Exhibit 10.2
Exhibit A - to the Securities Purchase Agreement
FORM OF WARRANT
NEITHER THIS WARRANT NOR ANY OF THE SECURITIES INTO WHICH THIS WARRANT MAY BE
EXERCISED HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD,
PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS, OR ANY OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY
AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED. THE SECURITIES HAVE NOT
BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION.
Warrant No. ______ Number Of Shares: _____
Date of Issuance: June 27, 2003 (subject to adjustment)
WARRANT TO PURCHASE SHARES
OF COMMON STOCK OF
ORTHOVITA, INC.
This Warrant is issued to _______________, or its registered assigns
("Investor"), pursuant to that certain Securities Purchase Agreement dated as of
June 26, 2003 between Orthovita, Inc., a Pennsylvania corporation ("Orthovita"),
and Investor (the "Purchase Agreement") and is subject to the terms and
conditions of the Purchase Agreement.
1. Exercise of Warrant. Subject to the terms and conditions herein set
forth, upon surrender of this Warrant at the principal office of Orthovita and
upon payment of the Warrant Price (as defined below) by wire transfer to
Orthovita or cashiers check drawn on a United States bank made to the order of
Orthovita, Investor is entitled to purchase from Orthovita, at any time after
the date hereof and on or before June 26, 2008 (the "Expiration Date"), up to
______ shares (as adjusted from time to time pursuant to the provisions of this
Warrant) of common stock, par value $0.01 per share (the "Common Stock"), of
Orthovita (the "Warrant Shares"), at a purchase price of $4.00 per share (the
"Warrant Price").
2. Certain Adjustments. So long as this Warrant is outstanding:
(a) Mergers or Consolidations. If at any time after the date hereof
there shall be a capital reorganization (other than a combination or subdivision
of Warrant Shares otherwise provided for herein) (a "Reorganization"), or a
merger or consolidation of Orthovita with another corporation (other than a
merger with another corporation in which Orthovita is a continuing corporation
and which does not result in any reclassification or change of outstanding
securities issuable upon exercise of this Warrant or a merger effected
exclusively for the purpose of changing the domicile of Orthovita ) (a
"Merger"), then, as a part of such Reorganization or Merger, lawful provision
shall be made so that Investor shall thereafter be entitled to receive upon
exercise of this Warrant, during the period specified in this Warrant and upon
payment of the Warrant Price, the number of shares of stock or other securities
or property of Orthovita or the successor corporation resulting from such
Reorganization or Merger, to which a holder of the Common Stock deliverable upon
exercise of this Warrant would have been entitled under the provisions of the
agreement in such Reorganization or Merger if this Warrant had been exercised
immediately before that Reorganization or Merger. In any such case, appropriate
adjustment (as determined in good faith by Orthovita's Board of Directors) shall
be made in the application of the provisions of this Warrant with respect to the
rights and interests of Investor after the Reorganization or Merger to the end
that the provisions
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of this Warrant (including adjustment of the Warrant Price then in effect and
the number of shares of Warrant Shares) shall be applicable after that event, as
near as reasonably may be, in relation to any shares or other property
deliverable after that event upon exercise of this Warrant.
(b) Splits and Subdivisions; Dividends. In the event Orthovita
should at any time or from time to time fix a record date for the effectuation
of a split or subdivision of the outstanding shares of Common Stock or the
determination of the holders of Common Stock entitled to receive a dividend or
other distribution payable in additional shares of Common Stock or other
securities or rights convertible into, or entitling the holder thereof to
receive directly or indirectly, additional shares of Common Stock (hereinafter
referred to as the "Common Stock Equivalents") without payment of any
consideration by such holder for the additional shares of Common Stock or Common
Stock Equivalents (including the additional shares of Common Stock issuable upon
conversion or exercise thereof), then, as of such record date (or the date of
such distribution, split or subdivision if no record date is fixed), the per
share Warrant Price shall be appropriately decreased and the number of shares of
Warrant Shares shall be appropriately increased in proportion to such increase
(or potential increase) of outstanding shares.
