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EXHIBIT 4.4 WARRANT AGREEMENT DATED DECEMBER 6, 1996
MEDICAL POLYMERS TECHNOLOGIES, INC.
Suite 350, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
December 6, 1996
To:
Dear Sirs:
Medical Polymers Technologies, Inc., a Delaware corporation (the
"Company"), hereby agrees to issue in connection with the private offering of
its common stock with a $0.01 par value ("Common Stock"), Stock Purchase
Warrants entitling the holders to purchase an aggregate of ____________shares
of the Common Stock on a 7:1 post-consolidated basis, each two Warrants
currently being equal to one share of Common Stock of the Company, to be
evidenced by an instrument in the form attached hereto as Schedule "A"
(hereinafter referred to as the "Warrant", and the Warrant and all instruments
hereafter issued in replacement, substitution, combination or subdivision
thereof being hereinafter issued in replacement, substitution, combination or
subdivision thereof being hereinafter collectively referred to as the
"Warrants"). The number and character of shares of Underlying Securities
purchasable upon exercise of the Warrants are subject to adjustment as provided
in Section 6 below. The Warrants will be exercisable by each Warrantholder as
to all Common Stock covered thereby at the Purchase Price per share, as defined
below, at any time and from time to time after the date hereof and ending at
5:00 p.m., Austin time, on December 6, 1998.
1. Definitions.
As used herein, the following terms, unless the context otherwise
requires, shall have for all purposes hereof the following respective meanings:
(a) The term "Act" refers to the Securities Act of 1933, as amended
from time to time.
(b) The term "Commission" refers to the Securities and Exchange
Commission or the British Columbia Securities Commission.
(c) The term "Common Stock" refers to the Company's common stock
with a $0.01 par value.
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(d) The term "Other Securities refers to any securities of the
Company or any other person (corporate or otherwise), any property
(including cash), and any right to receive any securities or property
that the holders of the Warrants at any time shall be entitled to
receive, or shall have received, upon the exercise of the Warrants, in
lieu of or in addition to Common Stock, or which at any time shall be
issuable or shall have been issued in exchange for or in replacement of
Common Stock or Other Securities pursuant to Section 6 hereof or
otherwise; provided, however, that Other Securities does not include cash
dividends payable upon Common Stock or Other Securities, which cash
dividend was payable to holders of record prior to the date of exercise
of a Warrant.
(e) The term "Purchase Price" means $0.75 (U.S.) per share prior to
5:00 p.m. Austin Time on December 6, 1997, or $1.00 (U.S.) per share
after 5:00 p.m. Austin Time on December 6, 1997 and prior to 5:00 p.m.
Austin Time on December 6, 1998, subject to adjustment as set forth in
Subsection 6(a).
(f) The term "Underlying Securities" refers to the shares of Common
Stock and Other Securities issuable under this Warrant Agreement and the
Warrants pursuant to the exercise of the Warrants; provided, however,
that "underlying Securities" does not include Common Stock or Other
Securities, the right to purchase of which has been waived pursuant to
Subsection 6(b) hereof.
(g) The term "Warrantholder" refers to the initial recipients of the
Warrants and any transferee or transferees thereof permitted by Section
3(a) below.
2. Representations and Warranties.
The Company represents and warrants to you as follows:
(a) Existence. The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation.
(b) Corporate and Other Action. The Company has all requisite power
and authority (corporate and other), and has taken all necessary corporate
action, to authorize, execute, deliver and perform this Warrant Agreement;
to execute, issue, sell and deliver the Warrants and a certificate or
certificates evidencing the Warrants; to authorize and reserve for issuance
and, upon payment from time to time of the Purchase Price, to issue, sell
and deliver the shares of the Underlying Securities issuable upon exercise
of the Warrants; and to perform all of its obligations under this Warrant
Agreement and the Warrants. This Warrant Agreement has been duly executed
and delivered by the Company and is a legal, valid and binding agreement of
the Company enforceable in accordance with its terms. No authorization,
approval, consent or other order of any regulatory authority is required
for such authorization, issue or sale.
