EXHIBIT 10.26
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
UNDER ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT, OR
ANY SUCH APPLICABLE LAW.
WARRANT TO PURCHASE 25,000 SHARES VOID AFTER MARCH 8, 2006
OF INFORMAX, INC. COMMON STOCK
NO. W -[3]
THIS CERTIFIES THAT, for value received, ____________________, ETP/FBR
Genomic Fund I, LLP, or its permitted assigns (the "Holder") is entitled, on the
terms and subject to the conditions set forth in this Warrant Certificate below,
to purchase from InforMax, Inc., a Delaware corporation (the "Company"), up to
Twenty Five Thousand (25,000) shares (the "Warrant Shares") of the Company's
Common Stock, par value $.001 per share (the "Common Stock"), upon surrender
hereof and simultaneous payment therefor at the Exercise Price as defined in
Section 1 below. The number, character and Exercise Price of such shares of
Common Stock are subject to adjustment as provided in this Warrant Certificate
below.
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1. TERM OF WARRANT; EXERCISE PRICE. The purchase right(s) represented by
this Warrant Certificate (the "Warrant" or "Warrants") shall be exercisable, in
whole or in part, at any time during the term commencing on the date of
execution below and ending at 5:00 p.m., EST, on March 8, 2006 ("Termination
Date"). The exercise price at which this Warrant may be exercised shall be $8.00
per share of Common Stock, as adjusted from time to time pursuant to Section 9
hereof (the "Exercise Price").
2. EXERCISE OF WARRANT.
2.1 Exercise of Warrant. The Warrant is exercisable by the Holder in
whole or in part, at any time and from time to time, during the term hereof by
the surrender of this Warrant Certificate, together with the duly completed
Exercise Form attached hereto as Annex 1, to the Company at the principal office
of the Company, and the payment in cash or by wire transfer or check acceptable
to the Company of the amount obtained by multiplying the number of Warrant
Shares for which this Warrant is exercised by the Exercise Price then in effect.
Upon the Company's receipt of this Warrant Certificate, the duly completed and
executed Exercise Form and the requisite payment, the Company shall issue and
deliver (or cause to be delivered) stock certificates representing the aggregate
number of shares of Common Stock being purchased by Holder. In the event that
this Warrant is exercised for less than all of the Warrant Stock underlying the
Warrant, the Company shall issue and deliver (or cause to be delivered) a new
Warrant Certificate or Certificates at the same time such stock certificates are
delivered. That new Warrant Certificate or Certificates shall entitle the
persons in whose names they are registered to exercise in the aggregate the
number of Warrants not exercised in that partial exercise and shall otherwise
have the same terms and provisions as this Warrant Certificate. In the event
that the Holder of this Warrant Certificate desires that any or all of the stock
certificates to be issued upon the exercise of any Warrants evidenced hereby be
registered in a name or names other than that of such Holder, such Holder must
so request in writing at the time of exercise.
2.2 Timing; Surrender of Warrant. The Warrant represented hereby
shall be deemed to have been exercised immediately prior to the close of
business on the date of Holder's surrender of the Warrant Certificate for
exercise as provided above, and the person entitled to receive the Warrant
Shares issuable upon such exercise shall be treated for all purposes as the
holder of record of such shares as of the close of business on such date. The
Company, at its expense, shall promptly (but in any event within 10 business
days) issue and deliver to the person or persons entitled to receive the same a
certificate or certificates for the number of Warrant Shares issuable upon such
exercise. Whether in connection with the exercise, transfer, split-up,
combination, exchange or replacement of this Warrant (as discussed below),
surrender of this Warrant Certificate shall be made to the Company during normal
business hours on a business day (unless the Company otherwise permits) at the
principal office of the Company located at InforMax, Inc., 0000 Xxxxxxxxx
Xxxxxx, 00xx Xxxxx, Xxxxxxxx, XX 00000 or to such other office or to any duly
authorized representative of the Company as from time to time may be designated
by the Company by written notice given to the Holder of the Warrants.
2.3 Split-Up, Combination and Exchange of Warrant. Subject to
compliance with all applicable laws and the provisions of this Warrant
Certificate, including, but not limited to Section 5 hereof, at any time prior
to the Termination Date, any Warrant may be split up, combined or exchanged for
another Warrant or Warrants, entitling the Holder or Holders thereof to exercise
the same number of Warrants as surrendered to the Company by the Holder thereof
then entitled such Holder to exercise. Any Holder desiring to split up, combine
or exchange any Warrant or Warrants shall make such request in writing delivered
to the Company, and shall surrender the Warrant or Warrants to be split up,
combined or exchanged, at the principal office of the Company. Thereupon the
Company shall deliver to the person or persons entitled thereto a Warrant or
Warrants, as the case may be, as so requested.
