CLASS D WARRANT AGREEMENT
EXHIBIT
4.6
CLASS
D WARRANT AGREEMENT
This
CLASS D WARRANT AGREEMENT (this “Warrant Agreement”) is dated and entered into
as of February 24, 2006, by and between ORTHOLOGIC CORP., a Delaware corporation
(the “Company”), and PHARMABIO DEVELOPMENT INC., a North Carolina
corporation (“PharmaBio”).
WHEREAS,
the Company and PharmaBio have entered into the Common Stock and Warrant
Purchase Agreement (the “Purchase Agreement”), and the Registration Rights
Agreement, each dated as of the date hereof;
WHEREAS,
the Company and Quintiles, Inc. (“Quintiles”), an affiliate of PharmaBio, have
entered into a Master Services Agreement also dated as of the date hereof (the
“Services Agreement”);
WHEREAS,
pursuant to the Purchase Agreement, the Company desires to grant to PharmaBio
the rights set forth in this Warrant Agreement;
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the parties, the parties agree as
follows:
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1.
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The
Warrant.
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(a) The
Company hereby agrees to issue and sell to PharmaBio, its designee or assigns
(the “Holder”) 80,000 shares (the “Warrant Shares”) of the Company’s Common
Stock, $.0005 par value per share (“Common Stock”), at an exercise price of Six
Dollars and Thirty-Nine Cents ($6.39) per share (the “Exercise Price”) (such
Exercise Price was calculated as follows: the average of the closing prices of
the shares of Common Stock for the 15 trading days prior to the date hereof,
multiplied by 115%), upon the terms and conditions herein set forth, including
the vesting schedule set forth in this Section 1. The Exercise Price
and the number of Warrant Shares purchasable upon exercise of this Warrant
Agreement are subject to adjustment from time to time as provided in Section 4
of this Warrant Agreement.
(b) Upon
availability of a protocol for the existing Phase 2 clinical study of TP508 in
diabetic foot ulcer healing (the “Milestone”), the Joint Development Committee
(as defined in the Services Agreement) shall promptly and in good faith
determine an appropriate vesting schedule for the Warrant Shares, based on
completion of patient enrollment for such clinical study and the timing thereof,
and having a vesting structure generally similar to the Class B and Class C
Warrant Agreements between the Company and PharmaBio. Upon the determination of
such vesting schedule by the Joint Development Committee, the parties hereto
promptly shall enter into an appropriate amendment to this Warrant Agreement
reflecting such vesting schedule.
(c) In
the event that the vesting schedule determined under Section 1(b) above fails to
be achieved, or fails to be achievable, and such failure is not caused solely by
Quintiles, then the Joint Development Committee (as defined in the Services
Agreement) shall promptly and in good faith review the existing vesting schedule
and the events and circumstances that caused or resulted in such failure; and
the Joint Development Committee shall determine a new vesting schedule that
shall extend each date within the existing vesting schedule by the duration of
the events or circumstances that caused or resulted in such failure, up to one
year; provided that the vesting schedule shall be extended pursuant to this
Section 1(c) only once. The parties hereto promptly shall enter into an
appropriate amendment to this Warrant Agreement reflecting such
extension.
(d) Notwithstanding
Section 1(b), the Holder’s right to exercise this Warrant Agreement will vest
upon a Change of Control. “Change of Control” means the occurrence of
any of the following: (a) any “person” or “group” (as such terms are defined in
Section 13(d) and Section 14(d) of the Securities Exchange Act of 1934, as
amended, or any successor provisions (the “Exchange Act”)) becomes the
“beneficial owner” (as determined in accordance with Rule 13d-3 under the
Exchange Act), directly or indirectly, of shares of voting securities of the
Company representing 50% or more of the total voting power of all outstanding
voting securities of the Company; (b) the sale, lease, license, exchange or
other transfer (in one or a series of transactions) of all or substantially all
of the assets of the Company, or all or substantially all of the assets relating
to TP508; or (c) any merger, consolidation, share exchange, business
combination or similar transaction in which the Company is not the surviving
entity or in which the holders of the outstanding shares of stock of the Company
immediately prior to such transaction hold, immediately after such transaction,
less that 51% of the total voting power of the outstanding securities of the
surviving or resulting entity in such transaction.
