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THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS
AMENDED, OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL (WHICH MAY BE COMPANY COUNSEL)
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER THE SECURITIES ACT OF 1933 OR ANY APPLICABLE STATE SECURITIES LAWS.
WARRANT AGREEMENT
TO PURCHASE SHARES OF THE SERIES E PREFERRED STOCK OF
BIOSTAR, INC.
DATED AS OF MAY 3, 1995 (THE "EFFECTIVE DATE")
WHEREAS, BioStar, Inc., a Delaware corporation (the "Company"), has
entered into a Subordinated Security Agreement dated as of May 3, 1995 (the
"Security Agreement") and a Subordinated Promissory Note the ("Note") dated as
of May 3, 1995 with Comdisco, Inc., a Delaware corporation (the
"Warrantholder"); and
WHEREAS, the Company desires to grant to Warrantholder, in
consideration for such Security Agreement and the Note, the right to purchase
shares of its Preferred Stock;
NOW, THEREFORE, in consideration of the Warrantholder executing and
delivering such Security Agreement and the Note and in consideration of mutual
covenants and agreements contained herein, the Company and Warrantholder agree
as follows:
1. GRANT OF THE RIGHT TO PURCHASE PREFERRED STOCK.
The Company hereby grants to the Warrantholder, and the Warrantholder
is entitled, upon the terms and subject to the conditions hereinafter set
forth, to subscribe to and purchase from the Company 214,285 fully paid and
non-assessable shares of the Company's Series E Preferred Stock ("Preferred
Stock") at a purchase price of $1.75 per share (the "Exercise Price"). The
number and purchase price of such shares are subject to adjustment as provided
in Section 8 hereof.
2. TERM OF THE WARRANT AGREEMENT.
Except as otherwise provided for herein, the term of this Warrant
Agreement and the right to purchase Preferred Stock (or Common Stock in the
event that the Preferred Stock has been converted into Common Stock) as granted
herein shall commence on the Effective Date and shall be exercisable for a
period ending nine (9) years from the date of execution hereof, or
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(ii) four (4) years from the effective date of the Company's initial public
offering, whichever is earlier.
3. EXERCISE OF THE PURCHASE RIGHTS.
The purchase rights set forth in this Warrant Agreement are
exercisable by the Warrantholder, in whole or in part, at any time or from time
to time, prior to the expiration of the term set forth in Section 2 above, by
tendering to the Company at its principal office a notice of exercise in the
form attached hereto as Exhibit I (the "Notice of Exercise"), duly completed
and executed. Promptly upon receipt of the Notice of Exercise and the payment
of the purchase price in accordance with the terms set forth below, and in no
event later than twenty-one (21) days thereafter, the Company shall issue to
the Warrantholder a certificate for the number of shares of Preferred Stock
purchased and shall execute the Notice of Exercise indicating the number of
shares which remain subject to future purchases, if any.
The Exercise Price may be paid at the Warrantholder's election either
(i) by cash or check, or (ii) by surrender of Warrants at the principal office
of the Company ("Net Issuance") as determined below. If the Warrantholder
elects the Net Issuance method, the Company will issue Preferred Stock in
accordance with the following formula:
X= Y(A-B)
------
A
Where: X = the number of shares of Preferred Stock to be issued to the Warrantholder.
Y = the number of shares of Preferred Stock requested to be exercised under this Warrant Agreement.
A = the fair market value of one (1) share of Preferred Stock (at the date of calculation).
B = the Exercise Price (as adjusted to the date of calculation).
