EXHIBIT 4.4
FORM OF STOCK WARRANT
THIS WARRANT MAY NOT BE SOLD, PLEDGED, TRANSFERRED, ASSIGNED OR OTHERWISE
DISPOSED OF UNLESS SUCH SALE OR TRANSFER IS MADE IN COMPLIANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND ALL APPLICABLE STATE
SECURITIES LAWS OR THE COMPANY RECEIVES AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REQUIREMENT OF SUCH
ACT OR STATE SECURITIES LAWS.
October __, 1999 Right to Purchase Shares of Common Stock
of Advanced Tissue Sciences, Inc.
ADVANCED TISSUE SCIENCES, INC.
Common Stock Purchase Warrant
Advanced Tissue Sciences, Inc., a Delaware corporation (the "Company"),
hereby certifies that for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, _______________ ("Warrant
Holder"), is entitled on the terms and conditions set forth below, to purchase
from the Company at any time beginning on the date hereof and ending on October
___, 2002, (the "Exercise Period") ____________ fully paid and nonassessable
shares of Common Stock, $.01 par value, of the Company (the "Common Stock"), at
a purchase price per share of $4.00 (the "Purchase Price"), as the same may be
adjusted pursuant to Section 5 herein.
1. Definitions. This Warrant and any Warrant or Warrants subsequently
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issued upon exchange or transfer hereof are hereinafter collectively called the
"Warrant." The term "Warrant Shares" shall mean the shares of Common Stock or
other securities issuable upon exercise of this Warrant.
2. Exercise of Warrant. This Warrant may be exercised by the Warrant
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Holder, in whole or in part (but not as to fractional shares), at any time and
from time to time during the Exercise Period by surrender of this Warrant,
together with the form of subscription at the end hereof duly executed by
Warrant Holder, to the Company at its principal office. In the event that the
Warrant is not exercised in full, the number of Warrant Shares shall be reduced
by the number of such Warrant Shares for which this Warrant is exercised, and
the Company, at its expense, shall forthwith issue and deliver to or upon the
order of Warrant Holder a new Warrant of like tenor in the name of Warrant
Holder reflecting such adjusted Warrant Shares.
3. Delivery of Stock Certificates.
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(a) Subject to the terms and conditions of this Warrant, as soon as
practicable after the exercise of this Warrant in full or in part, and in any
event within five (5) days thereafter, the Company at its expense (including,
without limitation, the payment by it of any applicable issue taxes) will cause
to be issued in the name of and delivered to Warrant Holder, or as Warrant
Holder (upon payment by Warrant Holder of any applicable transfer taxes) may
lawfully direct, a certificate or certificates for the number of fully paid and
non-assessable shares of Common Stock to which Warrant Holder shall be entitled
on such exercise, together with any other stock or other securities or property
(including cash, where applicable) to which Warrant Holder is entitled upon such
exercise.
(b) This Warrant may not be exercised as to fractional shares of Common
Stock. In the event that the exercise of this Warrant, in full or in part,
would result in the issuance of any fractional share of Common Stock, then in
such event Warrant Holder shall be entitled to cash equal to the fair market
value of such fractional share. For purposes of this Warrant, fair market value
shall equal the closing trading price of the Common Stock on the Nasdaq
National Market, the American Stock Exchange or the New York Stock Exchange,
whichever is the principal trading exchange or market for the Common Stock (the
"Principal Market") on the date of determination or, if the Common Stock is not
listed or admitted to trading on any national securities exchange or quoted in
the Nasdaq national market system, the average of the closing bid and ask
prices on the over-the-counter market as furnished by any New York Stock
Exchange member firm reasonably selected from time to time by the Company for
that purpose, or, if the Common Stock is not listed or admitted to trading on
any national securities exchange or quoted on such national market system and
the average price cannot be determined as contemplated above, the fair market
value of the Common Stock shall be reasonably determined in good faith by the
Company's Board of Directors.
4. Covenants of the Company.
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(a) The Company shall use its reasonable best efforts to insure that a
registration statement under the Act covering the sale of the Warrant Shares is
and remains effective for the term of this Warrant and for three (3) years
thereafter, unless and until the Warrant Shares may be resold under Rule 144 of
the Act.
