________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
AMENDMENT NO. 1
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED COMMISSION FILE NUMBER 0-19890
DECEMBER 31, 1996
LIFECELL CORPORATION
A DELAWARE IRS EMPLOYER IDENTIFICATION
CORPORATION NO. 76-0172936
3606 RESEARCH FOREST DRIVE
THE WOODLANDS, TEXAS 77381
Telephone Number (281) 367-5368
SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
NONE
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
Common Stock, $.001 Par Value
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes[X] No[ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
Aggregate market value of the voting stock (Common Stock and Series B Preferred
Stock, assuming conversion of such Preferred Stock into Common Stock at the
current conversion rate) held by non-affiliates of registrant as of March
26, 1997 $40,933,000
Number of shares of registrant's Common Stock
outstanding as of March 26, 1997 6,754,761
DOCUMENTS INCORPORATED BY REFERENCE:
Portions of registrant's proxy statement relating to the 1997 annual
meeting of stockholders have been incorporated by reference into Part III
hereof.
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The Company hereby amends the following item of its Annual Report on
Form 10-K for the fiscal year ended December 31, 1996 (Commission File No.
0-19890 (the Form 10-K)) as set forth below:
1. Item 14, "Exhibits, Financial Statement Schedules, and Reports on
Form 8-K" is hereby amended to provide for the incorporation of Exhibit 10.19 as
set forth herein:
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(A) DOCUMENTS INCLUDED IN THIS REPORT:
1. FINANCIAL STATEMENTS PAGE
Report of Independent Public Accountants............................. F-2
Balance Sheets as of December 31, 1995 and 1996...................... F-3
Statements of Operations for the years ended
December 31, 1994, 1995 and 1996..................................... F-4
Statements of Stockholders' Equity for the years
ended December 31, 1995 and 1996..................................... F-5
Statements of Cash Flows for the years ended
December 31, 1994, 1995 and 1996..................................... F-6
Notes to Financial Statements........................................ F-7
(B) REPORTS ON FORM 8-K:
During the quarter ended December 31, 1996, the Company filed (i) on
November 27, 1996, a Current Report on Form 8-K dated as of November 18,
1996, to report the private placement of equity securities of the Company;
and (ii) on December 31, 1996, a Current Report on Form 8-K dated as of
December 27, 1996, at the request of The Nasdaq Stock Market. The latter
report included the Company's balance sheet as of November 30, 1996, and
was filed to evidence the Company's compliance with The Nasdaq Stock
Market's continuing listing requirements for SmallCap issuers.
(C) EXHIBITS:
Exhibits designated by the symbol * are filed with this Annual Report on
Form 10-K. All exhibits not so designated are incorporated by reference to
a prior filing as indicated.
Exhibits designated by the symbol + are management contracts or
compensatory plans or arrangements that are required to be filed with this
report pursuant to this Item 14.
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LifeCell undertakes to furnish to any stockholder so requesting a copy
of any of the following exhibits upon payment to the Company of the reasonable
costs incurred by Company in furnishing any such exhibit.
EXHIBIT NO. DESCRIPTION
3.1 Restated Certificate of Incorporation, as amended (incorporated by
reference to Exhibit 4.1 to the Registrant's Current Report on
Form 8-K dated November 18, 1996).
3.2 Amended and Restated By-laws (incorporated by reference to Exhibit
3.2 to the Registrant's Quarterly Report on Form 10-Q for the
period ended June 30, 1996).
4.1 Form of Series B Preferred Stock Certificate. (Previously filed).
4.2 See Exhibit 10.21 -- Voting Agreement dated November 18, 1996,
among LifeCell Corporation and certain stockholders named therein.
(Previously filed).
10.1+ Employment Agreement and accompanying Confidentiality, Inventions
and Discoveries and Non-Competition Agreement dated January 28,
1992, by and between the Registrant and Paul M. Frison
(incorporated by reference to Exhibit 10.19 to Amendment No. 2 to
the Registrant's Registration Statement on Form S-1, Registration
No. 33-44969, filed with the Commission on February 10, 1992).
10.2+ Employment Agreement and accompanying Confidentiality, Inventions
and Discoveries and Non-Competition Agreement dated January 28,
1992, by and between the Registrant and Stephen A. Livesey
(incorporated by reference to Exhibit 10.20 to Amendment No. 2 to
the Registrant's Registration Statement on Form S-1, Registration
No. 33-44969, filed with the Commission on February 10, 1992).
10.3+ LifeCell Corporation Second Amended and Restated 1992 Stock Option
Plan, as amended. (Previously filed).
10.4+ LifeCell Corporation Second Amended and Restated 1993 Non-Employee
Director Stock Option Plan, as amended. (Previously filed).
10.5 Form of Confidentiality/Non-Compete Agreement (incorporated by
reference to Exhibit 10.28 to the Registrant's Registration
Statement on Form S-1, Registration No. 33-44969, filed with the
Commission on January 9, 1992).
10.6 Exclusive License Agreement dated June 6, 1986, between the
Registrant and The Board of Regents of The University of Texas
System (incorporated by reference to Exhibit 10.29 to the
Registrant's Registration Statement on Form S-1, Registration No.
33-44969, filed with the Commission on January 9, 1992).
10.7+ Amended and Restated Registration Rights Agreement dated February
26, 1992, by and between the Registration and the stockholders
named therein (incorporated by reference to Exhibit 10.40 to
Amendment No. 3 to the Registrant's Registration Statement on Form
S-1, Registration No. 33-44969, filed with the Commission on
February 27, 1992).