For purposes of the above calculation, current fair market value of
Preferred Stock shall mean with respect to each share of Preferred Stock:
(i) if the exercise is in connection with an initial public
offering of the Company's Common Stock, and if the Company's Registration
Statement relating to such public offering has been declared effective by the
SEC, then the fair market value per share shall be the product of (x) the
"Initial Price to Public" specified in the final prospectus with respect to the
offering and (y) the number of shares of Common Stock into which each share of
Preferred Stock is convertible at time of such exercise;
(ii) if this Warrant is exercised after, and not in connection with
the Company's initial public offering, and:
(1) if traded on a securities exchange, the fair market
value shall be deemed to be the product of (x) the average of the closing
prices over a twenty-one (21) day
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period ending three days before the day the current fair market value of the
securities is being determined and (y) the number of shares of Common Stock
into which each share of Preferred Stock is convertible at the time of such
exercise; or
(2) if actively traded over-the-counter, the fair market
value shall be deemed to be the product of (x) the average of the closing bid
and asked prices quoted on the NASDAQ system (or similar system) over the
twenty-one (21) day period ending three days before the day the current fair
market value of the securities is being determined and (y) the number of shares
of Common Stock into which each share of Preferred Stock is convertible at the
time of such exercise;
(iii) if at any time the Common Stock is not listed on any
securities exchange or quoted in the NASDAQ System or the over-the-counter
market, the fair market value of Preferred Stock shall be the product of (x)
the highest price per share which the Company could obtain from a willing buyer
(not a current employee or director) for shares of Common Stock sold by the
Company, from authorized but unissued shares, as determined in good faith by
the Company's Board of Directors and (y) the number of shares of Common Stock
into which each share of Preferred Stock is convertible at the time of such
exercise, unless the Company shall become subject to a merger, acquisition or
other consolidation pursuant to which the Company is not the surviving party,
in which case the fair market value of Common Stock shall be deemed to be the
value received by the holders of the Company's Preferred Stock on a common
equivalent basis pursuant to such merger or acquisition.
Upon partial exercise by either cash or Net Issuance, the Company
shall promptly issue an amended Warrant Agreement representing the remaining
number of shares purchasable hereunder. All other terms and conditions of such
amended Warrant Agreement shall be identical to those contained herein,
including, but not limited to the Effective Date hereof.
4. RESERVATION OF SHARES.
AUTHORIZATION AND RESERVATION OF SHARES. During the term of this
Warrant Agreement, the Company will at all times have authorized and reserved a
sufficient number of shares of its Preferred Stock to provide for the exercise
of the rights to purchase Preferred Stock as provided for herein.
5. NO FRACTIONAL SHARES OR SCRIP.
No fractional shares or scrip representing fractional shares shall be
issued upon the exercise of the Warrant, 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.
6. NO RIGHTS AS SHAREHOLDER.
This Warrant Agreement does not entitle the Warrantholder to any
voting rights or other rights as a shareholder of the Company prior to the
exercise of the Warrant.
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7. WARRANTHOLDER REGISTRY.
The Company shall maintain a registry showing the name and address of
the registered holder of this Warrant Agreement.
8. ADJUSTMENT RIGHTS.
The purchase price per share and the number of shares of Preferred
Stock purchasable hereunder are subject to adjustment, as follows:
(a) MERGER AND SALE OF ASSETS. If at any time there shall be a
capital reorganization of the shares of the Company's stock (other than a
combination, reclassification, exchange or subdivision of shares otherwise
provided for herein), or a merger or consolidation of the Company with or into
another corporation when the Company is not the surviving corporation, or the
sale of all or substantially all of the Company's properties and assets to any
other person (hereinafter referred to as a "Merger Event"), then, as a part of
such Merger Event, lawful provision shall be made so that the Warrantholder
shall thereafter be entitled to receive, upon exercise of the Warrant, the
number of shares of preferred stock or other securities of the successor
corporation resulting from such Merger Event, equivalent in value to that which
would have been issuable if Warrantholder had exercised this Warrant
immediately prior to the Merger Event. In any such case, appropriate
adjustment (as determined in good faith by the Company's Board of Directors)
shall be made in the application of the provisions of this Warrant Agreement
with respect to the rights and interest of the Warrantholder after the Merger
Event to the end that the provisions of this Warrant Agreement (including
adjustments of the Exercise Price and number of shares of Preferred Stock
purchasable) shall be applicable to the greatest extent possible.
(b) RECLASSIFICATION OF SHARES. If the Company at any time shall,
by combination, reclassification, exchange or subdivision of securities or
otherwise, change any of the securities as to which purchase rights under this
Warrant Agreement exist into the same or a different number of securities of
any other class or classes, this Warrant Agreement shall thereafter represent
the right to acquire such number and kind of securities as would have been
issuable as the result of such change with respect to the securities which were
subject to the purchase rights under this Warrant Agreement immediately prior
to such combination, reclassification, exchange, subdivision or other change.
