Exhibit 4.10
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT. THIS
WARRANT AND THE COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR ANY APPLICABLE STATE
SECURITIES ACTS. THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM. THIS WARRANT IS ALSO SUBJECT TO
CERTAIN LIMITS ON TRANSFER SET FORTH IN SECTION 6 HEREOF.
OMRIX BIOPHARMACEUTICALS, INC.
COMMON STOCK PURCHASE WARRANT
Date of Issuance: August 11, 2004 Certificate No. JJ-1
FOR VALUE RECEIVED, Omrix Biopharmaceuticals, Inc., a Delaware corporation
(the "Company"), hereby grants XXXXXXX & XXXXXXX DEVELOPMENT CORPORATION or its
registered assigns (the "Registered Holder") the right to purchase from the
Company during the Exercise Period (as defined below) up to One Hundred Thousand
shares of the Company's Common Stock at a price per share of $12.29 (as adjusted
from time to time hereunder, the "Exercise Price"). This Warrant is issued by
the Company pursuant to the Series B Convertible Preferred Stock Purchase
Agreement dated as of July 15, 2004 (the "Purchase Agreement"). Certain
capitalized terms used herein are defined in Section 4 hereof. The amount and
kind of securities obtainable pursuant to the rights granted hereunder and the
Exercise 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.
1.1. EXERCISE PERIOD. 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 of this Warrant to and including the tenth anniversary of the date
hereof (the "Exercise Period").
1.2. EXERCISE PROCEDURE.
(i) This Warrant shall be deemed to have been exercised when the
Company has received all of the following items (the "Exercise Time"):
(a) a completed Exercise Agreement, as described in paragraph 1.3
below, 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 comply with the provisions set forth in Section
6 hereof;
(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 having a Market Price equal to the Aggregate Exercise Price of
the Common Stock being purchased upon such exercise (provided that for
purposes of this subparagraph, the Market Price of any note or other debt
security or any preferred stock, unless it is publicly traded, 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 the 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 the 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); and
(e) a counterpart to the Stockholders' Agreement, dated as of December
31, 1998, as amended, executed by the Purchaser.
(ii) Certificates for shares of Common Stock purchased upon exercise
of this Warrant shall be delivered by the Company to the Purchaser within five
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 five-day period, deliver such
new Warrant to the Person designated for delivery in the Exercise Agreement.
(iii) The Common Stock issuable upon the exercise of this Warrant
shall be deemed to have been issued to the Purchaser and outstanding and the
Purchaser shall be deemed for all purposes to have become the record holder of
such Common Stock at the Exercise Time.
(iv) The issuance of certificates for shares of Common Stock upon
exercise of this Warrant shall be made without charge to the Registered Holder
or the Purchaser 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
-2-
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.
(vi) The Company shall assist and cooperate with any Registered Holder or
Purchaser required to make any governmental filings or obtain any governmental
approvals 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 Public Offering or a
Sale of the Company, the exercise of any portion of this Warrant 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 or immediately prior to 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 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). The Company shall not take any action that 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 all of the outstanding Warrants.
(ix) Any certificate for shares of Common Stock issued upon the exercise of
this Warrant shall contain a legend substantially in the form of the legend set
forth on the first page of this Warrant except if such exercise is effected in
connection with a public offering of the Company's capital stock and the Common
Stock issuable upon the exercise of this Warrant are included in such registered
offering.
1.3. EXERCISE AGREEMENT. Upon any exercise of this Warrant, the Exercise
Agreement shall be substantially in the form set forth in Exhibit I 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
-3-
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 the 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.
1.4. FRACTIONAL SHARES. If a fractional share of Common Stock would, but
for the provisions of paragraph 1.1, be issuable upon exercise of the rights
represented by this Warrant, in lieu of issuing such fractional share, the
Company shall, within five business days after the date of the Exercise Time,
deliver to the Purchaser's order the Company's check payable to the Purchaser 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.
SECTION 2. ADJUSTMENT OF EXERCISE PRICE. 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.
2.1. ADJUSTMENT OF EXERCISE PRICE UPON ISSUANCE OF COMMON STOCK. (i) If and
whenever after the date of this Warrant, the Company issues or sells, or in
accordance with paragraph 2.2 is deemed to have issued or sold, any share of
Common Stock for a consideration per share less than the Per Share Price, then
immediately upon such issue or sale or deemed issue or sale, the Exercise Price
in effect immediately prior to such time shall be reduced to an amount
determined by dividing (a) the sum of (1) the product derived by multiplying (i)
the Per Share Price times (ii) the number of shares of Common Stock Deemed
Outstanding immediately prior to such issue or sale, plus (2) the consideration,
if any, received (or deemed received pursuant to Section 2.2 below) 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. Notwithstanding the
foregoing, if the Company inadvertently issues or sells, or is deemed to have
issued or sold, any share of Common Stock for a consideration per share less
than the Per Share Price, the Exercise Price in effect immediately prior to such
time shall not be reduced if the Company is able to rescind or appropriately
modify the transaction within a reasonable time after it became aware of the
reduction in the Exercise Price that would otherwise occur.
