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EXHIBIT 4.5
THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY BE SOLD,
OFFERED FOR SALE OR TRANSFERRED ONLY IN ACCORDANCE WITH THE PROVISIONS
OF THIS WARRANT AND PURSUANT TO A REGISTRATION STATEMENT OR AN OPINION
OF COUNSEL SATISFACTORY TO THE CORPORATION AS TO THE AVAILABILITY OF AN
EXEMPTION FROM REGISTRATION.
C.S. NO. [WRNT] [WRNTS] Shares
WARRANT TO PURCHASE SHARES
OF COMMON STOCK OF
CELTRIX PHARMACEUTICALS, INC.
1. COMMON STOCK AND WARRANT PURCHASE AGREEMENT. This Warrant is issued
to [NAME] ("Purchaser") pursuant to the Common Stock and Warrant Purchase
Agreement dated as of October 12, 1998 (with a closing date of November 20,
1998) between Celtrix Pharmaceuticals, Inc., a Delaware company ("Celtrix"), and
Purchaser ("Purchase Agreement") in which Celtrix issued [UNITS] Units to
Purchaser. Each "Unit" is composed of one share of Celtrix Common Stock
("Share") and a warrant to purchase one and one half shares of Celtrix Common
Stock. This Warrant is part of the Unit.
2. NUMBER AND PRICE OF SHARES SUBJECT TO WARRANT. Subject to the terms
and conditions herein set forth Purchaser is entitled to purchase from Celtrix,
at any time in whole or from time to time in part commencing on February 20,
1999 (the "Vesting Date") and until November 20, 2002, [WARRANTSPELLED]
([WRNTS]) shares (which number of shares is subject to adjustment as described
below) of fully paid and nonassessable Common Stock, $.01 par value, of Celtrix
("Warrant Shares"), upon surrender of this Warrant at the principal office of
Celtrix and upon payment of the purchase price by wire transfer to Celtrix or
cashiers check drawn on a United States bank made to the order of Celtrix.
Subject to adjustment as hereinafter provided, the purchase price of one Warrant
Share (or such securities as may be substituted for one Warrant Share pursuant
to the provisions hereinafter set forth) shall be $0.55. The purchase price of
one Warrant Share (or such securities as may be substituted for one Warrant
Share pursuant to the provisions hereinafter set forth) payable from time to
time upon the exercise of this Warrant (whether such price be the price
specified above or an adjusted price determined as hereinafter provided) is
referred to herein as the "Warrant Price."
(a) ACCELERATION. In the event that a Corporate Transaction (as
defined in Section 13 below) is consummated by Celtrix prior to the Vesting
Date, this Warrant shall become immediately exercisable by the Registered Holder
(as defined in Section 9(c) below) for the full number of Warrant Shares set
forth above in this Section 2.
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3. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES. The number and kind
of securities issuable upon the exercise of this Warrant shall be subject to
adjustment from time to time upon the happening of certain events as follows:
(a) ADJUSTMENT FOR DIVIDENDS IN STOCK OR OTHER SECURITIES OR
PROPERTY. In case at any time or from time to time on or after the date hereof
the holders of the Common Stock of Celtrix (or any shares of other stock or
other securities at the time issued and outstanding) shall have received, or, on
or after the record date fixed for the determination of eligible stockholders,
shall have become entitled to receive, without payment therefor, (i) other or
additional stock or other securities or property (other than cash in connection
with regular or ordinary dividends) of Celtrix by way of dividend, (ii) any cash
paid or payable (including, without limitation, by way of dividend), except out
of earned surplus of Celtrix, or (iii) other or additional stock or other
securities or property (including cash) by way of spin-off, split-up,
reclassification, recapitalization, combination of shares, or similar corporate
rearrangement, then and in each case, the holder of this Warrant shall, upon the
exercise hereof, be entitled to receive, in addition to the number of shares of
Common Stock receivable thereupon, and without payment of any additional
consideration therefor, the amount of such other or additional stock or other
securities or property (including cash in the cases referred to in clauses (ii)
and (iii) above) of Celtrix which such holder would hold on the date of such
exercise had it been the holder of record of such Common Stock on the date
hereof and had thereafter, during the period from the date hereof to and
including the date of such exercise, retained such shares and/or all other
additional stock available by it as aforesaid during such period, giving effect
to all adjustments called for during such period by paragraphs (b), (c) and (d)
of this Section 3.