(c) SUBDIVISION OR COMBINATION OF SHARES. If the Company at any
time shall combine or subdivide its Preferred Stock, the Exercise Price shall
be proportionately decreased in the case of a subdivision, or proportionately
increased in the case of a combination.
(d) STOCK DIVIDENDS. If the Company at any time shall pay a
dividend payable in, or make any other distribution (except any distribution
specifically provided for in the foregoing subsections (a) or (b)) of the
Company's stock, then the Exercise Price shall be adjusted, from and after the
record date of such dividend or distribution, to that price determined by
multiplying the Exercise Price in effect immediately prior to such record date
by a fraction (i) the numerator of which shall be the total number of all
shares of the Company's stock outstanding immediately prior to such dividend or
distribution, and (ii) the denominator of which shall be the total number
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of all shares of the Company's stock outstanding immediately after such
dividend or distribution. The Warrantholder shall thereafter be entitled to
purchase, at the Exercise Price resulting from such adjustment, the number of
shares of Preferred Stock (calculated to the nearest whole share) obtained by
multiplying the Exercise Price in effect immediately prior to such adjustment
by the number of shares of Preferred Stock issuable upon the exercise hereof
immediately prior to such adjustment and dividing the product thereof by the
Exercise Price resulting from such adjustment.
(e) RIGHT TO PURCHASE ADDITIONAL STOCK. If the principal under
the Note is not repaid in full on or before May 1, 1998, then on the first day
of each month commencing on June 1, 1998, the Warrantholder shall have the
right to purchase from the Company, at the Exercise Price per share specified
in Section 1 (which price may be subject to adjustment from time to time as
provided for in this Section 8), an additional number of shares of Preferred
Stock, which number shall be determined by (i) multiplying the Principal Amount
of the Note outstanding on each such date by one percent (1%), and (ii)
dividing the product thereof by the Exercise Price per share referenced above.
The Warrantholder shall be entitled to receive additional shares subject to
Warrant pursuant to the above provision until such time as the principal is
repaid in full. The above grant of rights to purchase additional shares of
Preferred Stock does not, and is not intended to, replace or limit any other
rights or remedies the Warrantholder, Lender or their affiliates may have with
respect to the Company, under the Note or otherwise, and those rights are
granted by the Company to the Warrantholder in addition to and not in lieu of
any other rights and remedies of the Warrantholder, Lender or their affiliates.
(f) ANTIDILUTION RIGHTS. Additional antidilution rights
applicable to the Preferred Stock purchasable hereunder are as set forth in the
Company's Restated Certificate of Incorporation, as amended through the
Effective Date, a true and complete copy of which is attached hereto as Exhibit
III (the "Charter"). The Company shall promptly provide the Warrantholder with
any restatement, amendment, modification or waiver of the Charter.
(g) NOTICE OF ADJUSTMENTS. Warrantholder shall be entitled to the
same rights with respect to Adjustments as provided to the holders of the
Preferred Stock as set forth in the Company's Restated Certificate of
Incorporation.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
(a) RESERVATION OF PREFERRED STOCK. The Preferred Stock issuable
upon exercise of the Warrantholder's rights has been duly and validly reserved
and, when issued in accordance with the provisions of this warrant Agreement,
will be validly issued, fully paid and non-assessable, and will be free of any
taxes, liens, charges or encumbrances of any nature whatsoever; provided,
however, that the Preferred Stock issuable pursuant to this Warrant Agreement
may be subject to restrictions on transfer under state and/or Federal
securities laws. The Company has made available to the Warrantholder true,
correct and complete copies of its Charter and Bylaws, as amended, and minutes
of all Board of Directors (including all committees of the Board of Directors,
if any) and Shareholder meetings through March 8, 1995. The issuance of
certificates for shares of Preferred Stock upon exercise of the Warrant
Agreement shall be made without charge to the Warrantholder for any issuance
tax in respect thereof, or other cost incurred by the Company in connection
with such exercise and the related
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issuance of shares of Preferred Stock. The Company shall not be required to
pay any tax which may be payable in respect of any transfer involved and the
issuance and delivery of any certificate in a name other than that of the
Warrantholder.
