NXSTAGE MEDICAL, INC. WARRANT TO PURCHASE SHARES OF COMMON STOCK
Exhibit 4.2
THIS WARRANT AND THE SHARES OF COMMON STOCK TO BE ISSUED UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. NO SALE OR
DISPOSITION MAY BE EFFECTED WITHOUT (I) AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO, (II)
AN OPINION OF COUNSEL OR OTHER EVIDENCE, REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED, (III) RECEIPT OF NO-ACTION LETTERS FROM THE APPROPRIATE GOVERNMENTAL
AUTHORITIES OR (IV) OTHERWISE COMPLYING WITH THE PROVISIONS OF SECTION 7 OF THIS WARRANT.
WARRANT TO PURCHASE SHARES
OF COMMON STOCK
OF COMMON STOCK
Warrant No. W-[ ]
THIS CERTIFIES THAT, for value received,
and its assigns
are entitled to subscribe for and purchase
shares (as adjusted pursuant to Section 4
hereof, the “Shares”) of the fully paid and
nonassessable common stock, par value $0.001 per
share (“Common Stock”), of NxStage Medical, Inc., a Delaware corporation (the
“Company”), at the price of $5.50 per share (such price and such other price as shall
result, from time to time, from the adjustments specified in Section 4 hereof is herein referred to
as the “Warrant Price”), subject to the provisions and upon the terms and conditions set
forth herein and in the Securities Purchase Agreement, dated as of even date herewith, by and
between the Company and the initial holder of this Warrant. As used herein, the term “Date of
Grant” means , 2008. As used herein, the term “Warrant” shall be deemed to include
any warrants issued in exchange or upon transfer or partial exercise of this Warrant unless the
context clearly requires otherwise.
1. Term. (a) The purchase right represented by this Warrant is exercisable, in whole
or in part, at any time and from time to time from the Date of Grant through the earlier of (i)
, 2013 or (ii) the consummation of any of the following transactions: (A) the sale, lease,
exchange, conveyance or other disposition of all or substantially all of the Company’s property or
business or (B) its merger into or consolidation with any other corporation (other than a
wholly-owned subsidiary of the Company) or (C) any transaction (including a merger or other
reorganization) or series of related transactions, in which more than 50% of the voting power of
the Company is disposed of (each event described in the foregoing clauses (A) to (C) being a
“Change of Control Event”), provided that the Company shall give the holder reasonably
prior written notice of the proposed consummation of such Change of Control Event to permit the
holder to exercise the rights under this Warrant.
(b) If a Change of Control Event occurs, the Company shall promptly pay to the holder of this
Warrant an amount calculated in accordance with the Black-Scholes Option Pricing formula set forth
in Appendix A hereto. Such payment shall be made (i) in cash from the
Company to the holder of the Warrant upon the occurrence of a Change of Control Event and upon the
shareholders of the Company receiving cash from the third party acquirer of the Company at the
closing of the transaction, (ii) in shares of Common Stock of the Company (with the value of each
share of Common Stock of the Company being determined according to SCorp in Appendix A hereto) in
the event that the Change of Control Event results in the shareholders of the Company receiving
shares in the third party acquirer or another entity at the closing of the transaction, or (iii) in
the event that the shareholders of the Company receive both cash and shares upon the occurrence of
a Change of Control Event at the closing of the transaction, shall be also be made in both cash and
shares in the same proportion as the consideration received by the shareholders of the Company.