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(c) Corporate and Other Action. The execution and delivery of this
Warrant Agreement, the consummation of the transactions herein
contemplated, and the compliance with the terms and provisions of this
Warrant Agreement and of the Warrants will not conflict with, or result in
a breach of, or constitute a default or an event permitting acceleration
under, any statute, the Certificate of Incorporation or Articles of the
Company, or any indenture, mortgage, deed of trust, note, bank loan, credit
agreement, franchise, license, lease, permit or any other agreement,
understanding, instrument, judgment, decree, order, statute, rule or
regulation to which the Company is a party of by which it is bound.
(d) Validity. The Warrant, when delivered to you, will be duly
authorized, executed and delivered and will be a legal, valid and binding
obligation of the Company enforceable in accordance with its terms. The
shares of Common Stock of the Company, when delivered to you upon payment
of the Purchase price, will be duly authorized and validly issued and
outstanding, fully paid and nonassessable, and free of preemptive rights.
3. Compliance with the Act.
(a) Purchase for Investment; Transferability. You represent and
warrant to the Company that the Warrants and the shares of Underlying
Securities are being acquired for investment and not with a view to the
distribution or resale thereof. You agree that the Warrants and the
Underlying Securities may not be transferred, sold, assigned or
hypothecated, except pursuant to a registration statement that has become
effective under the Act, setting forth the terms of such offering, the
underwriting discount and commissions and any other pertinent data with
respect thereto, unless you have provided the Company with an opinion of
counsel reasonably acceptable to the Company that such registration is not
required.
(b) Legend. Each certificate representing Underlying Securities
shall be imprinted with a legend in substantially the following form:
The securities represented by this certificate were issued upon
exercise of a stock purchase warrant granted on December 6, 1996,
have not been registered or qualified under the Securities Act of
1933 or any applicable state securities laws, and may not be sold
or transferred in the absence of effective registration or
qualified under such laws or an exemption from registration or
qualification thereunder. The transfer of such security is also
subject to the conditions specified in the Warrant Agreement, dated
as of December 6, 1996, between the Corporation and certain
subscribers, and the Corporation reserves the right to refuse the
transfer of such security until such conditions have been fulfilled
with respect to such transfer. Upon written request, a copy of
such
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agreement will be furnished by the Corporation to the
holder thereof without charge. Any transferee of the
security represented by this certificate also agrees
to be bound by the terms and conditions of such
Warrant Agreement.
THE WARRANTS REPRESENTED BY THIS WARRANT CERTIFICATE
AND ANY SHARES ACQUIRED UPON THE EXERCISE THEREOF ARE
SUBJECT TO A HOLD PERIOD AND MAY NOT BE TRADED IN
BRITISH COLUMBIA UNTIL THE EXPIRY OF THE HOLD PERIOD
EXCEPT AS PERMITTED BY THE SECURITIES ACT (BRITISH
COLUMBIA) AND REGULATIONS MADE UNDER THE ACT.
(c) Unless the content otherwise requires, references in this
Section 3 to "you" or "your" shall mean and include a Warrantholder or a
holder of Underlying Securities, as the case may be.
4. Exercise of Warrants.
Warrants may only be exercised in full by the Warrantholder by surrender
of the Warrant, with the form of subscription at the end thereof duly executed
by such Warrantholder, to the Company at its principal executive offices,
accompanied by certified or bank cashier's cheque payable to the order of the
Company in the full amount obtained by multiplying the number of Units
represented by the respective Warrant or Warrants by the Purchase Price per
Unit.
