EXHIBIT 4.24
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE CONVERSION HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
UNDER ANY APPLICABLE STATE SECURITIES LAWS. ALL SUCH SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE OFFERED FOR SALE,
SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED (A "TRANSFER")
WITHOUT REGISTRATION UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR
WITHOUT AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION
IS NOT REQUIRED BECAUSE THE TRANSFER IS EXEMPT FROM REGISTRATION OR THE TRANSFER
MAY BE MADE PURSUANT TO RULE 144 OR RULE 144A UNDER THE ACT. INVESTORS SHOULD BE
AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT
FOR AN INDEFINITE PERIOD OF TIME.
COMMON STOCK WARRANT
For the Purchase of Shares of Common Stock of CYTOMEDIX, INC.
April 1, 2003
THIS CERTIFIES THAT, Xxxxxx X. Xxxxx, for value received, and her
successors and assigns (collectively, "Warrantholder"), is entitled to subscribe
for and purchase, subject to the terms hereof, from Cytomedix, Inc., a Delaware
corporation (the "Company"), ONE MILLION (1,000,000) fully-paid and
non-assessable shares (the "Shares") of the Company's Common Stock, par value
$0.0001 per share ("Common Stock"), at a price per share equal to $1.00 (the
"Warrant Exercise Price"), such price and such number of shares being subject to
adjustment upon the occurrence of the contingencies set forth in this Warrant.
This Warrant is granted in connection with the Consulting Agreement, of
even date herewith, by and between the Company and Warrantholder (the
"Consulting Agreement").
1. Term. Except as otherwise provided for herein, the ONE MILLION
(1,000,000) Shares represented by this Warrant shall be exercisable, in whole or
in part, at any time and from time to time, after the original issuance date of
this Warrant and ending at 5:00 p.m., central standard time, on the seventh
anniversary of the original issuance date of this Warrant (the "Expiration
Date"); provided, however, unless on the Expiration Date stated above either (i)
the Shares are subject to an effective registration statement of the Company
under the Securities Act of 1933, as amended, or (ii) the Common Stock is listed
or included for quotation on at least one of the Nasdaq National Market, the New
York Stock Exchange or the American Stock Exchange (and such listed trading has
not been suspended or otherwise restricted pursuant to an effective order of
such exchange), then the Expiration Date shall be extended through, and the term
"Expiration Date" shall be deemed to mean, the next following anniversary of the
original issuance date of this Warrant upon which one of the foregoing
conditions has been met.
2. Number of Shares; Vesting of Shares. Subject to the terms and conditions
set forth herein, including the Expiration Date, the Warrantholder is entitled,
upon surrender of this Warrant, to purchase from the Company the Shares
represented by this Warrant as follows: (i) 500,000 Shares represented by this
Warrant shall be exercisable, in whole or in part, at any time and from time to
time, after the original issuance date of this Warrant, and (ii) unless the
Consulting Agreement has been terminated by the Company for Cause as defined
below prior to the first anniversary of the original issuance date of this
Warrant, the remaining 500,000 Shares represented by this Warrant shall be
exercisable, in whole or in part, at any time and from time to time, on or after
the first anniversary of the original issuance date of this Warrant, such
numbers of Shares being subject to adjustment upon the occurrence of the
contingencies set forth in this Warrant.
For purposes of this Section 2, "Cause" for termination of the Consulting
Agreement means any of the following: (a) the failure or inability for any
reason of Warrantholder to diligently or effectively perform her duties under
this Agreement or the Consulting Agreement, (b) the commission by Warrantholder
of any act involving moral turpitude or the commission by Warrantholder of any
act or the suffering by Warrantholder of any occurrence or state of facts, which
materially and adversely affects the Company's business reputation, (c) the
breach by Warrantholder of any material term of, or the failure to perform any
material covenant contained in, the Consulting Agreement, or (d) the material
violation by Warrantholder of written instructions or policies established by
the Company with respect to the operation of its business and affairs or
Warrantholder's failure to carry out the reasonable instructions of the Company
within the scope of the Warrantholder's "Consulting Services" as defined in the
Consulting Agreement.
3. Method of Exercise; Net Issue Exercise.
( ) Method of Exercise; Payment; Issuance of New Warrant. The purchase
right represented by this Warrant may be exercised by the holder hereof, in
whole or in part and from time to time, by the surrender of this Warrant
(together with the notice of exercise form attached hereto as Exhibit A, duly
executed) at the principal office of the Company and by the payment to the
Company, by check or bank draft, of an amount equal to the then applicable
Warrant Exercise Price per share 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. In the event
of any exercise of the rights represented by this Warrant, certificates for the
Shares of stock so purchased shall be delivered to the holder hereof as soon as
possible and in any event within 30 days of receipt of such notice and, unless
this Warrant has been fully exercised or expired, a new Warrant representing the
portion of the Shares, if any, with respect to which this Warrant shall not then
have been exercised shall also be issued to the holder hereof as soon as
possible and in any event within such 30-day period.