(c) Combination of Shares. If the number of shares of Common Stock
outstanding at any time after the date hereof is decreased by a combination of
the outstanding shares of Common Stock, the per share Warrant Price shall be
appropriately increased and the number of shares of Warrant Shares shall be
appropriately decreased in proportion to such decrease in outstanding shares.
(d) Adjustments for Other Distributions. In the event Orthovita
shall declare a distribution payable in securities of other persons, evidences
of indebtedness issued by Orthovita or other persons, assets (excluding cash
dividends paid out of net profits) or options or rights not referred to in
Section 2(b), then, in each such case for the purpose of this Section 2(d), upon
exercise of this Warrant the holder hereof shall be entitled to a proportionate
share of any such distribution as though such holder was the holder of the
number of shares of Common Stock of Orthovita into which this Warrant may be
exercised as of the record date fixed for the determination of the holders of
Common Stock of Orthovita entitled to receive such distribution.
(e) Adjustments for Dilutive Issuances. Except as otherwise provided
in Section 2(f) and Section 2(g) hereof, if prior to the Expiration Date, the
Company issues or sells, or in accordance with Section 2(f) is deemed to have
issued or sold, any shares of Common Stock for no consideration (other than a
stock split or stock dividend) or for a consideration per share less than the
Warrant Price (as then in effect) (a "Dilutive Issuance"), then effective
immediately upon such Dilutive Issuance (which shall include the actual number
of shares outstanding plus all shares issuable upon the conversion or exercise
of all outstanding convertible securities, warrants and options), the adjusted
Warrant Price will be equal to the quotient obtained by dividing (A) the then
current Warrant Price multiplied by the sum of (i) the number of shares of
Common Stock outstanding immediately prior to the Dilutive Issuance plus (ii)
the quotient of the aggregate consideration, calculated as set forth in Section
2(f), received by the Company upon such Dilutive Issuance divided by the then
current Warrant Price; by (B) the total number of shares of Common Stock deemed
outstanding immediately after the Dilutive Issuance which shall include the
actual number of shares outstanding plus all shares issuable upon the conversion
or exercise of all outstanding convertible securities, warrants and options.
(f) Effect on Exercise Price of Certain Events. For purposes of
determining the adjusted Exercise Price under Section 2(e), the following will
apply:
(i) Issuance of Rights, Options or Convertible Securities.
Subject to Section 2(f)(ii) below, if, after the date hereof, the Company issues
or grants any warrants, rights or options, whether or not immediately
exercisable, to subscribe for or to purchase Common Stock or other securities
exercisable, convertible into or exchangeable for Common Stock ("Convertible
Securities") (such warrants, rights and options to purchase Common Stock or
Convertible Securities are hereinafter referred to as "Options"), and the price
per share for which Common Stock is purchasable or issuable upon the exercise of
such Options is less than the Warrant Price (as then in effect) on the date of
issuance of such Option or direct stock grant (collectively, "Below Market
Options"), then the maximum total number of shares of Common Stock issuable upon
the exercise of all such Below Market Options (assuming full exercise,
conversion or exchange of Convertible Securities, if applicable) will, as of the
date of the issuance or grant of such Below Market Options, be deemed to be
outstanding and to have been issued and sold by the Company for such price per
share. For purposes of the preceding sentence, the price per share for which
Common Stock is issuable upon the exercise of such Below Market Options is
determined by dividing (i) the total
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amount, if any, received or receivable by the Company as consideration for the
issuance or sale of all such Below Market Options, plus the minimum aggregate
amount of additional consideration, if any, payable to the Company upon the
exercise of all such Below Market Options, plus, in the case of Convertible
Securities issuable upon the exercise of such Below Market Options, the minimum
aggregate amount of additional consideration payable upon the exercise,
conversion or exchange thereof at the time such Convertible Securities first
become exercisable, convertible or exchangeable, by (ii) the maximum total
number of shares of Common Stock issuable upon the exercise of all such Below
Market Options (assuming full conversion of Convertible Securities, if
applicable). No further adjustment to the Warrant Price will be made upon the
exercise of such Below Market Options or upon the exercise, conversion or
exchange of Convertible Securities issuable upon exercise of such Below Market
Options.
