Exhibit 10(nn)
THIS WARRANT AND THE SECURITIES THAT MAY BE ACQUIRED UPON THE EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR UNDER THE PROVISIONS OF ANY APPLICABLE STATE SECURITIES LAWS.
NEITHER THIS WARRANT NOR THE SECURITIES THAT MAY BE ACQUIRED UPON THE EXERCISE
OF THIS WARRANT MAY BE SOLD, PLEDGED, TRANSFERRED, ASSIGNED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER
PROVISIONS OF THE ACT AND ALL APPLICABLE STATE SECURITIES LAWS; AND IN THE CASE
OF ANY EXEMPTION, ONLY IF THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH TRANSACTION DOES NOT REQUIRE REGISTRATION
OF THE WARRANT OR THE OTHER SECURITIES.
WARRANT TO PURCHASE ______________ (__________) SHARES OF COMMON
STOCK OF ORGANOGENESIS INC.
Warrant No. [0101] Void After October 14, 2004
------------------------------------------
THIS CERTIFIES THAT, for value received, ________________ of
________________ ("__________"), or assigns (________ or such assigns who may be
the registered holder or holders hereof, are hereinafter referred to as the
"Holder"), is entitled to subscribe for and purchase _____________ (________)
shares of the fully paid and nonassessable Common Stock (as adjusted pursuant to
Section 5 hereof, hereinafter, the "Shares") of ORGANOGENESIS INC., a Delaware
corporation (hereinafter, the "Company"), at the price of $10.00 per share (such
price and such other price as shall result, from time to time, from the
adjustments specified in Section 5 hereof is herein referred to as the "Exercise
Price"), subject to the provisions and upon the terms and conditions hereinafter
set forth. As used herein, the term "Common Stock" shall mean the Company's
presently authorized Common Stock, $.01 par value per share, and any stock into
which such Common Stock may hereafter be exchanged.
1. Term. The purchase right represented by this Warrant is exercisable,
in whole or in part, at any time or from time to time prior to 5:00 p.m.,
eastern time, on October 14, 2004.
2. Vesting Schedule. This Warrant shall become vested and exercisable
with respect to the following number of Shares according to the timetable set
forth below:
Percentage of Shares Becoming Cumulative Percentage
Available for Exercise Available
----------------------------- ---------------------
Before December 31, 1999 0% 0%
On and after December 31, 1999 100% 100%
3. Method of Exercise; Payment; Issuance of New Warrant.
(a) Subject to the terms hereof, the purchase right represented by
this Warrant may be exercised by the Holder hereof, in whole or in part, by the
surrender of this Warrant (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, pursuant to Section 3(b) below, of an amount equal to
then applicable Exercise Price per share multiplied by the number of Shares then
being purchased. A certificate for the Shares purchased shall be delivered to
the Holder hereof within 30 days of the date of exercise and, unless this
Warrant has been fully exercised or expired, a new Warrant representing the
unexercised portion shall also be issued to the Holder hereof within such 30 day
period.
(b) Method of Payment. Payment shall be made (i) by check made payable
to the Company, or (ii) by wire transfer in accordance with the Company's
written instructions, or (iii) as follows: the Holder may elect to receive,
without the payment by the Holder of any additional consideration, Shares equal
to the value of this Warrant by the surrender of this Warrant (or such portion
then being exercised) to the Company at the principal office of the Company.
Thereupon, the Company shall issue to the Holder such number of fully paid and
nonassessable Shares of Common Stock as is computed using the following formula:
WS = SP x (FMV-EP)
------------
FMV
Where WS = the number of shares of Common Stock to be
issued to the Holder pursuant to this Section 3;
SP = the number of shares purchasable under
this Warrant or, if only a portion of the
Warrant is being exercised, the portion of
this Warrant being exercised (at the date of
the formula is calculated) of which the net
issue election is made pursuant to this
Section 3;
FM = the fair market value of one share of
Common Stock, which value shall be equal to
the closing price for one share of Common
Stock as reported by the American Stock
Exchange (or such other exchange on which
shares of Common Stock may then be listed),
on the business immediately preceding the
day that the net issue election is made
pursuant to this Section 3; and
EP = the Exercise Price in effect under this
Warrant at the time the net issue election
is made pursuant to this Section 3.
