EXHIBIT 10.18
This Warrant was originally issued on November 18, 1996, and such issuance
was not registered under the Securities Act of 1933, as amended. The
transfer of this Warrant and the securities obtainable upon exercise
thereof is subject to the conditions on transfer specified in the
Securities Purchase Agreement, dated as of November 18, 1996 (as amended
and modified from time to time), between the issuer hereof (the "COMPANY")
and the initial holder hereof, and the Company reserves the right to
refuse the transfer of such security until such conditions have been
fulfilled with respect to such transfer. Upon written request, a copy of
such conditions shall be furnished by the Company to the holder hereof
without charge.
LIFECELL CORPORATION
STOCK PURCHASE WARRANT
Date of Issuance: November 18, 1996 Certificate No. BW-___
FOR VALUE RECEIVED, LIFECELL Corporation, a Delaware corporation (the
"COMPANY"), hereby grants to _________________________________________ or its
registered assigns (the "REGISTERED HOLDER") the right to purchase from the
Company __________ shares of the Company's Common Stock, par value $.001 per
share ("COMMON STOCK"), at a price per share of $4.13 (as adjusted from time to
time hereunder, the "EXERCISE PRICE"). This Warrant is one of several warrants
(collectively, the "WARRANTS") issued by the Company to certain investors
pursuant to the Securities Purchase Agreement, dated as of November 18, 1996
(the "PURCHASE AGREEMENT"). Certain capitalized terms used herein are defined in
Section 5 hereof. The amount and kind of securities obtainable pursuant to the
rights granted hereunder and the purchase price for such securities are subject
to adjustment pursuant to the provisions contained in this Warrant.
This Warrant is subject to the following provisions:
Section 1. EXERCISE OF WARRANT.
1A. EXERCISE PERIOD. Subject to the provisions of Paragraph 1B, the
Registered Holder may exercise, in whole or in part (but not as to a fractional
share of Common Stock), the purchase rights represented by this Warrant at any
time and from time to time after the Date of Issuance to and including the fifth
anniversary thereof (the "EXERCISE PERIOD"). The Company shall give the
Registered Holder written notice of the expiration of the rights hereunder at
least 30 days but not more than 90 days prior to the end of the Exercise Period.
In the event the Company fails to give the Registered Holder such notice, the
Exercise Period shall continue until and terminate on the thirtieth calendar day
following the day the Company gives such notice.
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1B. MANDATORY EXERCISE. Notwithstanding the provisions of Paragraph 1A,
during the period commencing with the second anniversary of the Date of Issuance
through the Exercise Period (the "MANDATORY EXERCISE PERIOD"), upon written
notice from the Company evidencing that the Current Market Price equals or
exceeds an amount equal to three times the then Exercise Price (the "MANDATORY
EXERCISE NOTICE"), the Registered Holder shall exercise all (but not as to any
fractional share of Common Stock) of the purchase rights represented by this
Warrant; provided that, notwithstanding the foregoing, the Registered Holder
shall have no obligation pursuant to this Paragraph 1B to exercise any portion
of the purchase rights represented by this Warrant on any date if on such date
or at any time during the 30 consecutive trading day period ending immediately
prior to such date the Common Stock is not listed or admitted to trading on any
national securities exchange and is not traded over the counter and reported by
Nasdaq or any comparable system. for purposes of this paragraph, "CURRENT MARKET
PRICE" means, at any date during the Mandatory Exercise Period, the average of
the daily closing price per share of Common Stock for the 30 consecutive trading
day period during the Mandatory Exercise Period ending on the trading day
immediately before such date ( as adjusted for any stock dividend, split,
combination or reclassification that took effect during such 30 trading day
period). The closing price for each day shall be the last reported sale price on
the principal national securities exchange on which Common Stock is listed or
admitted to trading or if not listed or admitted to trading on any national
securities exchange, as reported by Nasdaq, if such security is traded over the
counter and quoted in the Nasdaq National Market or Nasdaq Small Cap Market, or
if such equity security is so traded, but not so quoted, the closing bid price
of Common Stock as reported by Nasdaq or any comparable system. The Registered
Holder shall be required to exercise pursuant to Xxxxxxxxx 0X all of the then
unexercised purchase rights represented by this Warrant no earlier than the 30th
day following the Registered Holder's receipt of the Mandatory Exercise Notice.
1C. EXERCISE PROCEDURE.
