Exhibit 10.45
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF A REGISTRATION STATEMENT
IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR
UNLESS SOLD PURSUANT TO AN EXEMPTION TO SUCH ACT.
THE SALE OF THE SECURITIES WHICH ARE THE SUBJECT OF THIS WARRANT HAS NOT BEEN
QUALIFIED WITH ANY STATE AUTHORITIES AND THE ISSUANCE OF SUCH SECURITIES OR THE
PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH SECURITIES PRIOR TO
SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SUCH SECURITIES IS EXEMPT
FROM QUALIFICATION PURSUANT TO PROVISIONS OF THE APPLICABLE CORPORATIONS CODE.
THE RIGHTS OF THE HOLDER OF THIS WARRANT ARE EXPRESSLY CONDITIONED UPON SUCH
QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT.
Void after
Xxxxx 00, 0000
XXXXXXX TO PURCHASE SHARES
OF COMMON STOCK
OF
SPINE WAVE, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
----------------------------------------------------
THIS CERTIFIES THAT, for value received, PROTEIN POLYMER
TECHNOLOGIES, INC., a Delaware corporation, together with its permitted
successors and assigns (the "Holder"), is entitled, subject to the terms set
forth below, to purchase from Spine Wave, Inc., a Delaware corporation (the
"Company"), 1,000,000 shares of the common stock, $0.001 par value per share
("Common Stock") of the Company, subject to adjustment pursuant to Section 4
below (the "Shares"), at a purchase price per share of $0.50, subject to
adjustment pursuant to Section 4 below (the "Exercise Price"). This Warrant and
any Warrant subsequently issued upon exchange or transfer hereof are hereinafter
collectively called the "Warrant".
Section 1. Definitions. As used herein, the following terms shall have
the meanings set forth below:
"Expiration Date" shall mean the earlier to occur of: (a) March
21, 2006 or, if such date shall in New York, New York be a legal holiday or a
day on which banks are required or authorized to close, the next following date
that in New York, New York is not a legal holiday or a day on which banks are
required or authorized to close, (b) immediately prior to the closing of the
Company's first public offering of the Company's Common Stock (an "IPO"). At
least thirty (30) days prior to the occurrence of an event specified in (b)
above, the Company shall send the Holder notice of such event and that the
Holder's rights under this Warrant shall terminate upon the occurrence of such
event in order to allow the Holder an opportunity to exercise this Warrant and
this Warrant shall terminate unless exercised immediately prior to an IPO.
Section 2. Exercise.
2.1 Subject to the terms and conditions contained herein, this
Warrant is exercisable with respect to any or all of the Shares, at the option
of the Holder, at any time and from time to time at or prior to the Expiration
Date, upon surrender of this Warrant to the Company together with (a) a duly
completed (i) Notice of Exercise, in the form attached hereto as Exhibit A, or
(ii) Net Issue Election Notice, in the form attached hereto as Exhibit B and (b)
payment of an amount equal to the Exercise Price multiplied by the number of
Shares with respect to which this Warrant is being exercised as provided in
Section 2.2 below. If the Holder exercises this Warrant with respect to less
than all of the Shares represented by this Warrant, the Company shall cancel
this Warrant upon the surrender thereof and shall execute and deliver to the
Holder a new Warrant for the balance of such Shares.
2.2 Payment. Payment of the Exercise Price for the Shares with
respect to which this Warrant is being exercised by the Holder shall be made, at
the option of the Holder, (a) by delivery of cash payable by wire transfer of
immediately available funds, (b) by the delivery of a cashier's check or
certified check, (c) by net issue election as set forth in Section 2.3 below, or
(d) by any combination of (a) - (c).
2.3 Net Issue Election. The Holder may elect to receive, without
payment by the Holder of any additional consideration, shares of Common Stock
equal to the value of the this Warrant or any portion thereof by the surrender
of the Warrant to the Company, together with a duly completed Net Issue Election
Notice, in the form attached hereto as Exhibit B, at the principal office of the
Company, in which event the Company shall issue to the Holder such number of
shares of Common Stock as is computed using the following formula:
X = Y (A - B)
---------
A
Where:
X = The number of shares of Common Stock to be issued to the
Holder pursuant to the issue election;
Y = The number of Shares in respect of which the net issue
election is made;
A = The fair market value (as determined below) of one
share of the Common Stock at the time the net issue
election is made;
B = The Exercise Price in effect under this Warrant as of
the date of the net issue election.
