SCHEDULE 13D
(RULE 13D-101)
Information to be Included in Statements Filed Pursuant
to Rule 13d-1(A) and
Amendments Thereto Filed Pursuant to Rule 13d-2(A)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)*
CRDENTIA CORP.
(Name of Issuer)
Common Stock, $.0001 par value
(Title of Class of Securities)
225235100
(CUSIP Number)
Ann E. Carey, Business Legal Assistant
Howard Rice Nemerovski Canady Falk & Rabkin,
A Professional Corporation
Three Embarcadero Center, Suite 700
San Francisco, CA 94111
(415) 434-1600
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
August 30, 2004
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition that is the subject of
this Schedule 13D, and is filing this schedule because of Rule
13d-1(e), 13d-1(f) or 13d-1(g), check the following box [ ].
NOTE: Schedules filed in paper format shall include a signed
original and five copies of this schedule, including all
exhibits. See Rule 13d-7 for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to
the subject class of securities, and for any subsequent amendment
containing information which would alter the disclosures provided
in a prior cover page.
CUSIP 225235100 SCHEDULE 13D Page 2 of ___
The information required in the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18
of the Securities Exchange Act of 1934 ("Act") or otherwise
subject to the liabilities of that section of the Act but shall
be subject to all other provisions of the Act (however, see the
Notes).
CUSIP 225235100 SCHEDULE 13D Page 3 of ___
1 Name of Reporting Person MEDCAP MANAGEMENT &
RESEARCH LLC
IRS Identification No. of Above Person 94-3411543
2 Check the Appropriate Box if a Member of a Group (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 Source of Funds OO
5 Check Box if Disclosure of Legal Proceedings is [ ]
Required Pursuant to Items 2(d) or 2(e)
6 Citizenship of Organization DELAWARE
NUMBER OF 7 Sole Voting Power 15,542,837
SHARES
BENEFICIALLY 8 Shared Voting Power 0
OWNED BY EACH
REPORTING 9 Sole Dispositive Power 15,542,837
PERSON WITH
10 Shared Dispositive Power 0
11 Aggregate Amount Beneficially Owned by Reporting
Person 15,542,837
12 Check Box if the Aggregate Amount in Row 11 Excludes [ ]
Certain Shares
13 Percent of Class Represented by Amount in Row 11 72.3%
14 Type of Reporting Person IA
CUSIP 225235100 SCHEDULE 13D Page 4 of ___
1 Names of Reporting Persons MEDCAP PARTNERS L.P.
IRS Identification Nos. of Above Persons 94-3412423
2 Check the Appropriate Box if a Member of a Group (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 Source fo Funds WC
5 Check Box if Disclosure of Legal Proceedings is [ ]
Required Pursuant to Items 2(d) or 2(e)
6 Citizenship or Place of Organization DELAWARE
NUMBER OF 7 Sole Voting Power 15,542,837
SHARES
BENEFICIALLY 8 Shared Voting Power 0
OWNED BY EACH
REPORTING 9 Sole Dispositive Power 15,542,837
PERSON WITH
10 Shared Dispositive Power 0
11 Aggregate Amount Beneficially Owned by Reporting
Person 15,542,837
12 Check Box if the Aggregate Amount in Row 11 Excludes [ ]
Certain Shares
13 Percent of Class Represented by Amount in Row 11 72.3%
14 Type of Reporting Person PN
CUSIP 225235100 SCHEDULE 13D Page 5 of ___
1. Names of Reporting Persons C. FRED TONEY
IRS Identification Nos. of Above Persons
2 Check the Appropriate Box if a Member of a Group (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 Source of Funds OO
5 Check Box if Disclosure of Legal Proceedings is [ ]
Required Pursuant to Items 2(d) or 2(e)
6 Citizenship or Place of Organization UNITED STATES
NUMBER OF 7 SOLE VOTING POWER 15,542,837
SHARES
BENEFICIALLY 8 SHARED VOTING POWER 0
OWNED BY EACH
REPORTING 9 SOLE DISPOSITIVE POWER 15,542,837
PERSON WITH
10 SHARED DISPOSITIVE POWER 0
11 Aggregate Amount Beneficially Owned by Reporting
Person 15,542,837
12 Check Box if the Aggregate Amount in Row 11 Excludes [ ]
Certain Shares
13 Percent of Class Represetned by Amount in Row 11 72.3%
14 Type of Reporting Person IN, HC
CUSIP 225235100 SCHEDULE 13D Page 6 of ___
ITEM 1. SECURITY AND ISSUER
This Schedule 13D ("Schedule") relates to shares of common
stock, with par value $.0001 (the "Common Stock"), of Crdentia Corp. (the
"Issuer"). The principal executive office of the Issuer is 14114 Dallas
Parkway, Suite 600, Dallas, TX 75254.
ITEM 2. IDENTITY AND BACKGROUND
This Schedule is filed on behalf of MedCap Partners L.P.
("MedCap"), MedCap Management & Research LLC ("MMR") and C. Fred Toney
("Toney"), each of whose principal business office address is 500 Third
Street, Suite 535, San Francisco, CA 94107.
MedCap is an investment limited partnership, whose general
partner is MMR. MMR is an investment adviser registered under the laws of the
State of California. Toney is MMR's sole managing member.
None of MedCap, MMR nor Toney has, during the past five years,
been convicted in any criminal proceeding (excluding traffic violations or
similar misdemeanors).
None of MedCap, MMR nor Toney has, during the past five years,
been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction, as a result of which any of them became or is subject
to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
MedCap is a Delaware limited partnership, MMR is a Delaware
limited liability company and Toney is a United States citizen.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The source of funds to make the purchases described in
Item 5(c) was working capital of MedCap. The total amount of the funds to
make the purchases described in Item 5 was $1,575,000.
ITEM 4. PURPOSE OF TRANSACTION
The acquisitions of Series C Preferred Stock, warrants to
purchase Series B-1 Preferred Stock and warrants to purchase Series C Preferred
Stock described in Item 5(c) were made for investment purposes.
Toney is a member of the Issuer's Board of Directors.
Except as described herein, the reporting persons do not
currently have any plans or proposals that relate to or would result in any
of the following:
(a) The acquisition by any person of additional securities
of the Issuer, or the disposition of securities of the Issuer;
CUSIP 225235100 SCHEDULE 13D Page 7 of ___
(b) An extraordinary corporate transaction, such as a merger,
reorganization, or liquidation, involving the Issuer or any of its
subsidiaries;
(c) A sale or transfer of a material amount of assets of the
Issuer or any of its subsidiaries;
(d) Any change in the present board of directors or management
of the Issuer, including any plans or proposals to change the number
or term of directors or to fill any existing vacancies on the board;
(e) Any material change in the present capitalization or
dividend policy of the Issuer;
(f) Any other material change in the Issuer's business or
corporate structure;
(g) Changes in the Issuer's charter, bylaws or instruments
corresponding thereto or other actions which may impede the acquisition
of control of the Issuer by any person;
(h) Causing a class of securities of the Issuer to be delisted
from a national securities exchange or to cease to be authorized to be
quoted in an inter-dealer quotation system of a registered national
securities association;
(i) A class of equity securities of the issuer becoming
eligible for termination of registration pursuant to Section 12(g)(4)
of the Act; or
(j) Any action similar to those enumerated above.
Depending upon market conditions and other factors, the
reporting persons may acquire additional securities of the Issuer, or
alternatively, may dispose of some or all of the securities of the Issuer
beneficially owned by them.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) MedCap beneficially owns 338,671 shares of Common Stock,
2,000,000 shares of the Issuer's Series A Preferred Stock, which are
currently convertible into 3,333,333 shares of Common Stock, 6,250,000
shares of Issuer's Series B Preferred Stock, which are currently
convertible into 2,083,333 shares of Common Stock, and 26,250 shares of
Issuer's Series C Preferred Stock which are currently convertible into
2,625,000 shares of Common Stock. MedCap also owns warrants giving it
the right to acquire 6,000 shares of Series B-1 Preferred Stock for
$60.00 per share (6,000 shares of Series B-1 Preferred Stock, in turn,
would currently be convertible into 600,000 shares of Common Stock) and
65,625 shares of Series C Preferred Stock for $60.00 per share (65,625
shares of Series C Preferred Stock, in turn, would currently be
convertible into 6,562,500 shares of Common Stock).
CUSIP 225235100 SCHEDULE 13D Page 8 of ___
MMR as general partner and investment manager of MedCap and Toney as
the sole managing member of MMR may be deemed to beneficially own the
shares owned by MedCap in that they may be deemed to have the power to
direct the voting or disposition of the shares. Neither the filing of
this Schedule 13D nor any of its contents shall be deemed to constitute
an admission that either MMR or Toney is, for any other purpose, the
beneficial owner of any such securities to which this Schedule relates,
and MMR and Toney disclaim beneficial ownership as to the Common Stock
except to the extent of their respective pecuniary interests therein.
Based on the number of shares outstanding reported in the Issuer's most
recent quarterly report on Form 10-QSB, the percentage of Common Stock
beneficially owned by MedCap, MMR and Toney for the purposes of this
Schedule 13D is 72.3%.
(b) Reference is made hereby to Items 7 to 10 of pages 2, 3 and
4 of this Schedule, which Items are incorporated herein by reference.
(c) On August 30, 2004, MedCap purchased from the Issuer in a
private placement, 26,250 shares of Series C Preferred Stock which are
currently convertible into 2,625,000 shares of Common Stock with the
aggregate amount of MedCap's investment in the private placement being
$1,575,000. As part of the acquisition of the Series C Preferred
Stock, MedCap received a warrant giving it the right to acquire 65,625
shares of Series C Preferred Stock for $60.00 per share. The Series C
Preferred Stock is currently convertible at the option of the holder
into 100 shares of Common Stock per share of Series C Preferred
Stock. Thus, the warrant for the Series C Preferred Stock is
indirectly convertible into 6,562,500 shares of Common Stock at $0.60
per share.
On August 30, 2004, MedCap entered into a Makewell Agreement with
certain lenders of the Issuer and the Issuer pursuant to which MedCap
agreed to acquire up to 16,667 shares of Series C Preferred Stock for
$60.00 per share in the event that the Issuer did not meet certain
financial goals. Series C Preferred Stock currently would be
convertible into 100 shares of Common Stock for each share of Series C
Preferred Stock acquired. If MedCap is required to acquire Series C
Preferred Stock pursuant to the Makewell Agreement, the Issuer has
agreed to issue additional warrants to MedCap which will be exercisable
for shares of Series C Preferred Stock at $60.00 per share.
On August 31, 2004, MedCap also received a warrant giving it the right
to acquire 6,000 shares of Series B-1 Preferred Stock at $60.00 per
share. The B-1 Preferred Stock is currently convertible at the option
of the holder into 100 shares of Common Stock per share of Series B-1
Preferred Stock. Thus, the warrant for the Series B Preferred Stock
is indirectly exercisable for 600,000 shares of Common Stock at
$0.60 per share.
(d) Not applicable.
(e) Not applicable.
CUSIP 225235100 SCHEDULE 13D Page 9 of ___
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
MedCap is a party to an Amended and Restated Registration
Rights Agreement entitling it to registration rights with respect to Common
Stock issuable upon conversion of its shares of Series A Preferred Stock,
Series B Preferred Stock and Series C Preferred Stock, including any Series B-1
Preferred or Series C Preferred issued upon exercise of the Warrants.
CUSIP 225235100 SCHEDULE 13D Page 10 of ___
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
No. Exhibit
___ _______
1. Agreement Regarding Joint Filing of Statement on Schedule 13D
or 13G.
2. Amended and Restated Registration Rights Agreement between the
Issuer and MedCap dated August 30, 2004.
3. Makewell Agreement between certain lenders of the Issuer, the
Issuer and MedCap dated as of August 30, 2004.
4. Warrant to Purchase Shares of Series C Preferred Stock of the
Issuer issued to MedCap dated August 30, 2004.
5. Warrant to Purchase Shares of Series B-1 Preferred Stock of
the Issuer issued to MedCap dated August 31, 2004.
