Exhibit 4.9
THIS WARRANT, AND THE COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT, HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED, OR ANY STATE
SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT RELATED
THERETO OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT
SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933 ACT AS
AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS.
WARRANT AGREEMENT
To Purchase Shares of the Common Stock of
Omrix Biopharmaceuticals, Inc.
Dated as of March 31, 2005 (the "Effective Date")
WHEREAS, Omrix Biopharmaceuticals, Inc., a Delaware corporation (the
"Company"), has engaged Asante Partners LLC (the "Warrantholder") for certain
services under an engagement letter dated July 21, 2004(the "Engagement
Letter");
WHEREAS, pursuant to the Engagement Letter the Company agreed to issue to
the Warrantholder warrants to purchase shares of the Company common stock with
an aggregate exercise price of $62,500 at the beginning of every quarter of the
Retainer Period as defined in the Engagement Letter;
WHEREAS, on March 31, 2005 the Company terminated the engagement of the
Warrantholder after two quarters of Retainer Period;
WHEREAS, pursuant to the Engagement Letter the number of shares into which
such warrants shall be exercised into is $4.18 per share;
NOW, THEREFORE:
SECTION 1. GRANT OF THE RIGHT TO PURCHASE COMMON STOCK.
The Company hereby grants to the Warrantholder, and the Warrantholder is
entitled, to subscribe for and purchase, from the Company, up to 29,904 fully
paid and non-assessable shares of the Common Stock (as defined below) at a
purchase price of $4.18 per share (the "Exercise Price"). As used herein, the
following terms shall have the following meanings:
"Charter" means the Company's Certificate of Incorporation or other
constitutional document, as may be amended from time to time;
"Common Stock" means the Company's common stock; $0.01 par value per
share ;
"Initial Public Offering" means the initial underwritten public
offering of the Company's Common Stock pursuant to a registration statement
under the 1933 Act, which public offering has been declared effective by the
Securities and Exchange Commission ("SEC");
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"Merger Event" means a merger or consolidation involving the Company
in which the Company is not the surviving entity, or in which the outstanding
shares of the Company's capital stock are otherwise converted into or exchanged
for shares of capital of another entity;
"1933 Act" means the U.S. Securities Act of 1933, as amended;
"1934 Act" means the U.S. Securities Exchange Act of 1934, as amended;
and
"Purchase Price" means, with respect to any exercise of this
Agreement, an amount equal to the Exercise Price as of the relevant time
multiplied by the number of shares of Common Stock requested to be exercised
under this Agreement pursuant to such exercise.
SECTION 2. TERM
Except as otherwise provided for herein, the term of this Agreement and the
right to purchase Common Stock as granted herein (the "Warrant) shall commence
on the date hereof and shall be exercisable for a period ending, with respect to
the right to purchase 14,952 shares of Common Stock on September 30, 2009, and
with respect to the right to purchase the remaining 14,952 shares of Common
Stock, on December 31, 2009.
SECTION 3. EXERCISE OF THE PURCHASE RIGHTS.
(a) Exercise. The purchase rights set forth in this Agreement are
exercisable by the Warrantholder, in whole or in part, at any time, or from time
to time, prior to the expiration of the term set forth in Section 2, by
tendering to the Company at its principal office (i) a notice of exercise in the
form attached hereto as Exhibit I (the "Notice of Exercise"), duly completed and
executed, and (ii) a duly completed and executed Stockholder Instrument of
Accession in the form attached hereto as Exhibit IV (the "Instrument of
Accession"). Promptly upon receipt of the Notice of Exercise, the Instrument of
Accession and the payment of the Purchase Price in accordance with the terms set
forth below, and in no event later than three (3) business days thereafter, the
Company shall issue to the Warrantholder a certificate for the number of shares
of Common Stock purchased and shall execute the acknowledgment of exercise in
the form attached hereto as Exhibit II (the "Acknowledgment of Exercise")
indicating the number of shares which remain subject to future purchases, if
any.
