EXHIBIT 6.13
The securities represented hereby have not been registered under
the Securities Act of 1933, as amended, or any state securities laws and
neither the securities nor any interest therein may be offered, sold,
transferred, pledged or otherwise disposed of except pursuant to an
effective registration statement under such Act and such laws or an
exemption from registration under such Act and such laws which, in the
opinion of counsel for the holder, which counsel and opinion are
reasonably satisfactory to counsel for this corporation, is available.
SERIES A WARRANT AGREEMENT
This Agreement (the "AGREEMENT") dated September 4, 1996 between SeraCare,
Inc., a Delaware corporation (the "COMPANY" and the "WARRANT AGENT") and those
individuals and entities purchasing the "Units" in a private offering by the
Company,
W I T N E S S E T H:
WHEREAS, the Company proposes to privately offer (the "PRIVATE
OFFERING") up to 200 Units (subject to an option for an additional 80 Units)
to individuals and entities, each Unit to consist of five-thousand shares of
the Company's common stock (the "Common Stock"), and two-thousand
five-hundred warrants to purchase an additional share of Common Stock, such
right to be evidenced by a "Series A Warrant", with the Series A Warrants
being collectively referred to herein as the "Series A Warrants" or
"Warrants";
WHEREAS, exclusive of the aforesaid option, in connection with the
proposed Private Offering, the Company anticipates its issuance of up to
500,000 Series A Warrants to purchase up to 500,000 shares of Common Stock
(the shares received upon exercise of the Series A Warrants are referred to
herein as the "WARRANT SHARES");
WHEREAS, the Company desires to provide for the issuance of certificates
representing the Series A Warrants (a "Series A Warrant Certificate" or
collectively the "Series A Warrant Certificates");
WHEREAS, the Company desires to act as its own warrant agent in
connection with the issuance, registration, transfer and exchange of Series A
Warrant Certificates and the exercise of the Series A Warrants;
NOW, THEREFORE, in consideration of the above and foregoing premises and
the mutual promises and agreements hereinafter set forth, it is agreed that:
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1. SERIES A WARRANT CERTIFICATES.
(a) Each Series A Warrant shall entitle the holder (the
"Registered Holder," or, in the aggregate, the "Registered Holders") in whose
name the certificate shall be registered on the books maintained by the
Company to purchase one (1) share of Common Stock on the exercise thereof,
subject to modification and adjustment as provided in Section 9 hereof.
Series A Warrant Certificates shall be executed by the Company's Chairman,
President or Senior Vice President and attested to by the Company's
Secretary. The Series A Warrant Certificates shall be immediately detachable
from certificates representing shares of Common Stock and shall be
distributed to the purchasers thereof concurrently with each closing of the
Private Offering.
(b) Subject to the provisions of Sections 3, 5, and 7 hereof, the
Company shall deliver Series A Warrant Certificates in required whole number
denominations to Registered Holders in connection with any transfer or
exchange permitted under this Agreement. Except as provided in Section 7
hereof, no certificates shall be issued except (i) certificates initially
issued hereunder, (ii) certificates issued on or after their initial issuance
date upon the exercise of any Warrant to evidence the unexercised Series A
Warrants held by the exercising Registered Holder and (iii) Series A Warrant
certificates issued after their initial issuance date, upon any transfer or
exchange of certificates or replacements of lost or mutilated certificates.
2. FORM AND EXECUTION OF SERIES A WARRANT CERTIFICATES.
(a) The Series A Warrant certificates shall be dated the date of
the original issuance of the Series A Warrants, whether on initial transfer
or exchange or in lieu of mutilated, lost, stolen or destroyed certificates.
The form of Series A Warrant certificate is annexed hereto as "Exhibit A."
(b) Each Series A Warrant certificate shall be numbered serially
bearing "WA" as an initial designation, and subsequent to this designation
the serial numbering of the Series A Warrant certificate should match, to the
extent possible, the serial numbering of the Common Stock initially attached
thereto.
(c) The Series A Warrant Certificates shall be manually signed on
behalf of the Company by a proper officer thereof and shall not be valid for
any purpose unless so signed. In the event any officer of the Company who
executed certificates shall cease to be an officer of the Company such
certificates may be issued and delivered by the Company or transferred by the
Registered Holders with the same force and effect as though the person who
signed such certificate had not ceased to be an
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officer of the Company; and any certificate signed on behalf of the Company
by any person, who at the actual date of the execution of such certificate
was a proper officer of the Company, shall be proper notwithstanding that at
the date of execution of this Agreement any such person was not such an
officer.