(c) The Company shall pay all expenses and other charges payable in
connection with the preparation, execution and delivery of stock certificates
pursuant to this Section 3, except that, in case such stock certificate or
certificates shall be registered in a name or names other than the name of the
registered Holder, funds sufficient to pay all stock transfer taxes, which shall
be payable upon the execution and delivery of such stock certificate or
certificates, shall be paid by the Holder to the Company at the time this
Warrant is surrendered as mentioned in Section 3(a) above.
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4. Stock Fully Paid; Reservation of Shares. All Shares which may be
issued pursuant to this Warrant, shall, upon issuance, be duly authorized,
validly issued, fully paid and nonassessable, and free of any liens and
encumbrances except for restriction on transfer provided for herein or under
applicable federal and state securities laws. While this Warrant is outstanding,
the Company shall at all times have authorized, and reserved for the purpose of
the issue pursuant to this Warrant, a sufficient number of shares of the Common
Stock to provide for the exercise of the purchase right represented by this
Warrant.
5. Adjustment of Exercise Price and Number of Shares. The number and
kind of securities purchasable upon the exercise of this Warrant and the
Exercise Price shall be subject to adjustment from time to time upon the
occurrence of certain events, as follows:
(a) Reorganizations and Reclassifications. If there shall occur any
capital reorganization or reclassification of the Common Stock (other than a
change in par value or a split, subdivision or combination as provided for in
Section 5(c) below), then, as part of any such reorganization or
reclassification, lawful provision shall be made so that the Holder shall have
the right thereafter to receive upon the exercise of this Warrant the kind and
amount of shares of stock or other securities or property which such Holder
would have been entitled to receive if, immediately prior to any such
reorganization or reclassification, such Holder had held the number of shares of
Common Stock which were then purchasable upon the exercise of this Warrant. In
case of any such capital reorganization or reclassification of the Common Stock,
the Company shall execute and deliver a new Warrant in exchange for this Warrant
which shall provide the Holder the right, upon exercise, to receive, the kind
and amount of shares of stock, or other securities or property to which the
Holder is entitled to receive by virtue of the immediately preceding sentence.
In any such case, appropriate adjustment (as reasonably determined by the Board
of Directors of the Company) shall be made in the application of the provisions
set forth herein with respect to the rights and interests thereafter of the
Holder such that the provisions set forth in this Section 5 (including
provisions with respect to adjustment of the Exercise Price) shall thereafter be
applicable, as nearly as is reasonably practicable, in relation to any shares of
stock or other securities or property thereafter deliverable upon the exercise
of this Warrant.
(b) Merger, Consolidation or Sale of Assets. If there shall be a
merger or consolidation of the Company with or into another corporation (other
than a merger or reorganization involving only a change in the state of
incorporation of the Company or the acquisition by the Company of other
businesses where the Company survives as a going concern), or the sale of all or
substantially all of the Company's capital stock or assets to any other person,
then as a part of such transaction, provision shall be made so that the Holder
shall thereafter be entitled to receive the number of shares of stock or other
securities or property of the Company, or of the successor corporation resulting
from the merger, consolidation or sale, to which the Holder would have been
entitled if the Holder had exercised its rights pursuant to the Warrant
immediately prior thereto. In any such case, appropriate adjustment shall be
made in the application of the provisions of this Section 5 to the end that the
provisions of this Section 5 shall be applicable after that event in as nearly
equivalent a manner as may be practicable.
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(c) Split, Subdivision or Combination of Shares. If the Company at any
time while this Warrant remains outstanding shall split, subdivide or combine
its Common Stock, the Exercise Price shall be proportionately decreased in the
case of a split or subdivision and proportionately increased in the case of a
combination.