2. Expiration
Date. This Warrant Agreement, and the Holder’s right to
purchase any of the Warrant Shares, will expire at 5:00 p.m. Eastern Time on the
tenth anniversary of the date of this Warrant Agreement (the “Expiration
Date”).
3.
Exercise
of this Warrant Agreement. (a) The Holder may exercise this
Warrant Agreement, on any Business Day, at any time from and after the date
hereof and prior to the Expiration Date, in whole or in part, as adjusted from
time to time as provided in Section 4 of this Warrant Agreement,
by: (a) the surrender of this Warrant Agreement, with the Exercise
Form substantially in the form attached hereto as Annex A properly completed and
executed, at the principal office of the Company, and (b) upon payment by the
delivery of a certified check or official bank check or wire transfer of
immediately available funds, payable to the order of the Company in an amount
equal to the aggregate purchase price for the Warrant Shares being purchased
upon such exercise. Upon receipt thereof by the Company, the Holder
will be deemed to be the holder of record of the Warrant Shares issuable upon
such exercise as of the close of business on the date of such receipt by the
Company, and the Company will promptly execute or cause to be executed and
delivered to the Holder, a certificate or certificates representing the
aggregate number of Warrant Shares specified in the Exercise Form. If
this Warrant Agreement is exercised only in part, the Company will, at the time
of delivery of said stock certificate or certificates, deliver to the Holder a
new Warrant Agreement of like tenor evidencing the right of the Holder to
purchase the remaining Warrant Shares then covered by this Warrant
Agreement. “Business Day” shall mean any day, other than a Saturday,
Sunday or legal holiday during which banks in North Carolina, United States are
open for the conduct of their banking business.
(b) In
lieu of exercising this Warrant Agreement, the Holder may elect to receive
shares equal to the value of this Warrant Agreement (or the portion of the
Warrant Shares hereunder being cancelled or surrendered) by sending written
notice of such election to the Company, in which event the Company shall deliver
to the Holder a stock certificate representing a number of shares of Common
Stock computed using the following formula:
X=Y(A-B)
A
Where:
X = the
number of shares of Common Stock to be issued to the Holder
Y = the
number of shares of Common Stock purchasable under this Warrant Agreement as to
which the Holder is then exercising this Warrant Agreement
A = the
fair market value of one share of Common Stock
B = the
Exercise Price (as adjusted to the date of such calculations)
(c) For
purposes of this Section, “fair market value” of one share of Common Stock shall
mean the closing price reported on the Nasdaq National Market or the principal
exchange on which the Common Stock is listed, or the average of the closing bid
and asked prices of the Common Stock quoted in the Over-The-Counter market,
whichever is applicable, in each such case averaged over a period of fifteen
(15) consecutive trading days immediately preceding the date that the Exercise
Form is delivered to the Company. If the Common Stock is
not traded on such market or exchange, or Over-The-Counter, the fair market
value of the Common Stock will be the price per share which the Company could
obtain from a willing buyer for shares sold by the Company from authorized but
unissued shares, as agreed upon by the Company and the Holder in good faith or,
absent such agreement, as shall be determined by arbitration instituted by
either party under the rules of the American Arbitration
Association.
(d) If
this Warrant Agreement has not been exercised prior to the Expiration Date, the
Holder shall be deemed to have elected, prior to the close of business on the
Expiration Date, to receive shares pursuant to this Section 3.
4.