5. Delivery of Stock Certificates, etc. on Exercise.
Any exercise of the Warrants pursuant to Section 4 hereof shall be deemed
to have been effective immediately prior to the close of business on the date
on which the Warrants with the subscription form and the cheque for the
aggregate Purchase Price shall have been received by the Company; except that
the Company shall not be required to open its stock transfer books in order to
effect an exercise, and the effective time in such event shall be the date the
stock transfer books are reopened. At such time, the person or persons in
whose name or names any certificate or certificates for shares of Underlying
Securities shall be issuable upon such exercise shall be deemed to have become
the holder or holders of record of the shares of Underlying Securities so
purchased. As soon as practicable after the exercise of any Warrant, the
Company, at its expense (including the payment by it of any applicable issue
taxes), will cause to be issued in the name of, and delivered to, the
purchasing Warrantholder, a certificate or certificates for the number of fully
paid and nonassessable shares of the Underlying Securities to which such
Warrantholder shall be entitled upon such exercise, plus in lieu of any
fractional share to which such Warrantholder would otherwise be entitled, cash
in an amount determined pursuant to Subsection 7(h) hereof. Such certificate
shall contain the legend required by Subsection 3(b) hereof.
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6. Anti-dilution Provisions.
The Warrants are subject to the following terms and conditions during the
term thereof:
(a) Stock Distributions, Splits and Combinations; Adjustments. In
case of (i) the outstanding shares of Common Stock (or Other Securities)
shall be subdivided into a greater number of shares, (ii) a non-cash
dividend in Common Stock (or Other Securities) shall be paid in respect of
Common Stock (or Other Securities), or (iii) the outstanding shares of
Common Stock (or Other Securities) shall be combined into a smaller number
of shares thereof, the number of shares of Underlying Securities subsequent
to such subdivision or combination or at the record date of such dividend
or distribution shall simultaneously with the effectiveness of such
subdivision or combination or immediately after the record date of such
dividend or distribution be equal to the number of shares of Common Stock
and Other Securities a holder would have owned and had a right to receive
as a result of such subdivision, combination, dividend or distribution if
such holder had actually held of record immediately prior to the
effectiveness of such subdivision or combination or immediately prior to
the record date of such dividend or distribution the number of Underlying
Shares purchasable immediately prior to the effectiveness of such
subdivision or combination or the record date of such dividend or
distribution.
(b) Reorganizations and Recapitalizations. In case the Company
shall be reorganized or recapitalized by the reclassifying its outstanding
Common Stock (or Other Securities) without par value to stock with par
value, then, as a condition of such reorganization or recapitalization,
each Warrantholder shall thereafter have the right to purchase, upon the
terms and conditions specified herein, the number of shares of Underlying
Securities that a holder would have owned and had the right to receive as a
result of such reorganization or recapitalization if such holder had held
of record the number of shares of Underlying Securities immediately prior
to such reorganization or recapitalization. If any consolidation or merger
of the Company with another corporation, or the sale of all or
substantially all of its assets to another corporation, shall be effected
in such a way that holders of Common Stock and Other Securities shall be
entitled to receive stock, securities or assets with respect to or in
exchange for Common Stock and Other Securities, then, as a condition of
such consolidation, merger or sale, immediately after the effective time of
such consolidation, merger or sale, the Warrantholders shall thereafter,
subject to the last sentence of this Subsection, have the right to purchase
and receive upon the basis and upon the terms and conditions specified in
this Warrant Agreement, the number of shares of Underlying Securities that
a holder would have owned and had a right to receive as a result of such
consolidation, merger or sale if such holder had actually held of record
immediately prior to such consolidation, merger or sale the number of
shares of Underlying Securities purchasable immediately prior to such
consolidation, merger or sale. If the Company is merged or consolidated
with another corporation under circumstances where the Company is not the
surviving corporation or where the Company will be a wholly-owned
subsidiary of another corporation (except where such merger or
consolidation is effected merely in order to recapitalize or
reincorporate the Company), or
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if the Company sells or otherwise disposes of all or substantially all of
its property or assets to another corporation, all outstanding Warrants
may be cancelled by the Board of Directors of the Company as of the
effective date of any such merger, consolidation or sale, provided that
(i) written notice of such cancellation is given to each holder of a
Warrant not later than 30 days prior to such effective date and (ii) each
holder of a Warrant shall have the right to exercise such Warrant in full
during the said 30-day period preceding the effective date of such merger,
consolidation or sale.