3. EXERCISE.
(a) Subject to the provisions of Sections 5 and 9 hereof, the
Series A Warrants, as they may be adjusted as set forth herein, may be
exercised at a price (the "WARRANT EXERCISE PRICE") of $2.75 per share of
Common Stock subject to adjustment, in whole or in part at any time during
the period (the "WARRANT EXERCISE PERIOD") commencing on the date of issuance
of the Series A Warrant and terminating on the earlier of (i) the date three
years after effectiveness of the Initial Registration Statement, provided,
however, that (x) if the Common Stock underlying the Warrants is not subject
to an effective registration for an aggregate of 600 days within three years
after the final closing of the Private Offering, then the remaining exercise
period under this clause (i) shall be tolled until the Common Stock
underlying the Warrants shall have been subject to an effective registration
for an aggregate of 600 days and (y) in no event shall the Series A Warrants
terminate under this clause (i) unless a registration statement covering the
Warrant Shares shall have then been in effect for 45 days prior to such
termination, and (ii) six years from the date of issuance (the "WARRANT
EXPIRATION DATE"), unless extended by a majority vote of the Board of
Directors for such length of time as they, in their sole discretion, deem
reasonable and necessary.
(b) Each Series A Warrant shall be deemed to have been exercised
immediately prior to the close of business on the date (each, an "EXERCISE
DATE") of the surrender to the Company for exercise of the Series A Warrant
certificate. The exercise form shall be executed by the Warrant Holder
thereof or his attorney duly authorized in writing and shall be delivered
together with payment to the Company at its corporate offices located at 0000
Xxxxxxx Xxxx Xxxx, Xxxxx 0000, Xxx Xxxxxxx, XX. 00000 (the "CORPORATE
OFFICE"), or at any such other office or agency as the Company may designate,
in cash or by official bank or certified check, of an amount equal to the
aggregate Exercise Price, in lawful money of the United States of America.
(c) Unless Warrant Shares may not be issued as provided herein,
the person entitled to receive the number of Warrant Shares deliverable on
exercise shall be treated for all purposes as the holder of such Warrant
Shares as of the close of business on the Exercise Date. The Company shall
not be obligated to issue any fractional share interest in Warrant Shares
issuable or deliverable on the exercise of any Series A
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Warrant or scrip or cash therefore and such fractional shares shall be of no
value whatsoever.
(d) Within ten days after the Exercise Date and in any event prior
to the Warrant Expiration Date, the Company, at its own expense, shall cause
to be issued and delivered to the person or persons entitled to receive the
same, a certificate or certificates in the name requested by the Registered
Holder for the number of Warrant Shares deliverable on such exercise. No
adjustment shall be made in respect of cash dividends on Warrant Shares
delivered on exercise of any Series A Warrant. All shares of Common Stock
delivered upon the exercise of the Series A Warrants shall be validly issued,
fully paid and non-assessable. Any Series A Warrants redelivered to the
Registered Holder in the event of the exercise of less than all of the Series
A Warrants pertaining to a surrendered Series A Warrant certificate, shall be
validly issued, fully paid and non-assessable.
(e) The Series A Warrants shall not entitle the holder thereof to
any of the rights of shareholders or to any dividend declared on the Common
Stock unless such holder or holders shall have exercised the Series A
Warrants prior to the record date fixed by the Board of Directors for the
determination of holders of Common Stock entitled to such dividends or other
rights.
4. REGISTRATION RIGHTS.
The holders of Series A Warrants shall have the registration rights
under the Securities Act of 1933, as amended (the "ACT"), and the rules and
regulations promulgated thereunder by the Securities and Exchange Commission
(the "COMMISSION"), provided for in that certain Registration Rights
Agreement executed by the Company and the A Warrant holders on even date
herewith (the "REGISTRATION RIGHTS AGREEMENT"). The Registration Rights
Agreement is incorporated herein by this reference in its entirety as if
fully set forth herein.
5. RESERVATION OF SHARES AND PAYMENT OF TAXES.
(a) The Company covenants that it shall at all times reserve and
have available from its authorized Common Stock such number of shares as
shall then be issuable on the exercise of all outstanding Series A Warrants.
The Company covenants that all Warrant Shares shall be duly and validly
issued, fully paid and non-assessable, and shall be free from all taxes,
liens and charges with respect to the issuance thereof.
(b) The Company shall pay all documentary, stamp or similar taxes
and other government charges that may be imposed with respect of the issuance
of the Series A Warrants, and/or the issuance of any Common Stock
constituting the Warrant Shares on the exercise of the Series A Warrants. In
the event the Warrant
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Shares are to be delivered in a name other than the name of the initial
Registered Holder of the certificate, no such delivery shall be made unless the
person requesting the same has paid to the Company the amount of any such taxes,
charges, or transfer fees incident thereto.
