Exhibit 10.35
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. NO SALE
OR DISPOSITION MAY BE EFFECTED WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY
AND WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF
COUNSEL FOR THE HOLDER, SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS
NOT REQUIRED UNDER THE ACT OR RECEIPT OF A NO-ACTION LETTER FROM THE SECURITIES
AND EXCHANGE COMMISSION.
Dated: November 27, 2000 Void after the date
specified below in Section 1
CONCEPTUS, INC.
WARRANT TO PURCHASE COMMON STOCK
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THIS CERTIFIES THAT, for value received, Xxx Xxxxxxx and his
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registered permitted assigns (hereinafter called the "Holder") is entitled to
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purchase from Conceptus, Inc. (the "Company"), in whole or in part and at the
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times set forth below in Section 1, up to 25,000 shares of Common Stock (the
"Warrant Shares") at an exercise price per share of $9.00 (the "Exercise
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Price"), each as adjusted in accordance with this Warrant.
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1. Term. This Warrant shall be exercisable on and after the date hereof
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through the earlier to occur of the following:
(a) the fifth anniversary hereof; and
(b) the closing of a Change of Control (as defined below); provided,
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however, that the Company shall provide Holder with at least twenty (20) days'
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prior notice of such closing. For the purposes of this Warrant, "Change of
Control" shall mean (x) a sale of all of substantially all of the assets or
capital stock of the Company or (y) any consolidation or merger of the Company
with or into any other entity as a result of which the Company's shareholders
immediately prior to the closing of such consolidation or merger own 50% or less
of the surviving entity's (or its parent's) voting power immediately thereafter.
2. Method of Exercise; Payment; Issuance of New Warrant.
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2.1. Subject to the restrictive provisions elsewhere herein, the
purchase right represented by this Warrant may be exercised by the Holder, in
whole or in part, by: (i) the surrender of this Warrant (with the notice of
exercise form attached hereto as Attachment A and the Investment Representation
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Statement attached hereto as Attachment B, each duly executed) at the principal
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office of the Company; and (ii) the payment to the Company, by check, of an
amount equal to the Exercise Price per share multiplied by the number of Warrant
Shares then being purchased (such aggregate amount of money, the "Purchase
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Price").
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2.2. Upon receipt by the Company of this Warrant and such notice of
exercise, together with, if applicable, the aggregate Purchase Price, at its
office, or by the stock transfer agent or Warrant agent of the Company at its
office, the Holder shall be deemed to be the holder of record of the applicable
Warrant Shares, notwithstanding that the stock transfer books of the Company
shall then be closed or that certificates representing such Warrant Shares shall
not then be actually delivered to the Holder. The Company shall pay any and all
documentary stamp or similar issue or transfer taxes payable in respect of the
issue or delivery of the Warrant Shares.
2.3 Net Exercise. In addition to and without limiting the rights of
the holder under the terms of this Warrant, the Holder may elect to convert this
Warrant or any portion thereof (the "Conversion Right") into Warrant Shares, the
aggregate value of which Warrant Shares shall be equal to the value of this
Warrant or the portion thereof being converted. The conversion right may be
exercised by the Holder by surrender of this Warrant at the principal office of
the Company together with notice of the holder's intention to exercise the
conversion right, in which event the Company shall issue to the holder a number
of Warrant Shares computed using the following formula:
X = Y(A - B)
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A
Where X - The number of Warrant Shares to be issued to the Holder upon
exercise of its Conversion Right.
Y - The number of Warrant Shares issuable under this Warrant at
the date of calculation.
A - The fair market value of one Warrant Share, which shall equal
the average closing price per share of the Common Stock on the
NASDAQ Stock Market for the five consecutive trading days
immediately preceding the date of exercise, or if the Common
Stock is not then listed on NASDAQ, as determined in good
faith by the board of directors of the Company as at the time
the Conversion Right is exercised pursuant to this Section 2.