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( ) Net Issue Exercise. In lieu of exercising this Warrant pursuant to
subsection (a) above, the Warrantholder may from time to time elect to receive,
without the payment by the Warrantholder of any additional consideration, shares
of Common Stock equal to the value of this Warrant (or the portion thereof being
canceled, which number of shares being canceled pursuant to this subsection 3(b)
may not exceed the number of shares that the Warrantholder would be entitled to
exercise at such time pursuant to subsection (a) above) by surrender of this
Warrant at the principal office of the Company together with notice of such
election, in which event the Company shall issue to the Warrantholder a number
of shares of Common Stock computed using the following formula:
X = Y(A - B)
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A
Where: X = The number of shares of Common Stock to be issued to the
Warrantholder.
Y = The number of Shares purchasable under this Warrant at the time
of such exercise.
A = The fair market value of one share of Common Stock, at the time
of such exercise.
B = The Warrant Exercise Price (as adjusted to the date of such
calculation).
For purposes of this Section 3(b), the fair market value of one share of Common
Stock as of a particular date shall be, (i) in the event a public market exists
for the Company's Common Stock on the date of exercise, the closing bid price of
one share of Common Stock on the date of exercise or, (ii) if no public market
exists for the Common Stock, as mutually determined in good faith upon a review
of all factors deemed appropriate by the Company's Board of Directors and the
Warrantholder; provided, that if the Warrant is being exercised upon the closing
of an initial public offering, the value shall be the initial "price to the
public" of one share of such Common Stock specified in the final prospectus with
respect to such offering.
4. Stock Fully Paid; Reservation of Shares. All Shares that may be issued
upon the exercise of the rights represented by this Warrant shall, upon
issuance, 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 the Warrant may be exercised, the Company shall at all
times have authorized and reserved for the purpose of issuance 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.
5. Adjustment of Warrant Exercise Price and Number of Shares. The number
and kind of securities purchasable upon the exercise of the Warrant and the
Warrant Exercise Price shall be subject to adjustment from time to time upon the
occurrence of certain events, as follows:
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( ) Reclassification or Merger. In case of any reclassification, change or
conversion 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 a continuing 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, the Company, or such
successor or purchasing corporation, as the case may be, shall execute a new
Warrant (in form and substance satisfactory to the Warrantholder) providing that
the holder of this Warrant shall have the right to exercise such new Warrant and
upon such exercise to receive, the kind and amount of shares of stock, other
securities, money and property receivable upon such reclassification, change or
merger by a holder of one share of Common Stock. 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 5, and appropriate adjustments shall be
made to the purchase price per share payable hereunder, provided the aggregate
purchase price shall remain the same. The provisions of this subsection (a)
shall similarly apply to successive reclassification, changes, mergers and
transfers.
( ) Subdivisions or Combination of Shares. If the Company at any time while
this Warrant remains outstanding and unexpired shall subdivide or combine its
Common Stock, the Warrant Exercise Price and the number of shares of Common
Stock issuable upon exercise hereof shall be proportionately adjusted such that
the aggregate exercise price of this Warrant shall at all times remains equal.
Any adjustments under this subsection (b) shall become effective at the close of
business on the date the subdivision or combination becomes effective.
( ) Stock Dividends. If the Company at any time while this Warrant is
outstanding and unexpired shall pay a dividend payable in shares of Common Stock
(except any distribution specifically provided for in the foregoing subsections
(a) and (b)), then the Warrant 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 Warrant Exercise Price
in effect immediately prior to such date of determination by a fraction, (i) the
numerator of which shall be the total number of shares of Common Stock
outstanding immediately prior to such dividend or distribution and (ii) the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately after such dividend or distribution and the number of
shares of Common Stock subject to this Warrant shall be proportionately
adjusted. Any adjustment under this subsection (c) shall become effective as of
the record date of such dividend, or in the event that no record date is fixed,
upon the making of such dividend.
( ) No Impairment. The Company will not, by amendment of its Articles of
Incorporation (as amended, restated, supplemented or otherwise modified from
time) or through any reorganization, recapitalization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Company, but will at all
times in good faith assist in the carrying out of all the provisions of this
Section 5 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.
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6. Notice of Adjustments. Whenever the Warrant Exercise Price shall be
adjusted pursuant to the provisions hereof, the Company shall within 10 days of
such adjustment deliver a certificate signed by its chief executive officer or
chief financial officer to the registered holder(s) hereof 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
Exercise Price after giving effect to such adjustment.
7. Fractional Shares. No fractional shares will be issued in connection
with any exercise hereunder, but in lieu of such fractional shares the Company
shall make a cash payment therefor upon the basis of the Warrant Exercise Price
then in effect.