2. Method of Exercise; Payment; Issuance of New Warrant.
(a) Subject to Section 1 hereof, the purchase right represented by this Warrant may be
exercised by the holder hereof, in whole or in part and from time to time, at the election
of the holder hereof, by the surrender of this Warrant (with the notice of exercise
substantially in the form attached hereto as Exhibit A duly completed and executed)
at the principal office of the Company and by the payment to the Company, by certified or
bank check, or by wire transfer to an account designated by the Company (a “Wire
Transfer”) of an amount equal to the then applicable Warrant Price multiplied by the
number of Shares then being purchased. The person or persons in whose name(s) any
certificate(s) representing the Shares shall be issuable upon exercise of this Warrant shall
be deemed to have become the holder(s) of record of, and shall be treated for all purposes
as the record holder(s) of, the Shares represented thereby (and such Shares shall be deemed
to have been issued) immediately prior to the close of business on the date or dates upon
which this Warrant is exercised. As soon as practicable after the exercise of this Warrant
and in any event within three trading days thereafter, upon the terms and subject to the
conditions of this Warrant, the Company at its expense will cause to be issued in the name
of and delivered to the holder, or as the holder may direct to a broker or other persons, a
certificate or certificates for the number of Shares to which the holder shall be entitled
on such exercise, in such denominations as may be requested by the holder. In lieu of
delivering physical certificates for the Shares issuable upon any exercise of this Warrant,
provided the Company’s transfer agent is participating in the Depository Trust Company
(“DTC”) Fast Automated Securities Transfer (“FAST”) program, and that any legend upon the
certificates for the Shares shall have been removed pursuant to Section 7 below, upon
request of the holder, the Company shall use commercially reasonable efforts to cause its
transfer agent electronically to transmit such Shares by crediting the account of the
holder’s broker with DTC through its Deposit Withdrawal Agent Commission system (provided
that the same time limitations herein as for stock certificates shall apply).
(b) [On and after the Required Effective Date of the Registration Statement (as defined
in the Securities Purchase Agreement) through the Term of this Warrant], in lieu of
exercising this Warrant for cash, the holder may elect to receive shares equal to the value
of this Warrant (or the portion thereof being exercised) by surrender of this Warrant at the
principal office of the Company together with notice of such election substantially in the
form attached hereto as Exhibit A duly completed and executed (“Net
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Exercise”). The Company shall issue to a holder who Net Exercises a number of
Shares computed using the following formula:
| Y (A - B) | ||||
X=
|
Where
X =
|
The number of Shares to be issued to the holder. | |
Y =
|
The number of Shares purchasable under this Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being cancelled (at the date of such calculation). | |
A =
|
The fair market value of one (1) Share (at the date of such calculation). | |
B =
|
The Warrant Price (as adjusted to the date of such calculation (the “Determination Date”)). |
For purposes of this Section 2, the fair market value of a Warrant Share shall mean:
the Volume Weighted Average Price (VWAP) of the Company’s common stock for the 10
consecutive Trading Days ending on the date immediately preceding the date of the Exercise
Notice, or if the VWAP cannot be calculated for a security on a particular date, the fair
market value shall be mutually determined by the Company and the holder of this Warrant. All
such determinations to be appropriately adjusted for any stock dividend, stock split, stock
combination or other similar transaction during the applicable calculation period.
“VWAP” means, for any security as of any date, an average price calculated by adding up
the dollars traded for every transaction (price multiplied by number of shares traded) and
then dividing by the total shares traded for the day for such security on the NASDAQ Global
Market, as reported by Bloomberg, or, if the NASDAQ Global Market begins to operate on an
extended hours basis and does not designate the closing bid price or the closing trade
price, as the case may be, then the last bid price or the last trade price, respectively, of
such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg, or, if the
NASDAQ Global Market is not the principal securities exchange or trading market for such
security, the VWAP of such security on the principal securities exchange or trading market
where such security is listed or traded as reported by Bloomberg, or if the foregoing do not
apply, the VWAP, of such security in the over-the-counter market on the electronic bulletin
board for such security as reported by Bloomberg, or, if no price is reported for such
security by Bloomberg, the average of the bid prices, or the ask prices, respectively, of
any market makers for such security as reported in the “pink sheets” by Pink Sheets LLC
(formerly the National Quotation Bureau, Inc.).
“Trading Day” means any day on which the Common Stock are traded on the Principal
Market, or, if the Principal Market is not the principal trading market for the
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Common Stock, then on the principal securities exchange or securities market on which
the Common Stock are then traded; provided that “Trading Day” shall not include any day on
which the Common Stock are scheduled to trade on such exchange or market for less than 4.5
hours or any day that the Common Stock are suspended from trading during the final hour of
trading on such exchange or market (or if such exchange or market does not designate in
advance the closing time of trading on such exchange or market, then during the hour ending
at 4:00:00 p.m., New York time).