(b) ADJUSTMENT FOR RECLASSIFICATION, REORGANIZATION OR MERGER. In
case of any reclassification or change of the outstanding securities of Celtrix
or of any reorganization of Celtrix (or any other corporation the stock or
securities of which are at the time receivable upon the exercise of this
Warrant) or any similar corporate reorganization on or after the date hereof, or
any merger or consolidation of Celtrix, or any transfer of all or substantially
all of Celtrix's properties or assets to any other person or entity under any
plan or arrangement contemplating the dissolution of Celtrix within 6 months
from the date of such transfer, then and in each such case the holder of this
Warrant, upon the exercise hereof at any time after the consummation of such
reclassification, change, reorganization, merger or conveyance, shall be
entitled to receive, in lieu of the stock or other securities and property
receivable upon the exercise hereof prior to such consummation, the stock or
other securities or property to which such holder would have been entitled upon
such consummation if such holder had exercised this Warrant immediately prior
thereto, all subject to further adjustment as provided in paragraphs (a) and
(c); and in each such case, the terms of this Section 3 shall be applicable to
the shares of stock or other securities properly receivable upon the exercise of
this Warrant after such consummation.
(c) STOCK SPLITS AND REVERSE STOCK SPLITS. If at any time on or
after the date hereof Celtrix shall subdivide its outstanding shares of Common
Stock into a greater number of shares, the Warrant Price in effect immediately
prior to such subdivision shall thereby be proportionately reduced and the
number of shares receivable upon exercise of the Warrant shall thereby be
proportionately increased; and, conversely, if at any time on or after the date
hereof
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the outstanding number of shares of Common Stock shall be combined into a
smaller number of shares, the Warrant Price in effect immediately prior to such
combination shall thereby be proportionately increased and the number of shares
receivable upon exercise of Warrant shall thereby be proportionately decreased.
(d) OTHER ADJUSTMENTS.
(i) IN GENERAL. In case Celtrix shall issue or sell
shares of its Common Stock after the date hereof without consideration or for a
consideration per share less than $0.4375 per share, except where such shares
are issued or sold pursuant to the circumstances set forth in subsection (iii)
below, then the Warrant Price in effect hereunder shall simultaneously with such
issuance or sale be reduced to a price determined by multiplying the Warrant
Price by a fraction (i) the numerator of which shall be the total number of
shares of Common Stock outstanding immediately prior to such issuance or sale
plus the number of shares of Common Stock that the aggregate consideration, if
any, received by Celtrix upon such issuance or sale would purchase at the
Warrant Price; and (2) the denominator of which shall be the total number of
shares of Common Stock outstanding immediately after issuance or sale of such
additional shares.
(ii) CONVERTIBLE SECURITIES. Subject to subsection (iii)
below, in case Celtrix shall issue or sell any securities convertible into
Common Stock of Celtrix ("Convertible Securities") after the date hereof, there
shall be determined the price per share for which Common Stock is issuable upon
the conversion or exchange thereof, such determination to be made by dividing
(a) the sum of the total amount received or receivable by Celtrix as
consideration, if any, for the issue or sale of all such Convertible Securities
and such additional consideration, if any, payable to Celtrix upon the
conversion or exchange thereof, by (b) the maximum number of shares of Common
Stock of Celtrix issuable upon the conversion or exchange of all of such
Convertible Securities. If the price per share so determined shall be less than
$0.4375 per share, then at such time as any of such Convertible Securities are
actually converted into shares of Common Stock, the Warrant Price shall be
adjusted pursuant to the formula set forth in Section 3(d)(i) above taking into
consideration only those Convertible Securities actually converted. The
foregoing adjustment(s) shall also reflect any increase or increases, with the
passage of time, in the amount of additional consideration, if any, payable to
Celtrix for such Convertible Securities, or any change to the rate of exchange
that may be applicable upon the conversion or exchange of such Convertible
Securities.
(iii) NONDILUTIVE ISSUANCES. The terms of Section
3(d)(i) and (ii) shall not apply to any of the following:
(1) Common Stock issued pursuant to a
transaction described in Section 3(c) hereof,
(2) Shares of Common Stock issuable or issued to
employees, consultants or directors of Celtrix directly or pursuant to a stock
option plan or restricted stock plan approved by the Board of Directors of
Celtrix,
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(3) Capital stock, or options or warrants to
purchase capital stock, issued to financial institutions or lessors in
connection with commercial credit arrangements, equipment financings or similar
transactions,
(4) Shares of Common Stock or Preferred Stock
issuable upon exercise of warrants outstanding as of the date of this Warrant,
(5) Capital stock or warrants or options to
purchase capital stock issued in connection with bona fide acquisitions, mergers
or similar transactions, the terms of which are approved by the Board of
Directors of Celtrix.