(ii) Issuance of Convertible Securities.
If the Company issues or sells any Convertible
Securities, whether or not immediately convertible (other than where the same
are issuable upon the exercise of Options) and the price per share for which
Common Stock is issuable upon such exercise, conversion or exchange (as
determined pursuant to Section 2(f)(i) if applicable) is less than the Warrant
Price (as then in effect) on the date of issuance of such Convertible Security,
then the maximum total number of shares of Common Stock issuable upon the
exercise, conversion or exchange of all such Convertible Securities will, as of
the date of the issuance of such Convertible Securities, be deemed to be
outstanding and to have been issued and sold by the Company for such price per
share. For the purposes of the preceding sentence, the price per share for which
Common Stock is issuable upon such exercise, conversion or exchange is
determined by dividing (i) the total amount, if any, received or receivable by
the Company as consideration for the issuance or sale of all such Convertible
Securities, plus the minimum aggregate amount of additional consideration, if
any, payable to the Company upon the exercise, conversion or exchange thereof at
the time such Convertible Securities first become exercisable, convertible or
exchangeable, by (ii) the maximum total number of shares of Common Stock
issuable upon the exercise, conversion or exchange of all such Convertible
Securities. No further adjustment to the Warrant Price will be made upon the
actual issuances of such Common Stock upon exercise, conversion or exchange of
such Convertible Securities.
(iii) Change in Option Price or Conversion Rate. If there is a
change at any time in (i) the amount of additional consideration payable to the
Company upon the exercise of any Options; (ii) the amount of additional
consideration, if any, payable to the Company upon the exercise, conversion or
exchange of any Convertible Securities, or (iii) the rate at which any
Convertible Securities are convertible into or exchangeable for Common Stock
(other than under or by reason of provisions designed to protect against
dilution), the Warrant Price in effect at such time shall be adjusted to the
Warrant Price which would have been in effect had such Options or Convertible
Securities still outstanding provided for such changed additional consideration
or changed conversion rate, as the case may be, at the time initially granted,
issued or sold.
(iv) Treatment of Expired Options and Unexercised Convertible
Securities. If, in any case, the total number of shares of Common Stock issuable
upon exercise of any Options or upon exercise, conversion or exchange of any
Convertible Securities is not, in fact, issued and the rights to exercise such
Option or to exercise, convert or exchange such Convertible Securities shall
have expired or terminated, the Warrant Price then in effect will be readjusted
to the Warrant Price which would have been in effect at the time of such
expiration or termination had such Options or Convertible Securities, to the
extent outstanding immediately prior to such expiration or termination (other
than in respect of the actual number of shares of Common Stock issued upon
exercise or conversion thereof), never been issued.
(v) Calculation of Consideration Received. If any Common
Stock, Options or Convertible Securities are issued, granted or sold for cash,
the consideration received therefor for purposes of this Warrant will be the
amount received by the Company therefor, before deduction of reasonable
commissions, underwriting discounts or allowances or other reasonable expenses
paid or incurred by the Company in connection with such issuance, grant or sale.
In case any Common Stock, Options or Convertible Securities are issued or sold
for a consideration part or all of which shall be other than cash, the amount of
the consideration other than cash received by the Company will be the fair
market value of such consideration except where such consideration consists of
freely-tradable securities, in which case the amount of consideration received
by the Company will be the market
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price thereof as of the date of receipt. The fair market value of any
consideration other than cash or securities will be determined in the good faith
reasonable business judgment of the Board of Directors.