B - Exercise Price (as adjusted to the date of such calculations).
2.4. In the event that this Warrant is being exercised for less than all of
the then-current number of Warrant Shares, the Company shall, concurrently with
the issuance by the Company of the number of Warrant Shares for which this
Warrant is then being exercised, the Company shall issue a new Warrant
exercisable for the remaining number of Warrant Shares.
3. Stock Fully Paid; Reservation of Warrant Shares.
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All shares of stock which may be issued upon the exercise of the
rights represented by this Warrant will, upon issuance, be validly issued, fully
paid and nonassessable, and free from all taxes, liens and charges with respect
to the issue thereof. The Company shall
have authorized and reserved for issuance sufficient shares of Equity Securities
to permit the full exercise of this Warrant at or prior to the date on which
this Warrant becomes exercisable.
4. Adjustment of Exercise Price and Number of Warrant Shares.
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The number of and kind of securities purchasable upon exercise of this
Warrant and the Exercise Price shall be subject to adjustment from time to time
as follows:
4.1 Subdivisions, Combinations and Other Issuances. If the Company shall
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at any time after the date hereof and prior to the expiration of this Warrant
subdivide its Common Stock, by split-up or otherwise, or combine its Common
Stock, or issue additional shares of its Common Stock as a dividend with respect
to any shares of its Common Stock, the number of shares of Warrant Shares
issuable on the exercise of this Warrant shall forthwith be proportionately
increased in the case of a subdivision or stock dividend, or proportionately
decreased in the case of a combination. Appropriate adjustments shall also be
made to the Exercise Price payable per share, but the aggregate Purchase Price
payable for the total number of Warrant Shares purchasable under this Warrant
(as adjusted) shall remain the same. Any adjustment under this Section 4.1
shall become effective at the close of business on the date the subdivision or
combination becomes effective, or as of the record date of such dividend, or in
the event that no record date is fixed, upon the making of such dividend.
4.2. Reclassification, Reorganization and Consolidation. In case of any
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reclassification, capital reorganization, or change in the Common Stock of the
Company (other than as a result of a subdivision, combination, or stock dividend
provided for in Section 4.1 or as a result of a Change of Control), then, as a
condition of such reclassification, reorganization, or change, lawful provision
shall be made, and duly executed documents evidencing the same from the Company
or its successor shall be delivered to the holder of this Warrant, so that the
holder of this Warrant shall have the right at any time prior to the expiration
of this Warrant to purchase, at a total price equal to that payable upon the
exercise of this Warrant, the kind and amount of shares of stock and other
securities and property receivable in connection with such reclassification,
reorganization, or change by a holder of the same number of shares of Equity
Securities as were purchasable by the holder of this Warrant immediately prior
to such reclassification, reorganization, or change. In any such case
appropriate provisions shall be made with respect to the rights and interest of
the holder of this Warrant so that the provisions hereof shall thereafter be
applicable with respect to any shares of stock or other securities and property
deliverable upon exercise hereof, and appropriate adjustments shall be made to
the Exercise Price, provided the aggregate Purchase Price shall remain the same.
4.3 Certain Events. If any change in the outstanding Common Stock of the
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Company or any other event occurs as to which the other provisions of this
Section 4 are not strictly applicable or if strictly applicable would not fairly
protect the purchase rights of the Holder of the Warrant in accordance with such
provisions, then the Board of Directors of the Company shall make an adjustment
in the number and class of shares available under the Warrant, the Purchase
Price or the application of such provisions, so as to protect such purchase
rights as aforesaid. The adjustment shall be such as will give the Holder of
the Warrant upon exercise for
the same aggregate Purchase Price the total number, class and kind of shares as
he would have owned had the Warrant been exercised prior to the event and had he
continued to hold such shares until after the event requiring adjustment.
4.4. Notice of Adjustment. When any adjustment is required to be made in
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the number or kind of shares purchasable upon exercise of the Warrant, or in the
Exercise Price, the Company shall promptly notify the holder of such event.
