Exhibit 4.4
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HEMASURE INC.
AND
SEPRACOR INC.
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WARRANT AGREEMENT
Dated as of September 15, 1998
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728537.3
WARRANT AGREEMENT, dated as of September 15, 1998 (the "Agreement"),
between HEMASURE INC., a Delaware corporation ("HemaSure"), and SEPRACOR INC., a
Delaware corporation (the "Holder").
W I T N E S S E T H:
WHEREAS, HemaSure and the Holder are parties to a Revolving Credit
Arrangement (the "RCA") pursuant to which the Holder has guaranteed the payment
by the Company of all unpaid balances outstanding under the RCA at the end of
the term of the RCA; and
WHEREAS, in consideration of the Holder's guarantee under the RCA,
HemaSure agreed to issue to the Holder 1,700,000 warrants (individually a
"Warrant," and collectively, the "Warrants"), to purchase up to an aggregate of
1,700,000 shares of common stock, $.01 par value per share, of HemaSure ("Common
Stock"), upon the terms and conditions as set forth below.
NOW, THEREFORE, in consideration of these premises, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Grant. The Holder is hereby granted the right to purchase (i)
1,000,000 shares of Common Stock, at an exercise price of $0.69 per share (the
"Exercise Price") of Common Stock, at any time prior to 5:00 p.m., New York City
time on September 14, 2003, and (ii) 700,000 shares of Common Stock, at the
Exercise Price, at any time following the date, if any, that the Company's
indebtedness for principal amounts borrowed under the RCA exceeds $3,000,000, in
each case, subject to the terms and conditions of this Agreement.
2. Warrant Certificate. The warrant certificate (the "Warrant
Certificate") to be delivered pursuant to this Agreement shall be in the form
set forth in Exhibit A attached hereto, and made a part hereof, with such
appropriate insertions, omissions, substitutions, and other variations as
required or permitted by this Agreement.
3. Exercise of Warrants. The Warrants are exercisable at the aggregate
Exercise Price for the number of Warrants so exercised at any time prior to 5:00
p.m. New York City time on September 14, 2003, subject to adjustment as provided
in Section 7 hereof. Payment of such Exercise Price shall be made, at the option
of the Holder specified in its notice of exercise, (i) by wire transfer or by
certified or official bank check payable to the order of the Company in
immediately available funds in lawful money of the United States of America; or
(ii) by reducing the number of shares of Common Stock issuable to the Holder by
a number of shares of Common Stock that have a value equal to the Exercise Price
which otherwise would have been paid. For the purpose of any exercise pursuant
to the previous sentence, the value of a share of Common Stock shall be the last
reported sale price of the Common Stock on the OTC Bulletin Board, or any other
interdealer quotation system on which the Common Stock is included for
quotation, or, if none, the fair market value of such shares as reasonably
determined by the Board of Directors of the Company. Upon surrender of a Warrant
Certificate with the annexed Form of Election to Purchase duly executed,
together with payment of the Exercise Price for the shares of Common Stock
purchased, if applicable, at HemaSure's principal offices located at 000 Xxxxx
Xxxxx, Xxxxxxxxxxx, XX 00000, the Holder shall be entitled to receive a
certificate or certificates for the shares of Common
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728537.3
Stock so purchased. The purchase rights represented by the Warrant Certificate
are exercisable at the option of the Holder thereof, in whole or in part (but
not as to fractional shares of the Common Stock underlying the Warrants), but in
no event for less than 25,000 shares at any one time. In the case of the
purchase of less than all the shares of Common Stock purchasable under any
Warrant Certificate, HemaSure shall cancel said Warrant Certificate upon the
surrender thereof and shall execute and deliver a new Warrant Certificate of
like tenor for the balance of the shares of Common Stock purchasable thereunder.
4. Issuance of Certificates. Upon the exercise of the Warrants, the
issuance of certificates for shares of Common Stock or other securities,
properties or rights underlying such Warrants shall be made forthwith (and in
any event within ten (10) business days thereafter) without charge to the Holder
including, without limitation, any tax which may be payable in respect of the
issuance thereof, and such certificates shall be issued in the name of, or in
such names as may be directed by, the Holder thereof; provided, however, that
HemaSure 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 such certificates in a
name other than that of the Holder, and HemaSure shall not be required to issue
or deliver such certificates unless or until the person or persons requesting
the issuance thereof shall have paid to HemaSure the amount of such tax or shall
have established to the satisfaction of HemaSure that such tax has been paid.
