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EXHIBIT 4.4
NEITHER THIS WARRANT NOR THE SECURITIES
ISSUABLE UPON EXERCISE OF THIS WARRANT
HAVE BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. NO SALE OR
DISPOSITION MAY BE EFFECTED EXCEPT IN
COMPLIANCE WITH RULE 144 UNDER SAID ACT OR
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF
COUNSEL FOR 'THE HOLDER, SATISFACTORY TO
THE COMPANY, THAT SUCH REGISTRATION IS
NOT REQUIRED UNDER THE ACT OR RECEIPT, OF A
NO-ACTION LETTER FROM THE SECURITIES
AND EXCHANGE COMMISSION.
WARRANT TO PURCHASE 18,750 SHARES OF SERIES J PREFERRED STOCK
October 16, 2003
THIS CERTIFIES THAT, for value received,
General Electric Capital Corporation
("Holder") is entitled to subscribe for and
purchase Eighteen Thousand Seven
Hundred Fifty (18,750) shares of the fully
paid and nonassessable Series J
Preferred Stock (the "Shares" or the
"Preferred Stock") of Viacell, Inc., a
Delaware corporation (the "Company"), at
the Warrant Price (as hereinafter
defined), subject to the provisions and
upon the terms and conditions
hereinafter set forth. As used herein, the
term "Series J Preferred Stock" shall
mean the Company's presently authorized
Series J Preferred Stock and any stock
into which such Series J Preferred Stock
may hereafter be converted or
exchanged.
1. Warrant Price. The Warrant Price shall
initially be Eight and 00/100 dollars
($8.00) per share, subject to adjustment as
provided in Section 7 below.
2. Conditions to Exercise. The purchase
right represented by this Warrant may be
exercised at any time, or from time to
time, in whole or in part during the term
commencing on the date hereof and ending at
5:00 P.M. Pacific time on the tenth
anniversary of the date of this
Warrant.
3. Method of Exercise, Payment; Issuance of
Shares; Issuance of New Warrant.
(a) Cash
Exercise. Subject to Section 2 hereof, the purchase right
represented by this Warrant may be
exercised by the Holder hereof, in whole or
in part, by the surrender of this Warrant
(with a duly executed Notice of
Exercise in the form attached hereto) at
the principal office of the Company (as
set forth in Section 18 below) and by
payment to the Company, by check, of an
amount: equal to the then applicable
Warrant Price per share multiplied by the
number of shares then being purchased. In
the event of any exercise of the
rights represented by this Warrant,
certificates for the shares of stock so
purchased shall be in the name of, and
delivered to, the Holder hereof, or as
such Holder may direct (subject to the
terms of transfer contained herein and
upon payment by such Holder hereof of any
applicable transfer taxes). Such
delivery shall be made within 30 days after
exercise of the Warrant and at the
Company's expense and, unless this Warrant
has been fully exercised or expired,
a new Warrant having terms and conditions
substantially identical to this
Warrant and representing the portion of the
Shares, if any, with respect to
which this Warrant shall not have been
exercised, shall also be issued to the
Holder hereof within 30 days after exercise
of the Warrant.
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(b) Net
Issue Exercise. Holder may also elect to receive shares equal
to
the value of this Warrant (or of any
portion thereof remaining unexercised) 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 Holder the
number of shares of the Company's Preferred
Stock computed using the following
formula:
X = Y (A-B)
-------
A
Where X = the number of shares of Preferred Stock to be issued
to
Holder.
Y = the number of shares of Preferred Stock purchasable under
this
Warrant (at the date of such calculation).
A = the Fair Market Value of one share of the Company's
Preferred
Stock (at the date of such calculation).
B = Warrant Price (as adjusted to the date of such
calculation).
(c) Fair
Market Value. For purposes of this Section 3, Fair Market Value
of one share of the Company's Preferred
Stock shall mean:
(i) In the event of an exercise in connection with an Initial
Public
Offering,
the per share Fair Market Value for the Preferred Stock shall
be
the
Offering Price at which the underwriters initially sell Common
Stock
to the
public multiplied by the number of shares of Common Stock into
which each
share of Preferred Stock is then convertible; or
(ii) The average of the closing bid and asked prices of Common
Stock
quoted in
the Over-The-Counter Market Summary, the last reported sale
price
quoted on the Nasdaq National Market ("NNM") or on any exchange
on
which the
Common Stock is listed, whichever is applicable, as published
in
the
Western Edition of the Wall Street Journal for the ten (10)
trading
days prior
to the date of determination of Fair Market Value, multiplied
by the
number of shares of Common Stock into which each share of
Preferred
Stock is
then convertible; or
(iii) In the event of an exercise in connection with a merger,
acquisition or other consolidation in which the Company is not
the
surviving
entity, the per share Fair Market Value for the Preferred Stock
shall be
the value to be received per share of Preferred Stock by all
holders of
the Preferred Stock in such transaction as determined by the
Board of
Directors; or
(iv) In any other instance, the per share Fair Market Value for
the
Preferred
Stock shall be as determined in good faith by the Company's
Board of
Directors. In the event of 3(c)(iii) or 3(c)(iv), above, the
Company's
Board of Directors shall prepare a certificate, to be signed by
an
authorized officer of the Company, setting forth in
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reasonable
detail the basis for and method of determination of the per
share Fair
Market Value of the Preferred Stock. The Board will also
certify to
the Holder that this per share Fair Market Value will be
applicable
to all holders of the Company's Preferred Stock. Such
certification must be made to Holder at least thirty (30) business
days
prior to
the proposed effective date of the merger, consolidation, sale,
or other
triggering event as defined in 3(c)(iii) or 3(c)(iv).