Certain
Adjustments. The Exercise Price at which Warrant Shares may be
purchased and the number of Warrant Shares to be purchased upon exercise of this
Warrant Agreement are subject to change or adjustment from time to time as
follows:
(a) Merger, Sale of Assets,
etc. If at any time while this Warrant Agreement, or any
portion hereof, is outstanding and unexpired there shall be (i) a reorganization
(other than a combination, reclassification, exchange or subdivision of shares
otherwise provided for herein), (ii) a merger or consolidation of the Company
with or into another corporation or entity in which the Company is not the
surviving entity, or a reverse triangular merger or share exchange in which the
Company is the surviving entity but the shares of the Company’s capital stock
outstanding immediately prior to the merger or share exchange are exchanged or
converted by virtue of the merger or share exchange into other property, whether
in the form of securities, cash, or otherwise, or (iii) a sale, lease, license
or other transfer of all or substantially all of the Company’s properties or
assets to any other person or entity, then, as a part of such reorganization,
merger, consolidation, exchange or other transfer, lawful provision shall be
made so that the Holder shall thereafter be entitled to receive upon exercise of
this Warrant Agreement, during the period specified herein and upon payment of
the Exercise Price then in effect, the number of shares of stock or other
securities or property resulting from such reorganization, merger,
consolidation, exchange or other transfer that a holder of the shares
deliverable upon exercise of this Warrant Agreement would have been entitled to
receive in such reorganization, merger, consolidation, exchange or other
transfer if this Warrant Agreement had been exercised immediately before the
record date of (or the date of, if no record date is fixed) such reorganization,
merger, consolidation, exchange or other transfer, all subject to further
adjustment as provided in this Section 4. The foregoing provisions of
this Section 4(a) shall similarly apply to successive reorganizations, mergers,
consolidations, exchanges or other transfers and to the stock or securities of
any other corporation that are at the time receivable upon the exercise of this
Warrant Agreement. If the per-share consideration payable to the
Holder hereof for shares in connection with any such transaction is in a form
other than cash or marketable securities, then the value of such consideration
shall be reasonably determined in good faith by the Company’s Board of
Directors. In all events, appropriate adjustment (as reasonably
determined in good faith by the Company’s Board of Directors) shall be made in
the application of the provisions of this Warrant Agreement with respect to the
rights and interests of the Holder after any of the above-referenced
transactions, to the end that the provisions of this Warrant Agreement shall be
applicable after such event, as near as reasonably may be, in relation to any
shares or other property deliverable after such event upon exercise of this
Warrant Agreement.
(b) Reclassification,
etc. If the Company, at any time while this Warrant Agreement,
or any portion hereof, remains outstanding and unexpired, by reclassification of
securities or otherwise, shall change any of the securities as to which purchase
rights under this Warrant Agreement exist into the same or a different number of
securities of any other class or classes, this Warrant Agreement shall
thereafter represent the right to acquire such number and kind of securities as
the Holder would have received if this Warrant Agreement had been exercised in
full immediately prior to such reclassification or other change or immediately
prior to the record date with respect thereto and the Exercise Price therefor
shall be appropriately adjusted, all subject to further adjustment as provided
in this Section 4. The foregoing provisions of this Section 4(b)
shall similarly apply to successive reclassifications or other
changes.
(c) Split, Subdivision or
Combination of Shares. If the Company, at any time while this
Warrant Agreement, or any portion hereof, remains outstanding and unexpired,
shall split, subdivide or combine the securities as to which purchase rights
under this Warrant Agreement exist, into a different number of securities of the
same class, the Exercise Price for such securities shall be proportionately
decreased in the case of a split or subdivision or proportionately increased in
the case of a combination. Upon each adjustment in the Exercise Price
pursuant to this subsection, the number of shares of such securities purchasable
hereunder shall be adjusted, to the nearest whole share, to the product obtained
by multiplying the number of shares purchasable immediately prior to such
adjustment in the Exercise Price by a fraction, the numerator of which shall be
the Exercise Price immediately prior to such adjustment and the denominator of
which shall be the Exercise Price immediately thereafter.
(d) Certificate as to
Adjustments. Upon the occurrence of each adjustment pursuant
to this Section 4, the Company at its expense shall promptly compute such
adjustment in accordance with the terms hereof and furnish to any Holder of this
Warrant Agreement a certificate signed by its Chief Financial Officer setting
forth such adjustment and showing in detail the event requiring the adjustment,
the amount of such adjustment, the method by which such adjustment was
calculated, the Exercise Price at the time in effect, and the number of shares
and the amount, if any, of the property that at the time would be received upon
the exercise of this Warrant Agreement, together with the facts upon which such
adjustment is based. The Company shall, upon the written request, at
any time, of any Holder, promptly furnish or cause to be furnished to such
Holder a like certificate setting forth: (i) all such previous adjustments; (ii)
the Exercise Price at the time in effect; and (iii) the number of shares and the
amount, if any, of other property that at the time would be received upon the
exercise of this Warrant Agreement.
(e) No Dilution or
Impairment. The Company will not, by amendment of its
certificate of incorporation or through any reorganization, recapitalization,
reclassification, transfer of assets, consolidation, merger, business
combination, or dissolution, avoid or seek to avoid the intent of this Section 4
or the observance or performance of any of the terms to be observed or performed
by the Company under this Warrant Agreement, but will at all times in good faith
assist in the carrying out of all the provisions of this Section 4 and in the
taking of all such action as may be necessary or appropriate in order to protect
the rights of the holder of this Warrant Agreement against
impairment.