If there is no public market for the Common Stock, the fair market value shall be the
price per Share that the Company could obtain from a willing buyer for Shares sold by the
Company from authorized but unissued Shares, as such prices shall be determined in good
faith by the Company’s Board of Directors.
(c) In the event that this Warrant is exercised pursuant to this Section 2 in
connection with the consummation of the Company’s sale of its Common Stock or other
securities pursuant to a registration statement under the Securities Act of 1933, as amended
(other than a registration statement relating either to sale of securities to employees of
the Company pursuant to its stock option, stock purchase or similar plan or a Rule 145
transaction) (“ Public Offering “), the fair market value per Share shall be the per
share offering price to the public of the Public Offering.
3. Stock Fully Paid; Reservation of Shares. All Shares that may be issued upon the
exercise of the rights represented by this Warrant will, upon issuance pursuant to the terms and
conditions herein, be fully paid and nonassessable, and free from all taxes, liens and charges with
respect to the issue thereof. 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 the issue upon exercise of the purchase rights evidenced by this Warrant, a sufficient
number of shares of its Common Stock to provide for the exercise of the rights represented by this
Warrant.
4. Adjustment of Warrant Price and Number of Shares. The number and kind of
securities purchasable upon the exercise of this Warrant and the Warrant Price shall be subject to
adjustment from time to time upon the occurrence of certain events, as follows:
(a) Reclassification or Merger. In case of any reclassification or change of
securities of the class issuable upon exercise of this Warrant (other than a change in par
value, or from par value to no par value, or from no par value to par value, or as a result
of a subdivision or combination), or in case of any merger of the Company with or into
another corporation (other than a merger with another corporation in which the Company is
the acquiring and the surviving corporation and which does not result in any
reclassification or change of outstanding securities issuable upon exercise of this
Warrant), or in case of any sale of all or substantially all of the assets of the Company,
then any such transaction shall not be consummated unless the Company, or such successor or
purchasing corporation, as the case may be, shall have or shall have agreed to in writing to
duly execute and deliver to the holder of this Warrant a new Warrant (in form and substance
satisfactory to the holder of this Warrant), or the Company shall make appropriate provision
without the issuance of a new Warrant, so that the holder of
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this Warrant shall have the right to receive upon exercise of this Warrant, at a total
purchase price not to exceed that payable upon the exercise of the unexercised portion of
this Warrant, and in lieu of the shares of Common Stock theretofore issuable upon exercise
of this Warrant, the kind and amount of shares of stock, other securities, money and
property receivable upon such reclassification, change or merger by a holder of the number
of shares of Common Stock then purchasable under this Warrant. Such new Warrant shall
provide for adjustments that shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 4. The provisions of this subparagraph (a) shall
similarly apply to successive reclassifications, changes, mergers and transfers.
(b) Subdivision or Combination of Shares. If the Company at any time while
this Warrant remains outstanding and unexpired shall subdivide or combine its outstanding
shares of Common Stock, the Warrant Price shall be proportionately decreased and the number
of Shares issuable hereunder shall be proportionately increased in the case of a subdivision
or the Warrant Price shall be proportionately increased and the number of Shares issuable
hereunder shall be proportionately decreased in the case of a combination.
(c) Stock Dividends and Other Distributions. If the Company at any time while
this Warrant is outstanding and unexpired shall pay a dividend or make a distribution to all
of its stockholders with respect to its Common Stock payable in Common Stock, then the
Warrant Price shall be adjusted, from and after the date of determination of stockholders
entitled to receive such dividend or distribution, to that price determined by multiplying
the Warrant 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.
(d) Milestone Adjustment. Upon the announcement of the Company’s earnings for
the fourth quarter and year ended December 31, 2008, the Warrant Price shall be adjusted
automatically to either (i) $3.00 per share, if the number of ESRD patients prescribed to
receive therapy using the NxStage System One is less than 3,100 as reported in the Company
Reports on December 31, 2008, or (ii) $6.50 per share, if the number of ESRD patients
prescribed to receive therapy using the NxStage System is more than 3,500 as reported in the
Company Reports on December 31, 2008. Any adjustment to the Warrant Price required by the
preceding sentence shall be subject to any additional adjustment to such Warrant Price
required due to the prior occurrence of any of the events set forth in clauses (a) to (c)
and (e) of this Section 4.