(i) This Warrant shall be deemed to have been exercised at such time
when the Company has received all of the following items (the "EXERCISE TIME"):
(a) a completed Exercise Agreement, as described in Paragraph
1D, executed by the Person exercising all or part of the purchase rights
represented by this Warrant (the "PURCHASER");
(b) this Warrant;
(c) if this Warrant is not registered in the name of the
Purchaser, an Assignment or Assignments in the form set forth in EXHIBIT I
hereto evidencing the assignment of this Warrant to the Purchaser, in
which case the Registered Holder shall have complied with the provisions
set forth in Section 7 hereof; and
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(d) either (1) a check payable to the Company in an amount
equal to the product of the Exercise Price multiplied by the number of
shares of Common Stock being purchased upon such exercise (the "AGGREGATE
EXERCISE PRICE"), (2) the surrender to the Company of debt or equity
securities of the Company or any of its wholly-owned Subsidiaries having a
Market Price equal to the Aggregate Exercise Price of the shares of Common
Stock being purchased upon such exercise (provided that for purposes of
this subparagraph 1C(i)(d), the Market Price of any note or other debt
security or any preferred stock shall be deemed to be equal to the
aggregate outstanding principal amount or liquidation value thereof plus
all accrued and unpaid interest thereon or accrued or declared and unpaid
dividends thereon) or (3) a written notice to the Company that the
Purchaser is exercising this Warrant (or a portion thereof) by authorizing
the Company to withhold from issuance a number of shares of Common Stock
issuable upon such exercise of this Warrant which when multiplied by the
Market Price of the Common Stock is equal to the Aggregate Exercise Price
(and such withheld shares shall no longer be issuable under this Warrant).
(ii) Certificates for shares of Common Stock purchased upon exercise
of this Warrant shall be delivered by the Company to the Purchaser as soon as
practicable but in any event within ten business days after the date of the
Exercise Time. Unless this Warrant has expired or all of the purchase rights
represented hereby have been exercised, the Company shall prepare a new Warrant,
substantially identical hereto, representing the rights formerly represented by
this Warrant which have not expired or been exercised and shall within such
ten-day period, deliver such new Warrant to the Person designated for delivery
in the Exercise Agreement.
(iii) The shares of Common Stock issuable upon the exercise of this
Warrant shall be deemed to have been issued to the Purchaser at the Exercise
Time, and the Purchaser shall be deemed for all purposes to have become the
record holder of such shares of Common Stock at the Exercise Time.
(iv) The issuance of certificates for shares of Common Stock issued
upon exercise of this Warrant shall be made without charge to the Registered
Holder for any issuance tax in respect thereof or other cost incurred by the
Company in connection with such exercise and the related issuance of shares of
Common Stock. Each share of Common Stock issuable upon exercise of this Warrant
shall, upon payment of the Exercise Price therefor, be fully paid and
nonassessable and free from all liens and charges with respect to the issuance
thereof.
(v) The Company shall not close its books against the transfer of
this Warrant or of any share of Common Stock issued or issuable upon the
exercise of this Warrant in any manner which interferes with the timely exercise
of this Warrant. The Company shall from time to time take all such action as may
be necessary to assure that the par value per share of the unissued Common Stock
acquirable upon exercise of this Warrant is at all times equal to or less than
the Exercise Price then in effect.
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(vi) The Company shall assist and cooperate with the Registered
Holder or the Purchaser, as the case may be, in connection with any governmental
filings or any governmental approvals required to be made or obtained by the
Registered Holder or the Purchaser, as the case may be, prior to or in
connection with any exercise of this Warrant (including, without limitation,
making any filings required to be made by the Company).
(vii) Notwithstanding any other provision hereof, if an exercise of
any portion of this Warrant is to be made in connection with a registered public
offering or the sale of the Company, such exercise may, at the election of the
holder hereof, be conditioned upon the consummation of the public offering or
sale of the Company in which case such exercise shall not be deemed to be
effective until the consummation of such transaction.
(viii) The Company shall at all times reserve and keep available out
of its authorized but unissued shares of Common Stock solely for the purpose of
issuance upon the exercise of the Warrants, such number of shares of Common
Stock issuable upon the exercise of all outstanding Warrants. All shares of
Common Stock which are so issuable shall, when issued, be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens and charges.
The Company shall take all such actions as may be necessary to assure that all
such shares of Common Stock may be so issued without violation of any applicable
law or governmental regulation or any requirements of any domestic or foreign
securities exchange upon which shares of Common Stock may be listed (except for
official notice of issuance which shall be immediately delivered by the Company
upon each such issuance) including without limitation, the Nasdaq National
Market or the Nasdaq Small Cap Market (as the case may be). The Company shall
not take any action which would cause the number of authorized but unissued
shares of Common Stock to be less than the number of such shares required to be
reserved hereunder for issuance upon exercise of the Warrants.
1D. EXERCISE AGREEMENT. Upon any exercise of this Warrant, the Exercise
Agreement shall be substantially in the form set forth in EXHIBIT II hereto,
except that if the shares of Common Stock are not to be issued in the name of
the Person in whose name this Warrant is registered, the Exercise Agreement
shall also state the name of the Person to whom the certificates for the shares
of Common Stock are to be issued, and if the number of shares of Common Stock to
be issued does not include all shares of Common Stock purchasable hereunder, it
shall also state the name of the Person to whom a new Warrant for the
unexercised portion of the rights hereunder is to be delivered. Such Exercise
Agreement shall be dated the actual date of execution thereof.