3. REPLACEMENT OF WARRANT. On receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this Warrant
Certificate and, in the case of loss, theft or destruction, on delivery of an
indemnity agreement reasonably satisfactory in form and substance to the Company
or, in the case of mutilation, on surrender and cancellation of this Warrant
Certificate, the Company at its expense shall execute and deliver, in lieu of
this Warrant Certificate, a new warrant of like tenor and amount.
4. NO RIGHTS AS STOCKHOLDER. The Holder shall not be entitled to vote or
receive dividends pursuant to this Warrant or be deemed the holder of Common
Stock or any other securities of the Company pursuant to this Warrant, nor shall
anything contained herein be construed to confer upon the Holder, as such, any
of the rights of a
stockholder of the Company until this Warrant is exercised as set forth in
Section 2 hereof.
5. TRANSFER OF WARRANT.
5.1 Transferability. This Warrant and all rights under this Warrant
Certificate may be transferred or assigned in whole or in part by Holder without
prior written consent of the Company if the Holder shall transfer this Warrant
to any affiliate of the Holder and complete and transmit to the Company an
Assignment Form in the form attached hereto as Annex 2. This Warrant and all
rights under this Warrant Certificate may otherwise be assigned or transferred
in whole in party by Holder with the prior written consent of the Company and
upon surrender of this Warrant Certificate, with an Assignment Form in the form
attached hereto as Annex 2, duly executed and endorsed to the Company.
5.2 Compliance with Securities Laws. The Holder of this Warrant will
comply with the applicable requirements of the Act or any state securities laws
in connection herewith. Upon exercise of this Warrant, the Holder will, if
requested by the Company, confirm in writing that the Holder will comply with
the applicable requirements of the Act or any state securities laws in
connection herewith. This Warrant, the Warrant Shares and all shares of Common
Stock issued upon exercise hereof (unless registered under the Act) shall be
stamped or imprinted with a legend in substantially the following form:
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
UNDER ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR THE DELIVERY OF AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER
SUCH ACT, OR ANY SUCH LAW.
6. RESERVATION OF STOCK; STOCK FULLY PAID. The Company shall at all times
during the term that this Warrant is exercisable, reserve and keep available for
issuance from its authorized shares of Common Stock a sufficient number of
shares to provide for the issuance of Warrant Shares to be issued upon the
exercise in whole or part of this Warrant and, from time to time. The Company
further covenants that all Warrant Shares that may be issued, upon exercise of
Warrants represented by this Warrant Certificate and payment of the Exercise
Price, all as set forth herein, will be duly authorized, validly issued, fully
paid and nonassessable, and free from all taxes, liens and charges in respect of
the issue thereof (other than taxes in respect of any transfer occurring
contemporaneously). The Company agrees that its issuance of this Warrant shall
constitute full authority to its officers who are charged with the duty of
executing stock certificates to execute and issue the necessary certificates for
shares of Common Stock upon the exercise of this Warrant.
7. NOTICES. All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by registered or certified
mail, postage prepaid, sent by facsimile, or otherwise delivered by hand or by a
nationally recognized overnight courier as follows: if to Holder:
_________________________________, Attn: _____________________________, with a
copy to ______________________________________. If to the Company: At the
address set forth on the signature page to this Warrant Certificate.
8. AMENDMENTS. This Warrant Certificate and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. No waivers of, or exceptions to, any term, condition or provision of
this Warrant Certificate, in any one or more instances, shall be deemed to be,
or construed as, a further or continuing waiver of any such term, condition or
provision unless the parties to this Warrant Certificate agree in writing
thereto.
9. ADJUSTMENTS.
9.1 Adjustment for Stock Splits and Combinations. If the Company, at
any time or from time to time, during the term of this Warrant, effects a
subdivision of the outstanding Common Stock, the Exercise Price in effect
immediately before that subdivision shall be proportionately decreased. If the
Company, at any time or from time to time, during the term of this Warrant,
combines the outstanding shares of Common Stock, the Exercise Price in effect
immediately before the combination shall be proportionately increased. Any
adjustment in accordance with this provision shall become effective at the close
of business on the date that the related subdivision or combination becomes
effective.