(ii) Notwithstanding the foregoing and Section 2.2, there shall be no
adjustment to the Exercise Price or the number of shares of Common Stock
obtainable upon exercise of this Warrant with respect to the issuance by the
Company of any Excluded Securities, and the shares of Common Stock included in
or issuable upon conversion or exercise of any Excluded Securities shall be
deemed outstanding for purposes of Section 2.1.
2.2. EFFECT ON EXERCISE PRICE OF CERTAIN EVENTS. For purposes of
determining the adjusted Exercise Price under paragraph 2.1, the following shall
be applicable:
(i) Issuance of Rights or Options. If the Company in any manner grants
or sells any Options and the lowest price per share for which any one share of
Common Stock is issuable upon the exercise of any such Option, or upon
conversion or exchange of any
-4-
Convertible Security issuable upon exercise of such Option, is less than the Per
Share Price, then such share of Common Stock (but only such share or shares at
the "lowest price per share for which any one share of Common Stock is
issuable") shall be deemed to be outstanding and to have been issued and sold by
the Company at such time for such lower price per share. For purposes of this
paragraph, the "lowest price per share for which any one share of Common Stock
is issuable" shall be equal to the sum of the lowest amount of consideration (if
any) paid or payable by the option holder with respect to any one share of
Common Stock upon the granting or sale of the Option, upon exercise of the
Option and upon conversion or exchange of the Convertible Security. No further
adjustment of the Exercise Price shall be made upon the actual issue of such
Common Stock or of such Convertible Security upon the exercise of such Options
or upon the actual issue of such Common Stock upon conversion or exchange of
such Convertible Security.
(ii) Issuance of Convertible Securities. If the Company in any manner
issues or sells any Convertible Security and the lowest price per share for
which any one share of Common Stock is issuable upon conversion or exchange
thereof is less than the Per Share Price, then such share or shares of Common
Stock (but only such share or shares at the "lowest price per share for which
any one share of Common Stock is issuable") shall be deemed to be outstanding
and to have been issued and sold by the Company at such time for such lower
price per share. For the purposes of this paragraph, the "lowest price per share
for which any one share of Common Stock is issuable" shall be equal to the sum
of the lowest amount of consideration (if any) paid or payable by the holder of
the Convertible Security with respect to any one share of Common Stock upon the
issuance or sale of the Convertible Security and upon the conversion or exchange
of such Convertible Security. No further adjustment of the Exercise Price shall
be made upon the actual issue of such Common Stock upon conversion or exchange
of any Convertible Security, and if any such issue or sale of such Convertible
Security 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
Section 2, 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 that would have been
in effect at such time had such Options or Convertible Securities 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. For
purposes of this paragraph 2.2, if the terms of any Option or Convertible
Security that 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, conversion 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 to be increased to an amount in excess of the Exercise Price
in effect upon the issuance of this Warrant.
-5-
(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 shall be adjusted immediately
to the Exercise Price that 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. For purposes of this paragraph 2.2, the expiration or termination
of any Option or Convertible Security that was outstanding 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 amount paid by the holder to the Company for such security (including
discounts, commissions and related expenses paid to independent third parties).
In case any Common Stock, Options or Convertible Securities are issued or sold
for a consideration other than cash (including in connection with acquisitions),
the amount of the consideration other than cash paid by the holder 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 corporation, the amount of consideration therefor shall be deemed to
be the fair value of such portion of the net assets and business of the
non-surviving 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 Warrants representing a majority of the shares of Common
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 Warrants representing a majority of the shares of Common 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 the
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 for such consideration as determined in good faith by the
Company's board of directors.
(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.
-6-
(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 or
(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.
2.3. 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 Common
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 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
Common Stock obtainable upon exercise of this Warrant shall be proportionately
decreased.
2.4. REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE. Prior
to the consummation of any Organic Change, the Company shall make appropriate
provision (in form and substance satisfactory to the Registered Holder) to
ensure that the Registered Holder shall thereafter have the right to acquire and
receive, in lieu of or in addition to (as the case may be) the shares of Common
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
Common 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 Common
Stock obtainable upon exercise of all Warrants then outstanding) with respect to
such holders' rights and interests to ensure that the provisions of this Section
2 and Section 3 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, an adjustment
of the Exercise Price or the number of shares of Common Stock acquirable and
receivable upon exercise of the Warrants in accordance with Section 2.1 hereof
as if such securities issuable upon any such consolidation, merger or sale were
issued by the Company). 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 Warrants representing a majority of
the Common Stock obtainable upon exercise of all of the Warrants then
outstanding), the obligation to deliver to each such holder such shares of
stock, securities or assets as, in accordance with the foregoing provisions,
such holder may be entitled to acquire.