(d) Stock Dividends. If the Company at any time while this Warrant is
outstanding shall pay a dividend with respect to the Common Stock payable in, or
make any other distribution with respect to the Common Stock (except any
distribution specifically provided for in Section 5(a), 5(b) or 5(c) above) of,
shares of the Common Stock, then the Exercise Price shall be adjusted, from and
after the date of determination of the shareholders entitled to receive such
dividend or distribution, to that price determined by multiplying the Exercise
Price in effect immediately prior to such date of determination by a fraction
(i) the numerator of which shall be the total number of the Common Stock
outstanding immediately prior to such dividend or distribution, and (ii) the
denominator of which shall be the total number of shares of the Common Stock
outstanding immediately after such dividend or distribution.
(e) Adjustment of Number of Shares. Upon each adjustment in the
Exercise 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 Exercise Price by
a fraction (i) the numerator of which shall be the Exercise Price immediately
prior to such adjustment, and (ii) the denominator of which shall be the
Exercise Price immediately after such adjustment.
6. Transferability. The Holder hereby acknowledges that neither this
Warrant nor any of the securities that may be acquired upon exercise of this
Warrant have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), or under the securities laws of any state. The Holder
acknowledges that, upon exercise of this Warrant, the securities to be issued
upon such exercise may come under applicable federal and state securities (or
other) laws requiring registration, qualification or approval of governmental
authorities before such securities may be validly issued or delivered upon
notice of such exercise. Except as otherwise expressly provided in Section 7
hereof, the Company's sole obligation to any Holder upon exercise hereof shall
be to use its best efforts to obtain exemptions from registration or
qualification for the issuance of such securities under applicable state and
federal securities (or other) laws, and the Holder further agrees that the
issuance of such securities shall be deferred until such exemptions shall have
been obtained. With respect to any such securities, this Warrant may not be
exercised by, and securities shall not be issued to, any Holder in any state in
which such exercise would be unlawful. The Holder agrees that the Company may
place such legend or legends on certificates representing securities issued upon
exercise of this Warrant as the Company may reasonably deem necessary to comply
with applicable state and federal securities laws for the issuance of such
securities. The provisions of this Section shall apply to the transfer of this
Warrant and the shares of Common Stock purchasable upon exercise of this
Warrant.
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7. Registration Right.
(a) "Piggy-Back" Rights. If the Company shall determine to register
for its own account or the account of others under the Securities Act (including
(1) in connection with a public offering by the Company or (ii) a demand for
registration made by any stockholder(s) of the Company entitled to demand such
registration) any of its shares of Common Stock (other than on Form S-4 or Form
S-8 or their then equivalents relating to shares of Common Stock to be issued
solely in connection with any acquisition of an entity or business or shares of
Common Stock issuable in connection with stock option or other employee benefit
plans), it shall send to the Holder written notice of such determination and if,
within 30 days after the mailing of such notice, the Holder shall so request in
writing, the Company shall use its best efforts to include in such registration
statement all or any part of the Shares such Holder requests to be registered.
The Company shall have the right to postpone or withdraw any registration
effected pursuant to this Section 7 without any obligation to the Holder.
(b) Underwritten Offerings. If the registration of which the
Company gives notice is for a registered public offering involving an
underwriting, the Company shall so advise the Holder as a part of the written
notice given pursuant to this Section. In such event, the right of the Holder to
registration pursuant to this Section shall be conditioned upon the Holder's
participation in such underwriting and the inclusion of such Holder's Shares in
the underwriting to the extent provided herein. The Holder intending to
distribute Shares through such underwriting shall (together with the Company and
the other holders of securities of the Company with registration rights to
participate therein distributing their securities through such underwriting)
enter into an underwriting agreement in customary form with the representative
of the underwriter or underwriters selected by the Company or the stockholders
effecting such registration.