9.2 Adjustments for Reorganization, Reclassification or
Substitution. If the shares of Common Stock issuable upon exercise of the
Warrants are changed into the same or a different number of shares of any class
or classes of stock of the Company or other securities or property of the
Company, whether by capital reorganization, reclassification or otherwise, then,
from and after each such event, each Holder of a Warrant shall have the right to
exercise such Warrant for the amount and kind of shares of stock and other
securities and property receivable upon such reorganization, reclassification or
other change by a holder of the number of shares of Common Stock for which such
Warrant would have been exercisable immediately prior to such reorganization,
reclassification or change.
9.3. Adjustment for Merger, Consolidation, etc. In case of any
merger, consolidation or share exchange of the Company with or into another
person, a sale of all or substantially all of the assets of the Company to
another person or any other transaction involving the Company and another person
having a similar effect (other than a subdivision or combination of shares or
reorganization, reclassification or other transaction provided for above or a
stock dividend provided for below), then, from and after each such event, each
Holder of a Warrant shall have the right to exercise such Warrant for the amount
and kind of shares of stock and other securities and property receivable upon
such merger, consolidation, share exchange, sale or other transaction by a
holder of the number of shares of Common Stock for which such Warrant would have
been exercisable immediately prior to such merger, consolidation, share
exchange, sale or other transaction.
9.4 Adjustment for Certain Dividends and Distributions. If the
Company, at any time or from time to time, during the term of this Warrant makes
or issues, or fixes a record date for the determination of holders of shares of
Common Stock entitled to receive shares of Common Stock as a dividend or other
distribution, then, and in each such event, the Exercise Price in effect from
and after the time of such issuance or, in the event such a record date has been
fixed, the close of business on such
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record date shall be equal to the product of the Exercise Price in effect
immediately prior to such time multiplied by a fraction:
(i) the numerator of which shall be the total number of
shares of Common Stock issued and outstanding or issuable upon exercise of any
Options or upon conversion or exchange of any Convertible Securities issued and
outstanding immediately prior to the time of such issuance or the close of
business on such record date; and
(ii) the denominator of which shall be the total number of
shares of Common Stock issued and outstanding or issuable upon exercise of any
Options or upon conversion or exchange of any Convertible Securities issued and
outstanding immediately prior to the time of such issuance or the close of
business on such record date, plus the number of shares of Common Stock issued
or issuable in payment of such dividend or distribution; provided, however, that
if such a record date has been fixed and such dividend is not fully paid or such
distribution is not fully made on the date set therefore, then the Exercise
Price then in effect shall be appropriately recalculated as of the close of
business on such record date.
9.5 Adjustments for Other Dividends and Distributions. If the
Company, at any time or from time to time, during the term of this Warrant makes
or issues, or fixes a record date for the determination of holders of shares of
Common Stock entitled to receive securities of the Company or any subsidiary of
the Company other than shares of Common Stock in the form of a dividend or other
distribution, then, and in each such event, appropriate provision shall be made
so that each Holder of a Warrant exercised after such issuance or such record
date, as the case may be, shall receive, in addition to the shares of Common
Stock otherwise receivable upon such exercise, the amount of such securities, if
any, that would have been received by such Holder had such Warrant been
exercised immediately prior to such issuance or the close of business on such
record date and the securities received upon such exercise been retained from
the date of such issuance or such record date to and including the actual
exercise date of such Warrant.
9.6 Adjustment in Number of Warrants. When any adjustment is
required to be made in the Exercise Price pursuant to Section 9, then the number
of outstanding Warrants shall be simultaneously adjusted to equal the number
determined by dividing (i) the product of the number of Warrants outstanding
immediately prior to such adjustment multiplied by the Exercise Price in effect
immediately prior to such adjustment, by (ii) the Exercise Price in effect
immediately after such adjustment.
9.7 Certificate as to Adjustment. In each case of an adjustment or
readjustment of the Exercise Price pursuant to this Section 9, the Company, at
its expense, shall promptly compute such adjustment or readjustment in
accordance with the provisions hereof and prepare a certificate showing such
adjustment or readjustment, and shall mail such certificate, by first class
mail, postage prepaid, to each registered Holder of a Warrant a certificate
setting forth such adjustment and the related adjustment in the number of
outstanding Warrants. The Company shall, upon the written request at any time of
any Holder of a Warrant, furnish or cause to be furnished to such Holder a
certificate setting forth (i) the Exercise Price then in effect, and (ii) the
number of shares of Common Stock and the amount, if any, of other securities
that would then be receivable upon exercise of a Warrant.