(g) Exceptions to Adjustment of Exercise Price. No adjustment to the
Warrant Price or the number of Warrant Shares issuable pursuant to this Warrant
will be made under Section 2(e) or 2(f) above as a result of the issuance of any
securities of the Company issued pursuant to (i) the grant or exercise of any
stock or options which may hereafter be granted or exercised under any employee,
consultant or director benefit plan of the Company now existing or implemented
in the future, so long as the issuance of such stock or options is approved by a
majority of the non-employee members of the Company's Board of Directors or a
majority of the members of a committee of non-employee directors established for
such purpose, (ii) any options, warrant, preferred stock, convertible securities
or rights or agreements to purchase securities of the Company (not including
equity lines of credit) outstanding on the date hereof; (iii) any underwritten
public offerings of equity securities (other than equity lines of credit and
similar transactions); (iv) any equity securities issued for consideration other
than cash pursuant to a merger, consolidation, acquisition or similar business
combination; (v) shares of Common Stock issued in connection with any stock
split, stock dividend or recapitalization by the Company; (vi) shares of Common
Stock issued upon exercise of the Warrants or any warrants issued in connection
with the Securities Purchase Agreements (as defined below); (vii) any equity
securities issued pursuant to any equipment leasing arrangement or debt
financing from a bank or similar financial institution whose primary business is
lending money and not investing in securities; or (viii) any equity securities
(other than equity lines of credit) issued in connection with strategic
transactions involving the Company and other entities, including (A) joint
ventures, manufacturing, marketing or distribution arrangements, (B) technology
transfer or development arrangements; provided, that the primary purpose of such
transaction is not the raising of capital; (ix) an agreement to issue securities
which does not close; (x) any securities issued or issuable under the Securities
Purchase Agreements entered into by and between the Company and certain
investors (including the original holder of this Warrant) on the date of
original issuance of this Warrant (collectively, the "Securities Purchase
Agreements"), pursuant to which such investors agreed to purchase shares of
common stock and common stock purchase warrants from the Company, (xi) any
common stock purchase warrants issued or issuable to the placement agent
described in the Securities Purchase Agreements, or any shares of common stock
issuable thereunder; and (xii) any shares of common stock issued as payment in
kind on the shares of the Company's Series A Convertible Preferred Stock
outstanding on the date hereof.
3. No Fractional Shares. No fractional shares of Warrant Shares will be
issued in connection with any exercise of this Warrant. In lieu of any
fractional shares which would otherwise be issuable, Orthovita shall pay cash
equal to the product of such fraction multiplied by the Fair Market Value of one
share of Warrant Shares. The "Fair Market Value" of a share of Common Stock
shall mean the last reported sale price and, if there are no sales, the last
reported bid price, of the Common Stock on the business day prior to the Date of
Exercise (as defined below) as reported by the Nasdaq National Market or such
other principal exchange or quotation system on which the Common Stock is then
traded or, if the Common Stock is not publicly traded, the price determined in
good faith by Orthovita's Board of Directors.
4. No Shareholder Rights. This Warrant does not entitle Investor to any
voting or other rights as a shareholder of Orthovita (including without
limitation the right to notification of shareholder meetings or the right to
receive any notice or other communication concerning the business and affairs of
Orthovita ) prior to the exercise and payment of the Warrant Price in accordance
with the terms of Sections 1 and 6 hereof.
5. Reservation of Stock. Orthovita covenants that during the period this
Warrant is exercisable, Orthovita will reserve from its authorized and unissued
shares of Common Stock a sufficient number of shares of Common Stock (or other
securities, if applicable) to provide for the issuance of Warrant Shares (or
other securities) upon the exercise of this Warrant. Orthovita agrees that its
issuance of this Warrant shall constitute full authority to its officers who are
charged with the duty of executing stock certificates to execute and issue the
necessary certificates for the Warrant Shares upon the exercise of this Warrant.
All such Warrant Shares shall, upon issuance and payment of the exercise price,
be duly and validly authorized, fully-paid and non-assessable.
6. Mechanics of Exercise. This Warrant may be exercised by the holder
hereof, in whole or in part, by the surrender of this Warrant and the Notice of
Exercise attached hereto as Exhibit A duly completed and executed on behalf of
the holder hereof, at the principal office of Orthovita together with payment in
full of the Warrant Price then in effect with respect to the number of shares of
Warrant Shares as to which the Warrant is being exercised.