(c) Effect of Dissolution or Liquidation. In case the Company shall
dissolve or liquidate all or substantially all of its assets, all rights
under this Warrant Agreement and the Warrants shall terminate as of the
date upon which a certificate of dissolution or liquidation shall be filed
with the Registrar of Companies, British Columbia (or, if the Company
theretofore shall have been merged or consolidated with a corporation
incorporated under the laws of another state or province, the state or
province of incorporation on the date upon which action of equivalent
effect shall have been taken); provided, however, that (i) no dissolution
or liquidation shall affect the rights under Subsection (b) hereof of any
Warrantholder and (ii) if the Company's Board of Directors shall propose to
dissolve or liquidate the Company, each Warrantholder shall be given
written notice of such proposal at the earlier of (i) the time when the
Company's shareholders are first given notice of the proposal or (ii) the
time when notice to the Company's shareholders is first required.
(d) Notice of Change of Underlying Securities. Whenever the number
of shares of Underlying Securities or the kind or amount of securities or
assets purchasable pursuant to the Warrants shall be adjusted pursuant to
any of the provisions of this Warrant Agreement, or the number of shares of
Underlying Securities or the kind or amount of securities or assets
receivable upon conversion of Underlying Securities shall be adjusted
pursuant to the terms thereof, the Company shall forthwith thereafter cause
to be sent to each Warrantholder a notice setting forth such adjustment and
also setting forth in detail the facts requiring such adjustments.
7. Further Covenants of the Company.
(a) Dilution or Impairments. The Company will not, by amendment of
its certificate 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 the Warrant or of this Warrant
Agreement, 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 Warrantholders against
dilution or other impairment. Without limiting the generality of the
foregoing, the Company:
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(i) shall at all times reserve and keep available, solely for
issuance and delivery upon the exercise of the Warrants, all shares
of the Underlying Securities from time to time issuable upon the
exercise of the Warrants and shall use its best efforts to ensure
that the par value per share, if any, of the Underlying Securities
is at all time equal to or less than the then effective Purchase
Price per share of Underlying Securities; and
(ii) will take all such actions as may be necessary or
appropriate in order that the Company may validly and legally issue
fully paid and nonassessable shares of Common Stock and Other
Securities upon the exercise of the Warrants from time to time
outstanding.
(b) Title to Stock. All shares of Underlying Securities delivered
upon the exercise of the Warrants shall be validly issued, fully paid and
nonassessable; each holder of a Warrant shall receive good and marketable
title to the Underlying Securities, free and clear of all voting and
other trust arrangements, liens, encumbrances, equities and claims
whatsoever; and the Company shall have paid all taxes, if any, in respect
of the issuance thereof.
(c) Remedies. The Company stipulates that the remedies at law of
the Warrantholder or any holder of Underlying Securities in the event of
any default or threatened default by the Company in the performance of or
compliance with any of the terms of this Warrant Agreement or the
Warrants are not and will not be adequate and that such terms may be
specifically enforced by a decree of the specific performance of any
agreement contained herein or in the Warrants or by an injunction against
a violation of any of the terms hereof of thereof or otherwise.
(d) Exchange of Warrants. Subject to Subsection 3(a) hereof, upon
surrender or exchange of any Warrant to the Company, the Company at its
expense will promptly issue and deliver to or upon the order of the
holder thereof a new Warrant of like tenor, in the name of such holder or
as such holder (upon payment by such Warrantholder of any applicable
transfer taxes) may direct, calling in the aggregate for the purchase of
the number of shares of Underlying Securities called for on the face or
faces of the Warrant or Warrants so surrendered. The Warrants and all
rights thereunder are transferrable in whole or in part upon the books of
the Company by the registered holder thereof subject to the provisions of
Subsection 3(a) hereof, in person or by duly authorized attorney, upon
surrender of the Warrant, duly endorsed, at the principal office of the
Company.