10.8 Underwriter's Warrant Agreement dated March 6, 1992, between the
Registrant and Robert Todd Financial Corporation, and First
Amendment to Underwriter's Warrant Agreement dated January 26,
1993, between the Registrant and Robert Todd Financial Corporation
(incorporated by reference to Exhibit 10.18 to the Registrant's
Annual Report on Form 10-K for the fiscal year ended December 31,
1992).
10.9 Lease Agreement dated December 10, 1986, between the Registrant
and The Woodlands Corporation, Modification and Ratification of
Lease Agreement dated April 11, 1988, between the Registration and
The Woodlands Corporation Modification and Ratification of Lease
dated August 1, 1992, between the Company and The Woodlands
Corporation and Modification, Extension and Ratification of Lease
dated March 5, 1993, between the Registrant and The Woodlands
Corporation, and Modification and Ratification of Lease Agreement
dated December 21, 1995, between the Company and The Woodlands
Office Equities--'95 Limited (incorporated by reference to Exhibit
10.1 to the Registrant's Quarterly Report on Form 10-Q for the
period ended March 31, 1996).
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10.10 Lease Agreement dated September 1, 1988, between the Registrant
and The Woodlands Corporation, and Modification of Lease Agreement
dated March 5, 1993, between the Registrant and The Woodlands
Corporation (incorporated by reference to Exhibit 10.22 to the
Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1992).
10.11 Stock Purchase Warrant dated January 26, 1993, issued to Strategem
of Alabama, Inc. (incorporated by reference to Exhibit 10.25 to
the Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1992).
10.12 License and Development Agreement dated March 3, 1994, between the
Registrant and Medtronic, Inc. (incorporated by reference to
Exhibit 10.1 to the Registrant's Current Report on Form 8-K dated
March 3, 1994).
10.13 Investment Agreement dated March 3, 1994, between the Registrant
and Medtronic, Inc. (incorporated by reference to Exhibit 10.2 to
Registrant's Current Report on Form 8-K dated March 3, 1994).
10.14 Lease Agreement between LifeCell Corporation and Unichem, dated
August 1, 1994 (incorporated by reference to Exhibit 10.3 to the
Registrant's Quarterly Report on Form 10-Q for the period ended
September 30, 1994).
10.15 Securities Purchase Agreement dated November 18, 1996, between
LifeCell Corporation and the Investors named therein. (Previously
filed).
10.16 Voting Agreement dated November 18, 1996, among LifeCell
Corporation and certain stockholders named therein. (Previously
filed).
10.17 Registration Rights Agreement dated November 18, 1996, between
LifeCell Corporation and certain stockholders named therein.
(Previously filed).
10.18 Form of Stock Purchase Warrant dated November 18, 1996, issued to
each of the warrant holders named on Schedule 10.19 attached
thereto. (Previously filed).
10.19* Stock Purchase Warrant dated November 18, 1996, issued to Gruntal
& Co., Incorporated.
11.1 Statement Regarding Computation of Per Share Earnings.
(Previously filed).
23.1 Consent of Arthur Andersen LLP. (Previously filed).
27.1 Financial Data Schedule. (Previously filed).
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SIGNATURES
In accordance with the requirements of the Securities Exchange Act of
1934, as amended, the registrant has duly caused this amendment to be signed by
the undersigned, thereunto duly authorized.
LIFECELL CORPORATION
Date: April 5, 1997 By:/S/ J. DONALD PAYNE
Vice President and
Chief Financial Officer
EXHIBIT 10.19
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY APPLICABLE STATE SECURITIES LAW, BUT HAS
BEEN ACQUIRED FOR THE PRIVATE INVESTMENT OF THE HOLDER HEREOF AND MAY NOT BE
OFFERED, SOLD OR TRANSFERRED UNTIL (I) A REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR SUCH APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME
EFFECTIVE WITH REGARD THEREOF, OR (II) IN THE OPINION OF COUNSEL (WHICH OPINION
AND COUNSEL RENDERING SAME SHALL BE ACCEPTABLE TO THE COMPANY) REGISTRATION
UNDER THE SECURITIES ACT OR SUCH APPLICABLE STATE SECURITIES LAWS IS NOT
REQUIRED IN CONNECTION WITH SUCH PROPOSED OFFER, SALE OR TRANSFER.
LIFECELL CORPORATION
STOCK PURCHASE WARRANT
Date of Issuance: November 18, 1996 Certificate No. BW-054
FOR VALUE RECEIVED, LifeCell Corporation, a Delaware corporation (the
"COMPANY"), hereby grants to Gruntal & Co., Incorporated or its registered
assigns (the "REGISTERED HOLDER") the right to purchase from the Company 354,734
shares of the Company's Common Stock, par value $.001 per share ("COMMON
STOCK"), at a price per share of $4.50 (as adjusted from time to time hereunder,
the "EXERCISE PRICE"). This Warrant is being issued by the Company to the
Registered Holder pursuant to the Sales Agency Agreement, dated as of October
29, 1996 and in connection with warrants (collectively with this Warrant, the
"WARRANT") issued by the Company to certain investors pursuant to the Securities
Purchase Agreement, dated as of November 18, 1996 (the "PURCHASE AGREEMENT").
Certain capitalized terms used herein are defined in Section 5 hereof. The
amount and kind of securities obtainable pursuant to the rights granted
hereunder and the purchase price for such securities are subject to adjustment
pursuant to the provisions contained in this Warrant.