(b) The Company shall take all necessary action and proceedings as may be
required and permitted by applicable law, rule and regulation, including,
without limitation the notification of Nasdaq, for the legal and valid issuance
of this Warrant and the Warrant Shares to the Warrant Holder under this Warrant.
(c) From the date hereof through the last date on which this Warrant is
exercisable, the Company shall take all steps reasonably necessary to insure
that the Common Stock remains listed on the Principal Market and shall not amend
its Certificate of Incorporation or Bylaws so as to adversely affect any
rights of the Warrant Holder under this Warrant.
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(d) The Company shall at all times reserve and keep available, solely for
issuance and delivery as Warrant Shares hereunder, such shares of Common Stock
as shall from time to time be issuable.
(e) The Warrant Shares, when issued in accordance with the terms hereof,
will be duly authorized and, when paid for or issued in accordance with the
terms hereof, shall be validly issued, fully paid and non-assessable. The
Company has authorized and reserved for issuance to Warrant Holder the requisite
number of shares of Common Stock to be issued pursuant to this Warrant.
(f) With a view to making available to Warrant Holder the benefits of Rule
144 promulgated under the Act and any other rule or regulation of the Securities
and Exchange Commission (the "SEC") that may at any time permit Warrant
Holder to sell securities of the Company to the public without registration, the
Company agrees that, for so long as a class of its securities is registered
under Section 12 of the Securities Exchange Act of 1934 (the "Exchange Act"), as
amended, to use its best efforts to:
(i) make and keep public information available, as those terms are
understood and defined in Rule 144, at all times;
(ii) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the Exchange Act; and
(iii) furnish to any Warrant Holder forthwith upon request a written
statement by the Company that it has complied with the reporting
requirements of Rule 144 and the Act and the Exchange Act, a copy of the
most recent annual or quarterly report of the Company, and such other
reports and documents so filed by the Company as may be reasonably
requested in availing any such Warrant Holder to take advantage of any
rule or regulation of the SEC permitting the selling of any such
securities without registration.
5. Adjustment of Exercise Price and Number of Shares. The number of and
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kind of securities purchasable upon exercise of this Warrant and the Purchase
Price shall be subject to adjustment from time to time as follows:
(a) Subdivisions, Combinations and other Issuances. If the Company shall
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at any time after the date hereof but prior to the expiration of this Warrant
subdivide its outstanding securities as to which purchase rights under this
Warrant exist, by split-up, spin-off, or otherwise, or combine its outstanding
securities as to which purchase rights under this Warrant exist, the number of
Warrant Shares as to which this Warrant is exercisable as of the date of such
subdivision, split-up, spin-off or combination shall forthwith be
proportionately increased in the case of a subdivision, or proportionately
decreased in the case of a combination. Appropriate adjustments shall also be
made to the purchase price payable per share, but the aggregate purchase price
payable for the total number of Warrant Shares purchasable under this Warrant as
of such date shall remain the same.
(b) Stock Dividend. If at any time after the date hereof the Company
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declares a dividend or other distribution on Common Stock payable in Common
Stock or other securities or rights convertible into Common Stock ("Common Stock
Equivalents") without payment of any
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consideration by holders of Common Stock for the additional shares of Common
Stock or the Common Stock Equivalents (including the additional shares of
Common Stock issuable upon exercise or conversion thereof), then the number
of shares of Common Stock for which this Warrant may be exercised shall be
increased as of the record date (or the date of such dividend distribution if
no record date is set) for determining which holders of Common Stock shall be
entitled to receive such dividends, in proportion to the increase in the
number of outstanding shares (and shares of Common Stock issuable upon
conversion of all securities convertible into Common Stock) of Common Stock
as a result of such dividend, and the Purchase Price shall be adjusted so
that the aggregate amount payable for the purchase of all the Warrant Shares
issuable hereunder immediately after the record date (or on the date of such
distribution, if applicable), for such dividend shall equal the aggregate
amount so payable immediately before such record date (or on the date
of such distribution, if applicable).
(c) Other Distributions. If at any time after the date hereof the Company
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distributes to holders of its Common Stock, other than as part of its
dissolution, liquidation or the winding up of its affairs, any shares of its
capital stock, any evidence of indebtedness or any of its assets (other than
cash, Common Stock or securities convertible into Common Stock), then the
Company shall decrease the per share Purchase Price of this Warrant by an
appropriate amount based upon the value distributed on each share of Common
Stock as determined in good faith by the Company's Board of Directors.