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The date on which the Company receives this Warrant, duly completed and executed
Notice of Exercise and payment in full of the Warrant Price is referred to
herein as the "Date of Exercise"; provided that if the Company receives such
items on a day that is not a business day or after 5:30 p.m. Eastern Time on a
business day, then the Date of Exercise shall be the next business day, This
Warrant shall be deemed to have been exercised immediately prior to the close of
business on the Date of Exercise as provided above, and the person entitled to
receive the Warrant Shares issuable upon such exercise shall be treated for all
purposes as the holder of such shares of record as of the close of business on
such date. As promptly as practicable on or after such date, Orthovita at its
expense shall cause to be issued and delivered to the person or persons entitled
to receive the same a certificate or certificates for the number of full shares
of Warrant Shares issuable upon such exercise, together with cash in lieu of any
fraction of a share as provided above. The shares of Warrant Shares issuable
upon exercise hereof shall, upon their issuance, be validly issued, fully paid
and nonassessable, and free from all preemptive rights, taxes, liens and charges
with respect to the issue thereof. In the event that this Warrant is exercised
in part, Orthovita at its expense will execute and deliver a new Warrant of like
tenor exercisable for the number of shares for which this Warrant may then be
exercised.
If by the third business day after the Date of Exercise the Company fails to
deliver the required number of Warrant Shares in the manner required pursuant to
this Section 6, then the Investor will have the right to rescind such exercise.
If by the third business day after the Date of Exercise the Company fails to
deliver the required number of Warrant Shares in the manner required pursuant to
this Section 6, and if after such third business day and prior to the receipt of
such Warrant Shares, the Investor purchases (in an open market transaction or
otherwise) shares of Common Stock to deliver in satisfaction of a sale by the
Investor of the Warrant Shares which the Investor anticipated receiving upon
such exercise (a "Buy In"), then the Company shall either (1) pay in cash to the
Investor the amount by which (x) the Investor's total purchase price (including
brokerage commissions, if any) for the shares of Common Stock so purchased
exceeds (y) the amount obtained by multiplying (A) the number of Warrant Shares
that the Company was required to deliver to the Investor in connection with the
exercise at issue by (B) the closing bid price of the Common Stock on the date
on which the Investor delivered the Notice of Exercise or (2) at the option of
the Investor, either reinstate the portion of the Warrant and equivalent number
of Warrant Shares for which such exercise was not honored or deliver to the
Investor the number of shares of Common Stock that would have been issued had
the Company timely complied with its exercise and delivery obligations
hereunder. The Investor shall provide the Company written notice indicating the
amounts payable to the Investor in respect of the Buy In. The Company's
obligations to issue and deliver Warrant Shares in accordance with the terms
hereof are absolute and unconditional, irrespective of any action or inaction by
the Investor to enforce the same, any waiver or consent with respect to any
provision hereof, the recovery of any judgment against any person or any action
to enforce the same, or any setoff, counterclaim, recoupment, limitation or
termination, or any breach or alleged breach by the Investor or any other person
of any obligation to the Company or any violation or alleged violation of law by
the Investor or any other person, and irrespective of any other circumstance
which might otherwise limit such obligation of the Company to the Investor in
connection with the issuance of Warrant Shares. Nothing herein shall limit a
Investor's right to pursue any other remedies available to it hereunder, at law
or in equity including, without limitation, a decree of specific performance
and/or injunctive relief with respect to the Company's failure to timely deliver
certificates representing shares of Common Stock upon exercise of the Warrant as
required pursuant to the terms hereof.
7. Certificate of Adjustment. Whenever the Warrant Price or number or type
of securities issuable upon exercise of this Warrant is adjusted, as herein
provided, Orthovita shall, at its expense, promptly deliver to the record holder
of this Warrant a certificate of an officer of Orthovita setting forth the
nature of such adjustment and showing in detail the facts upon which such
adjustment is based.
8. Representations of Investor. As of the date hereof, Investor hereby
confirms the representations and warranties made by Investor in Section 5 of the
Purchase Agreement.