5. Fractional Warrant Shares.
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No fractional Warrant Shares will be issued in connection with any
exercise hereunder, 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. Compliance with Securities Act.
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The Holder, by acceptance hereof, represents and agrees that this
Warrant and the Warrant Shares are being acquired for investment and that it
will not offer, sell or otherwise dispose of this Warrant or any Warrant Shares
except as permitted under this Warrant and under circumstances which will not
result in a violation of the Securities Act of 1933, as amended (the "Act").
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Upon exercise of this Warrant, the Holder hereof shall confirm in writing, in a
form of Attachment B, that the Warrant Shares so purchased are being acquired
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for investment and not with a view toward distribution or resale. In addition,
the Holder hereby represents and agrees that it is an "accredited investor" as
defined in Regulation D promulgated pursuant to the Act, and the Holder shall
provide such additional information regarding such Xxxxxx's financial and
investment background as the Company may reasonably request to assure itself
that the Holder is an accredited Investor. This Warrant and all Warrant Shares
(unless registered under the Act) shall be stamped or imprinted with legends in
substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
NO SALE OR DISPOSITION MAY BE EFFECTED WITHOUT THE PRIOR WRITTEN CONSENT OF
THE COMPANY AND WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO
OR AN OPINION OF COUNSEL FOR THE HOLDER, SATISFACTORY TO THE COMPANY, THAT
SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT OR RECEIPT OF A NO-ACTION
LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION."
7. Transferability of Warrant.
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This Warrant may not be transferred or assigned in whole or in part
without the prior consent of the Company and compliance with applicable federal
and state securities laws.
8. Disposition of Warrant Shares.
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With respect to any offer, sale or other disposition of any Warrant
Shares prior to registration of such shares, the Holder and each subsequent
Holder of this Warrant agrees to give written notice to the Company prior
thereto, describing briefly the manner thereof, together with a written opinion
of such Xxxxxx's counsel, if reasonably requested by the Company, to the effect
that such offer, sale or other disposition may be effected without registration
or qualification (under the Act as then in effect or any federal or state law
then in effect) of such Warrant Shares and indicating whether or not under the
Act certificates for such shares to be sold or otherwise disposed of require any
restrictive legend as to applicable restrictions on transferability in order to
ensure compliance with the Act; provided, however, that no such opinion of
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counsel or no action letter shall be necessary for a transfer without
consideration by a Holder which is a partnership to a partner of such
partnership, so long as such transfer is made pursuant to the terms of the
partnership agreement, or to the transfer by gift, will or intestate succession
by the Holder to his or her spouse or lineal descendants or ancestors or any
trust for the benefit of any of the foregoing if the transferee agrees in
writing to be subject to the terms hereof to the same extent as if he/she were
an original Holder hereunder. Notwithstanding the foregoing, such Warrant
Shares may be offered, sold or otherwise disposed of in accordance with Rule
144.
9. No Rights as Stockholder.
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No Holder of this Warrant shall be entitled to vote or be deemed the
holder of stock or any other securities of the Company 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 give or withhold consent to any corporate action (whether upon
any recapitalization, issuance of stock, reclassification of stock, change of
par value or change of stock to no par value, consolidation, merger, conveyance,
or otherwise) or to receive notice of meetings, or to receive dividends or
subscription rights or otherwise until this Warrant has been exercised and the
Warrant Shares shall have become deliverable, as provided herein.
10. Governing Law.
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The terms and conditions of this Warrant shall be governed by and
construed in accordance with California law, without regard to any provisions
thereof relating to conflicts of laws among different jurisdictions.
