration; provided, however, that if by the
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withdrawal of such Registrable Securities a greater number of Registrable
Securities held by other Holders may be included in such registration (up to the
maximum of any limitation imposed by the underwriters), then the Company shall
offer to all Holders who have included Registrable Securities in the
registration the right to include additional Registrable Securities in the same
proportion used in determining the underwriter limitation as set forth above.
(b) If the managing underwriter has not limited the number of
Registrable Securities to be underwritten in any registration requested pursuant
to Section 6.2, the Company may include securities for its own account or for
the account of others in such registration if the managing underwriter so agrees
and if the number of Registrable Securities held by Holders which would
otherwise have been included in such registration and underwriting will not
thereby be limited. The inclusion of such shares shall be on the same terms as
for the Registrable Securities, subject to the following sentence. In the event
that the managing underwriter excludes some of the securities to be registered
pursuant to Section 6.2, the securities to be sold for the account of the
Company and any other holders shall be excluded in their entirety prior to the
exclusion of any Registrable Securities.
6.5 Selling Procedures. Any sale of Registrable Securities pursuant to
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the registration statement filed in accordance with Section 6.2 hereof shall be
subject to the following conditions and procedures:
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(a) Updating the Prospectus. If the distribution of the Registrable
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Securities covered by a registration pursuant to this Article VI is not to be
effected by means of a firm commitment underwriting, and if the Company informs
the selling Holders that the registration statement or final prospectus then on
file with the SEC is not current or otherwise does not comply with the
Securities Act, the Company shall use commercially reasonable efforts to provide
to the selling Holders a current prospectus that complies with the Securities
Act on or before the date of the intended sale of the Registrable Securities;
provided, however, that no more than once during any one hundred eighty-day
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period (the "Information Delay Period"), the Company shall have the right to
delay the preparation of a current prospectus that complies with the Securities
Act for up to forty-five (45) days, if the Board of Directors of the Company,
acting in good faith, determines that there exists material nonpublic
information about the Company which the Board does not wish to disclose in a
registration statement (due to the fact that such disclosure may not be in the
best interests of the Company's stockholders), which information would otherwise
be required by the Securities Act to be disclosed in the registration statement
to be filed pursuant to Section 6.2 above;
(b) General. Notwithstanding the foregoing, the Company shall notify
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each Holder (A) of any request by the SEC or any other federal or state
governmental authority during the period of effectiveness of the registration
statement for amendments or supplements to the registration statement or related
prospectus or for additional information relating to the registration statement,
(B) of the issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of the registration
statement or the initiation of any proceedings for that purpose, (C) of the
receipt by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (D) of the happening of any event which makes
any statement made in the registration statement or related prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or which requires the making of any changes in the
registration statement or prospectus so that, in the case of the registration
statement, it will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and that in the case of the prospectus, it
will not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. In such event,
the Company may suspend use of the prospectus on written notice to each Holder,
in which case each Holder shall not dispose of Registrable Securities covered by
the registration statement or prospectus until copies of a supplemented or
amended prospectus are distributed to the Holders or until the Holders are
advised in writing by the Company that the use of the applicable prospectus may
be resumed. The Company shall use its commercially reasonable efforts to ensure
that the use of the prospectus may be resumed as soon as practicable. The
Company shall use its commercially reasonable efforts to obtain the withdrawal
of any order suspending the effectiveness of the registration statement, or the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the securities for sale in any jurisdiction. The Company shall, upon
the occurrence of any event contemplated by clause (D), forthwith prepare a
supplement or post-effective amendment to the registration statement or a
supplement to the
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related prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Securities being sold thereunder, such prospectus will not
contain an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
6.6 Expenses. The Company shall reimburse, in an amount not to exceed
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$25,000, the out-of-pocket expenses of the Holders incurred, other than
underwriting or selling discounts and commissions, in connection with the
registration of Registrable Securities pursuant to this Article VI including,
without limitation, all SEC, National Association of Securities Dealers, Inc.
and blue sky registration and filing fees, printing expenses, transfer agents'
and registrars' fees, and the reasonable fees and disbursements of the Company's
outside counsel and the Company's independent accountants.