1E. FRACTIONAL SHARES. If a fractional share of Common Stock would, but
for the provisions of Paragraph 1A and Paragraph 1B, as the case may be, be
issuable upon exercise of the rights represented by this Warrant, the Company
shall, within ten business days after the date of the Exercise Time, deliver to
the Purchaser a check payable to the Purchaser in lieu of such fractional share
in an amount equal to the difference between the Market Price of such fractional
share as of the date of the Exercise Time and the Exercise Price of such
fractional share.
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Section 2. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. In order to
prevent dilution of the rights granted under this Warrant, the Exercise Price
shall be subject to adjustment from time to time as provided in this Section 2,
and the number of shares of Common Stock obtainable upon exercise of this
Warrant shall be subject to adjustment from time to time as provided in this
Section 2.
2A. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES UPON ISSUANCE OF
COMMON STOCK.
(i) If and whenever on or after the Date of Issuance of this Warrant
the Company issues or sells, or in accordance with paragraph 2B is deemed to
have issued or sold, any shares of Common Stock (other than the Excluded Stock)
for a consideration per share less than the Exercise Price in effect immediately
prior to such time, then immediately upon such issue or sale the Exercise Price
shall be reduced to the Exercise Price determined by dividing
(A) the sum of (y) the product derived by multiplying the
Exercise Price in effect immediately prior to such issue or sale and the number
of shares of Common Stock Deemed Outstanding immediately prior to such issue or
sale plus (z) the consideration, if any, received by the Company upon such issue
or sale, by
(B) the number of shares of Common Stock Deemed Outstanding
immediately after such issue or sale.
(ii) Upon each such adjustment of the Exercise Price hereunder, the
number of shares of Warrant Stock acquirable upon exercise of this Warrant shall
be adjusted to the number of shares determined by multiplying the Exercise Price
in effect immediately prior to such adjustment by the number of shares of
Warrant Stock acquirable upon exercise of this Warrant immediately prior to such
adjustment and dividing the product thereof by the Exercise Price resulting from
such adjustment.
(iii) For purposes of this Section 2, "EXCLUDED STOCK" means (1)
Common Stock issued or reserved for issuance by the Company as a dividend on
Preferred Stock or upon any subdivision or split-up of the outstanding shares of
any shares of capital stock of the Company or any recapitalization thereof, or
upon conversion of any shares of Preferred Stock, (2) Common Stock issuable
pursuant to any portion or warrants or other rights that are outstanding on the
date of Issuance identified on SCHEDULE 3-2 CAPITAL STOCK to the Purchase
Agreement, (3) Common Stock of the Company issued or issuable in connection with
a Board-approved acquisition of a business by the Company as a result of which
the Company owns in excess of 50% of the voting power of such business, (4)
Common Stock issued or issuable to employees, officers, consultants, directors
or vendors of the Company or pursuant to any Board-approved employee, officer,
consultant or director benefit plan, including without limitation any
Board-approved stock option plan, and (5) Common Stock issued or issuable to (x)
banks, savings and loan associations, equipment lessors or similar lending
institutions in connection with such entities providing Board-approved credit
facilities or equipment financings to the company or (y) any party to any
technology transfer agreement,
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distribution agreement, marketing agreement or any other agreement similar
thereto, with the Company, as approved by the Board.
2B. EFFECT ON EXERCISE PRICE OF CERTAIN EVENTS. For purposes of
determining the adjusted Exercise Price under Paragraph 2A, the following shall
be applicable:
(i) ISSUANCE OF RIGHTS OR OPTIONS. If the company in any manner
grants or sells any Options and the price per share for which Common Stock is
issuable upon the exercise of such Options, or upon conversion or exchange of
any Convertible Securities issuable upon exercise of such Options, is less than
the Exercise Price in effect immediately prior to the time of the granting the
sale of such Options, then the total maximum number of shares of Common Stock
issuable upon the exercise of such Options, or upon conversion or exchange of
the total maximum amount of such Convertible Securities issuable upon the
exercise of such Options, shall be deemed to be outstanding and to have ben
issued and sold by the Company at such time for such price per share. For
purposes of this paragraph, the "PRICE PER SHARE FOR WHICH COMMON STOCK IS
ISSUABLE UPON EXERCISE OF SUCH OPTIONS OR UPON CONVERSION OR EXCHANGE OF SUCH
CONVERTIBLE SECURITIES" is determined by dividing (A) the result of (i) the
total amount, if any, received or receivable by the Company as consideration for
the granting or sale of such Options, plus (ii) the minimum aggregate amount of
additional consideration payable to the Company upon the exercise of all such
Option, plus (iii) in the case of such Options which are exercisable into
Convertible Securities, the minimum aggregate amount of additional
consideration, if any, payable to the Company upon the issuance or sale of such
Convertible Securities and the conversation or exchange thereof, by (B) the
total maximum number of shares of Common Stock issuable upon exercise of such
Options or upon the conversion or exchange of all such Convertible Securities
issuable upon the exercise of such Options. No further adjustment of the
Exercise Price shall be made upon the actual issuance of such Common Stock or of
such Convertible securities upon the exercise of such Options or upon the actual
issuance of such Common Stock upon conversion or exchange of such Convertible
Securities.
