Exhibit 4.4
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER
SUCH ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT
TO AN EXEMPTION TO SUCH ACT.
Void after
August 31, 2009
WARRANT TO PURCHASE SHARES
OF SERIES B-1 PREFERRED STOCK
OF
CRDENTIA CORP.
This certifies that, for value received, MedCap Partners L.P., together
with its successors and assigns (the "Holder") is entitled to subscribe for and
purchase, on the terms hereof, shares of Series B-1 Preferred Stock (the
"Stock") of Crdentia Corp., a Delaware corporation (the "Company"), which is
convertible into shares of Common Stock of the Company (the "Common Stock"),
subject to adjustment as provided herein.
This Warrant is subject to the following terms and conditions:
1. EXERCISE OF WARRANT. The terms and conditions upon which this
Warrant may be exercised, and the Stock covered hereby may be purchased, are as
follows:
1.1 TERM. Subject to the terms hereof, this Warrant may be
exercised at any time after the date hereof, or from time to time, in whole or
in part; provided, however, that in no event may this Warrant be exercised (the
"Exercise Date") later than 5:00 p.m. (Pacific Time) on the earlier of (a) the
close of business on August 31, 2009 or (b) the closing of a Corporate
Transaction (as defined below) (the "Exercise Period"); provided that at least
twenty (20) days prior to the occurrence of the closing of a Corporate
Transaction, the Company shall have sent to the Holder notice of such event.
For purposes hereof, the term "Corporate Transaction" shall
mean (a) the sale, conveyance or disposal of all or substantially all of the
Company's property or business; (b) the Company's merger into or consolidation
with any other corporation (other than a a merger effected exclusively for the
purpose of changing the domicile of the Company or a merger in which the owners
of the voting stock of the Company prior to the merger own at least 50% of the
voting interests in the surviving entity) or any other transaction or series of
transactions, in which more than fifty percent (50%) of the voting power of the
Company is disposed of (other than a sale by the Company of shares of its
capital stock in an equity financing); or (c) the closing of an underwritten
public offering of the Company's Common Stock pursuant to a registration
statement under the Securities Act of 1933, as amended (the "Securities Act"),
with aggregate net proceeds to the Company in excess of twenty-five million
dollars ($25,000,000).
1.2 NUMBER OF SHARES. This Warrant may be exercised for 6,000
shares of Stock, subject to adjustment as provided herein.
1.3 EXERCISE PRICE. The per share exercise price for the
shares of Stock to be issued upon exercise of this Warrant shall be $60.00,
subject to adjustment as provided herein (such price as adjusted from time to
time as provided herein is called the "Exercise Price").
1.4 METHOD OF EXERCISE. The exercise of the purchase rights
evidenced by this Warrant shall be effected by (a) the surrender of the Warrant,
together with a duly executed copy of the form of a subscription attached hereto
as Schedule 1, to the Company at its principal offices and (b) except as set
forth in Section 1.5, the delivery of the aggregate Exercise Price by check or
bank draft payable to the Company's order or by wire transfer to the Company's
account for the number of shares for which the purchase rights hereunder are
being exercised or any other form of consideration approved by the Company's
Board of Directors (the "Board"). Each exercise of this Warrant shall be deemed
to have been effected immediately prior to the close of business on the day on
which this Warrant shall have been surrendered to the Company as provided herein
or at such later date as may be specified in the executed form of subscription,
and at such time the person or persons in whose name or names any certificate or
certificates for shares of Stock shall be issuable upon such exercise as
provided herein shall be deemed to have become the holder or holders of record
thereof.