CUSIP 225235100 SCHEDULE 13D Page 11 of ___
SIGNATURES
After reasonable inquiry and to the best of each of the
undersigned's respective knowledge and belief, each of the undersigned
certifies that the information set forth in this statement is true, complete
and correct.
DATED: September 2, 2004
MEDCAP PARTNERS L.P.
By its general partner
MedCap Management & Research LLC
/s/ C. Fred Toney
______________________________________
By: C. Fred Toney
Its: Managing Member
MEDCAP MANAGEMENT & RESEARCH LLC
/s/ C. Fred Toney
______________________________________
By: C. Fred Toney
Its: Managing Member
C. FRED TONEY
/s/ C. Fred Toney
_____________________________________
CUSIP 225235100 SCHEDULE 13D Page 12 of ___
EXHIBIT INDEX
Exhibit 1 Agreement Regarding Joint Filing of Statement on
Schedule 13D or 13G.
Exhibit 2 Amended and Restated Registration Rights Agreement
between the Issuer and MedCap dated August 30, 2004.
Exhibit 3. Makewell Agreement between certain lenders of the
Issuer, the Issuer and MedCap dated as of August 30, 2004.
Exhibit 4. Warrant to Purchase Shares of Series C Preferred Stock of the
Issuer issued to MedCap dated August 30, 2004.
Exhibit 5. Warrant to Purchase Shares of Series B-1 Preferred Stock of the
Issuer issued to MedCap dated August 31, 2004.
CUSIP 225235100 SCHEDULE 13D Page 13 of ___
EXHIBIT 1
AGREEMENT REGARDING JOINT FILING OF STATEMENT ON SCHEDULE 13D OR 13G
The undersigned agree to file jointly with the Securities and
Exchange Commission (the "SEC") any and all statements on Schedule 13D or
Schedule 13G (and any amendments or supplements thereto) required under
section 13(d) of the Securities Exchange Act of 1934, as amended, in connection
with purchases by the undersigned of the common stock of Crdentia Corp. For
that purpose, the undersigned hereby constitute and appoint C. Fred Toney as
their true and lawful agent and attorney-in-fact, with full power and authority
for and on behalf of the undersigned to prepare or cause to be prepared, sign,
file with the SEC and furnish to any other person all certificates,
instruments, agreements and documents necessary to comply with section 13(d)
and section 16(a) of the Securities Exchange Act of 1934, as amended, in
connection with said purchases, and to do and perform every act necessary and
proper to be done incident to the exercise of the foregoing power, as fully as
the undersigned might or could do if personally present.
DATED: September 2, 2004
MEDCAP PARTNERS L.P.
By its general partner
MedCap Management & Research LLC
/s/ C. Fred Toney
____________________________________
By: C. Fred Toney
Its: Managing Member
MEDCAP MANAGEMENT & RESEARCH LLC
/s/ C. Fred Toney
___________________________________
By: C. Fred Toney
Its: Managing Member
C. FRED TONEY
/s/ C. Fred Toney
___________________________________
CUSIP 225235100 SCHEDULE 13D Page 14 of ___
EXHIBIT 2
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is made as of August 30, 2004 by and among Crdentia Corp., a
Delaware corporation (the "Company") and the investors listed on Schedule A
hereto (individually, an "Investor" and collectively, the "Investors").
RECITALS:
A. Certain of the Investors are parties to that certain
Amended and Restated Registration Rights Agreement dated June 16, 2004 by and
among the Company and such Investors (the "Original Agreement").
B. The Company and the Investors are parties to certain
Subscription Agreements (the "Subscription Agreements"), dated beginning
August 31, 2004, regarding the proposed sale and issuance of shares of the
Company's Series C Preferred Stock (the "Series C Preferred") to the Investors
(the "Preferred Stock Financing");
C. The Company and the Investors who are parties to the
Original Agreement, and who hold at least a sixty-six and two-thirds percent
(66 2/3%) of the Registrable Securities then outstanding (as such term is
defined in the Original Agreement), desire to amend and restate the Original
Agreement pursuant to Section 2.8 thereof and accept the rights created
pursuant hereto in lieu of the rights granted to them under the Original
Agreement.
Agreement
_________
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement and the Subscription Agreement, the parties hereto agree as follows:
2. Registration Rights. The Company covenants and agrees as follows:
2.1 Definitions. For purposes of this Agreement:
(a) The term "Act" means the Securities Act of 1933,
as amended.
(b) The term "Effective Date" means August 31, 2004.
(c) The term "Form S-3" means such form under the Act as
in effect on the date hereof or any registration form under the Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
(d) The term "Holder" means any person owning or having
the right to acquire Registrable Securities or any assignee thereof in
accordance with Section 1.11 hereof.
CUSIP 225235100 SCHEDULE 13D Page 15 of ___
(e) The term "1934 Act" shall mean the Securities Exchange
Act of 1934, as amended.
(f) The term "register," "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Act, and the declaration
or ordering of effectiveness of such registration statement or document.
(g) The term "Registrable Securities" means (i) the Common
Stock of the Company (the "Common Stock") issued to the Investors listed on
Schedule A attached hereto pursuant to conversion of the Series C Preferred
(including any Series C Preferred acquired upon exercise of the Warrants), the
Company's Series B Preferred Stock of the Company and/or the Company's Series A
Preferred Stock, as the case may be, (ii) the Common Stock issued upon exercise
of the Warrants, and (iii) any Common Stock issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which is issued
as) a dividend or other distribution with respect to, or in exchange for or in
replacement of the shares referenced in (i) or (ii) above, excluding in all
cases, however, any Registrable Securities sold by a person in a transaction
in which his rights under this Section 1 are not assigned pursuant to the terms
of this Agreement.
(h) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities.
(i) The term "SEC" shall mean the Securities and
Exchange Commission.
(j) The term "Warrants" shall mean (i) the Warrant to
Purchase Shares of Series B-1 Preferred Stock granted to MedCap Partners L.P.
and (ii) the Warrants to Purchase Shares of Series C Preferred Stock granted
to the Investors pursuant to the terms of the Subscription Agreements.
2.2 Requested Registration.
(a) Request for Registration. If, at any time after the
Effective Date, the Company shall receive from the Holders of thirty-three and
one-third percent (33 1/3%) or more of the Registrable Securities then
outstanding (the "Initiating Holders") a written request that the Company file
a registration statement in accordance with the Act covering the registration
on a continuous basis pursuant to Rule 415 under the Act, or any successor rule
or regulation
CUSIP 225235100 SCHEDULE 13D Page 16 of ___
("Rule 415") of all or part of the Registrable Securities then held by such
Holders, the Company shall:
(i) within ten (10) days of the receipt thereof, give
written notice of the proposed registration, qualification or compliance to all
other Holders; and
(ii) within forty-five (45) days of the receipt
thereof, file a registration statement with the SEC and use its reasonable and
diligent efforts to effect as soon as practicable, the registration under the
Act of all such Holders' Registrable Securities as are specified in such
request, together with such portion of the Registrable Securities of any other
Holder or Holders joining in such request as are specified in a written notice
given within fifteen (15) days after receipt of written notice from the
Company; provided, however, that the Company shall not be obligated to take any
action to effect any such registration pursuant to this Section 1.2, (A) after
the Company has effected one (1) registration under this Section 1.2 or (B) if
less than thirty-three and one-third percent (33 1/3%) of the then outstanding
Registrable Securities will be registered.
(b) Registration Statements. Any registration statement
filed pursuant to this Section 1.2 shall be on Form S-3, or if Form S-3 is not
available, Form S-1 or other appropriate form permitting registration of the
Registrable Securities for resale by the Holders.
(c) Underwriting. If the Holders at any time intend to
distribute all or a part of the Registrable Securities covered by the
registration statement filed pursuant to this Section 1.2 by means of an
underwriting, they shall so advise the Company and the Company shall promptly
notify the other Holders of such underwriting. The Company (together with all
Holders proposing to distribute their securities pursuant to the underwriting)
shall enter into an underwriting agreement in customary form with the
underwriter or underwriters selected by the Company. Notwithstanding any other
provision of this Section 1.2, if the underwriter advises the Holders in
writing that marketing factors require a limitation of the number of shares to
be underwritten, then the Holders requesting the underwriting shall so advise
all Holders of Registrable Securities, and the number of shares included in the
underwriting shall be allocated among the Holders of Registrable Securities
requesting registration in proportion, as nearly as practicable, to the total
number of Registrable Securities held by such Holders at the time of the
request for an underwriting.
CUSIP 225235100 SCHEDULE 13D Page 17 of ___
If any Holder disapproves of the terms of the underwriting, such Holder may
elect to withdraw from such underwritten offering by written notice to the
Company, the underwriter and the other Holders whose shares are being included
in the underwriting. The Company agrees to file any amendments or supplements
to the registration statement necessary in order to permit any underwritten
offering.
(d) Rights in Addition to Other Rights. The rights under
this Section 1.2 are in addition to, and not affected by, the Holders' exercise
of any registration rights contained in Section 1.3.
2.3 Company Registration. If (but without any obligation to do
so) the Company proposes to register any of its stock or other securities under
the Act in connection with the public offering of such securities solely for
cash (other than a registration relating solely to the sale of securities to
participants in a Company employee benefit plan or corporate reorganization
or other transaction covered by Rule 145 promulgated under the Act, or a
registration on any form which does not permit secondary sales or include
substantially the same information as would be required to be included in a
registration statement covering the sale of the Registrable Securities), the
Company shall, at such time, promptly give each Holder written notice of such
registration. Upon the written request of each Holder given within twenty (20)
days after mailing of such notice by the Company in accordance with Section 2.6
hereof, the Company shall, subject to the provisions of Section 1.7 hereof,
cause to be registered under the Act all of the Registrable Securities that
each such Holder has requested to be registered.
2.4 Obligations of the Company. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the
Company shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its reasonable and diligent
efforts to cause such registration statement to become effective, and keep such
registration statement effective (i) in the case of a registration statement
filed pursuant to Section 1.2, during the Effectiveness Period (as hereinafter
defined) or (ii) in the case of a registration statement filed pursuant to
Section 1.3, upon the request of the Holders of a majority of the Registrable
Securities registered thereunder, for up to three hundred sixty-five (365) days
or, if earlier, the date on which the distribution contemplated in the
registration statement has been completed. As used herein, the term
"Effectiveness Period" shall mean until the earlier of (i) the termination of
the rights set forth in this Agreement in accordance with Section 1.14 or (ii)
all of the Registrable Securities covered by the registration having been sold
or a subsequent registration statement covering any unsold Registrable
Securities having been declared effective.
(b) Provide, at least three (3) business days prior to
filing, any registration statement and included prospectus (including each
CUSIP 225235100 SCHEDULE 13D Page 18 of ___
preliminary prospectus and any amendments or supplements thereto) prepared in
conformity with the requirements of the Act in connection with Sections 1.2
and 1.3 (the "Registration Materials") to the Holders and their respective
counsel for review and comment, if any.
(c) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to comply
with the provisions of the Act with respect to the disposition of all
securities covered by such registration statement.
(d) Furnish to the Holders such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents and Registration Materials
as they may reasonably request in order to facilitate the disposition of
Registrable Securities owned by them that are included in such registration.
(e) Use its reasonable and diligent efforts to register
and qualify the securities covered by such registration statement under such
other securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Holders; provided, however, that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such states
or jurisdictions.
(f) In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in
usual and customary form, with the managing underwriter of such offering.
Each Holder participating in such underwriting shall also enter into and
perform its obligations under such agreement.
(g) Notify each Holder of Registrable Securities covered
by such registration statement at any time when a prospectus relating thereto
is required to be delivered under the Act of the happening of any event the
result of which causes the prospectus included in such registration statement,
as then in effect, to include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing; and thereafter, the Company will use reasonable efforts to amend or
supplement such prospectus in order to cause such prospectus not to include
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of circumstances then existing; provided, however,
that upon such notification by the Company, the Holders will not offer or sell
Registrable Securities until the Company has notified the Holders that it has
prepared a supplement or amendment to such prospectus and delivered copies of
such supplement or amendment to the Holders (it being understood and agreed by
the Company that the foregoing proviso shall in no way diminish or otherwise
impair the Company's obligations to prepare a prospectus amendment or
supplement as above provided in this Section 1.4(g)).