(ii) ISSUANCE OF CONVERTIBLE SECURITIES. If the Company in any
manner issues or sells any Convertible Securities and the price per share for
which Common Stock is issuable upon conversion or exchange thereof is less than
the Exercise Price in effect immediately prior to the time of such issue or
sale, then the maximum number of shares of Common Stock issuable upon conversion
or exchange of such Convertible Securities shall be deemed to be outstanding and
to have been issued and sold by the Company for such price per share. For the
purposes of this paragraph, the "PRICE PER SHARE FOR WHICH COMMON STOCK IS
ISSUABLE UPON CONVERSION OR EXCHANGE THEREOF" is determined by dividing (A) the
result of (i) the total amount received or receivable by the Company as
consideration for the issue or sale of such Convertible Securities, plus (ii)
the minimum aggregate amount of additional consideration, if any, payable to the
Company upon the conversation or exchange thereof, by (B) the total maximum
number of shares of Common Stock issuable upon the conversion or exchange of all
such Convertible Securities. No further adjustment of the Exercise Price shall
be made upon the actual issue of such Common Stock upon conversion or exchange
of such
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Convertible Securities, and if any such issue or sale of such Convertible
Securities is made upon exercise of any Options for which adjustments of the
Exercise Price had been or are to be made pursuant to other provisions of this
Paragraph 2B, no further adjustment of the Exercise Price shall be made by
reason of such issue or sale.
(iii) CHANGE IN OPTION PRICE OR CONVERSION RATE. If the purchase
price provided for in any Options, the additional consideration, if any, payable
upon the issue, conversion or exchange of any Convertible Securities, or the
rate at which any Convertible Securities are convertible into or exchangeable
for Common Stock changes at any time, the Exercise Price in effect at the time
of such change shall be adjusted immediately to the Exercise Price which would
have been in effect at such time had such Options or Convertible Securities
still outstanding provided for such changed purchase price, additional
consideration or changed conversion rate, as the case may be, at the time
initially granted, issued or sold and the number of shares of Warrant Stock
shall be correspondingly adjusted; provided that if such adjustment would result
in an increase of the Exercise Price then in effect, such adjustment shall not
be effective until 30 days after written notice thereof has been given by the
Company to all holders of the Warrants. For purposes of this Paragraph 2B, if
the terms of any Option or Convertible Security which was outstanding as of the
date of issuance of this Warrant are changed in the manner described in the
immediately preceding sentence, then such Option or Convertible Security and the
Common Stock deemed issuable upon exercise, conversation or exchange thereof
shall be deemed to have been issued as of the date of such change; provided that
no such change shall at any time cause the Exercise Price hereunder to be
increased.
(iv) TREATMENT OF EXPIRED OPTIONS AND UNEXERCISED CONVERTIBLE
SECURITIES. Upon the expiration of any Option or the termination of any right to
convert or exchange any Convertible Securities without the exercise of such
Option or right, the Exercise Price then in effect and the number of shares of
Warrant Stock acquirable hereunder shall be adjusted immediately to the Exercise
Price and the number of shares which would have been in effect at the time of
such expiration or termination had such Option or Convertible Securities to the
extent outstanding immediately prior to such expiration or termination, never
been issued; provided that if such expiration or termination would result in an
increase in the Exercise Price then in effect, such increase shall not be
effective until 30 days after written notice thereof has been given to all
holders of the Warrants. For purposes of this Paragraph 2B, the expiration or
termination of any Option or Convertible Security which was d as of the date of
issuance of this Warrant shall not cause the Exercise Price hereunder to be
adjusted unless, and only to the extent that, a change in the terms of such
Option or Convertible Security caused it to be deemed to have been issued after
the date of issuance of this Warrant.