1.5 NET ISSUANCE.
(a) RIGHT TO CONVERT. In addition to and without
limiting the rights of the Holder under the terms of this Warrant, the Holder
shall have the right to convert this Warrant or any portion thereof (the
"Conversion Right") into shares of Stock as provided in this Section 1.5 at any
time or from time to time during the Exercise Period. Upon exercise of the
Conversion Right with respect to a particular number of shares subject to the
Warrant (the "Converted Warrant Shares"), the Company shall deliver to the
Holder (without payment by the Holder of any exercise price or any cash or other
consideration) that number of shares of fully paid and nonassessable Stock
computed using the following formula:
X = Y (A - B)
---------
A
Where X = the number of shares of Stock to be delivered to
the Holder
Y = the number of Converted Warrant Shares
A = the fair market value of the total number of
shares of Common Stock into which one share of
Stock can be converted on the Conversion Date (as
defined below)
B = the Exercise Price (as adjusted to the Conversion
Date)
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The Conversion Right may only be exercised with respect to a whole
number of shares subject to the Warrant. No fractional shares shall be issuable
upon exercise of the Conversion Right, and if the number of shares to be issued
determined in accordance with the foregoing formula is other than a whole
number, the Company shall pay to the Holder an amount in cash equal to the fair
market value of the resulting fractional share on the Conversion Date (as
defined below). Shares issued pursuant to the Conversion Right shall be treated
as if they were issued upon the exercise of the Warrant.
(b) METHOD OF EXERCISE. The Conversion Right may be
exercised by the Holder by the surrender of the Warrant at the principal office
of the Company together with a notice in the form attached hereto as Schedule 2
specifying that the Holder thereby intends to exercise the Conversion Right and
indicating the total number of shares under the Warrant that the Holder is
exercising through the Conversion Right. Such conversion shall be effective upon
receipt by the Company of the Warrant together with the aforesaid written
statement, or on such later date as is specified therein (the "Conversion
Date"). Certificates for the shares issuable upon exercise of the Conversion
Right and, if applicable, a new warrant evidencing the balance of the shares
remaining subject to the Warrant, shall be issued as of the Conversion Date and
shall be delivered to the Holder promptly following the Conversion Date.
(c) DETERMINATION OF FAIR MARKET VALUE. For purposes
of this Section 1.5, the fair market value of a share of Common Stock on the
Conversion Date shall be the average of the closing prices of the Common Stock
as reported on a Trading Market (as defined below) for the last fifteen (15)
trading day period ending two (2) days prior to the Conversion Date. For
purposes of this Warrant, "Trading Market" shall mean one of the following which
has been determined by the Company's Board of Directors to be the Company's
principal trading market: NASD OTC Bulletin Board, the Nasdaq SmallCap Market,
the Nasdaq National Market, the American Stock Exchange or the New York Stock
Exchange. Notwithstanding the foregoing, in the event the Common Stock is not
publicly trading on the Conversion Date, the fair market value of a share of
Common Stock on the Conversion Date shall be determined in good faith by the
Company's Board of Directors.
(d) LIMIT ON EXERCISE. Notwithstanding any other
provision of this Warrant, the Holder shall not be entitled to exercise the
Conversion Right, in whole or in part, unless the Holder agrees, in writing, to
immediately convert the Shares issued pursuant to the Conversion Right into
shares of the Company's Common Stock (pursuant to the terms of the Company's
Amended and Restated Certificate of Incorporation and Certificate of
Designations, Preferences and Rights of Series B-1 Preferred Stock of the
Company).
2. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. The Exercise
Price and the number of shares purchasable upon the exercise of this Warrant
shall be subject to adjustment from time to time upon the occurrence of certain
events described in this Section 2. Upon each adjustment of the Exercise Price,
the Holder of this Warrant shall thereafter be entitled to purchase, at the
Exercise Price resulting from such adjustment, the number of shares obtained by
multiplying the Exercise Price in effect immediately prior to such adjustment by
the number of shares purchasable pursuant hereto immediately prior to such
adjustment, and dividing the product thereof by the Exercise Price resulting
from such adjustment.
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2.1 SUBDIVISION OR COMBINATION OF STOCK. In case the Company
shall at any time subdivide its outstanding shares of Series B-1 Preferred Stock
into a greater number of shares, the Exercise Price in effect immediately prior
to such subdivision shall be proportionately reduced, and conversely, in case
the outstanding shares of Series B-1 Preferred Stock of the Company shall be
combined into a smaller number of shares, the Exercise Price in effect
immediately prior to such combination shall be proportionately increased.