The Warrant Certificate and the certificates representing the Shares
shall be executed on behalf of HemaSure by the manual or facsimile signature of
the then present Chairman or Vice Chairman of the Board of Directors or
President or Chief Executive Officer or Vice President of HemaSure under its
corporate seal reproduced thereon, attested to by the manual or facsimile
signature of the then present Secretary or Assistant Secretary of HemaSure. The
Warrant Certificate shall be dated the date of execution by HemaSure upon
initial issuance, division, exchange, substitution or transfer.
5. Restriction on Transfer of Warrants. The Holder of the Warrant
Certificate, by its acceptance thereof, covenants and agrees:
(i) that the Warrants and the shares of Common Stock issuable on
exercise of the Warrants (the "Shares") are being acquired as an
investment and not with a view to the distribution thereof;
(ii) that it understands that neither the Warrants nor the Shares
have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance on an exemption therefrom for
transactions not involving any public offering, and that neither the
Warrants nor the Shares have been approved or disapproved by the
United States Securities and Exchange Commission (the "Commission") or
by any other Federal or state agency;
(iii) it understands that neither the Warrants nor the Shares can
be sold, transferred or assigned unless registered by HemaSure
pursuant to the Securities Act and any applicable state securities
laws, or unless an exemption therefrom is available, and, accordingly,
it may not be possible for the undersigned to liquidate its investment
in the Warrants and the Shares, and it agrees not to sell, assign or
otherwise transfer or dispose of the Warrants or the Shares unless
such Warrants or Shares, as applicable, have been so registered or an
exemption from registration is available;
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728537.3
(iv) the Holder hereby acknowledges that all documents, records
and books pertaining to HemaSure's business have been made available
to the Holder and the Holder's attorney and/or accountant and/or
representative. The Holder has had an opportunity to ask questions and
receive answers from HemaSure concerning the business and assets of
HemaSure and all such questions have been answered to the full
satisfaction of the Holder; and
(v) it is an accredited investor, as that term is defined in
Regulation D under the Securities Act.
6. Securities Act of 1933; Legends. Upon exercise, in part or in
whole, of the Warrants, certificates representing the Shares underlying the
Warrant and any of the other securities issuable upon exercise of the Warrant
(the "Warrant Shares") shall bear the following legend only if such Warrant
Shares are not then registered pursuant to an effective registration statement
under the Act:
The securities represented by this certificate have not
been registered under the Securities Act of 1933, as
amended (the "Act"), and may not be offered or sold
except pursuant to (i) an effective registration
statement under the Act, (ii) to the extent applicable,
Rule 144 under the Act (or any similar rule under such
Act relating to the disposition of securities), or
(iii) an opinion of counsel, if such opinion shall be
reasonably satisfactory to counsel to the issuer, that
an exemption from registration under such Act is
available.
7. Subdivision and Combination. In case HemaSure shall at any time
subdivide or combine the outstanding shares of Common Stock, the Exercise Price
shall forthwith be proportionately decreased in the case of subdivision or
increased in the case of combination, and the number of shares subject to the
Warrant shall be proportionally increased or decreased, as the case may be.
8. Merger or Consolidation. In case of any consolidation of HemaSure
with, or merger of HemaSure with, or merger of HemaSure into, another
corporation (other than a consolidation or merger which does not result in any
reclassification or change of the outstanding Common Stock), the corporation
formed by such consolidation or merger shall execute and deliver to the Holder a
supplemental warrant agreement having terms as nearly substantively equivalent
as practical to the terms hereof, providing that the Holder of each Warrant then
outstanding or to be outstanding shall have the right thereafter (until the
expiration of such Warrant) to receive, upon exercise of such warrant, the kind
and amount of shares of stock and other securities and property receivable upon
such consolidation or merger, by the Holder of the number of shares of Common
Stock of HemaSure for which such warrant might have been exercised immediately
prior to such consolidation, merger, sale or transfer. The above provision of
this subsection shall similarly apply to successive consolidations or mergers.
9. Exchange and Replacement of Warrant Certificates. Each Warrant
Certificate is exchangeable without expense, upon the surrender thereof by the
Holder at the principal executive office of HemaSure, for a new Warrant
Certificate of like tenor and date representing in the aggregate the right to
purchase the same number of Warrant Shares in such denominations as shall be
designated by the Holder thereof at the time of such surrender.
Upon receipt by HemaSure of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of any Warrant Certificate, and, in
case of loss, theft or destruction, of an
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indemnity agreement reasonably satisfactory to it, and upon surrender and
cancellation of the Warrants, if mutilated, HemaSure will make and deliver a new
Warrant Certificate of like tenor, in lieu thereof.