(v) CALCULATION OF CONSIDERATION RECEIVED. If any Common Stock,
Options or Convertible Securities are issued or sold or deemed to have been
issued or sold for cash, the consideration received therefor shall be deemed to
be the gross amount (net of any underwriter, placement agent or broker discounts
and commissions) received by the Company therefor. In case any Common Stock,
Options or Convertible
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Securities are issued or sold for a consideration other than cash, the amount of
the consideration other than cash received by the Company shall be the fair
value of such consideration, except where such consideration consists of
securities, in which case the amount of consideration received by the Company
shall be the Market Price thereof as of the date of receipt. In case any Common
Stock, Options or Convertible Securities are issued to the owners of the
non-surviving entity in connection with any merger in which the Company is the
surviving entity the amount of consideration therefor shall be deemed to be the
fair value of such portion of the net assets and business of the nonsurviving
entity as is attributable to such Common Stock, Options or Convertible
Securities, as the case may be. The fair value of any consideration other than
cash or securities shall be determined jointly by the Company and the Registered
Holders of the Warrants representing a majority of the shares of the Warrant
Stock obtainable upon exercise of such Warrants. If such parties are unable to
reach agreement within a reasonable period of time, such fair value shall be
determined by an appraiser jointly selected by the Company and the Registered
Holders of the Warrants representing a majority of the shares of Warrant Stock
obtainable upon exercise of such Warrants. The determination of such appraiser
shall be final and binding on the Company and the Registered Holders of such
Warrants, and the fees and expenses of such appraiser shall be paid by the
Company.
(vi) INTEGRATED TRANSACTIONS. In case any Option is issued in
connection with the issue or sale of other securities of the Company, together
comprising one integrated transaction in which no specific consideration is
allocated to such Options by the parties thereto, the Options shall be deemed to
have been issued without consideration.
(vii) TREASURY SHARES. The number of shares of Common Stock
outstanding at any given time does not include shares owned or held by or for
the account of the Company or any subsidiary, and the disposition of any shares
so owned or held shall be considered an issue or sale of Common Stock.
(viii) RECORD DATE. If the Company takes a record of the holders of
Common Stock for the purpose of entitling them (A) to receive a dividend or
other distribution payable in Common Stock, Options or in Convertible Securities
of (B) to subscribe for or purchase Common Stock, Options or Convertible
Securities, then such record date shall be deemed to be the date of the issue or
sale of the shares of Common Stock deemed to have been issued or sold upon the
declaration of such dividend or the making of such other distribution or the
date of the granting of such right of subscription or purchase, as the case may
be.
2C. SUBDIVISION OR COMBINATION OF COMMON STOCK. If the Company at any time
subdivides (by any stock split, stock dividend, recapitalization or otherwise)
one or more classes of its outstanding shares of Common Stock into a greater
number of shares, the Exercise Price in effect immediately prior to such
subdivision shall be proportionately reduced and the number of shares of Warrant
Stock obtainable upon exercise of this Warrant shall be proportionately
increased. If the Company at any time combines (by reverse stock split or
otherwise) one or more classes of its outstanding
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shares of Common Stock into a smaller number of shares, the Exercise Price in
effect immediately prior to such combination shall be proportionately increased
and the number of shares of Warrant Stock obtainable upon exercise of this
Warrant shall be proportionately decreased.
2D. REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE. Any
recapitalization, reorganization, reclassification, consolidation, merger, sale
of all or substantially all of the Company's assets or other transaction, which
in each case is effective in such a way that the holders of Common Stock are
entitled to receive (either directly or upon subsequent liquidation) stock,
securities or assets with respect to or in exchange for Common Stock is referred
to herein as "ORGANIC CHANGE". Prior to the consummation of any Organic Change,
the Company shall make appropriate provision (in form and substance satisfactory
to the Registered Holders of the Warrants representing a majority of the shares
of Warrant Stock obtainable upon exercise of all Warrants then outstanding) to
insure that each of the Registered Holders of the Warrants shall thereafter have
the right to acquire and receive, in lieu of or addition to (as the case may be)
the shares of Warrant Stock immediately theretofore acquirable and receivable
upon the exercise of such holder's Warrant, such shares of stock, securities or
assets as may be issued or payable with respect to or in exchange for the number
of shares of Warrant Stock immediately theretofore acquirable and receivable
upon exercise of such holder's Warrant had such Organic Change not taken place.
In any such case, the Company shall make appropriate provision (in form and
substance satisfactory to the Registered Holders of the Warrants representing a
majority of the shares of Warrant Stock obtainable upon exercise of all of the
Warrants then outstanding) with respect to such Registered Holders' rights and
interests to insure that the provisions of this Section 2 and Sections 3 and 4
hereof shall thereafter be applicable to the Warrants (including, in the case of
any such consolidation, merger or sale in which the successor entity or
purchasing entity is other than the Company and in which the value for the
Common Stock reflected by the terms of such consolidation, merger or sale is
less than the Base Price in effect immediately prior to such consolidation,
merger or sale, an immediate adjustment of the Exercise Price to the product of
such Exercise Price immediately prior to such consolidation, merger or sale
multiplied by the ratio of such value of the Common Stock divided by the Base
Price in effect immediately prior to such consolidation, merger or sale and a
corresponding immediate adjustment in the number of shares of Warrant Stock
acquirable and receivable upon exercise of the Warrants). The Company shall not
effect any such consolidation, merger or sale, unless prior to the consummation
thereof, the successor entity (if other than the Company) resulting from
consolidation or merger or the entity purchasing such assets assumes by written
instrument (in form and substance satisfactory to the Registered Holders of the
Warrants representing a majority of the Warrant Stock obtainable upon exercise
of all of the Warrants then outstanding), the obligation to deliver to each such
Registered Holder such shares of stock, securities or assets as, in accordance
with the foregoing provisions, such Registered Holder may be entitled to
acquire.