2.2 DIVIDENDS IN STOCK, OTHER STOCK, PROPERTY,
RECLASSIFICATION. If at any time or from time to time the holders of the Series
B-1 Preferred Stock (or any shares of stock or other securities at the time
receivable upon the exercise of this Warrant) shall have received or become
entitled to receive, without payment therefor,
(a) Series B-1 Preferred Stock, or any shares of
stock or other securities whether or not such securities are at any time
directly or indirectly convertible into or exchangeable for Common Stock, or any
rights or options to subscribe for, purchase or otherwise acquire any of the
foregoing by way of dividend or other distribution, or
(b) any cash paid or payable otherwise than as a cash
dividend, or
(c) Series B-1 Preferred Stock or other or additional
stock or other securities or property (including cash) by way of spin off,
split-up, reclassification, combination of shares or similar corporate
rearrangement, (other than shares of Stock issued as a stock split, adjustments
in respect of which shall be covered by the terms of Section 2.1 above),
Then and in each such case, the Holder hereof shall, upon the exercise
of this Warrant, be entitled to receive, in addition to the number of shares of
Stock receivable thereupon, and without payment of any additional consideration
therefore, the amount of stock and other securities and property (including cash
in the cases referred to in clauses (b) and (c) above) which such Holder would
hold on the date of such exercise had he been the holder of record of such Stock
as of the date on which holders of Series B-1 Preferred Stock received or became
entitled to receive such shares and/or all other additional stock and other
securities and property.
2.3 RECLASSIFICATION OR REORGANIZATION. If the Stock (or any
shares of stock or other securities which may be) issuable upon the exercise of
this Warrant shall be changed into the same or different number of shares of any
class or classes of stock, whether by capital reorganization, reclassification
or otherwise (other than a subdivision or combination of shares or stock
dividend provided for in Section 2.1 above, or a Corporate Transaction, in which
case this Warrant shall terminate if not exercised), then and in each such event
the Holder shall be entitled to receive upon the exercise of this Warrant the
kind and amount of shares of stock and other securities and property receivable
upon such reorganization, reclassification or other change, to which a holder of
the number of shares of Stock (or any shares of stock or other securities which
may be) issuable upon the exercise of this Warrant would have received if this
Warrant had been exercised immediately prior to such reorganization,
reclassification or other change, all subject to further adjustment as provided
herein.
-4-
2.4 NOTICE OF ADJUSTMENTS AND RECORD DATES. The Company shall
promptly notify the Holder in writing of each adjustment or readjustment of the
exercise price hereunder and the number of shares of Stock (or any shares of
stock or other securities which may be) issuable upon the exercise of this
Warrant. Such notice shall state the adjustment or readjustment and show in
reasonable detail the facts on which that adjustment or readjustment is based.
In the event of any taking by the Company of a record of the holders of Common
Stock for the purpose of determining the holders thereof who are entitled to
receive any dividend or other distribution, the Company shall notify the Holder
in writing of such record date at least twenty (20) days prior to the date
specified therein.
2.5 SHARES TO BE FULLY PAID; RESERVATION OF SHARES. The
Company covenants and agrees that all shares of Stock which may be issued upon
the exercise of the rights represented by this Warrant will, upon payment of the
Exercise Price and issuance pursuant to Section 1.4 or a net issuance pursuant
to Section 1.5, be duly authorized, validly issued, fully paid and nonassessable
and free from all preemptive rights of any stockholder and free of all taxes,
liens and charges with respect to the issue thereof. The Company further
covenants and agrees that during the period within which the rights represented
by this Warrant may be exercised, the Company will at all times have authorized
and reserved, for the purpose of issue or transfer upon exercise of the
subscription rights evidenced by this Warrant, a sufficient number of shares of
authorized but unissued Series B-1 Preferred Stock and Common Stock into which
such Series B-1 Preferred Stock may be converted, or other securities and
property, when and as required to provide for the exercise of the rights
represented by this Warrant. The Company will take all such action as may be
necessary to assure that such shares of Series B-1 Preferred Stock and Common
Stock may be issued as provided herein without violation of any applicable law
or regulation.