(f) Conformity with Warrant
Agreement. In the event that at any time, as a result of any
adjustment made pursuant to this Section 4, the Holder thereafter shall become
entitled to receive any shares of capital stock of the Company other than Common
Stock, thereafter the number of such other shares so receivable upon exercise of
the Warrant Agreement shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Common Stock contained in this Section 4.
5.
Fractional
Shares. Fractional shares will not be issued upon the exercise
of this Warrant Agreement, but in any case where the Holder would, except for
the provisions of this Section, be entitled under the terms of this Warrant
Agreement to receive a fractional share upon the exercise of this Warrant
Agreement, the Company will, upon the exercise of this Warrant Agreement for the
largest number of whole shares then called for, pay a sum in cash equal to the
excess of the fair market value of such fractional share (determined in such
reasonable manner as may be prescribed by the Board of Directors of the Company
in its discretion) over the proportional part of the per share purchase price
represented by such fractional share.
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6.
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Notices of Certain
Events. In case:
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(a) the
Company shall take a record of the holders of its Common Stock (or other stock
or securities at the time receivable upon the exercise of this Warrant
Agreement) for the purpose of entitling them to receive any dividend or other
distribution, or stock subdivision or combination, or any right to subscribe for
or purchase any shares of stock of any class or any other securities, or to
receive any other right, or
(b)
of any reorganization or recapitalization of the Company, any reclassification
of the capital stock of the Company, any consolidation, merger, share exchange
or other business combination of the Company with or into another corporation or
entity, or any sale, lease, license or other transfer of all or substantially
all of the assets of the Company to another corporation or entity,
or
(c) of
any voluntary dissolution, liquidation or winding-up of the
Company,
then, and
in each such case, the Company will cause written notice thereof to be delivered
to the Holder specifying, as the case may be, (i) the date on which a record is
to be taken for the purpose of such dividend, distribution or right, and stating
the amount and character of such dividend, distribution or right or (ii) the
date on which such reorganization, recapitalization, reclassification,
consolidation, merger, share exchange, business combination, transfer,
dissolution, liquidation or winding-up is to take place, and the time, if any is
to be fixed, as of which the holders of record of Common Stock (or such stock or
securities at the time receivable upon the exercise of this Warrant Agreement)
shall be entitled to exchange their shares of Common Stock (or such other stock
or securities) for securities or other property deliverable upon such
reorganization, reclassification, recapitalization, consolidation, merger, share
exchange, business combination, transfer, dissolution, liquidation or
winding-up. Such notice shall be delivered at least ten (10) Business
Days prior to the date required to be specified therein pursuant to this Section
6.
7. No Rights as Stockholder;
Limitation of Liability. This Warrant Agreement, as distinct
from the shares for which this Warrant Agreement is exercisable, will not
entitle the Holder to any of the rights of a stockholder of the
Company. No provision of this Warrant Agreement, prior to the
exercise of this Warrant Agreement, and no mere enumeration herein of the rights
or privileges of the Holder, will give rise to any liability of the Holder for
the purchase price or as a stockholder of the Company, whether such liability is
asserted by the Company or by creditors of the Company.
8.
Miscellaneous.
(a) Successors and
Assigns. This Warrant Agreement shall be binding on and inure
to the benefit of the Holder and the Company and their respective successors and
assigns.
(b) Amendments and
Waivers. This Warrant Agreement and any provision hereof may
be amended, changed, waived, discharged or terminated only by an instrument in
writing signed by both parties hereto.
(c) Loss, Theft, Destruction or
Mutilation. Upon receipt by the Company of evidence reasonably
satisfactory to it that this Warrant Agreement has been lost, stolen, destroyed
or mutilated, and in the case of any lost, stolen or destroyed Warrant
Agreement, an indemnity reasonably satisfactory to the Company, or in the case
of a mutilated Warrant Agreement, upon surrender and cancellation hereof, the
Company will execute and deliver in the name of the registered holder of this
Warrant Agreement, in exchange and substitution for the Warrant Agreement so
lost, stolen, destroyed or mutilated, a new Warrant Agreement of like tenor and
amount.