(e) Adjustment of Number of Shares. Upon each adjustment in the Warrant Price,
the number of Shares 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 Warrant Price by a fraction, the numerator of which shall be the
Warrant Price immediately prior to such adjustment and the denominator of which shall be the
Warrant Price immediately thereafter.
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5. Notice of Adjustments. Whenever the Warrant Price or the number of Shares
purchasable hereunder shall be adjusted pursuant to Section 4 hereof, the Company shall make a
certificate signed by its chief executive officer, chief financial officer or any vice president
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 Warrant Price and the
number of Shares purchasable hereunder after giving effect to such adjustment, and shall cause
copies of such certificate to be mailed (without regard to Section 13 hereof, by first class mail,
postage prepaid) to the holder of this Warrant at such holder’s last known address.
6. Fractional Shares. No fractional shares of Common Stock will be issued in
connection with any exercise hereunder, but in lieu of such fractional shares the Company shall
make a cash payment therefor based on the fair market value of the Common Stock on the date of
exercise as reasonably determined in good faith by the Company’s Board of Directors.
7. Compliance with Securities Act; Disposition of Warrant or Shares of Common Stock.
(a) Compliance with Securities Act. The holder of this Warrant, by acceptance
hereof, agrees that this Warrant, and the Shares to be issued upon exercise hereof, are
being acquired for investment and that such holder will not offer, sell or otherwise dispose
of this Warrant, or any Shares except under circumstances which will not result in a
violation of the Securities Act of 1933, as amended (the “Act”) or any applicable
state securities laws. Upon exercise of this Warrant, unless the Shares being acquired are
registered under the Act and any applicable state securities laws or an exemption from such
registration is available, the holder hereof shall confirm in writing that the Shares so
purchased are being acquired for investment and not with a view toward distribution or
resale in violation of the Act and shall confirm such other matters related thereto as may
be reasonably requested by the Company. This Warrant and all Shares issued upon exercise of
this Warrant (unless registered under the Act and any applicable state securities laws)
shall be stamped or imprinted with a legend in substantially the following form:
“THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS.
NO SALE OR DISPOSITION MAY BE EFFECTED WITHOUT (I) AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO, (II) AN OPINION OF COUNSEL
OR OTHER EVIDENCE, REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED, (III) RECEIPT OF NO-ACTION LETTERS
FROM THE APPROPRIATE GOVERNMENTAL AUTHORITIES, OR (IV) OTHERWISE
COMPLYING WITH THE PROVISIONS OF SECTION 7 OF THE WARRANT UNDER
WHICH THESE SECURITIES WERE ISSUED, DIRECTLY OR INDIRECTLY.”
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Said legend shall be removed by the Company, upon the request of a holder, at such time as the
restrictions on the transfer of the applicable security shall have terminated. For the avoidance
of doubt, the holder acknowledges that the Shares issued upon exercise of the Warrant at any time
will be unregistered securities, subject to the rights of such holder to have the Shares registered
as provided in Section 9 below.
In addition, in connection with the issuance of this Warrant, the holder specifically
represents to the Company by acceptance of this Warrant as follows:
(1) The holder is aware of the Company’s business affairs and financial condition, and
has acquired information about the Company sufficient to reach an informed and knowledgeable
decision to acquire this Warrant. The holder is acquiring this Warrant for its own account
for investment purposes only and not with a view to, or for the resale in connection with,
any “distribution” thereof in violation of the Act.
(2) The holder understands that this Warrant has not been registered under the Act in
reliance upon a specific exemption therefrom, which exemption depends upon, among other
things, the bona fide nature of the holder’s investment intent as expressed herein.
(3) The holder further understands that this Warrant must be held indefinitely unless
subsequently registered under the Act and qualified under any applicable state securities
laws, or unless exemptions from registration and qualification are otherwise available. The
holder is aware of the provisions of Rule 144, promulgated under the Act.
