NXSTAGE MEDICAL, INC. WARRANT TO PURCHASE SHARES OF COMMON STOCK July 22, 2010
Exhibit 10.2
EXECUTION COPY
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS.
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON THE EXERCISE HEREOF MAY BE SOLD, OFFERED FOR
SALE, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED, HYPOTHECATED OR OTHERWISE DISPOSED OF WITHOUT (I)
AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO UNDER THE ACT OR (II) AN OPINION OF COUNSEL,
REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED.
WARRANT TO PURCHASE SHARES
OF COMMON STOCK
OF COMMON STOCK
July 22, 2010
Warrant No. W-[ ]
THIS CERTIFIES THAT, for value received, DaVita Inc., a Delaware corporation, is
entitled to subscribe for and purchase up to a maximum of 5,500,000 shares (subject to vesting
pursuant to Section 2 and adjustment pursuant to Section 5 hereof, the “Shares”) of fully
paid and nonassessable common stock, par value $0.001 per share (“Common Stock”), of
NxStage Medical, Inc., a Delaware corporation (the “Company”), at the price of $14.22 per
share (such price and such other price as shall result, from time to time, from the adjustments
specified in Section 5 hereof is herein referred to as the “Warrant Price”), subject to the
provisions and upon the terms and conditions set forth herein and in the First Amended and Restated
National Service Provider Agreement — Chronic Outpatient Therapy dated as of even date herewith,
including any exhibit and schedule attached thereto (collectively, the “Chronic Outpatient
Therapy Agreement”), by and between the Company and the holder of this Warrant. As used
herein, the term “Date of Grant” means July 22, 2010. As used herein, the term “Warrant”
shall be deemed to include any warrants issued in exchange or upon transfer or partial exercise of
this Warrant unless the context clearly requires otherwise. Terms not otherwise defined herein
shall have the meaning ascribed to them in the Chronic Outpatient Therapy Agreement.
1. Term. The purchase right represented by this Warrant is exercisable, in whole or
in part, for any Shares to which the holder of this Warrant has vested pursuant to Section 2, at
any time and from time to time from the Date of Grant until the earlier of (a) June 30, 2013, with
respect to Shares to which the holder of this Warrant has vested pursuant to Section 2 based on the
achievement of Customer Growth Level Targets and/or NxStage Growth Level Targets as of June 30,
2011 and June 30, 2012 (including the applicable Customer Growth Level Targets for the twelve-month
period ended June 30, 2011 deemed to be achieved as of June 30, 2012 pursuant to the Curing
Provision), and (b) December 31, 2013, with respect to Shares to which the holder of this Warrant
has vested pursuant to Section 2 based on the achievement of Customer Growth Level Targets and/or
NxStage Growth Level Targets as of June 30, 2013 (including the applicable Customer Growth Level
Targets for the twelve-month period ended June 30, 2012 deemed to be achieved as of June 30, 2013
pursuant to the Curing Provision).
Notwithstanding the foregoing, this Warrant shall not be exercisable for any Shares to which
the holder of this Warrant has not vested pursuant to Section 2 below.
2. Vesting Schedule. The Shares represented by this Warrant shall become vested and
exercisable, in each case subject to expiration pursuant to Section 1 above and adjustment pursuant
to Section 5 below, as set forth in Schedule B-5 attached to the Chronic Outpatient Therapy
Agreement (“Schedule B-5”).