8. Transfers and Exchanges. This Warrant may be transferred upon the prior
written consent of the Company, which consent shall not be unreasonably
withheld, provided that no such consent shall be required for the transfer of
this Warrant by operation of law.
9. Rights as Shareholders. No holder of this Warrant, as such, shall be
entitled to vote or receive dividends or be deemed the holder of Common Stock,
nor shall anything contained herein be construed to confer upon the holder of
this Warrant, as such, any of the rights of a shareholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
shareholders 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 of Common Stock purchasable upon the exercise
hereof shall have become deliverable, as provided herein. However, nothing in
this Section 9 shall limit the right of the Warrantholder to be provided the
notices required under this Warrant.
10. Modification and Waiver. Any term of this Warrant may be amended and
the observance of any term of this Warrant may be waived (either generally or in
a particular instance and either retroactively or prospectively), with the
written consent of the Company and the holders of a majority of shares of Common
Stock issued or issuable upon exercise of this Warrant. Any waiver or amendment
effected in accordance with this Section shall be binding upon each holder of
any Shares issuable upon exercise of this Warrant.
11. Notices. Any notice, request or other document required or permitted to
be given or delivered to the holder hereof or the Company shall be delivered, or
shall be sent by certified or registered mail, postage prepaid, to each such
holder at his, her or its address as shown on the books of the Company or to the
Company at the address indicated on the signature page of this Warrant.
12. Assumption of Warrant. If at any time, while this Warrant, or any
portion thereof, is outstanding and unexpired there shall be (i) an acquisition
of the Company by another entity by means of a merger, consolidation or other
transaction or series of related transactions resulting in the exchange of the
outstanding shares of the Company's capital stock such that shareholders of the
Company prior to such transaction own, directly or indirectly, less than 50% of
the voting power of the surviving entity or (ii) a sale or transfer of all or
substantially all of the Company's assets to any other person, then, as a part
of such acquisition, sale or transfer, lawful provision shall be made so that
the Warrantholder shall thereafter be entitled to receive upon exercise of this
Warrant, during the period specified herein and upon payment of the Warrant
Exercise Price then in effect, the number of shares of stock or other securities
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or property of the successor corporation resulting from such acquisition, sale
or transfer which a holder of the shares deliverable upon exercise of this
Warrant would have been entitled to receive in such acquisition, sale or
transfer if this Warrant had been exercised immediately before such acquisition,
sale or transfer, all subject to further adjustment as provided in this Section
12; and 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 herein set forth with respect to the rights and interests thereafter
of the Warrantholder to the end that the provisions set forth herein (including
provisions with respect to changes in and other adjustments of the number of
Shares of the Warrantholder is entitled to purchase) shall thereafter by
applicable, as nearly as possible, in relation to any shares of Common Stock or
other securities or other property thereafter deliverable upon the exercise of
this Warrant.
13. 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 Common Stock issuable upon the exercise of this
Warrant shall survive the exercise 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 Warrantholder. The Company will, at the time of
the exercise of this Warrant, in whole or in part, upon request of the
Warrantholder but at the Company's expense, acknowledge in writing its
continuing obligation to the Warrantholder in respect of any rights to which the
Warrantholder shall continue to be entitled after such exercise in accordance
with this Warrant; provided, that the failure of the Warrantholder to make any
such request shall not affect the continuing obligation of the Company to the
Warrantholder in respect of such rights.
14. 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 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, or like tenor, in lieu of the lost, stolen, destroyed or mutilated
Warrant or stock certificate.
15. Descriptive Headings. The descriptive headings of the several sections
of this Warrant are inserted for convenience only and do not constitute a part
of this Warrant.
16. 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.
17. Counterparts. This Common Stock Warrant may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, this Common Stock Warrant is executed effective as
of the date first above written.
CYTOMEDIX, INC.
By: ______________________________________
Address:
0000 Xxxxx Xxxxxx Xx., Xxxxx X
Xxxxxx Xxxx, Xxxxxxxx 00000
Accepted and Agreed:
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Xxxxxx X. Xxxxx
Address:
P.O. Box 163 Hell
West Bay, Grand Cayman
The Cayman Islands, BWI
EXHIBIT A
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NOTICE OF EXERCISE
To:
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Attn: ---------------
1. The undersigned hereby elects to purchase ___________ shares of Common
Stock of Cytomedix, Inc. pursuant to the terms of the attached Warrant, and
tenders herewith payment of the purchase price of such shares in full.
1. Specify method of exercise by check xxxx:
__ a. Such payment is hereby made in the amount of ___________ by
wire transfer or by certified or bank check.
__ b. The holder elects to receive shares for the value (as
determined pursuant to Section 3(b) of the Warrant) of the Warrant.
3. 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
Name:
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Address:
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(Date) (Signature)