9.8 No Change Necessary. The form of this Warrant need not be
changed because of any adjustment in the amount of Warrant Shares issuable upon
its exercise. A Warrant issued after any adjustment upon any partial exercise or
in replacement may continue to express the same amount of Warrant Shares
(appropriately reduced in the case of partial exercise) as are stated on the
face of this Warrant as initially issued, and that number of shares shall be
considered to have been so changed as of the close of business on the date of
adjustment.
10. FRACTIONAL SHARES.
(a) The Company shall not be required to issue fractional
shares of Common Stock upon the exercise of any Warrants or to distribute
certificates that evidence fractional shares of Common Stock. In lieu of issuing
a fractional share of Common Stock, the Company shall pay to the Holder of any
Warrants at the time such Warrants are exercised an amount in cash equal to the
same fraction of the difference between the exercise price and the "current
market value" of one share of Common Stock on the date that such Warrants are
exercised. For purposes hereof, the "current market value" of a share of Common
Stock (or any other security) shall be the closing price per share of Common
Stock (or the standard unit for such other security) on the date of
determination. Such closing price shall be:
(i) the last sale price, regular way, or, in case no such
sale takes place, the average of the closing bid and asked prices on the date of
determination, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the New York Stock Exchange; or
(ii) if the Common Stock (or such other class or series of
securities) is not listed or admitted to trading on the New York Stock Exchange,
the last sale price, regular way, or, in case no such sale takes place, the
average of the closing bid and asked prices on such day, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the principal national securities
exchange on which the Common Stock (or such other class or series of securities)
is listed or admitted to trading; or
(iii) if the Common Stock (or such other class or series of
securities) is not listed or admitted to trading on any national securities
exchange, the last quoted sale price or, if not so quoted, the average of the
high bid and low asked prices on such day in the over-the-counter market, as
reported by the National Association of Securities Dealers, Inc. Automated
Quotations System or such other system then in use by such organization; or
(iv) if the Common Stock (or such other class or series of
securities) is not listed or admitted to trading on any national securities
exchange and prices therefor are not reported by such organization, the average
of the closing bid and asked prices as furnished by a professional market maker
making a market in the Common Stock (or such other class or series of
securities) selected by the Board; or
(v) if the Common Stock (or such other class or series of
securities) is not so listed or admitted to trading and prices therefor are not
so reported or quoted, the fair market value per share (or other appropriate
unit) as determined in good faith by the Board, whose determination shall be
conclusive and binding on all Holders of Warrants.
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11. HOLDER'S REPRESENTATIONS AND WARRANTIES.
(a) Holder understands that the Warrant Shares have not been
registered under the Securities Act of 1933, as amended, or under applicable
state securities laws, in reliance upon exemptions contained in the Securities
Act and Blue Sky Laws and any applicable regulations promulgated thereunder or
interpretations thereof, and cannot be offered for sale, sold or otherwise
transferred unless the Warrant Shares subsequently are so registered or qualify
for exemption from registration under the Securities Act and Blue Sky Laws, and
that the certificates representing the Warrant Shares shall bear a legend noting
such restrictions.
(b) Holder is an "accredited investor" as defined in Rule
501 under the Securities Act, and is acquiring the Warrant and underlying
Warrant Shares in good faith solely for its own account, for investment, and not
with a view toward resale or other distribution within the meaning of the
Securities Act, and the Warrant Shares will not be offered for sale, sold or
otherwise transferred without either registration or exemption from registration
under the Securities Act.
(c) Holder has such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and risks of
its investment in the Warrant and underlying Warrant Shares, and Holder
understands and is able to bear any economic risks associated with such
investment (including the inherent risk of losing all or part of its investment
in the Warrant Shares issuable upon exercise of this Warrant). Holder is
personally and directly familiar with the business that is conducted and is
intended to be conducted by the Company, including financial matters related to
such business, has been given the opportunity to ask questions of, and receive
answers from, the directors and principal officers of the Company concerning the
business and financial affairs of the Company, and the terms and conditions of
its purchase of the Warrant and Warrant Shares, and has had further opportunity
to obtain any additional information desired (including information necessary to
verify the accuracy of the foregoing).
12. TAXES. The Company shall pay when due and payable any and all federal
and state transfer taxes and charges (other than any applicable income taxes)
that may be payable in respect of the issuance or delivery of Warrant
Certificates or of certificates for shares of Common Stock receivable upon the
exercise of any Warrants; provided, however, that the Company shall not be
required to pay any tax that may be payable in respect of the issuance and
delivery of any Warrant Certificate or stock certificate registered in a name
other than that of the Holder of the Warrant Certificate that has been
surrendered.
13. GOVERNING LAW. THIS AGREEMENT AND ALL RELATED INSTRUMENTS AND AGREEMENTS
SHALL BE DEEMED TO BE CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN THE STATE
OF DELAWARE, AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF DELAWARE (WITHOUT GIVING EFFECT TO ANY PROVISIONS THEREOF
CONCERNING CHOICE OF LAW) AND THE UNITED STATES OF AMERICA. EACH OF THE INVESTOR
AND THE COMPANY HEREBY WAIVES ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY OF
ANY DISPUTE (WHETHER A CLAIM IN TORT, CONTRACT, EQUITY OR OTHERWISE) ARISING
UNDER OR RELATING TO THIS AGREEMENT OR ANY RELATED MATTERS, AND ANY SUCH DISPUTE
SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
14. SUCCESSORS. All the covenants and provisions of this Warrant shall be
binding upon and inure to the benefit of the Company, the Holders and their
respective successors and assigns hereunder.
15. SEVERABILITY. If any provision of this Warrant shall be held to be
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provision of this Warrant.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its officers thereunto duly authorized.
Dated as of Xxxxx 0, 0000
XXXXXX: INFORMAX, INC.
By: By:
------------------------------ --------------------------------
Name: Name:
---------------------------- ------------------------------
Title: Title:
--------------------------- -----------------------------
Address: 0000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxx, XX 00000
Fax: 000-000-0000
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Annex 1
EXERCISE FORM
The undersigned Holder hereby irrevocably elects to exercise _______________
Warrants to purchase fully paid and nonassessable shares of the Common Stock,
par value $.001 per share, of InforMax, Inc. (the "Company") and/or such other
securities or property as are purchasable upon exercise of such Warrants, and
hereby tenders payment for such shares by enclosing cash and/or a certified or
cashier's check payable to the order of the Company in the aggregate amount of
$__________.
Instructions for registering the securities on the stock transfer books of the
Company:
Name of Holder:
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State of Organization (if applicable):
------------------------
Federal Tax Identification or
Social Security Number:
------------------------------------
Address:
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If this exercise of Warrants evidenced by the attached Warrant
Certificate is not an exercise in full thereof, then the undersigned Holder
hereby requests that a new Warrant Certificate of like tenor (exercisable for
the balance of the Warrants evidenced by the attached Warrant Certificate) be
issued in the name of and delivered to the undersigned Holder at the address on
the Warrant register of the Company.
Dated:
------------------------- -----------------------------------------
(Name of Holder - Please Print)
By:
-------------------------------------
(Signature of Holder or
of Duly Authorized Signatory)
Title:
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Annex 2
ASSIGNMENT FORM
For value received, the undersigned Holder hereby sells, assigns and
transfers to the person whose name and address are set forth below all of the
rights of the undersigned Holder with respect to __________ Warrants evidenced
by the attached Warrant Certificate.
Name of Transferee:
---------------------------------------------------
State of Organization (if applicable):
--------------------------------
Federal Tax Identification or
Social Security Number:
--------------------------------------------
Address:
---------------------------------------------------------
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If this transfer is not a transfer of all the Warrants evidenced by the
attached Warrant Certificate, then the undersigned Holder hereby requests that a
new Warrant Certificate of like tenor evidencing the Warrants not being
transferred pursuant hereto be issued in the name of and delivered to the
undersigned Holder at the address on the Warrant register of __________________.
The undersigned Holder hereby irrevocably constitutes and appoints
________________________________ as his/her/its attorney to register the
foregoing transfer on the books of _______________ maintained for that purpose,
with full power of substitution in the premises.
Dated:
------------------------- -----------------------------------------
(Name of Holder - Please Print)
By:
-------------------------------------
(Signature of Holder or
of Duly Authorized Signatory)
Title:
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