(d) Warrant Exchangeable for
Different Denominations. This Warrant Agreement is
exchangeable, upon the surrender hereof by the Holder at the principal office of
the Company for new Warrant Agreements of like tenor representing in the
aggregate the right to purchase the number of shares which may be purchased
hereunder, each of such new Warrant Agreements to represent the right to
purchase such number of Warrant Shares as shall be designated by said Holder
hereof at the time of such surrender.
(e)
Law
Governing. This Warrant Agreement will be governed by, and
construed and enforced in accordance with, the laws of the State of North
Carolina, without regard to conflicts-of-laws principles that would require the
application of any other law.
(f) Entire
Agreement. This Warrant Agreement, together with the Purchase
Agreement, the Registration Rights Agreement, and the other transaction
documents referred to therein or contemplated thereby, constitutes the full and
entire understanding and agreement among the parties with regard to the subject
matter of this Warrant Agreement, and supersedes all prior agreements,
understandings, inducements or conditions, express or implied, oral or written,
with respect to the subject matter of this Warrant Agreement.
(g)
Notices. Unless
otherwise provided herein, all notices, requests, demands and other
communications required or permitted under this Warrant Agreement shall be in
writing and will be deemed to have been duly made and received: (i)
upon personal delivery; (ii) three (3) Business Days after deposit with the
United States Post Office, by registered or certified mail or by first class
mail, postage prepaid, addressed as set forth below; or (iii) one (1) Business
Day after deposit with a nationally recognized, overnight courier (for next
business day delivery), shipping prepaid, addressed as set forth
below:
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If
to Company:
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Attn: ▇▇▇▇▇
▇. ▇▇▇▇▇, M.D.
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
With a
copy to
(which
shall not
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constitute
notice):
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One
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Attn:
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Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
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If
to Purchaser:
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PharmaBio
Development Inc.
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Attn: President
Facsimile: (▇▇▇)
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With a
copy to
(which
shall not
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constitute
notice):
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Smith,
Anderson, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇, L.L.P.
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Attn:
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Facsimile: (▇▇▇)
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Either
party may change the address to which communications are to be sent by giving
five (5) Business Days’ advance notice of such change of address to the other
party in conformity with the provisions of this Section.
(h) Execution;
Counterparts. This Warrant Agreement and any amendment hereto
may be executed in counterparts, each of which when executed and delivered shall
be deemed to be an original and all of which counterparts taken together shall
constitute but one and the same instrument. The exchange of copies of
this Warrant Agreement or amendments thereto and of signature pages by facsimile
transmission or by email transmission in portable digital format, or similar
format, shall constitute effective execution and delivery of such instrument(s)
as to the parties and may be used in lieu of the original Warrant Agreement or
amendment for all purposes. Signatures of the parties transmitted by
facsimile or by email transmission in portable digital format, or similar
format, shall be deemed to be their original signatures for all
purposes.
[signature
page follows]
[Signature
Page to Class D Warrant Agreement]
IN
WITNESS WHEREOF, the parties have caused this Warrant Agreement to be duly
executed and delivered as of the day and year first written above.
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By:
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/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
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▇▇▇ ▇. ▇▇▇▇▇▇
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Title:
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Sr.VP
and Chief Financial Officer
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PHARMABIO
DEVELOPMENT INC.
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By:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title:
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Vice
President, Corporate
Development
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ANNEX A
EXERCISE
FORM
TO BE
EXECUTED BY THE REGISTERED HOLDER
TO
EXERCISE THE ATTACHED CLASS D WARRANT AGREEMENT OF
The
undersigned, [________________], pursuant to the provisions of the Class D
Warrant Agreement between OrthoLogic Corp. (the “Company”) and PharmaBio
Development Inc. dated as of February 24, 2006 (the “Warrant Agreement”), hereby
elects to exercise the Warrant Agreement by agreeing to subscribe for and
purchase [_______________] shares (the “Warrant Shares”) of Common Stock, $.0005
par value per share, of the Company, and hereby makes payment of $[___________]
by certified or official bank check or wire transfer of immediately available
funds payable to the order of the Company in payment of the exercise price
therefor.
The
undersigned acknowledges that the sale, transfer, assignment or hypothecation of
the Warrant Shares to be issued upon exercise of this Warrant Agreement is
subject to the terms and conditions of the Warrant Agreement.
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PharmaBio
Development Inc.
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By:
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Name:
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Title:
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Address:
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Dated: ___________________,
_____