2E. CERTAIN EVENTS. If any event occurs of the type contemplated by the
provisions of Section 2A but not expressly provided for by such provisions, then
the
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Exercise Price and the number of shares of Warrant Stock obtainable upon
exercise of this Warrant shall be adjusted by the Corporation's Board of
Directors in good faith so as to protect the rights of the holders of the
Warrants; provided that no such adjustment shall increase the Exercise Price or
decrease the number of shares of Warrant Stock obtainable as otherwise
determined pursuant to this Section 2.
2F. NOTICES.
(i) Immediately upon any adjustment of the Exercise Price, the
Company shall give written notice thereof to the Registered Holder, setting
forth in reasonable detail and certifying the calculation of such adjustment.
(ii) The Company shall give written notice to the Registered Holder
at least 20 days prior to the date on which the Company closes its books or
takes a record (A) with respect to any dividend or distribution upon shares of
Common Stock, (B) with respect to any pro rata subscription offer to holders of
Common Stock or (C) for determining rights to vote with respect to any Organic
Change, dissolution or liquidation.
(iii) The Company shall also give written notice to the Registered
Holders at least 20 days prior to the date on which any Organic Change,
dissolution or liquidation shall take place.
Section 3. LIQUIDATING DIVIDENDS. If the Company declares or pays a
dividend upon shares of Common Stock payable otherwise than in cash out of
earnings or earned surplus (determined in accordance with generally accepted
accounting principles, consistently applied) except for a stock dividend payable
in shares of Common Stock (a "LIQUIDATING DIVIDEND"), then the Company shall pay
to the Registered Holder at the time of payment thereof the Liquidating Dividend
which would have been paid to the Registered Holder on the Warrant Stock had
this Warrant been fully exercised immediately prior to the date on which a
record is taken for such Liquidating Dividend, or, if no record is taken, the
date as of which the record holders of Common Stock entitled to such dividends
are to be determined.
Section 4. PURCHASE RIGHTS. If at any time the Company grants, issues or
sells any Options, Convertible Securities or warrants, securities or other like
property pro rate to the record holders of any class of Common Stock (the
"PURCHASE RIGHTS"), then the Registered Holder shall be entitled to acquire,
upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights
which such Registered Holder could have acquired if such Registered Holder had
held the number of shares of Common Stock acquirable upon complete exercise of
this Warrant immediately before the date on which a record is taken for the
grant, issuance or sale of such Purchase Rights, or, if no such record is taken,
the date as of which the record holders of Common Stock are to be determined for
the grant, issue or sale of such Purchase Rights.
Section 5. DEFINITIONS. The following terms have meanings set forth below:
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"BOARD" means the Company's Board of Directors.
"COMMON STOCK" means the Company's Common Stock, $0.001 par value, and
except for purposes of the shares obtainable upon exercise of this Warrant, any
capital stock of any class of the Company hereafter authorized which is not
limited to a fixed sum or percentage of par or stated value in respect to the
rights of the holders thereof to participate in dividends or in the distribution
of assets upon any liquidation, dissolution or winding up of the Company.
"COMMON STOCK DEEMED OUTSTANDING" means, at any given time, the number of
shares of Common Stock actually outstanding at such time, plus the number of
shares of Common Stock deemed to be outstanding pursuant to paragraphs 2B(i) and
2B(ii) hereof regardless of whether the Options or Convertible Securities are
actually exercisable or convertible at such time.
"CONVERTIBLE SECURITIES" means any stock or securities (directly or
indirectly) convertible into or exchangeable for Common Stock.
"MARKET PRICE" means as to any security the average of the closing prices
of such security's sales on all domestic or foreign securities exchanges on
which such security may at the time be listed, or, if there have been no sales
on any such exchange on any day, the average of the highest bid and lowest asked
prices on all such exchanges at the end of such day, or, if on any day such
security is not so listed, the average of the representative bid and asked
prices quoted in the Nasdaq National Market or Nasdaq Small Cap Market, as of
4:00 P.M., New York time, on such day, or, if on any day such security is not
quoted in the Nasdaq National Market or the Nasdaq Small Cap Market (as
applicable), the average of the highest bid and lowest asked prices on such day
in the domestic over-the-counter market as reported by the National Quotation
Bureau, Incorporated, or any similar successor organization, in each such case
averaged over a period of 30 days consisting of the day as of which "MARKET
PRICE" is being determined and the 29 consecutive business days prior to such
day; provided that if such security is listed on any domestic securities
exchange the term "BUSINESS DAYS" as used in this sentence means business days
on which such exchange is open for trading. If at any time such security is not
listed on any domestic securities exchange or quoted in the Nasdaq National
Market System or the Nasdaq Small Cap Market or the domestic over-the-counter
market, the "MARKET PRICE" shall be the fair value thereof determined jointly by
the Company and the Registered Holders of Warrants representing a majority of
the Common Stock purchasable upon exercise of all the Warrants then outstanding,
provided that if such parties are unable to reach agreement within a reasonable
period of time, such fair value shall be determined by an appraiser jointly
selected by the Company and the Registered Holders of the Warrants representing
a majority of the shares of Common Stock purchasable upon exercise of all the
Warrants then outstanding. The determination of such appraiser shall be final
and binding on the Company and the Registered Holders of the Warrants, and the
fees and expenses of such appraiser shall be paid by the Company.