9. Transfer Restrictions. The holder of this Warrant acknowledges that this
Warrant and the Warrant Shares have not been registered under the Securities
Act, and agrees not to offer, sell, pledge, transfer or otherwise dispose of (or
solicit any offers to buy, purchase or otherwise acquire or take a pledge of)
this Warrant or any Warrant Shares issued upon its exercise except in compliance
with the Securities Act, applicable state securities laws and the respective
rules and regulations promulgated thereunder. If, at the time of the surrender
of this Warrant in connection with any transfer of this Warrant or the Warrant
Shares, this Warrant or the Warrant Shares, as applicable, shall not be
registered under the Securities Act and under applicable state securities or
blue sky laws,
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Orthovita may require, as a condition of allowing such transfer that the holder
or transferee of this Warrant or the Warrant Shares as the case may be, furnish
to Orthovita the Notice of Assignment Form attached hereto as Exhibit B and a
written opinion of counsel that is reasonably acceptable to Orthovita to the
effect that such transfer may be made without registration under the Securities
Act and under applicable state securities or blue sky laws, (ii) that the holder
or transferee execute and deliver to Orthovita an investment letter in form and
substance acceptable to Orthovita and (iii) that the transferee be an
"accredited investor" as defined in Rule 501(a) promulgated under the Securities
Act. Each certificate or other instrument for Warrant Shares issued upon the
exercise of this Warrant shall bear a legend substantially to the foregoing
effect. The holder of this Warrant must obtain the prior written consent of
Orthovita in order to transfer Warrants representing the right to purchase fewer
than the lesser of (x) 50,000 Warrant Shares or (y) the number of Warrant Shares
for which this Warrant is then exercisable.
10. Redemption. The Company may, at its option, redeem this Warrant, in
whole or in part, at any time, provided that (i) the volume weighted average
closing price of the Common Stock as reported by Bloomberg, L.P. or any
successor thereof on twenty (20) of any thirty (30) consecutive trading days has
been at least 200% above the Warrant Price and (ii) during the time period
described in clause (i) of this Section 10 and for the Notice Period (as defined
below), all of the Warrant Shares underlying the Warrants to be redeemed are
then registered under an effective registration statement in accordance with the
terms and conditions of Section 7.1 of the Securities Purchase Agreement which
has not been suspended and for which no stop order is in effect, and pursuant to
which the Investor is able to sell such Warrant Shares . The amount payable in
redemption of the rights to purchase the Warrant Shares pursuant to this Section
10 shall be cash equal to $0.01 multiplied by the number of Warrants being
redeemed. The Company must give the Investor at least thirty (30) days' prior
notice (the "Notice Period") (which notice shall include the redemption price,
the redemption date and a statement that until such date, the Warrants may be
exercised in accordance with the terms of this Warrant) in order to exercise its
right of redemption under this Section 10, and the Investor may not exercise
this Warrant after the Notice Period has expired.
11. Notices of Record Date. In the event of:
(a) any taking by Orthovita of a record of the holders of any class
of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend (other than a cash dividend payable out of
earned surplus of Orthovita) or other distribution, or any right to subscribe
for, purchase or otherwise acquire any shares of stock of any class or any other
securities or property, or to receive any other right; or
(b) any Reorganization or Merger; or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of Orthovita,
then and in each such event Orthovita will mail or cause to be mailed to the
holder of this Warrant a notice specifying (i) the date on which any such record
is to be taken for the purpose of such dividend, distribution or right, and
stating the amount and character of such dividend, distribution or right, and
(ii) the date on which any such Reorganization, Merger, dissolution, liquidation
or winding-up is to take place, and the time, if any, as of which the holders of
record of Common Stock (or other securities) shall be entitled to exchange their
shares of Common Stock (or other securities) for securities or other property
deliverable upon such Reorganization, Merger, dissolution, liquidation or
winding-up. Such notice shall be mailed at least ten (10) business days prior to
the date therein specified.
12. Replacement of Warrants. On receipt of evidence reasonably satisfactory
to Orthovita 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 or security reasonably satisfactory in form and amount
to Orthovita or, in the case of any such mutilation, on surrender and
cancellation of such Warrant, Orthovita at its expense will execute and deliver,
in lieu thereof, a new Warrant of like tenor.
13. No Impairment. Except to the extent as may be waived by the holder of
this Warrant, Orthovita will not, by amendment of its charter or through a
Reorganization, Merger, dissolution, sale of assets or any other voluntary
action, avoid or seek to avoid the observance or performance of any of the terms
of this Warrant, but will at all times in good faith assist in the carrying out
of all such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the holder of this Warrant against
impairment.