(h) Use its reasonable and diligent efforts, if a
registration statement under Section 1.2 ceases to be effective for any
reason at any time during the Effectiveness Period (other than because of the
sale of all of the Registrable Securities registered thereunder or pursuant to
the Company's exercise of the Suspension Right (as hereinafter defined)), to
(i) obtain the prompt withdrawal of any order suspending the effectiveness
thereof, and (ii) amend the registration statement in a manner reasonably
expected to obtain the withdrawal of the order suspending the effectiveness of
the shelf registration or file an additional registration statement covering
all of the unsold Registrable Securities (a "Subsequent Registration
Statement"). If a Subsequent Registration Statement is filed, the Company
will use its reasonable and diligent efforts to cause the Subsequent
Registration Statement to be declared effective as soon as practicable and to
keep such Subsequent Registration Statement continuously effective until the
end of the Effectiveness Period. The requirements of this Section 1.4(h) that
the Company file additional registration statements shall not be affected by
the provisions set forth in Section 1.2 that the Company is only required to
file one registration statement under Section 1.2.
(i) Cause all such Registrable Securities registered
pursuant hereunder to be listed on each securities exchange on which similar
securities issued by the Company are then listed.
(j) Provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereunder and a CUSIP number for
all such Registrable Securities, in each case not later than the effective
date of such registration.
CUSIP 225235100 SCHEDULE 13D Page 19 of ___
(k) Use its reasonable and diligent efforts to furnish, at the request
of any Holder requesting registration of Registrable Securities pursuant to
this Section 1, on the date that such Registrable Securities are delivered
to the underwriters for sale in connection with a registration statement
pursuant to this Section 1, if such securities are being sold through
underwriters, or, if such securities are not being sold through underwriters,
on the date that the registration statement with respect to such securities
becomes effective, (i) an opinion, dated such date, of the counsel representing
the Company for the purposes of such registration, in form and substance as is
customarily given to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and to the Holders requesting registration of the
Registrable Securities, and (ii) a letter dated such date, from the independent
certified public accountants of the Company, in form and substance as is
customarily given by independent certified public accountants to underwriters
in an underwritten public offering, addressed to the underwriters, if any, and
to the Holders requesting registration of Registrable Securities.
(l) Notify each seller of Registrable Securities
under such registration statement of (i) the effectiveness of such registration
statement, (ii) the filing of any post-effective amendments to such
registration statement, or (iii) the filing of a supplement to such
registration statement.
2.5 Furnish Information.
(a) It shall be a condition precedent to the obligations
of the Company to take any action pursuant to this Section 1 with respect to
the Registrable Securities of any selling Holder that such Holder shall furnish
to the Company such information regarding itself, the Registrable Securities
held by it, and the intended method of disposition of such securities as shall
be required to effect the registration of such Holder's Registrable Securities.
(b) The Company shall have no obligation with respect to
any registration requested pursuant to Section 1.2 hereof if, as a result of
the application of subsection 1.5(a), the number of shares of the Registrable
Securities to be included in the registration does not equal or exceed the
number of shares required to originally trigger the Company's obligation to
initiate such registration as specified in Section 1.2 hereof.
2.6 Expenses of Registration. All expenses (other than
underwriting discounts and commissions, stock transfer taxes and fees of
counsel to the stockholders in excess of $15,000) incurred in connection with
any registrations, filings or qualifications of Registrable Securities pursuant
to Sections 1.2 or 1.3 including (without limitation) all federal or state
registration, filing and qualification fees, printers' and accounting fees and
fees and disbursements of counsel for the Company shall be borne by the
Company. The Company shall pay up to an aggregate of $15,000 of the selling
stockholders' legal fees in connection with one (1) registration.
Notwithstanding the foregoing, the Company shall not be required to pay for
any expenses of any registration proceeding begun pursuant to Section 1.2 if
the registration request is subsequently withdrawn at the request of the
Holders of a majority of the Registrable Securities to be registered, unless
the withdrawal is based upon a material adverse development concerning the
Company and the Holders have withdrawn the request with reasonable promptness
following disclosure by the Company of such material adverse change.
2.7 Underwriting Requirements. In connection with any offering
pursuant to Section 1.3 involving an underwriting of shares of the Company's
capital stock by the Company, the Company shall not be required to include any
of the Holders' securities in such underwriting unless they accept the terms of
the underwriting as agreed upon between the Company and the underwriters
selected by it (or by other persons entitled to select the underwriters), and
then only in such quantity as the underwriters determine in their sole
discretion will
CUSIP 225235100 SCHEDULE 13D Page 20 of ___
not jeopardize the success of the offering by the Company. If the total amount
of securities, including Registrable Securities, requested by stockholders to
be included in such offering exceeds the amount of securities sold other than
by the Company that the underwriters determine in their sole discretion is
compatible with the success of the offering, then the Company shall be required
to include in the offering only that number of such securities, including
Registrable Securities, which the underwriters determine in their sole
discretion will not jeopardize the success of the offering (the securities so
included to be apportioned pro rata among the selling stockholders according to
the total amount of securities entitled to be included therein owned by each
selling stockholder, or in such other proportions as shall mutually be agreed
to by such selling stockholders). For purposes of the preceding parenthetical
concerning apportionment, for any selling stockholder which is a holder of
Registrable Securities and which is a limited liability company, partnership
or corporation, the members, partners, retired partners and stockholders of
such holder, or the estates and family members of any such members, partners
and retired partners and any trusts for the benefit of any of the foregoing
persons shall be deemed to be a single "selling stockholder," and any pro-rata
reduction with respect to such "selling stockholder" shall be based upon the
aggregate amount of shares carrying registration rights owned by all entities
and individuals included in such "selling stockholder," as defined in this
sentence.
2.8 Delay of Registration. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
2.9 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) To the maximum extent permitted by law, the Company
will indemnify and hold harmless each Holder, the partners, officers, and
directors of each Holder, any underwriter (as defined in the Act) for such
Holder and each person, if any, who controls such Holder or underwriter within
the meaning of the Act or the 1934 Act, against any losses, claims, damages or
liabilities (joint or several) to which they may become subject under the Act,
the 1934 Act or any state securities law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, or any rule or regulation
promulgated under the Act or the 1934 Act or any state securities law in
connection with the offering covered by such Registration Statement; and the
Company will pay to each such Holder, partner, officer, director, underwriter
or controlling person, as incurred, any
CUSIP 225235100 SCHEDULE 13D Page 21 of ___
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this subsection
1.9(a) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability, or action if such settlement is effected without the consent
of the Company (which consent shall not be unreasonably withheld or delayed),
nor shall the Company be liable to any Holder, underwriter or controlling
person for any such loss, claim, damage, liability or action to the extent that
it arises out of or is based upon a Violation which occurs in reliance upon and
in conformity with written information furnished expressly for use in
connection with such registration by any such Holder, partner, officer,
director, underwriter or controlling person.
(b) To the maximum extent permitted by law, each selling
Holder will, if Registrable Securities held by such Holder are included in the
applicable registration statement, indemnify and hold harmless the Company,
each of its directors, each of its officers who has signed the registration
statement, each person, if any, who controls the Company within the meaning of
the Act, any underwriter, any other Holder selling securities in such
registration statement and any controlling person of any such underwriter or
other Holder, against any losses, claims, damages or liabilities (joint or
several) to which any of the foregoing persons may become subject under the Act
or the 1934 Act or any state securities law in connection with the offering
covered by such registration statement insofar as such losses, claims,
damages or liabilities (or actions in respect thereto) arise out of or are
based upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity with written
information furnished by such Holder expressly for use in connection with such
registration; and each such Holder will pay any legal or other expenses
reasonably incurred by any person intended to be indemnified pursuant to this
subsection 1.9(b), in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the indemnity
agreement contained in this subsection 1.9(b) shall not apply to amounts paid
in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder (which consent shall
not be unreasonably withheld or delayed); provided further, that in no event
shall any indemnity under this subsection 1.9(b) exceed the net proceeds from
the offering received by such Holder, except in the case of willful misconduct
or fraud by such Holder.
(c) Promptly after receipt by an indemnified party under
this Section 1.9 of notice of the commencement of any action (including any
governmental action) as to which indemnity may be sought hereunder, such
indemnified party will, if a claim in respect thereof is to be made against any
indemnifying party under this Section 1.9, deliver to the indemnifying party a
written notice of the commencement thereof. The indemnifying party shall have
the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties;
provided, however, that an indemnified party (together with all other
indemnified parties which may be represented without conflict by one counsel)
shall have the right to retain one separate counsel, with the reasonable fees
and expenses to be
CUSIP 225235100 SCHEDULE 13D Page 22 of ___
paid by the indemnifying party, if representation of such indemnified party by
the counsel retained by the indemnifying party would be inappropriate due to
actual or potential differing interests between such indemnified party and any
other party represented by such counsel in such proceeding. The failure to
deliver written notice to the indemnifying party within a reasonable time of
the commencement of any such action, if prejudicial to its ability to defend
such action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 1.9, but the omission to so deliver
written notice to the indemnifying party will not relieve the indemnifying
party of any liability that it may have to any indemnified party otherwise than
under this Section 1.9. No indemnifying party, in the defense of any such
claim or litigation, shall, except upon the consent of each indemnified party,
consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a full and unconditional release from
all liability in respect to such claim or litigation.
(d) The foregoing indemnity agreements of the Company and
Holders are subject to the condition that, insofar as they related to any
Violation made in a preliminary prospectus but eliminated or remedied in the
amended prospectus on file with the SEC at the time the registration statement
in question becomes effective or the amended prospectus filed with the SEC
pursuant to SEC Rule 424(b) (the "Final Prospectus"), such indemnity agreement
shall not inure to the benefit of any person if a copy of the Final Prospectus
was furnished to the indemnified party and was not furnished to the person
asserting the loss, liability, claim or damage at or prior to the time such
action is required by the Act. If the indemnification provided for in this
Section 1.9 is held by a court of competent jurisdiction to be unavailable to
an indemnified party with respect to any loss, claim, damage or liability
referred to herein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss, claim,
damage or liability, as well as any other relevant equitable considerations;
provided, however, that in no event shall (i) any contribution by a Holder
under this subsection 1.9(d) exceed the net proceeds from the offering received
by such Holder, except in the case of willful fraud by such Holder, and
(ii) any person or entity guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) be entitled to contribution from any
person or entity who was not guilty of such fraudulent misrepresentation.
The relative fault of the indemnifying party and of the indemnified party shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a material
fact relates to information supplied by the indemnifying party or by the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
CUSIP 225235100 SCHEDULE 13D Page 23 of ___
(f) The obligations of the Company and Holders under this Section 1.9
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.
2.10 Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all related obligations) by a Holder to a transferee
or assignee of such securities, including a subsidiary, affiliate, partner,
limited partner, retired partner or stockholder of a Holder, provided in each
case that (i) the Company is, within a reasonable time after such transfer,
furnished with written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration rights are
being assigned; (ii) such transferee or assignee agrees in writing to be bound
by and subject to the terms and conditions of this Agreement; and (iii) such
assignment shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Act.
2.11 Reports Under the 1934 Act. The Company agrees to use
commercially reasonable efforts: (a) to make and keep public information
available, as those terms are understood and defined in the General
Instructions to Form S-3, or any successor or substitute form, and in Rule 144,
(b) to file with the SEC in a timely manner all reports and other documents
required to be filed by an issuer of securities registered under the Securities
Act or the Exchange Act, (c) as long as any Holder owns any Registrable
Securities, to furnish in writing upon such Holder's request a written
statement by the Company that it has complied with the reporting requirements
of Rule 144 and of the Act and the 1934 Act, and to furnish to such Holder a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents so filed by the Company with the SEC as may be
reasonably requested.
2.12 Deferral. Notwithstanding anything in this Agreement to the
contrary, if the Company shall furnish to the Holders a certificate signed by
the Chief Executive Officer of the Company stating that the Board of Directors
of the Company has made the good faith determination (a) that continued use by
the Holders of a registration statement for purposes of effecting offers or
sales of Registrable Securities pursuant thereto would require, under the Act,
premature disclosure in the registration statement (or the prospectus relating
thereto) of material, nonpublic information concerning the Company, its
business or prospects or any proposed material transaction involving the
Company, (b) that such premature disclosure would be materially adverse to the
Company, its business or prospects or any such proposed material transaction or
would make the successful consummation by the Company of any such material
transaction significantly less likely and (c) that it is therefore essential
to suspend the use by the Holders of any such registration statement (and the
prospectus relating thereto) for purposes of effecting offers or sales of
Registrable Securities pursuant thereto, then the right of the Holders to use
any such registration statement (and the prospectus relating thereto) for
purposes of effecting offers or sales of Registrable Securities pursuant
thereto shall be suspended until further notice by the Company (the "Suspension
Period"). During the Suspension Period, none of the Holders shall offer or
sell any Registrable Securities pursuant to or in reliance upon any such
registration statement (or the prospectus relating thereto). In the event the
CUSIP 225235100 SCHEDULE 13D Page 24 of ___
Company exercises the suspension rights set forth herein (the "Suspension
Right"), such suspension will continue for such period of time reasonably
necessary for disclosure to occur at a time that is not materially detrimental
to the Company or until such time as the registration statement does not
include any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances under which they were made, each
as determined in good faith by the Company. The Company agrees to notify the
Holders promptly upon termination of the Suspension Right. Notwithstanding the
foregoing, under no circumstances shall the Company be entitled to exercise the
Suspension Right for a period of more than thirty (30) days during any twelve
(12) month period.
2.13 Limitation of Liability. The Company shall not be liable to the
Holder for a failure to effect, or a delay in effecting, a registration
hereunder or a default in any other obligations under this Agreement arising
out of or relating to any failure to receive necessary consents from its
independent auditors or any internal review, investigation or similar activity
by the Company's Audit Committee.
2.14 Termination of Registration Rights. The rights granted under
this Section 1 shall terminate upon the fourth anniversary of the date of this
Agreement. In addition, a Holder's registration rights shall terminate if all
Registrable Securities held by and issuable to such Holder may be sold under
Rule 144 during any ninety (90) day period.
3. Miscellaneous.
3.1 Successors and Assigns. Except as otherwise provided herein,
the terms and conditions of this Agreement shall inure to the benefit of andbe
binding upon the respective successors and assigns of the parties (including
transferees of any shares of Registrable Securities). Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
3.2 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Delaware as applied to agreements
among Delaware residents entered into and to be performed entirely within
Delaware.
3.3 Submission to Jurisdiction; Waivers. Each of the parties
hereto irrevocably agrees that any legal action or proceeding with respect to
this Agreement or for the recognition and enforcement of any judgment in
respect hereof brought by the other party hereto or its successors or assigns
will be brought and determined in the Chancery or other courts of the State of
Delaware, and each of the parties hereby irrevocably submits with regard to
any such action or proceeding for itself and in respect to its property,
generally and unconditionally, to the exclusive jurisdiction of the aforesaid
courts. Each of the parties hereto hereby irrevocably waives, and agrees not
to assert, by way of motion, as a defense, counterclaim or otherwise, in any
action or proceeding with respect to this Agreement, (a) any claim that it is
not personally subject to the jurisdiction of the above-named courts for any
reason other than the failure to lawfully serve process, (b) that it or its
property is exempt or immune from jurisdiction of any such court or from any
legal process commenced in such courts (whether through service of notice,
attachment prior to judgment, attachment in aid of execution of judgment,
execution of judgment or otherwise), (c) to the fullest extent permitted by
CUSIP 225235100 SCHEDULE 13D Page 25 of ___
applicable law, that (i) the suit, action or proceeding in any such court is
brought in an inconvenient forum, (ii) the venue of such suit, action, or
proceeding is improper and (iii) this Agreement, or the subject matter hereof,
may not be enforced in or by such courts and (d) any right to trial by jury.
3.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.5 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.6 Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given:
(a) upon personal delivery to the party to be notified, (b) when sent by
confirmed facsimile if sent during normal business hours of the recipient or,
if not sent during normal business hours, then on the next business day,
(c) three days after having been sent by registered or certified mail, return
receipt requested, postage prepaid, or (d) one day after deposit with a
nationally recognized overnight courier, specifying next day delivery, with
written verification of receipt. All communications shall be sent to the
address as set forth on the signature page hereof or at such other address
as such party may designate by 10 days advance written notice to the other
parties hereto.
3.7 Expenses. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
3.8 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Holders of
sixty-six and two-thirds percent (66 2/3%) of the Registrable Securities then
outstanding. Any amendment or waiver effected in accordance with this
paragraph shall be binding upon each Holder of any Registrable Securities then
outstanding, each future Holder of all such Registrable Securities, and the
Company.
3.9 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
3.10 Aggregation of Stock. All shares of Registrable Securities
held or acquired by affiliated entities or persons shall be aggregated together
for the purpose of determining the availability of any rights under this
Agreement.
3.11 Entire Agreement; Amendment; Waiver. This Agreement (including
Schedule A hereto) constitutes the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof.
[Remainder of page intentionally left blank]
CUSIP 225235100 SCHEDULE 13D Page 26 of ___
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CRDENTIA CORP.,
a Delaware corporation
By: /s/ James D. Durham
__________________________________
Name: James D. Durham
Title: Chief Executive Officer
Address:14114 Dallas Parkway, Suite 600
Dallas, Texas 75254
CUSIP 225235100 SCHEDULE 13D Page 27 of ___
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
INVESTORS:
MEDCAP PARTNERS L.P.
By: MEDCAP MANAGEMENT & RESEARCH LLC,
its General Partner
By: /s/ C. Fred Toney
_________________________________
Name: C. Fred Toney
Title: Managing Member
Address:
CUSIP 225235100 SCHEDULE 13D Page 28 of ___
SCHEDULE A
__________
SCHEDULE OF INVESTORS
MedCap Partners L.P.
SF Capital Partners, Ltd.
Durham Properties, LLC
Hornthal Investment Partners, L.P.
Scott H. Richison
BBW Investments LP
CUSIP 225235100 SCHEDULE 13D Page 29 of ___
EXHIBIT 3
MAKEWELL AGREEMENT BETWEEN CERTAIN LENDERS OF THE ISSUER,
THE ISSUER AND MEDCAP
MAKEWELL AGREEMENT
THIS MAKEWELL AGREEMENT (this "Agreement") dated as of
August 30, 2004, among MedCap Partners L.P., a Delaware limited partnership
("MedCap"), Crdentia Corp., a Delaware corporation ("Crdentia"), Bridge
Opportunity Finance, LLC, a Delaware limited liability company ("Term Lender"),
and Bridge Healthcare Finance, LLC, a Delaware limited liability company
("Revolver Lender"; and collectively with the Term Lender, the "Lenders").
W I T N E S S E T H:
WHEREAS, MedCap owns in excess of twenty percent (20%) of the
voting stock of Crdentia (including the Series C Preferred Stock acquired
concurrently herewith) and as such MedCap will derive substantial direct and
indirect economic benefit from the Lenders' providing loans and other financial
accommodations under the Loan Agreements described below;
WHEREAS, Crdentia, Baker Anderson Christie, Inc. ("Baker"),
Nurses Network, Inc. ("Nurses Network"), New Age Staffing, Inc. ("New Age"),
PSR Nurses, Ltd. ("PSR Ltd."), PSR Nurse Recruiting, Inc. ("PSR Recruiting"),
PSR Nurses Holdings Corp. ("PSR Holding"), CRDE Corp. ("Acquisition
Subsidiary"), CPS Acquisition Corporation ("CPS"), and AHHC Acquisition
Corporation ("AHHC") (Crdentia, together with Baker, Nurses Network, New Age,
PSR Ltd, PSR Recruiting, PSR Holding, Acquisition Subsidiary, CPS and AHHC,
each individually and collectively, "Borrower") have entered into (i) that
certain Loan and Security Agreement dated as of June 16, 2004 with the Revolver
Lender (as amended, restated, supplemented or otherwise modified from time to
time, the "Revolving Loan Agreement"), and (ii) that certain Loan and Security
Agreement dated as of August 30, 2004 with the Term Lender and certain other
parties (as amended, restated, supplemented or otherwise modified from time to
time, the "Term Loan Agreement"; and collectively with the Revolving Loan
Agreement, the "Loan Agreements");
WHEREAS, in order to induce the Lenders to enter into, and/or
perform their obligations under, the Loan Agreements and extend Borrower the
financial accommodations contemplated thereby, MedCap has agreed, under certain
specific circumstances described herein, to make additional equity investments
in Crdentia; and
WHEREAS, MedCap desires to provide certain assurances to
Lenders with respect to the loans as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto agree as follows:
I. Defined Terms. Capitalized terms used herein and not
otherwise defined shall have the meaning assigned to such terms in the Loan
Agreements. In addition, the following terms shall have the definitions
ascribed to them in this Section 1:
CUSIP 225235100 SCHEDULE 13D Page 30 of ___
A. "EBITDA Shortfall means, with respect to any month,
the amount of EBITDA, as reported in the compliance certificate (the
"Compliance Certificate") delivered to the Lenders on or before the fifteenth
day (15th) day of the immediately following month pursuant to Section 9(c) of
the Loan Agreements and , which is less than $0.00 and reported as such
negative amount on such Compliance Certificate. For purposes of clarification,
such EBITDA Shortfall amount shall be equal to the difference between such
negative EBITDA amount, as reported by the Borrower on the Compliance
Certificate, and $0.00.
II. Makewell Obligations.
A. If Borrower's EBITDA for any month is less than $0.00,
then MedCap shall make payment to Crdentia in the amount of the EBITDA
Shortfall, by purchase from Crdentia additional shares (to the nearest share)
of Crdentia's Series C Preferred Stock at $60.00 per share (as adjusted
proportionately for stock splits, stock dividends, recapitalizations and the
like of the Series C Preferred Stock) for an aggregate purchase price equal to
such EBITDA Shortfall (the "Makewell Payment") (on the same terms and
conditions (including the issuance of warrants) as the Series C Preferred
Stock being sold to MedCap concurrently herewith; provided that, the terms of
the newly acquired Series C Preferred Stock shall be adjusted to reflect any
events affecting the terms of the Series C Preferred Stock sold concurrently
herewith) within ten (10) days of the Lenders' receipt of the applicable
Compliance Certificate reporting the EBITDA Shortfall amount. If Crdentia is
unable to sell Series C Preferred Stock to MedCap, it shall sell a series of
its preferred stock containing the same terms as the Series C Preferred Stock
would be required to contain.
B. MedCap hereby agrees that it shall make any such
Makewell Payment via federal wire transfer or ACH to the Crdentia Collection
Lockbox Account maintained at LaSalle Bank, N.A. (the "Crdentia Collections
Account"). The amount of such Makewell Payment to the Crdentia Collections
Account shall be swept to the Revolver Lender Concentration Account (such
Concentration Account as defined in the Revolving Loan Agreement) and applied
to the outstanding Revolving Loans of the Revolver Lender, in accordance with
the terms of the Revolving Loan Agreement. MedCap shall make the Makewell
Payment as provided herein without any notice or request from the Lenders.
C. Each Makewell Payment shall be deemed to cure any
applicable Minimum EBITDA violation for the applicable month in respect of
which the Makewell Payment causes Borrower to be in pro forma compliance with
the Minimum EBITDA financial covenant for such month as determined in
accordance with Section 14(c) of the Loan Agreements.
III. Waiver. No course of dealing between Lenders and
Borrower, and no act, delay or omission by any Lender in exercising any
right or remedy hereunder, shall operate as a waiver thereof or of any other
right or remedy, and no single or partial exercise thereof shall preclude any
other or further exercise thereof or the exercise of any other right or remedy.
If any provision of this Agreement is unenforceable in whole or in part for any
reason, the remaining provisions shall continue to be effective.
IV. Representations and Warranties; Covenants. (i) The execution,
delivery and performance by MedCap of this Agreement is within its limited
partnership powers and has been duly authorized by all necessary limited
CUSIP 225235100 SCHEDULE 13D Page 31 of ___
partnership action on the part of MedCap, (ii) this Agreement is the legal,
valid and binding obligation of MedCap enforceable against MedCap in
accordance with its terms (except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors' rights generally) and
(iii) neither the execution, delivery nor performance by MedCap of this
Agreement (1) violates any law or regulation, or any order or decree of any
governmental body other than any laws relating to the issuance of securities,
(2) conflicts with or results in the breach or termination of, constitutes a
default under or accelerates any performance required by, any indenture,
mortgage, deed of trust, lease, agreement or other instrument to which MedCap
is a party or by which MedCap or any of its property is bound, (3) violates or
conflicts with the limited partnership agreement or other organizational
documents of MedCap, or (4) requires the consent, approval or authorization of,
or declaration or filing with, any Person, except for those already duly
obtained.
V. Modification, Amendment, Duration of Obligation and Assignment.
This Agreement may be modified, or amended only by the written agreement of the
parties. The obligation of MedCap and Crdentia under this Agreement shall
continue until the earlier of (i) the termination of the Loan Agreements
and the payment in full in cash of all Obligations (other than contingent
indemnification obligations), (ii) the date on which an aggregate of $1,000,000
in Makewell Payments have been made under this Agreement, and (iii) January 25,
2005. MedCap may assign its rights and obligations under this Agreement in
whole or in part to a third party "accredited investor" (as defined in Rule 501
of Regulation D promulgated under the Securities Act) reasonably approved by
Crdentia and the Lender, provided that all proceeds to Crdentia of any such
investors are paid to Crdentia in accordance with Section 2(b) hereof. For the
avoidance of doubt this Agreement is independent of, and is a separate and
distinct obligation from, any guaranty or similar agreements among the parties.
VI. Payment of Costs and Expenses. Crdentia hereby agrees to pay
on demand all reasonable costs and expenses, including, without limitation,
reasonable attorneys' fees and costs, incurred by the Lenders in enforcing
this Agreement. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party, or the non-
dismissing party in the even of a voluntary dismissal by the party initiating
the action, shall be entitled to receive reasonable attorney's fees, costs and
necessary disbursements.
VII. Loan Document. This Agreement shall be deemed to be a Loan
Document and Other Agreement for all purposes.
VIII. Obligation of Crdentia. Crdentia agrees to notify MedCap on or
prior to the same Business Day that it sends a Compliance Certificate to the
Lenders of any EBITDA Shortfall with regard to such Compliance Certificate.
Crdentia hereby agrees to timely sell to MedCap or such other person as
provided herein the Series C Preferred Stock (or such other series of the
Company's Preferred Stock) that MedCap is required to acquire under Section
2 on such terms as provided for in Section 2. Such sale shall be pursuant to
a subscription agreement with essentially the same terms as the subscription
agreement entered into by MedCap and Crdentia in connection with the Series C
Preferred Stock being sold concurrently herewith. Crdentia represents and
warrants that the sale of any Series C Preferred Stock pursuant to the terms
CUSIP 225235100 SCHEDULE 13D Page 32 of ___
of this Agreement has been duly and validly authorized by all necessary
corporate action and that Crdentia has reserved for issuance all of the shares
of Series C Preferred Stock as necessary in connection with any such sale.
Crdentia represents to MedCap that the EBITDA calculations contained in any
Compliance Certificate is accurate.
IX. Counterparts. This Agreement may be executed by one or more of
the parties hereto on any number of separate counterparts, each of which shall
be deemed an original and all of which, taken together, shall be deemed to
constitute one and the same instrument. Delivery of an executed counterpart
of this Agreement by facsimile transmission shall be as effective as delivery
of a manually executed counterpart hereof.
X. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS,
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. MEDCAP HEREBY CONSENTS TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF COOK,
STATE OF ILLINOIS AND IRREVOCABLY AGREES THAT, SUBJECT TO LENDERS' ELECTION,
ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL
BE LITIGATED IN SUCH COURTS. MEDCAP EXPRESSLY SUBMITS AND CONSENTS TO THE
JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS. MEDCAP HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND
AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON MEDCAP BY CERTIFIED
OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO MEDCAP IN ACCORDANCE
WITH THE NOTICE PROVISIONS HEREOF AND SERVICE SO MADE SHALL BE COMPLETE FIVE
(5) DAYS AFTER THE SAME HAS BEEN POSTED.
XI. Waiver of Jury Trial. MEDCAP AND LENDERS EACH HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.
[SIGNATURE PAGE FOLLOWS]
SIGNATURE PAGE TO MAKEWELL AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their respective officers
thereunder duly authorized as of the day and year first above written.
MEDCAP PARTNERS L.P.
By: /s/ C. Fred Toney
____________________
Name: C. Fred Toney
Title: Managing Member
Address for Notice:
500 Third Street, Suite 535
San Francisco, CA 94107
_______________________
Attn:
Telephone:
Facsimile:
CUSIP 225235100 SCHEDULE 13D Page 33 of ___
BRIDGE OPPORTUNITY FINANCE,
LLC, as Term Lender
By: /s/ Randy Abrahams
____________________
Name: Randy Abrahams
Title: President and Chief
Executive Officer
Address for Notice:
233 South Wacker Drive
Suite 5350
Chicago, Illinois 60606
Attn: Chief Credit Officer
Telephone: (312) 334-4451
Facsimile: (312) 334-4450
CUSIP 225235100 SCHEDULE 13D Page 34 of ___
SIGNATURE PAGE TO MAKEWELL AGREEMENT
BRIDGE HEALTHCARE FINANCE, LLC,
as Revolver Lender
By: /s/ Kim Gordon
___________________
Name: Kim Gordon
Title: Executive Vice President
Address for Notice:
233 South Wacker Drive
Suite 5350
Chicago, Illinois 60606
Attn: Chief Credit Officer
Telephone: (312) 334-4455
Facsimile: (312) 334-4450
CUSIP 225235100 SCHEDULE 13D Page 35 of ___
SIGNATURE PAGE TO MAKEWELL AGREEMENT
CRDENTIA CORP.
By: Jim D. Durham
Name: Jim D. Durham
Title: Chief Executive Officer
Address for Notice:
14114 Dallas Parkway
Dallas, Texas 75254
Attn: Jim Durham
Telephone: (___) ___________
Facsimile: (___) ____________
CUSIP 225235100 SCHEDULE 13D Page 36 of ___
EXHIBIT 4
WARRANT TO PURCHASE SHARES OF SERIES C PREFERRED STOCK OF THE
ISSUER ISSUED TO MEDCAP
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE
EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF A REGISTRATION STATEMENT
IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT
OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR
UNLESS SOLD PURSUANT TO AN EXEMPTION TO SUCH ACT.
Void after
August 30, 2009
WARRANT TO PURCHASE SHARES
OF SERIES C PREFERRED STOCK
of
CRDENTIA CORP.
This certifies that, for value received, MedCap Partners, L.P.,
together with its successors and assigns (the "Holder") is entitled to
subscribe for and purchase, on the terms hereof, shares of Series C Preferred
Stock (the "Stock") of Crdentia Corp., a Delaware corporation (the "Company"),
which is convertible into shares of Common Stock of the Company (the
"Common Stock"), subject to adjustment as provided herein.
This Warrant is subject to the following terms and conditions:
1. Exercise of Warrant. The terms and conditions upon which this
Warrant may be exercised, and the Stock covered hereby may be purchased, are
as follows:
1.1 Term. Subject to the terms hereof, this Warrant may
be exercised at any time after the date hereof, or from time to time, in whole
or in part; provided, however, that in no event may this Warrant be exercised
(the "Exercise Date") later than 5:00 p.m. (Pacific Time) on the earlier of
(a) the close of business on August 30, 2009 or (b) the closing of a Corporate
Transaction (as defined below) (the "Exercise Period"); provided that at least
twenty (20) days prior to the occurrence of the closing of a Corporate
Transaction, the Company shall have sent to the Holder notice of such event.
CUSIP 225235100 SCHEDULE 13D Page 37 of ___
For purposes hereof, the term "Corporate Transaction"
shall mean (a) the sale, conveyance or disposal of all or substantially all
of the Company's property or business; (b) the Company's merger into or
consolidation with any other corporation (other than a a merger effected
exclusively for the purpose of changing the domicile of the Company or a
merger in which the owners of the voting stock of the Company prior to the
merger own at least 50% of the voting interests in the surviving entity) or
any other transaction or series of transactions, in which more than fifty
percent (50%) of the voting power of the Company is disposed of (other than
a sale by the Company of shares of its capital stock in an equity financing);
or (c) the closing of an underwritten public offering of the Company's Common
Stock pursuant to a registration statement under the Securities Act of 1933,
as amended (the "Securities Act"), with aggregate net proceeds to the Company
in excess of twenty-five million dollars ($25,000,000).
1.2 Number of Shares. This Warrant may be exercised for
65,626 shares of Stock, subject to adjustment as provided herein.
1.3 Exercise Price. The per share exercise price for the
shares of Stock to be issued upon exercise of this Warrant shall be $60.00,
subject to adjustment as provided herein (such price as adjusted from time
to time as provided herein is called the "Exercise Price").
1.4 Method of Exercise. The exercise of the purchase
rights evidenced by this Warrant shall be effected by (a) the surrender of the
Warrant, together with a duly executed copy of the form of a subscription
attached hereto as Schedule 1, to the Company at its principal offices and
(b) except as set forth in Section 1.5, the delivery of the aggregate Exercise
Price by check or bank draft payable to the Company's order or by wire transfer
to the Company's account for the number of shares for which the purchase
rights hereunder are being exercised or any other form of consideration
approved by the Company's Board of Directors (the "Board"). Each exercise of
this Warrant shall be deemed to have been effected immediately prior to the
close of business on the day on which this Warrant shall have been
surrendered to the Company as provided herein or at such later date as may be
specified in the executed form of subscription, and at such time the person or
persons in whose name or names any certificate or certificates for shares of
Stock shall be issuable upon such exercise as provided herein shall be deemed
to have become the holder or holders of record thereof.
1.5 Net Issuance.
(a) Right to Convert. In addition to and without
limiting the rights of the Holder under the terms of this Warrant, the Holder
shall have the right to convert this Warrant or any portion thereof (the
"Conversion Right") into shares of Stock as provided in this Section 1.5 at any
time or from time to time during the Exercise Period. Upon exercise of the
Conversion Right with respect to a particular number of shares subject to the
Warrant (the "Converted Warrant Shares"), the Company shall deliver to the
Holder (without payment by the Holder of any exercise price or any cash or
other consideration) that number of shares of fully paid and nonassessable
Stock computed using the following formula:
CUSIP 225235100 SCHEDULE 13D Page 38 of ___
X = Y (A - B)
A
Where X = the number of shares of Stock to be delivered
to the Holder
Y = the number of Converted Warrant Shares
A = the fair market value of the total number of
shares of Common Stock into which one share
of Stock can be converted on the Conversion
Date (as defined below)
B = the Exercise Price (as adjusted to the
Conversion Date)
The Conversion Right may only be exercised with respect to a whole
number of shares subject to the Warrant. No fractional shares shall be
issuable upon exercise of the Conversion Right, and if the number of shares
to be issued determined in accordance with the foregoing formula is other than
a whole number, the Company shall pay to the Holder an amount in cash equal to
the fair market value of the resulting fractional share on the Conversion Date
(as defined below). Shares issued pursuant to the Conversion Right shall be
treated as if they were issued upon the exercise of the Warrant.
(b) Method of Exercise. The Conversion Right may be
exercised by the Holder by the surrender of the Warrant at the principal
office of the Company together with a notice in the form attached hereto as
Schedule 2 specifying that the Holder thereby intends to exercise the
Conversion Right and indicating the total number of shares under the Warrant
that the Holder is exercising through the Conversion Right. Such conversion
shall be effective upon receipt by the Company of the Warrant together with
the aforesaid written statement, or on such later date as is specified therein
(the "Conversion Date"). Certificates for the shares issuable upon exercise
of the Conversion Right and, if applicable, a new warrant evidencing the
balance of the shares remaining subject to the Warrant, shall be issued as of
the Conversion Date and shall be delivered to the Holder promptly following
the Conversion Date.
(c) Determination of Fair Market Value. For purposes
of this Section 1.5, the fair market value of a share of Common Stock on the
Conversion Date shall be the average of the closing prices of the Common Stock
as reported on a Trading Market (as defined below) for the last fifteen (15)
trading day period ending two (2) days prior to the Conversion Date. For
purposes of this Warrant, "Trading Market" shall mean one of the following
which has been determined by the Company's Board of Directors to be the
Company's principal trading market: NASD OTC Bulletin Board, the Nasdaq
SmallCap Market, the Nasdaq National Market, the American Stock Exchange or
the New York Stock Exchange. Notwithstanding the foregoing, in the event the
Common Stock is not publicly trading on the Conversion Date, the fair market
value of a share of Common Stock on the Conversion Date shall be determined
in good faith by the Company's Board of Directors.
(d) Limit on Exercise. Notwithstanding any other
provision of this Warrant, the Holder shall not be entitled to exercise the
Conversion Right, in whole or in part, unless the Holder agrees, in writing,
to immediately convert the Shares issued pursuant to the Conversion Right
CUSIP 225235100 SCHEDULE 13D Page 39 of ___
into shares of the Company's Common Stock (pursuant to the terms of the
Company's Amended and Restated Certificate of Incorporation and Certificate
of Designations, Preferences and Rights of Series C Preferred Stock of the
Company).
2. Adjustment of Exercise Price and Number of Shares. The Exercise
Price and the number of shares purchasable upon the exercise of this Warrant
shall be subject to adjustment from time to time upon the occurrence of
certain events described in this Section 2. Upon each adjustment of the
Exercise Price, the Holder of this Warrant shall thereafter be entitled to
purchase, at the Exercise Price resulting from such adjustment, the number
of shares obtained by multiplying the Exercise Price in effect immediately
prior to such adjustment by the number of shares purchasable pursuant hereto
immediately prior to such adjustment, and dividing the product thereof by the
Exercise Price resulting from such adjustment.
2.1 Subdivision or Combination of Stock. In case the
Company shall at any time subdivide its outstanding shares of Series C
Preferred Stock into a greater number of shares, the Exercise Price in
effect immediately prior to such subdivision shall be proportionately
reduced, and conversely, in case the outstanding shares of Series C
Preferred Stock of the Company shall be combined into a smaller number of
shares, the Exercise Price in effect immediately prior to such combination
shall be proportionately increased.
2.2 Dividends in Stock, Other Stock, Property,
Reclassification. If at any time or from time to time the holders of the
Series C Preferred Stock (or any shares of stock or other securities at the
time receivable upon the exercise of this Warrant) shall have received or
become entitled to receive, without payment therefor,
(a) Series C Preferred Stock, or any shares of stock
or other securities whether or not such securities are at any time directly
or indirectly convertible into or exchangeable for Common Stock, or any rights
or options to subscribe for, purchase or otherwise acquire any of the
foregoing by way of dividend or other distribution, or
(b) any cash paid or payable otherwise than as a cash
dividend, or
(c) Series C Preferred Stock or other or additional
stock or other securities or property (including cash) by way of spin off,
split-up, reclassification, combination of shares or similar corporate
rearrangement, (other than shares of Stock issued as a stock split,
adjustments in respect of which shall be covered by the terms of Section 2.1
above),
CUSIP 225235100 SCHEDULE 13D Page 40 of ___
Then and in each such case, the Holder hereof shall, upon
the exercise of this Warrant, be entitled to receive, in addition to the
number of shares of Stock receivable thereupon, and without payment of any
additional consideration therefore, the amount of stock and other securities
and property (including cash in the cases referred to in clauses (b) and (c)
above) which such Holder would hold on the date of such exercise had he been
the holder of record of such Stock as of the date on which holders of
Series C Preferred Stock received or became entitled to receive such shares
and/or all other additional stock and other securities and property.
2.3 Reclassification or Reorganization. If the Stock
(or any shares of stock or other securities which may be) issuable upon the
exercise of this Warrant shall be changed into the same or different number
of shares of any class or classes of stock, whether by capital reorganization,
reclassification or otherwise (other than a subdivision or combination of
shares or stock dividend provided for in Section 2.1 above, or a Corporate
Transaction, in which case this Warrant shall terminate if not exercised),
then and in each such event the Holder shall be entitled to receive upon the
exercise of this Warrant the kind and amount of shares of stock and other
securities and property receivable upon such reorganization, reclassification
or other change, to which a holder of the number of shares of Stock (or any
shares of stock or other securities which may be) issuable upon the exercise
of this Warrant would have received if this Warrant had been exercised
immediately prior to such reorganization, reclassification or other change,
all subject to further adjustment as provided herein.
2.4 Notice of Adjustments and Record Dates. The Company
shall promptly notify the Holder in writing of each adjustment or readjustment
of the exercise price hereunder and the number of shares of Stock (or any
shares of stock or other securities which may be) issuable upon the exercise
of this Warrant. Such notice shall state the adjustment or readjustment and
show in reasonable detail the facts on which that adjustment or readjustment
is based. In the event of any taking by the Company of a record of the
holders of Common Stock for the purpose of determining the holders thereof who
are entitled to receive any dividend or other distribution, the Company shall
notify the Holder in writing of such record date at least twenty (20) days
prior to the date specified therein.
CUSIP 225235100 SCHEDULE 13D Page 41 of ___
2.5 Shares to be Fully Paid; Reservation of Shares. The
Company covenants and agrees that all shares of Stock which may be issued upon
the exercise of the rights represented by this Warrant will, upon payment of
the Exercise Price and issuance pursuant to Section 1.4 or a net issuance
pursuant to Section 1.5, be duly authorized, validly issued, fully paid and
nonassessable and free from all preemptive rights of any stockholder and free
of all taxes, liens and charges with respect to the issue thereof. The Company
further covenants and agrees that during the period within which the rights
represented by this Warrant may be exercised, the Company will at all times
have authorized and reserved, for the purpose of issue or transfer upon
exercise of the subscription rights evidenced by this Warrant, a sufficient
number of shares of authorized but unissued Series C Preferred Stock and Common
Stock into which such Series C Preferred Stock may be converted, or other
securities and property, when and as required to provide for the exercise of
the rights represented by this Warrant. The Company will take all such action
as may be necessary to assure that such shares of Series C Preferred Stock
and Common Stock may be issued as provided herein without violation of any
applicable law or regulation.
3. Replacement of Warrants. On receipt by the Company of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant and, in the case of any such loss, theft or
destruction of this Warrant, on delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of such Warrant, the Company at its
expense shall execute and deliver to the Holder, in lieu thereof, a new
Warrant of like tenor.
4. Investment Intent. Unless a current registration statement under
the Securities Act, shall be in effect with respect to the securities to be
issued upon exercise of this Warrant, the Holder, by accepting this Warrant,
covenants and agrees that, at the time of exercise hereof, and at the time of
any proposed transfer of any securities acquired upon exercise hereof, the
Holder shall deliver to the Company a written statement that the securities
acquired by the Holder upon exercise hereof are for the own account of the
Holder for investment and are not acquired with a view to, or for sale in
connection with, any distribution thereof (or any portion thereof) and with
no present intention (at any such time) of offering or distributing such
securities (or any portion thereof).
5. No Rights or Liability as a Shareholder. This Warrant does not
entitle the Holder hereof to any voting rights or other rights as a shareholder
of the Company. No provisions hereof, in the absence of affirmative action by
the Holder to purchase Stock, and no enumeration herein of the rights or
privileges of the Holder, shall give rise to any liability of the Holder as a
shareholder of the Company.
6. Representations of Holder. The Holder hereby represents and
acknowledges to the Company that:
CUSIP 225235100 SCHEDULE 13D Page 42 of ___
6.1 this Warrant, the Stock issuable upon exercise of
this Warrant and any securities issued with respect to any of them by way of a
stock dividend or stock split or in connection with a recapitalization, merger,
consolidation or other reorganization will be "restricted securities" as such
term is used in the rules and regulations under the Securities Act, and that
such securities have not been and may not be registered under the Securities
Act or any state securities law, and that such securities must be held
indefinitely unless registration is effected or transfer can be made pursuant
to appropriate exemptions;
6.2 the Holder has read, and fully understands, the terms
of this Warrant set forth on its face and the attachments hereto, including
the restrictions on transfer contained herein;
6.3 the Holder is purchasing for investment for its own
account and not with a view to or for sale in connection with any distribution
of this Warrant or the Stock of the Company issuable upon exercise of this
Warrant and it has no intention of selling such securities in a public
distribution in violation of the federal securities laws or any applicable
state securities laws;
6.4 the Company may affix the following legends (in
addition to any other legend(s), if any, required by applicable state
corporate and/or securities laws) to certificates for shares of Stock (or
other securities) issued upon exercise of this Warrant ("Warrant Shares"):
"These securities have not been registered
under the Securities Act of 1933, as amended.
They may not be sold, offered for sale,
pledged or hypothecated in the absence of a
registration statement in effect with respect
to the securities under such Act or an
opinion of counsel satisfactory to the
Company that such registration is not
required or unless sold pursuant to Rule 144
of such Act."
7. Reserved.
8. Reserved.
9. Limitations on Disposition. The Holder of this Warrant, by
acceptance hereof, agrees to comply in all respects with the provisions of
this Section 9. Without in any way limiting the representations set forth
above, the Holder of this Warrant agrees not to make any disposition of this
Warrant or any Warrant Shares, unless and until the transferee has agreed in
writing for the benefit of the Company to be bound by this Section 9 and the
other provisions of this Warrant as if such transferee were the original
Holder hereof, provided and to the extent such provisions are then applicable,
and
CUSIP 225235100 SCHEDULE 13D Page 43 of ___
(a) There is then in effect a Registration
Statement under the Securities Act covering such proposed disposition and
such disposition is made in accordance with such Registration Statement; or
(b) (i) the Holder shall have notified the Company
of the proposed disposition and shall have furnished the Company with a
detailed statement of the circumstances surrounding the proposed disposition,
and the Company has given its prior written consent (which consent shall not be
unreasonably withheld), and (ii) if reasonably requested by the Company, the
Holder shall have furnished the Company with an opinion of counsel, reasonably
satisfactory to the Company, that such disposition will not require
registration of the Warrant and/or the Warrant Shares under the Securities
Act. It is agreed that the Company will not require opinions of counsel for
transactions made pursuant to Rule 144 except in unusual circumstances.
Notwithstanding any other provision of this Section 9, Holder may
transfer this Warrant and/or the Warrant Shares to any investment fund in which
MedCap Management & Research LLC or any of its affiliates is the General
Partner or the manager; provided that, such fund is an "accredited investor"
as such term is then defined in Section 501 of Regulation D promulgated
pursuant to the Securities Act.
10. Miscellaneous.
10.1 Transfer of Warrant. In addition to the transfer
restrictions set forth in Section 9, this Warrant shall not be transferable
or assignable in any manner and no interest shall be pledged or otherwise
encumbered by the Holder without the express written consent of the Company.
10.2 Titles and Subtitles. The titles and subtitles used
in this Warrant are for convenience only and are not to be considered in
construing or interpreting this Warrant.
10.3 Notice. Notice or demand pursuant to this Warrant
shall be sufficiently given or made, if sent by first-class mail, postage
prepaid, addressed, if to the Holder of this Warrant, to the Holder at its
last known address as it shall appear in the records of the Company,
and if to the Company, at 14114 Dallas Pkwy., Suite 600, Dallas, TX 75254,
Attention: Secretary. The Company may alter the address to which
communications are to be sent by giving notice of such change of address in
conformity with the provisions of this Section 10.3 for the giving of notice.
10.4 Attorneys' Fees. If any action at law or in equity is
necessary to enforce or interpret the terms of this Warrant, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and disbursements
in addition to any other relief to which such party may be entitled.
10.5 Amendment. This Warrant may be modified, amended or
terminated by a writing signed by the Company and the Holder.
CUSIP 225235100 SCHEDULE 13D Page 44 of ___
10.6 Severability. If one or more provisions of this
Warrant are held to be unenforceable under applicable law, such provision
shall be excluded from this Warrant and the balance of the Warrant shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
10.7 Governing Law. This Warrant shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware,
without giving effect to its conflicts of laws principles.
CUSIP 225235100 SCHEDULE 13D Page 45 of ___
Counterparts. This Warrant may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Date: August 30, 2004 CRDENTIA CORP.
By: /s/ James D. Durham
Name: James D. Durham
Its: Chief Executive Officer
ACKNOWLEDGED AND AGREED:
MEDCAP PARTNERS L.P.
By: MEDCAP MANAGEMENT & RESEARCH LLC
By: /s/ C. Fred Toney
-----------------
Name: C. Fred Toney
Its: Managing Member
[SIGNATURE PAGE TO WARRANT TO PURCHASE SHARES
OF SERIES C PREFERRED STOCK]
CUSIP 225235100 SCHEDULE 13D Page 46 of ___
SCHEDULE 1
SUBSCRIPTION NOTICE
(To be signed only on exercise of Warrant for cash)
To: Crdentia Corp.
The undersigned, the holder of the Warrant attached hereto,
hereby irrevocably elects to exercise the purchase rights
represented by such Warrant for, and to purchase thereunder,
__________* shares of Stock of Crdentia Corp., and herewith makes
payment of $__________ therefor, and requests that the
certificates for such shares be issued in the name of, and
delivered to ____________________, whose address is
______________________________.
(Signature must conform in all respects to name of
the Holder as specified on the face of the Warrant)
(Print Name)
(Address)
Dated: _____________
*Insert here the number of shares as to which the Warrant is being
exercised.
CUSIP 225235100 SCHEDULE 13D Page 47 of ___
SCHEDULE 2
NOTICE OF NET ISSUANCE EXERCISE
(To be signed only on net issuance exercise of Warrant)
To: Crdentia Corp.:
Pursuant to Section 1.5 of the Warrant, the undersigned, the
holder of the Warrant attached hereto, hereby irrevocably elects
to exercise the net issuance rights with respect to _____________
shares of such Warrant for that number of shares of Stock of
Crdentia Corp., determined pursuant to the formula set forth in
Section 1.5 of the Warrant, and requests that the certificates for such
shares be issued in the name of, and delivered to ___________________,
whose address is _________________________________________.
(Signature must conform in all respects to name of the
Holder as specified on the face of the Warrant)
(Print Name)
(Address)
Dated: ______________
CUSIP 225235100 SCHEDULE 13D Page 48 of ___
EXHIBIT 5
WARRANT TO PURCHASE SHARES OF SERIES B-1 PREFERRED STOCK OF THE
ISSUER ISSUED TO MEDCAP
THIS WARRANT AND THE SECURITIES ISSUABLE UPON
THE EXERCISE HEREOF HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR ANY STATE SECURITIES LAWS.
THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF A REGISTRATION
STATEMENT IN EFFECT WITH RESPECT TO THE
SECURITIES UNDER SUCH ACT OR AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED OR UNLESS SOLD PURSUANT TO AN
EXEMPTION TO SUCH ACT.
Void after
August 31, 2009
WARRANT TO PURCHASE SHARES
OF SERIES B-1 PREFERRED STOCK
of
CRDENTIA CORP.
This certifies that, for value received, MedCap Partners L.P.,
together with its successors and assigns (the "Holder") is entitled to
subscribe for and purchase, on the terms hereof, shares of Series B-1
Preferred Stock (the "Stock") of Crdentia Corp., a Delaware corporation
(the "Company"), which is convertible into shares of Common Stock of the
Company (the "Common Stock"), subject to adjustment as provided herein.
This Warrant is subject to the following terms and conditions:
1. Exercise of Warrant. The terms and conditions upon which this
Warrant may be exercised, and the Stock covered hereby may be purchased,
are as follows:
1.1 Term. Subject to the terms hereof, this Warrant
may be exercised at any time after the date hereof, or from time to time, in
whole or in part; provided, however, that in no event may this Warrant be
exercised (the "Exercise Date") later than 5:00 p.m. (Pacific Time) on the
earlier of (a) the close of business on August 31, 2009 or (b) the closing
of a Corporate Transaction (as defined below) (the "Exercise Period");
provided that at least twenty (20) days prior to the occurrence of the
closing of a Corporate Transaction, the Company shall have sent to the
Holder notice of such event.
CUSIP 225235100 SCHEDULE 13D Page 49 of ___
For purposes hereof, the term "Corporate Transaction" shall mean
(a) the sale, conveyance or disposal of all or substantially all of the
Company's property or business; (b) the Company's merger into or
consolidation with any other corporation (other than a a merger effected
exclusively for the purpose of changing the domicile of the Company or a
merger in which the owners of the voting stock of the Company prior to the
merger own at least 50% of the voting interests in the surviving entity) or
any other transaction or series of transactions, in which more than fifty
percent (50%) of the voting power of the Company is disposed of (other than
a sale by the Company of shares of its capital stock in an equity financing);
or (c) the closing of an underwritten public offering of the Company's Common
Stock pursuant to a registration statement under the Securities Act of 1933,
as amended (the "Securities Act"), with aggregate net proceeds to the Company
in excess of twenty-five million dollars ($25,000,000).
1.2 Number of Shares. This Warrant may be exercised for
6,000 shares of Stock, subject to adjustment as provided herein.
1.3 Exercise Price. The per share exercise price for the
shares of Stock to be issued upon exercise of this Warrant shall be $60.00,
subject to adjustment as provided herein (such price as adjusted from time to
time as provided herein is called the "Exercise Price").
1.4 Method of Exercise. The exercise of the purchase
rights evidenced by this Warrant shall be effected by (a) the surrender of
the Warrant, together with a duly executed copy of the form of a subscription
attached hereto as Schedule 1, to the Company at its principal offices and
(b) except as set forth in Section 1.5, the delivery of the aggregate Exercise
Price by check or bank draft payable to the Company's order or by wire
transfer to the Company's account for the number of shares for which
the purchase rights hereunder are being exercised or any other form of
consideration approved by the Company's Board of Directors (the "Board").
Each exercise of this Warrant shall be deemed to have been effected
immediately prior to the close of business on the day on which this Warrant
shall have been surrendered to the Company as provided herein or at such
later date as may be specified in the executed form of subscription, and at
such time the person or persons in whose name or names any certificate or
certificates for shares of Stock shall be issuable upon such exercise as
provided herein shall be deemed to have become the holder or holders of
record thereof.
1.5 Net Issuance.
(a) Right to Convert. In addition to and without
limiting the rights of the Holder under the terms of this Warrant, the Holder
shall have the right to convert this Warrant or any portion thereof (the
"Conversion Right") into shares of Stock as provided in this Section 1.5 at
any time or from time to time during the Exercise Period. Upon exercise of
the Conversion Right with respect to a particular number of shares subject to
the Warrant (the "Converted Warrant Shares"), the Company shall deliver to
the Holder (without payment by the Holder of any exercise price or any cash
or other consideration) that number of shares of fully paid and nonassessable
Stock computed using the following formula:
CUSIP 225235100 SCHEDULE 13D Page 50 of ___
X = Y (A - B)
A
Where X = the number of shares of Stock to be
delivered to the Holder
Y = the number of Converted Warrant Shares
A = the fair market value of the total
number of shares of Common Stock into
which one share of Stock can be
converted on the Conversion Date (as
defined below)
B = the Exercise Price (as adjusted to the
Conversion Date)
The Conversion Right may only be exercised with respect to a whole
number of shares subject to the Warrant. No fractional shares shall be
issuable upon exercise of the Conversion Right, and if the number of shares
to be issued determined in accordance with the foregoing formula is other than
a whole number, the Company shall pay to the Holder an amount in cash equal
to the fair market value of the resulting fractional share on the Conversion
Date (as defined below). Shares issued pursuant to the Conversion Right
shall be treated as if they were issued upon the exercise of the Warrant.
(b) Method of Exercise. The Conversion Right may be
exercised by the Holder by the surrender of the Warrant at the principal
office of the Company together with a notice in the form attached hereto as
Schedule 2 specifying that the Holder thereby intends to exercise the
Conversion Right and indicating the total number of shares under the Warrant
that the Holder is exercising through the Conversion Right. Such conversion
shall be effective upon receipt by the Company of the Warrant together with
the aforesaid written statement, or on such later date as is specified therein
(the "Conversion Date"). Certificates for the shares issuable upon exercise
of the Conversion Right and, if applicable, a new warrant evidencing the
balance of the shares remaining subject to the Warrant, shall be issued
as of the Conversion Date and shall be delivered to the Holder promptly
following the Conversion Date.
(c) Determination of Fair Market Value. For
purposes of this Section 1.5, the fair market value of a share of Common
Stock on the Conversion Date shall be the average of the closing prices of
the Common Stock as reported on a Trading Market (as defined below) for the
last fifteen (15) trading day period ending two (2) days prior to the
Conversion Date. For purposes of this Warrant, "Trading Market" shall mean
one of the following which has been determined by the Company's Board of
Directors to be the Company's principal trading market: NASD OTC Bulletin
Board, the Nasdaq SmallCap Market, the Nasdaq National Market, the American
Stock Exchange or the New York Stock Exchange. Notwithstanding the foregoing,
in the event the Common Stock is not publicly trading on the Conversion Date,
the fair market value of a share of Common Stock on the Conversion Date shall
be determined in good faith by the Company's Board of Directors.
CUSIP 225235100 SCHEDULE 13D Page 51 of ___
(d) Limit on Exercise. Notwithstanding any other
provision of this Warrant, the Holder shall not be entitled to exercise the
Conversion Right, in whole or in part, unless the Holder agrees, in writing,
to immediately convert the Shares issued pursuant to the Conversion Right
into shares of the Company's Common Stock (pursuant to the terms of the
Company's Amended and Restated Certificate of Incorporation and Certificate
of Designations, Preferences and Rights of Series B-1 Preferred Stock of the
Company).
2. Adjustment of Exercise Price and Number of Shares. The Exercise
Price and the number of shares purchasable upon the exercise of this Warrant
shall be subject to adjustment from time to time upon the occurrence of
certain events described in this Section 2. Upon each adjustment of the
Exercise Price, the Holder of this Warrant shall thereafter be entitled to
purchase, at the Exercise Price resulting from such adjustment, the number
of shares obtained by multiplying the Exercise Price in effect immediately
prior to such adjustment by the number of shares purchasable pursuant hereto
immediately prior to such adjustment, and dividing the product thereof by the
Exercise Price resulting from such adjustment.
2.1 Subdivision or Combination of Stock. In case the
Company shall at any time subdivide its outstanding shares of Series B-1
Preferred Stock into a greater number of shares, the Exercise Price in effect
immediately prior to such subdivision shall be proportionately reduced, and
conversely, in case the outstanding shares of Series B-1 Preferred Stock of
the Company shall be combined into a smaller number of shares, the Exercise
Price in effect immediately prior to such combination shall be
proportionately increased.
2.2 Dividends in Stock, Other Stock, Property,
Reclassification. If at any time or from time to time the holders of the
Series B-1 Preferred Stock (or any shares of stock or other securities at the
time receivable upon the exercise of this Warrant) shall have received or
become entitled to receive, without payment therefor,
(a) Series B-1 Preferred Stock, or any shares of
stock or other securities whether or not such securities are at any time
directly or indirectly convertible into or exchangeable for Common Stock, or
any rights or options to subscribe for, purchase or otherwise acquire any of
the foregoing by way of dividend or other distribution, or
(b) any cash paid or payable otherwise than as a
cash dividend, or
(c) Series B-1 Preferred Stock or other or
additional stock or other securities or property (including cash) by way of
spin off, split-up, reclassification, combination of shares or similar
corporate rearrangement, (other than shares of Stock issued as a stock split,
adjustments in respect of which shall be covered by the terms of Section 2.1
above),
CUSIP 225235100 SCHEDULE 13D Page 52 of ___
Then and in each such case, the Holder hereof shall, upon the exercise
of this Warrant, be entitled to receive, in addition to the number of shares
of Stock receivable thereupon, and without payment of any additional
consideration therefore, the amount of stock and other securities and property
(including cash in the cases referred to in clauses (b) and (c) above) which
such Holder would hold on the date of such exercise had he been the holder of
record of such Stock as of the date on which holders of Series B-1 Preferred
Stock received or became entitled to receive such shares and/or all other
additional stock and other securities and property.
2.3 Reclassification or Reorganization. If the Stock (or
any shares of stock or other securities which may be) issuable upon the
exercise of this Warrant shall be changed into the same or different number of
shares of any class or classes of stock, whether by capital reorganization,
reclassification or otherwise (other than a subdivision or combination of
shares or stock dividend provided for in Section 2.1 above, or a Corporate
Transaction, in which case this Warrant shall terminate if not exercised),
then and in each such event the Holder shall be entitled to receive upon the
exercise of this Warrant the kind and amount of shares of stock and other
securities and property receivable upon such reorganization, reclassification
or other change, to which a holder of the number of shares of Stock (or any
shares of stock or other securities which may be) issuable upon the exercise
of this Warrant would have received if this Warrant had been exercised
immediately prior to such reorganization, reclassification or other change,
all subject to further adjustment as provided herein.
2.4 Notice of Adjustments and Record Dates. The Company
shall promptly notify the Holder in writing of each adjustment or
readjustment of the exercise price hereunder and the number of shares of
Stock (or any shares of stock or other securities which may be) issuable upon
the exercise of this Warrant. Such notice shall state the adjustment or
readjustment and show in reasonable detail the facts on which that adjustment
or readjustment is based. In the event of any taking by the Company of a
record of the holders of Common Stock for the purpose of determining the
holders thereof who are entitled to receive any dividend or other
distribution, the Company shall notify the Holder in writing of such record
date at least twenty (20) days prior to the date specified therein.
2.5 Shares to be Fully Paid; Reservation of Shares. The
Company covenants and agrees that all shares of Stock which may be issued
upon the exercise of the rights represented by this Warrant will, upon payment
of the Exercise Price and issuance pursuant to Section 1.4 or a net issuance
pursuant to Section 1.5, be duly authorized, validly issued, fully paid and
nonassessable and free from all preemptive rights of any stockholder and free
of all taxes, liens and charges with respect to the issue thereof. The
Company further covenants and agrees that during the period within which the
rights represented by this Warrant may be exercised, the Company will at all
CUSIP 225235100 SCHEDULE 13D Page 53 of ___
times have authorized and reserved, for the purpose of issue or transfer upon
exercise of the subscription rights evidenced by this Warrant, a sufficient
number of shares of authorized but unissued Series B-1 Preferred Stock and
Common Stock into which such Series B-1 Preferred Stock may be converted,
or other securities and property, when and as required to provide for the
exercise of the rights represented by this Warrant. The Company will take
all such action as may be necessary to assure that such shares of Series B-1
Preferred Stock and Common Stock may be issued as provided herein without
violation of any applicable law or regulation.
3. Replacement of Warrants. On receipt by the Company of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant and, in the case of any such loss, theft or
destruction of this Warrant, on delivery of an indemnity agreement
reasonably satisfactory in form and amount to the Company or, in the case of
any such mutilation, on surrender and cancellation of such Warrant, the
Company at its expense shall execute and deliver to the Holder, in lieu
thereof, a new Warrant of like tenor.
4. Investment Intent. Unless a current registration statement
under the Securities Act, shall be in effect with respect to the securities
to be issued upon exercise of this Warrant, the Holder, by accepting this
Warrant, covenants and agrees that, at the time of exercise hereof, and at
the time of any proposed transfer of any securities acquired upon exercise
hereof, the Holder shall deliver to the Company a written statement that the
securities acquired by the Holder upon exercise hereof are for the own account
of the Holder for investment and are not acquired with a view to, or for sale
in connection with, any distribution thereof (or any portion thereof) and with
no present intention (at any such time) of offering or distributing such
securities (or any portion thereof).
5. No Rights or Liability as a Shareholder. This Warrant does not
entitle the Holder hereof to any voting rights or other rights as a shareholder
of the Company. No provisions hereof, in the absence of affirmative action by
the Holder to purchase Stock, and no enumeration herein of the rights or
privileges of the Holder, shall give rise to any liability of the Holder as a
shareholder of the Company.
6. Representations of Holder. The Holder hereby represents and
acknowledges to the Company that:
6.1 this Warrant, the Stock issuable upon exercise of
this Warrant and any securities issued with respect to any of them by way of a
stock dividend or stock split or in connection with a recapitalization, merger,
consolidation or other reorganization will be "restricted securities" as such
term is used in the rules and regulations under the Securities Act, and that
such securities have not been and may not be registered under the Securities
Act or any state securities law, and that such securities must be held
indefinitely unless registration is effected or transfer can be made pursuant
to appropriate exemptions;
CUSIP 225235100 SCHEDULE 13D Page 54 of ___
6.2 the Holder has read, and fully understands, the terms
of this Warrant set forth on its face and the attachments hereto, including
the restrictions on transfer contained herein;
6.3 the Holder is purchasing for investment for its own
account and not with a view to or for sale in connection with any distribution
of this Warrant or the Stock of the Company issuable upon exercise of this
Warrant and it has no intention of selling such securities in a public
distribution in violation of the federal securities laws or any applicable
state securities laws;
6.4 the Company may affix the following legends (in
addition to any other legend(s), if any, required by applicable state
corporate and/or securities laws) to certificates for shares of Stock (or
other securities) issued upon exercise of this Warrant ("Warrant Shares"):
"These securities have not been registered under the Securities Act
of 1933, as amended. They may not be sold, offered for sale, pledged or
hypothecated in the absence of a registration statement in effect with respect
to the securities under such Act or an opinion of counsel satisfactory to the
Company that such registration is not required or unless sold pursuant to
Rule 144 of such Act."
7. Reserved.
8. Reserved.
9. Limitations on Disposition. The Holder of this Warrant, by
acceptance hereof, agrees to comply in all respects with the provisions of
this Section 9. Without in any way limiting the representations set forth
above, the Holder of this Warrant agrees not to make any disposition of this
Warrant or any Warrant Shares, unless and until the transferee has agreed in
writing for the benefit of the Company to be bound by this Section 9 and the
other provisions of this Warrant as if such transferee were the original
Holder hereof, provided and to the extent such provisions are then
applicable, and
(a) There is then in effect a Registration Statement under
the Securities Act covering such proposed disposition and such disposition is
made in accordance with such Registration Statement; or
(b) (i) the Holder shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and the
Company has given its prior written consent (which consent shall not be
unreasonably withheld), and (ii) if reasonably requested by the Company, the
Holder shall have furnished the Company with an opinion of counsel, reasonably
satisfactory to the Company, that such disposition will not require
registration of the Warrant and/or the Warrant Shares under the Securities Act.
It is agreed that the Company will not require opinions of counsel for
transactions made pursuant to Rule 144 except in unusual circumstances.
CUSIP 225235100 SCHEDULE 13D Page 55 of ___
Notwithstanding any other provision of this Section 9, Holder may
transfer this Warrant and/or the Warrant Shares to any investment fund in
which MedCap Management & Research LLC or any of its affiliates is the General
Partner or the manager; provided that, such fund is an "accredited investor"
as such term is then defined in Section 501 of Regulation D promulgated
pursuant to the Securities Act.
10. Miscellaneous.
10.1 Transfer of Warrant. In addition to the transfer
restrictions set forth in Section 9, this Warrant shall not be transferable
or assignable in any manner and no interest shall be pledged or otherwise
encumbered by the Holder without the express written consent of the Company.
10.2 Titles and Subtitles. The titles and subtitles
used in this Warrant are for convenience only and are not to be considered in
construing or interpreting this Warrant.
10.3 Notice. Notice or demand pursuant to this Warrant
shall be sufficiently given or made, if sent by first-class mail, postage
prepaid, addressed, if to the Holder of this Warrant, to the Holder at its
last known address as it shall appear in the records of the Company, and if
to the Company, at 14114 Dallas Pkwy., Suite 600, Dallas, TX 75254,
Attention: Secretary. The Company may alter the address to which
communications are to be sent by giving notice of such change of address in
conformity with the provisions of this Section 10.3 for the giving of notice.
10.4 Attorneys' Fees. If any action at law or in equity
is necessary to enforce or interpret the terms of this Warrant, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and disbursements
in addition to any other relief to which such party may be entitled.
10.5 Amendment. This Warrant may be modified, amended or
terminated by a writing signed by the Company and the Holder.
10.6 Severability. If one or more provisions of this
Warrant are held to be unenforceable under applicable law, such provision
shall be excluded from this Warrant and the balance of the Warrant shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
10.7 Governing Law. This Warrant shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware,
without giving effect to its conflicts of laws principles.
CUSIP 225235100 SCHEDULE 13D Page 56 of ___
Counterparts. This Warrant may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Date: August 31, 2004 CRDENTIA CORP.
By: /s/ James D. Durham
___________________
Name: James D. Durham
Its: Chief Executive Officer
ACKNOWLEDGED AND AGREED:
MEDCAP PARTNERS L.P.
By: MEDCAP MANAGEMENT & RESEARCH LLC
By: /s/ C. Fred Toney
Name: C. Fred Toney
Its: Managing Member
[SIGNATURE PAGE TO WARRANT TO PURCHASE SHARES
OF SERIES B-1 PREFERRED STOCK]
CUSIP 225235100 SCHEDULE 13D Page 57 of ___
SCHEDULE 1
SUBSCRIPTION NOTICE
(To be signed only on exercise of Warrant for cash)
To: Crdentia Corp.
The undersigned, the holder of the Warrant attached hereto,
hereby irrevocably elects to exercise the purchase rights
represented by such Warrant for, and to purchase thereunder,
__________* shares of Stock of Crdentia Corp., and herewith makes
payment of $__________ therefor, and requests that the
certificates for such shares be issued in the name of, and delivered
to ____________________, whose address is ______________________________.
____________________________
(Signature must conform in all respects to name of the Holder as
specified on the face of the Warrant)
____________________________
(Print Name)
____________________________
(Address)
Dated: ____________________
*Insert here the number of shares as to which the Warrant is
being exercised
CUSIP 225235100 SCHEDULE 13D Page 58 of ___
SCHEDULE 2
NOTICE OF NET ISSUANCE EXERCISE
(To be signed only on net issuance exercise of Warrant)
To: Crdentia Corp.:
Pursuant to Section 1.5 of the Warrant, the undersigned, the
holder of the Warrant attached hereto, hereby irrevocably elects to
exercise the net issuance rights with respect to _____________ shares
of such Warrant for that number of shares of Stock of Crdentia Corp.,
determined pursuant to the formula set forth in Section 1.5 of the Warrant,
and requests that the certificates for such shares be issued in the name
of, and delivered to ___________________, whose address
is _________________________________________.
_________________________
(Signature must conform in all respects to name of the Holder as
specified on the face of the Warrant)
_________________________
(Print Name)
_________________________
(Address)
Dated: ___________________
_______________________________
[SIGNATURE PAGE TO WARRANT TO PURCHASE SHARES
OF SERIES B-1 PREFERRED STOCK]