(i) The Purchase Price will be paid by the Warrantholder in cash.
(ii) Upon partial exercise the Company shall promptly issue an amended
Agreement representing the remaining number of shares purchasable hereunder. All
other terms and conditions of such amended Agreement shall be identical to those
contained herein, including, but not limited to the Effective Date hereof.
SECTION 4. RESERVATION OF SHARES.
During the term of this Agreement, the Company will at all times have
authorized and reserved a sufficient number of shares of its Common Stock to
provide for the exercise of the rights to purchase Common Stock as provided for
herein.
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SECTION 5. NO FRACTIONAL SHARES OR SCRIP.
No fractional shares or scrip representing fractional shares shall be
issued upon the exercise of this Agreement, but in lieu of such fractional
shares the Company shall make a cash payment therefor upon the basis of the
Exercise Price then in effect.
SECTION 6. NO RIGHTS AS SHAREHOLDER/STOCKHOLDER.
This Agreement does not entitle the Warrantholder to any voting rights or
other rights as a stockholder of the Company prior to the exercise of the
purchase rights under this Agreement and payment of the applicable Purchase
Price. The Warrantholder acknowledges that the Common Stock issued upon the
exercise of this Agreement shall be subject to any and all limitations and
restrictions set forth in the Company's Charter, then current bylaws, and the
Stockholders Agreement entered into by and between the Companyand the
stockholders of the Company dated as of January 13, 2005, as any one or more of
such instruments may be amended from time to time.
SECTION 7. ADJUSTMENT RIGHTS.
The Exercise Price and the number of shares of Common Stock purchasable
hereunder are subject to adjustment, as follows:
(a) Merger Event. If at any time there shall be Merger Event, then, as a
part of such Merger Event, lawful provision shall be made so that the
Warrantholder shall thereafter be entitled to receive, upon exercise of this
Agreement, the number of shares of Common Stock or other securities or property
of the successor corporation resulting from such Merger Event that would have
been issuable if Warrantholder had exercised this Agreement immediately prior to
the Merger Event. In any such case, appropriate adjustment (as determined in
good faith by the Company's Board of Directors) shall be made in the application
of the provisions of this Agreement with respect to the rights and interests of
the Warrantholder after the Merger Event to the end that the provisions of this
Agreement (including adjustments of the Exercise Price and number of shares of
Common Stock purchasable) shall be applicable in their entirety, and to the
greatest extent possible. Without limiting the foregoing, in connection with any
Merger Event, upon the closing thereof, the successor or surviving entity shall
assume the obligations of this Agreement.
(b) Reclassification of Shares. Except as set forth in Section 7(a), if the
Company at any time shall, by combination, reclassification, exchange or
subdivision of securities or otherwise, change any of the securities as to which
purchase rights under this Agreement exist into the same or a different number
of securities of any other class or classes, this Agreement shall thereafter
represent the right to acquire such number and kind of securities as would have
been issuable as the result of such change with respect to the securities which
were subject to the purchase rights under this Agreement immediately prior to
such combination, reclassification, exchange, subdivision or other change.
(c) Subdivision or Combination of Shares. If the Company at any time shall
subdivide or combine its Common Stock, including but not limited to any stock
split or reverse stock split, (i) in the case of a subdivision, the Exercise
Price shall be proportionately decreased, and the number of shares of Common
Stock issuable upon exercise of this Agreement shall be proportionately
increased, or (ii) in the case of a combination, the Exercise Price shall be
proportionately increased, and the number of shares of Common Stock issuable
upon the exercise of this Agreement shall be proportionately decreased.