11
"OPTION" means any rights to subscribe for or purchase Common Stock or
Convertible Securities.
"PERSON" means an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization and a government or any department or agency thereof.
"WARRANT STOCK" means Common Stock; provided that if there is a change
such that the securities issuable upon exercise of the Warrants are issued by an
entity other than the Company or there is a change in the type or class of
securities so issuable, then the term "WARRANT STOCK" shall mean one share of
the security issuable upon exercise of the Warrants if such security is issuable
in shares, or shall mean the smallest unit in which such security is issuable if
such security is not issuable in shares.
Other capitalized terms used in this Warrant but not defined herein shall
have the meanings set forth in the Purchase Agreement.
Section 6. NO VOTING RIGHTS; LIMITATIONS OF LIABILITY. This Warrant shall
not entitle the holder hereof to any voting rights or other rights as a
stockholder of the Company. No provision hereof, in the absence of affirmative
action by the Registered Holder to purchase Common Stock, and no enumeration
herein of the rights or privileges of the Registered Holder shall give rise to
any liability of such holder for the Exercise Price of Common Stock acquirable
by exercise hereof or as a stockholder of the Company.
Section 7. WARRANT TRANSFERABLE. Subject to the transfer conditions
referred to in the legend endorsed hereon, this Warrant and all rights hereunder
are transferable, in whole or in part, without charge to the Registered Holder,
upon surrender of this Warrant with a properly executed Assignment (in the form
of EXHIBIT I hereto) at the principal office of the Company.
Section 8. WARRANT EXCHANGEABLE FOR DIFFERENT DENOMINATIONS. This Warrant
is exchangeable, upon the surrender hereof by the Registered Holder at the
principal office of the Company, for new Warrants of like tenor representing in
the aggregate the purchase rights hereunder, and each of such new Warrants shall
represent such portion of such rights as is designated by the Registered Holder
at the time of such surrender. The date the Company initially issues this
Warrant shall be deemed to be the "DATE OF ISSUANCE" hereof regardless of the
number of times new certificates representing the unexpired and unexercised
rights formerly represented by this Warrant shall be issued. All Warrants
representing portions of the rights hereunder are referred to herein as the
"WARRANTS."
Section 9. REPLACEMENT. Upon receipt of evidence reasonably satisfactory
to the Company (an affidavit of the Registered Holder shall be satisfactory) of
the ownership and the loss, theft, destruction or mutilation of any certificate
evidencing this Warrant, and in the case of any such loss, theft or destruction,
upon receipt of indemnity reasonably satisfactory to the Company (provided that
if the holder is a financial
12
institution or other institutional investor its own agreement shall be
satisfactory), or in the case of any such mutilation upon surrender of such
certificate of like kind representing the same rights represented by such loss,
stolen, destroyed or mutilated certificate and dated the date of such loss,
stolen, destroyed or mutilated certificate.
Section 10. NOTICES. Except as otherwise expressly provided herein, all
notices referred to in this Warrant shall be in writing and shall be delivered
personally, sent by reputable overnight courier service (charges prepaid) or
sent by registered or certified mail, return receipt requested, postage prepaid
and shall b deemed to have been given when so delivered, sent or deposited in
the U.S. Mail (i) to the Company, at its principal executive offices and (ii) to
the Registered Holder of this Warrant, at such holder's address as it appears in
the records of the Company (unless otherwise indicated by any such holder).
Section 11. AMENDMENT AND WAIVER. Except as otherwise provided herein, the
provisions of the Warrants may be amended and the Company may take any action
herein prohibited, or omit to perform any act herein required to be performed by
it, only if the Company has obtained the written consent of the Registered
Holders of Warrants representing a majority of the shares of Common Stock
obtainable upon exercise of all of the Warrants then outstanding; provided that
no such action may change the Exercise Price of the Warrants or the number of
shares or class of stock obtainable upon exercise of each Warrant without the
written consent of the Registered Holders of Warrants representing at least 80%
of the shares of Common Stock obtainable upon exercise of the Warrants then
outstanding.
Section 12. DESCRIPTIVE HEADINGS; GOVERNING LAW. The descriptive headings
of the several Sections and paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant. The corporation
laws of the State of Delaware shall govern all issues concerning the rights of
the Company and all rights of the Company's stockholders relative to the
Company. All other questions concerning the construction, validity, enforcement
and interpretation of this Warrant shall be governed by the internal law of the
State of New York, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of New York or any other jurisdictions)
that would cause the application of the laws of any jurisdictions other than the
State of New York.
* * * * * *
13
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer and to be dated the Date of Issuance.
LIFECELL CORPORATION
By /s/ XXXX X. XXXXXX
Xxxx X. Xxxxxx
President and Chief Executive Officer
14
EXHIBIT I
ASSIGNMENT
FOR VALUE RECEIVED, __________________hereby sells, assigns and transfers
all of the rights of the undersigned under the attached Warrant (Certificate No.
BW- ) with respect to the number of shares of the Common Stock covered thereby
set forth below, unto:
NAMES OF ASSIGNEE ADDRESS NO. OF SHARES
Signature
Witness
15
EXHIBIT II
EXERCISE AGREEMENT
To: Dated:
The undersigned, pursuant to the provisions set forth in the attached
Warrant (Certificate No. BW- ), hereby agrees to subscribe for the purchase of
shares of the Common Stock covered by such Warrant and makes payment herewith in
full therefor at the price per share provided by such Warrant.
Signature
Witness
16
SCHEDULE 10.19
TO EXHIBIT 10.19
NAME NO. OF SHARES
CIBC Wood Gundy Ventures, Inc. 1,011,612
The Woodlands Venture Capital Company 56,451
P. Xxxxxxx Xxxxxxx, M.D. 9,032
Xxxxxxxxxxx X. Xxxxx, Xx., 5,645
Xxxxx Xxxxxx Inc. XXX P/S Custodian
Xxxxxxx X. Xxxxxxxx 9,032
Xxxxxxx Xxxxxxx 5,645
Xxxxxxx X. Xxxx 11,290
Technology Funding Medical Partners I, L.P. 56,451
Vector Later-Stage Equity Fund, L.P. 903,225
Xxxxxxx X. XxXxxxxxx 4,200
Xxxxx Xxxx 11,290
Xxxxxx Xxxxxxxxxxx 3,387
S.B.S.F. Biotechnology Partners, L.P. 22,580
S.B.S.F. Biotechnology Fund, L.P. 203,225
Xxxxxx Xxxxxxxxx 11,290
Xxxx X. Xxxxx and Xxxx X. Xxxxx 5,645
Xxxxx and Xxxx Xxxx Xxxxxx 4,516
Xxxxxxx X. Xxxxxxx 1,129
Xxxxxxx and Xxxxx Xxxxxxxxx 33,870
Xxxxxxx Xxxxxxx 22,580
Xxxxxx X. Xxxxx 3,500
Xxxx X. Xxxxxxxx 7,000
Xxxxxx Xxxxxxxxx 10,500
Xxxxxxx X. Xxxxxxxxxx 1,806
Xxxxxxx X. Xxxxx 7,451
Xxxxx Xxxxxxx 5,645
NAME NO. OF SHARES
Chinook Equities, Inc. 11,290
Xxxxxx and Xxxxxx Xxxxxxxxx 6,029
Xxxxxxx Xxxxxxxxx 5,600
Xxxx Xxxxxxxxx XXX, 3,500
Gruntal & Co., Inc., Custodian
Xxxx Xxxxxxx 21,000
B. Xxxxxxx Xxxxxx 17,500
Xxxx Xxxxxxx 5,645
Xxxxx X. Xxxx, Trustee F/B/O Xxxxxx X. Xxxx 14,000
The Xxxxx X. Xxxx Trust
Xxxxx X. Xxxx and Xxxxxx X. Xxxxxxxx 35,000
Xxxx X. Xxx 4,900
Xxxxxx Xxxxxx 7,000
Xxxxxx X. Xxxxx 35,000
Xxxxxx X. Xxxxx 7,000
Xxxxxxx X. Xxxxxxx XXX, 1,241
Gruntal & Co., Inc., Custodian
Xxx X. Xxxxxxx 14,000
Xxxxxxx Xxxxxx 1,964
Harbour Court L.P., II 5,645
Namax Corp. 45,161
Xxxxxxx Xxxxxx 11,290
Xxxxx X. Xxxxx 14,000
Xxxxx X. Xxxxx 11,290
Xxxxxx Xxxxxxxxx 4,900
The Xxxxxx X. Xxxxxxx Trust, Xxxxxxx X. Xxxxxxx, 564
Trustee
The Xxxxxx X. Xxxxxxx Trust, Xxxxxxx X. Xxxxxxx, 564
Trustee
Pharmaceutical & Medical Technology Fund 67,741
-2-
Strategic Healthcare Fund 22,580
Xxxxxxx X. Xxxxxxx 1,129
-3-