(c) Limitation on Number of Shares Included in Registration Statement.
Notwithstanding any other provision of this Section, if the managing underwriter
shall impose a limitation on the number of shares of such Common Stock which may
be included in the registration statement as to which the Holder has elected to
exercise the piggy-back rights granted pursuant to this Section because in such
underwriter's reasonable judgment, such limitation is necessary to effect an
orderly public distribution, the number of shares to be included in the
underwriting or registration shall be allocated as set forth in subsection (d)
below. If the Holder does not agree to the terms of any such customary
underwriting agreement, such the Holder shall be excluded therefrom by written
notice from the Company or the underwriter. Any Shares excluded or withdrawn
from such underwriting shall be withdrawn from such registration.
(d) Cut-backs in "Piggy-Back" Registrations. For purposes of this
Section, in any circumstance in which all of the Shares and other shares of
Common Stock or other securities of the Company (including shares of Common
Stock issued or issuable upon conversion of any outstanding securities of the
Company) with registration rights (the "Other Shares") requested to be included
in a registration on behalf of other selling securityholders cannot be so
included as a result of limitations of the aggregate number of Shares and Other
-5-
Shares that may be so included, the number of Shares and Other Shares that may
be so included shall be allocated first to the Company for securities being sold
for its own account, or if such registration is a demand registration initiated
by the Company on behalf of any other holders of demand registration rights, (i)
first to such securityholders pro raw based upon their total ownership of the
aggregate number of shares requested to be included in such registration by the
holders of demand registration rights, (ii) second to all holders of the Common
Stock, including the Holder, who timely exercised their piggy-back registration
rights pro rata based upon their total ownership of the aggregate number of
shares requested to be included in such registration by the holders of
piggy-back registration rights and (ii) thereafter to the Company for securities
being sold for its own account. The Company shall not limit the number of Shares
to be included in a registration pursuant to this Warrant in order to include
shares held by stockholders with no registration rights.
8. Notice of Adjustments. Whenever any Exercise Price shall be adjusted
pursuant to Section 5 hereof, the Company shall issue a certificate signed by
its Chief Financial Officer 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 Exercise Price or Exercise Prices after giving
effect to such adjustment, and shall cause a copy of such certificate to be
mailed (by first class mail, postage prepaid) to the Holder of this Warrant.
9. Fractional Shares. No fractional shares of the Common Stock shall
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 Exercise Price then in effect.
10. Prior Notice of Certain Events. The Company shall give the Holder
of this Warrant prior written notice of any of the following transactions: (a)
any consolidation, merger or other corporate reorganization involving the
Company; (b) any transaction or series of related transactions by the Company in
which in excess of 50% of the Company's voting power is transferred; (c) any
reclassification of the Common Stock; or (d) a sale of all or substantially all
of the assets of the Company. Such notice shall be given to the Holder not later
than the earlier of (x) 20 days prior to the consummation of the transaction, or
(y) 15 days prior to the record date for shareholders entitled to vote on or
participate in the transaction. Such notice shall provide the Holder with a
description of the transaction. The Holder may, by so stating in its notice of
exercise, make any exercise of its rights under this Warrant to purchase Shares
for the Exercise Price effective immediately prior to but conditional upon, the
consummation of any such transaction.
11. No Rights of Shareholders. No Holder of this Warrant shall be
entitled to vote or receive dividends or be deemed the holder of Common Stock or
any other securities of the Company which may at any time be issuable on the
exercise thereof 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 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 give or withhold consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock, change of par
value or change of stock to no par value, consolidation, merger, conveyance
-6-
or otherwise) or to receive notice of meetings, or to receive dividends or
subscription rights or otherwise until the Warrant shall have been exercised as
provided herein. Immediately upon any exercise of this Warrant, and without
waiting for the certificates for such Shares to be issued and delivered, the
Holder shall be deemed to be the record holder of, and to have all rights of a
shareholder with respect to, the Shares issuable upon such exercise.