3. Method of Exercise; Payment; Issuance of New Warrant. Subject to Sections 1 and 2
hereof, the purchase right represented by this Warrant with respect to any vested and exercisable
Shares may be exercised by the holder hereof, in whole or in part and from time to time, at the
election of the holder hereof, by the surrender of this Warrant (with the notice of exercise
substantially in the form attached hereto as Exhibit A (the “Notice of Exercise”) duly
completed and executed) at the principal office of the Company and by the payment in cash to the
Company, by certified or bank check, or by wire transfer of immediately available funds to an
account designated by the Company in an amount equal to the then applicable Warrant Price
multiplied by the number of Shares then being purchased. The person or persons in whose name(s)
any certificate(s) representing the Shares shall be issuable upon exercise of this Warrant shall be
deemed to have become the holder(s) of record of, and shall be treated for all purposes as the
record holder(s) of, the Shares represented thereby (and such Shares shall be deemed to have been
issued) immediately prior to the close of business on the date or dates upon which this Warrant is
exercised. As soon as practicable after the exercise of this Warrant and in any event within five
(5) Trading Days thereafter, upon the terms and subject to the conditions of this Warrant, the
Company at its expense will cause to be issued in the name of and delivered to the holder, or
delivered as the holder may direct to a broker or other persons, a certificate or certificates for
the number of Shares to which the holder shall be entitled on such exercise. In lieu of delivering
physical certificates for the Shares issuable upon any exercise of this Warrant, provided the
Company’s transfer agent is participating in the Depository Trust Company (“DTC”) Fast
Automated Securities Transfer program, and that any legend upon the certificates for the Shares
shall have been removed pursuant to Section 11 below, upon request of the holder, the Company shall
use commercially reasonable efforts to cause its transfer agent electronically to transmit such
Shares by crediting the account of the holder’s broker with DTC through its Deposit Withdrawal
Agent Commission system (provided that the same time limitations herein as for stock certificates
shall apply).
4. Stock Fully Paid; Reservation of Shares; Authority. All Shares that may be issued
upon the exercise of the rights represented by this Warrant will, upon exercise of such rights in
accordance with the terms and conditions herein, be duly authorized, validly issued, fully paid and
nonassessable, and free from all taxes, liens and charges with respect to the issue thereof.
During the period within which the rights represented by this Warrant may be exercised, the Company
will at all times have authorized, and reserved for the purpose of the issue upon exercise of the
purchase rights evidenced by this Warrant, a sufficient number of shares of its Common Stock to
provide for the exercise of the rights represented by this Warrant. The Company has all requisite
corporate power and authority and has taken all necessary corporate action to issue this Warrant
and, upon exercise of this Warrant, the Shares, and to carry out and perform its obligations
hereunder. The execution, delivery and performance of this Warrant
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constitute the valid and binding obligations of the Company, enforceable in accordance with
its terms.
5. Adjustments for Dividends, Distributions, Subdivisions, Combinations and
Reclassifications. The number and kind of securities purchasable upon the exercise of this
Warrant and the Warrant Price shall be subject to adjustment from time to time upon the happening
of any of the following. In case the Company shall (i) pay a dividend in shares of Common Stock or
make a distribution in shares of Common Stock to holders of its outstanding Common Stock, (ii)
subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock,
(iii) combine its outstanding shares of Common Stock into a smaller number of shares of Common
Stock, or (iv) issue any shares of its capital stock in a reclassification of the Common Stock,
then the number of Shares or other securities purchasable pursuant hereto upon exercise of this
Warrant immediately after such adjustment shall be determined at a Warrant Price per share obtained
by multiplying the Warrant Price in effect immediately prior to such adjustment by the number of
Shares purchasable pursuant hereto immediately prior to such adjustment and dividing by the number
of Shares or other securities of the Company that are purchasable pursuant hereto immediately after
such adjustment. An adjustment made pursuant to this paragraph shall become effective immediately
after the effective date of such event retroactive to the record date, if any, for such event.