(b) DUE AUTHORITY. The execution and delivery by the Company of
this Warrant Agreement and the performance of all obligations of the Company
hereunder, including the issuance to Warrantholder of the right to acquire the
shares of Preferred Stock, have been duly authorized by all necessary corporate
action on the part of the Company, and the Leases and this Warrant Agreement
are not inconsistent with the Company's Charter or Bylaws, do not contravene
any law or governmental rule, regulation or order applicable to it, do not and
will not contravene any provision of, or constitute a default under, any
indenture, mortgage, contract or other instrument to which it is a party or by
which it is bound, and the Leases and this Warrant Agreement constitute legal,
valid and binding agreements of the Company, enforceable in accordance with
their respective terms, subject to applicable bankruptcy and other similar laws
affecting the rights of creditors generally and rules of law concerning
equitable remedies.
(c) CONSENTS AND APPROVALS. No consent or approval of, giving of
notice to, registration with, or taking of any other action in respect of any
state, Federal or other governmental authority or agency is required with
respect to the execution, delivery and performance by the Company of its
obligations under this Warrant Agreement, except for the filing of notices
required by applicable state securities law, if any, which filings will be made
by the time required thereby.
(d) ISSUED SECURITIES. All issued and outstanding shares of
Common Stock, Preferred Stock or any other securities of the Company have been
duly authorized and validly issued and are fully paid and nonassessable. All
outstanding shares of Common Stock, Preferred Stock and any other securities
were issued in full compliance with all Federal and state securities laws. In
addition:
(i) The authorized capital of the Company consists of (A)
22,500,000 shares of Common Stock, of which 1,947,451 shares are issued and
outstanding, and (B) 18,000,000 shares of Preferred Stock, of which (i)
3,500,000 shares have been designated Series A Preferred Stock, all of which
are issued and outstanding; (ii) 5,060,750 shares have been designated Series B
Preferred Stock, of which 5,000,000 are issued and outstanding; (iii) 1,737,500
shares have been designated Series C Preferred Stock, none of which are issued
and outstanding; (iv) 2,908,889 shares have been designated Series D Preferred
Stock, all of which are issued and outstanding; and (v) 4,481,929 shares have
been designated Series E Preferred Stock, 4,150,717 of which are issued and
outstanding. 17,689,068 shares of Common Stock have been reserved for issuance
upon conversation of the Preferred Stock.
(ii) The Company has reserved 2,750,000 shares of Common
Stock for issuance under its 1995 Equity Incentive Plan, under which 1,606,298
options are outstanding at prices of $0.10 to $0.23 per share. And, except for
(1) the conversion privileges of the Series A, Series B, Series C, Series D and
Series E Preferred Stock; (2) the rights provided in Section 4 of the Restated
Investor's Rights Agreement, dated November 14, 1994; (3) a warrant potentially
exercisable for a maximum of 60,750 shares of the Company's Series B Preferred
Stock (the "Series B Warrant") issued to Dominion Ventures, Inc. ("Dominion")
pursuant to that certain
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Warrant to Purchase Shares of Series B Preferred Stock, dated November 2, 1992;
(4) a convertible instrument potentially convertible into a maximum of
1,600,000 shares of the Company's Series C Preferred Stock (the "Convertible
Instrument") issued to the BMPI Liquidating Trust, a Colorado trust, (the
"Trust") pursuant to that certain Asset Purchase Agreement dated June 17, 1992,
by and between the Company and the Trust (the "Asset Agreement"); and (5) a
warrant potentially exercisable for a maximum of 53,357 shares of the Company's
Series E Preferred Stock (the "Series E Warrant"), issued to Dominion pursuant
to that certain Warrant to Purchase shares of Series E Preferred Stock, dated
February 18, 1994, there are not any outstanding options, warrants, rights
(including conversion or preemptive rights) or agreements for the purchase or
acquisition form the Company of any shares of its capital stock.
