EXHIBIT 10.29
NEITHER THIS WARRANT NOR THE
SHARES OF COMMON STOCK WHICH MAY BE PURCHASED UPON THE EXERCISE OF
THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE SOLD,
ASSIGNED OR TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
FOR SUCH SECURITIES UNDER THE SECURITIES ACT UNLESS THE COMPANY HAS
RECEIVED THE WRITTEN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
TO THE EFFECT THAT SUCH SALE, ASSIGNMENT OR TRANSFER DOES NOT
INVOLVE A TRANSACTION REQUIRING REGISTRATION OF SUCH SECURITIES
UNDER THE SECURITIES ACT.
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Issue
Date:
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July 1,
2002
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Void After:
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June 30,
2007
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ORTHOVITA,
INC.
This Warrant has been issued in
connection with the execution of a Clinical Assessment Agreement of
even date herewith among Orthovita, Inc., The Musculoskeletal
Research Foundation, Inc. and Texas Back Institute Physicians, P.A.
(the “Clinical Assessment Agreement”).
THIS CERTIFIES that, for value
received, Richard D. Guyer, M.D. (the “Holder”), is
entitled, upon the terms and subject to the conditions hereinafter
set forth, to subscribe for and purchase from Orthovita, Inc. (the
“Company”), at the Exercise Price (as defined below)
per share determined as provided herein, up to 10,000 fully paid
and nonassessable shares of the Company’s common stock, $0.01
par value per share (the “Common Stock”).
1 Exercise Period -
The purchase rights represented by this Warrant are exercisable by
the Holder, in whole or in part, at any time and from time to time
during the Exercise Period, which shall commence at July 1,
2002 (the “Issue Date”) and shall end at 5:00 p.m.
Eastern Standard time on June 30, 2007 (the “Expiration
Date”). Notwithstanding anything to the contrary contained
herein, in the event that, prior to the Expiration Date, the
Clinical Assessment Agreement is terminated for any reason, or if
the Principal Investigator ceases to be employed by, act as a
consultant for, or own an equity interest in The Musculoskeletal
Research Foundation, Inc. or any successor entity thereof, any
Warrants granted hereunder that have not been exercised immediately
prior to such termination date shall be forfeited and be of no
further force and effect.
2 Exercise Price - The
price per share of the Common Stock at which this Warrant may be
exercised (the “Exercise Price”) shall be $1.75,
subject to adjustment as provided herein.
3 Exercise of Warrant
- During the aforesaid Exercise Period, this Warrant may be
exercised, in whole or in part and from time to time, by the
surrender of this Warrant and the Notice of Exercise annexed hereto
duly executed at the principal office of the Company (or such other
office or agency of the Company as it may designate) and upon
payment of the Exercise
Price of the shares thereby purchased (the
aggregate of the Exercise Price for all shares to be exercised
being referred to herein as the “Purchase Price”).
Payment of the Purchase Price may be made (i) by check or bank
draft payable to the order of the Company or (ii) by wire
transfer to the account of the Company. Upon exercise, the Holder
shall be entitled to receive, promptly after payment in full, one
or more certificates, issued in the Holder’s name or in such
name or names as the Holder may direct, subject to the limitations
on transfer contained herein, for the number of shares of Common
Stock so purchased. The shares so purchased shall be deemed to be
issued as of the close of business on the date on which the Company
receives the duly executed Notice of Exercise and the Purchase
Price.
The Company covenants that all
shares of Common Stock that are issued upon the exercise of rights
represented by this Warrant will be fully paid, nonassessable, and
free from all taxes, liens and charges in respect of the issue
thereof (other than taxes in respect of any transfer occurring
contemporaneously with such issue).
4 No Fractional Shares or
Scrip - No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this
Warrant. In lieu thereof, a cash payment shall be made equal to
such fraction multiplied by the Exercise Price per share as then in
effect.
5 Charges, Taxes and
Expenses - Issuance of certificates for shares of Common
Stock shall be made without charge to the Holder for any issue or
transfer tax or other incidental expense in respect of the issuance
of such certificate; provided, however, that the Holder shall be
responsible for any issue or transfer tax associated with such
issuance.
6 No Rights as
Shareholder - This Warrant does not entitle the Holder to
any voting rights or other rights as a shareholder of the Company
prior to exercise and payment of the Exercise Price in accordance
with Section 3 hereof.
7 Investment
Representation - The Holder (i) is an
“Accredited Investor” as that term is defined in Rule
501 of Regulation D promulgated under the Securities Act;
(ii) has the ability to bear the economic risks of such
Holder’s prospective investment, including a complete loss of
Holder’s investment in the Warrants and the shares of Common
Stock issuable upon the exercise thereof (collectively, the
“Securities”); (iii) has been furnished with and
has had access to such information as such Holder has considered
necessary to make a determination as to the purchase of the
Securities together with such additional information as is
necessary to verify the accuracy of the information supplied;
(iv) has had the opportunity to ask questions concerning the
Company and had all questions which have been asked by such Holder
satisfactorily answered by the Company; and (v) has not been
offered the Securities by any form of advertisement, article,
notice or other communication published in any newspaper, magazine,
or similar media or broadcast over television or radio, or any
seminar or meeting whose attendees have been invited by any such
media. The Holder, by acceptance of this Warrant, represents and
warrants to the Company that this Warrant and all securities
acquired upon any and all exercises of this Warrant are purchased
for the Holder’s own account for investment, and not with
view to distribution of either this Warrant or any securities
purchasable upon exercise hereof.
8. Listing; Exercise or
Transfer Without Registration
8.1 Listing
- The Company shall, promptly after
the date hereof, secure the listing of the shares of Common Stock
issuable upon exercise of the Warrant upon each national securities
exchange or automated quotation system, if any, upon which shares
of Common Stock are then listed (subject to official notice of
issuance upon exercise of this Warrant) and shall maintain, so long
as any other shares of Common Stock shall be so listed, such
listing of all shares of Common Stock from time to time issuable
upon the exercise of this Warrant; and the Company shall so list on
each national securities exchange or automated quotation system, as
the case may be, and shall maintain such listing of, any other
shares of capital stock of the Company issuable upon the exercise
of this Warrant if and so long as any shares of the same class
shall be listed on such national securities exchange or automated
(warrant shares) quotation system.
8.2 Exercise or Transfer
Without Registration - If, at the time of the surrender of this
Warrant in connection with any exercise, transfer, or exchange of
this Wa