Exhibit 7.9
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON THE EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR STATE SECURITIES
LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT ONLY AND NOT WITH A
VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. THESE
SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT
STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT AND IS IN COMPLIANCE WITH
APPLICABLE STATE SECURITIES LAWS. THIS WARRANT AND THE SHARES ISSUABLE UPON THE
EXERCISE HEREOF ARE SUBJECT TO CERTAIN RESTRICTIONS ON THEIR TRANSFER PURSUANT
TO TERMS SET FORTH IN THIS WARRANT.
Warrant to Purchase Shares
of Common Stock
(Subject to Adjustment)
UROGEN CORP.
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COMMON STOCK PURCHASE WARRANT
Void after February 27, 2005
UroGen Corp., a Delaware corporation (the "Company"), hereby certifies that, for
value received, Xxxxxx Healthcare Corporation, or its permitted assigns, is
entitled, subject to the terms set forth below, to purchase from the Company at
any time or from time to time before 5:00 p.m. Pacific time, on February 28,
2005 (the "Expiration Time"), 100,000 fully paid and nonassessable shares of
Common Stock of the Company at a purchase price per share equal to the Warrant
Price (as defined herein) and otherwise in accordance with the terms hereof. The
number and character of such shares of Common Stock and the Warrant Price
therefor are subject to adjustment as provided below.
As used herein the following terms, unless the context otherwise requires, have
the following respective meanings:
(a) The term "Company" shall mean Urogen Corp. and any corporation that
shall succeed to or assume the obligations of the Company hereunder.
(b) The term "Control Transaction" shall mean (i) the sale by the Company
of all or substantially all of its assets or (ii) any transaction or series of
related transactions by the Company (including, without limitation, any
reorganization, merger or consolidation) which results in the transfer of at
least fifty percent (50%) of the outstanding voting power of the Company;
provided, however, that a reorganization, merger or similar transaction shall
not be
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deemed a Control Transaction if the stockholders of the Company immediately
prior to such transaction maintain beneficial ownership and voting control of a
majority of the outstanding voting securities of the surviving entity in the
same relative proportions as they did prior to such transaction.
(c) The term "holder" shall mean the holder of this Warrant or any
permitted transferee or assignee thereof.
(d) The term "Original Issuance Date" shall mean February 28, 2000.
(e) The term "Warrant" shall mean this Warrant.
(f) The term "Warrant Price" shall mean $2.00 per share.
(g) The term "Warrant Shares" shall mean the shares of Common Stock or
other securities of the Company issuable upon exercise of this Warrant, subject
to adjustment hereunder from time to time.
1. Initial Exercise Date; Expiration. This Warrant may be exercised in full
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at any time prior to the Expiration Time, and shall expire immediately
thereupon. Notwithstanding the foregoing, this Warrant shall expire and no
longer be exercisable immediately prior (and subject to) the closing of any
Control Transaction. The Company shall provide the holder of this Warrant with
at least 15 days prior notice of the occurrence of any event that would
constitute a Control Transaction.
2. Exercise of Warrant.
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(a) This Warrant may be exercised in full by the holder hereof by
surrender of this Warrant, with the form of subscription attached hereto duly
executed by such holder, to the Company at its principal office, accompanied by
payment in accordance with Section 2(b) hereof, of the aggregate Warrant Price
of the Warrant Shares to be purchased hereunder.
(b) In lieu of payment in cash, payment of the aggregate Warrant Price
upon exercise of the Warrant may be made by (i) surrender to the Company of debt
or equity securities of the Company having a fair market value equal to the
aggregate exercise price of the Warrant Shares being purchased upon such
exercise (provided that for purposes of this subparagraph, the fair market value
of the Common Stock shall equal the Market Price of the Common Stock as set
forth below, and the fair market value of any note or other debt security shall
be deemed to be equal to the aggregate outstanding principal amount thereof plus
all accrued and unpaid interest thereon) or (ii) delivery of a written notice to
the Company that the holder is exercising the Warrant by authorizing the Company
to withhold from issuance a number of Warrant Shares issuable upon such exercise
of the Warrant which when multiplied by the Market Price (as set forth below) is
equal to the aggregate Warrant Price of the Warrant Shares being purchased upon
such exercise (and such withheld shares shall no longer be issuable under this
Warrant).