(iii) In accordance with the Company's Restated Certificate
of Incorporation and that certain Restated Investors' Rights Agreement, dated
as of November 14, 1994, the Company has obtained the necessary waivers of
right of first offer and antidilution protection from its stockholders in
connection with the issuance to Warrantholder of this Warrant to purchase
shares of the Company's Series E Preferred Stock in connection with the
subordinated loan entered into by the parties to this Warrant Agreement.
(e) INSURANCE. The Company has in full force and effect
insurance policies, with extended coverage, insuring the Company and its
property and business against such losses and risks, and in such amounts, as
are customary for corporations engaged in a similar business and similarly
situated and as otherwise may be required pursuant to the terms of any other
contract or agreement.
(f) OTHER COMMITMENTS TO REGISTER SECURITIES. Except as
set forth in that certain Amended and Restated Investors Rights Agreement dated
as of November 14, 1994 and in this Warrant Agreement, the Company is not,
pursuant to the terms of any other agreement currently in existence, under any
obligation to register under the 1933 Act any of its presently outstanding
securities or any of its securities which may hereafter be issued.
(g) EXEMPT TRANSACTION. Subject to the accuracy of the
Warrantholder's representations in Section 10 hereof, the issuance of the
Preferred Stock upon exercise of this Warrant will constitute a transaction
exempt from (i) the registration requirements of Section 5 of the 1933 Act, in
reliance upon Section 4(2) thereof, and (ii) the qualification requirements of
the California Corporate Securities Law, in reliance upon Section 25102(f)
thereof.
(h) COMPLIANCE WITH RULE 144. If and when the Company
becomes subject to such filing requirements, at the written request of the
Warrantholder, who proposes to sell Preferred Stock issuable upon the exercise
of the Warrant in compliance with Rule 144 promulgated by the Securities and
Exchange Commission, the Company shall furnish to the Warrantholder, within ten
days after receipt of such request, a written statement confirming the
Company's compliance with the filing requirements of the Securities and
Exchange Commission as set forth in such Rule, as such Rule may be amended from
time to time.
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10. REPRESENTATIONS AND COVENANTS OF THE WARRANTHOLDER.
This Warrant Agreement has been entered into by the Company in
reliance upon the following representations and covenants of the Warrantholder:
(a) INVESTMENT PURPOSE. The right to acquire Preferred Stock or
the Preferred Stock issuable upon exercise of the Warrantholder's rights
contained herein will be acquired for investment and not with a view to the
sale or distribution of any part thereof, and the Warrantholder has no present
intention of selling or engaging in any public distribution of the same except
pursuant to a registration or exemption.
(b) PRIVATE ISSUE. The Warrantholder understands (i) that the
Preferred Stock issuable upon exercise of this Warrant is not registered under
the 1933 Act or qualified under applicable state securities laws on the ground
that the issuance contemplated by this Warrant Agreement will be exempt from
the registration and qualifications requirements thereof, and (ii) that the
Company's reliance on such exemption is predicated on the representations set
forth in this Section 10.
(c) DISPOSITION OF WARRANTHOLDER'S RIGHTS. In no event will the
Warrantholder make a disposition of any of its rights to acquire Preferred
Stock or Preferred Stock issuable upon exercise of such rights unless and until
(i) it shall have notified the Company of the proposed disposition, and (ii) if
requested by the Company, it shall have furnished the Company with an opinion
of counsel (which counsel may either be inside or outside counsel to the
Warrantholder) satisfactory to the Company and its counsel to the effect that
(A) appropriate action necessary for compliance with the 1933 Act has been
taken, or (B) an exemption from the registration requirements of the 1933 Act
is available. Notwithstanding the foregoing, the restrictions imposed upon the
transferability of any of its rights to acquire Preferred Stock or Preferred
Stock issuable on the exercise of such rights do not apply to transfers from
the beneficial owner of any of the aforementioned securities to its nominee or
from such nominee to its beneficial owner, and shall terminate as to any
particular share of Preferred Stock when (1) such security shall have been
effectively registered under the 1933 Act and sold by the holder thereof in
accordance with such registration, (2) such security shall have been sold
without registration in compliance with Rule 144 under the 1933 Act, or (3) a
letter shall have been issued to the Warrantholder at its request by the staff
of the Securities and Exchange Commission or a ruling shall have been issued to
the Warrantholder at its request by such Commission stating that no action
shall be recommended by such staff or taken by such Commission, as the case may
be, if such security is transferred without registration under the 1933 Act in
accordance with the conditions set forth in such letter or ruling and such
letter or ruling specifies that no subsequent restrictions on transfer are
required. Whenever the restrictions imposed hereunder shall terminate, as
hereinabove provided, the Warrantholder or holder of a share of Preferred Stock
then outstanding as to which such restrictions have terminated shall be
entitled to receive from the Company, without expense to such holder, one or
more new certificates for the Warrant or for such shares of Preferred Stock not
bearing any restrictive legend.
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(d) FINANCIAL RISK. The Warrantholder has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of its investment, and has the ability to bear the economic
risks of its investment.
(e) RISK OF NO REGISTRATION. The Warrantholder understands that
if the Company does not register with the Securities and Exchange Commission
pursuant to Section 12 of the 1933 Act, or file reports pursuant to Section
15(d), of the Securities Exchange Act of 1934 (the "1934 Act"), or if a
registration statement covering the securities under the 1933 Act is not in
effect when it desires to sell (i) the rights to purchase Preferred Stock
pursuant to this Warrant Agreement, or (ii) the Preferred Stock issuable upon
exercise of the right to purchase, it may be required to hold such securities
for an indefinite period. The Warrantholder also understands that any sale of
its rights of the Warrantholder to purchase Preferred Stock or Preferred Stock
which might be made by it in reliance upon Rule 144 under the 1933 Act may be
made only in accordance with the terms and conditions of that Rule.
(f) ACCREDITED INVESTOR. Warrantholder is an "accredited
investor" within the meaning of the Securities and Exchange Rule 501 of
Regulation D, as presently in effect.
11. TRANSFERS.
Subject to the terms and conditions contained in Section 10 hereof,
this Warrant Agreement and all rights hereunder are transferable in whole or in
part by the Warrantholder and any successor transferee; provided, however, in
no event shall the number of transfers of the rights and interests in all of
the Warrants exceed three (3) transfers. The transfer shall be recorded on the
books of the Company upon receipt by the Company of a notice of transfer in the
form attached hereto as Exhibit II (the "Transfer Notice"), at its principal
offices and the payment to the Company of all transfer taxes and other
governmental charges imposed on such transfer.
12. MISCELLANEOUS.
(a) EFFECTIVE DATE. The provisions of this Warrant Agreement
shall be construed and shall be given effect in all respects as if it had been
executed and delivered by the Company on the date hereof. This Warrant
Agreement shall be binding upon any successors or assigns of the Company.
(b) ATTORNEYS' FEES. In any litigation, arbitration or court
proceeding between the Company and the Warrantholder relating hereto, the
prevailing party shall be entitled to attorneys' fees and expenses and all
costs of proceedings incurred in enforcing this Warrant Agreement.
(c) GOVERNING LAW. This Warrant Agreement shall be governed by
and construed for all purposes under and in accordance with the laws of the
State of Illinois.
(d) COUNTERPARTS. This Warrant Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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(e) NOTICES. Any notice required or permitted hereunder shall be
given in writing and shall be deemed effectively given upon personal delivery,
facsimile transmission (provided that the original is sent by personal delivery
or mail as hereinafter set forth) or seven (7) days after deposit in the United
States mail, by registered or certified mail, addressed (i) to the
Warrantholder at 0000 Xxxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, attention:
Xxxxx Xxxx, cc: Legal Department, (and/or, if by facsimile, (000) 000-0000 and
(000) 000-0000) and (ii) to the Company at 0000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx
00000, attention: Xxxxxx Xxxxx, Vice President, Finance, (and/or if by
facsimile, (000) 000-0000 or at such other address as any such party may
subsequently designate by written notice to the other party.