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14. Saturdays, Sundays, Holidays, Etc. If the last or appointed day for the
taking of any action or the expiration of any right required or granted herein
shall be a Saturday or Sunday or shall be a legal holiday, then such action may
be taken or such right may be exercised on the next succeeding day not a
Saturday, Sunday or legal holiday.
15. Miscellaneous. This Warrant shall be governed by the laws of the State
of New York without regard to principles of conflicts of law. The headings in
this Warrant are for purposes of convenience and reference only, and shall not
be deemed to constitute a part hereof. Neither this Warrant nor any term hereof
may be changed, waived, discharged or terminated orally but only by an
instrument in writing signed by Orthovita and the Investor. All notices and
other communications from Orthovita to the holder of this Warrant shall be
sufficient if in writing and sent by registered or certified mail, domestic or
international courier, or facsimile, return receipt requested, postage or
courier charges prepaid, to the address furnished to Orthovita in writing by
Investor. All such notices and communications shall be effective (i) upon
delivery, if delivered personally, (ii) upon verification of transmittal by
sender, if by facsimile, (iii) five days after deposit in the mail, if by
registered or certified mail (return receipt requested), postage prepaid, or
(iv) on the next business day, if sent by express courier service, and if to
Orthovita, with a copy to Xxxxxxx X. Xxxxxx, Esquire of Xxxxxx, Xxxxx & Bockius
LLP, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000 (facsimile 215.963.5001). The
invalidity or unenforceability of any provision hereof shall in no way affect
the validity or enforceability of any other provisions.
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IN WITNESS WHEREOF, this Warrant to Purchase Common Stock is issued
effective as of this 27th day of June 2003.
ORTHOVITA, INC.
By:
---------------------------------------
Xxxxxx Xxxxxxx, Chief Executive Officer
SIGNATURE PAGE TO THE WARRANT
TO PURCHASE SHARES OF COMMON STOCK
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EXHIBIT A - TO THE FORM OF WARRANT
NOTICE OF INTENT TO EXERCISE
(To be signed only upon exercise of Warrant)
To: ORTHOVITA, INC.
The undersigned, the holder of the attached Warrant, hereby confirms the
representations and warranties set forth in Section 5 of that certain Securities
Purchase Agreement dated as of June __, 2003 and irrevocably elects to exercise
the purchase right represented by such Warrant for, and to purchase thereunder,
______________ (________) shares of Common Stock of Orthovita, Inc. and herewith
makes payment of _________________ Dollars ($_________) therefor and requests
that the certificates for such shares be issued in the name of, and delivered to
___________________________, whose address is
_________________________________________.
DATED:
-------------------------------------------
(Signature must conform in all respects to
name of Investor as specified on the face
of the Warrant)
------------------------------------------
------------------------------------------
(Address)
---------------------------------
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EXHIBIT B - to the Form of Warrant
NOTICE OF ASSIGNMENT FORM
FOR VALUE RECEIVED, ______________________ (the "Assignor") hereby
sells, assigns and transfers all of the rights of the undersigned Assignor under
the attached Warrant with respect to the number of shares of common stock of
Orthovita, Inc. (the "Company") covered thereby set forth below, to the
following "Assignee" and, in connection with such transfer, represents and
warrants to the Company that the transfer is otherwise in compliance with
Section 9 of the Warrant:
NAME OF ASSIGNEE ADDRESS/FAX NUMBER NO. OF SHARES
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Dated: Signature:
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Witness:
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ASSIGNEE ACKNOWLEDGEMENT
The undersigned Assignee acknowledges that it has reviewed the attached
Warrant and by its signature below it hereby represents and warrants that it is
an "accredited investor" as defined in Rule 501(a) of Regulation D promulgated
under the Securities Act of 1933, as amended, and agrees to be bound by the
terms and conditions of the attached Warrant as of the date hereof.
Signature:
By:
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Its:
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Address:
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CONFIDENTIAL
33