(4) The holder is an “accredited investor” as such term is defined in Rule 501 of
Regulation D promulgated under the Act.
(b) Disposition of Warrant or Shares. Subject to compliance with any
applicable securities laws and conditions set forth in this Section 7(b), this Warrant and
all rights hereunder are transferable, in whole or in part, upon surrender of this Warrant
at the principal office of the Company, together with a written assignment of this Warrant
in form and substance reasonably acceptable to the Company and the holder, Upon such
surrender, the Company shall execute and deliver a new Warrant or Warrants in the name of
the assignee(s) in the denomination specified in such instrument of assignment, and shall
issue to the assignor a new Warrant and this Warrant shall be promptly be cancelled. A
Warrant, if properly assigned, may be exercised by a new holder for
the purchase of Shares
without having a new Warrant issued. With respect to any offer, sale or other disposition
of this Warrant or any Shares acquired pursuant to the exercise of this Warrant prior to
registration of such Warrant or Shares, the holder hereof agrees to give written notice to
the Company prior thereto, describing briefly the manner thereof, together with a written
opinion of such holder’s counsel, or other evidence satisfactory to the Company, to the
effect that such offer, sale or other disposition may be effected without registration or
qualification (under the Act as then in effect or any federal or state securities law then
in effect) of this Warrant or the Shares and indicating whether or not under the Act
certificates for this Warrant or the Shares to be sold or otherwise disposed
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of require any restrictive legend as to applicable restrictions on transferability in
order to ensure compliance with such law. Upon receiving such written notice and reasonably
satisfactory opinion or other evidence, the Company, as promptly as practicable but no later
than one (1) business day after receipt of the written notice, shall notify such holder that
such holder may sell or otherwise dispose of this Warrant or such Shares, all in accordance
with the terms of the notice delivered to the Company. If a determination has been made
pursuant to this Section 7(b) that the opinion of counsel for the holder or other evidence
is not reasonably satisfactory to the Company, the Company shall so notify the holder
promptly with details thereof after such determination has been made. Notwithstanding the
foregoing, this Warrant or such Shares may, as to such federal laws, be offered, sold or
otherwise disposed of in accordance with Rule 144 or 144A under the Act, provided that the
Company shall have been furnished with such information as the Company may reasonably
request to provide a reasonable assurance that the provisions of Rule 144 or 144A have been
satisfied. Each certificate representing this Warrant or the Shares thus transferred
(except a transfer pursuant to Rule 144) shall bear a legend as to the applicable
restrictions on transferability in order to ensure compliance with such laws, unless in the
aforesaid opinion of counsel for the holder, such legend is not required in order to ensure
compliance with such laws. The Company may issue stop transfer instructions to its transfer
agent in connection with such restrictions.
(c) Applicability of Restrictions. Neither any restrictions of any legend
described in this Warrant nor the requirements of Section 7(b) above shall apply to any
transfer or grant of a security interest in, this Warrant (or the shares of Common Stock
obtainable upon exercise thereof) or any part hereof (i) to a partner of the holder if the
holder is a partnership or to a member of the holder if the holder is a limited liability
company, (ii) to a partnership of which the holder is a partner or a limited liability
company of which the holder is a member, (iii) to another investment vehicle controlled or
advised by the same manager or one of its affiliates in the case of any collective
investment vehicle or similar holder, or (iv) to any affiliate of the holder if the holder
is a corporation; provided, however, in any such transfer, if applicable, the transferee
shall on the Company’s request agree in writing to be bound by the terms of this Warrant as
if an original holder hereof.
8. Rights as Stockholders. No holder of this Warrant, as such, shall be entitled to
vote or receive dividends or be deemed the holder of Common Stock or any other securities which may
at any time be issuable on the exercise hereof for any purpose, nor shall anything contained herein
be construed to confer upon the holder of this Warrant, as such, any of the rights of a stockholder
of the Company or any right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to receive notice of meetings, or to receive dividends or
subscription rights or otherwise until this Warrant shall have been exercised and the Shares
purchasable upon the exercise hereof shall have become deliverable, as provided herein.