6.7 Indemnification.
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(a) In connection with any registration pursuant to this Article VI,
the Company will indemnify each Holder, each of its officers and directors and
partners, and each person controlling such Holder within the meaning of Section
15 of the Securities Act, with respect to which registration has been effected
pursuant to this Agreement, against all expenses, claims, losses, damages or
liabilities (or actions in respect thereof), including any of the foregoing
incurred in settlement of any litigation, commenced or threatened, arising out
of or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any registration statement, prospectus, offering circular or
other document, or any amendment or supplement thereto, incident to any such
registration, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading,
or any violation by the Company of the Securities Act, the Exchange Act, state
securities laws or any rule or regulation promulgated under such laws applicable
to the Company in connection with any such registration, and the Company will
reimburse each such Holder, each of its officers and directors, and each person
controlling such Holder, for any legal and any other expenses reasonably
incurred, as such expenses are incurred, in connection with investigating,
preparing or defending any such claim, loss, damage, liability or action,
provided that the Company will not be liable in any such case to the extent that
any such claim, loss, damage, liability or expense arises out of or is based on
any untrue statement or omission or alleged untrue statement or omission, made
in reliance upon information furnished to the Company by such Holder or
controlling person, provided, however, that the foregoing indemnity agreement is
subject to the condition that, insofar as it relates to any such untrue
statement, alleged untrue statement, omission or alleged omission made in a
preliminary prospectus on file with the Commission at the time the registration
statement becomes effective or the amended prospectus is filed with the
Commission pursuant to Rule 424(b) (the "Final Prospectus"), such indemnity
agreement shall not inure to the benefit of any Holder, if a copy of the Final
Prospectus was not furnished to the person asserting the loss, liability, claim
or damage at or prior to the time such action is required by the Securities Act,
and if the Final Prospectus would have cured the defect giving rise to the loss,
liability, claim or damage.
-11-
(b) Each Holder will indemnify the Company, each of its directors and
officers, other holders of the Company's securities covered by such registration
statement, each person who controls the Company within the meaning of Section 15
of the Securities Act, and each other such Holder, each of its officers and
directors and each person controlling such other Holder within the meaning of
Section 15 of the Securities Act, against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or any violation by the Holder of the Securities Act, the Exchange
Act, state securities laws or any rule or regulation promulgated under such laws
applicable to the Holder, and will reimburse the Company, such other Holders,
such directors, officers, persons, underwriters or control persons for any legal
or any other expenses reasonably incurred, as such expenses are incurred, in
connection with investigating or defending any such claim, loss, damage,
liability or action, to the extent that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance
information furnished to the Company by such Holder.
(c) Each party entitled to indemnification under this Section 6.7 (an
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Agreement unless the failure to give such notice is
materially prejudicial to an Indemnifying Party's ability to defend such action,
and provided further that the Indemnifying Party shall not assume the defense
for matters as to which there is a conflict of interest or there are separate
and different defenses; provided, that the Indemnifying Party shall remain
liable for reasonable legal expenses of one counsel for the Indemnified Party.
No Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party (whose consent shall not be
unreasonably withheld), consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation.
(d) Notwithstanding the foregoing, to the extent that provisions
relating to indemnification and contribution contained in an underwriting
agreement entered into in connection with an underwritten public offering
pursuant to Section 6.4 are in conflict with the foregoing provisions, the
provisions in such underwriting agreement shall control.
-12-
ARTICLE VII
Additional Covenants of the Investors
7.1 Voting. Until such time as an Investor holds securities of the
------
Company representing less than 5% of the total outstanding voting stock of the
Company, such Investor shall: (i) take such all action necessary or appropriate
such that all voting stock owned by such Investor and its affiliates are voted
(in person or by proxy) (A) for the nominees to the Company's Board of Directors
nominated and recommended to the Company's stockholders by the Company
management, and (B) on all other matters to be voted on by the Company's
stockholders, in such manner as is recommended by the Company's management to
the stockholders; and (ii) be present, in person or by proxy, at all duly held
meetings of the stockholders of the Company so that all voting stock held by
such Investor may be counted for purposes of determining the presence of a
quorum at such meetings.
7.2 Voting Trusts. Except as consented to by the Company in writing, no
-------------
Investor shall deposit any voting stock of the Company owned by it in a voting
trust or subject any such stock to any similar arrangement or agreement with
respect to the voting of such stock.