For purposes of this Section 2, the fair market value of a share of Common
Stock on the time that the issue election is made shall mean:
(a) If traded on a stock exchange, the fair market value of
the Common Stock shall be deemed to be the average of the closing selling prices
of the Common Stock on the stock exchange determined by the Board to be the
primary market for the Common Stock over the ten (10) trading day period (or
such shorter period immediately following the closing of an initial public
offering) ending on the date prior to the date that the issue election is made,
as such prices are officially quoted in the composite tape of transactions on
such exchange;
(b) If traded over-the-counter, the fair market value of the
Common Stock shall be deemed to be the average of the closing bid prices (or, if
such information is available, the closing selling prices) of the Common Stock
over the ten (10) trading day period (or such shorter period immediately
following the closing of an initial public offering) ending on the date prior to
the Conversion Date, as such prices are reported by the National Association of
Securities Dealers through its NASDAQ system, any successor system or any
exchange on which it is listed, whichever is applicable; or
(c) If there is no public market for the Common Stock, then
the fair market value shall be determined by the Board of Directors of the
Company in good faith.
Section 3. Limit on Rights of the Holder upon Exercise. The Holder
acknowledges and agrees that upon the exercise of this Warrant in full or in
part, the following provisions shall apply to the rights of the Holder as a
holder of shares of Common Stock of the Company. This Section 3 shall survive
any termination, expiration or exercise of this Warrant.
3.1 Market Stand-Off Agreement. If requested by the Company and
an underwriter of Common Stock (or other securities) of the Company, Purchaser
shall not sell or otherwise transfer or dispose of any Common Stock (or other
securities) of the Company held by such Holder (other than those included in the
registration) for no more than (i) 180 days from the effective date of the first
registration of the Company's securities, including securities to be sold on its
behalf to the public in an underwritten offering and (ii) 90 days for the next
two subsequent registration statement of the Company after the initial public
offering; provided, however, that all executive officers, directors and two
percent (2%) or greater stockholders of the Company must enter into similar
lock-up agreements as well.
Section 4. Adjustment of Exercise Price and Number of Shares. The
Exercise Price and the number of Shares purchasable upon the exercise of this
Warrant shall be subject to adjustment from time to time as follows:
4.1 Split, Subdivision or Combination. If the Company shall, at
any time prior to the expiration of this Warrant, split, subdivide or combine
the outstanding shares of Common Stock as to which the purchase rights under
this Warrant exist, into a different number of shares of Common Stock, the
Exercise Price hereunder shall be proportionally decreased and
the number of shares which this Warrant is exercisable for shall be
proportionally increased in the case of a split or subdivision and the Exercise
Price will be proportionally increased and the number of shares which this
Warrant is exercisable for shall be proportionally decreased in the case of a
combination.
4.2 Dividends. If the Company shall, at any time prior to the
expiration of this Warrant, make or issue, or fix a record date for the
determination of holders of Common Stock entitled to receive, a dividend or
other distribution payable in additional shares of Common Stock, then and in
each such event the Exercise Price hereunder shall be decreased as of the time
of such issuance or, in the event such a record date shall have been fixed, as
of the close of business on such record date.
4.3 Reclassification or Reorganization. If the Common Stock
issuable upon the exercise of this Warrant shall be changed into the same or
different number of shares of any class or classes of stock, whether by capital
reorganization, reclassification or otherwise (other than a subdivision or
combination of shares or a dividend provided for in Sections 4.1 and 4.2 above,
or a Change of Control provided for in Section 4.4 below), then and in each such
event the Holder shall be entitled to receive upon the exercise of this Warrant
the kind and amount of shares of stock and other securities and property
receivable upon such reorganization, reclassification or other change, to which
a holder of the number of Common Stock issuable upon the exercise of this
Warrant would have received if this Warrant had been exercised immediately prior
to such reorganization, reclassification or other change.