4. NO FRACTIONAL SHARES. No fractional shares of Warrant Shares will be
issued in connection with any exercise of this Warrant. In lieu of any
fractional shares which would otherwise be issuable, Celtrix shall pay cash
equal to the product of such fraction multiplied by the closing price of one
Warrant Share as reported on the Nasdaq National Market on the date of exercise.
5. NO STOCKHOLDER RIGHTS. This Warrant shall not entitle its holder to
any of the rights of a stockholder of Celtrix.
6. RESERVATION OF STOCK. Celtrix covenants that during the period this
Warrant is exercisable, Celtrix will reserve from its authorized and unissued
Common Stock a sufficient number of shares of Common Stock (or other securities,
if applicable) to provide for the issuance of Warrant Shares (or other
securities) upon the exercise of this Warrant. Celtrix agrees that its issuance
of this Warrant shall constitute full authority to its officers who are charged
with the duty of executing stock certificates to execute and issue the necessary
certificates for the Warrant Shares upon the exercise of this Warrant.
7. EXERCISE OF WARRANT. This Warrant may be exercised by the holder
hereof, in whole or in part, by the surrender of this Warrant and the Notice of
Exercise attached hereto as Exhibit A duly completed and executed on behalf of
the holder hereof, at the principal office of Celtrix together with payment in
full of the Warrant Price then in effect with respect to the number of Warrant
Shares as to which the Warrant is being exercised. The Warrant Price shall by
wire transfer to Celtrix or cashiers check drawn on a United States bank made to
the order of Celtrix. 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 entitled to receive the Warrant
Shares 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. As
promptly as practicable on or after such date and in any event within ten (10)
days thereafter, Celtrix at its expense shall cause to be issued and delivered
to the person or persons entitled to receive the same a certificate or
certificates for the number of full Warrant Shares issuable upon such exercise,
together with cash in lieu of any fraction of a share as provided above. The
Warrant Shares issuable upon exercise hereof shall, upon their issuance, be
fully paid and nonassessable. In the event that this Warrant is exercised in
part, Celtrix at its expense will execute and deliver a new Warrant of like
tenor exercisable for the number of shares for which this Warrant may then be
exercised.
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8. CERTIFICATE OF ADJUSTMENT. Whenever the Warrant Price or number or
type of securities issuable upon exercise of this Warrant is adjusted, as herein
provided, Celtrix shall, at its expense, promptly deliver to the record holder
of this Warrant a certificate of an officer of Celtrix setting forth the nature
of such adjustment and showing in detail the facts upon which such adjustment is
based.
9. TRANSFERABILITY.
(a) UNREGISTERED SECURITY. Each holder of this Warrant
acknowledges that this Warrant and the Warrant Shares have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"), and agrees
not to sell, pledge, distribute, offer for sale, transfer or otherwise dispose
of this Warrant or any Warrant Shares issued upon its exercise in the absence of
(i) an effective registration statement under the Securities Act as to this
Warrant or such Warrant Shares and registration or qualification of this Warrant
or such Warrant Shares under any applicable U.S. federal or state securities law
then in effect or (ii) an opinion of counsel, satisfactory to Celtrix, that such
registration and qualification are not required. Each certificate or other
instrument for Warrant Shares issued upon the exercise of this Warrant shall
bear a legend substantially to the foregoing effect.
(b) TRANSFERABILITY. Subject to the provisions of Section 9(a)
hereof, this Warrant and all rights hereunder are transferable, in whole or in
part, upon surrender of the Warrant with a properly executed assignment (in the
form of Exhibit B hereto) at the principal office of Celtrix, provided, however,
that this Warrant may not be transferred in part unless the transferee and any
subsequent transferee acquires the right to purchase at least 100,000 shares (as
adjusted pursuant to Section 3) of Warrant Shares hereunder.