6. REGISTRATION OF TRANSFER.
(a) The Series A Warrant certificates may, subject to provisions
of the Federal Securities Laws and any applicable state securities laws, be
transferred in whole or in part Certificates to be transferred shall be
surrendered to the Company at its Corporate Office. The Company shall
execute, issue and deliver in exchange therefor the Series A Warrant
certificates in the names and amounts that the holder making the transfer
shall have designated in writing. The Company shall keep transfer books at
its Corporate Office which shall register certificates and the transfer
thereof. On due presentment for registration of transfer of any certificate
at the Corporate Office, the Company shall execute, issue and deliver to the
transferee or transferees a new certificate or certificates representing an
equal aggregate number of securities. All such certificates shall be duly
endorsed or be accompanied by a written instrument or instruments of transfer
in form reasonably satisfactory to the Company. The established transfer fee
for any registration of transfer of certificates shall be paid by the Warrant
Holder or the person presenting the certificate for transfer.
(b) Prior to due presentment for registration or transfer thereof,
the Company may treat the Registered Holder of any certificate as the
absolute owner thereof (notwithstanding any notations of ownership or writing
thereon made by anyone), and the parties hereto shall not be affected by any
notice to the contrary.
7. LOSS OR MUTILATION.
On receipt by the Company of evidence satisfactory as to the ownership
of and the loss, theft, destruction or mutilation of any Series A Warrant
certificate, the Company shall execute and deliver in lieu thereof a new
certificate representing an equal number of Series A Warrants. In the case of
loss, theft or destruction of any certificate, the individual requesting
reissuance of a new certificate shall be required to indemnify the Company and,
at the request of the Company, to post an open-penalty insurance or indemnity
bond. In the event a certificate is mutilated, such certificate shall be
surrendered and canceled by the Company prior to delivery of a new certificate.
Applicants for a new certificate shall also comply with such other regulations
and pay such other reasonable charges as the Company may prescribe.
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8. REDEMPTION OPTION.
The Company shall have the right and option, upon 30 days' prior written
notice to each Registered Holder, to, at any time thereafter, call, redeem
and acquire all or a portion of the Series A Warrants which remain
outstanding and unexercised at the date fixed for redemption (the "Series A
Warrant Redemption Date") at a price of $.01 per Series A Warrant if, and
only if, the average of the closing bid and closing asked price per share of
the Common Stock for each of the 20 consecutive trading days immediately
prior to the mailing of said notification, and for each day thereafter until
the Series A Warrant Redemption Date shall have exceeded 133.3% of the then
Exercise Price. The Series A Warrant Holders shall in all events have the
right during the period immediately following the date of such notice and
prior to the Series A Warrant Redemption Date to exercise the Series A
Warrants in accordance with the provisions of Section 3 hereof.
No call for redemption and no redemption of the Series A Warrants shall
be made unless the Company shall have an effective registration statement
under the Act on file during such period from the date of mailing of the
notice of redemption through the applicable redemption date with the
Commission and all applicable state securities commissions relating to the
Common Stock and the Warrant Shares, except that this obligation, as it
relates to the Warrant Shares or Common Stock, may be satisfied if such
Warrant Shares or Common Stock, respectively, may be transferred publicly in
accordance with Rule 144 or otherwise without registration under the Act. In
the event that any Series A Warrants are exercised following notice but prior
to redemption, this call option shall be deemed not to have been exercised by
the Company as to the Series A Warrants so exercised.
The redemption notice shall require each Warrant Holder to surrender the
Series A Warrants on or before the Redemption Date in accordance with the
provisions of the redemption notice. In the event the Series A Warrant
Certificates representing the Series A Warrants called for redemption have
not been surrendered for redemption and cancellation on the applicable
redemption date, such Series A Warrants shall be deemed to have expired and
all rights of the holders of such unsurrendered Series A Warrants shall cease
and terminate, other than the right to receive the redemption price without
interest; provided, however, that such right to receive the redemption price
shall itself expire one year from the Series A Warrant Redemption Date if no
claim is made therefor prior to such date.
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9. ADJUSTMENT OF INITIAL EXERCISE
PRICE AND NUMBER OF SHARES PURCHASABLE.
For purposes hereof, the term "INITIAL EXERCISE PRICE" shall mean,
with respect to the A Warrants, $2.75. The Initial Exercise Price and the
number of shares of Common Stock purchasable pursuant to the A Warrants shall
be subject to adjustment from time to time as hereinafter set forth in this
Section 9.
9.1 ADJUSTMENTS. The number of Warrant Shares purchasable upon the
exercise of the Warrants and the Exercise Price shall be subject to adjustment
as follows:
(a) In case the Company shall (i) pay a dividend in shares of
Common Stock or make a distribution in shares of Common Stock, (ii)
subdivide its outstanding shares of Common Stock, (iii) combine its
outstanding shares of Common Stock into a smaller number of shares of
Common Stock or (iv) issue by reclassification of its Common Stock other
securities of the Company, the number of Warrant Shares purchasable upon
exercise of the Warrants immediately prior thereto shall be adjusted so
that the holder shall be entitled to receive the kind and number of
Common Stock or other securities of the Company which it would have
owned or would have been entitled to receive after the happening of any
of the events described above, had the Warrants been exercised
immediately prior to the happening of such event or any record date with
respect thereto. Any adjustment made pursuant to this Paragraph (a)
shall become effective immediately after the effective date of such
event retroactive to the record date, if any, for such event.