(d) Merger. If at any time after the date hereof there shall be a merger
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or consolidation of the Company with or into another corporation then the
Warrant Holder shall thereafter be entitled to receive upon exercise of this
Warrant, during the period specified herein and upon payment of the aggregate
Purchase Price then in effect, the number of shares or other securities or
property of the successor corporation resulting from such merger or
consolidation, which would have been received by Warrant Holder for the shares
of stock subject to this Warrant had this Warrant at such time been exercised.
(e) Reclassification, Etc. If at any time after the date hereof there
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shall be a reorganization or reclassification of the securities as to which
purchase rights under this Warrant exist into the same or a different number of
securities of any other class or classes, then the Warrant Holder shall
thereafter be entitled to receive upon exercise of this Warrant, during the
period specified herein and upon payment of the Purchase Price then in effect,
the number of shares or other securities or property resulting from such
reorganization or reclassification, which would have been received by the
Warrant Holder for the shares of stock subject to this Warrant had this Warrant
at such time been exercised.
(f) Continuation of Terms. Upon any reorganization, consolidation, merger
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or transfer (and any dissolution following any transfer) referred to in this
Section 5, this Warrant shall continue in full force and effect and the terms
hereof shall be applicable to the shares of stock and other securities and
property receivable on the exercise of this Warrant after the consummation of
such reorganization, consolidation or merger or the effective date of
dissolution following any such transfer, as the case may be, and shall be
binding upon the issuer of any such stock or other securities, including, in the
case of any such transfer, the person acquiring all or substantially all of
the properties or assets of the Company, whether or not such person shall have
expressly assumed the terms of this Warrant as provided in Section 6.
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6. No Impairment. The Company will not, by amendment of its Certificate
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of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities 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 Warrant
Holder against impairment. Without limiting the generality of the foregoing,
the Company (a) will not increase the par value of any Warrant Shares above
the amount payable therefor on such exercise, (b) will take all such action as
may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable Warrant Shares on the exercise of
this Warrant and (c) will not transfer all or substantially all of its
properties and assets to any other person (corporate or otherwise), or
consolidate with or merge into any other person or permit any such person to
consolidate with or merge into the Company (if the Company is not the surviving
person), unless such other person shall expressly assume in writing and will
be bound by all the terms of this Warrant.
7. Notice of Adjustments; Notices. Whenever the Purchase Price or number
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of Warrant Shares purchasable hereunder shall be adjusted pursuant to Section
5 hereof, the Company shall execute and deliver to the Warrant Holder a
certificate 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 Purchase Price and number of shares purchasable hereunder
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 Warrant
Holder.
8. Rights As Stockholder. Prior to exercise of this Warrant, the Warrant
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Holder shall not be entitled to any rights as a stockholder of the Company with
respect to the Warrant Shares, including (without limitation) the right to vote
such shares, receive dividends or other distributions thereon or be notified of
stockholder meetings. However, in the event of any taking by the Company 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) or other distribution, 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, the Company shall mail to each Warrant
Holder, at least 10 days prior to the date specified therein, a notice
specifying the date on which any such record is to be taken for the purpose of
such dividend, distribution or right, and the amount and character of such
dividend, distribution or right.
9. Replacement of Warrant. On receipt of evidence reasonably satisfactory
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to the Company of the loss, theft, destruction or mutilation of the Warrant and,
in the case of any such loss, theft or destruction of the Warrant, on
delivery of an indemnity agreement or security reasonably satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of such Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
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10. Specific Enforcement; Consent to Jurisdiction.
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(a) The Company and the Warrant Holder acknowledge and agree that
irreparable damage would occur in the event that any of the provisions of this
Warrant were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent or cure breaches of the
provisions of this Warrant and to enforce specifically the terms and provisions
hereof, this being in addition to any other remedy to which either of them may
be entitled by law or equity.
