EXHIBIT 4.2
Void after
April 2, 2006
FUSION MEDICAL TECHNOLOGIES, INC.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
This Warrant is issued to State of Wisconsin Investment Board (the
"Purchaser") by Fusion Medical Technologies, Inc., a Delaware corporation (the
"Company"), pursuant to the terms of that certain Stock and Warrant Purchase
Agreement (the "Agreement") dated as of April 2nd, 2001 in connection with the
issuance of the Company's Common Stock.
1. Purchase of Shares. Subject to the terms and conditions hereinafter
------------------
set forth and set forth in the Agreement, the holder of this Warrant (the
"Holder") is entitled, upon surrender of this Warrant at the principal office of
the Company (or at such other place as the Company shall notify the Holder
hereof in writing), to purchase from the Company up to the number of fully paid
and nonassessable shares of the Company's Common Stock (the "Shares"), that
equals the quotient obtained by dividing 5% of the aggregate principal amount
paid by the Purchaser in the Agreement by the Purchase Price, as defined in the
Agreement, or 20,478 Shares.
2. Exercise Price. The exercise price per share shall be $3.66, which is
--------------
equal to 125% of the Purchase Price, as defined in the Agreement. Such price
shall be subject to adjustment pursuant to Section 8 hereof (such price, as
adjusted from time to time, is herein referred to as the "Exercise Price").
3. Exercise Period. The Warrant shall be exercisable, in whole or in part,
---------------
beginning upon issuance and will terminate five (5) years after the date of the
Agreement.
4. Method of Exercise. While this Warrant remains outstanding and
------------------
exercisable in accordance with Section 3 above, the Holder may exercise, in
whole or in part, the purchase rights evidenced hereby. Such exercise shall be
effected by:
(i) the surrender of the Warrant, together with a duly executed
copy of the form of subscription attached hereto, to the Secretary of the
Company at its principal offices; and
(ii) the payment to the Company of an amount equal to the
aggregate Exercise Price for the number of Shares being purchased.
5. Net Exercise. In lieu of cash exercising this Warrant, the Holder may
------------
elect to receive shares equal to the value of this Warrant (or the portion
thereof being canceled) by surrender of this Warrant at the principal office of
the Company together with notice of such election, in which event
the Company shall issue to the Holder hereof a number of shares of Common Stock
computed using the following formula:
Y (A - B)
---------
X = A
Where
X -- The number of Shares to be issued to the Holder.
Y -- The number of Shares purchasable under this Warrant.
A -- The fair market value of one share of the Company's Common
Stock.
B -- The Exercise Price (as adjusted to the date of such
calculations).
For purposes of the above calculation, the fair market value per Common
Stock share shall be the closing price of the Common Stock, as quoted by the
National Association of Securities Dealers Automated Quotation (Nasdaq) Service,
the over-the-counter market or the exchange market in which the Common Stock is
traded immediately prior to the close of business on the date of its surrender
for exercise. If the Common Stock is not traded on the Nasdaq, the over-the-
counter market or the exchange market, the fair market value shall be the price
per share that the Company could obtain from a willing buyer for shares of
Common Stock sold by the Company from authorized but unissued shares, as such
prices shall be determined in good faith by the Company's Board of Directors.
6. Certificates for Shares. Upon the exercise of the purchase rights
-----------------------
evidenced by this Warrant, one or more certificates for the number of Shares so
purchased shall be issued as soon as practicable thereafter, and in any event
within thirty (30) days of the delivery of the subscription notice. This Warrant
shall be deemed to have been exercised immediately prior to the close of
business on the date of its surrender for exercise as provided above, and the
person or persons entitled to receive the shares of Common Stock or other
securities issuable upon such exercise shall be treated for all purposes as the
Holder of such shares of record as of the close of business on such date. Upon
any partial exercise of this Warrant, the Company will issue to the Holder a new
Warrant for the number of shares of Common Stock or other securities as to which
Warrant was not exercised.
7. Authorization and Reservation of Stock. The Company covenants that the
---------------------------------------
Shares, when issued pursuant to the exercise of this Warrant, will be duly and
validly issued, fully paid and nonassessable, free from all preemptive rights of
any stock, and free from all taxes, liens, and charges with respect to the
issuance thereof and free and clear of any restrictions on transfer (other than
under the Securities Act of 1933 and state securities laws). The Company will
reserve from its authorized and unissued capital stock a sufficient number of
shares of Common Stock or other securities issuable upon exercise hereof to
provide for the issuance of Common Stock or other securities on the exercise of
this Warrant. Issuance of this Warrant shall constitute full authority to the
Company's officers who are charged with the duty of executing stock certificates
to execute and
issue the necessary certificates for shares of Common Stock or other securities
upon the exercise of this Warrant.
8. Adjustment of Exercise Price and Number of Shares. 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:
(a) Subdivisions, Combinations and Other Issuances. If the Company
----------------------------------------------
shall at any time 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 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 purchase price
payable per share, but the aggregate purchase price payable for the total number
of Shares purchasable under this Warrant (as adjusted) shall remain the same.
Any adjustment under this Section 8(a) 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.
(b) Reclassification, Reorganization and Consolidation or Merger. In
------------------------------------------------------------
case of any 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 8(a) above), or in the case of any
consolidation or merger of the Company with or into another corporation or
business entity (other than a consolidation or merger (a) with a subsidiary in
which the Company is the surviving corporation or (b) which does not result in
any reclassification, capital reorganization or other change of outstanding
shares of Common Stock), then, as a condition of such reclassification,
reorganization, change, consolidation or merger, lawful provision shall be made,
and duly executed documents evidencing the same from the Company or its
successor shall be delivered to the Holder, so that the Holder 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, consolidation
or merger by a Holder of the same number of shares of Common Stock as were
purchasable by the Holder immediately prior to such reclassification,
reorganization, or change, consolidation or merger. In any such case appropriate
provisions shall be made with respect to the rights and interest of the Holder
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 purchase price per
share payable hereunder, provided the aggregate purchase price shall remain the
same. In case of a consolidation or merger, the surviving or successor
corporation or other entity shall duly execute and deliver to the Holder a
supplement hereto acknowledging such corporation's or entity's obligations under
this Warrant. The foregoing provisions of this subsection 8(b) shall similarly
apply to successive reclassifications, capital reorganizations and other
changes, consolidations or mergers.
(c) Other Distributions. In the event the Company at any time or from
-------------------
time to time makes, or files a record date for the determination of Holders of
Common Stock entitled to receive any distribution payable in securities or
assets of the Company other than shares of Common Stock or cash dividends paid
or payable solely out of retained earnings, then and in such event provision
shall be made so that the Holder shall receive upon conversion of this Warrant,
in addition to the number of shares of Common Stock receivable thereupon, the
amount of securities or assets of the Company which they would have received had
this Warrant been converted into Common Stock on the date of such event and had
they thereafter, during the period from the date of such event to and including
the date of conversion, retained such securities or assets receivable by them as
aforesaid during such period, subject to all other adjustment called for during
such period as provided in this Warrant.
(d) Notice of Adjustment. When any adjustment is required to be made
--------------------
in the Exercise Price, number or kind of shares purchasable upon exercise of the
Warrant, the Company shall promptly notify in writing the Holder of such event,
including a brief statement of the facts requiring such adjustment, and of the
number of shares of Common Stock or other securities or property thereafter
purchasable upon exercise of this Warrant. The form of this Warrant needs not be
changed because of any adjustment in the Exercise Price or the number of Shares
issuable upon its exercise. The Company shall provide the Holder with not less
than 10 days prior written notice of (i) any event resulting in an adjustment
under Section 8 and (ii) any sale, lease or other disposition of all or
substantially all of the assets of the Company.
9. No Fractional Shares or Scrip. No fractional shares or scrip
-----------------------------
representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefor.
10. No Stockholder Rights. Prior to exercise of this Warrant, the Holder
---------------------
shall not be entitled to any rights of a stockholder with respect to the Shares,
including (without limitation) the right to vote such Shares, receive dividends
or other distributions thereon, exercise preemptive rights or be notified of
stockholder meetings, and such Holder shall not be entitled to any notice or
other communication concerning the business or affairs of the Company.
11. No Impairment. Except and to the extent as waived or consented to by
-------------
the Holder, the Company will not, by amendment of its Certificate of
Incorporation or Bylaws 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 to be observed or performed hereunder by the Company, but will at all
times in good faith assist in the carrying out of all the provisions of this
Warrant and in the taking of all such action as may be necessary or appropriate
in order to protect the exercise rights of the Holder against impairment.
Without limiting the generality of the foregoing, the Company will take all such
action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and non-assessable Shares upon exercise of this
Warrant.
12. Successors and Assigns. The terms and provisions of this Warrant and
----------------------
the Agreement shall inure to the benefit of, and be binding upon, the Company
and the Holders hereof and their respective successors and assigns.
13. Amendments and Waivers. Any term of this Warrant may be amended and
----------------------
the observance of any term of this Warrant may be waived (either generally or in
a particular instance and either retroactively or prospectively), with the
written consent of the Company and the Holder of shares of Common Stock issued
or issuable upon exercise of the Warrant issued pursuant to the Agreement that
are then outstanding. Any waiver or amendment effected in accordance with this
Section shall be binding upon each Holder of any Shares purchased under this
Warrant at the time outstanding (including securities into which such Shares
have been converted) and each future Holder of all such Shares.
14. Effect of Amendment or Waiver. The Holder acknowledges that by the
-----------------------------
operation of Section 12 hereof, the Holders of at least 100% in interest of the
Warrants issued pursuant to the Agreement that are then outstanding will have
the right and power to diminish or eliminate all rights of such Holder under
this Warrant or under the Agreement.
15. Governing Law. This Warrant shall be governed by the laws of the State
-------------
of California.
16. Loss, Destruction, etc. of Warrant. Upon receipt of evidence
----------------------------------
satisfactory to the Company of the loss, theft, mutilation or destruction of
this Warrant, and in the case of any such loss, theft or destruction, upon
delivery of a bond of indemnity in such form and amounts as shall be reasonably
satisfactory to the Company, provided however, that the requirement to deliver
such bond shall not apply to the initial Holder of this Warrant, or in the event
of such mutilation, upon surrender and cancellation of the Warrant, the Company
will make and deliver a new Warrant, of like tenor, in lieu of such lost,
stolen, destroyed or mutilated Warrant. Any Warrant issued under the provision
of this Section 8 in lieu of any Warrant alleged to be lost, destroyed or
stolen, or in lieu of any mutilated Warrant, shall constitute an original
contractual obligation on the part of the Company.