(b) In case the Company shall issue rights, options, warrants or
convertible securities to all or substantially all holders of its Common
Stock, without any consideration, entitling them to subscribe for or to
purchase shares of Common Stock at a price per share which is lower at
the record date mentioned below than the then Current Market Price (as
defined below), the number of Warrant Shares thereafter purchasable upon
the exercise of a Warrant shall be determined by multiplying the number
of Warrant Shares theretofore purchasable upon exercise of each Warrant
by a fraction, of which the numerator shall be (1) the number of shares
of Common Stock outstanding immediately prior to the issuance of such
rights, options or warrants plus (2) the number of additional shares of
Common Stock offered for subscription or purchase, and of which the
denominator shall be (x) the number of shares of Common Stock
outstanding immediately prior to the issuance of such rights, options or
warrants plus (y) the number of shares which the aggregate offering
price of the total number of shares offered would
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purchase at the Current Market Price. Such adjustment shall be made
whenever such rights, options or warrants are issued, and shall become
effective immediately and retroactively after the record date for the
determination of shareholders entitled to receive such rights, options
or warrants.
(c) In case the Company shall distribute to all or substantially
all holders of its shares of Common Stock evidences of its indebtedness
or assets (excluding cash dividends or distributions out of earnings) or
rights, options, warrants or convertible securities containing the right
to subscribe for or purchase shares of Common Stock (excluding those
referred to in paragraph (b) above), then, in each case, the number of
Warrant Shares thereafter purchasable upon the exercise of the Warrants
shall be determined by multiplying the number of Warrant Shares
theretofore purchasable upon exercise of the Warrants by a fraction, of
which the numerator shall be the then Current Market Price on the date
of such distribution, and of which the denominator shall be such Current
Market Price on such date minus the then fair value of the portion of
the assets or evidence of indebtedness so distributed or of such
subscription rights, options or warrants applicable to one share. Such
adjustment shall be made whenever any such distribution is made and
shall become effective on the date of distribution retroactive to the
record date for the determination of shareholders entitled to receive
such distribution.
(d) No adjustment in the number of Warrant Shares purchasable
hereunder shall be required unless such adjustment would require an
increase or decrease of at least one percent (1%) in the number of
Shares then purchasable upon the exercise of a Warrant; PROVIDED,
HOWEVER, that any adjustments which by reason of this Paragraph (d) are
not required to be made immediately shall be carried forward and taken
into account in any subsequent adjustment.
(e) Whenever the number of Warrant Shares purchasable upon the
exercise of a Warrant is adjusted as herein provided, the Exercise Price
payable upon exercise of a Warrant shall be adjusted by multiplying such
Exercise Price immediately prior to such adjustment by a fraction, of
which the numerator shall be the number of Warrant Shares purchasable
upon the exercise of a Warrant immediately prior to such adjustment, and
of which the denominator shall be the number of Shares so purchasable
immediately thereafter.
(f) The Exercise Price of the Series A Warrants shall be
automatically and permanently reduced by $.10 per share each if (i) the
Initial Registration Statement (as defined
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in the Registration Rights Agreement) has not become effective on or
prior to that date which is 270 days from the Final Closing Date, (ii)
the Commission shall have issued a stop order suspending the
effectiveness of the Initial Registration Statement and the number of
days stop orders have been in effect, together with the number of days a
notice under Section 4.1(d) of the Registration Rights Agreement has
been issued or required to be issued, exceeds 180 days, or (iii) (A) the
Company for the third time, notifies or is required to notify the
holders of the Warrants pursuant to Section 4.1(d) of the Registration
Rights Agreement, or (B) a notice under such Section 4.1(d) is effective
or required to be effective at a time when the aggregate number of days
for which all such notices issued or required to be issued pursuant to
such Section 4.1(d) have been, or were required to be, in effect,
exceeds 180 days (270 days from the Final Closing Date in the case of
clause (i), or the date the third notice is sent or required to be sent
or the date on which the 180-day limit is exceeded in the case of clause
(ii) or (iii), is each referred to herein as an "Event Date").