11. Notices.
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All notices, requests, demands and other communications that are
required or may be given under this Agreement shall be in writing and shall be
deemed to have been duly given (i) when received if personally delivered, (ii)
upon electronic confirmation of receipt, if transmitted by telecopy, (iii) the
day after it is sent, if sent for next day delivery to a domestic address by a
nationally recognized overnight delivery service (i.e., Federal Express), and
(iv) three days from the date of deposit in the U.S. mails, if sent by certified
or registered U.S. mail, return receipt requested. In each case such notice
shall be addressed as follows:
To the Company:
Conceptus, Inc.
0000 Xxxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
Attn: Chief Financial Officer
To Holder:
Xxx Xxxxxxx
0000 Xxxxxxxxxx Xx.
Xxxxxxx, XX, 00000
Fax: _______________
Attn:_______________
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
12. Miscellaneous.
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The headings in this Warrant are for purposes of convenience and
reference only, and shall not be deemed to constitute a part hereof. Neither
this Warrant nor any term hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the Company
and the registered Holder.
CONCEPTUS, INC.
By: /s/ OB
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Name:
Title:
INVESTOR:
By: /s/ Xxx Xxxxxxx
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Name:
Title:
ATTACHMENT A TO WARRANT
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NOTICE OF EXERCISE
TO: Conceptus, Inc.
1. The undersigned hereby elects to purchase ____________ shares of
Common Stock of Conceptus, Inc., pursuant to the terms of the attached Warrant,
and tenders herewith payment of the aggregate purchase price of such shares in
full, together with all applicable transfer taxes, if any.
1. The undersigned hereby elects to convert the attached Warrant into
Warrant Shares in the manner specified in Section 2.3 of the Warrant. This
conversion is exercised with respect to _________________ of the Shares covered
by the Warrant.
[Strike paragraph above that does not apply]
2. Please issue a certificate or certificates representing said
shares of stock in the name of the undersigned or in such other name as is
specified below:
_________________________________
(Name)
_________________________________
(Address)
_________________________________
3. The undersigned represents that the aforesaid shares of stock 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.
In support thereof, the undersigned has executed an Investment Representation
Statement attached hereto as Attachment B.
Name of Warrantholder:
_________________________
By: _________________________
Name:
Title:
ATTACHMENT B TO WARRANT
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INVESTMENT REPRESENTATION STATEMENT
PURCHASER : Xxx Xxxxxxx, 0000 Xxxxxxxxxx Xx., Xxxxxxxx, XX, 00000
COMPANY : Conceptus, Inc.
SECURITY : Warrants
AMOUNT : up to 25,000 shares
DATE : November 27, 2000
In connection with the purchase of the above-listed securities and
underlying stock (the "Securities"), I, Xxx Xxxxxxx, the Purchaser, represent
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to the Company the following:
(a) I am aware of the Company's business affairs and financial
condition, and have acquired sufficient information about the Company to reach
an informed and knowledgeable decision to acquire the Securities. I am
purchasing these Securities for my own account for investment purposes only and
not with a view to, or for the resale in connection with, any "distribution"
thereof for purposes of the Securities Act of 1933 ("Securities Act").
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(b) I understand that the Securities have not been registered under
the Securities Act in reliance upon a specific exemption therefrom, which
exemption depends upon, among other things, the bona fide nature of my
investment intent as expressed herein. In this connection, I understand that,
in the view of the Securities and Exchange Commission, the statutory basis for
such exemption may be unavailable if my representation was predicated solely
upon a present intention to hold these Securities for the minimum capital gains
period specified under tax statutes, for a deferred sale, for or until an
increase or decrease in the market price of the Securities, or for a period of
one year or any other fixed period in the future.
(c) I further understand that the Securities must be held
indefinitely unless subsequently registered under the Securities Act or unless
an exemption from registration is otherwise available. In addition, I understand
that the certificate evidencing the Securities will be imprinted with a legend
which prohibits the transfer of the Securities unless they are registered or
such registration is not required in the opinion of counsel for the Company.
Name of Purchaser:
Xxx Xxxxxxx
By: /s/ Xxx Xxxxxxx
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Name:
Title:
