EXHIBIT 4.4
WARRANT FOR PURCHASE OF SHARES OF
COMMON STOCK
OF
ATRIX INTERNATIONAL, INC.
September 30, 1995
For value received, ___________________ (the "Holder"), is
entitled to purchase from Atrix International, Inc., a Minnesota
corporation (the "Company"), on or before September 30, 2000, ________
fully paid and nonassessable shares of the Company's Common Stock, $.01 par
value (such class of stock being hereinafter referred to as the "Common
Stock" and such Common Stock as may be acquired upon exercise hereof being
hereinafter referred to as the "Warrant Stock"), at an exercise price equal
to $.75 per share.
This Warrant is issued by the Company in connection with the
Private Placement Memorandum dated September 13, 1995 (the "Offering
Memorandum").
This Warrant is subject to the following provisions, terms and
conditions:
1. The rights represented by this Warrant may be exercised by
the Holder, in whole or in part (but not as to a fractional share), by
written notice of exercise delivered to the Company accompanied by the
surrender of this Warrant (properly endorsed if required) at the principal
office of the Company and upon payment to it, by cash, certified check or
bank draft, of the warrant exercise price for such shares. In addition,
the Holder may elect to pay the full purchase price by receiving a number
of shares of Common Stock computed using the following formula:
X = Y(A-B)
------
A
Where: X = the number of shares of Common Stock to be issued to
the Holder.
Y = the number of shares of Common Stock as to which this
Warrant is being exercised.
A = the Fair Market Value of one share of Common Stock.
B = Warrant exercise price.
For purposes of this Section 1, "Fair Market Value" means, with
respect to the Company's Common Stock, as of any date:
(a) if the Common Stock is listed or admitted to unlisted trading
privileges on any national securities exchange or is not so listed or
admitted but transactions in the Common Stock are reported on the
NASDAQ National Market System, the reported closing price of the
Common Stock on such exchange or by the NASDAQ National Market System
as of such date (or, if no shares were traded on such date, as of the
next preceding day on which there was such a trade); or
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(b) if the Common Stock is not so listed or admitted to unlisted
trading privileges or reported on the NASDAQ National Market System,
and bid and asked prices therefor in the over-the-counter market or on
the NASDAQ SmallCap Market are reported by NASDAQ or National
Quotation Bureau, Inc. (or any comparable reporting service), the mean
of the closing bid and asked prices as of such date, as so reported by
NASDAQ, or, if not so reported thereon, as reported by National
Quotation Bureau, Inc. (or such comparable reporting service); or
(c) if the Common Stock is not so listed or admitted to unlisted
trading privileges, or reported on the NASDAQ National Market System,
and such bid and asked prices are not so reported on the NASDAQ
SmallCap Market by NASDAQ or National Quotation Bureau, Inc. (or any
comparable reporting service), such price as the Company's Board of
Directors determines in good faith in the exercise of its reasonable
discretion.
The Company agrees that the Warrant Stock so purchased shall be and is
deemed to be issued as of the close of business on the date on which this
Warrant shall have been surrendered and payment made for such Warrant Stock
as aforesaid. Certificates for the shares of Warrant Stock so purchased
shall be delivered to the Holder within 15 days after the rights
represented by this Warrant shall have been so exercised, and, unless this
Warrant has expired, a new Warrant representing the number of shares of
Warrant Stock, if any, with respect to which this Warrant has not been
exercised shall also be delivered to the Holder within such time.
Notwithstanding the foregoing, however, the Company shall not be required
to deliver any certificates for shares of Warrant Stock, except in
accordance with the provisions and subject to the limitations of Paragraph
5 below.
2. The Company covenants and agrees that all shares of Warrant Stock
that may be issued upon the exercise of this Warrant will, upon issuance,
be duly authorized and issued, fully paid and nonassessable and free from
all taxes, liens and charges with respect to the issuance thereof. The
Company further covenants and agrees that until expiration of this Warrant,
the Company will at all times have authorized, and reserved for the purpose
of issuance or transfer upon exercise of this Warrant, a sufficient number
of shares of Common Stock to provide for the exercise of this Warrant.
3. The foregoing provisions are, however, subject to the following:
(a) The Warrant exercise price shall be subject to adjustment
from time to time as hereinafter provided. Upon each adjustment of
the Warrant exercise price, the holder of this Warrant shall
thereafter be entitled to purchase, at the Warrant exercise price
resulting from such adjustment, the number of shares obtained by
multiplying the Warrant exercise price in effect immediately prior to
such adjustment by the number of shares purchasable pursuant hereto
immediately prior to such adjustment and dividing the product thereof
by the Warrant exercise price resulting from such adjustment.
(b) In case the Company shall at any time subdivide the
outstanding Common Stock into a greater number of shares or declare a
dividend payable in Common Stock, the Warrant exercise price in effect
immediately prior to such subdivision shall be proportionately
reduced, and conversely, in case the outstanding Common Stock shall be
combined into a smaller number of shares, the Warrant exercise price
in effect immediately prior to such combination shall be
proportionately increased.