Additionally, the Exercise Price of each Series A Warrant then
outstanding shall be subject to further downward adjustment in the
amount of $.10 each on the same day of each month following the initial
Event Date (or, if there is no numerically corresponding day in any such
subsequent month, then on the last day of such applicable subsequent
month) until the Registration Statement becomes effective; PROVIDED,
HOWEVER, that such adjustments will, in each case, cease to accrue on
the date which (x) the Initial Registration Statement is declared
effective, with respect to the adjustments for failure to be declared
effective by that date which is 270 days from the Final Closing Date,
(y) the Initial Registration Statement is no longer subject to an order
suspending the effectiveness thereof, with respect to adjustments for
the failure to remain effective or (z) a notice issued, or required to
be issued, pursuant to Section 5.1(d) is no longer effective or required
to be effective, with respect to adjustments payable pursuant to clause
(iii) above. In no event shall the Series A Warrant exercise price be
adjusted below $1.50 solely due to this Section 9.1
(g) Whenever the number of Warrant Shares purchasable upon the
exercise of a Warrant or the Exercise Price is adjusted as herein
provided, the Company shall cause to be promptly mailed to the holder by
first class mail, postage prepaid, notice of such adjustment or
adjustments and a certificate of a firm of independent public
accountants selected by the Board of Directors of the Company (who may
be the regular accountants employed by the Company) setting forth the
number of Warrant Shares purchasable upon the
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exercise of a Warrant and the Exercise Price after such adjustment, a
brief statement of the facts requiring such adjustment and the
computation by which such adjustment was made.
(h) For the purpose of this Subsection 9.1, the term "Common
Stock" shall mean (i) the class of stock designated as the Common Stock
of the Company at the date of this Agreement or (ii) any other class of
stock resulting from successive changes or reclassifications of such
Common Stock. In the event that at any time, as a result of an
adjustment made pursuant to this Section 9, the holder shall become
entitled to purchase any securities of the Company other than shares of
Common Stock, thereafter the number of such other securities so
purchasable upon exercise of the Warrant and the Exercise Price of such
securities shall be subject to adjustment from time to time in a manner
and on terms as nearly equivalent as practicable to the provisions with
respect to the Warrant Shares contained in this Section 9.
(i) Upon the expiration of any rights, options, warrants or
conversion privileges which caused an adjustment under this Section 9.1,
if such shall not have been exercised, the number of Warrant Shares
purchasable upon exercise of the Warrants and the Exercise Price, to the
extent the Warrants have not then been exercised, shall, upon such
expiration, be readjusted and shall thereafter be such as they would
have been had they been originally adjusted (or had the original
adjustment not been required, as the case may be) on the basis of (A)
the fact that the only shares of Common Stock so issued were the shares
of Common Stock, if any, actually issued or sold upon the exercise of
such rights, options, warrants or conversion rights and (B) the fact
that such shares of Common Stock, if any, were issued or sold for the
consideration actually received by the Company upon such exercise plus
the consideration, if any, actually received by the Company for the
issuance, sale or grant of all such rights, options, warrants or
conversion rights whether or not exercised; PROVIDED, HOWEVER, that no
such readjustment shall have the effect of increasing the Exercise Price
by an amount in excess of the amount of the adjustment initially made in
respect of the issuance, sale or grant of such rights, options, warrants
or conversion privileges.
9.2 PRESERVATION OF PURCHASE RIGHTS UPON RECLASSIFICATION, CONSOLIDATION,
ETC. In case of any consolidation of the Company with or merger of the Company
into another corporation or in case of any sale or reconveyance to another
corporation of the property, assets or business of the Company as an entirety or
substantially as an entirety, the Company or such successor or
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purchasing corporation, as the case may be, shall provide that the holder
shall have the right thereafter upon payment of the Exercise Price in effect
immediately prior to such action to purchase upon exercise of the Warrant the
kind and amount of shares and other securities and property which he would
have owned or have been entitled to receive after the happening of such
consolidation, merger, sale or conveyance had the Warrant been exercised
immediately prior to such action. Such agreement shall provide for
adjustments, which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 9. The provisions of this
Subsection 9.2 shall similarly apply to successive consolidations, mergers,
sales or conveyances.
9.3 PAR VALUE OF COMMON STOCK. Before taking any action which would
cause an adjustment reducing the Exercise Price below the then par value of
the shares of Common Stock issuable upon exercise of the Warrant, the Company
will take any corporate action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue fully paid
and non-assessable shares of Common Stock at such adjusted Warrant Price.
9.4 STATEMENT ON WARRANT CERTIFICATES. Irrespective of any adjustments
in the Exercise Price or the number of securities purchasable upon the
exercise of the Warrant, the Warrant certificate or certificates theretofore
or thereafter issued may continue to express the same price and number of
securities as are stated in the similar Warrant certificates initially
issuable pursuant to this Agreement. However, the Company may at any time in
its sole discretion (which shall be conclusive) make any change in the form
of the Warrant certificate that it may deem appropriate and that does not
affect the substance thereof, and any Warrant certificate thereafter issued,
whether upon registration or transfer of, or in exchange or substitution for,
an outstanding Warrant certificate, may be in the form so changed.
9.5 PRIOR NOTICE TO WARRANT HOLDERS. In the event that at any time
prior to the expiration of the Warrant and prior to its exercise, any of the
following events shall occur:
1. any action which would require an adjustment pursuant to
Sections 9.1 or 9.2; or
2. a dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation, merger or sale of its property,
assets and business, as an entirety) shall be proposed;
then, in any such event, the Company shall cause at least twenty (20) days'
prior written notice to be mailed to each Warrant
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Holder at the address of such holder shown on the books of the Company. The
notice shall also specify the date on which the books of the Company shall
close or a record be taken for such stock dividend, distribution or
subscription rights, or the date on which such reclassification,
reorganization, consolidation, merger, sale, transfer, disposition,
liquidation, dissolution, winding up, or dividend, as the case may be, shall
take place, and the date of participation therein by the holders of shares of
Common Stock if any such date is to be fixed, and shall also set forth such
facts with respect thereto as shall be reasonably necessary to indicate the
effect of such action on the rights of the Warrant Holder.
9.6 DISPUTES. In the event that there is any dispute as to the
computation of the Exercise Price or the number of shares of Common Stock
required to be issued upon the exercise of the Warrants, the Company will
retain an independent and nationally recognized accounting firm to conduct an
audit of the computations pursuant to the terms hereof involved in such
dispute, including the financial statements or other information upon which
such computations were based. The determination of such nationally
recognized accounting firm shall, in the absence of manifest error, be
binding. If there shall be a dispute as to the selection of such nationally
recognized accounting firm, such firm shall be appointed by the American
Institute of Certified Public Accountants ("AICPA") if willing, otherwise the
American Arbitration Association ("AAA"). If the Exercise Price or number of
shares of Common Stock as determined by such accounting firm is one percent
or more higher or lower than the calculations thereof computed by the
Company, the expenses of such accounting firm and, if any, off AICPA and AAA,
shall be borne completely by the Company. In all other cases, they shall be
borne by the complaining Warrant Holders, as applicable.
9.5 CURRENT MARKET PRICE. For the purpose of this Section 9, the term
"Current Market Price" shall mean (i) if the Common Stock is traded in the
over-the-counter market or on the National Association of Securities Dealers,
Inc. Automated Quotations System ("NASDAQ"), the average per share closing
bid prices of the Common Stock on the 20 consecutive trading days immediately
preceding the date in question, as reported by NASDAQ or an equivalent
generally accepted reporting service, or (ii) if the Common Stock is traded
on a national securities exchange, the average for the 20 consecutive trading
days immediately preceding the date in question of the daily per share
closing prices of the Common Stock on the principal stock exchange on which
it is listed, as the case may be. The closing price referred to in clause
(ii) above shall be the last reported sales price or in case no such reported
sale takes place on such day, the average of the reported closing bid and
asked prices, in either case on the national securities exchange on which the
Common Stock is then listed.
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10. NOTICES.
All notices, demands, elections, opinions or requests (however
characterized or described) required or authorized hereunder shall be deemed
given sufficiently if in writing and sent by registered or certified mail,
return receipt requested and postage prepaid, or by confirmed telex,
telegram, facsimile transmission or cable to, in the case of the Company:
SeraCare, Inc.
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 0000
Xxx Xxxxxxx, XX. 90067
telecopier: (000) 000-0000
and if to the Warrant Holder at the address of such holder as set forth on
the books maintained by or on behalf of the Company.
11. BINDING AGREEMENT.
This Agreement shall be binding upon and inure to the benefit of the
Company and the Warrant Holders. Nothing in this Agreement is intended or shall
be construed to confer upon any other person any right, remedy or claim or to
impose on any other person any duty, liability or obligation.
12. FURTHER INSTRUMENTS.
The parties shall execute and deliver any and all such other
instruments and take any and all other actions as may be reasonably necessary
to carry out the intention of this Agreement.
13. SEVERABILITY.
If any provision of this Agreement shall be held, declared or
pronounced void, voidable, invalid, unenforceable, or inoperative for any
reason by any court of competent jurisdiction, government authority or
otherwise, such holding, declaration or pronouncement shall not affect
adversely any other provision of this Agreement, which shall otherwise remain
in full force and effect and be enforced in accordance with its terms, and
the effect of such holding, declaration or pronouncement shall be limited to
the territory or jurisdiction in which made.
14. AMENDMENTS/WAIVER.
(a) Except as otherwise provided herein, the provisions of this
Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given unless the
Company has obtained the written consent of Holders of at least a majority in
number of Warrant
13
Shares then outstanding affected by such amendment, modification, supplement,
waiver or departure. Such amendment, modification or supplement, waiver or
departure, if consented to in writing by such majority of holders, shall thereby
amend, modify or supplement, waive or act to consent to depart from, this
Agreement on behalf of all Holders of Series A Warrants.
(b) No delay or failure on the part of any party in the exercise of
any right or remedy arising from a breach of this Agreement shall operate as
a waiver of any subsequent right or remedy arising from a subsequent breach
of this Agreement.
15. RELEVANT MARKETS.
For the purposes of this Agreement, it is assumed that the Common
Stock is quoted on the National Association of Securities Dealers, Inc.
NASDAQ Small Cap market ("NASDAQ Small Cap"), however, in the event the
Common Stock is:
(a) listed on NASDAQ, NASDAQ Small Cap, a national securities exchange
or admitted to unlisted trading privileges on such exchange, the price of the
Common Stock to be determined during any applicable twenty (20) day trading
period shall be the last reported sale price of the Common Stock on such
exchange; or
(b) not quoted on the Bulletin Board listed or admitted to unlisted
trading privileges, the price of the Common Stock to be determined during any
applicable twenty (20) day trading period shall be the high closing bid as
reported on the "pink sheets" by the National Daily Quotation Bureau, Inc.
16. GENERAL PROVISIONS.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
AND GOVERNED BY, THE LAWS OR THE STATE OF CALIFORNIA. The headings of this
Agreement are for convenience and reference only and shall not limit or
otherwise affect the meaning hereof.
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date first set forth above.
SERACARE, INC
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Xxxxx X. Xxxxxxx
Executive Vice President
and Vice Financial Officer
[CORPORATE SEAL]
ATTEST: /s/ Xxxxx X. Xxxxxxx
---------------------------
Secretary
WARRANTHOLDERS:
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Title: Attorney-In-Fact
-----------------------------
15
EXHIBIT A
The securities represented hereby have not been registered under
the Securities Act of 1933, as amended, or any state securities laws and
neither the securities nor any interest therein may be offered, sold,
transferred, pledged or otherwise disposed of except pursuant to an
effective registration statement under such Act and such laws or an
exemption from registration under such Act and such laws which, in the
opinion of counsel for the holder, which counsel and opinion are
reasonably satisfactory to counsel for this corporation, is available.
SERIES A WARRANT CERTIFICATE
SERACARE, INC.
Warrant No. WA-1 No. of A Warrants: 2
This certifies that, for value received and subject to the terms and
conditions set forth herein, 3 or his registered assign (the "Warrant Holder")
is the registered holder of 2 Series A Warrants.
1. EXERCISE. The warrants evidenced hereby ("Series A Warrants"), as
they may be adjusted from time to time, may be exercised at a price of $2.75
per Warrant to acquire one (1) share of the common stock of SeraCare, Inc.
which is with par value of $0.001 (the "Common Stock" and the "Company,"
respectively). (The Common Stock acquirable upon exercise hereof is referred
to herein as "Warrant Stock.") If, at the time of any exercise of a Series A
Warrant, the Shares deliverable upon exercise of such Warrant shall not be
registered under the Securities Act, the Company may require, as a condition
of allowing such exercise, that the holder or transferee of such Warrant
furnish to the Company an opinion of counsel of recognized standing in
securities law to the effect that such exercise may be made without
registration under the Securities Act; provided that, the exercise of the
Warrant shall at all times be within the control of such holder or
transferee, as the case may be, and, if required by the Company, accompanied
by a written representation (i) that the shares being acquired by the
exercise of the Warrant are being purchased for investment and not for
distribution, (ii) acknowledging that such shares have not been registered
under the Securities Act of 1933, as amended (the "1933 Act"), and (iii)
agreeing that such shares may not be sold or transferred unless there is an
effective Registration Statement for them under the 1933 Act, or in the
opinion of counsel to the Company such sale or transfer is not in violation
A-1
of the 1933 Act. No fractional shares may be acquired upon exercise hereof.
2. TERM OF WARRANT. This Series A Warrant may be exercised at any
time and from time to time in whole or in part commencing immediately upon
issuance and terminating on the earlier of (i) the date three years after
effectiveness of the Initial Registration Statement (as defined in the
Warrant Agreement), provided, however, that (x) if the Common Stock
underlying the Warrants is not subject to an effective registration for an
aggregate of 600 days within three years after the final closing of the
Private Offering, then the remaining exercise period under this clause (i)
shall be tolled until the Common Stock underlying this Series A Warrant shall
have been subject to an effective registration for an aggregate of 600 days
and (y) in no event shall this Series A Warrant terminate under this clause
(i) unless a registration statement covering the Warrant Stock shall have
then been in effect for 45 days prior to such termination, and (ii) six years
from the date of issuance, unless extended by a majority vote of the Board of
Directors for such length of time as they, in their sole discretion, deem
reasonable and necessary.
3. ADJUSTMENT OF EXERCISE PRICE. The number of shares purchasable
upon exercise of this Series A Warrant is subject to adjustment in accordance
with the Series A Warrant Agreement.
4. REDEMPTION. These Warrants may be redeemed upon 30 days advance
notice upon conditions set forth in the Series A Warrant Agreement.
5. RESERVATION OF COMMON STOCK. The Company agrees that the number of
shares of Common Stock sufficient to provide for the exercise of the A
Warrants upon the basis set forth herein will at all times during the term of
this Series A Warrant be reserved for the exercise hereof.
6. MANNER OF EXERCISE. Exercise may be made of all or any part of the
A Warrants by surrendering this certificate, with the purchase form to be
provided by the Company, duly executed by the Warrant Holder or by the
Warrant Holder's duly authorized attorney, plus payment of the exercise price
therefor in cash at the office of the Company or its designated assign.
7. ISSUANCE OF COMMON STOCK UPON EXERCISE. The Company, at its own
expense, shall cause to be issued, within ten (10) days after exercise of
this Series A Warrant, a certificate or certificates in the name or names
requested by the Warrant Holder representing the number of shares of Common
Stock to which the Warrant Holder is entitled upon such exercise. All shares
of Common Stock or other securities delivered upon the exercise of
A-2
this Series A Warrant shall be validly issued, fully paid and non-assessable.
Irrespective of the date of issuance and delivery of any certificate
representing the shares of Common Stock upon the exercise of this Series A
Warrant, each person in whose name any such certificate is to be issued will
for all purposes be deemed to have become the holder of record of the Common
Stock acquired on the date on which a duly executed notice of exercise of
this A Warrant and payment for the number of shares exercised are received by
the Company.
8. REGISTRATION RIGHTS. The Company will use its best efforts to
register the Warrant Stock prior to that date which is 270 days after the Final
Closing of the Private Offering and the Company agrees to use its best efforts
to maintain an effective Registration Statement during the term of the A
Warrants, as more fully set forth in the Warrant Agreement and the Registration
Rights Agreement governing the issuance and registration of the A Warrants and
Warrant Stock.
9. NO RIGHT AS STOCKHOLDER. The Warrant Holder is not, by virtue of his
ownership of this Series A Warrant, entitled to any rights whatsoever as a
stockholder of the Company.
10. ASSIGNMENT. This Series A Warrant may not be assigned without
providing the Company an opinion satisfactory to its counsel that an
exemption from registration for the transfer exists.
11. STATE LEGENDS. Residents of Connecticut are advised of the
following:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER SECTION 36-485 OF
THE CONNECTICUT UNIFORM SECURITIES ACT, CHAPTER 662 OF THE
CONNECTICUT GENERAL STATUTES, AND ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND SALE AND CANNOT BE RESOLD UNLESS THEY ARE
REGISTERED IN CONNECTICUT OR EXEMPT PROM REGISTRATION IN
CONNECTICUT.
Residents of Pennsylvania are advised of the following:
THE INVESTOR AGREES NOT TO TRANSFER THESE SECURITIES FOR 12 MONTHS
PROM THE DATE OP PURCHASE. (THIS RESTRICTION MAY BE AUTOMATICALLY
WAIVED IN ACCORDANCE WITH SECTION 204.011 OP THE PENNSYLVANIA BLUE
SKY REGULATIONS.)
12. WARRANT AGREEMENT. The actual terms and conditions of this Series A
Warrant are contained in a Warrant Agreement entered into by and between the
Company and the Warrant holder,
A-3
the terms and conditions of which are incorporated herein by this reference
as if fully set forth herein and made a part hereof. To the extent of any
conflict herewith, the terms and conditions of the Warrant Agreement shall
apply.
IN WITNESS WHEREOF, the Company has caused this Warrant certificate to be
signed on its behalf by its President or Senior Vice President, his signature to
be attested to by its Secretary, and its corporate seal to be hereunto affixed
this ________ day of September, 1996.
[SEAL] SERACARE, INC.
on behalf of the Company
and as Warrant Agent
By:
--------------------------------
Attest:
----------------------------
Name:
-----------------------
Title:
----------------------
A-4
[LOGO]
October 4, 1996
TO THE PURCHASERS OF UNITS FROM SERACARE, INC.
Re: Subscription Agreement
----------------------
Ladies and Gentlemen:
Enclosed for your records is a corrected page 5 from the Subscription
Agreement in connection with your recent purchase of Units from SeraCare,
Inc. Section 7 of the Subscription Agreement originally provided that Xxxxx
Xxxxx and Xxxxx Xxxxxxx be appointed as your attorney-in-fact to execute the
Registration Rights Agreement, but inadvertently failed to provide for the
execution of the Series A Warrant Agreement included in the subscription
documents provided to you. Section 7 of the Subscription Agreement has been
revised to clarify that Xxxxx Xxxxx and Xxxxx Xxxxxxx may also execute the
Series A Warrant Agreement as attorney-in-fact on your behalf.
Please acknowledge your agreement to the foregoing by signing the
enclosed copy of this letter and returning it in the enclosed self-addressed
stamped envelope. If you have any questions, please feel free to call me at:
(000) 000-0000.
Very Truly Yours,
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Executive Vice President and
Chief Financial Officer
ACKNOWLEDGED AND AGREED TO:
-----------------------------------
(Signature)
-----------------------------------
(Print Name of Purchaser)
-----------------------------------
(Print Title, if applicable)
[LETTERHEAD]