17. Severability. If one or more provisions of this Warrant are held to be
------------
unenforceable under applicable law, such provision(s) shall be excluded from
this Warrant and the balance of the Warrant shall be interpreted as if such
provision(s) were so excluded and shall be enforceable in accordance with its
terms.
FUSION MEDICAL TECHNOLOGIES, INC.
By ________________________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President of Finance & Chief
Financial Officer
SUBSCRIPTION
Fusion Medical Technologies, Inc.
Attention: Corporate Secretary
The undersigned hereby elects to purchase, pursuant to the provisions of the
Warrant to purchase shares issued by Fusion Medical Technologies, Inc. and held
by the undersigned, shares of Common Stock of Fusion Medical Technologies, Inc.
Payment of the exercise price per share required under such Warrant accompanies
this Subscription.
The undersigned hereby represents and warrants that the undersigned is acquiring
such shares for its own account for investment purposes only, and not for resale
or with a view to distribution of such shares or any part thereof.
WARRANTHOLDER:
Date: ___________________ By: _____________________________
Address:_________________________
_________________________
_________________________
Name in which shares should be registered:___________________________________
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER
SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
Void after
April 2, 2006
FUSION MEDICAL TECHNOLOGIES, INC.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
This Warrant is issued to State of Wisconsin Investment Board (the
"Purchaser") by Fusion Medical Technologies, Inc., a Delaware corporation (the
"Company"), pursuant to the terms of that certain Stock and Warrant Purchase
Agreement (the "Agreement") dated as of April 2nd, 2001 in connection with the
issuance of the Company's Common Stock.
1. Purchase of Shares. Subject to the terms and conditions hereinafter set
------------------
forth and set forth in the Agreement, the holder of this Warrant (the "Holder")
is entitled, upon surrender of this Warrant at the principal office of the
Company (or at such other place as the Company shall notify the Holder hereof in
writing), to purchase from the Company up to the number of fully paid and
nonassessable shares of the Company's Common Stock (the "Shares"), that equals
the quotient obtained by dividing 20% of the aggregate principal amount paid by
the Purchaser in the Agreement by the Purchase Price, as defined in the
Agreement, or 81,911 Shares.
2. Exercise Price. The exercise price per share shall be $3.66, which is
--------------
equal to 125% of the Purchase Price, as defined in the Agreement. Such price
shall be subject to adjustment pursuant to Section 8 hereof (such price, as
adjusted from time to time, is herein referred to as the "Exercise Price").
3. Exercise Period. The Warrant shall be exercisable, in whole or in part,
---------------
beginning upon issuance and will terminate five (5) years after the date of the
Agreement.
4. Method of Exercise. While this Warrant remains outstanding and
------------------
exercisable in accordance with Section 3 above, the Holder may exercise, in
whole or in part, the purchase rights evidenced hereby. Such exercise shall be
effected by:
(i) the surrender of the Warrant, together with a duly executed
copy of the form of subscription attached hereto, to the Secretary of the
Company at its principal offices; and
(ii) the payment to the Company of an amount equal to the
aggregate Exercise Price for the number of Shares being purchased.
5. Net Exercise. In lieu of cash exercising this Warrant, the Holder may
------------
elect to receive shares equal to the value of this Warrant (or the portion
thereof being canceled) by surrender of this Warrant at the principal office of
the Company together with notice of such election, in which event the Company
shall issue to the Holder hereof a number of shares of Common Stock computed
using the following formula:
Y (A - B)
---------
X = A
Where
X -- The number of Shares to be issued to the Holder.
Y -- The number of Shares purchasable under this Warrant.
A -- The fair market value of one share of the Company's Common
Stock.
B -- The Exercise Price (as adjusted to the date of such
calculations).
For purposes of the above calculation, the fair market value per Common
Stock share shall be the closing price of the Common Stock, as quoted by the
National Association of Securities Dealers Automated Quotation (Nasdaq) Service,
the over-the-counter market or the exchange market in which the Common Stock is
traded immediately prior to the close of business on the date of its surrender
for exercise. If the Common Stock is not traded on the Nasdaq, the over-the-
counter market or the exchange market, the fair market value shall be the price
per share that the Company could obtain from a willing buyer for shares of
Common Stock sold by the Company from authorized but unissued shares, as such
prices shall be determined in good faith by the Company's Board of Directors.
6. Certificates for Shares. Upon the exercise of the purchase rights
-----------------------
evidenced by this Warrant, one or more certificates for the number of Shares so
purchased shall be issued as soon as practicable thereafter, and in any event
within thirty (30) days of the delivery of the subscription notice. This Warrant
shall be deemed to have been exercised immediately prior to the close of
business on the date of its surrender for exercise as provided above, and the
person or persons entitled to receive the shares of Common Stock or other
securities issuable upon such exercise shall be treated for all purposes as the
Holder of such shares of record as of the close of business on such date. Upon
any partial exercise of this Warrant, the Company will issue to the Holder a new
Warrant for the number of shares of Common Stock or other securities as to which
Warrant was not exercised.
7. Authorization and Reservation of Stock. The Company covenants that the
--------------------------------------
Shares, when issued pursuant to the exercise of this Warrant, will be duly and
validly issued, fully paid and nonassessable, free from all preemptive rights of
any stock, and free from all taxes, liens, and charges with respect to the
issuance thereof and free and clear of any restrictions on transfer (other than
under the Securities Act of 1933 and state securities laws). The Company will
reserve from its authorized and unissued capital stock a sufficient number of
shares of Common Stock or other securities issuable upon exercise hereof to
provide for the issuance of Common Stock or other
securities on the exercise of this Warrant. Issuance of this Warrant shall
constitute full authority to the Company's officers who are charged with the
duty of executing stock certificates to execute and issue the necessary
certificates for shares of Common Stock or other securities upon the exercise of
this Warrant.
8. Adjustment of Exercise Price and Number of Shares. 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:
(a) Subdivisions, Combinations and Other Issuances. If the Company
----------------------------------------------
shall at any time 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 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 purchase price
payable per share, but the aggregate purchase price payable for the total number
of Shares purchasable under this Warrant (as adjusted) shall remain the same.
Any adjustment under this Section 8(a) 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.
(b) Reclassification, Reorganization and Consolidation or Merger. In
------------------------------------------------------------
case of any 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 8(a) above), or in the case of any
consolidation or merger of the Company with or into another corporation or
business entity (other than a consolidation or merger (a) with a subsidiary in
which the Company is the surviving corporation or (b) which does not result in
any reclassification, capital reorganization or other change of outstanding
shares of Common Stock), then, as a condition of such reclassification,
reorganization, change, consolidation or merger, lawful provision shall be made,
and duly executed documents evidencing the same from the Company or its
successor shall be delivered to the Holder, so that the Holder 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, consolidation
or merger by a Holder of the same number of shares of Common Stock as were
purchasable by the Holder immediately prior to such reclassification,
reorganization, or change, consolidation or merger. In any such case appropriate
provisions shall be made with respect to the rights and interest of the Holder
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 purchase price per
share payable hereunder, provided the aggregate purchase price shall remain the
same. In case of a consolidation or merger, the surviving or successor
corporation or other entity shall duly execute and deliver to the Holder a
supplement hereto acknowledging such corporation's or entity's obligations under
this Warrant. The foregoing provisions of this subsection 8(b) shall similarly
apply to successive reclassifications, capital reorganizations and other
changes, consolidations or mergers.
(c) Other Distributions. In the event the Company at any time or from
-------------------
time to time makes, or files a record date for the determination of Holders of
Common Stock entitled to receive any distribution payable in securities or
assets of the Company other than shares of Common Stock or cash dividends paid
or payable solely out of retained earnings, then and in such event provision
shall be made so that the Holder shall receive upon conversion of this Warrant,
in addition to the number of shares of Common Stock receivable thereupon, the
amount of securities or assets of the Company which they would have received had
this Warrant been converted into Common Stock on the date of such event and had
they thereafter, during the period from the date of such event to and including
the date of conversion, retained such securities or assets receivable by them as
aforesaid during such period, subject to all other adjustment called for during
such period as provided in this Warrant.
(d) Notice of Adjustment. When any adjustment is required to be made
--------------------
in the Exercise Price, number or kind of shares purchasable upon exercise of the
Warrant, the Company shall promptly notify in writing the Holder of such event,
including a brief statement of the facts requiring such adjustment, and of the
number of shares of Common Stock or other securities or property thereafter
purchasable upon exercise of this Warrant. The form of this Warrant needs not be
changed because of any adjustment in the Exercise Price or the number of Shares
issuable upon its exercise. The Company shall provide the Holder with not less
than 10 days prior written notice of (i) any event resulting in an adjustment
under Section 8 and (ii) any sale, lease or other disposition of all or
substantially all of the assets of the Company.
9. No Fractional Shares or Scrip. No fractional shares or scrip
-----------------------------
representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefor.
10. No Stockholder Rights. Prior to exercise of this Warrant, the Holder
---------------------
shall not be entitled to any rights of a stockholder with respect to the Shares,
including (without limitation) the right to vote such Shares, receive dividends
or other distributions thereon, exercise preemptive rights or be notified of
stockholder meetings, and such Holder shall not be entitled to any notice or
other communication concerning the business or affairs of the Company.
11. No Impairment. Except and to the extent as waived or consented to by
-------------
the Holder, the Company will not, by amendment of its Certificate of
Incorporation or Bylaws 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 to be observed or performed hereunder by the Company, but will at all
times in good faith assist in the carrying out of all the provisions of this
Warrant and in the taking of all such action as may be necessary or appropriate
in order to protect the exercise rights of the Holder against impairment.
Without limiting the generality of the foregoing, the Company will take all such
action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and non-assessable Shares upon exercise of this
Warrant.
12. Successors and Assigns. The terms and provisions of this Warrant and
----------------------
the Agreement shall inure to the benefit of, and be binding upon, the Company
and the Holders hereof and their respective successors and assigns.
13. Amendments and Waivers. Any term of this Warrant may be amended and
----------------------
the observance of any term of this Warrant may be waived (either generally or in
a particular instance and either retroactively or prospectively), with the
written consent of the Company and the Holder of shares of Common Stock issued
or issuable upon exercise of the Warrant issued pursuant to the Agreement that
are then outstanding. Any waiver or amendment effected in accordance with this
Section shall be binding upon each Holder of any Shares purchased under this
Warrant at the time outstanding (including securities into which such Shares
have been converted) and each future Holder of all such Shares.
14. Effect of Amendment or Waiver. The Holder acknowledges that by the
-----------------------------
operation of Section 12 hereof, the Holders of at least 100% in interest of the
Warrants issued pursuant to the Agreement that are then outstanding will have
the right and power to diminish or eliminate all rights of such Holder under
this Warrant or under the Agreement.
15. Governing Law. This Warrant shall be governed by the laws of the State
-------------
of California.
16. Loss, Destruction, etc. of Warrant. Upon receipt of evidence
----------------------------------
satisfactory to the Company of the loss, theft, mutilation or destruction of
this Warrant, and in the case of any such loss, theft or destruction, upon
delivery of a bond of indemnity in such form and amounts as shall be reasonably
satisfactory to the Company, provided however, that the requirement to deliver
such bond shall not apply to the initial Holder of this Warrant, or in the event
of such mutilation, upon surrender and cancellation of the Warrant, the Company
will make and deliver a new Warrant, of like tenor, in lieu of such lost,
stolen, destroyed or mutilated Warrant. Any Warrant issued under the provision
of this Section 8 in lieu of any Warrant alleged to be lost, destroyed or
stolen, or in lieu of any mutilated Warrant, shall constitute an original
contractual obligation on the part of the Company.
17. Severability. If one or more provisions of this Warrant are held to be
------------
unenforceable under applicable law, such provision(s) shall be excluded from
this Warrant and the balance of the Warrant shall be interpreted as if such
provision(s) were so excluded and shall be enforceable in accordance with its
terms.
FUSION MEDICAL TECHNOLOGIES, INC.
By _________________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President of Finance & Chief
Financial Officer
SUBSCRIPTION
Fusion Medical Technologies, Inc.
Attention: Corporate Secretary
The undersigned hereby elects to purchase, pursuant to the provisions of the
Warrant to purchase shares issued by Fusion Medical Technologies, Inc. and held
by the undersigned, shares of Common Stock of Fusion Medical Technologies, Inc.
Payment of the exercise price per share required under such Warrant accompanies
this Subscription.
The undersigned hereby represents and warrants that the undersigned is acquiring
such shares for its own account for investment purposes only, and not for resale
or with a view to distribution of such shares or any part thereof.
WARRANTHOLDER:
Date: ___________________ By:_______________________________________
Address:__________________________________
__________________________________
__________________________________
Name in which shares should be
registered:__________________________________________________________________
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER
SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
Void after
April 2, 2006
FUSION MEDICAL TECHNOLOGIES, INC.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
This Warrant is issued to Asset Management (the "Purchaser") by Fusion
Medical Technologies, Inc., a Delaware corporation (the "Company"), pursuant to
the terms of that certain Stock and Warrant Purchase Agreement (the "Agreement")
dated as of April 2/nd/, 2001 in connection with the issuance of the Company's
Common Stock.
1. Purchase of Shares. Subject to the terms and conditions hereinafter
------------------
set forth and set forth in the Agreement, the holder of this Warrant (the
"Holder") is entitled, upon surrender of this Warrant at the principal office of
the Company (or at such other place as the Company shall notify the Holder
hereof in writing), to purchase from the Company up to the number of fully paid
and nonassessable shares of the Company's Common Stock (the "Shares"), that
equals the quotient obtained by dividing 25% of the aggregate principal amount
paid by the Purchaser in the Agreement by the Purchase Price, as defined in the
Agreement, or 68,259 Shares.
2. Exercise Price. The exercise price per share shall be $3.66, which is
--------------
equal to 125% of the Purchase Price, as defined in the Agreement. Such price
shall be subject to adjustment pursuant to Section 8 hereof (such price, as
adjusted from time to time, is herein referred to as the "Exercise Price").
3. Exercise Period. The Warrant shall be exercisable, in whole or in
---------------
part, beginning upon issuance and will terminate five (5) years after the date
of the Agreement.
4. Method of Exercise. While this Warrant remains outstanding and
------------------
exercisable in accordance with Section 3 above, the Holder may exercise, in
whole or in part, the purchase rights evidenced hereby. Such exercise shall be
effected by:
(i) the surrender of the Warrant, together with a duly executed
copy of the form of subscription attached hereto, to the Secretary of the
Company at its principal offices; and
(ii) the payment to the Company of an amount equal to the
aggregate Exercise Price for the number of Shares being purchased.
5. Net Exercise. In lieu of cash exercising this Warrant, the Holder may
------------
elect to receive shares equal to the value of this Warrant (or the portion
thereof being canceled) by surrender of this Warrant at the principal office of
the Company together with notice of such election, in which event the Company
shall issue to the Holder hereof a number of shares of Common Stock computed
using the following formula:
Y (A - B)
---------
X = A
Where
X -- The number of Shares to be issued to the Holder.
Y -- The number of Shares purchasable under this Warrant.
A -- The fair market value of one share of the Company's Common
Stock.
B -- The Exercise Price (as adjusted to the date of such
calculations).
For purposes of the above calculation, the fair market value per Common
Stock share shall be the closing price of the Common Stock, as quoted by the
National Association of Securities Dealers Automated Quotation (Nasdaq) Service,
the over-the-counter market or the exchange market in which the Common Stock is
traded immediately prior to the close of business on the date of its surrender
for exercise. If the Common Stock is not traded on the Nasdaq, the over-the-
counter market or the exchange market, the fair market value shall be the price
per share that the Company could obtain from a willing buyer for shares of
Common Stock sold by the Company from authorized but unissued shares, as such
prices shall be determined in good faith by the Company's Board of Directors.
6. Certificates for Shares. Upon the exercise of the purchase rights
-----------------------
evidenced by this Warrant, one or more certificates for the number of Shares so
purchased shall be issued as soon as practicable thereafter, and in any event
within thirty (30) days of the delivery of the subscription notice. This Warrant
shall be deemed to have been exercised immediately prior to the close of
business on the date of its surrender for exercise as provided above, and the
person or persons entitled to receive the shares of Common Stock or other
securities issuable upon such exercise shall be treated for all purposes as the
Holder of such shares of record as of the close of business on such date. Upon
any partial exercise of this Warrant, the Company will issue to the Holder a new
Warrant for the number of shares of Common Stock or other securities as to which
Warrant was not exercised.
7. Authorization and Reservation of Stock. The Company covenants that the
--------------------------------------
Shares, when issued pursuant to the exercise of this Warrant, will be duly and
validly issued, fully paid and nonassessable, free from all preemptive rights of
any stock, and free from all taxes, liens, and charges with respect to the
issuance thereof and free and clear of any restrictions on transfer (other than
under the Securities Act of 1933 and state securities laws). The Company will
reserve from its authorized and unissued capital stock a sufficient number of
shares of Common Stock or other securities issuable upon exercise hereof to
provide for the issuance of Common Stock or other
securities on the exercise of this Warrant. Issuance of this Warrant shall
constitute full authority to the Company's officers who are charged with the
duty of executing stock certificates to execute and issue the necessary
certificates for shares of Common Stock or other securities upon the exercise of
this Warrant.
8. Adjustment of Exercise Price and Number of Shares. 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:
(a) Subdivisions, Combinations and Other Issuances. If the Company
----------------------------------------------
shall at any time 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 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 purchase price
payable per share, but the aggregate purchase price payable for the total number
of Shares purchasable under this Warrant (as adjusted) shall remain the same.
Any adjustment under this Section 8(a) 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.
(b) Reclassification, Reorganization and Consolidation or Merger. In
------------------------------------------------------------
case of any 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 8(a) above), or in the case of any
consolidation or merger of the Company with or into another corporation or
business entity (other than a consolidation or merger (a) with a subsidiary in
which the Company is the surviving corporation or (b) which does not result in
any reclassification, capital reorganization or other change of outstanding
shares of Common Stock), then, as a condition of such reclassification,
reorganization, change, consolidation or merger, lawful provision shall be made,
and duly executed documents evidencing the same from the Company or its
successor shall be delivered to the Holder, so that the Holder 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, consolidation
or merger by a Holder of the same number of shares of Common Stock as were
purchasable by the Holder immediately prior to such reclassification,
reorganization, or change, consolidation or merger. In any such case appropriate
provisions shall be made with respect to the rights and interest of the Holder
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 purchase price per
share payable hereunder, provided the aggregate purchase price shall remain the
same. In case of a consolidation or merger, the surviving or successor
corporation or other entity shall duly execute and deliver to the Holder a
supplement hereto acknowledging such corporation's or entity's obligations under
this Warrant. The foregoing provisions of this subsection 8(b) shall similarly
apply to successive reclassifications, capital reorganizations and other
changes, consolidations or mergers.
(c) Other Distributions. In the event the Company at any time or from
-------------------
time to time makes, or files a record date for the determination of Holders of
Common Stock entitled to receive any distribution payable in securities or
assets of the Company other than shares of Common Stock or cash dividends paid
or payable solely out of retained earnings, then and in such event provision
shall be made so that the Holder shall receive upon conversion of this Warrant,
in addition to the number of shares of Common Stock receivable thereupon, the
amount of securities or assets of the Company which they would have received had
this Warrant been converted into Common Stock on the date of such event and had
they thereafter, during the period from the date of such event to and including
the date of conversion, retained such securities or assets receivable by them as
aforesaid during such period, subject to all other adjustment called for during
such period as provided in this Warrant.
(d) Notice of Adjustment. When any adjustment is required to be made in
--------------------
the Exercise Price, number or kind of shares purchasable upon exercise of the
Warrant, the Company shall promptly notify in writing the Holder of such event,
including a brief statement of the facts requiring such adjustment, and of the
number of shares of Common Stock or other securities or property thereafter
purchasable upon exercise of this Warrant. The form of this Warrant needs not be
changed because of any adjustment in the Exercise Price or the number of Shares
issuable upon its exercise. The Company shall provide the Holder with not less
than 10 days prior written notice of (i) any event resulting in an adjustment
under Section 8 and (ii) any sale, lease or other disposition of all or
substantially all of the assets of the Company.
9. No Fractional Shares or Scrip. No fractional shares or scrip
-----------------------------
representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefor.
10. No Stockholder Rights. Prior to exercise of this Warrant, the Holder
---------------------
shall not be entitled to any rights of a stockholder with respect to the Shares,
including (without limitation) the right to vote such Shares, receive dividends
or other distributions thereon, exercise preemptive rights or be notified of
stockholder meetings, and such Holder shall not be entitled to any notice or
other communication concerning the business or affairs of the Company.
11. No Impairment. Except and to the extent as waived or consented to by
-------------
the Holder, the Company will not, by amendment of its Certificate of
Incorporation or Bylaws 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 to be observed or performed hereunder by the Company, but will at all
times in good faith assist in the carrying out of all the provisions of this
Warrant and in the taking of all such action as may be necessary or appropriate
in order to protect the exercise rights of the Holder against impairment.
Without limiting the generality of the foregoing, the Company will take all such
action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and non-assessable Shares upon exercise of this
Warrant.
12. Successors and Assigns. The terms and provisions of this Warrant and
----------------------
the Agreement shall inure to the benefit of, and be binding upon, the Company
and the Holders hereof and their respective successors and assigns.
13. Amendments and Waivers. Any term of this Warrant may be amended and the
----------------------
observance of any term of this Warrant may be waived (either generally or in a
particular instance and either retroactively or prospectively), with the written
consent of the Company and the Holder of shares of Common Stock issued or
issuable upon exercise of the Warrant issued pursuant to the Agreement that are
then outstanding. Any waiver or amendment effected in accordance with this
Section shall be binding upon each Holder of any Shares purchased under this
Warrant at the time outstanding (including securities into which such Shares
have been converted) and each future Holder of all such Shares.
14. Effect of Amendment or Waiver. The Holder acknowledges that by the
-----------------------------
operation of Section 12 hereof, the Holders of at least 100% in interest of the
Warrants issued pursuant to the Agreement that are then outstanding will have
the right and power to diminish or eliminate all rights of such Holder under
this Warrant or under the Agreement.
15. Governing Law. This Warrant shall be governed by the laws of the State
-------------
of California.
16. Loss, Destruction, etc. of Warrant. Upon receipt of evidence
----------------------------------
satisfactory to the Company of the loss, theft, mutilation or destruction of
this Warrant, and in the case of any such loss, theft or destruction, upon
delivery of a bond of indemnity in such form and amounts as shall be reasonably
satisfactory to the Company, provided however, that the requirement to deliver
such bond shall not apply to the initial Holder of this Warrant, or in the event
of such mutilation, upon surrender and cancellation of the Warrant, the Company
will make and deliver a new Warrant, of like tenor, in lieu of such lost,
stolen, destroyed or mutilated Warrant. Any Warrant issued under the provision
of this Section 8 in lieu of any Warrant alleged to be lost, destroyed or
stolen, or in lieu of any mutilated Warrant, shall constitute an original
contractual obligation on the part of the Company.
17. Severability. If one or more provisions of this Warrant are held to be
------------
unenforceable under applicable law, such provision(s) shall be excluded from
this Warrant and the balance of the Warrant shall be interpreted as if such
provision(s) were so excluded and shall be enforceable in accordance with its
terms .
FUSION MEDICAL TECHNOLOGIES, INC.
By _________________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President of Finance & Chief
Financial Officer
SUBSCRIPTION
Fusion Medical Technologies, Inc.
Attention: Corporate Secretary
The undersigned hereby elects to purchase, pursuant to the provisions of the
Warrant to purchase shares issued by Fusion Medical Technologies, Inc. and held
by the undersigned, shares of Common Stock of Fusion Medical Technologies, Inc.
Payment of the exercise price per share required under such Warrant accompanies
this Subscription.
The undersigned hereby represents and warrants that the undersigned is acquiring
such shares for its own account for investment purposes only, and not for resale
or with a view to distribution of such shares or any part thereof.
WARRANTHOLDER:
Date: ___________________ By: ________________________________________
Address:____________________________________
____________________________________
____________________________________
Name in which shares should be registered:_________________________________
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER
SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
Void after
April 2, 2006
FUSION MEDICAL TECHNOLOGIES, INC.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
This Warrant is issued to Alloy Partners 2000, L.P. (the "Purchaser") by
Fusion Medical Technologies, Inc., a Delaware corporation (the "Company"),
pursuant to the terms of that certain Stock and Warrant Purchase Agreement (the
"Agreement") dated as of April 2nd, 2001 in connection with the issuance of the
Company's Common Stock.
1. Purchase of Shares. Subject to the terms and conditions hereinafter set
------------------
forth and set forth in the Agreement, the holder of this Warrant (the "Holder")
is entitled, upon surrender of this Warrant at the principal office of the
Company (or at such other place as the Company shall notify the Holder hereof in
writing), to purchase from the Company up to the number of fully paid and
nonassessable shares of the Company's Common Stock (the "Shares"), that equals
19,047 Shares.
2. Exercise Price. The exercise price per share shall be $3.66, which is
--------------
equal to 125% of the Purchase Price, as defined in the Agreement. Such price
shall be subject to adjustment pursuant to Section 8 hereof (such price, as
adjusted from time to time, is herein referred to as the "Exercise Price").
3. Exercise Period. The Warrant shall be exercisable, in whole or in part,
---------------
beginning upon issuance and will terminate five (5) years after the date of the
Agreement.
4. Method of Exercise. While this Warrant remains outstanding and
------------------
exercisable in accordance with Section 3 above, the Holder may exercise, in
whole or in part, the purchase rights evidenced hereby. Such exercise shall be
effected by:
(i) the surrender of the Warrant, together with a duly executed
copy of the form of subscription attached hereto, to the Secretary of the
Company at its principal offices; and
(ii) the payment to the Company of an amount equal to the
aggregate Exercise Price for the number of Shares being purchased.
5. Net Exercise. In lieu of cash exercising this Warrant, the Holder may
------------
elect to receive shares equal to the value of this Warrant (or the portion
thereof being canceled) by surrender of this
Warrant at the principal office of the Company together with notice of such
election, in which event the Company shall issue to the Holder hereof a number
of shares of Common Stock computed using the following formula:
Y (A - B)
---------
X = A
Where
X -- The number of Shares to be issued to the Holder.
Y -- The number of Shares purchasable under this Warrant.
A -- The fair market value of one share of the Company's Common
Stock.
B -- The Exercise Price (as adjusted to the date of such
calculations).
For purposes of the above calculation, the fair market value per Common
Stock share shall be the closing price of the Common Stock, as quoted by the
National Association of Securities Dealers Automated Quotation (Nasdaq) Service,
the over-the-counter market or the exchange market in which the Common Stock is
traded immediately prior to the close of business on the date of its surrender
for exercise. If the Common Stock is not traded on the Nasdaq, the over-the-
counter market or the exchange market, the fair market value shall be the price
per share that the Company could obtain from a willing buyer for shares of
Common Stock sold by the Company from authorized but unissued shares, as such
prices shall be determined in good faith by the Company's Board of Directors.
6. Certificates for Shares. Upon the exercise of the purchase rights
-----------------------
evidenced by this Warrant, one or more certificates for the number of Shares so
purchased shall be issued as soon as practicable thereafter, and in any event
within thirty (30) days of the delivery of the subscription notice. This Warrant
shall be deemed to have been exercised immediately prior to the close of
business on the date of its surrender for exercise as provided above, and the
person or persons entitled to receive the shares of Common Stock or other
securities issuable upon such exercise shall be treated for all purposes as the
Holder of such shares of record as of the close of business on such date. Upon
any partial exercise of this Warrant, the Company will issue to the Holder a new
Warrant for the number of shares of Common Stock or other securities as to which
Warrant was not exercised.
7. Authorization and Reservation of Stock. The Company covenants that the
--------------------------------------
Shares, when issued pursuant to the exercise of this Warrant, will be duly and
validly issued, fully paid and nonassessable, free from all preemptive rights of
any stock, and free from all taxes, liens, and charges with respect to the
issuance thereof and free and clear of any restrictions on transfer (other than
under the Securities Act of 1933 and state securities laws). The Company will
reserve from its authorized and unissued capital stock a sufficient number of
shares of Common Stock or other securities issuable upon exercise hereof to
provide for the issuance of Common Stock or other securities on the exercise of
this Warrant. Issuance of this Warrant shall constitute full authority to the
Company's officers who are charged with the duty of executing stock certificates
to execute and
issue the necessary certificates for shares of Common Stock or other securities
upon the exercise of this Warrant.
8. Adjustment of Exercise Price and Number of Shares. 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:
(a) Subdivisions, Combinations and Other Issuances. If the Company shall
----------------------------------------------
at any time 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 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 purchase price payable per
share, but the aggregate purchase price payable for the total number of Shares
purchasable under this Warrant (as adjusted) shall remain the same. Any
adjustment under this Section 8(a) 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.
(b) Reclassification, Reorganization and Consolidation or Merger. In
------------------------------------------------------------
case of any 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 8(a) above), or in the case of any
consolidation or merger of the Company with or into another corporation or
business entity (other than a consolidation or merger (a) with a subsidiary in
which the Company is the surviving corporation or (b) which does not result in
any reclassification, capital reorganization or other change of outstanding
shares of Common Stock), then, as a condition of such reclassification,
reorganization, change, consolidation or merger, lawful provision shall be made,
and duly executed documents evidencing the same from the Company or its
successor shall be delivered to the Holder, so that the Holder 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, consolidation
or merger by a Holder of the same number of shares of Common Stock as were
purchasable by the Holder immediately prior to such reclassification,
reorganization, or change, consolidation or merger. In any such case appropriate
provisions shall be made with respect to the rights and interest of the Holder
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 purchase price per
share payable hereunder, provided the aggregate purchase price shall remain the
same. In case of a consolidation or merger, the surviving or successor
corporation or other entity shall duly execute and deliver to the Holder a
supplement hereto acknowledging such corporation's or entity's obligations under
this Warrant. The foregoing provisions of this subsection 8(b) shall similarly
apply to successive reclassifications, capital reorganizations and other
changes, consolidations or mergers.
(c) Other Distributions. In the event the Company at any time or from
-------------------
time to time makes, or files a record date for the determination of Holders of
Common Stock entitled to receive any distribution payable in securities or
assets of the Company other than shares of Common Stock or cash dividends paid
or payable solely out of retained earnings, then and in such event provision
shall be made so that the Holder shall receive upon conversion of this Warrant,
in addition to the number of shares of Common Stock receivable thereupon, the
amount of securities or assets of the Company which they would have received had
this Warrant been converted into Common Stock on the date of such event and had
they thereafter, during the period from the date of such event to and including
the date of conversion, retained such securities or assets receivable by them as
aforesaid during such period, subject to all other adjustment called for during
such period as provided in this Warrant.
(d) Notice of Adjustment. When any adjustment is required to be made in
--------------------
the Exercise Price, number or kind of shares purchasable upon exercise of the
Warrant, the Company shall promptly notify in writing the Holder of such event,
including a brief statement of the facts requiring such adjustment, and of the
number of shares of Common Stock or other securities or property thereafter
purchasable upon exercise of this Warrant. The form of this Warrant needs not be
changed because of any adjustment in the Exercise Price or the number of Shares
issuable upon its exercise. The Company shall provide the Holder with not less
than 10 days prior written notice of (i) any event resulting in an adjustment
under Section 8 and (ii) any sale, lease or other disposition of all or
substantially all of the assets of the Company.
9. No Fractional Shares or Scrip. No fractional shares or scrip
-----------------------------
representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefor.
10. No Stockholder Rights. Prior to exercise of this Warrant, the Holder
---------------------
shall not be entitled to any rights of a stockholder with respect to the Shares,
including (without limitation) the right to vote such Shares, receive dividends
or other distributions thereon, exercise preemptive rights or be notified of
stockholder meetings, and such Holder shall not be entitled to any notice or
other communication concerning the business or affairs of the Company.
11. No Impairment. Except and to the extent as waived or consented to by
-------------
the Holder, the Company will not, by amendment of its Certificate of
Incorporation or Bylaws 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 to be observed or performed hereunder by the Company, but will at all
times in good faith assist in the carrying out of all the provisions of this
Warrant and in the taking of all such action as may be necessary or appropriate
in order to protect the exercise rights of the Holder against impairment.
Without limiting the generality of the foregoing, the Company will take all such
action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and non-assessable Shares upon exercise of this
Warrant.
12. Successors and Assigns. The terms and provisions of this Warrant and
----------------------
the Agreement shall inure to the benefit of, and be binding upon, the Company
and the Holders hereof and their respective successors and assigns.
13. Amendments and Waivers. Any term of this Warrant may be amended and
----------------------
the observance of any term of this Warrant may be waived (either generally or in
a particular instance and either retroactively or prospectively), with the
written consent of the Company and the Holder of shares of Common Stock issued
or issuable upon exercise of the Warrant issued pursuant to the Agreement that
are then outstanding. Any waiver or amendment effected in accordance with this
Section shall be binding upon each Holder of any Shares purchased under this
Warrant at the time outstanding (including securities into which such Shares
have been converted) and each future Holder of all such Shares.
14. Effect of Amendment or Waiver. The Holder acknowledges that by the
-----------------------------
operation of Section 12 hereof, the Holders of at least 100% in interest of the
Warrants issued pursuant to the Agreement that are then outstanding will have
the right and power to diminish or eliminate all rights of such Holder under
this Warrant or under the Agreement.
15. Governing Law. This Warrant shall be governed by the laws of the State
-------------
of California.
16. Loss, Destruction, etc. of Warrant. Upon receipt of evidence
----------------------------------
satisfactory to the Company of the loss, theft, mutilation or destruction of
this Warrant, and in the case of any such loss, theft or destruction, upon
delivery of a bond of indemnity in such form and amounts as shall be reasonably
satisfactory to the Company, provided however, that the requirement to deliver
such bond shall not apply to the initial Holder of this Warrant, or in the event
of such mutilation, upon surrender and cancellation of the Warrant, the Company
will make and deliver a new Warrant, of like tenor, in lieu of such lost,
stolen, destroyed or mutilated Warrant. Any Warrant issued under the provision
of this Section 8 in lieu of any Warrant alleged to be lost, destroyed or
stolen, or in lieu of any mutilated Warrant, shall constitute an original
contractual obligation on the part of the Company.
17. Severability. If one or more provisions of this Warrant are held to be
------------
unenforceable under applicable law, such provision(s) shall be excluded from
this Warrant and the balance of the Warrant shall be interpreted as if such
provision(s) were so excluded and shall be enforceable in accordance with its
terms.
FUSION MEDICAL TECHNOLOGIES, INC.
By _________________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President of Finance & Chief
Financial Officer
SUBSCRIPTION
Fusion Medical Technologies, Inc.
Attention: Corporate Secretary
The undersigned hereby elects to purchase, pursuant to the provisions of the
Warrant to purchase shares issued by Fusion Medical Technologies, Inc. and held
by the undersigned, shares of Common Stock of Fusion Medical Technologies, Inc.
Payment of the exercise price per share required under such Warrant accompanies
this Subscription.
The undersigned hereby represents and warrants that the undersigned is acquiring
such shares for its own account for investment purposes only, and not for resale
or with a view to distribution of such shares or any part thereof.
WARRANTHOLDER:
Date: ___________________ By: _______________________________________
Address: __________________________________
__________________________________
__________________________________
Name in which shares should be registered:________________________________
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER
SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
Void after
April 2, 2006
FUSION MEDICAL TECHNOLOGIES, INC.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
This Warrant is issued to Alloy Ventures 2000, L.P. (the "Purchaser") by
Fusion Medical Technologies, Inc., a Delaware corporation (the "Company"),
pursuant to the terms of that certain Stock and Warrant Purchase Agreement (the
"Agreement") dated as of April 2nd, 2001 in connection with the issuance of the
Company's Common Stock.
1. Purchase of Shares. Subject to the terms and conditions hereinafter
------------------
set forth and set forth in the Agreement, the holder of this Warrant (the
"Holder") is entitled, upon surrender of this Warrant at the principal office of
the Company (or at such other place as the Company shall notify the Holder
hereof in writing), to purchase from the Company up to the number of fully paid
and nonassessable shares of the Company's Common Stock (the "Shares"), that
equals 371,614 Shares.
2. Exercise Price. The exercise price per share shall be $3.66, which is
--------------
equal to 125% of the Purchase Price, as defined in the Agreement. Such price
shall be subject to adjustment pursuant to Section 8 hereof (such price, as
adjusted from time to time, is herein referred to as the "Exercise Price").
3. Exercise Period. The Warrant shall be exercisable, in whole or in
---------------
part, beginning upon issuance and will terminate five (5) years after the date
of the Agreement.
4. Method of Exercise. While this Warrant remains outstanding and
------------------
exercisable in accordance with Section 3 above, the Holder may exercise, in
whole or in part, the purchase rights evidenced hereby. Such exercise shall be
effected by:
(i) the surrender of the Warrant, together with a duly executed
copy of the form of subscription attached hereto, to the Secretary of the
Company at its principal offices; and
(ii) the payment to the Company of an amount equal to the
aggregate Exercise Price for the number of Shares being purchased.
5. Net Exercise. In lieu of cash exercising this Warrant, the Holder may
elect to receive shares equal to the value of this Warrant (or the portion
thereof being canceled) by surrender of this
Warrant at the principal office of the Company together with notice of such
election, in which event the Company shall issue to the Holder hereof a number
of shares of Common Stock computed using the following formula:
Y (A - B)
---------
X = A
Where
X -- The number of Shares to be issued to the Holder.
Y -- The number of Shares purchasable under this Warrant.
A -- The fair market value of one share of the Company's Common
Stock.
B -- The Exercise Price (as adjusted to the date of such
calculations).
For purposes of the above calculation, the fair market value per Common
Stock share shall be the closing price of the Common Stock, as quoted by the
National Association of Securities Dealers Automated Quotation (Nasdaq) Service,
the over-the-counter market or the exchange market in which the Common Stock is
traded immediately prior to the close of business on the date of its surrender
for exercise. If the Common Stock is not traded on the Nasdaq, the over-the-
counter market or the exchange market, the fair market value shall be the price
per share that the Company could obtain from a willing buyer for shares of
Common Stock sold by the Company from authorized but unissued shares, as such
prices shall be determined in good faith by the Company's Board of Directors.
6. Certificates for Shares. Upon the exercise of the purchase rights
-----------------------
evidenced by this Warrant, one or more certificates for the number of Shares so
purchased shall be issued as soon as practicable thereafter, and in any event
within thirty (30) days of the delivery of the subscription notice. This Warrant
shall be deemed to have been exercised immediately prior to the close of
business on the date of its surrender for exercise as provided above, and the
person or persons entitled to receive the shares of Common Stock or other
securities issuable upon such exercise shall be treated for all purposes as the
Holder of such shares of record as of the close of business on such date. Upon
any partial exercise of this Warrant, the Company will issue to the Holder a new
Warrant for the number of shares of Common Stock or other securities as to which
Warrant was not exercised.
7. Authorization and Reservation of Stock. The Company covenants that the
--------------------------------------
Shares, when issued pursuant to the exercise of this Warrant, will be duly and
validly issued, fully paid and nonassessable, free from all preemptive rights of
any stock, and free from all taxes, liens, and charges with respect to the
issuance thereof and free and clear of any restrictions on transfer (other than
under the Securities Act of 1933 and state securities laws). The Company will
reserve from its authorized and unissued capital stock a sufficient number of
shares of Common Stock or other securities issuable upon exercise hereof to
provide for the issuance of Common Stock or other securities on the exercise of
this Warrant. Issuance of this Warrant shall constitute full authority to the
Company's officers who are charged with the duty of executing stock certificates
to execute and
issue the necessary certificates for shares of Common Stock or other securities
upon the exercise of this Warrant.
8. Adjustment of Exercise Price and Number of Shares. 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:
(a) Subdivisions, Combinations and Other Issuances. If the Company
----------------------------------------------
shall at any time 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 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 purchase price
payable per share, but the aggregate purchase price payable for the total number
of Shares purchasable under this Warrant (as adjusted) shall remain the same.
Any adjustment under this Section 8(a) 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.
(b) Reclassification, Reorganization and Consolidation or Merger. In
------------------------------------------------------------
case of any 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 8(a) above), or in the case of any
consolidation or merger of the Company with or into another corporation or
business entity (other than a consolidation or merger (a) with a subsidiary in
which the Company is the surviving corporation or (b) which does not result in
any reclassification, capital reorganization or other change of outstanding
shares of Common Stock), then, as a condition of such reclassification,
reorganization, change, consolidation or merger, lawful provision shall be made,
and duly executed documents evidencing the same from the Company or its
successor shall be delivered to the Holder, so that the Holder 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, consolidation
or merger by a Holder of the same number of shares of Common Stock as were
purchasable by the Holder immediately prior to such reclassification,
reorganization, or change, consolidation or merger. In any such case appropriate
provisions shall be made with respect to the rights and interest of the Holder
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 purchase price per
share payable hereunder, provided the aggregate purchase price shall remain the
same. In case of a consolidation or merger, the surviving or successor
corporation or other entity shall duly execute and deliver to the Holder a
supplement hereto acknowledging such corporation's or entity's obligations under
this Warrant. The foregoing provisions of this subsection 8(b) shall similarly
apply to successive reclassifications, capital reorganizations and other
changes, consolidations or mergers.
(c) Other Distributions. In the event the Company at any time or from
-------------------
time to time makes, or files a record date for the determination of Holders of
Common Stock entitled to receive any distribution payable in securities or
assets of the Company other than shares of Common Stock or cash dividends paid
or payable solely out of retained earnings, then and in such event provision
shall be made so that the Holder shall receive upon conversion of this Warrant,
in addition to the number of shares of Common Stock receivable thereupon, the
amount of securities or assets of the Company which they would have received had
this Warrant been converted into Common Stock on the date of such event and had
they thereafter, during the period from the date of such event to and including
the date of conversion, retained such securities or assets receivable by them as
aforesaid during such period, subject to all other adjustment called for during
such period as provided in this Warrant.
(d) Notice of Adjustment. When any adjustment is required to be made
--------------------
in the Exercise Price, number or kind of shares purchasable upon exercise of the
Warrant, the Company shall promptly notify in writing the Holder of such event,
including a brief statement of the facts requiring such adjustment, and of the
number of shares of Common Stock or other securities or property thereafter
purchasable upon exercise of this Warrant. The form of this Warrant needs not be
changed because of any adjustment in the Exercise Price or the number of Shares
issuable upon its exercise. The Company shall provide the Holder with not less
than 10 days prior written notice of (i) any event resulting in an adjustment
under Section 8 and (ii) any sale, lease or other disposition of all or
substantially all of the assets of the Company.
9. No Fractional Shares or Scrip. No fractional shares or scrip
-----------------------------
representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefor.
10. No Stockholder Rights. Prior to exercise of this Warrant, the Holder
---------------------
shall not be entitled to any rights of a stockholder with respect to the Shares,
including (without limitation) the right to vote such Shares, receive dividends
or other distributions thereon, exercise preemptive rights or be notified of
stockholder meetings, and such Holder shall not be entitled to any notice or
other communication concerning the business or affairs of the Company.
11. No Impairment. Except and to the extent as waived or consented to by
-------------
the Holder, the Company will not, by amendment of its Certificate of
Incorporation or Bylaws 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 to be observed or performed hereunder by the Company, but will at all
times in good faith assist in the carrying out of all the provisions of this
Warrant and in the taking of all such action as may be necessary or appropriate
in order to protect the exercise rights of the Holder against impairment.
Without limiting the generality of the foregoing, the Company will take all such
action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and non-assessable Shares upon exercise of this
Warrant.
12. Successors and Assigns. The terms and provisions of this Warrant and
----------------------
the Agreement shall inure to the benefit of, and be binding upon, the Company
and the Holders hereof and their respective successors and assigns.
13. Amendments and Waivers. Any term of this Warrant may be amended and
----------------------
the observance of any term of this Warrant may be waived (either generally or in
a particular instance and either retroactively or prospectively), with the
written consent of the Company and the Holder of shares of Common Stock issued
or issuable upon exercise of the Warrant issued pursuant to the Agreement that
are then outstanding. Any waiver or amendment effected in accordance with this
Section shall be binding upon each Holder of any Shares purchased under this
Warrant at the time outstanding (including securities into which such Shares
have been converted) and each future Holder of all such Shares.
14. Effect of Amendment or Waiver. The Holder acknowledges that by the
-----------------------------
operation of Section 12 hereof, the Holders of at least 100% in interest of the
Warrants issued pursuant to the Agreement that are then outstanding will have
the right and power to diminish or eliminate all rights of such Holder under
this Warrant or under the Agreement.
15. Governing Law. This Warrant shall be governed by the laws of the State
-------------
of California.
16. Loss, Destruction, etc. of Warrant. Upon receipt of evidence
----------------------------------
satisfactory to the Company of the loss, theft, mutilation or destruction of
this Warrant, and in the case of any such loss, theft or destruction, upon
delivery of a bond of indemnity in such form and amounts as shall be reasonably
satisfactory to the Company, provided however, that the requirement to deliver
such bond shall not apply to the initial Holder of this Warrant, or in the event
of such mutilation, upon surrender and cancellation of the Warrant, the Company
will make and deliver a new Warrant, of like tenor, in lieu of such lost,
stolen, destroyed or mutilated Warrant. Any Warrant issued under the provision
of this Section 8 in lieu of any Warrant alleged to be lost, destroyed or
stolen, or in lieu of any mutilated Warrant, shall constitute an original
contractual obligation on the part of the Company.
17. Severability. If one or more provisions of this Warrant are held to be
------------
unenforceable under applicable law, such provision(s) shall be excluded from
this Warrant and the balance of the Warrant shall be interpreted as if such
provision(s) were so excluded and shall be enforceable in accordance with its
terms.
FUSION MEDICAL TECHNOLOGIES, INC.
By _________________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President of Finance & Chief
Financial Officer
SUBSCRIPTION
Fusion Medical Technologies, Inc.
Attention: Corporate Secretary
The undersigned hereby elects to purchase, pursuant to the provisions of the
Warrant to purchase shares issued by Fusion Medical Technologies, Inc. and held
by the undersigned, shares of Common Stock of Fusion Medical Technologies, Inc.
Payment of the exercise price per share required under such Warrant accompanies
this Subscription.
The undersigned hereby represents and warrants that the undersigned is acquiring
such shares for its own account for investment purposes only, and not for resale
or with a view to distribution of such shares or any part thereof.
WARRANTHOLDER:
Date: ___________________ By: _______________________________________
Address: __________________________________
__________________________________
__________________________________
Name in which shares should be registered:_______________________________
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER
SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
Void after
April 2, 2006
FUSION MEDICAL TECHNOLOGIES, INC.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
This Warrant is issued to Alloy Corporate 2000, L.P. (the "Purchaser") by
Fusion Medical Technologies, Inc., a Delaware corporation (the "Company"),
pursuant to the terms of that certain Stock and Warrant Purchase Agreement (the
"Agreement") dated as of April 2nd, 2001 in connection with the issuance of the
Company's Common Stock.
1. Purchase of Shares. Subject to the terms and conditions hereinafter
------------------
set forth and set forth in the Agreement, the holder of this Warrant (the
"Holder") is entitled, upon surrender of this Warrant at the principal office of
the Company (or at such other place as the Company shall notify the Holder
hereof in writing), to purchase from the Company up to the number of fully paid
and nonassessable shares of the Company's Common Stock (the "Shares"), that
equals 44,662 Shares.
2. Exercise Price. The exercise price per share shall be $3.66, which is
--------------
equal to 125% of the Purchase Price, as defined in the Agreement. Such price
shall be subject to adjustment pursuant to Section 8 hereof (such price, as
adjusted from time to time, is herein referred to as the "Exercise Price").
3. Exercise Period. The Warrant shall be exercisable, in whole or in
---------------
part, beginning upon issuance and will terminate five (5) years after the date
of the Agreement.
4. Method of Exercise. While this Warrant remains outstanding and
------------------
exercisable in accordance with Section 3 above, the Holder may exercise, in
whole or in part, the purchase rights evidenced hereby. Such exercise shall be
effected by:
(i) the surrender of the Warrant, together with a duly executed
copy of the form of subscription attached hereto, to the Secretary of the
Company at its principal offices; and
(ii) the payment to the Company of an amount equal to the
aggregate Exercise Price for the number of Shares being purchased.
5. Net Exercise. In lieu of cash exercising this Warrant, the Holder may
elect to receive shares equal to the value of this Warrant (or the portion
thereof being canceled) by surrender of this
Warrant at the principal office of the Company together with notice of such
election, in which event the Company shall issue to the Holder hereof a number
of shares of Common Stock computed using the following formula:
Y (A - B)
---------
X = A
Where
X -- The number of Shares to be issued to the Holder.
Y -- The number of Shares purchasable under this Warrant.
A -- The fair market value of one share of the Company's Common
Stock.
B -- The Exercise Price (as adjusted to the date of such
calculations).
For purposes of the above calculation, the fair market value per Common
Stock share shall be the closing price of the Common Stock, as quoted by the
National Association of Securities Dealers Automated Quotation (Nasdaq) Service,
the over-the-counter market or the exchange market in which the Common Stock is
traded immediately prior to the close of business on the date of its surrender
for exercise. If the Common Stock is not traded on the Nasdaq, the over-the-
counter market or the exchange market, the fair market value shall be the price
per share that the Company could obtain from a willing buyer for shares of
Common Stock sold by the Company from authorized but unissued shares, as such
prices shall be determined in good faith by the Company's Board of Directors.
6. Certificates for Shares. Upon the exercise of the purchase rights
-----------------------
evidenced by this Warrant, one or more certificates for the number of Shares so
purchased shall be issued as soon as practicable thereafter, and in any event
within thirty (30) days of the delivery of the subscription notice. This Warrant
shall be deemed to have been exercised immediately prior to the close of
business on the date of its surrender for exercise as provided above, and the
person or persons entitled to receive the shares of Common Stock or other
securities issuable upon such exercise shall be treated for all purposes as the
Holder of such shares of record as of the close of business on such date. Upon
any partial exercise of this Warrant, the Company will issue to the Holder a new
Warrant for the number of shares of Common Stock or other securities as to which
Warrant was not exercised.
7. Authorization and Reservation of Stock. The Company covenants that the
--------------------------------------
Shares, when issued pursuant to the exercise of this Warrant, will be duly and
validly issued, fully paid and nonassessable, free from all preemptive rights of
any stock, and free from all taxes, liens, and charges with respect to the
issuance thereof and free and clear of any restrictions on transfer (other than
under the Securities Act of 1933 and state securities laws). The Company will
reserve from its authorized and unissued capital stock a sufficient number of
shares of Common Stock or other securities issuable upon exercise hereof to
provide for the issuance of Common Stock or other securities on the exercise of
this Warrant. Issuance of this Warrant shall constitute full authority to the
Company's officers who are charged with the duty of executing stock certificates
to execute and
issue the necessary certificates for shares of Common Stock or other securities
upon the exercise of this Warrant.
8. Adjustment of Exercise Price and Number of Shares. 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:
(a) Subdivisions, Combinations and Other Issuances. If the Company
----------------------------------------------
shall at any time 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 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 purchase price
payable per share, but the aggregate purchase price payable for the total number
of Shares purchasable under this Warrant (as adjusted) shall remain the same.
Any adjustment under this Section 8(a) 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.
(b) Reclassification, Reorganization and Consolidation or Merger. In
------------------------------------------------------------
case of any 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 8(a) above), or in the case of any
consolidation or merger of the Company with or into another corporation or
business entity (other than a consolidation or merger (a) with a subsidiary in
which the Company is the surviving corporation or (b) which does not result in
any reclassification, capital reorganization or other change of outstanding
shares of Common Stock), then, as a condition of such reclassification,
reorganization, change, consolidation or merger, lawful provision shall be made,
and duly executed documents evidencing the same from the Company or its
successor shall be delivered to the Holder, so that the Holder 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, consolidation
or merger by a Holder of the same number of shares of Common Stock as were
purchasable by the Holder immediately prior to such reclassification,
reorganization, or change, consolidation or merger. In any such case appropriate
provisions shall be made with respect to the rights and interest of the Holder
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 purchase price per
share payable hereunder, provided the aggregate purchase price shall remain the
same. In case of a consolidation or merger, the surviving or successor
corporation or other entity shall duly execute and deliver to the Holder a
supplement hereto acknowledging such corporation's or entity's obligations under
this Warrant. The foregoing provisions of this subsection 8(b) shall similarly
apply to successive reclassifications, capital reorganizations and other
changes, consolidations or mergers.
(c) Other Distributions. In the event the Company at any time or
-------------------
from time to time makes, or files a record date for the determination of Holders
of Common Stock entitled to receive any distribution payable in securities or
assets of the Company other than shares of Common Stock or cash dividends paid
or payable solely out of retained earnings, then and in such event provision
shall be made so that the Holder shall receive upon conversion of this Warrant,
in addition to the number of shares of Common Stock receivable thereupon, the
amount of securities or assets of the Company which they would have received had
this Warrant been converted into Common Stock on the date of such event and had
they thereafter, during the period from the date of such event to and including
the date of conversion, retained such securities or assets receivable by them as
aforesaid during such period, subject to all other adjustment called for during
such period as provided in this Warrant.
(d) Notice of Adjustment. When any adjustment is required to be
--------------------
made in the Exercise Price, number or kind of shares purchasable upon exercise
of the Warrant, the Company shall promptly notify in writing the Holder of such
event, including a brief statement of the facts requiring such adjustment, and
of the number of shares of Common Stock or other securities or property
thereafter purchasable upon exercise of this Warrant. The form of this Warrant
needs not be changed because of any adjustment in the Exercise Price or the
number of Shares issuable upon its exercise. The Company shall provide the
Holder with not less than 10 days prior written notice of (i) any event
resulting in an adjustment under Section 8 and (ii) any sale, lease or other
disposition of all or substantially all of the assets of the Company.
9. No Fractional Shares or Scrip. No fractional shares or scrip
-----------------------------
representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefor.
10. No Stockholder Rights. Prior to exercise of this Warrant, the Holder
---------------------
shall not be entitled to any rights of a stockholder with respect to the Shares,
including (without limitation) the right to vote such Shares, receive dividends
or other distributions thereon, exercise preemptive rights or be notified of
stockholder meetings, and such Holder shall not be entitled to any notice or
other communication concerning the business or affairs of the Company.
11. No Impairment. Except and to the extent as waived or consented to
-------------
by the Holder, the Company will not, by amendment of its Certificate of
Incorporation or Bylaws 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 to be observed or performed hereunder by the Company, but will at all
times in good faith assist in the carrying out of all the provisions of this
Warrant and in the taking of all such action as may be necessary or appropriate
in order to protect the exercise rights of the Holder against impairment.
Without limiting the generality of the foregoing, the Company will take all such
action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and non-assessable Shares upon exercise of this
Warrant.
12. Successors and Assigns. The terms and provisions of this Warrant and
----------------------
the Agreement shall inure to the benefit of, and be binding upon, the Company
and the Holders hereof and their respective successors and assigns.
13. Amendments and Waivers. Any term of this Warrant may be amended and
----------------------
the observance of any term of this Warrant may be waived (either generally or in
a particular instance and either retroactively or prospectively), with the
written consent of the Company and the Holder of shares of Common Stock issued
or issuable upon exercise of the Warrant issued pursuant to the Agreement that
are then outstanding. Any waiver or amendment effected in accordance with this
Section shall be binding upon each Holder of any Shares purchased under this
Warrant at the time outstanding (including securities into which such Shares
have been converted) and each future Holder of all such Shares.
14. Effect of Amendment or Waiver. The Holder acknowledges that by the
-----------------------------
operation of Section 12 hereof, the Holders of at least 100% in interest of the
Warrants issued pursuant to the Agreement that are then outstanding will have
the right and power to diminish or eliminate all rights of such Holder under
this Warrant or under the Agreement.
15. Governing Law. This Warrant shall be governed by the laws of the
-------------
State of California.
16. Loss, Destruction, etc. of Warrant. Upon receipt of evidence
----------------------------------
satisfactory to the Company of the loss, theft, mutilation or destruction of
this Warrant, and in the case of any such loss, theft or destruction, upon
delivery of a bond of indemnity in such form and amounts as shall be reasonably
satisfactory to the Company, provided however, that the requirement to deliver
such bond shall not apply to the initial Holder of this Warrant, or in the event
of such mutilation, upon surrender and cancellation of the Warrant, the Company
will make and deliver a new Warrant, of like tenor, in lieu of such lost,
stolen, destroyed or mutilated Warrant. Any Warrant issued under the provision
of this Section 8 in lieu of any Warrant alleged to be lost, destroyed or
stolen, or in lieu of any mutilated Warrant, shall constitute an original
contractual obligation on the part of the Company.
17. Severability. If one or more provisions of this Warrant are held to
------------
be unenforceable under applicable law, such provision(s) shall be excluded from
this Warrant and the balance of the Warrant shall be interpreted as if such
provision(s) were so excluded and shall be enforceable in accordance with its
terms.
FUSION MEDICAL TECHNOLOGIES, INC.
By _________________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President of Finance & Chief
Financial Officer
SUBSCRIPTION
Fusion Medical Technologies, Inc.
Attention: Corporate Secretary
The undersigned hereby elects to purchase, pursuant to the provisions of the
Warrant to purchase shares issued by Fusion Medical Technologies, Inc. and held
by the undersigned, shares of Common Stock of Fusion Medical Technologies, Inc.
Payment of the exercise price per share required under such Warrant accompanies
this Subscription.
The undersigned hereby represents and warrants that the undersigned is acquiring
such shares for its own account for investment purposes only, and not for resale
or with a view to distribution of such shares or any part thereof.
WARRANTHOLDER:
Date: ___________________ By: ________________________
Address:_______________________
______________________________
______________________________
Name in which shares should be registered:____________________________________
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER
SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
Void after
April 2, 2006
FUSION MEDICAL TECHNOLOGIES, INC.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
This Warrant is issued to Alloy Investors 2000, L.P. (the "Purchaser") by
Fusion Medical Technologies, Inc., a Delaware corporation (the "Company"),
pursuant to the terms of that certain Stock and Warrant Purchase Agreement (the
"Agreement") dated as of April 2/nd/, 2001 in connection with the issuance of
the Company's Common Stock.
2. Purchase of Shares. Subject to the terms and conditions hereinafter
------------------
set forth and set forth in the Agreement, the holder of this Warrant (the
"Holder") is entitled, upon surrender of this Warrant at the principal office of
the Company (or at such other place as the Company shall notify the Holder
hereof in writing), to purchase from the Company up to the number of fully paid
and nonassessable shares of the Company's Common Stock (the "Shares"), that
equals 76,622 Shares.
3. Exercise Price. The exercise price per share shall be $3.66, which
--------------
is equal to 125% of the Purchase Price, as defined in the Agreement. Such price
shall be subject to adjustment pursuant to Section 8 hereof (such price, as
adjusted from time to time, is herein referred to as the "Exercise Price").
4. Exercise Period. The Warrant shall be exercisable, in whole or in
---------------
part, beginning upon issuance and will terminate five (5) years after the date
of the Agreement.
5. Method of Exercise. While this Warrant remains outstanding and
------------------
exercisable in accordance with Section 3 above, the Holder may exercise, in
whole or in part, the purchase rights evidenced hereby. Such exercise shall be
effected by:
(i) the surrender of the Warrant, together with a duly executed
copy of the form of subscription attached hereto, to the Secretary of the
Company at its principal offices; and
(ii) the payment to the Company of an amount equal to the
aggregate Exercise Price for the number of Shares being purchased.
6. Net Exercise. In lieu of cash exercising this Warrant, the Holder may
------------
elect to receive shares equal to the value of this Warrant (or the portion
thereof being canceled) by surrender of this Warrant at the principal office of
the Company together with notice of such election, in which event
the Company shall issue to the Holder hereof a number of shares of Common Stock
computed using the following formula:
Y (A - B)
---------
X = A
Where
X -- The number of Shares to be issued to the Holder.
Y -- The number of Shares purchasable under this Warrant.
A -- The fair market value of one share of the Company's Common
Stock.
B -- The Exercise Price (as adjusted to the date of such
calculations).
For purposes of the above calculation, the fair market value per Common
Stock share shall be the closing price of the Common Stock, as quoted by the
National Association of Securities Dealers Automated Quotation (Nasdaq) Service,
the over-the-counter market or the exchange market in which the Common Stock is
traded immediately prior to the close of business on the date of its surrender
for exercise. If the Common Stock is not traded on the Nasdaq, the over-the-
counter market or the exchange market, the fair market value shall be the price
per share that the Company could obtain from a willing buyer for shares of
Common Stock sold by the Company from authorized but unissued shares, as such
prices shall be determined in good faith by the Company's Board of Directors.
7. Certificates for Shares. Upon the exercise of the purchase rights
-----------------------
evidenced by this Warrant, one or more certificates for the number of Shares so
purchased shall be issued as soon as practicable thereafter, and in any event
within thirty (30) days of the delivery of the subscription notice. This Warrant
shall be deemed to have been exercised immediately prior to the close of
business on the date of its surrender for exercise as provided above, and the
person or persons entitled to receive the shares of Common Stock or other
securities issuable upon such exercise shall be treated for all purposes as the
Holder of such shares of record as of the close of business on such date. Upon
any partial exercise of this Warrant, the Company will issue to the Holder a new
Warrant for the number of shares of Common Stock or other securities as to which
Warrant was not exercised.
8. Authorization and Reservation of Stock. The Company covenants that the
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Shares, when issued pursuant to the exercise of this Warrant, will be duly and
validly issued, fully paid and nonassessable, free from all preemptive rights of
any stock, and free from all taxes, liens, and charges with respect to the
issuance thereof and free and clear of any restrictions on transfer (other than
under the Securities Act of 1933 and state securities laws). The Company will
reserve from its authorized and unissued capital stock a sufficient number of
shares of Common Stock or other securities issuable upon exercise hereof to
provide for the issuance of Common Stock or other securities on the exercise of
this Warrant. Issuance of this Warrant shall constitute full authority to the
Company's officers who are charged with the duty of executing stock certificates
to execute and
issue the necessary certificates for shares of Common Stock or other securities
upon the exercise of this Warrant.
9. Adjustment of Exercise Price and Number of Shares. The number of and
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kind of securities purchasable upon exercise of this Warrant and the Exercise
Price shall be subject to adjustment from time to time as follows:
(a) Subdivisions, Combinations and Other Issuances. If the Company
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shall at any time prior to the expiration of this Warrant subdivide its Common
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 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 purchase price payable per
share, but the aggregate purchase price payable for the total number of Shares
purchasable under this Warrant (as adjusted) shall remain the same. Any
adjustment under this Section 8(a) 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.
(b) Reclassification, Reorganization and Consolidation or Merger.
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In case of any 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 8(a) above), or in the case of any
consolidation or merger of the Company with or into another corporation or
business entity (other than a consolidation or merger (a) with a subsidiary in
which the Company is the surviving corporation or (b) which does not result in
any reclassification, capital reorganization or other change of outstanding
shares of Common Stock), then, as a condition of such reclassification,
reorganization, change, consolidation or merger, lawful provision shall be made,
and duly executed documents evidencing the same from the Company or its
successor shall be delivered to the Holder, so that the Holder 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, consolidation
or merger by a Holder of the same number of shares of Common Stock as were
purchasable by the Holder immediately prior to such reclassification,
reorganization, or change, consolidation or merger. In any such case appropriate
provisions shall be made with respect to the rights and interest of the Holder
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 purchase price per
share payable hereunder, provided the aggregate purchase price shall remain the
same. In case of a consolidation or merger, the surviving or successor
corporation or other entity shall duly execute and deliver to the Holder a
supplement hereto acknowledging such corporation's or entity's obligations under
this Warrant. The foregoing provisions of this subsection 8(b) shall similarly
apply to successive reclassifications, capital reorganizations and other
changes, consolidations or mergers.
(c) Other Distributions. In the event the Company at any time or
-------------------
from time to time makes, or files a record date for the determination of Holders
of Common Stock entitled to receive any distribution payable in securities or
assets of the Company other than shares of Common Stock or cash dividends paid
or payable solely out of retained earnings, then and in such event provision
shall be made so that the Holder shall receive upon conversion of this Warrant,
in addition to the number of shares of Common Stock receivable thereupon, the
amount of securities or assets of the Company which they would have received had
this Warrant been converted into Common Stock on the date of such event and had
they thereafter, during the period from the date of such event to and including
the date of conversion, retained such securities or assets receivable by them as
aforesaid during such period, subject to all other adjustment called for during
such period as provided in this Warrant.
(d) Notice of Adjustment. When any adjustment is required to be
--------------------
made in Exercise Price, number or kind of shares purchasable upon exercise of
the Warrant, the Company shall promptly notify in writing the Holder of such
event, including a brief statement of the facts requiring such adjustment, and
of the number of shares of Common Stock or other securities or property
thereafter purchasable upon exercise of this Warrant. The form of this Warrant
needs not be changed because of any adjustment in the Exercise Price or the
number of Shares issuable upon its exercise. The Company shall provide the
Holder with not less than 10 days prior written notice of (i) any event
resulting in an adjustment under Section 8 and (ii) any sale, lease or other
disposition of all or substantially all of the assets of the Company.
10. No Fractional Shares or Scrip. No fractional shares or scrip
-----------------------------
representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefor.
11. No Stockholder Rights. Prior to exercise of this Warrant, the Holder
---------------------
shall not be entitled to any rights of a stockholder with respect to the Shares,
including (without limitation) the right to vote such Shares, receive dividends
or other distributions thereon, exercise preemptive rights or be notified of
stockholder meetings, and such Holder shall not be entitled to any notice or
other communication concerning the business or affairs of the Company.
12. No Impairment. Except and to the extent as waived or consented to by
-------------
Holder, the Company will not, by amendment of its Certificate of Incorporation
or Bylaws 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 to be observed
or performed hereunder by the Company, but will at all times in good faith
assist in the carrying out of all the provisions of this Warrant and in the
taking of all such action as may be necessary or appropriate in order to protect
the exercise rights of the Holder against impairment. Without limiting the
generality of the foregoing, the Company will take all such action as may be
necessary or appropriate in order that the Company may validly and legally issue
fully paid and non-assessable Shares upon exercise of this Warrant.
13. Successors and Assigns. The terms and provisions of this Warrant and
----------------------
the Agreement shall inure to the benefit of, and be binding upon, the Company
and the Holders hereof and their respective successors and assigns.
14. Amendments and Waivers. Any term of this Warrant may be amended and
----------------------
the observance of any term of this Warrant may be waived (either generally or in
a particular instance and either retroactively or prospectively), with the
written consent of the Company and the Holder of shares of Common Stock issued
or issuable upon exercise of the Warrant issued pursuant to the Agreement that
are then outstanding. Any waiver or amendment effected in accordance with this
Section shall be binding upon each Holder of any Shares purchased under this
Warrant at the time outstanding (including securities into which such Shares
have been converted) and each future Holder of all such Shares.
15. Effect of Amendment or Waiver. The Holder acknowledges that by the
-----------------------------
operation of Section 12 hereof, the Holders of at least 100% in interest of the
Warrants issued pursuant to the Agreement that are then outstanding will have
the right and power to diminish or eliminate all rights of such Holder under
this Warrant or under the Agreement.
16. Governing Law. This Warrant shall be governed by the laws of the
-------------
State of California.
17. Loss, Destruction, etc. of Warrant. Upon receipt of evidence
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satisfactory to the Company of the loss, theft, mutilation or destruction of
this Warrant, and in the case of any such loss, theft or destruction, upon
delivery of a bond of indemnity in such form and amounts as shall be reasonably
satisfactory to the Company, provided however, that the requirement to deliver
such bond shall not apply to the initial Holder of this Warrant, or in the event
of such mutilation, upon surrender and cancellation of the Warrant, the Company
will make and deliver a new Warrant, of like tenor, in lieu of such lost,
stolen, destroyed or mutilated Warrant. Any Warrant issued under the provision
of this Section 8 in lieu of any Warrant alleged to be lost, destroyed or
stolen, or in lieu of any mutilated Warrant, shall constitute an original
contractual obligation on the part of the Company.
18. Severability. If one or more provisions of this Warrant are held to
------------
be unenforceable under applicable law, such provision(s) shall be excluded from
this Warrant and the balance of the Warrant shall be interpreted as if such
provision(s) were so excluded and shall be enforceable in accordance with its
terms.
FUSION MEDICAL TECHNOLOGIES, INC.
By _______________________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President of Finance & Chief
Financial Officer
STOCK AND WARRANT PURCHASE AGREEMENT
SUBSCRIPTION
Fusion Medical Technologies, Inc.
Attention: Corporate Secretary
The undersigned hereby elects to purchase, pursuant to the provisions of the
Warrant to purchase shares issued by Fusion Medical Technologies, Inc. and held
by the undersigned, shares of Common Stock of Fusion Medical Technologies, Inc.
Payment of the exercise price per share required under such Warrant accompanies
this Subscription.
The undersigned hereby represents and warrants that the undersigned is acquiring
such shares for its own account for investment purposes only, and not for resale
or with a view to distribution of such shares or any part thereof.
WARRANTHOLDER:
Date: ___________________ By: _______________________________________
Address:___________________________________
___________________________________
___________________________________
Name in which shares should be
registered:______________________________________________