This Warrant is subject to the following provisions:
Section 1. EXERCISE OF WARRANT.
1.1A. EXERCISE PERIOD. Subject to the provisions of Paragraph 1B, the
Registered Holder may exercise, in whole or in part (but not as to a fractional
share of Common Stock), the purchase rights represented by this Warrant at any
time and from time to time after the Date of Issuance to and including the fifth
anniversary thereof (the "EXERCISE PERIOD"). The Company shall give the
Registered Holder written notice of the expiration of the rights hereunder at
least 30 days but not more than 90 days prior to the end of the Exercise Period.
In the event the Company fails to give the Registered Holder such notice, the
Exercise Period shall continue until and terminate on the thirtieth calendar day
following the day the Company gives such notice.
1.1B. RESTRICTED SECURITIES. Neither this Warrant nor the shares of Common
Stock obtainable upon exercise of this Warrant have been registered under the
Securities Act or any state securities laws ("Blue Sky Laws"). This Warrant and
the shares of Common Stock issuable hereunder have been acquired for investment
purposes and not with a view to distribution or resale and the shares of Common
Stock issuable upon exercise of this Warrant
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may not be made subject to a security interest, pledged, hypothecated, sold or
otherwise transferred without an effective registration statement therefor under
the Securities Act and such applicable Blue Sky Laws or an opinion of counsel
(which opinion and counsel rendering same shall be acceptable to the Company)
that registration is not required under the Securities Act and under any
applicable Blue Sky Laws. The certificates representing the shares of Common
Stock issuable upon exercise of the Warrant shall bear substantially the
following legend:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY APPLICABLE STATE SECURITIES LAW, BUT HAVE BEEN ACQUIRED FOR
THE PRIVATE INVESTMENT OF THE HOLDER HEREOF AND MAY NOT BE OFFERED, SOLD OR
TRANSFERRED UNTIL (I) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
SUCH APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH
REGARD THERETO, OR (II) IN THE OPINION OF COUNSEL (WHICH OPINION AND
COUNSEL RENDERING SAME SHALL BE ACCEPTABLE TO THE COMPANY) REGISTRATION
UNDER THE SECURITIES ACT OR SUCH APPLICABLE STATE SECURITIES LAWS IS NOT
REQUIRED IN CONNECTION WITH SUCH PROPOSED OFFER, SALE OR TRANSFER.
Other legends as required by applicable federal and state laws may be placed on
such certificates. The Registered Holder and the Company agree to execute such
documents and instruments as counsel for the Company reasonably deemed
necessary to effect compliance with the issuance of this Warrant and any shares
of Common Stock issued upon exercise hereof with applicable federal and state
securities laws. The Registered Holder agrees that the Company may decline to
permit a transfer of this Warrant if the proposed transferee does not meet then
applicable qualifications for investors in securities offerings exempt from
registration.
1.1C. EXERCISE PROCEDURE.
(i) This Warrant shall be deemed to have been exercised at such time
when the Company has received all of the following items (the "EXERCISE TIME"):
(a) a completed Exercise Agreement, as described in Paragraph
1D, executed by the Person exercising all or part of the purchase rights
represented by this Warrant (the "PURCHASER");
(b) this Warrant;
(c) if this Warrant is not registered in the name of the
Purchaser, an Assignment or Assignments in the form set forth in EXHIBIT I
hereto evidencing the assignment of this Warrant to the Purchaser, in
which case the Registered Holder shall have complied with the provisions
set forth in Section 7 hereof; and
(d) either (1) a check payable to the Company in an amount
equal to the product of the Exercise Price multiplied by the number of
shares of Common Stock being purchased upon such exercise (the "AGGREGATE
EXERCISE PRICE"), (2) the surrender to the Company of debt or equity
securities of the Company or any of its wholly-owned Subsidiaries having a
Market Price equal to the Aggregate Exercise Price of the shares of Common
Stock being purchased upon such exercise (provided that for purposes of
this subparagraph 1C(i)(d), the Market Price of any note or other debt
security or any preferred stock shall be deemed to be equal to the
aggregate outstanding principal amount or liquidation value thereof plus
all accrued and unpaid interest thereon or
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accrued or declared and unpaid dividends thereon) or (3) a written notice
to the Company that the Purchaser is exercising this Warrant (or a portion
thereof) by authorizing the Company to withhold from issuance a number of
shares of Common Stock issuable upon such exercise of this Warrant which
when multiplied by the Market Price of the Common Stock is equal to the
Aggregate Exercise Price (and such withheld shares shall no longer be
issuable under this Warrant).
(ii) Certificates for shares of Common Stock purchased upon exercise
of this Warrant shall be delivered by the Company to the Purchaser as soon as
practicable but in any event within ten business days after the date of the
Exercise Time. Unless this Warrant has expired or all of the purchase rights
represented hereby have been exercised, the Company shall prepare a new Warrant,
substantially identical hereto, representing the rights formerly represented by
this Warrant which have not expired or been exercised and shall within such
ten-day period, deliver such new Warrant to the Person designated for delivery
in the Exercise Agreement.
(iii) The shares of Common Stock issuable upon the exercise of this
Warrant shall be deemed to have been issued to the Purchaser at the Exercise
Time, and the Purchaser shall be deemed for all purposes to have become the
record holder of such shares of Common Stock at the Exercise Time.
(iv) The issuance of certificates for shares of Common Stock issued
upon exercise of this Warrant shall be made without charge to the Registered
Holder for any issuance tax in respect thereof or other cost incurred by the
Company in connection with such exercise and the related issuance of shares of
Common Stock. Each share of Common Stock issuable upon exercise of this Warrant
shall, upon payment of the Exercise Price therefor, be fully paid and
nonassessable and free from all liens and charges with respect to the issuance
thereof.
(v) The Company shall not close its books against the transfer of
this Warrant or of any share of Common Stock issued or issuable upon the
exercise of this Warrant in any manner which interferes with the timely exercise
of this Warrant. The Company shall from time to time take all such action as may
be necessary to assure that the par value per share of the unissued Common Stock
acquirable upon exercise of this Warrant is at all times equal to or less than
the Exercise Price then in effect.
(vi) The Company shall assist and cooperate with the Registered
Holder or the Purchaser, as the case may be, in connection with any governmental
filings or any governmental approvals required to be made or obtained by the
Registered Holder or the Purchaser, as the case may be, prior to or in
connection with any exercise of this Warrant (including, without limitation,
making any filings required to be made by the Company).
(vii) Notwithstanding any other provision hereof, if an exercise of
any portion of this Warrant is to be made in connection with a registered public
offering or the sale of the Company, such exercise may, at the election of the
holder hereof, be conditioned upon the consummation of the public offering or
sale of the Company in which case such exercise shall not be deemed to be
effective until the consummation of such transaction.
(viii) The Company shall at all times reserve and keep available out
of its authorized but unissued shares of Common Stock solely for the purpose of
issuance upon the exercise of this Warrant, such number of shares of Common
Stock issuable upon the exercise of this Warrant. All shares of Common Stock
which are so issuable shall, when issued, be duly and validly issued, fully paid
and nonassessable and free from all taxes, liens and charges. The
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Company shall take all such actions as may be necessary to assure that all such
shares of Common Stock may be so issued without violation of any applicable law
or governmental regulation or any requirements of any domestic or foreign
securities exchange upon which shares of Common Stock may be listed (except for
official notice of issuance which shall be immediately delivered by the Company
upon each such issuance) including without limitation, the Nasdaq National
Market or the Nasdaq Small Cap Market (as the case may be). The Company shall
not take any action which would cause the number of authorized but unissued
shares of Common Stock to be less than the number of such shares required to be
reserved hereunder for issuance upon exercise of this Warrant.
1.1D. EXERCISE AGREEMENT. Upon any exercise of this Warrant, the Exercise
Agreement shall be substantially in the form set forth in EXHIBIT II hereto,
except that if the shares of Common Stock are not to be issued in the name of
the Person in whose name this Warrant is registered, the Exercise Agreement
shall also state the name of the Person to whom the certificates for the shares
of Common Stock are to be issued, and if the number of shares of Common Stock to
be issued does not include all shares of Common Stock purchasable hereunder, it
shall also state the name of the Person to whom a new Warrant for the
unexercised portion of the rights hereunder is to be delivered. Such Exercise
Agreement shall be dated the actual date of execution thereof.
1.1E. FRACTIONAL SHARES. If a fractional share of Common Stock would, but
for the provisions of Paragraph 1A and Paragraph 1B, as the case may be, be
issuable upon exercise of the rights represented by this Warrant, the Company
shall, within ten business days after the date of the Exercise Time, deliver to
the Purchaser a check payable to the Purchaser in lieu of such fractional share
in an amount equal to the difference between the Market Price of such fractional
share as of the date of the Exercise Time and the Exercise Price of such
fractional share.
Section 2. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. In order to
prevent dilution of the rights granted under this Warrant, the Exercise Price
shall be subject to adjustment from time to time as provided in this Section 2,
and the number of shares of Common Stock obtainable upon exercise of this
Warrant shall be subject to adjustment from time to time as provided in this
Section 2.
2.1.A. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES UPON ISSUANCE OF
COMMON STOCK.
(i) If and whenever on or after the Date of Issuance of this Warrant
the Company issues or sells, or in accordance with Paragraph 2B is deemed to
have issued or sold, any shares of Common Stock (other than the Excluded Stock)
for a consideration per share less than the Exercise Price in effect immediately
prior to such time, then immediately upon such issue or sale the Exercise Price
shall be reduced to the Exercise Price determined by dividing
(A) the sum of (y) the product derived by multiplying the
Exercise Price in effect immediately prior to such issue or sale and the number
of shares of Common Stock Deemed Outstanding immediately prior to such issue or
sale plus (z) the consideration, if any, received by the Company upon such issue
or sale, by
(B) the number of shares of Common Stock Deemed Outstanding
immediately after such issue or sale.
(ii) Upon each such adjustment of the Exercise Price hereunder, the
number of shares of Warrant Stock acquirable upon exercise of this Warrant shall
be adjusted to the
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number of shares determined by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of shares of Warrant Stock
acquirable upon exercise of this Warrant immediately prior to such adjustment
and dividing the product thereof by the Exercise Price resulting from such
adjustment.
(iii) For purposes of this Section 2, "EXCLUDED STOCK" means (1)
Common Stock issued or reserved for issuance by the Company as a dividend on
Preferred Stock or upon any subdivision or split-up of the outstanding shares of
any shares of capital stock of the Company or any recapitalization thereof, or
upon conversion of any shares of Preferred Stock, (2) Common Stock issuable
pursuant to any option or warrants or other rights that are outstanding on the
Date of Issuance identified on SCHEDULE 3-2 -- CAPITAL STOCK to the Purchase
Agreement, (3) Common Stock of the Company issued or issuable in connection with
a Board-approved acquisition of a business by the Company as a result of which
the Company owns in excess of 50% of the voting power of such business, (4)
Common Stock issued or issuable to employees, officers, consultants, directors
or vendors of the Company or pursuant to any Board-approved employee, officer,
consultant or director benefit plan, including without limitation any
Board-approved stock option plan, and (5) Common Stock issued or issuable to (x)
banks, savings and loan associations, equipment lessors or similar lending
institutions in connection with such entities providing Board-approved credit
facilities or equipment financings to the Company or (y) any party to any
technology transfer agreement, distribution agreement, marketing agreement or
any other agreement similar thereto, with the Company, as approved by the Board.
2.1B. EFFECT ON EXERCISE PRICE OF CERTAIN EVENTS. For purposes of
determining the adjusted Exercise Price under Paragraph 2A, the following shall
be applicable:
(i) ISSUANCE OF RIGHTS OR OPTIONS. If the Company in any manner
grants or sells any Options and the price per share for which Common Stock is
issuable upon the exercise of such Options, or upon conversion or exchange of
any Convertible Securities issuable upon exercise of such Options, is less than
the Exercise Price in effect immediately prior to the time of the granting the
sale of such Options, then the total maximum number of shares of Common Stock
issuable upon the exercise of such Options, or upon conversion or exchange of
the total maximum amount of such Convertible Securities issuable upon the
exercise of such Options, shall be deemed to be outstanding and to have been
issued and sold by the Company at such time for such price per share. For
purposes of this paragraph, the "PRICE PER SHARE FOR WHICH COMMON STOCK IS
ISSUABLE UPON EXERCISE OF SUCH OPTIONS OR UPON CONVERSION OR EXCHANGE OF SUCH
CONVERTIBLE SECURITIES" is determined by dividing (A) the result of (i) the
total amount, if any, received or receivable by the Company as consideration for
the granting or sale of such Options, plus (ii) the minimum aggregate amount of
additional consideration payable to the Company upon the exercise of all such
Option, plus (iii) in the case of such Options which are exercisable into
Convertible Securities, the minimum aggregate amount of additional
consideration, if any, payable to the Company upon the issuance or sale of such
Convertible Securities and the conversation or exchange thereof, by (B) the
total maximum number of shares of Common Stock issu-
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able upon exercise of such Options or upon the conversion or exchange of all
such Convertible Securities issu- able upon the exercise of such Options. No
further adjustment of the Exercise Price shall be made upon the actual issuance
of such Common Stock or of such Convertible securities upon the exercise of such
Options or upon the actual issuance of such Common Stock upon conversion or
exchange of such Convertible Securities.
(ii) ISSUANCE OF CONVERTIBLE SECURITIES. If the Company in any
manner issues or sells any Convertible Securities and the price per share for
which Common Stock is issuable upon conversion or exchange thereof is less than
the Exercise Price in effect immediately prior to the time of such issue or
sale, then the maximum number of shares of Common Stock issuable upon conversion
or exchange of such Convertible Securities shall be deemed to be outstanding and
to have been issued and sold by the Company for such price per share. For the
purposes of this paragraph, the "PRICE PER SHARE FOR WHICH COMMON STOCK IS
ISSUABLE UPON CONVERSION OR EXCHANGE THEREOF" is determined by dividing (A) the
result of (i) the total amount received or receivable by the Company as
consideration for the issue or sale of such Convertible Securities, plus (ii)
the minimum aggregate amount of additional consideration, if any, payable to the
Company upon the conversation or exchange thereof, by (B) the total maximum
number of shares of Common Stock issuable upon the conversion or exchange of all
such Convertible Securities. No further adjustment of the Exercise Price shall
be made upon the actual issue of such Common Stock upon conversion or exchange
of such Convertible Securities, and if any such issue or sale of such
Convertible Securities is made upon exercise of any Options for which
adjustments of the Exercise Price had been or are to be made pursuant to other
provisions of this Paragraph 2B, no further adjustment of the Exercise Price
shall be made by reason of such issue or sale.
(iii) CHANGE IN OPTION PRICE OR CONVERSION RATE. If the purchase
price provided for in any Options, the additional consideration, if any, payable
upon the issue, conversion or exchange of any Convertible Securities, or the
rate at which any Convertible Securities are convertible into or exchangeable
for Common Stock changes at any time, the Exercise Price in effect at the time
of such change shall be adjusted immediately to the Exercise Price which would
have been in effect at such time had such Options or Convertible Securities
still outstanding provided for such changed purchase price, additional
consideration or changed conversion rate, as the case may be, at the time
initially granted, issued or sold and the number of shares of Warrant Stock
shall be correspondingly adjusted; provided that if such adjustment would result
in an increase of the Exercise Price then in effect, such adjustment shall not
be effective until 30 days after written notice thereof has been given by the
Company to the Registered Holder. For purposes of this Paragraph 2B, if
the terms of any Option or Convertible Security which was outstanding as of the
date of issuance of this Warrant are changed in the manner described in the
immediately preceding sentence, then such Option or Convertible Security and the
Common Stock deemed issuable upon exercise, conversion or exchange thereof
shall be deemed to have been issued as of the date of such change; provided that
no such change shall at any time cause the Exercise Price hereunder to be
increased.
(iv) TREATMENT OF EXPIRED OPTIONS AND UNEXERCISED CONVERTIBLE
SECURITIES. Upon the expiration of any Option or the termination of any right to
convert or exchange any Convertible Securities without the exercise of such
Option or right, the Exercise Price then in effect and the number of shares of
Warrant Stock acquirable hereunder shall be adjusted immediately to the Exercise
Price and the number of shares which would have been in effect at the time of
such expiration or termination had such Option or Convertible Securities, to the
extent outstanding immediately prior to such expiration or termination, never
been issued; provided that if such expiration or termination would result in an
increase in the Exercise Price then in effect, such increase shall not be
effective until 30 days after written notice thereof has been given to the
Registered Holders. For purposes of this Paragraph 2B, the expiration or
termination of any Option or Convertible Security which was outstanding as of
the date of issuance of this Warrant shall not cause the Exercise Price
hereunder to be adjusted unless, and only to the extent that, a change in the
terms of such Option or Convertible Security caused it to be deemed to have been
issued after the date of issuance of this Warrant.
(v) CALCULATION OF CONSIDERATION RECEIVED. If any Common Stock,
Options or Convertible Securities are issued or sold or deemed to have been
issued or sold for cash, the consideration received therefor shall be deemed to
be the gross amount (net of any underwriter, placement agent or broker discounts
and commissions) received by the Company therefor. In case any Common Stock,
Options or Convertible Securities are issued or sold for a con-
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sideration other than cash, the amount of the consideration other than cash
received by the Company shall be the fair value of such consideration, except
where such consideration consists of securities, in which case the amount of
consideration received by the Company shall be the Market Price thereof as of
the date of receipt. In case any Common Stock, Options or Convertible Securities
are issued to the owners of the non-surviving entity in connection with any
merger in which the Company is the surviving entity the amount of consideration
therefor shall be deemed to be the fair value of such portion of the net assets
and business of the non-surviving entity as is attributable to such Common
Stock, Options or Convertible Securities, as the case may be. The fair value of
any consideration other than cash or securities shall be determined jointly by
the Company and the Registered Holder. If such parties are unable to reach
agreement within a reasonable period of time, such fair value shall be
determined by an appraiser jointly selected by the Company and the Registered
Holder. The determination of such appraiser shall be final and binding on the
Company and the Registered Holder of this Warrant, and the fees and expenses of
such appraiser shall be paid by the Company.
(vi) INTEGRATED TRANSACTIONS. In case any Option is issued in
connection with the issue or sale of other securities of the Company, together
comprising one integrated transaction in which no specific consideration is
allocated to such Options by the parties thereto, the Options shall be deemed to
have been issued without consideration.
(vii) TREASURY SHARES. The number of shares of Common Stock
outstanding at any given time does not include shares owned or held by or for
the account of the Company or any subsidiary, and the disposition of any shares
so owned or held shall be considered an issue or sale of Common Stock.
(viii) RECORD DATE. If the Company takes a record of the holders of
Common Stock for the purpose of entitling them (A) to receive a dividend or
other distribution payable in Common Stock, Options or in Convertible Securities
or (B) to subscribe for or purchase Common Stock, Options or Convertible
Securities, then such record date shall be deemed to be the date of the issue or
sale of the shares of Common Stock deemed to have been issued or sold upon the
declaration of such dividend or the making of such other distribution or the
date of the granting of such right of subscription or purchase, as the case may
be.
2.1C. SUBDIVISION OR COMBINATION OF COMMON STOCK. If the Company at any
time subdivides (by any stock split, stock dividend, recapitalization or
otherwise) one or more classes of its outstanding shares of Common Stock into a
greater number of shares, the Exercise Price in effect immediately prior to such
subdivision shall be proportionately reduced and the number of shares of Warrant
Stock obtainable upon exercise of this Warrant shall be proportionately
increased. If the Company at any time combines (by reverse stock split or
otherwise) one or more classes of its outstanding shares of Common Stock into a
smaller number of shares, the Exercise Price in effect immediately prior to such
combination shall be proportionately increased and the number of shares of
Warrant Stock obtainable upon exercise of this Warrant shall be proportionately
decreased.
2.1D. REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE. Any
recapitalization, reorganization, reclassification, consolidation, merger, sale
of all or substantially all of the Company's assets or other transaction, which
in each case is effective in such a way that the holders of Common Stock are
entitled to receive (either directly or upon subsequent liquidation) stock,
securities or assets with respect to or in exchange for Common Stock is referred
to herein as "ORGANIC CHANGE". Prior to the consummation of any Organic Change,
the Company shall make appropriate provision (in form and substance satisfactory
to the Registered Holder) to insure that the Registered Holder shall thereafter
have the right to acquire and receive, in lieu of or addition to (as the case
may be) the shares of Warrant Stock
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immediately theretofore acquirable and receivable upon the exercise of this
Warrant, such shares of stock, securities or assets as may be issued or payable
with respect to or in exchange for the number of shares of Warrant Stock
immediately theretofore acquirable and receivable upon exercise of this Warrant
had such Organic Change not taken place. In any such case, the Company shall
make appropriate provision (in form and substance satisfactory to the Registered
Holder) with respect to such Registered Holder rights and interests to insure
that the provisions of this Section 2 and Sections 3 and 4 hereof shall
thereafter be applicable to this Warrant (including, in the case of any such
consolidation, merger or sale in which the successor entity or purchasing entity
is other than the Company and in which the value for the Common Stock reflected
by the terms of such consolidation, merger or sale is less than the Base Price
in effect immediately prior to such consolidation, merger or sale, an immediate
adjustment of the Exercise Price to the product of such Exercise Price
immediately prior to such consolidation, merger or sale multiplied by the ratio
of such value of the Common Stock divided by the Base Price in effect
immediately prior to such consolidation, merger or sale and a corresponding
immediate adjustment in the number of shares of Warrant Stock acquirable and
receivable upon exercise of this Warrant). The Company shall not effect any such
consolidation, merger or sale, unless prior to the consummation thereof, the
successor entity (if other than the Company) resulting from consolidation or
merger or the entity purchasing such assets assumes by written instrument (in
form and substance satisfactory to the Registered Holder), the obligation to
deliver to the Registered Holder such shares of stock, securities or assets as,
in accordance with the foregoing provisions, the Registered Holder may be
entitled to acquire.
2.1E. CERTAIN EVENTS. If any event occurs of the type contemplated by the
provisions of Section 2A but not expressly provided for by such provisions, then
the Exercise Price and the number of shares of Warrant Stock obtainable upon
exercise of this Warrant shall be adjusted by the Corporation's Board of
Directors in good faith so as to protect the rights of the Registered Holder;
provided that no such adjustment shall increase the Exercise Price or decrease
the number of shares of Warrant Stock obtainable as otherwise determined
pursuant to this Section 2.
2.1F. NOTICES.
(i) Immediately upon any adjustment of the Exercise Price, the
Company shall give written notice thereof to the Registered Holder, setting
forth in reasonable detail and certifying the calculation of such adjustment.
(ii) The Company shall give written notice to the Registered Holder
at least 20 days prior to the date on which the Company closes its books or
takes a record (A) with respect to any dividend or distribution upon shares of
Common Stock, (B) with respect to any pro rata subscription offer to holders of
Common Stock or (C) for determining rights to vote with respect to any Organic
Change, dissolution or liquidation.
(iii) The Company shall also give written notice to the Registered
Holder at least 20 days prior to the date on which any Organic Change,
dissolution or liquidation shall take place.
Section 3. LIQUIDATING DIVIDENDS. If the Company declares or pays a
dividend upon shares of Common Stock payable otherwise than in cash out of
earnings or earned surplus (determined in accordance with generally accepted
accounting principles, consistently applied) except for a stock dividend payable
in shares of Common Stock (a "LIQUIDATING DIVIDEND"), then the Company shall pay
to the Registered Holder at the time of payment thereof the Liquidating Dividend
which would have been paid to the Registered Holder on the Warrant Stock had
this Warrant been fully exercised immediately prior to the date on which
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a record is taken for such Liquidating Dividend, or, if no record is taken, the
date as of which the record holders of Common Stock entitled to such dividends
are to be determined.
Section 4. PURCHASE RIGHTS. If at any time the Company grants, issues or
sells any Options, Convertible Securities or warrants, securities or other like
property pro rata to the record holders of any class of Common Stock (the
"PURCHASE RIGHTS"), then the Registered Holder shall be entitled to acquire,
upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights
which such Registered Holder could have acquired if such Registered Holder had
held the number of shares of Common Stock acquirable upon complete exercise of
this Warrant immediately before the date on which a record is taken for the
grant, issuance or sale of such Purchase Rights, or, if no such record is taken,
the date as of which the record holders of Common Stock are to be determined for
the grant, issue or sale of such Purchase Rights.
Section 5. DEFINITIONS. The following terms have meanings set forth below:
"BOARD" means the Company's Board of Directors.
"COMMON STOCK" means the Company's Common Stock, $0.001 par value, and
except for purposes of the shares obtainable upon exercise of this Warrant, any
capital stock of any class of the Company hereafter authorized which is not
limited to a fixed sum or percentage of par or stated value in respect to the
rights of the holders thereof to participate in dividends or in the distribution
of assets upon any liquidation, dissolution or winding up of the Company.
"COMMON STOCK DEEMED OUTSTANDING" means, at any given time, the number of
shares of Common Stock actually outstanding at such time, plus the number of
shares of Common Stock deemed to be outstanding pursuant to paragraphs 2B(i) and
2B(ii) hereof regardless of whether the Options or Convertible Securities are
actually exercisable or convertible at such time.
"CONVERTIBLE SECURITIES" means any stock or securities (directly or
indirectly) convertible into or exchangeable for Common Stock.
"MARKET PRICE" means as to any security the average of the closing prices
of such security's sales on all domestic or foreign securities exchanges on
which such security may at the time be listed, or, if there have been no sales
on any such exchange on any day, the average of the highest bid and lowest asked
prices on all such exchanges at the end of such day, or, if on any day such
security is not so listed, the average of the representative bid and asked
prices quoted in the Nasdaq National Market or Nasdaq Small Cap Market, as of
4:00 P.M., New York time, on such day, or, if on any day such security is not
quoted in the Nasdaq National Market or the Nasdaq Small Cap Market (as
applicable), the average of the highest bid and lowest asked prices on such day
in the domestic over-the-counter market as reported by the National Quotation
Bureau, Incorporated, or any similar successor organization, in each such case
averaged over a period of 30 days consisting of the day as of which "MARKET
PRICE" is being determined and the 29 consecutive business days prior to such
day; provided that if such security is listed on any domestic securities
exchange the term "BUSINESS DAYS" as used in this sentence means business days
on which such exchange is open for trading. If at any time such security is not
listed on any domestic securities exchange or quoted in the Nasdaq National
Market System or the Nasdaq Small Cap Market or the domestic over-the-counter
market, the "MARKET PRICE" shall be the fair value thereof determined jointly by
the Company and the Registered Holder; provided that if such parties are unable
to reach agreement within a reasonable period of time, such fair value shall be
determined by an appraiser jointly selected
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by the Company and the Registered Holder. The determination of such appraiser
shall be final and binding on the Company and the Registered Holder, and the
fees and expenses of such appraiser shall be paid by the Company.
"OPTION" means any rights to subscribe for or purchase Common Stock or
Convertible Securities.
"PERSON" means an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization and a government or any department or agency thereof.
"WARRANT STOCK" means Common Stock; provided that if there is a change
such that the securities issuable upon exercise of this Warrant are issued by an
entity other than the Company or there is a change in the type or class of
securities so issuable, then the term "WARRANT STOCK" shall mean one share of
the security issuable upon exercise of this Warrant if such security is issuable
in shares, or shall mean the smallest unit in which such security is issuable if
such security is not issuable in shares.
Other capitalized terms used in this Warrant but not defined herein shall
have the meanings set forth in the Purchase Agreement.
Section 6. NO VOTING RIGHTS; LIMITATIONS OF LIABILITY. This Warrant shall
not entitle the holder hereof to any voting rights or other rights as a
stockholder of the Company. No provision hereof, in the absence of affirmative
action by the Registered Holder to purchase Common Stock, and no enumeration
herein of the rights or privileges of the Registered Holder shall give rise to
any liability of such holder for the Exercise Price of Common Stock acquirable
by exercise hereof or as a stockholder of the Company.
Section 7. WARRANT TRANSFERABLE. Subject to the transfer conditions
referred to in the legend endorsed hereon, this Warrant and all rights hereunder
are transferable, in whole or in part, without charge to the Registered Holder,
upon surrender of this Warrant with a properly executed Assignment (in the form
of EXHIBIT I hereto) at the principal office of the Company.
Section 8. WARRANT EXCHANGEABLE FOR DIFFERENT DENOMINATIONS. This Warrant
is exchangeable, upon the surrender hereof by the Registered Holder at the
principal office of the Company, for new Warrants of like tenor representing in
the aggregate the purchase rights hereunder, and each of such new Warrants shall
represent such portion of such rights as is designated by the Registered Holder
at the time of such surrender. The date the Company initially issues this
Warrant shall be deemed to be the "DATE OF ISSUANCE" hereof regardless of the
number of times new certificates representing the unexpired and unexercised
rights formerly represented by this Warrant shall be issued.
Section 9. REPLACEMENT. Upon receipt of evidence reasonably satisfactory
to the Company (an affidavit of the Registered Holder shall be satisfactory) of
the ownership and the loss, theft, destruction or mutilation of any certificate
evidencing this Warrant, and in the case of any such loss, theft or destruction,
upon receipt of indemnity reasonably satisfactory to the Company (provided that
if the holder is a financial institution or other institutional investor its own
agreement shall be satisfactory), or, in the case of any such mutilation upon
surrender of such certificate, the Company shall (at its expense) execute and
deliver in lieu of such certificate a new certificate of like kind representing
the same rights representing by such lost, stolen, destroyed or mutilated
certificate and dated the date of such lost, stolen, destroyed or mutilated
certificate.
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Section 10. NOTICES. Except as otherwise expressly provided herein, all
notices referred to in this Warrant shall be in writing and shall be delivered
personally, sent by reputable overnight courier service (charges prepaid) or
sent by registered or certified mail, return receipt requested, postage prepaid
and shall be deemed to have been given when so delivered, sent or deposited in
the U.S. Mail (i) to the Company, at its principal executive offices and (ii) to
the Registered Holder of this Warrant, at such holder's address as it appears in
the records of the Company (unless otherwise indicated by any such holder).
Section 11. AMENDMENT AND WAIVER. Except as otherwise provided herein, the
provisions of this Warrant may be amended and the Company may take any action
herein prohibited, or omit to perform any act herein required to be performed by
it, only if the Company has obtained the written consent of the Registered
Holder.
Section 12. DESCRIPTIVE HEADINGS; GOVERNING LAW. The descriptive headings
of the several Sections and paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant. The corporation
laws of the State of Delaware shall govern all issues concerning the rights of
the Company and all rights of the Company's stockholders relative to the
Company. All other questions concerning the construction, validity, enforcement
and interpretation of this Warrant shall be governed by the internal law of the
State of New York, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of New York or any other jurisdictions)
that would cause the application of the laws of any jurisdictions other than the
State of New York.
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* * * * * *
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer and to be dated the Date of Issuance.
LIFECELL CORPORATION
By /s/ PAUL M. FRISON
Paul M. Frison
President and Chief Executive Officer
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EXHIBIT II
EXERCISE AGREEMENT
To: Dated:
The undersigned, pursuant to the provisions set forth in the attached
Warrant (Certificate No. BW-___), hereby agrees to subscribe for the purchase of
___________ shares of the Common Stock covered by such Warrant and makes payment
herewith in full therefor at the price per share provided by such Warrant.
Signature
Address
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EXHIBIT I
ASSIGNMENT
FOR VALUE RECEIVED, ____________________ hereby sells, assigns and
transfers all of the rights of the undersigned under the attached Warrant
(Certificate No. BW-___) with respect to the number of shares of the Common
Stock covered thereby set forth below, unto:
NAMES OF ASSIGNEE ADDRESS NO. OF SHARES
- ----------------- ------- -------------
Signature
Witness