(c) WARRANT REGISTER. Celtrix will maintain a register containing
the name and address of Purchaser or its registered assign (the "Registered
Holder") of this Warrant. Until any transfer of this Warrant is made in the
warrant register, Celtrix may treat the Registered Holder of this Warrant as the
absolute owner hereof for all purposes; provided, however, that if this Warrant
is properly assigned in blank, Celtrix may (but shall not be required to) treat
the bearer hereof as the absolute owner hereof for all purposes, notwithstanding
any notice to the contrary. Any Registered Holder may change such Registered
Holder's address as shown on the warrant register by written notice to Celtrix
requesting such change.
10. NOTICES OF RECORD DATE. In the event of:
(a) any taking by Celtrix of a record of the holders of any class
of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend (other than a cash dividend payable out of
earned surplus of Celtrix) or other distribution, or any right to subscribe for,
purchase or otherwise acquire any shares of stock of any class or any other
securities or property, or to receive any other right; or
(b) any capital reorganization of Celtrix, any reclassification
or recapitalization of the capital stock of Celtrix or any transfer of all or
substantially all the assets of Celtrix to or consolidation or merger of Celtrix
with or into any other person; or
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(c) any voluntary or involuntary dissolution, liquidation or
winding-up of Celtrix, then and in each such event Celtrix will mail or cause to
be mailed to each holder of a Warrant a notice specifying (i) the date on which
any such record is to be taken for the purpose of such dividend, distribution or
right, and stating the amount and character of such dividend, distribution or
right, and (ii) the date on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding-up is to take place, and the time, if any, as of which the holders of
record of Common Stock (or other securities) shall be entitled to exchange their
shares of Common Stock (or other securities) for securities or other property
deliverable upon such reorganization, reclassification, recapitalization,
transfer, consolidation, merger, dissolution, liquidation or winding-up. Such
notice shall be mailed at least 10 days prior to the date therein specified.
11. REPLACEMENT OF WARRANTS. On receipt of evidence reasonably
satisfactory to Celtrix of the loss, theft, destruction or mutilation of any
Warrant and, in the case of any such loss, theft, destruction or mutilation of
any Warrant, on delivery of an indemnity agreement or security reasonably
satisfactory in form and amount to Celtrix or, in the case of any such
mutilation, on surrender and cancellation of such Warrant, Celtrix at its
expense will execute and deliver, in lieu thereof, a new Warrant of like tenor.
12. MISCELLANEOUS. This Warrant shall be governed by the laws of the
State of California. The headings in this Warrant are for purposes of
convenience and reference only, and shall not be deemed to constitute a part
hereof. Neither this Warrant nor any term hereof may be changed, waived,
discharged or terminated orally but only by an instrument in writing signed by
Celtrix and the registered holder of warrants covering a majority of the Warrant
Shares reserved for issuance upon exercise of this Warrant. All notices and
other communications from Celtrix to the holder of this Warrant shall be
sufficient if in writing and sent by registered or certified mail, domestic or
international courier, or facsimile, return receipt requested, postage or
courier charges prepaid, to the address furnished to Celtrix in writing by
Purchaser. All such notices and communications shall be effective one (1)
trading day after being sent by courier or by facsimile with confirmation of
receipt or five (5) trading days after being sent by the other approved methods.
The invalidity or unenforceability of any provision hereof shall in no way
affect the validity or enforceability of any other provisions.
13. TERMINATION. This Warrant (and the right to purchase securities upon
exercise hereof) shall terminate on the earlier of (i) November 20, 2002, (ii)
the sale, conveyance, disposal, or encumbrance of all or substantially all of
Celtrix's property or business or Celtrix's merger into or consolidation with
any other corporation (other than a wholly-owned subsidiary corporation) or any
other transaction or series of related transactions in which more than fifty
percent (50%) of the voting power of Celtrix is disposed of (a "Corporate
Transaction"), provided that this Section 13(ii) shall not apply to a merger
effected exclusively for the purpose of changing the domicile of Celtrix, or
(iii) such earlier time as provided in Section 2 above. In the event that
termination of this Warrant shall occur pursuant to subsection (ii) above, then
and only then shall the following subsection 13(a) be applicable.
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(a) NET ISSUE EXERCISE.
(i) In lieu of exercising this Warrant in the manner
provided above in Section 2, the Registered 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 Celtrix together with
notice of such election in which event Celtrix shall issue to holder a number of
shares of Common Stock computed using the following formula:
X = Y (A - B)
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A
Where X = The number of shares of Common Stock to be issued to the
Registered Holder.
Y = The number of shares of Common Stock purchasable under this
Warrant (at the date of such calculation).