4.4 In the case of (i) a consolidation or merger of the Company
with and into another corporation or (ii) a sale of all or substantially all of
the assets of the Company to another corporation (other than a subdivision,
combination, reclassification or exchange of shares provided for elsewhere in
this Section 4) (an event covered in (i) and (ii) is referred to hereinafter as
a "Change of Control"), then as a part of such merger, consolidation or sale,
provision shall be made so that the Holder shall thereafter be entitled to
receive upon the exercise of this Warrant, the number of shares of stock or
other securities or property of the Company, or of the successor corporation
resulting from such reorganization, merger, consolidation or sale, to which a
holder of the number of shares of Common Stock (or any shares of stock or other
securities which may be) issuable upon the exercise of this Warrant would have
received if this Warrant had been exercised immediately prior to such merger,
consolidation or sale.
4.5 Notice of Adjustments and Record Dates. The Company shall
promptly notify the Holder in writing of each adjustment or readjustment of the
Exercise Price hereunder and the number of Shares issuable upon the exercise of
this Warrant. Such notice shall state the adjustment or readjustment and show in
reasonable detail the facts on which that adjustment or readjustment is based.
In the event of any taking by the Company of a record of the holders of Common
Stock for the purpose of determining the holders thereof who are entitled to
receive any dividend or other distribution, the Company shall notify the Holder
in writing of such record date at least fifteen (15) days prior to the date
specified therein.
4.6 Issue Tax. The issuance of certificates for the Shares upon
exercise of this Warrant shall be made without charge to Holder of this Warrant
for any issuance tax in respect thereof provided that the Company shall not be
required to pay any tax which may be payable in
respect of any transfer involved in the issuance and delivery of any certificate
in a name other than that of the Holder of this Warrant.
4.7 No Impairment. The Company shall not avoid or seek to avoid
the observance or performance of any of the terms to be observed or performed
hereunder by the Company, but shall at all times in good faith assist in the
carrying out of all the provisions of this Warrant. Without limiting the
generality of the foregoing, the Company (a) shall at all times reserve and keep
available a number of its authorized shares of Common Stock, free from all
preemptive rights therein, which shall be sufficient to permit the exercise of
this Warrant and (b) shall take all such action as may be necessary or
appropriate in order that all Shares as may be issued pursuant to the exercise
of this Warrant shall, upon issuance, be duly and validly issued, fully paid and
nonassessable.
4.8 Fractional Shares. No fractional shares shall be issued
upon the exercise of this Warrant as a consequence of any adjustment pursuant
hereto. All Shares (including fractions) issuable upon exercise of this Warrant
may be aggregated for purposes of determining whether the exercise would result
in the issuance of a fractional share. If, after aggregation, the exercise would
result in the issuance of a fractional share, the Company shall, in lieu of
issuance of any fractional share, pay the Holder otherwise entitled to such
fraction a sum in cash equal to the product resulting from multiplying the then
current fair market price value of a Share by such fraction.
Section 5. Replacement of Warrants. On receipt by the Company of
evidence reasonably satisfactory to the Company of the loss, theft, destruction
or mutilation of this Warrant and, in the case of any such loss, theft or
destruction of this Warrant, on delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of such Warrant, the Company at its
expense shall execute and deliver to the Holder, in lieu thereof, a new Warrant
of like tenor.
Section 6. No Rights or Liability as a Stockholder. This Warrant does
not entitle the Holder hereof to any voting rights or other rights as a
stockholder of the Company. No provisions hereof, in the absence of affirmative
action by the Holder to purchase the Shares, and no enumeration herein of the
rights or privileges of the Holder, shall give rise to any liability of the
Holder as a stockholder of the Company.
Section 7. Representations and Warranties of the Holder.
The Holder hereby represents and warrants to and for the
benefit of the Company, with knowledge that the Company is relying thereon in
issuing this Warrant to the Holder, as follows:
7.1 Purchase Entirely for Own Account. By the Holder's
execution of this Warrant, the Holder hereby confirms that this Warrant and the
Shares issuable upon exercise of this Warrant (collectively, the "Securities")
shall be acquired for investment for the Holder's own account, not as a nominee
or agent, and not with a view to the resale or distribution of any part thereof,
and that the Holder has no present intention of selling, granting any
participation in, or otherwise distributing the same. By executing this Warrant,
the Holder further represents that
the Holder does not have any contract, undertaking, agreement or arrangement
with any person to sell, transfer or grant participation to such person or to
any third person, with respect to any of the Securities. The Holder represents
that it has full power and authority to enter into this Warrant.
7.2 Receipt of Information/Investment Experience. The Holder
believes that it has received all the information necessary or appropriate for
deciding whether to acquire the Securities. The Holder further represents that
it has had an opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the offering of the Securities and to
obtain any additional information necessary to verify the accuracy of the
information given to the Holder. The Holder is an investor in securities of
companies in the development stage and acknowledges that it is able to fend for
itself, can bear the economic risk of its investment and has such knowledge and
experience in financial or business matters that it is capable of evaluating the
merits and risks of the investment in the Securities.
7.3 Ability To Bear Economic Risk. The Holder acknowledges that
an investment in the Securities involves a high degree of risk, and represents
that it is able without materially impairing its financial condition to hold the
Securities for an indefinite period of time and to suffer a complete loss of its
investment.
7.4 Restricted Securities. The Holder understands that the
Securities it is and shall be purchasing are characterized as "restricted
securities" under the federal securities laws inasmuch as they are being
acquired from the Company in a transaction not involving a public offering and
that under such laws and applicable regulations such securities may be resold
without registration under the Securities Act of 1933, as amended (the "Act"),
only in certain limited circumstances. In this connection, the Holder represents
that it is familiar with Rule 144 promulgated under the Act, as now in effect,
and understands the resale limitations imposed thereby and by the Act.
7.5 Legends.
The Holder understands that the certificates evidencing the
Securities may bear one or all of the following legends and the Holder covenants
that it will not transfer the Securities represented by any such certificate or
document without complying with the restrictions on transfer described in the
legends endorsed on such certificate or document:
(a) THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND
MAY NOT BE OFFERED, SOLD, TRANSFERRED, ASSIGNED, PLEDGED
OR HYPOTHECATED ABSENT AN EFFECTIVE REGISTRATION
STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER
SUCH ACT OR PURSUANT TO AN EXEMPTION, OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED OR UNLESS SOLD IN FULL
COMPLIANCE WITH RULE 144 UNDER THE ACT.
(b) Any legend required by the laws of any State.
(c) Any legend required to be placed on the Securities
purchased by investors in any future sale or offering of any Securities.
Section 8. Miscellaneous.
8.1 Limitations on Disposition.
(a) The Holder of this Warrant, by acceptance hereof, agrees
to comply in all respects with the provisions of this Section 8.1. Without in
any way limiting the representations set forth above, the Holder of this Warrant
agrees not to make any disposition of this Warrant or any Shares, unless and
until the transferee has agreed in writing for the benefit of the Company to be
bound by this Section 8.1 and the other provisions of this Warrant as if such
transferee were the original Holder hereof, provided and to the extent such
provisions are then applicable, and:
(i) There is then in effect a registration statement under
the Act covering such proposed disposition and such disposition is made in
accordance with such registration statement; or
(ii) (A) the Holder shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and the
Company has given its prior written consent, and (B) if requested by the
Company, the Holder shall have furnished the Company with an opinion of counsel,
satisfactory to the Company, that such disposition will not require registration
of the Warrant and/or the Shares under the Act. It is agreed that the Company
will not require opinions of counsel for transactions made pursuant to Rule 144
except in unusual circumstances.
(b) Notwithstanding the provisions of paragraph (a) above,
(i) no such registration statement, prior consent or opinion of counsel shall be
necessary for a transfer (A) by a Holder which is a partnership to a partner of
such partnership or a retired partner of such partnership who retires after the
date hereof, or to the estate of any such partner or retired partner or to the
transfer by gift, will or intestate succession of any partner to his spouse or
to the siblings, lineal descendants or ancestors of such partner or his spouse,
or (B) by a Holder which is a corporation to an "affiliate" of the Holder as
that term is defined in Rule 405 promulgated by the Securities and Exchange
Commission under the Act, if the transferee agrees in writing to be subject to
the terms hereof to the same extent as if it were an original Holder hereunder,
and (ii) no transferee shall be required, as a condition to any transfer of the
Warrant or the Shares by the Holder, to agree to be bound by this Section 8.1,
if the transferee is acquiring the Warrant and/or Shares pursuant to a
Registration Statement under the Act or in a transaction made pursuant to Rule
144. Each new certificate evidencing the Warrant and/or Shares so transferred
shall bear the appropriate restrictive legends, except that such certificate
shall not bear such restrictive legend if, in the opinion of counsel for the
Company, such legend is not required in order to
establish or assist in compliance with any provisions of the Act or any
applicable state securities laws.
8.2 Titles and Subtitles. The titles and subtitles used in this
Warrant are for convenience only and are not to be considered in construing or
interpreting this Warrant.
8.3 Notices. Any notice required or permitted under this
Warrant, except as otherwise expressly provided in this Warrant, shall be given
in writing and shall be deemed to have been duly given at the earlier of (i) the
time of actual delivery or (ii) on the third business day following the date
deposited with the United States Postal Service, postage prepaid, certified with
return receipt requested, to the parties at the following addresses or at such
other address as shall be given in writing by a party to the other parties:
Holder: Protein Polymer Technologies, Inc.
____________________________
____________________________
____________________________
The Company:
Spine Wave, Inc.
00000 Xx Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: President and Chief Executive Officer
8.4 Attorneys' Fees. If any action at law or in equity is
necessary to enforce or interpret the terms of this Warrant, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and disbursements
in addition to any other relief to which such party may be entitled.
8.5 Amendments and Waivers. This Warrant may be amended and the
observance of any other 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 Holder.
8.6 Severability. If one or more provisions of this Warrant are
held to be unenforceable under applicable law, such provision shall be excluded
from this Warrant and the balance of the Warrant shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
8.7 Governing Law. This Warrant shall be governed by and
construed and enforced in accordance with the laws of the State of California,
without giving effect to its conflicts of laws principles.
This Warrant may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
Date: March __, 2002 SPINE WAVE, INC.,
a Delaware corporation
By: /s/ Xxxx XxXxxxxxx
---------------------------
Xxxx XxXxxxxxx, President
and Chief Executive Officer
ACKNOWLEDGED AND AGREED:
PROTEIN POLYMER TECHNOLOGIES, INC.
By: __________________________________
Name (please print):___________________
Title: _____________________________
EXHIBIT A
---------
FORM OF NOTICE OF EXERCISE
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise this Warrant for, and to purchase thereunder, __________
shares of Common Stock of Spine Wave, Inc., a Delaware corporation and herewith
makes payment of $__________ therefor and requests that the certificates for
such shares be issued in the name of, and delivered to, ____________________,
federal taxpayer identification number __________, whose address is
_____________________________________________.
In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the representations and warranties set forth in Section 7 of
this Warrant are true and correct as of the date of this notice of exercise.
Please issue a new Warrant for the unexercised portion of the
attached Warrant in the name of, and delivered to, ____________________, federal
taxpayer identification number __________, whose address is ____________________
_________________________.
Dated:____________
______________________________________________
(Signature must conform to name of holder
as specified on the face of the Warrant)
A-1
EXHIBIT B
---------
FORM OF NET ISSUE ELECTION NOTICE
(To be signed only on net issue exercise of the Warrant)
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise this Warrant with respect to __________ shares of Common
Stock of Spine Wave, Inc., a Delaware corporation, pursuant to the net issue
election provisions set forth in Section 2.3 of the Warrant and requests that
the certificates for the number of shares of Common Stock issuable pursuant to
said Section 2.3 after application of the net issue election formula to such
__________ shares be issued in the name of, and delivered to,
____________________, federal taxpayer identification number __________, whose
address is __________________________________.
In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the representations and warranties set forth in Section 7 of
this Warrant are true and correct as of the date of this net issue election
notice.
Please issue a new Warrant for the unexercised portion of the
attached Warrant in the name of, and delivered to, ____________________, federal
taxpayer identification number __________, whose address is
_____________________________________________.
Dated:___________________
______________________________________________
(Signature must conform to name of holder
as specified on the face of the Warrant)