10. Elimination of Fractional Interests. HemaSure shall not be
required to issue certificates representing fractions of shares of Common Stock
upon the exercise of the Warrants, nor shall it be required to issue scrip or
pay cash in lieu of fractional interests, it being the intent of the parties
that all fractional interests shall be eliminated by rounding any fraction up to
the nearest whole number of shares of Common Stock or other securities,
properties or rights.
11. Reservation of Securities. HemaSure shall at all times reserve and
keep available out of its authorized shares of Common Stock, solely for the
purpose of issuance upon the exercise of the Warrants, such number of shares of
Common Stock or other securities, properties or rights as shall be issuable upon
the exercise thereof.
12. Notices to the Holder. Nothing contained in this Agreement shall
be construed as conferring upon the Holder the right to vote or to consent or to
receive notice as a stockholder in respect of any meetings of stockholders for
the election of directors or any other matter, or as having any rights
whatsoever as a stockholder of HemaSure. If, however, at any time prior to the
expiration of the Warrants and their exercise, any of the following events shall
occur:
(a) HemaSure shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend
or distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained
earnings, as indicated by the accounting treatment of such dividend or
distribution on the books of HemaSure;
(b) HemaSure shall offer to all of the holders of its Common
Stock any additional shares of capital stock of HemaSure or securities
convertible into or exchangeable for shares of capital stock of
HemaSure, or any option, right or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of HemaSure (other
than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety
shall be proposed;
then, in any one or more of said events, HemaSure shall give written notice of
such event at least fifteen (15) days prior to the date fixed as a record date
or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall specify
such record date or the date of closing the transfer books, as the case may be.
Failure to give such notice or any defect therein shall not affect the validity
of any action taken in connection with the declaration or payment of any such
dividend, or the issuance of any convertible or exchangeable securities, or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
13. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly made and
sent when delivered, or mailed by registered or certified mail, return receipt
requested:
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(a) If to the Holder, to the address of the Holder as shown on
the books of HemaSure; or
(b) If to HemaSure, to the address set forth in Section 3 hereof
or to such other address as HemaSure may designate by notice to the
Holder.
14. [Intentionally Omitted].
15. Successors. All the covenants and provisions of this Agreement
shall be binding upon and inure to the benefit of HemaSure, the Holder and their
respective successors and assigns hereunder.
16. Termination. This Agreement shall terminate in its entirety at
5:00 p.m., New York City time, on September 14, 2003.
17. Governing Law; Submission to Jurisdiction.
(a) This Agreement and each Warrant Certificate issued hereunder shall
be deemed to be a contract made under the laws of the State of Delaware and for
all purposes shall be construed in accordance with the laws of said State
without giving effect to the rules of said State governing the conflicts of
laws.
(b) HemaSure and the Holder hereby agree that any action, proceeding
or claim against it arising out of, or relating in any way to, this Agreement
shall be brought and enforced in the courts of the State of Delaware or of the
United States of America for the District of Delaware, and irrevocably submits
to such jurisdiction, which jurisdiction shall be exclusive. HemaSure and the
Holder hereby irrevocably waive any objection to such exclusive jurisdiction or
inconvenient forum. Any such process or summons to be served upon HemaSure and
the Holder (at the option of the party bringing such action, proceeding or
claim) may be served by transmitting a copy thereof, by registered or certified
mail, return receipt requested, postage prepaid, addressed to it at the address
set forth in Section 15 hereof. Such mailing shall be deemed personal service
and shall be legal and binding upon the party so served in any action,
proceeding or claim. HemaSure and the Holder agree that the prevailing
party(ies) in any such action or proceeding shall be entitled to recover from
the other party(ies) all of its/their reasonable legal costs and expenses
relating to such action or proceeding and/or incurred in connection with the
preparation therefor.
18. Entire Agreement; Modification. This Agreement contains the entire
understanding between the parties hereto with respect to the subject matter
hereof and may not be modified or amended except by a writing duly signed by the
party against whom enforcement of the modification or amendment is sought.
19. Severability. If any provision of this Agreement shall be held to
be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provision of this Agreement.
20. Captions. The caption headings of the Sections of this Agreement
are for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive effect.
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21. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than HemaSure or the Holder
any legal or equitable right, remedy or claim under this Agreement.
22. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument. Photocopies or facsimiles of executed copies of this Agreement
may be treated as originals.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
HEMASURE INC.
By: /s/Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Senior VP Finance and
Administration
SEPRACOR INC.
By: /s/Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Senior VP Finance and
Administration
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728537.3