6. Reorganization, Reclassification, Merger, Consolidation or Disposition of Assets.
If, at any time while this Warrant is outstanding (i) the Company effects any merger or
consolidation of the Company with or into another individual or corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited liability company, joint stock
company or other entity of any kind (each a “Person”), in which the Company is not the
surviving entity, (ii) the Company effects any sale of all or substantially all of its assets in
one or a series of related transactions, (iii) a majority of the Company’s Common Stock is acquired
by a third party in one or a series of related transactions, (iv) any tender offer or exchange
offer (whether by the Company or another Person) is completed pursuant to which all or
substantially all of the holders of Common Stock are permitted to tender or exchange their shares
for other securities, cash or property, or (v) the Company effects any reclassification or
reorganization of the Common Stock or any share exchange pursuant to which the Common Stock is
effectively converted into or exchanged for other securities, cash or property (other than as a
result of a subdivision or combination of shares of Common Stock covered by Section 5 above) (any
such case in (i) through (v) above, a “Fundamental Transaction”), then the holder shall
have the right thereafter to purchase, upon exercise of this Warrant with respect to the Shares, if
any, that are vested and exercisable immediately prior to the Fundamental Transaction (“Vested
Shares”), in lieu of such Vested Shares issuable upon exercise of this Warrant, the same amount
and kind of securities, cash or property as it would have been entitled to receive upon the
occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental
Transaction, the holder of the number of Vested Shares then issuable upon exercise in full of this
Warrant pursuant to the terms herein (the “Vested Alternate Consideration”). Any Shares
that shall have not become vested and exercisable immediately prior to the Fundamental Transaction
shall continue to vest, if at all, pursuant to Section 2 hereof and Schedule B-5, and the holder
shall have the right to purchase upon exercise of this Warrant with respect to that number of
Shares that become vested and exercisable after the Fundamental Transaction, pursuant to Section 2
hereof and Schedule B-5 (“Subsequently Vested Shares”), in lieu of such Subsequently Vested
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Shares issuable upon exercise of this Warrant, the same amount and kind of securities, cash,
or property as it would have been entitled to receive upon the occurrence of such Fundamental
Transaction if it had been, immediately prior to such Fundamental Transaction, the holder of the
number of Subsequently Vested Shares then issuable upon exercise of this Warrant pursuant to the
terms herein (“Subsequently Vested Alternate Consideration”, and, together with the Vested
Alternate Consideration, “Alternate Consideration”). In any such case appropriate
provision (as determined in good faith by the Board of Directors of the Company) shall be made with
respect to the rights and interests of the holder to the end that the provisions hereof (including,
without limitation, provision for adjustment of the Warrant Price pursuant to Section 5 above)
shall thereafter be applicable, as nearly equivalent as may be practicable in relation to any
Alternate Consideration deliverable upon the exercise hereof. The Company shall not effect any
such Fundamental Transaction unless prior to or simultaneously with the consummation thereof, any
successor to the Company, surviving entity (if other than the Company) or the corporation
purchasing or otherwise acquiring such assets or other appropriate corporation or entity shall
assume the obligation to deliver to the holder, such Alternate Consideration as, in accordance with
the foregoing provisions, the holder may be entitled to purchase and/or receive (as the case may
be), and the other obligations under this Warrant. The aggregate Warrant Price for this Warrant
will not be affected by any such Fundamental Transaction, but the Company shall apportion such
aggregate Warrant Price among the Alternate Consideration in a reasonable manner reflecting the
relative value of any different components of the Alternate Consideration, if applicable. If
holders of Common Stock are given any choice as to the securities, cash or property to be received
in a Fundamental Transaction (the “Transaction Consideration”), then the holder shall be
given the same choice as to the Transaction Consideration it receives upon any exercise of this
Warrant in accordance with the terms and conditions herein following such Fundamental Transaction.
At the holder’s request, any successor to the Company or surviving entity in such Fundamental
Transaction shall issue to the holder a new Warrant consistent with the foregoing provisions and
evidencing the holder’s right to purchase the Alternate Consideration for the aggregate Warrant
Price upon exercise thereof. The foregoing provisions of this Section 6 shall similarly apply to
successive reorganizations, reclassifications, mergers, consolidations, spin-offs, or dispositions
of assets.
7. Notice of Adjustments. Whenever the Warrant Price or the number of Shares
purchasable hereunder shall be adjusted pursuant to Section 5 hereof, the Company shall make a
certificate signed by its chief executive officer, chief financial officer or any vice president
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 Warrant Price and the
number of Shares purchasable hereunder after giving effect to such adjustment, and shall cause
copies of such certificate to be mailed (without regard to Section 16 hereof, by first class mail,
postage prepaid) to the holder of this Warrant at the holder’s last address for receipt of notice
provided under Section 16.