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(c) If any capital reorganization or reclassification of the
capital stock of the Company, or 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 shall be entitled to receive stock,
securities or assets ("Substituted Property") with respect to or in
exchange for such Common Stock, then, as a condition of such
reorganization, reclassification, consolidation, merger or sale, the
Holder shall have the right to purchase and receive upon the basis and
upon the terms and conditions specified in this Warrant and in lieu of
the Common Stock of the Company immediately theretofore purchasable
and receivable upon the exercise of the rights represented hereby,
such Substituted Property as would have been issued or delivered to
the Holder if it had exercised this Warrant and had received upon
exercise of this Warrant the Common Stock prior to such
reorganization, reclassification, consolidation, merger or sale. The
Company shall not effect any such consolidation, merger or sale,
unless prior to the consummation thereof the successor corporation (if
other than the Company) resulting from such consolidation or merger or
the corporation purchasing such assets shall assume by written
instrument executed and mailed to the Holder at the last address of
the Holder appearing on the books of the Company, the obligation to
deliver to the Holder such shares of stock, securities or assets as,
in accordance with the foregoing provisions, the Holder may be
entitled to purchase.
(d) If the Company takes any other action, or if any other event
occurs which does not come within the scope of the provisions of
Paragraphs 3(b) or 3(c), but which should result in an adjustment in
the Warrant exercise price and/or the number of shares subject to the
Warrant in order to fairly protect the purchase rights of the Holder,
an appropriate adjustment in such purchase rights shall be made by the
Company.
(e) Upon any adjustment of the Warrant exercise price, the
Company shall give written notice thereof, by first-class mail,
postage prepaid, addressed to the Holder at the address of the Holder
as shown on the books of the Company, which notice shall state the
Warrant exercise price resulting from such adjustment and the increase
or decrease, if any, in the number of shares purchasable at such price
upon the exercise of this Warrant, setting forth in reasonable detail
the method of calculation and the facts upon which such calculation is
based.
4. This Warrant shall not entitle the Holder to any voting rights or
other rights as a shareholder of the Company.
5. The Holder, by acceptance hereof, represents and warrants that:
(a) it is acquiring this Warrant for its own account for
investment purposes only and not with a view to its resale or
distribution; and
(b) it has no present intention to resell or otherwise dispose of
all or any part of this Warrant. Other than pursuant to registration
under federal and state securities laws or an exemption from such
registration, the availability of which the Company shall determine in
its sole discretion, (y) the Company will not accept the exercise of
this Warrant or issue certificates for shares of Warrant Stock and (z)
neither this Warrant nor any shares of Warrant Stock may be sold,
pledged, assigned or otherwise disposed of (whether voluntarily or
involuntarily). The Company may condition such issuance or sale,
pledge, assignment or other disposition on the receipt from the party
to whom this Warrant is to
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be so transferred or to whom Warrant Stock is to be issued or so
transferred of any representations and agreements requested by the
Company in order to permit such issuance or transfer to be made
pursuant to exemptions from registration under federal and applicable
state securities laws. Each certificate representing the Warrant (or
any part thereof) and any shares of Warrant Stock shall be stamped
with appropriate legends setting forth these restrictions on
transferability. The Holder, by acceptance hereof, agrees to give
written notice to the Company before exercising or transferring this
Warrant or transferring any shares of Warrant Stock of the Holder's
intention to do so, describing briefly the manner of any proposed
exercise or transfer. Within thirty (30) days after receiving such
written notice, the Company shall notify the Holder as to whether such
exercise or transfer may be effected.
6. (a) If at any time during the period ending on the date 5 years
after the date of this Warrant the Company proposes to register any
shares of its Common Stock under the Securities Act of 1933, the
Company shall give to all registered holders of this Warrant and the
holders of any Warrant Stock written notice of its intention in that
regard and use its best efforts to effect the registration under such
Act, if such registration is permissible, of such Warrant Stock as may
be specified by written notice from any of such holders delivered to
the Company within 20 days after such notice is given (which notice
shall be deemed to have been given upon the deposit thereof in first-
class or express U.S. mail, postage pre-paid, addressed to each holder
at the address of such holder as shown in the books of the Company);
provided, however, that (i) the Company shall not be required to
include any such Warrant Stock in any such registration for any holder
who is able to sell during a period of six months or less all Warrant
Stock owned by such holder (or issuable to such holder upon exercise
of this Warrant) pursuant to Rule 144 under the Securities Act of 1933
(or any similar rule or regulation); (ii) the Company shall not be
required to include this Warrant in any such registration; (iii) the
Company shall not be required to give such notice with respect to, or
to include such Warrant Stock in, any such registration which is
primarily (A) a registration of a stock option plan or other employee
benefit plan or of securities issued or issuable pursuant to any such
plan, or (B) a registration of securities proposed to be issued in
exchange for securities or assets of, or in connection with a merger
or consolidation with, another corporation; (iv) the Company shall not
be required to give such notice with respect to, or to include such
Warrant Stock in, any such registration which is at the request or
demand of any holder or holders of its securities having contractual
registration rights; (v) the Company shall not be required to include
in any such registration any securities previously duly registered
under the Securities Act of 1933; (vi) the Company may, in its sole
discretion, withdraw any such registration statement and abandon the
proposed offering in which any such holder had requested to
participate; (vii) if the offering to which the registration statement
relates is to be distributed by or through an underwriter, each such
holder shall agree, as a condition to the inclusion of such holder's
Warrant Stock in such registration, to sell the Warrant Stock held by
such holder through such underwriter on the same terms and conditions
as the underwriter agrees to sell securities on behalf of the Company
and not to sell, transfer, pledge, assign or otherwise dispose of any
Warrant Stock not sold by such holder in such offering for such period
(up to 180 days after the effective date of the registration
statement) as may be required by the underwriter; and (viii) if the
offering to which the registration statement relates is to be
distributed by or through an underwriter and a greater number of
securities is offered for participation in the proposed underwriting
than in the opinion of the Company's underwriter can be accommodated
without significantly adversely affecting the proposed underwriting,
the amount of such securities otherwise to be included in the
underwritten offering on behalf
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of all persons other than the Company may be reduced pro rata, in
accordance with the securities proposed to be sold by each such
holder, or may be eliminated entirely from such underwritten public
offering.