9. Registration Rights. The Company grants registration rights to the holder of this
Warrant for any shares of Common Stock of the Company obtained upon exercise hereof as set forth in
the Securities Purchase Agreement.
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10. Modification and Waiver. This Warrant and any provision hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the party against which
enforcement of the same is sought.
11. Notices. All notices, requests, consents and other communications hereunder shall
be in writing, shall be mailed (A) if within the United States by first-class registered or
certified airmail, or nationally recognized overnight express courier, postage prepaid, or by
facsimile or electronic mail, or (B) if delivered from outside the United States, by International
Federal Express (or other recognized international express courier) or facsimile, and shall be
deemed given (i) if delivered by first-class registered or certified mail, three business days
after so mailed, (ii) if delivered by nationally recognized overnight carrier, one business day
after so mailed, (iii) if delivered by International Federal Express (or other recognized
international express courier), two business days after so mailed, or (iv) if delivered by
facsimile or electronic mail, upon electronic confirmation of receipt and shall be delivered as
addressed as follows:
if to the Company, to:
NxStage Medical, Inc.
000 X. Xxxxx Xx., 0xx Xxxxx
Xxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxxx Xxxx
Email: xxxxx@xxxxxxx.xxx
000 X. Xxxxx Xx., 0xx Xxxxx
Xxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxxx Xxxx
Email: xxxxx@xxxxxxx.xxx
With a copy to:
O’Melveny & Xxxxx LLP
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxx Xxxxxx
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxx Xxxxxx
if to the holder, at its address as shown on the books of the Company.
12. Binding Effect on Successors. This Warrant shall be binding upon any corporation
succeeding the Company by merger, consolidation or acquisition of all or substantially all of the
Company’s assets, and all of the obligations of the Company relating to the Shares issuable upon
the exercise or conversion of this Warrant shall survive the exercise, conversion and termination
of this Warrant and all of the covenants and agreements of the Company shall inure to the benefit
of the successors and assigns of the holder hereof.
13. Lost Warrants or Stock Certificates. The Company covenants to the holder hereof
that, upon receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant or any stock certificate and, in the case of any such
loss, theft or destruction, upon receipt of an indemnity reasonably satisfactory to the
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Company, or in the case of any such mutilation upon surrender and cancellation of such Warrant
or stock certificate, the Company will make and deliver a new Warrant or stock certificate, of like
tenor, in lieu of the lost, stolen, destroyed or mutilated Warrant or stock certificate.
14. Descriptive Headings. The descriptive headings of the several paragraphs of this
Warrant are inserted for convenience only and do not constitute a part of this Warrant. The
language in this Warrant shall be construed as to its fair meaning without regard to which party
drafted this Warrant.
15. Governing Law. This Warrant shall be construed and enforced in accordance with,
and the rights of the parties shall be governed by, the laws of the State of Delaware.
16. Survival of Representations, Warranties and Agreements. All representations and
warranties of the Company and the holder hereof contained herein shall survive the Date of Grant,
the exercise or conversion of this Warrant (or any part hereof) or the termination or expiration of
rights hereunder. All agreements of the Company and the holder hereof contained herein shall
survive indefinitely until, by their respective terms, they are no longer operative.
17. Remedies. In case any one or more of the covenants and agreements contained in
this Warrant shall have been breached, the holders hereof (in the case of a breach by the Company),
or the Company (in the case of a breach by a holder), may proceed to protect and enforce their or
its rights either by suit in equity and/or by action at law, including, but not limited to, an
action for damages as a result of any such breach and/or an action for specific performance of any
such covenant or agreement contained in this Warrant.
18. No Impairment of Rights. The Company will not, by amendment of its certificate of
incorporation or through any other means, avoid or seek to avoid the observance or performance of
any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of
all such terms 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 against impairment.
19. Severability. Whenever possible, each provision of this Warrant shall be
interpreted in such a manner as to be valid, legal and enforceable under all applicable laws and
regulations. If, however, any provision of this Warrant shall be invalid, illegal or unenforceable
under any such law or regulation in any jurisdiction, it shall, as to such jurisdiction, be deemed
modified to conform to the minimum requirements of such law or regulation, or, if for any reason it
is not deemed to be so modified, it shall be invalid, illegal or unenforceable only to the extent
of such invalidity, illegality or limitation on enforceability without affecting the remaining
provisions of this Warrant or the validity, legality or enforceability of such provision in any
other jurisdiction.