3. REPLACEMENT OF WARRANTS. On receipt by the Company of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant and, in the case of any such loss, theft or
destruction of this Warrant, on delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of such Warrant, the Company at its
expense shall execute and deliver to the Holder, in lieu thereof, a new Warrant
of like tenor.
4. INVESTMENT INTENT. Unless a current registration statement under the
Securities Act, shall be in effect with respect to the securities to be issued
upon exercise of this Warrant, the Holder, by accepting this Warrant, covenants
and agrees that, at the time of exercise hereof, and at the time of any proposed
transfer of any securities acquired upon exercise hereof, the Holder shall
deliver to the Company a written statement that the securities acquired by the
Holder upon exercise hereof are for the own account of the Holder for investment
and are not acquired with a view to, or for sale in connection with, any
distribution thereof (or any portion thereof) and with no present intention (at
any such time) of offering or distributing such securities (or any portion
thereof).
5. NO RIGHTS OR LIABILITY AS A SHAREHOLDER. This Warrant does not
entitle the Holder hereof to any voting rights or other rights as a shareholder
of the Company. No provisions hereof, in the absence of affirmative action by
the Holder to purchase Stock, and no enumeration herein of the rights or
privileges of the Holder, shall give rise to any liability of the Holder as a
shareholder of the Company.
6. REPRESENTATIONS OF HOLDER. The Holder hereby represents and
acknowledges to the Company that:
-5-
6.1 this Warrant, the Stock issuable upon exercise of this
Warrant and any securities issued with respect to any of them by way of a stock
dividend or stock split or in connection with a recapitalization, merger,
consolidation or other reorganization will be "restricted securities" as such
term is used in the rules and regulations under the Securities Act, and that
such securities have not been and may not be registered under the Securities Act
or any state securities law, and that such securities must be held indefinitely
unless registration is effected or transfer can be made pursuant to appropriate
exemptions;
6.2 the Holder has read, and fully understands, the terms of
this Warrant set forth on its face and the attachments hereto, including the
restrictions on transfer contained herein;
6.3 the Holder is purchasing for investment for its own
account and not with a view to or for sale in connection with any distribution
of this Warrant or the Stock of the Company issuable upon exercise of this
Warrant and it has no intention of selling such securities in a public
distribution in violation of the federal securities laws or any applicable state
securities laws;
6.4 the Company may affix the following legends (in addition
to any other legend(s), if any, required by applicable state corporate and/or
securities laws) to certificates for shares of Stock (or other securities)
issued upon exercise of this Warrant ("Warrant Shares"):
"These securities have not been registered under the
Securities Act of 1933, as amended. They may not be sold,
offered for sale, pledged or hypothecated in the absence of a
registration statement in effect with respect to the
securities under such Act or an opinion of counsel
satisfactory to the Company that such registration is not
required or unless sold pursuant to Rule 144 of such Act."
7. RESERVED.
8. RESERVED.
9. LIMITATIONS ON DISPOSITION. The Holder of this Warrant, by
acceptance hereof, agrees to comply in all respects with the provisions of this
Section 9. Without in any way limiting the representations set forth above, the
Holder of this Warrant agrees not to make any disposition of this Warrant or any
Warrant Shares, unless and until the transferee has agreed in writing for the
benefit of the Company to be bound by this Section 9 and the other provisions of
this Warrant as if such transferee were the original Holder hereof, provided and
to the extent such provisions are then applicable, and
(a) There is then in effect a Registration Statement
under the Securities Act covering such proposed disposition and such disposition
is made in accordance with such Registration Statement; or
-6-
(b) (i) the Holder shall have notified the Company of
the proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and the
Company has given its prior written consent (which consent shall not be
unreasonably withheld), and (ii) if reasonably requested by the Company, the
Holder shall have furnished the Company with an opinion of counsel, reasonably
satisfactory to the Company, that such disposition will not require registration
of the Warrant and/or the Warrant Shares under the Securities Act. It is agreed
that the Company will not require opinions of counsel for transactions made
pursuant to Rule 144 except in unusual circumstances.
Notwithstanding any other provision of this Section 9, Holder may
transfer this Warrant and/or the Warrant Shares to any investment fund in which
MedCap Management & Research LLC or any of its affiliates is the General Partner
or the manager; provided that, such fund is an "accredited investor" as such
term is then defined in Section 501 of Regulation D promulgated pursuant to the
Securities Act.