(b) On a one-time basis, if at any time during the period ending
on September 30, 2000, the Company shall receive a written request
there for from the record holder or holders of an aggregate of more
than 50% of the aggregate of all shares of Common Stock which have
been or could be issued upon exercise of this Warrant and all other
warrants of like tenor issued in connection with the Offering
Memorandum and have not then been the subject of any registration
pursuant hereto (the "Purchased Stock"), the Company shall prepare and
file a registration statement under the Securities Act of 1933
covering the shares of Purchased Stock which are the subject of such
request and shall use its best efforts to cause such registration
statement to become effective. In addition, upon the receipt of such
request, the Company shall promptly give written notice to all other
record holders of shares of Purchased Stock that such registration is
to be effected. The Company shall include in such registration
statement such shares of Purchased Stock for which it has received
written requests to register by such other record holders within 30
days after the delivery of the Company's written notice to such other
record holders. The Company shall be entitled to delay filing any
registration statement requested pursuant to this Paragraph 6(b) in
the event that, in the reasonable judgment of the Company's Board of
Directors, such filing would interfere with any transaction then
contemplated by the Company; provided, however, that no such delay
shall exceed six months in duration.
(c) The costs and expenses of any registration pursuant to this
Paragraph 6, including but not limited to legal fees, special audit
fees, printing expenses, filing fees, fees and expenses relating to
qualifications under state securities or blue sky laws and the
premiums for insurance, if any, incurred by the Company shall be borne
entirely by the Company; provided, however, that any holders
participating in such registration shall bear their own underwriting
discounts and commissions and the fees and expenses of their own
counsel or accountants in connection with any such registration.
(d) In the event of any registration of a security pursuant to
this Paragraph 6, the Company shall indemnify each such holder, its
officers and directors and each person, if any, who controls such
holder within the meaning of Section 15 of the Securities Act of 1933
against all losses, claims, damages and liabilities caused by any
untrue statement or alleged untrue statement of a material fact
contained in any registration statement or prospectus (and as amended
or supplemented) relating to such registration, or caused by any
omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they are made
unless such statement or omission was made in reliance upon and in
conformity with information furnished in writing to the Company by
such holder expressly for use therein.
The obligations of the Company to register any of its securities
in accordance with the foregoing shall be subject to the condition
that each holder shall agree in writing to indemnify the Company, its
officers and directors, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act of
1933, and each underwriter of the Warrant Stock so registered, and
each person, if any, who controls such underwriter within the meaning
of Section 15 of the Securities Act of 1933, with respect to losses,
claims, damages and liabilities caused by any untrue statement or
omission made in
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reliance upon and in conformity with information furnished in writing
by such holder to the Company expressly for use in such registration
statement or prospectus.
(e) The Company shall, at its expense, also take reasonable
measures to qualify the Warrant Stock included in any registration
statement pursuant to Paragraph 6 for sale under applicable blue sky
laws.
(f) Upon the exercise of registration rights pursuant to this
Paragraph 6, each holder agrees to supply the Company with such
information as may be required by the Company to register or qualify
such Warrant Stock.
7. This Warrant shall be transferable only on the books of the
Company by the Holder in person, or by duly authorized attorney, on
surrender of the Warrant, properly assigned.
8. 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 party against which enforcement of the change, waiver, discharge or
termination is sought.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
by its duly authorized officer and to be dated as of the date set forth
above.
ATRIX INTERNATIONAL, INC.
By_________________________________
Its________________________________
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS. THESE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR
SALE, SOLD, PLEDGED, ASSIGNED OR OTHERWISE DISPOSED OF, AND NO TRANSFER OF
THE SECURITIES WILL BE MADE BY THE COMPANY OR ITS TRANSFER AGENT, IN THE
ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
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