7.3 Solicitation of Proxies. Without the Company's prior written consent,
-----------------------
no Investor shall solicit proxies with respect to any voting stock of the
Company, nor become a "participant" in any "election contest" as such terms are
used in Rule 14a-11 of Regulation 14A under the Exchange Act relating to the
election of directors of the Company.
7.4 Acts in Concert with Others. Except as permitted in writing by the
---------------------------
Company, no Investor shall join any group or otherwise act in concert with any
third person for the purpose of acquiring, holding or disposing of voting stock
of the Company.
ARTICLE VIII
Miscellaneous
8.1 Waivers and Amendments. With the written consent of the holders of a
----------------------
majority of the Shares and Warrant Shares, the obligations of the Company and
the rights of the holders of Securities under this Agreement or the Warrants may
be waived (either generally or in a particular instance, either retroactively or
prospectively and either for a specified period of time or indefinitely), and
with the same consent the Company, when authorized by resolution of its board of
directors, may enter into a supplementary agreement for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or the Warrants; provided, however, that (i) all persons
-------- -------
affected by such waiver or supplemental agreement are treated in the same
manner, unless the record or beneficial holders of all Securities consent to
such amendment or supplemental agreement, and (ii) no such waiver or
supplemental agreement shall reduce the above percentage of holders of Shares
and Warrant Shares which is required to consent to any waiver or supplemental
agreement, without the consent of the record or beneficial holders of all
Securities. Upon the effectuation of each such waiver, consent, agreement,
amendment or modification the Company shall promptly give written notice thereof
-13-
to the record holders of Securities who have not previously consented thereto in
writing. Neither this Agreement nor any provisions hereof may be changed,
waived, discharged or terminated orally, but only by a signed statement in
writing.
8.2 Governing Law. This Agreement shall be governed in all respects by
-------------
the laws of the State of California as such laws are applied to agreements
between California residents entered into and to be performed entirely within
California.
8.3 Survival. The representations, warranties, covenants and agreements
--------
made herein shall survive the execution and delivery of this Agreement and the
sale of the Shares and the Warrants.
8.4 Successors and Assigns. Except as otherwise expressly provided
----------------------
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
8.5 Entire Agreement. This Agreement and the other documents delivered
----------------
pursuant hereto constitute the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof.
8.6 Severability. In case any provision of this Agreement shall be
------------
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
8.7 California Corporate Securities Law. THE SALE OF THE SECURITIES WHICH
-----------------------------------
ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER
OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF THE SECURITIES OR
THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO SUCH
QUALIFICATION IS UNLAWFUL UNLESS THE SALE OF SECURITIES IS EXEMPT FROM THE
QUALIFICATION BY SECTION 25100, 25102, OR 25105 OF THE CALIFORNIA CORPORATIONS
CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED
UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT.
8.8 Titles and Subtitles. The titles of the paragraphs and subparagraphs
--------------------
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
8.9 Delays or Omissions. It is agreed that no delay or omission to
-------------------
exercise any right, power or remedy accruing to the Investor, upon any breach or
default of the Company under this Agreement or the Warrants, shall impair any
such right, power or remedy, nor shall it be construed to be a waiver of any
such breach or default, or any acquiescence therein, or of or in any similar
breach or default thereafter occurring; nor shall any waiver of any single
breach or default be deemed a waiver of any other breach or default theretofore
or thereafter occurring. It is further agreed that any waiver, permit, consent
or approval of any kind or character by the Investor of any breach or default
under this Agreement, or any waiver by the Investor of any
-14-
provisions or conditions of this Agreement must be in writing and shall be
effective only to the extent specifically set forth in writing and that all
remedies, either under this Agreement, or by law or otherwise afforded to the
Investor, shall be cumulative and not alternative.
8.10 Notices. Any notice or report required in this Agreement or permitted
-------
to be given shall be given by depositing the same in the United States mail,
postage prepaid and addressed to the parties as follows: (i) if to the Company,
to the attention of the President at the Company's principal address set forth
on the first page hereof, with a copy to Xxxxxxx X. Xxxxxxx, Xxxxxx Xxxxxxx
Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, and (ii) if
to an Investor, to such Investor at such Investor's address as set forth on the
Schedule of Investors.
8.11 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
[This space intentionally left blank]
-15-
IN WITNESS WHEREOF, the parties have caused this Common Stock and Warrant
Purchase Agreement to be duly executed and delivered as of the date first
written above.
THE COMPANY: UROGEN CORP.
By:________________________________________
Xxxxxx X. Xxxxx, M.D.
President and Chief Executive Officer
THE INVESTORS: INVESTOR
By:________________________________________
Name: ((FirstName)) ((LastName))
--------------------------
Title:__________________________________
[Signature Page to Common Stock and Warrant Purchase Agreement]
EXHIBIT A
SCHEDULE OF INVESTORS
Name and Address of Investor Aggregate Number of Number of Number of
Purchase Units Shares of Warrant
Price Common Shares
Stock
Aries Domestic Fund, L.P. $ 256,767.95 170,045 340,090 170,045
000 0/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxx
Aries Domestic Fund II, L.P. $ 39,933.46 26,446 52,892 26,446
000 0/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxx
The Aries Master Fund $ 565,801.53 374,703 749,406 374,703
Attn: Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxxxx, M.D. $ 49,999.12 33,112 66,224 33,112
000 Xxxx Xxx Xxxxxx, #0X
Xxx Xxxx, XX 00000
Xxxx X. Xxxxxx, M.D. $ 24,999.50 16,556 33,112 16,556
000 0/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Xxxxx Xxxxx $ 12,499.78 8,278 16,556 8,278
0000 Xxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxx Xxxxxxxxxxx $ 49,999.12 33,112 66,224 33,112
000 Xxxxxxxxx Xxxxx, 00X
Xxx Xxxx, XX 00000
EGM Medical Technology Fund, $ 150,000.30 99,338 198,676 99,338
L.P.
0 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Marc Pentopoulus
-A1-
Name and Address of Investor Aggregate Number Number of Number of
Purchase of Shares of Warrant
Price Units Common Shares
Stock
EGM Medical Technology $ 100,000.20 66,225 132,451 66,225
Offshore Fund
0 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Xxxxxxx Xxxxxxxxx Consultants, $ 400,000.00 264,901 529,801 264,901
LLC
000 Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
Perceptive Life Sciences, L.P. $ 100,000.50 66,225 132,451 66,225
000 Xxxxx Xxxxxx, 0/xx/ Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Xxxxx Xxxxxxxx $ 277,085.00 183,500 367,000 183,500
000 Xxxx 00/xx/ Xxxxxx, Xxx. 00X
Xxx Xxxx, XX 00000
Xxxxxxxx Xxxxxx $ 226,500.00 150,000 300,000 150,000
000 Xxxx 00/xx/ Xxxxxx, XX-X
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxxx $ 125,000.00 82,781 165,563 82,781
0 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxx $ 100,000.50 66,225 132,451 66,225
000 Xxxxxxx Xxxx Xxxx, #0X
Xxx Xxxx, XX 00000
Xxxx Xxxxx $ 75,000.00 49,669 99,338 49,669
0 Xxxx 00/xx/ Xxxxxx, 00X
Xxx Xxxx, XX 00000
Xxxx Xxxxxxxxx $ 25,001.00 16,557 33,114 16,557
00 Xxxx 00/xx/ Xxxxxx, 00X
Xxx Xxxx, XX 00000
-A2-
Name and Address of Investor Aggregate Number Number of Number of
Purchase of Shares of Warrant
Price Units Common Shares
Stock
Xxxxxx Xxxxx $ 25,000.00 16,556 33,113 16,556
000 Xxxx 00/xx/ Xxxxxx, Xxx. #00X
Xxx Xxxx, XX 00000
Xxxx Xxxxx $ 50,000.00 33,113 66,226 33,113
000 Xxxx Xxxxxx, Xxx. 00X
Xxx Xxxx, XX 00000
Xxxxxx X. Xxxxxxx $ 25,000.00 16,556 33,113 16,556
000 Xxxxx Xxxx
Xxxx Xxxxx, XX 00000
TOTAL $2,678,587.96
-A3-
EXHIBIT B
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON THE EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR STATE SECURITIES
LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT ONLY AND NOT WITH A
VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. THESE
SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT
STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT AND IS IN COMPLIANCE WITH
APPLICABLE STATE SECURITIES LAWS. THIS WARRANT AND THE SHARES ISSUABLE UPON THE
EXERCISE HEREOF ARE SUBJECT TO CERTAIN RESTRICTIONS ON THEIR TRANSFER PURSUANT
TO TERMS SET FORTH IN THIS WARRANT.
No. W-((Number)) Warrant to Purchase Shares
of Common Stock
(Subject to Adjustment)
UROGEN CORP.
------------
COMMON STOCK PURCHASE WARRANT
Void after January 21, 2005
UroGen Corp., a Delaware corporation (the "Company"), hereby certifies that, for
value received, ((FirstName)) ((LastName)), or its permitted assigns, is
entitled, subject to the terms set forth below, to purchase from the Company at
any time or from time to time before 5:00 p.m. Pacific time, on January 21, 2005
(the "Expiration Time"), ((Numberofshares)) fully paid and nonassessable shares
of Common Stock of the Company at a purchase price per share equal to the
Warrant Price (as defined herein) and otherwise in accordance with the terms
hereof. The number and character of such shares of Common Stock and the Warrant
Price therefor are subject to adjustment as provided below.
As used herein the following terms, unless the context otherwise requires, have
the following respective meanings:
(a) The term "Agreement" shall mean the Common Stock and Warrant Purchase
Agreement by and among the Company and certain of the Company's investors dated
as of the Original Issuance Date.
(b) The term "Company" shall mean Urogen Corp. and any corporation that
shall succeed to or assume the obligations of the Company hereunder.
-C1-
(c) The term "Control Transaction" shall mean (i) the sale by the Company
of all or substantially all of its assets or (ii) any transaction or series of
related transactions by the Company (including, without limitation, any
reorganization, merger or consolidation) which results in the transfer of at
least fifty percent (50%) of the outstanding voting power of the Company;
provided, however, that a reorganization, merger or similar transaction shall
-------- -------
not be deemed a Control Transaction if the stockholders of the Company
immediately prior to such transaction maintain beneficial ownership and voting
control of a majority of the outstanding voting securities of the surviving
entity in the same relative proportions as they did prior to such transaction.
(d) The term "holder" shall mean the holder of this Warrant or any
permitted transferee or assignee thereof.
(e) The term "Original Issuance Date" shall mean January 21, 2000.
(f) The term "Warrant" shall mean this Warrant.
(g) The term "Warrant Price" shall mean $0.75 per share.
(h) The term "Warrant Shares" shall mean the shares of Common Stock or
other securities of the Company issuable upon exercise of this Warrant, subject
to adjustment hereunder from time to time.
1. Initial Exercise Date; Expiration. This Warrant may be exercised in
---------------------------------
full at any time prior to the Expiration Time, and shall expire immediately
thereupon. Notwithstanding the foregoing, this Warrant shall expire and no
longer be exercisable immediately prior (and subject to) the closing of any
Control Transaction. The Company shall provide the holder of this Warrant with
at least 15 days prior notice of the occurrence of any event that would
constitute a Control Transaction.
2. Exercise of Warrant.
-------------------
(a) This Warrant may be exercised in full by the holder hereof by
surrender of this Warrant, with the form of subscription attached hereto duly
executed by such holder, to the Company at its principal office, accompanied by
payment in accordance with Section 2(b) hereof, of the aggregate Warrant Price
of the Warrant Shares to be purchased hereunder.
(b) In lieu of payment in cash, payment of the aggregate Warrant
Price upon exercise of the Warrant may be made by (i) surrender to the Company
of debt or equity securities of the Company having a fair market value equal to
the aggregate exercise price of the Warrant Shares being purchased upon such
exercise (provided that for purposes of this subparagraph, the fair market value
of the Common Stock shall equal the Market Price of the Common Stock as set
forth below, and the fair market value of any note or other debt security shall
be deemed to be equal to the aggregate outstanding principal amount thereof plus
all accrued and unpaid interest thereon) or (ii) delivery of a written notice to
the Company that the holder is exercising the Warrant by authorizing the Company
to withhold from issuance a number of Warrant Shares
-C2-
issuable upon such exercise of the Warrant which when multiplied by the Market
Price (as set forth below) is equal to the aggregate Warrant Price of the
Warrant Shares being purchased upon such exercise (and such withheld shares
shall no longer be issuable under this Warrant).
(c) The Market Price of the Company's Common Stock as of a particular
date (the "Determination Date") shall be calculated as follows:
(i) If the Company's Common Stock is traded on an exchange or
is quoted on the National Association of Securities Dealers, Inc. Automated
Quotation ("Nasdaq") National Market System, then the average of the closing or
last sale prices, respectively, reported for the twenty (20) business days
immediately preceding the Determination Date;
(ii) If the Company's Common Stock is not traded on an
exchange or on the Nasdaq National Market System but is traded in the over-the-
counter market, then the average of the means of the closing bid and asked
prices reported for the twenty (20) business days immediately preceding the
Determination Date;
(iii) If the Company's Common Stock is not traded on an
exchange, on the Nasdaq National Market System or in the over-the-counter
market, then the fair market value of the Common Stock as of the day immediately
preceding the Determination Date, as determined by the Company's board of
directors in good faith.
3. When Exercise Effective. The exercise of this Warrant shall be deemed
-----------------------
to have been effected immediately prior to the close of business on the business
day on which the holder surrenders this Warrant to the Company and satisfies all
of the requirements of Section 2, and at such time the person in whose name any
certificate for Warrant Shares shall be issuable upon such exercise, as provided
in Section 2, shall be deemed to be the record holder of such Warrant Shares for
all purposes.
4. Delivery on Exercise. As soon as practicable after the exercise of
--------------------
this Warrant, the Company at its expense will cause to be issued in the name of
and delivered to the holder hereof, or as such holder may direct, a certificate
or certificates for the number of fully paid and nonassessable full Warrant
Shares as to which such holder shall be entitled on such exercise, together with
cash, in lieu of any fraction of a Warrant Share, equal to such fraction of the
Market Price of one full share of Common Stock.
5. Adjustment of Warrant Price and Number of Warrant Shares.
--------------------------------------------------------
Notwithstanding anything to the contrary in this Warrant:
(a) Adjustments. The Warrant Price per share shall be subject to
-----------
adjustment from time to time as follows:
(i) Stock Splits and Stock Dividends. If the number of shares
--------------------------------
of Common Stock outstanding at any time after the Original Issuance Date is
increased by a stock dividend payable in shares of Common Stock or by a
subdivision or split-up of shares of Common Stock, then, on the date such
payment is made or such change is effective, the Warrant
-C3-
Price per share shall be proportionately decreased and the number of Warrant
Shares shall be increased in proportion to such increase of outstanding shares.
Such adjustment shall become effective at the close of business on the date the
dividend, subdivision or split-up becomes effective.
(ii) Reverse Stock Splits. If the number of shares of Common
--------------------
Stock outstanding at any time after the Original Issuance Date is decreased by a
combination of the outstanding shares of Common Stock, then, on the effective
date of such combination, the Warrant Price per share shall be proportionately
increased and the number of Warrant Shares shall be decreased in proportion to
such decrease in outstanding shares. Such adjustment shall become effective at
the close of business on the date the combination becomes effective.
(iii) Reorganization; Reclassification. Subject to the
--------------------------------
expiration provisions of Section 1 hereof, in the case, at any time after the
Original Issuance Date, of any capital reorganization, or any reclassification
of the stock of the Company (other than as a result of a stock dividend or
subdivision, split-up or combination of shares), the consolidation or merger of
the Company with or into another person (other than a consolidation or merger in
which the Company is the continuing entity and which does not result in any
change in the Common Stock), or a sale or transfer of all or substantially all
of the Company's assets, this Warrant shall, after such reorganization,
reclassification, consolidation, merger or sale, be exercisable for the kind and
aggregate number of shares of stock or other securities or property of the
Company or other entity to which the Holder would have been entitled if,
immediately prior to such reorganization, reclassification, consolidation,
merger or sale, such Holder had exercised this Warrant in full (subject to all
adjustments under this Section 5). The provisions of this clause (vi) shall
similarly apply to successive reorganizations, reclassifications,
consolidations, mergers or sales.
(iv) All calculations under this Subsection (a) shall be made
to the nearest cent or to the nearest one hundredth (1/100) of a share, as
appropriate.