8. Notice of Corporate Action. If at any time: (a) the Company shall take a record of
the holders of its Common Stock for the purpose of entitling them to receive a dividend or other
distribution, or any right to subscribe for or purchase any evidences of its indebtedness, any
shares of stock of any class or any other securities or property, or to receive any other right, or
(b) there shall be any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any consolidation or merger of the
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Company with, or any sale, transfer or other disposition of all or substantially all the
property, assets or business of the Company to, another corporation, or (c) there shall be a
voluntary or involuntary dissolution, liquidation or winding up of the Company; then, in any one or
more of such cases, except if such notice or contents thereof shall be deemed to constitute
material non-public information of the Company, the Company shall give to the holder of the Warrant
at the holder’s last address for receipt of notice provided under Section 16 (i) at least five
Business Days’ prior written notice of the date on which a record date shall be selected for such
dividend, distribution or right or for determining rights to vote in respect of any such
reorganization, reclassification, merger, consolidation, sale, transfer, disposition, liquidation
or winding up, and (ii) in the case of any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, dissolution, liquidation or winding up, at least five
Business Days’ prior written notice of the date when the same shall take place; provided, however,
that failure to deliver such notice or any defect therein shall not affect the legality or validity
of the event or transaction required to be described in such notice pursuant to this Section 8.
Such notice in accordance with the foregoing clause also shall specify (i) the date on which any
such record is to be taken for the purpose of such dividend, distribution or right, the date on
which the holders of Common Stock shall be entitled to any such dividend, distribution or right,
and the amount and character thereof, and (ii) the date on which any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition, dissolution, liquidation or
winding up is to take place and the time, if any such time is to be fixed, as of which the holders
of Common Stock shall be entitled to exchange their shares of Common Stock for securities or other
property deliverable upon such disposition, dissolution, liquidation or winding up.
9. Fractional Shares. No fractional shares of Common Stock will be issued in
connection with any exercise hereunder, but in lieu of such fractional shares the Company shall
make a cash payment therefor based on the fair market value of the Common Stock on the date of
exercise as reasonably determined in good faith by the Company’s Board of Directors.
10. Charges, Taxes and Expenses. Issuance of any certificates for Shares shall be
made without charge to the holder for any issue tax or other incidental expense that may be payable
in respect of the issuance of such certificates, all of which taxes and expenses shall be paid by
the Company, and such certificates shall be issued in the name of the holder; provided, however,
that the Company shall not be required to pay any tax or incidental expense that may be payable in
respect of any transfer involved in the issuance or delivery of any certificates for Shares in a
name other than the holder. The holder shall pay any applicable transfer taxes and incidental
expenses.
11. Compliance with Securities Act; No Assignment or Transfer.
The holder of this Warrant, by acceptance hereof, agrees that this Warrant, and the Shares to
be issued upon exercise hereof, are being acquired for investment and that such holder will not
offer, sell or otherwise dispose of this Warrant, or any Shares except under circumstances which
will not result in a violation of the Securities Act of 1933, as amended (the “Act”), or
any applicable state securities laws. The Shares shall not be sold or transferred unless either
(i) they first shall have been registered under the Act, or (ii) the Company first shall have been
furnished with an opinion of legal counsel, reasonably satisfactory to the Company, to the effect
that such sale or transfer is exempt from the registration requirements of the Act. This Warrant
and all
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Shares issued upon exercise of this Warrant (unless registered under the Act and any
applicable state securities laws) shall be stamped or imprinted with a legend in substantially the
following form:
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY
STATE SECURITIES LAWS. NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON THE
EXERCISE HEREOF MAY BE SOLD, OFFERED FOR SALE, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED, HYPOTHECATED OR OTHERWISE DISPOSED OF WITHOUT (I) AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO UNDER THE ACT OR (II) AN OPINION OF COUNSEL,
REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED.
Said legend shall be removed by the Company, upon the request of a holder, at such time as the
restrictions on the transfer of the applicable security shall have terminated. For the avoidance
of doubt, without limiting the Company’s obligations set forth in that certain Registration Rights
Agreement dated as of the date hereof, by and between the Company and the holder, the holder
acknowledges that the Shares issued upon exercise of the Warrant at any time will be unregistered
securities to the extent such Shares are not registered under an applicable registration statement.
In addition, in connection with the issuance of this Warrant, the holder specifically represents to
the Company by acceptance of this Warrant as follows:
(1) The holder is acquiring this Warrant for its own account for investment purposes only and
not with a view to, or for the resale in connection with, any “distribution” thereof in violation
of the Act.
(2) The holder understands that this Warrant has not been registered under the Act in reliance
upon a specific exemption therefrom, which exemption depends upon, among other things, the bona
fide nature of the holder’s investment intent as expressed herein.