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(c) The Market Price of the Company's Common Stock as of a particular
date (the "Determination Date") shall be calculated as follows:
(i) If the Company's Common Stock is traded on an exchange or is
quoted on the National Association of Securities Dealers, Inc. Automated
Quotation ("Nasdaq") National Market System, then the average of the closing or
last sale prices, respectively, reported for the twenty (20) business days
immediately preceding the Determination Date;
(ii) If the Company's Common Stock is not traded on an exchange
or on the Nasdaq National Market System but is traded in the over-the-counter
market, then the average of the means of the closing bid and asked prices
reported for the twenty (20) business days immediately preceding the
Determination Date;
(iii) If the Company's Common Stock is not traded on an exchange,
on the Nasdaq National Market System or in the over-the-counter market, then the
fair market value of the Common Stock as of the day immediately preceding the
Determination Date, as determined by the Company's board of directors in good
faith.
3. When Exercise Effective. The exercise of this Warrant shall be deemed to
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have been effected immediately prior to the close of business on the business
day on which the holder surrenders this Warrant to the Company and satisfies all
of the requirements of Section 2, and at such time the person in whose name any
certificate for Warrant Shares shall be issuable upon such exercise, as provided
in Section 2, shall be deemed to be the record holder of such Warrant Shares for
all purposes.
4. Delivery on Exercise. As soon as practicable after the exercise of this
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Warrant, the Company at its expense will cause to be issued in the name of and
delivered to the holder hereof, or as such holder may direct, a certificate or
certificates for the number of fully paid and nonassessable full Warrant Shares
as to which such holder shall be entitled on such exercise, together with cash,
in lieu of any fraction of a Warrant Share, equal to such fraction of the Market
Price of one full share of Common Stock.
5. Adjustment of Warrant Price and Number of Warrant Shares.
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Notwithstanding anything to the contrary in this Warrant:
(a) Adjustments. The Warrant Price per share shall be subject to
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adjustment from time to time as follows:
(i) Stock Splits and Stock Dividends. If the number of shares of
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Common Stock outstanding at any time after the Original Issuance Date is
increased by a stock dividend payable in shares of Common Stock or by a
subdivision or split-up of shares of Common Stock, then, on the date such
payment is made or such change is effective, the Warrant Price per share shall
be proportionately decreased and the number of Warrant Shares shall be increased
in proportion to such increase of outstanding shares. Such adjustment shall
become effective at the close of business on the date the dividend, subdivision
or split-up becomes effective.
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(ii) Reverse Stock Splits. If the number of shares of Common
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Stock outstanding at any time after the Original Issuance Date is decreased by a
combination of the outstanding shares of Common Stock, then, on the effective
date of such combination, the Warrant Price per share shall be proportionately
increased and the number of Warrant Shares shall be decreased in proportion to
such decrease in outstanding shares. Such adjustment shall become effective at
the close of business on the date the combination becomes effective.
(iii) Reorganization; Reclassification. Subject to the expiration
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provisions of Section 1 hereof, in the case, at any time after the Original
Issuance Date, of any capital reorganization, or any reclassification of the
stock of the Company (other than as a result of a stock dividend or subdivision,
split-up or combination of shares), the consolidation or merger of the Company
with or into another person (other than a consolidation or merger in which the
Company is the continuing entity and which does not result in any change in the
Common Stock), or a sale or transfer of all or substantially all of the
Company's assets, this Warrant shall, after such reorganization,
reclassification, consolidation, merger or sale, be exercisable for the kind and
aggregate number of shares of stock or other securities or property of the
Company or other entity to which the Holder would have been entitled if,
immediately prior to such reorganization, reclassification, consolidation,
merger or sale, such Holder had exercised this Warrant in full (subject to all
adjustments under this Section 5). The provisions of this clause (vi) shall
similarly apply to successive reorganizations, reclassifications,
consolidations, mergers or sales.
(iv) All calculations under this Subsection (a) shall be made to
the nearest cent or to the nearest one hundredth (1/100) of a share, as
appropriate.