(d)
Automatic Exercise. To the extent this Warrant is not
previously
exercised, it shall be automatically
exercised in accordance with Sections 3(b)
and 3(c) hereof (even if not surrendered)
immediately before its expiration,
involuntary termination or
cancellation.
4. Representations and Warranties of Holder
and the Company
(a)
Representations and Warranties by Holder. The Holder represents
and
warrants to the Company with respect to
this purchase as follows:
(i) The Holder has substantial experience in evaluating and
investing
in private placement transactions of securities of companies
similar to
the Company so that the Holder is capable of evaluating the
merits and
risks of its investment in the Company and has the capacity to
protect
its interests.
(ii) Except for transfers to a Holder affiliate, the Holder is
acquiring
the Warrant and the Shares of Preferred Stock issuable upon
exercise
of the Warrant (collectively the "Securities") for investment
for
its own account and not with
a view to, or for resale in connection with,
any
distribution thereof. The Holder understands that the Securities
have
not been
registered under the Securities Act of 1933, as amended (the
"Act") by
reason of a specific exemption from the registration provisions
of the Act
which depends upon, among other things, the bona fide nature of
the
investment intent as expressed herein.
(iii) The Holder acknowledges that the Securities must be held
indefinitely unless subsequently registered under the Act or an
exemption
from such
registration is available. The Holder is aware of the
provisions
of Rule
144 promulgated under the Act.
(iv) The Holder is an "accredited investor" within the meaning
of
Regulation
D promulgated under the Act.
(v) The Holder has had an opportunity to discuss the Company's
business,
management and financial affairs with its management and an
opportunity to review the Company's facilities. The Holder
understands
that such
discussions, as well as the written information issued by the
Company,
were intended to describe the aspects of the Company's business
-and
prospects which the Company believes to be material but were
not
necessarily a thorough or exhaustive description.
(b)
Company hereby represents, and warrants to Holder that, except as
set
forth in the schedule attached to this
Warrant as Exhibit A (the "Disclosure
Schedule"), the statements in the following
paragraphs of this Section 4(b) are
true and correct (a) as of the date hereof
and (b)
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except where any such representation and
warranty relates specifically to an
earlier date, as of the date of any
exercise of this Warrant.
(i) Corporate Organization and Authority. Company (a) is a
corporation duly organized, validly existing, and in good standing
in its
jurisdiction of incorporation, (b) has the corporate power and
authority
to own and
operate its properties and to carry on its business as now
conducted
and as proposed to be conducted; and (c) is qualified as a
foreign
corporation in all jurisdictions where such qualification is
required.
(ii) Corporate Power. Company has all requisite legal and
corporate
power and
authority to execute, issue and deliver the Warrant, to issue
the Common
Stock issuable upon exercise or conversion of the Warrant, and
to carry out and
perform its obligations under the Warrant and any related
agreements.
(iii) Authorization, Enforceability. All corporate action on
the
part of
Company, its officers, directors and shareholders necessary for
the authorization,
execution, delivery and performance of its obligations
under this
Warrant and for the authorization, issuance and delivery of the
Warrant
and the Warrant Stock issuable upon exercise of the Warrant has
been taken
and this Warrant constitutes the legally binding and valid
obligation
of Company enforceable in accordance with its terms.
(iv) Valid Issuance of Warrant and Preferred Stock. The Warrant
has
been
validly issued and is free of restrictions on transfer other
than
restrictions on transfer set forth herein and under applicable
state and
federal
securities laws. The Preferred Stock issuable upon conversion
of
this
Warrant, when issued, sold and delivered in accordance with the
terms
of this
Warrant for the consideration expressed herein, will be duly
and
validly
issued, fully paid and nonassessable, and will be free of
restrictions on transfer other than restrictions on transfer under
this
Warrant
and under applicable state and federal securities laws. Subject
to
applicable
restrictions on transfer, the issuance and delivery of the
Warrant
and the Preferred Stock issuable upon conversion of the Warrant
are not
subject to any preemptive or other similar rights or any liens
or
encumbrances except as specifically set forth in Company's
Certificate of
Incorporation or this Warrant. The offer, sale and issuance of the
Warrant
and
Preferred Stock, as contemplated by this Warrant, are exempt from
the
prospectus
and registration requirements of applicable United States
federal
and state security laws, and neither Company nor any authorized
agent
acting on its behalf has or will take any action hereafter that
would
cause the loss of such exemption.
(v) No Conflict with Other Instruments. The execution, delivery,
and
performance of this Warrant will not result in any violation of, be
in
conflict
with, or constitute a default under, with or without the
passage
of time or
the giving of notice (a) any provision of Company's Certificate
of
Incorporation or by-laws; (b) any provision of any judgment,
decree, or
order to
which Company is a party or by which it is bound or an event
which
results in the creation of any material lien, charge or
encumbrance
upon any
material assets of Company; (c) any contract, obligation, or
commitment
to which Company is a party or by which it is bound; or (d) any
statute,
rule, or governmental regulation applicable to Company.
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(vi) Capitalization. As October 16, 2003, the authorized
capital
stock of
Company consists of 80,000,000 shares of Common Stock, $.01 par
value, of
which 2,634,299 were issued and outstanding, and 28,325,000
s