(f) REMEDIES. In the event of any default hereunder, the
non-defaulting party may proceed to protect and enforce its rights either by
suit in equity and/or by action at law, including but not limited to an action
for damages as a result of any such default, and/or an action for specific
performance for any default where Warrantholder will not have an adequate
remedy at law and where damages will not be readily ascertainable. The Company
expressly agrees that it shall not oppose an application by the Warrantholder
or any other person entitled to the benefit of this Agreement requiring
specific performance of any or all provisions hereof or enjoining the Company
from continuing to commit any such breach of this Agreement.
(g) NO IMPAIRMENT OF RIGHTS. The Company will not, by amendment
of its Charter or through any other means, 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 actions as may be necessary or appropriate in order to
protect the rights of the Warrantholder against impairment.
(h) SURVIVAL. The representations, warranties, covenants and
conditions of the respective parties contained herein or made pursuant to this
Warrant Agreement shall survive the execution and delivery of this Warrant
Agreement.
(i) SEVERABILITY. In the event any one or more of the provisions
of this Warrant Agreement shall for any reason be held invalid, illegal or
unenforceable, the remaining provisions of this Warrant Agreement shall be
unimpaired, and the invalid, illegal or unenforceable provision shall be
replaced by a mutually acceptable valid, legal and enforceable provision, which
comes closest to the intention of the parties underlying the invalid, illegal
or unenforceable provision.
(j) AMENDMENTS. Any provision of this Warrant Agreement may be
amended by a written instrument signed by the Company and by the Warrantholder.
(k) ADDITIONAL DOCUMENTS. The Company, upon execution of this
Warrant Agreement, shall provide the Warrantholder with certified resolutions
with respect to the representations, warranties and covenants set forth in
subparagraphs (a) through (d), (f) and (g) of Section 9 above. The Company
shall also supply such other documents as the Warrantholder may from time to
time reasonably request.
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IN WITNESS WHEREOF, the parties hereto have caused this Warrant
Agreement to be executed by its officers thereto duly authorized as of the
Effective Date.
COMPANY:
BIOSTAR, INC.
By: /s/ Xxxxxx X. Xxxxx
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Title: Vice President Finance
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WARRANTHOLDER:
COMDISCO, INC.
By:
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Title:
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EXHIBIT I
NOTICE OF EXERCISE
To:
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1. The undersigned Warrantholder hereby elects to purchase shares of the
Series E Preferred Stock of _______________, pursuant to the terms of
the Warrant Agreement dated the day of _______________, 199___ (the
"Warrant Agreement") between ____________________ and the
Warrantholder, and tenders herewith payment of the purchase price for
such shares in full, together with all applicable transfer taxes, if
any.
2. In exercising its rights to purchase the Series E Preferred Stock of
____________________, the undersigned hereby confirms and acknowledges
the investment representations and warranties made in Section 10 of
the Warrant Agreement.
3. Please issue a certificate or certificates representing said shares of
Series E Preferred Stock in the name of the undersigned or in such
other name as is specified below.
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(Name)
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(Address)
WARRANTHOLDER:
COMDISCO, INC.
By:
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Title:
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Date:
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ACKNOWLEDGEMENT OF EXERCISE
The undersigned hereby acknowledge receipt of the "Notice of Exercise"
from Comdisco, Inc., to purchase ______ shares of the Series E Preferred Stock
of _____________, pursuant to the terms of the Warrant Agreement, and further
acknowledges that ______ shares remain subject to purchase under the terms of
the Warrant Agreement.
COMPANY:
By:
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Title:
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Date:
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EXHIBIT II
TRANSFER NOTICE
(To transfer or assign the foregoing Warrant Agreement execute this
form and supply required information. Do not use this form to
purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant Agreement and all rights
evidenced thereby are hereby transferred and assigned to ____________________
whose address is ________________________________________.
Dated:
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Holder's Signature:
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Holder's Address:
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Signature Guaranteed:
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NOTE: The signature to this Transfer Notice must correspond with the name as
it appears on the face of the Warrant Agreement, without alteration or
enlargement or any change whatever. Officers of corporations and
those acting in a fiduciary or other representative capacity should
file proper evidence of authority to assign the foregoing Warrant
Agreement.