(3) The holder further understands that this Warrant must be held indefinitely unless
subsequently registered under the Act and qualified under any applicable state securities laws, or
unless exemptions from registration and qualification are otherwise available. The holder is aware
of the provisions of Rule 144, promulgated under the Act.
(4) The holder is an “accredited investor” as such term is defined in Rule 501 of Regulation D
promulgated under the Act.
12. Limitation on Beneficial Ownership.
(a) Notwithstanding anything to the contrary contained in this Warrant, while the parties
hereto acknowledge that the full exercise of this Warrant, if at all, for the maximum of 5,500,000
Shares (subject to adjustment pursuant to Section 5 hereof) would equal only
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approximately 11% of the Company’s outstanding shares of Common Stock as of the date hereof,
for the avoidance of doubt, this Warrant shall not be exercisable by the holder to the extent that,
if exercisable by the holder, the holder and/or any of its Affiliates would beneficially own in
excess of 19.90% of the total number of outstanding shares of Common Stock (including for such
purpose the shares of Common Stock issuable upon such exercise) (such potential ownership
percentage in excess of 19.90%, the “Potential Excess Ownership”). For the purposes of
this Section 12, beneficial ownership and all determinations and calculations (including, without
limitation, with respect to calculations of percentage ownership) shall be determined in accordance
with Section 13(d) of the Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder. No prior inability to exercise this Warrant pursuant to this Section 12
shall have any effect on the applicability of the provisions of this Section 12 with respect to any
subsequent determination of exercisability. The limitations contained in this Section 12 shall
apply to any successor or permitted transferee or assign of the holder of this Warrant pursuant to
Section 13 hereof. The holders of Common Stock shall be third party beneficiaries of this Section
12 and the Company may not waive this Section 12 without the consent of the holders of a majority
of shares of Common Stock.
(b) Subject to Section 12(a) above, if any attempted exercise by the holder of this Warrant
would result in any Potential Excess Ownership, the Company will use its commercially reasonable
efforts to seek approval of the Company’s stockholders of such attempted exercise pursuant to the
Nasdaq Market Rule 5635(d) as soon as reasonably practicable; provided, however, that if the
Company’s stockholders do not approve such attempted exercise, the holder shall not exercise this
Warrant to the extent that such exercise would result in any Potential Excess Ownership pursuant to
Section 12(a) above.
13. Successors and Assigns. Neither this Warrant nor any of the rights hereunder
shall be assignable or transferable in whole or in part except that the holder may transfer this
Warrant to an Affiliate of the holder, provided that, as a condition to such transfer, the
transferee shall (a) furnish to the Company written notice of such transfer and (b) agree in a
written instrument delivered to the Company to be bound by and subject to the terms and conditions
of this Warrant. Any assignment or transfer of this Warrant or any of the rights hereunder in
violation of the provisions of this Warrant shall be null and void. Subject to applicable
securities laws and the provisions of this Warrant, this Warrant and the rights and obligations
evidenced hereby shall inure to the benefit of and be binding upon the successors of the Company
and the successors and permitted assigns of holder.
14. Rights as Stockholders. No holder of this Warrant, as such, shall be entitled to
vote or receive dividends or be deemed the holder of Common Stock or any other securities which may
at any time be issuable on the exercise hereof for any purpose, nor shall anything contained herein
be construed to confer upon the holder of this Warrant, as such, any of the rights of a stockholder
of the Company or any right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to receive notice of meetings, or to receive dividends or
subscription rights or otherwise until this Warrant shall have been exercised and the Shares
purchasable upon the exercise hereof shall have become deliverable, as provided herein.
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15. Modification and Waiver. This Warrant and any provision hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the entity against
which enforcement of the same is sought.
16. Notices. All notices, requests, consents and other communications under this
Warrant shall be in writing and shall be deemed delivered (a) two Business Days after being sent by
registered or certified mail, return receipt requested, postage prepaid or (b) one Business Day
after being sent via a reputable nationwide overnight courier service guaranteeing next Business
Day delivery, in each case to the intended recipient as set forth below:
If to the Company, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
President, with a copy to the General Counsel, or at such other address or addresses as may have
been furnished in writing by the Company to the holder, with a copy (which shall not constitute
notice) to ▇▇▇ ▇▇▇▇▇▇, Esq., O’Melveny & ▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇; and if to the holder, at DaVita Inc., ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
Vice President Purchasing, with a copy to the General Counsel, at DaVita Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other address or addresses as may have been furnished in writing
by the holder to the Company.