(b) Minimal Adjustments. No adjustment in the Warrant Price per share
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need be made if such adjustment would result in a change in the Warrant Price
per share of less than $0.01. Any adjustment of less than $0.01 which is not
made shall be carried forward and shall be made at the time of and together with
any subsequent adjustment which, on a cumulative basis, amounts to an adjustment
of $0.01 or more in the Warrant Price per share.
6. Notice of Adjustments. Whenever the number of Warrant Shares or the
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Warrant Price per share shall be adjusted pursuant to Section 5 hereof, the
Company shall provide notice by first class mail to the holder of this Warrant
setting forth, in reasonable detail, the event requiring the adjustment, the
amount of the adjustment, the method by which such adjustment was calculated,
and the number of Warrant Shares and the Warrant Price per share after giving
effect to such adjustment.
7. No Impairment. The Company (a) will not increase the par value of any
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shares of stock receivable on the exercise of this Warrant above the amount
payable therefor on such exercise, (b) will at all times reserve and keep
available a number of its authorized shares of Common Stock, free from all
preemptive rights therein, which will be sufficient to permit the exercise of
this Warrant, and (c) shall take all such action as may be necessary or
appropriate in order that all Warrant Shares as may be issued pursuant to the
valid exercise of this Warrant will,
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upon issuance, be duly and validly issued, fully paid and nonassessable and free
from all taxes, liens and charges with respect to the issue thereof.
8. Exchange of Warrants. Subject to the provisions of Section 9 below, on
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surrender for exchange of this Warrant, properly endorsed, to the Company, the
Company at its expense will issue and deliver to or on the order of the holder
thereof a new Warrant of like tenor, in the name of such holder or as such
holder may direct, calling in the aggregate on the face thereof for the number
of Warrant Shares called for on the face of the Warrant so surrendered.
9. Replacement of Warrants. On receipt by the Company of evidence
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reasonably satisfactory to it 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 will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
10. Investment Intent. The holder hereof, by accepting this Warrant,
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covenants and agrees that, at the time of exercise hereof, and at the time of
any proposed transfer of the Warrant Shares, such holder will deliver to the
Company a written statement that the securities acquired by the holder upon
exercise hereof are for the 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 and distributing such securities (or any portion thereof), and
make other representations which the Company may reasonably require in order to
comply with the restrictions of state and federal securities laws relating to
the sale and disposition on "restricted securities," as that term is defined in
Rule 144 of the Securities Act.
11. Transfer Restrictions. The holder hereof acknowledges that the Warrants
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and Warrant Shares may not be transferred except in accordance with Section 5.1
of the Agreement.
12. Notices. All notices referred to in this Warrant shall be in writing
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and shall be delivered personally (including by express courier) or by first
class mail, and will be deemed to have been given when so delivered or mailed
(i) to the Company, at its principal executive offices and (ii) to the holder of
this Warrant, at such holder's address as it appears in the records of the
Company (unless otherwise indicated by such holder).
13. Miscellaneous. This Warrant and any term hereof may be changed, waived,
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discharged or terminated in accordance with Section 7.1 of the Agreement. This
Warrant shall be governed by and construed and enforced in accordance with the
internal laws of the State of California. The headings in this Warrant are for
purposes of reference only, and shall not limit or otherwise affect any of the
terms hereof.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
and attested by its duly authorized officers and to be dated February 28, 2000.
UROGEN CORP.
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
Chairman and Chief Financial Officer
[Signature Page to Purchase Warrant]
[This Space Intentionally Left Blank]
FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
TO: UroGen Corp.
The undersigned, the holder of the within Warrant, hereby irrevocably elects to
exercise the purchase rights represented by such Warrant for, and to purchase
thereunder, ____________* shares of Common Stock of UroGen Corp. and herewith:
(Check one)
|_| makes payment of $_________ therefor; or
|_| surrenders __________ shares of __________ stock of UroGen Corp. or $_______
of aggregate indebtedness; or
|_| elects to "net exercise" the Warrant pursuant to Section 2(b)(ii) of the
Warrant and authorizes UroGen Corp. to withhold from issuance the
appropriate number of Warrant Shares as specified therein.
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(Signature must conform in all respects to name of
holder as specified on the face of the Warrant)
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(Address)
Dated:
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*Insert here the number of shares as to which the Warrant is being exercised.