(e) Replacement of Warrants. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation
of any Warrant, and in the case of any such loss, theft or destruction,
upon delivery of an indemnity agreement reasonably satisfactory in form
and amount to the Company, or in the case of such mutilation, upon
surrender and cancellation of such Warrant, the Company, at the
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expense of the Warrantholder, will execute and deliver, in lieu thereof,
a new Warrant of like tenor.
(f) Fractional Shares. No fractional shares of Underlying
Securities are to be issued upon the exercise of any Warrant, but the
Company shall pay a cash adjustment in respect of any fraction of a share
that would otherwise be issuable in an amount equal to such fraction
multiplied by the closing market price per share of Underlying Securities
on the day of exercise, as determined by the closing bid and asked price
regular way on the principal national securities exchange on which the
Underlying Securities are listed or admitted to trading, or if not listed
or admitted to trading on any national securities exchange, the average
of the highest reported bid and lowest reported asked price over the
preceding 30-day period as furnished by the National Quotation Bureau
Incorporated; provided, however, that if the Underlying Securities are
not traded in such manner that the quotations referred to herein are
available, the market price shall be deemed to be the fair market value
of such Underlying Securities as reasonably determined by the Board of
Directors.
8. Other Warrantholders.
The Warrants are issued upon the following terms, to all of which each
holder or owner thereof by the taking thereof consents and agrees: (a) any
person who shall become a transferee, within the limitations on transfer
imposed by Subsection 3(a) hereof, shall take such Warrant subject to the
provisions of Subsection 3(a) hereof and the other provisions hereof and
thereupon shall be authorized to represent himself as absolute owner thereof
and, subject to the restrictions contained in this Warrant Agreement, shall be
empowered to transfer absolute title by endorsement and delivery thereof to a
permitted bona fide purchaser for value; (b) each prior taker or owners waives
and renounces all of his equities or rights in such Warrant in favour of each
such permitted bonafide purchaser, and each such permitted bonafide purchaser
shall acquire absolute title thereto and all rights presented thereby; (c)
until such time as the respective Warrant is transferred on the books of the
Company, the Company may treat the registered holder thereof as the absolute
owner thereof for all purposes, notwithstanding any notice to the contrary; and
(d) all references to the words "you" and "your" in this Warrant Agreement
shall be deemed to apply with equal effect to any person to whom a Warrant has
been transferred in accordance with the terms hereof, and where appropriate, to
any person holding shares of the Underlying Securities.
9. Miscellaneous.
All notices, certificates, and other communications from or at the request
of the Company to any Warrantholder shall be mailed by first class, registered,
or certified mail, postage prepaid, to the address set forth herein, to such
address as may have been furnished to the Company in writing by such
Warrantholder, or, if no notice of transfer has been received by the Company,
to the address of the last holder of such Warrant. This Warrant Agreement and
any of the terms hereof may be changed, waived, discharged, or terminated only
pursuant to Subsection 6(b) hereof or by an instrument in writing signed by the
Company and the holders of Warrants to purchase in excess of 50% of the
Underlying Securities then subject to purchase pursuant to the
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Warrants. This Warrant Agreement shall be construed and enforced in accordance
with and governed by the internal laws of the Province of British Columbia. The
headings in this Warrant Agreement are for purpose of reference only and shall
not limit or otherwise affect any of the terms hereof. This Warrant Agreement,
together with the forms of instruments annexed hereto as Exhibit A, constitutes
the full and complete agreement of the parties hereto with respect to the
subject matter hereof.
THIS WARRANT AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES
WITH RESPECT TO THE WARRANT AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NOT
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the Company has caused this Warrant Agreement to be
executed as of the 6th day of December, 1996, by its proper corporate officers,
thereunto duly authorized.
MEDICAL POLYMERS TECHNOLOGIES, INC.