(d) Stock Dividends. If the Company at any time while this Warrant is
outstanding and unexpired shall pay a stock dividend with respect to the Common
Stock payable in Common Stock, then
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the Exercise Price shall be adjusted, from and after the date of determination
of shareholders entitled to receive such dividend or distribution, to that price
determined by multiplying the Exercise Price in effect immediately prior to such
date of determination by a fraction (A) the numerator of which shall be the
total number of shares of Common Stock outstanding immediately prior to such
dividend or distribution, and (B) the denominator of which shall be the total
number of shares of Common Stock outstanding immediately after such dividend or
distribution..
SECTION 8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
(a) Reservation of Common Stock. The Common Stock issuable upon exercise of
the Warrantholder's rights has been duly and validly reserved and, when issued
in accordance with the provisions of this Agreement, will be validly issued,
fully paid and non-assessable, and will be free of any taxes, liens, charges or
encumbrances of any nature whatsoever; provided, that the Common Stock issuable
pursuant to this Agreement may be subject to restrictions on transfer under
state and/or federal securities laws, and subject to any and all limitations and
restrictions set out in the Company's Charter, then current bylaws, and the
Stockholders Agreement entered into by and between the Company and the holders
of the Company's Common Stock dated as of January 13, 2005, as one or more of
such instruments may be amended from time to time.
(b) Due Authority. The execution and delivery by the Company of this
Agreement and the performance of all obligations of the Company hereunder,
including the issuance to Warrantholder of the right to acquire the shares of
Common Stock, have been duly authorized by all necessary corporate action on the
part of the Company. This Agreement: (1) are not inconsistent with the Company's
Charter or current bylaws; (2) do not contravene any law or governmental rule,
regulation or order applicable to it; and (3) do not and will not contravene any
provision of, or constitute a default under, any indenture, mortgage, contract
or other instrument to which it is a party or by which it is bound. This
Agreement constitute legal, valid and binding agreements of the Company,
enforceable in accordance with their respective terms.
(c) Consents and Approvals. No consent or approval of, giving of notice to,
registration with, or taking of any other action in respect of any state,
federal or other governmental authority or agency is required with respect to
the execution, delivery and performance by the Company of its obligations under
this Agreement, except for the filing of notices pursuant to Regulation D under
the 1933 Act and any filing required by applicable state securities law, which
filings will be effective by the time required thereby.
(d) Exempt Transaction. Subject to and in reliance on the accuracy of the
Warrantholder's representations in Section 9, the issuance of the Common Stock
upon exercise of this Agreement will constitute a transaction exempt from (i)
the registration requirements of Section 5 of the 1933 Act, in reliance upon
Section 4(2) thereof, and (ii) the qualification requirements of the applicable
state securities laws.
SECTION 9. REPRESENTATIONS AND COVENANTS OF THE WARRANTHOLDER.
This Agreement has been entered into by the Company in reliance upon the
following representations and covenants of the Warrantholder, which the
Warrantholder acknowledges will be confirmed pursuant to Exhibit 1 upon each
exercise of this Warrant, in whole or in part:
(a) Investment Purpose. The right to acquire Common Stock and the Common
Stock issuable upon exercise of the Warrantholder's rights contained herein will
be acquired for investment and not with
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a view to the sale or distribution of any part thereof, and the Warrantholder
has no present intention of selling or engaging in any public distribution of
the same except pursuant to a registration or exemption.
(b) Private Issue. The Warrantholder understands that (i) the Common Stock
issuable upon exercise of this Agreement is not registered under the 1933 Act or
qualified under applicable state securities laws on the ground that the issuance
contemplated by this Agreement will be exempt from the registration and
qualifications requirements thereof, and (ii) the Company's reliance on such
exemption is predicated on the representations set forth in this Section 9.