(b) Each of the Company and the Warrant Holder (i) hereby irrevocably
submits to the exclusive jurisdiction of the United States District Court and
other courts of the United States sitting in California for the purposes of any
suit, action or proceeding arising out of or relating to this Warrant and (ii)
hereby waives, and agrees not to assert in any such suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of such court,
that the suit, action or proceeding is brought in an inconvenient forum or that
the venue of the suit, action or proceeding is improper. Each of the Company
and the Warrant Holder consents to process being served in any such suit, action
or proceeding by mailing a copy thereof to such party at the address in
effect for notices to it under this Warrant and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
in this paragraph shall affect or limit any right to serve process in any other
manner permitted by law.
11. Entire Agreement; Amendments. This Warrant, the Exhibits hereto and
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the Warrant Shares contain the entire understanding of the parties with respect
to the matters covered hereby and thereby and, except as specifically set forth
herein and therein, neither the Company nor the Warrant Holder makes any
representation, warranty, covenant or undertaking with respect to such matters.
No provision of this Agreement may be waived or amended other than by a written
instrument signed by the party against whom enforcement of any such amendment or
waiver is sought.
12. Restricted Securities. The Warrant Holder understands that unless a
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registration statement covering the Warrant Shares is effective, this Warrant
and the Warrant Shares purchasable hereunder constitute "restricted securities"
under the federal securities laws and accordingly may not, under such laws and
applicable regulations, be resold or transferred without an applicable exemption
from registration. In this connection, the Warrant Holder acknowledges
that Rule 144 of the Securities and Exchange Commission is not now, and may not
in the future be, available for resale of the Warrant and the Warrant Shares
purchasable hereunder. Unless such a registration statement is effective, the
Warrant Holder further acknowledges that the securities legend on Exhibit A
hereto shall be placed on any Warrant Shares issued to the Warrant Holder upon
the exercise of this Warrant.
13. Notices. Any notice or other communication required or permitted to be
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given hereunder shall be in writing and shall be effective (a) upon hand
delivery or delivery by telex (with correct answer back received), telecopy or
facsimile at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the second business day following the date of mailing by express
courier service, fully prepaid, addressed to
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such address, or upon actual receipt of such mailing, whichever shall first
occur. The addresses for suchcommunications shall be:
to the Company:
Advanced Tissue Sciences, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (facsimile)
with a copy to:
Advanced Tissue Sciences, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (facsimile)
to the Warrant Holder:
___________________________
___________________________
___________________________
Attn: [___________]
[Telephone]
[_________] (facsimile)
with a copy to:
___________________________
___________________________
___________________________
Attn: [___________]
[Telephone]
[_________] (facsimile)
Either party hereto may from time to time change its address for notices
under this Section 13 by giving at least 10 days' written notice of such changed
address to the other party hereto.
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14. Miscellaneous. This Warrant and any term hereof may be changed,
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waived discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the laws of the State of California. The headings in this Warrant
are for purposes of reference only, and shall not limit or otherwise affect any
of the terms hereof. The invalidity or unenforceability of any provision hereof
shall in no way affect the validity or enforceability of any other provision.
15. Expiration. The right to exercise this Warrant shall expire on October
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___, 2002.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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Dated: October ___, 1999 ADVANCED TISSUE SCIENCES, INC.
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Chairman of the Board and
Chief Executive Officer
[CORPORATE SEAL]
Attest:
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President and
Chief Financial Officer
WARRANT HOLDER
By:
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Name:
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Title:
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FORM OF SUBSCRIPTION
(TO BE SIGNED ONLY ON EXERCISE OF WARRANT)
TO ADVANCED TISSUE SCIENCES, INC.
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise this Warrant for, and to purchase thereunder, ___________
shares of Common Stock of ADVANCED TISSUE SCIENCES, INC., a Delaware corporation
(the "Company"), and herewith makes payment of $____________ 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 to name of
holder as specified on the face of the
Warrant)
_____________________________________
(Address)
_____________________________________
(Tax Identification Number)
Signed in the presence of:
__________________________
EXHIBIT A
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THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS SUCH TRANSFER IS
MADE IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND
ALL APPLICABLE STATE SECURITIES LAWS OR THE COMPANY RECEIVES AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH SALE OR TRANSFER IS EXEMPT FROM
THE REQUIREMENTS OF SUCH ACT OR STATE SECURITIES LAWS.