(b) Minimal Adjustments. No adjustment in the Warrant Price per share
-------------------
need be made if such adjustment would result in a change in the Warrant Price
per share of less than $0.01. Any adjustment of less than $0.01 which is not
made shall be carried forward and shall be made at the time of and together with
any subsequent adjustment which, on a cumulative basis, amounts to an adjustment
of $0.01 or more in the Warrant Price per share.
6. Notice of Adjustments. Whenever the number of Warrant Shares or the
---------------------
Warrant Price per share shall be adjusted pursuant to Section 5 hereof, the
Company shall provide notice by first class mail to the holder of this Warrant
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 number of Warrant Shares and the Warrant Price per share after giving
effect to such adjustment.
7. No Impairment. The Company (a) will not increase the par value of any
-------------
shares of stock receivable on the exercise of this Warrant above the amount
payable therefor on such exercise, (b) will at all times reserve and keep
available a number of its authorized shares of
-C4-
Common Stock, free from all preemptive rights therein, which will be sufficient
to permit the exercise of this Warrant, and (c) shall take all such action as
may be necessary or appropriate in order that all Warrant Shares as may be
issued pursuant to the valid exercise of this Warrant will, upon issuance, be
duly and validly issued, fully paid and nonassessable and free from all taxes,
liens and charges with respect to the issue thereof.
8. Exchange of Warrants. Subject to the provisions of Section 9 below,
--------------------
on surrender for exchange of this Warrant, properly endorsed, to the Company,
the Company at its expense will issue and deliver to or on the order of the
holder thereof a new Warrant of like tenor, in the name of such holder or as
such holder may direct, calling in the aggregate on the face thereof for the
number of Warrant Shares called for on the face of the Warrant so surrendered.
9. Replacement of Warrants. On receipt by the Company of evidence
-----------------------
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement reasonably satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of such Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
10. Investment Intent. The holder hereof, by accepting this Warrant,
-----------------
covenants and agrees that, at the time of exercise hereof, and at the time of
any proposed transfer of the Warrant Shares, such holder will deliver to the
Company a written statement that the securities acquired by the holder upon
exercise hereof are for the account of the holder for investment and are not
acquired with a view to, or for sale in connection with, any distribution
thereof (or any portion thereof) and with no present intention (at any such
time) of offering and distributing such securities (or any portion thereof), and
make other representations which the Company may reasonably require in order to
comply with the restrictions of state and federal securities laws relating to
the sale and disposition on "restricted securities," as that term is defined in
Rule 144 of the Securities Act.
11. Transfer Restrictions. The holder hereof acknowledges that the
---------------------
Warrants and Warrant Shares may not be transferred except in accordance with
Section 5.1 of the Agreement.
12. Notices. All notices referred to in this Warrant shall be in writing
-------
and shall be delivered personally (including by express courier) or by first
class mail, and will be deemed to have been given when so delivered or mailed
(i) to the Company, at its principal executive offices and (ii) to the holder of
this Warrant, at such holder's address as it appears in the records of the
Company (unless otherwise indicated by such holder).
13. Miscellaneous. This Warrant and any term hereof may be changed,
-------------
waived, discharged or terminated in accordance with Section 7.1 of the
Agreement. This Warrant shall be governed by and construed and enforced in
accordance with the internal laws of the State of California. The headings in
this Warrant are for purposes of reference only, and shall not limit or
otherwise affect any of the terms hereof.
-C5-
[This Space Intentionally Left Blank]
-C6-
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed and
attested by its duly authorized officers and to be dated January 21, 2000.
UROGEN CORP.
By:_________________________________________
Xxxxxx X. Xxxxx, M.D.
President and Chief Executive Officer
[Signature Page to Purchase Warrant]
FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
TO: UroGen Corp.
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase rights represented by such Warrant for, and to
purchase thereunder, ____________* shares of Common Stock of UroGen Corp. and
herewith:
(Check one)
[_] makes payment of $_________ therefor; or
[_] surrenders __________ shares of __________ stock of UroGen Corp. or
$ __________ of aggregate indebtedness; or
[_] elects to "net exercise" the Warrant pursuant to Section 2(b)(ii)
of the Warrant and authorizes UroGen Corp. to withhold from
issuance the appropriate number of Warrant Shares as specified
therein.
________________________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant)
_______________________________________
_______________________________________
(Address)
Dated:
___________________________
*Insert here the number of shares as to which the Warrant is being exercised.