(c) Disposition of Warrantholder's Rights. In no event will the
Warrantholder make a disposition of any of its rights to acquire Common Stock or
Common Stock issuable upon exercise of such rights. unless and until (i) it
shall have received the Company's written consent to such disposition, and (ii)
if requested by the Company, it shall have furnished the Company with an opinion
of counsel (which counsel may either be inside or outside counsel to the
Warrantholder) satisfactory in form and substance to the Company and its counsel
to the effect that (A) a registration statement in effect with respect to such
disposition, no stop order has been issued nor are any proceedings pending or
threatened for the issuance of any stop order with respect to such registration
statement, and all other appropriate action necessary for compliance with the
1933 Act has been taken, or (B) an exemption from the registration requirements
of the 1933 Act is available. Notwithstanding the foregoing, the restrictions
imposed upon the transferability of any of its rights to acquire Common Stock or
Common Stock issuable on the exercise of such rights do not apply to transfers
from the beneficial owner of any of the aforementioned securities to its nominee
or from such nominee to its beneficial owner, and such restrictions shall
terminate as to any particular share of Common Stock when (1) such security
shall have been effectively registered under the 1933 Act and sold by the holder
thereof in accordance with such registration or (2) such security shall have
been sold without registration in compliance with Rule 144 under the 1933 Act,
or (3) a letter shall have been issued to the Warrantholder at its request by
the staff of the SEC or a ruling shall have been issued to the Warrantholder at
its request by the SEC stating that no action shall be recommended by such staff
or taken by the SEC, as the case may be, if such security is transferred without
registration under the 1933 Act in accordance with the method of disposition and
other conditions set forth in such letter or ruling and such letter or ruling
specifies that no subsequent restrictions on transfer are required. Whenever the
restrictions imposed hereunder shall terminate, as hereinabove provided, the
Warrantholder or holder of a share of Common Stock then outstanding as to which
such restrictions have terminated shall be entitled to receive from the Company,
without expense to such holder, one or more new certificates for this Agreement
or for such shares of Common Stock not bearing any restrictive legend.
(d) Financial Risk. The Warrantholder has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of its investment, and has the ability to bear the economic risks of its
investment.
(e) Risk of No Registration. The Warrantholder understands that the Company
does not have any class of equity securities registered under Section 12 of the
1934 Act and acknowledges that if the Company does not register a class of
equity securities with the SEC pursuant to Section 12 of the 1934 Act, or file
reports pursuant to Section 15(d) of the 1934 Act, or if a registration
statement covering the securities under the 1933 Act is not in effect when it
desires to sell (i) the rights to purchase Common Stock pursuant to this
Agreement or (ii) the Common Stock issuable upon exercise of the right to
purchase, it may be required to hold such securities for an indefinite period.
The Warrantholder further acknowledges that the Company has no present intention
to file a registration statement under the 1933 Act or to register a class of
equity securities or file reports under the 1934 Act, that neither this
Agreement nor any other agreement between the Company and the Warrantholder
imposes any obligation on the Company to do so, and that neither this Warrant
nor the Common Stock issuable upon exercise of
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this Warrant is entitled to any rights or benefit arising out of any
registration obligation that may now or hereafter be owed by the Company to any
other person. The Warrantholder also understands that any sale of (A) its rights
hereunder to purchase Common Stock or (B) Common Stock issued or issuable
hereunder which might be made by it in reliance upon Rule 144 under the 1933 Act
may be made only in accordance with the terms and conditions of that Rule,
including the requirement that there be "current public information" within the
meaning of Rule 144 available with respect to the Company.
(f) Accredited Investor. Warrantholder is an "accredited investor" within
the meaning of the Securities and Exchange Rule 501 of Regulation D, as
presently in effect.
(g) Legend. Warrantholder agrees that the certificates evidencing any
Common Stock issued upon exercise of this Warrant may be stamped or imprinted
with a legend substantially to the following effect:
THE COMMON STOCK EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AS AMENDED, OR ANY STATE SECURITIES
LAWS. SUCH COMMON STOCK MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES ACT OF 1933 ACT AS AMENDED, OR ANY APPLICABLE STATE
SECURITIES LAWS.
SECTION 10. TRANSFERS.