-7-
2.5. CERTAIN EVENTS. If any event occurs of the type contemplated by the
provisions of this Section 2 but not expressly provided for by such provisions
(including, without limitation, the granting of stock appreciation rights,
phantom stock rights or other rights with equity features), then the Company's
board of directors shall make an appropriate adjustment in the Exercise Price
and the number of shares of Common Stock obtainable upon exercise of this
Warrant 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 Common Stock obtainable as otherwise determined pursuant to this
Section 2.
2.6. 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 the 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. DIVIDENDS. If the Company declares or pays a Dividend, then the
Company shall set aside such Dividend for payment upon exercise of this Warrant
to the Registered Holder of this Warrant the Dividend that would have been paid
to such Registered Holder on the Common Stock had this Warrant been fully
exercised immediately prior to the date on which a record is taken for such
Dividend, or, if no record is taken, the date as of whicl. the record holders of
Common Stock entitled to such dividends are to be determined.
SECTION 4. DEFINITIONS. The following terms have meanings set forth below:
"Common Stock" means the Company's Common Stock, $.01 par value per share,
and except for purposes of the shares obtainable upon exercise of this
Warrant, any capital stock of any class of the Company hereafter authorized
that 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" shall mean, at any given time, the number
of shares of Common Stock actually outstanding at such time, plus the
number of shares of Common Stock issuable upon conversion, exchange or
exercise of any outstanding Convertible Securities, regardless of whether
such Convertible Securities are convertible, exchangeable or exercisable
into share of Common Stock at such time.
-8-
"Convertible Securities" shall mean securities or obligations (including
without limitation convertible notes) that are exercisable for convertible
into, or exchangeable for shares of Common Stock. The term includes
options, warrants or other rights to subscribe for or purchase Common Stock
or to subscribe for or purchase other securities that are convertible into
Common Stock.
"Dividend" means any dividend or other distribution upon the Common Stock
except for a stock dividend payable in shares of Common Stock.
"Excluded Securities" shall mean any shares of Common Stock or other
securities listed in the last paragraph of Section 3(f) of Article IV of
the Company's Certificate of Incorporation, as amended, as in effect on the
date hereof.
"Market Price" means, as to any security, the average of the closing prices
of such security's sales on all domestic 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 System 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 System,
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 21 days consisting of the day as of which
"Market Price" is being determined and the 20 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 System 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
Warrants representing a majority of the 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.
"Options" means any rights or options to subscribe for or purchase Common
Stock or Convertible Securities.
"Organic Change" means any recapitalization, reorganization,
reclassification, Sale of the Company or other transaction, in each case,
which is effected in such a way that the holders of Common Stock are
entitled to receive (either directly or upon subsequent
-9-
liquidation) stock, securities or assets (other than cash) with respect to
or in exchange for Common Stock.
"Per Share Price" shall mean $12.29.
"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.
"Public Offering" shall mean a firm commitment underwritten public offering
pursuant to an effective registration statement under the Securities Act of
1933, as amended, covering the offer and sale of Common Stock for the
account of the Corporation to the public in which the aggregate gross
proceeds (before underwriting discounts and commissions) to the Corporation
are at least $20 million.
"Purchase Rights" means any Options, Convertible Securities or rights to
purchase stock, warrants, securities or other property pro rata to the
record holders of any class of Common Stock.
"Sale of the Company" shall mean any of the events described in Section 2
of Article IV of the Company's Certificate of Incorporation, as amended, as
in effect on the date hereof.
SECTION 5. 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 6. WARRANT TRANSFERABLE. 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, only to a Person that
is not an entity engaged in a business that is directly competitive with the
business of the Company and that shall agree to be bound by the limitations on
disposition set forth herein.
SECTION 7. 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 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."
-10-
SECTION 8. 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 institution or other institutional investor with
capital and surplus in excess of three times the value of the Common Stock that
can be purchased upon exercise of this Warrant, such holder's agreement shall be
satisfactory), or, in the case of any such mutilation upon surrender of such
certificate, the Company shall (at its expense) execute and deliver in lieu of
such certificate a new certificate of like kind representing the same rights
represented by such lost, stolen, destroyed or mutilated certificate and dated
the date of such lost, stolen, destroyed or mutilated certificate.
SECTION 9. 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 be 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 10. 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
Holder.
SECTION 11. 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. All issues and
questions concerning the connection, validity, enforcement and interpretation of
this Warrant shall be governed by, and construed in accordance with, the laws of
the State of Delaware, without giving effect to any choice of law or conflict of
law provision or rule (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the domestic substantive laws
of any jurisdiction other than the State of Delaware.
-11-
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed and
attested by its duly authorized officers under its corporate seal and to be
dated the Date of Issuance hereof.
OMRIX BIOPHARMACEUTICALS, INC.
By /s/ Xxxxxx Xxxx
-------------------------------------
Name: Xxxxxx Xxxx
Title: Chief Executive Officer and
President
-12-