10. MISCELLANEOUS.
10.1 TRANSFER OF WARRANT. In addition to the transfer
restrictions set forth in Section 9, this Warrant shall not be transferable or
assignable in any manner and no interest shall be pledged or otherwise
encumbered by the Holder without the express written consent of the Company.
10.2 TITLES AND SUBTITLES. The titles and subtitles used in
this Warrant are for convenience only and are not to be considered in construing
or interpreting this Warrant.
10.3 NOTICE. Notice or demand pursuant to this Warrant shall
be sufficiently given or made, if sent by first-class mail, postage prepaid,
addressed, if to the Holder of this Warrant, to the Holder at its last known
address as it shall appear in the records of the Company, and if to the Company,
at 00000 Xxxxxx Xxxx., Xxxxx 000, Xxxxxx, XX 00000, Attention: Secretary. The
Company may alter the address to which communications are to be sent by giving
notice of such change of address in conformity with the provisions of this
Section 10.3 for the giving of notice.
10.4 ATTORNEYS' FEES. If any action at law or in equity is
necessary to enforce or interpret the terms of this Warrant, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and disbursements
in addition to any other relief to which such party may be entitled.
10.5 AMENDMENT. This Warrant may be modified, amended or
terminated by a writing signed by the Company and the Holder.
10.6 SEVERABILITY. If one or more provisions of this Warrant
are held to be unenforceable under applicable law, such provision shall be
excluded from this Warrant and the balance of the Warrant shall be interpreted
as if such provision were so excluded and shall be enforceable in accordance
with its terms.
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10.7 GOVERNING LAW. This Warrant shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware,
without giving effect to its conflicts of laws principles.
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COUNTERPARTS. This Warrant may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Date: August 31, 2004 CRDENTIA CORP.
By: /S/ XXXXX X. XXXXXX
-------------------------------
Name: Xxxxx X. Xxxxxx
Its: Chief Executive Officer
ACKNOWLEDGED AND AGREED:
MedCap Partners L.P.
By: C. XXXX XXXXX
Name: C. XXXX XXXXX
Its: MANAGING MEMBER OF MEDCAP MANAGEMENT & RESEARCH
LLC, THE GENERAL PARTNER OF MEDCAP PARTNERS L.P.
[SIGNATURE PAGE TO WARRANT TO PURCHASE SHARES
OF SERIES B-1 PREFERRED STOCK]
SCHEDULE 1
SUBSCRIPTION NOTICE
(To be signed only on exercise of Warrant for cash)
To: Crdentia Corp.
The undersigned, the holder of the Warrant attached hereto, hereby
irrevocably elects to exercise the purchase rights represented by such Warrant
for, and to purchase thereunder, __________* shares of Stock of Crdentia Corp.,
and herewith makes payment of $__________ therefor, and requests that the
certificates for such shares be issued in the name of, and delivered to
____________________, whose address is _________________________.
________________________________________
(Signature must conform in all respects
to name of the Holder as specified on
the face of the Warrant)
________________________________________
(Print Name)
________________________________________
(Address)
Dated: ____________________
_____________
*Insert here the number of shares as to which the Warrant is being exercised.
Schedule 1-1
SCHEDULE 2
NOTICE OF NET ISSUANCE EXERCISE
(To be signed only on net issuance exercise of Warrant)
To: Crdentia Corp.:
Pursuant to Section 1.5 of the Warrant, the undersigned, the holder of
the Warrant attached hereto, hereby irrevocably elects to exercise the net
issuance rights with respect to _____________ shares of such Warrant for that
number of shares of Stock of Crdentia Corp., determined pursuant to the formula
set forth in Section 1.5 of the Warrant, and requests that the certificates for
such shares be issued in the name of, and delivered to ___________________,
whose address is _________________________________________.
________________________________________
(Signature must conform in all respects
to name of the Holder as specified on
the face of the Warrant)
________________________________________
(Print Name)
________________________________________
(Address)
Dated: ____________________
Schedule 2-1