Subject to the terms and conditions contained in Section 9, this Agreement
and all rights hereunder are transferable in whole or in part by the
Warrantholder and any successor transferee, provided, that, prior to an Initial
Public Offering, the Company's written consent shall be required for any
transfer requested or proposed by the Warrantholder, which consent may be
granted or withheld at the election of the Company and in its sole
discretionary. The transfer shall be recorded on the books of the Company upon
receipt by the Company of a notice of transfer in the form attached hereto as
Exhibit III (the "Transfer Notice"), at its principal offices and the payment to
the Company of all transfer taxes and other governmental charges imposed on such
transfer.
SECTION 11. MISCELLANEOUS.
(a) Effective Date. The provisions of this Agreement shall be construed and
shall be given effect in all respects as if it had been executed and delivered
by the Company on October 1, 2004 with respect to 14,952 shares issuable upon
exercise hereof and on January 1, 2005 with respect to the remainig 14,952
shares issuable upon exercise hereof. This Agreement shall be binding upon any
successors or assigns of the Company.
(b) Severability. In the event any one or more of the provisions of this
Agreement shall for any reason be held invalid, illegal or unenforceable, the
remaining provisions of this Agreement shall be unimpaired, and the invalid,
illegal or unenforceable provision shall be replaced by a mutually acceptable
valid, legal and enforceable provision, which comes closest to the intention of
the parties underlying the invalid, illegal or unenforceable provision.
(c) Notices. Except as otherwise provided herein, any notice, demand,
request, consent, approval, declaration, service of process or other
communication that is required, contemplated, or
6
permitted under this Agreement or with respect to the subject matter hereof
shall be in writing, and shall be deemed to have been validly served, given,
delivered, and received upon the earlier of: (i) the first business day after
transmission by facsimile or hand delivery or deposit with an overnight express
service or overnight mail delivery service; or (ii) the third calendar day after
deposit in the United States mails, with proper first class postage prepaid, and
shall be addressed to the party to be notified as follows:
If to Warrantholder:
Asante Partners LLC
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
000-000-0000 Phone
000-000-0000 Fax
(i) If to the Company:
OMRIX BIOPHARMACEUTICALS, INC.
MDA Blood Center, Tel Hashomer Hospital
Tel Aviv, ISRAEL
Attention: Xxxx Xxxxxxxxx
Facsimile: x000 0 000 00 00
Telephone: x000 0 000 00 00
or to such other address as each party may designate for itself by like
notice.
(d) Entire Agreement; Amendments. This Agreement constitute the entire
agreement and understanding of the parties hereto in respect of the subject
matter hereof, and supersede and replace in their entirety any prior proposals,
term sheets, letters, negotiations or other documents or agreements, whether
written or oral, with respect to the subject matter hereof (including
Warrantholder's proposal letter dated February 16, 2005. None of the terms of
this Agreement may be amended except by an instrument executed by each of the
parties hereto.
(e) Headings. The various headings in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement or any provisions hereof.
(f) No Waiver. No omission or delay by either party at any time to enforce
any right or remedy reserved to it, or to require performance of any of the
terms, covenants or provisions hereof by the other party at any time designated,
shall be a waiver of any such right or remedy to which such party is entitled,
nor shall it in any way affect the right of such party to enforce such
provisions thereafter.
(g) Survival. All agreements, representations and warranties contained in
this Agreement or in any document delivered pursuant hereto shall survive the
execution and delivery of this Agreement and the expiration or other termination
of this Agreement.
(h) Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, excluding
conflict of laws principles that would cause the application of laws of any
other jurisdiction.
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(i) Consent to Jurisdiction and Venue. All judicial proceedings arising in
or under or related to this Agreement may be brought in any state or federal
court of competent jurisdiction located in the State of New-York.
(j) Counterparts. This Agreement and any amendments, waivers, consents or
supplements hereto may be executed in any number of counterparts, and by
different parties hereto in separate counterparts, each of which when so
delivered shall be deemed an original, but all of which counterparts shall
constitute but one and the same instrument.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by its officers thereunto duly authorized as of the Effective Date.