20. Entire Agreement; Modification. This Warrant constitutes the entire agreement
between the parties pertaining to the subject matter contained in it and supersedes all prior and
contemporaneous agreements, representations, and undertakings of the parties, whether oral or
written, with respect to such subject matter.
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[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties have executed this Warrant as of the date first written above.
| NXSTAGE MEDICAL, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Address: | 000 X. Xxxxx Xx., 0xx Xxxxx | |||||
| Xxxxxxxx, XX 00000 | ||||||
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Exhibit A
Notice of Exercise
| 1. | The undersigned hereby: |
| o | elects to purchase shares of Common Stock of the Company pursuant to the terms of the attached Warrant, and tenders herewith payment of the purchase price of such shares in full. | ||
| o | elects to exercise its issuance rights pursuant to Section 2(b) of the attached Warrant with respect to shares of Common Stock of the Company. |
| 2. | Please issue a certificate or certificates representing said shares in the name of the undersigned or in such other name or names as are specified below: |
| 3. | The undersigned represents that the aforesaid shares are being acquired for the account of the undersigned for investment and not with a view to, or for resale in connection with, the distribution thereof and that the undersigned has no present intention of distributing or reselling such shares, all except as in compliance with applicable securities laws. |
| (Signature) |
||||||
| Dated: | ||||||
APPENDIX A
Black Scholes Option Pricing formula to be used when calculating the value of the Warrant shall
be:
CCorp multiplied by the number of Shares for which the Warrant could have been exercised
immediately prior to the occurrence of the Change of Control Event, where:
CCorp =
SCorpe-l(TCorp-tCorp)N(d1) – KCorpe-r(TCorp-tCorp)N(d2)
CCorp = value of the Warrant
SCorp = price of Company stock as determined by reference to the average of the closing prices on
the Nasdaq National Market or other securities exchange upon which the Company’s stock may then be
traded over the 20-day period ending three trading days prior to the closing of the Change of the
Control Event, or the average of the closing bid or sale prices (whichever is applicable) in the
over-the-counter market over the 20-day period ending three trading days prior to the closing of
the Change of Control Event, if the Company’s stock is then actively traded in the over-the-counter
market, or the then most recently completed financing if the Company’s stock is not then traded on
a securities exchange or system or in the over-the-counter market.
TCorp = expiration date of the Warrant
tCorp = date of public announcement of Change of Control Event
TCorp-tCorp = time until the Warrant would have expired, but for the occurrence of the Change of
Control Event, expressed in years
s = volatility = the annualized standard deviation of daily log-returns (using a 262-day
annualization factor) of the Company’s stock price on Nasdaq National Market or other securities
exchange upon which the Company’s stock may then be traded over a 20-day trading period, determined
by the holder of the Warrant, that is within the 100-day trading period ending on the trading day
immediately after the public announcement of the Change of Control Event, or the annualized
standard deviation of daily-log returns (using a 262-day annualization factor) of the closing bid
or sale prices (whichever is applicable) in the over-the-counter market over a 20-day trading
period, determined by the holder of Warrant, that is within the 100-day trading period ending on
the trading day immediately after the public announcement of the Change in Control Event if the
Company’s stock is then actively traded in the over-the-counter market, or 0.6 (or 60%) if the
Company’s stock is not then traded on a securities exchange or system or in the over-the-counter
market.
N = cumulative normal distribution function
d1 =
(ln(SCorp/KCorp) + (r-l+ó2/2)(TCorp-tCorp))
÷ (sÖ(TCorp-tCorp))
ln = natural logarithm
l = dividend rate of the Company for the most recent 12-month period at the time of closing of the
Change of Control Event.
KCorp = strike price of warrant
r = annual yield, as reported by Bloomberg at time tCorp, of the United States Treasury security
measuring the nearest time TCorp
d2 = d1- sÖ(TCorp-tCorp)