By:
▇▇▇ ▇▇▇▇▇,
Chairman
CONFIRMED:
SIGNATURE
Printed Name: ________________________
Title (if
applicable):
(Each co-owner or joint owner must sign.)
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SCHEDULE "A"
NEITHER THIS WARRANT NOR THE SECURITIES THAT MAY BE PURCHASED PURSUANT TO THIS
WARRANT HAVE BEEN REGISTERED WITH OR APPROVED BY THE UNITED STATES SECURITIES
AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS
OF ANY STATE. THIS WARRANT AND THE SECURITIES THAT MAY BE PURCHASED PURSUANT
TO THIS WARRANT ARE BEING OFFERED AND SOLD IN RELIANCE UPON CERTAIN EXEMPTIONS
AFFORDED BY SUCH ACTS AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN
ELECTIVE REGISTRATION STATEMENT UNDER SUCH ACTS OR AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
Warrant No. ____
MEDICAL POLYMERS TECHNOLOGIES, INC.
STOCK PURCHASE WARRANT
THIS IS TO CERTIFY THAT ________________________________ is entitled
to purchase at any time or from time to time after the date hereof ________
post-consolidated shares of common stock with a $0.01 par value at a Purchase
Price of $0.50 (U.S.) per share if purchased prior to 5:00 p.m., Vancouver
Time, on December 6, 1997 and at a price of $1.00 (U.S.) per share if purchased
after 5:00 p.m. Vancouver Time on December 6, 1997 and prior to 5:00 p.m.
Vancouver Time on December 6, 1998. On the date hereof, each two warrants
represented herein are equal to one share post-consolidated of the common stock
without par value, of Medical Polymers Technologies, Inc., a Delaware
corporation (the "Company"), subject to adjustment pursuant to Section 6 of the
Warrant Agreement (defined below). This Warrant is issued pursuant to a
Warrant Agreement dated as of December 6, 1996 (the "Warrant Agreement"),
between the Company and certain subscribers, and all rights of the holder of
this Warrant are subject to the terms and provisions of the Warrant Agreement,
copies of which are available to inspection at the offices of the Company.
TRANSFER OF THIS WARRANT IS RESTRICTED AS PROVIDED IN THE
WARRANT AGREEMENT.
THE WARRANTS REPRESENTED BY THIS WARRANT CERTIFICATE AND ANY SHARES
ACQUIRED UPON THE EXERCISE THEREOF ARE SUBJECT TO A HOLD PERIOD AND MAY NOT BE
TRADED IN BRITISH COLUMBIA UNTIL THE EXPIRY OF THE HOLD PERIOD EXCEPT AS
PERMITTED BY THE SECURITIES ACT (BRITISH COLUMBIA) AND REGULATIONS MADE UNDER
THE ACT.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed and
its corporate seal to be hereunto affixed in Austin, Texas by its proper
corporate officers thereunto duly authorized as of this 6th day of December,
1996.
MEDICAL POLYMERS TECHNOLOGIES, INC.
By:
▇▇▇ ▇▇▇▇▇,
Chairman
PACIFIC CORPORATE TRUST COMPANY
By:
Authorized Signatory
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FORM OF SUBSCRIPTION
(To be signed only upon exercise of Warrant)
To Medical Polymers Technologies, Inc.
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase right represented by such Warrant for, and to
purchase thereunder, ____________ post-consolidated shares of common stock with
a $0.01 par value of Medical Polymers Technologies, Inc. and herewith makes
payment of $_________ therefor, and requests that the certificate or
certificates for such shares be issued in the name of and delivered to the
undersigned.
Dated: ___________
_______________________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the within Warrant)
_______________________________________
_______________________________________
Address
______________
* Insert here the number of shares called for on the face of the Warrant,
without making any adjustment for additional Common Stock, Preferred Stock or
any other stock or other securities or property or cash which, pursuant to the
adjustment provisions of the Warrant Agreement pursuant to which the Warrant
was granted, may be deliverable upon exercise.