A = The fair market value of one share of Common Stock (at the
date of such calculation).
B = The Warrant Price (as adjusted to the date of such
calculation).
(ii) For purposes of this Section 13(a), the fair market
value of one share of Common Stock on the date of calculation shall mean:
(A) if this Warrant is exercised at a time when
Celtrix Common Stock is traded on a securities exchange or The Nasdaq Stock
Market, The Nasdaq SmallCap Market or is actively traded over-the-counter, the
closing sale price of Celtrix Common Stock on the day prior to the date the
Warrant is submitted for exercise, but if no such closing sale price is
available, then:
(1) if Celtrix Common Stock is traded on
a securities exchange, The Nasdaq Stock Market, or The Nasdaq SmallCap Market,
the fair market value shall be deemed to be the average of the closing prices
over a thirty (30) day period ending three days before the date of calculation;
or
(2) if Celtrix Common Stock is actively
traded over-the-counter, the fair market value shall be deemed to be the average
of the closing bid or sales price (whichever is applicable) over the thirty (30)
day period ending three days before the date of calculation; or
(B) if (A) is not applicable, the fair market
value shall be at the highest price per share which Celtrix could obtain on the
date of calculation from a willing buyer (not a current employee or director or
an affiliate thereof) for shares of Common Stock sold by Celtrix, from
authorized but unissued shares, as determined in good faith by the Board of
Directors, unless Celtrix is at such time subject to a Corporate Transaction
described in subsection 13(ii) above, in which case the fair market value per
share of Common Stock shall be
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deemed to be the value of the consideration per share received by the holders of
such stock pursuant to such Corporate Transaction.
14. REMEDIES. Celtrix stipulates that the remedies at law of the holder
of this Warrant in the event of any default or threatened default by Celtrix in
the performance of or compliance with any of the terms of this Warrant are not
and will not be adequate, and that such terms may be specifically enforced by a
decreed for the specific performance of any agreement contained herein or by an
injunction against a violation of any of the terms hereof or otherwise.
15. NEGOTIABILITY. This Warrant is issued upon the following terms, to
all of which each holder or owner hereof by the taking hereof consents and
agrees:
(a) title to this Warrant may be transferred only in accordance
with the provisions of Section 9 hereunder; and
(b) subject to the terms of Section 9, any person in possession
of this Warrant properly endorsed is authorized to represent himself as absolute
owner hereof and is empowered to transfer absolute title hereto by endorsement
and delivery hereof to a bona fide purchaser hereof for value; each prior taker
or owner waives and renounces all of his right, title and interest in this
Warrant in favor of each such bona fide purchaser and each such bona fide
purchaser shall acquire absolute title hereto and to all rights represented
hereby.
16. EXTENDED EXPIRATION. The right to exercise this Warrant shall expire
at 5:00 P.M., PST, on November 20, 2002; provided, however, that if a
registration statement covering the Warrant Shares has not become effective
prior to the expiration date of the right to exercise this Warrant, then the
right to exercise this Warrant shall be extended and shall expire 30 days after
the effective date of such registration statement.
17. ASSIGNABILITY. This Warrant may be assigned only in accordance with
the provisions set forth in Section 9.
ISSUED this 20th day of November, 1998.
CELTRIX PHARMACEUTICALS, INC.
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Andreas Sommer
Chief Executive Officer
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EXHIBIT A
NOTICE OF INTENT TO EXERCISE
(To be signed only upon exercise of Warrant)
To: CELTRIX PHARMACEUTICALS, INC.
The undersigned, the Holder of the within Warrant, hereby irrevocably elects to
exercise the purchase right represented by such Warrant for, and to purchase
thereunder, _____________ ____________________________ (_____________) shares of
Common Stock of Celtrix Pharmaceuticals, Inc. and herewith makes payment of
____________________ Dollars ($__________) thereof and requests that the
certificates for such shares be issued in the name of, and delivered to
________________________________, whose address is _____________________________
________________________________________________________________________________
_______________________________________________________________________________.
DATED: ______________
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(Signature must conform in all respects to name
of Holder as specified on the face of the
Warrant)
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(Address)
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EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED, _________________________________________ hereby
sells, assigns and transfers all of the rights of the undersigned under the
attached Warrant with respect to the number of shares of Common Stock covered
thereby set forth below, unto:
NAME OF ASSIGNEE ADDRESS/FAX NUMBER NO. OF SHARES
Dated:_________________ Signature:
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Witness:
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