COMPANY: OMRIX BIOPHARMACEUTICALS, INC.
By: /s/ Xxxxxxxx Xxxxxxxxx
------------------------------------
Title: Secretary General
---------------------------------
WARRANTHOLDER: Asante Partners LLC
By: /s/ Xxxxx X. Xxxxxxxxxx
------------------------------------
Title: Managing Director
---------------------------------
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EXHIBIT I
NOTICE OF EXERCISE
To: Omrix Biopharmaceuticals, Inc.
(1) The undersigned Warrantholder hereby elects to purchase [_______] shares of
the Common Stock of Omrix Biopharmaceuticals, Inc., pursuant to the terms
of the Agreement dated as of March 31 2005 (the "Agreement") between Omrix
Biopharmaceuticals, Inc. and the Warrantholder, and tenders herewith
payment of the Purchase Price in full, together with all applicable
transfer taxes, if any.
(2) In exercising its rights to purchase the Common Stock of Omrix
Biopharmaceuticals, Inc., the undersigned hereby confirms and acknowledges
the investment representations and warranties made in Section 9 of the
Agreement.
(3) Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below.
----------------------------------------
(Name)
----------------------------------------
(Address)
WARRANTHOLDER: Asante Partners LLC
By:
------------------------------------
Title:
---------------------------------
Date:
----------------------------------
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EXHIBIT II
ACKNOWLEDGMENT OF EXERCISE
The undersigned Omrix Biopharmaceuticals, Inc., hereby acknowledge receipt of
the "Notice of Exercise" from Asante Partners LLC, to purchase [____] shares of
the Common Stock of [_________________], pursuant to the terms of the Agreement,
and further acknowledges that [______] shares remain subject to purchase under
the terms of the Agreement.
COMPANY: OMRIX BIOPHARMACEUTICALS, INC.
By:
------------------------------------
Title:
---------------------------------
Date:
----------------------------------
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EXHIBIT III
TRANSFER NOTICE
(To transfer or assign the foregoing Agreement execute this form and supply
required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Agreement and all rights evidenced thereby are
hereby transferred and assigned to
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(Please Print)
whose address is
------------------------------------------------
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Dated:
--------------------------------------
Holder's Signature:
-------------------------
Holder's Address:
---------------------------
---------------------------------------------
Signature Guaranteed:
-------------------------------------------
NOTE: The signature to this Transfer Notice must correspond with the name as it
appears on the face of the Agreement, without alteration or enlargement or any
change whatever. Officers of corporations and those acting in a fiduciary or
other representative capacity should file proper evidence of authority to assign
the foregoing Agreement.
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EXHIBIT IV
OMRIX BIOPHARMACEUTICALS, INC.
STOCKHOLDER INSTRUMENT OF ACCESSION
The undersigned, ___________________, as a condition precedent to becoming
the owner or holder of record of _______________ (_________) shares of Common
Stock, par value $0.01 per share, of Omrix Biopharmaceuticals, Inc., a Delaware
corporation (the "Company"), hereby agrees to become a Stockholder under that
certain Stockholders' Agreement dated as of January 13, 2005 by and among the
Company and the Common Stockholders named therein, as the same as may be amended
from time to time, including by accession of additional parties. This Instrument
of Accession shall take effect and shall become an integral part of, and the
undersigned shall become a party to and bound by, said Stockholders' Agreement
immediately upon execution and delivery to the Company of this Instrument.
IN WITNESS WHEREOF, this INSTRUMENT OF ACCESSION has been duly executed by
or on behalf of the undersigned as of the date below written.
[NAME]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Record Address:
------------------------
----------------------------------------
Telephone No.:
-------------------------
Facsimile No.:
-------------------------
E-mail Address:
------------------------
ACCEPTED:
OMRIX BIOPHARMACEUTICALS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
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