Either party may give any notice, request, consent or other communication under this Warrant
using any other means (including, without limitation, personal delivery, messenger service,
telecopy, first class mail or electronic mail), but no such notice, request, consent or other
communication shall be deemed to have been duly given unless and until it is actually received by
the other party. Either party may change the address to which notices, requests, consents or other
communications hereunder are to be delivered by giving the other party notice in the manner set
forth in this Section 16.
17. Lost Warrants or Stock Certificates. The Company covenants to the holder hereof
that, upon receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant or any stock certificate and, in the case of any such
loss, theft or destruction, upon receipt of an affidavit and indemnity agreement reasonably
satisfactory to the Company, or in the case of any such mutilation upon surrender and cancellation
of such Warrant or stock certificate, the Company will make and deliver a new Warrant or stock
certificate, of like tenor, in lieu of the lost, stolen, destroyed or mutilated Warrant or stock
certificate.
18. Descriptive Headings. The descriptive headings of the several paragraphs of this
Warrant are inserted for convenience only and do not constitute a part of this Warrant. The
language in this Warrant shall be construed as to its fair meaning without regard to which party
drafted this Warrant.
19. Governing Law. This Warrant shall be construed and enforced in accordance with,
and the rights of the parties shall be governed by, the laws of the State of Delaware, without
giving effect to principles of conflicts of laws.
20. Severability. Whenever possible, each provision of this Warrant shall be
interpreted in such a manner as to be valid, legal and enforceable under all applicable laws and
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regulations. If, however, any provision of this Warrant shall be invalid, illegal or
unenforceable under any such law or regulation in any jurisdiction, it shall, as to such
jurisdiction, be deemed modified to conform to the minimum requirements of such law or regulation,
or, if for any reason it is not deemed to be so modified, it shall be invalid, illegal or
unenforceable only to the extent of such invalidity, illegality or limitation on enforceability
without affecting the remaining provisions of this Warrant or the validity, legality or
enforceability of such provision in any other jurisdiction.
21. Entire Agreement; Modification. This Warrant and Schedule B-5 constitute the
entire agreement between the parties pertaining to the subject matter contained herein and
supersedes all prior and contemporaneous agreements, representations, and undertakings of the
parties, whether oral or written, with respect to such subject matter. In the event of a conflict
between the terms of this Warrant and Schedule B-5, the terms of Schedule B-5 shall govern.
22. Definitions.
“Affiliate” means, with respect to any person, any other person that, directly or indirectly
through one or more intermediaries, controls, is controlled by, or is under common control with,
such specified person as such terms are used in and construed under Rule 144 under the Securities
Act of 1933, as amended.
“Business Day” shall mean a day other than a Saturday, Sunday or day on which banking
institutions in New York are authorized or required to remain closed.
“Trading Day” shall mean a day on which there is trading on the principal stock exchange on
which the Common Stock is then traded.
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IN WITNESS WHEREOF, the parties have executed this Warrant as of the date first written above.
| NXSTAGE MEDICAL, INC. | ||||||
| By: |
|
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| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| Title: President, Chief Executive Officer | ||||||
| DAVITA INC. | ||||||
| By: Name: |
|
|||||
| Title: | ||||||
[Signature Page to Warrant]
Exhibit A
Notice of Exercise
The
undersigned hereby elects to purchase shares of Common Stock of the Company pursuant to
Section 3 of the attached Warrant, and tenders herewith payment of the purchase price of such
shares in full.
Please issue a certificate or certificates representing said shares in the name of the undersigned
or in such other name or names as are specified below:
The undersigned represents that the aforesaid shares are being acquired for the account of the
undersigned for investment and not with a view to, or for resale in connection with, the
distribution thereof and that the undersigned has no present intention of distributing or
reselling such shares, all except as in compliance with applicable securities laws.
| Dated: | ||||||