12. Notices. All notices and other communications from the Company to
the Holder of this Warrant shall be mailed by first class registered or
certified mail, postage prepaid, or sent by telecopier, facsimile machine or
telex to such address as may have been furnished to the Company in writing by
such Holder or, until any such Holder furnishes to the Company an address, then
to, and at the address of, the last Holder of this Warrant who has so furnished
an address to the Company.
13. Transfer. Subject to the provisions of this Warrant, including
without limitation the provisions of Section 6 hereof, this Warrant and all
rights hereunder are transferable, in whole or in part, at the office or agency
of the Company by the registered Holder thereof in person or by a duly
authorized attorney, upon surrender of this Warrant together with an Assignment
in the form attached hereto as Exhibit B properly endorsed. Until transfer
hereof on the registration books of the Company, the Company may treat the
registered Holder hereof as the owner hereof for all purposes. Any transferee of
this Warrant and the rights hereunder, by acceptance thereof, agrees to be bound
by all of the terms and provisions of this Warrant and to assume all of the
obligations of a Holder hereunder.
14. Miscellaneous. In case any provision of this Warrant shall be
invalid, illegal or unenforceable, or partially invalid, illegal or
unenforceable, the provision shall be enforced to the fullest extent, if any,
that it may legally be enforced and the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
This Warrant and any term hereof may be changed, a waived, discharged or
terminated only by a statement in writing signed by the party against which
enforcement of such change, waiver, discharge or termination is sought. This
Warrant constitutes the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior agreements. This Warrant shall be
governed by and construed in accordance with the domestic substantive laws (and
not the conflict of law rules) of The Commonwealth of Massachusetts. The
headings in this Warrant are for purposes of reference only, and shall not limit
or otherwise affect any of the terms hereof. This Warrant shall take effect as
an instrument under seal.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its duly authorized officer as of this 10th day of October, 2000.
ORGANOGENESIS INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxxx, President
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EXHIBIT A
NOTICE OF EXERCISE
TO: ORGANOGENESIS INC.
000 Xxx Xxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
1. The undersigned hereby irrevocably elects to purchase ____________ Shares
of the Common Stock of ORGANOGENESIS INC. pursuant to the terms and conditions
of the attached Warrant, and either
(a) tenders herewith the Exercise Price in the amount of $_______ in
full payment of such Shares,
OR
(b) elects to utilize the "net issue election" method of exercise
provided under subsection 3(b)(iii) of the attached Warrant, in
which case the calculation of the number of Shares to be issued
to the Holder shall be determined in accordance with the formula
set forth in subsection 3(b)(iii) of the attached Warrant, where
WS = SP x (FMV-EP) results in issuance of Shares of Common Stock
-----------------
FMV
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to them in the attached Warrant.
2. Please issue a certificate or certificates representing said shares of the
Common Stock in the name of the undersigned or in such other name as is
specified below:
----------------------------
(Name)
----------------------------
(Name)
----------------------------
(Name)
3. The undersigned represents that the aforesaid shares of the Common Stock
are being acquired solely for the undersigned's own account (or a trust account
if the holder is a trust) and not as a nominee for any other party, for
investment only and not with a view toward the resale or distribution thereof
and that the undersigned has no present intention of reselling, granting any
participation in or otherwise distributing such shares.
Date:____________________ By:_______________________________________
(Signature must conform in all respects to
name of Holder as specified on the face of
the Warrant)
A-1
EXHIBIT B
FORM OF ASSIGNMENT
The undersigned holder of this Warrant hereby sells, assigns and
transfers to ______________________________ all of the rights of the undersigned
under this Warrant with respect to ____________________________________) shares
of the Common Stock of ORGANOGENESIS INC. and requests that a new Warrant of
like tenor evidencing this assignment be issued and delivered to
____________________________________ with an address at
______________________________________________________.
By:__________________________
(Signature must conform in all respects to name of
Holder as specified on the face of the Warrant)
B-1
