EXHIBIT 99.5
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR UNDER ANY STATE SECURITIES LAWS, IN RELIANCE UPON
EXEMPTIONS FROM REGISTRATION FOR NON-PUBLIC OFFERINGS. THIS SECURITY MAY NOT BE
SOLD OR TRANSFERRED UNLESS IT IS REGISTERED UNDER THE ACT AND UNDER APPLICABLE
STATE SECURITIES LAWS OR UNLESS THE ISSUER RECEIVES AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO IT THAT AN EXEMPTION FROM REGISTRATION IS AVAILABLE
(UNLESS WAIVED).
VOID AFTER 5:00 P.M. EASTERN TIME ON NOVEMBER 27, 2007 ("EXPIRATION DATE").
TRINITY BIOTECH PLC
WARRANT
WARRANT ("WARRANT") TO PURCHASE
CLASS "A" ORDINARY SHARES OF TRINITY BIOTECH PLC,
NOMINAL VALUE IR(pound)0.01 PER SHARE ("COMMON STOCK")
This is to certify that, FOR VALUE RECEIVED, The Tail Wind Fund Ltd.
("Warrantholder"), is entitled to purchase, subject to the provisions of this
Warrant, from TRINITY BIOTECH PLC, a corporation organized under the laws of the
Republic of Ireland ("Company"), at any time after the issuance hereof, but not
later than 5:00 P.M., Eastern (New York) time, on the fifth (5th) anniversary of
such issuance date ("Expiration Date"), 40,000 Class "A" Ordinary Shares,
nominal value IR(pound)0.01 per share, of the Company represented by American
Depository Receipts ("Warrant Shares"), at an exercise price per share equal to
US$1.50, provided that if the Security Event (as defined in the Notes) does not
occur prior to the Security Deadline (as defined in the Notes) for any reason
whatsoever, then the exercise price hereunder shall be automatically and
permanently reduced to equal $1.25 (subject to adjustment) (the exercise price
in effect from time to time hereafter being herein called the "Warrant Price").
The number of Warrant Shares purchasable upon exercise of this Warrant and the
Warrant Price shall be subject to adjustment from time to time as described
herein.
This Warrant has been issued pursuant to the terms of the Purchase
Agreement ("Purchase Agreement") dated on or about the date hereof between the
Company and the Warrantholder. Capitalized terms used herein and not defined
shall have the meaning specified in the Purchase Agreement.
SECTION 1. Registration. The Company shall maintain books for the transfer
and registration of the Warrant. Upon the initial issuance of the Warrant, the
Company shall issue and register the Warrant in the name of the Warrantholder.
The Company shall for all purposes hereunder treat the person or entity in whose
name this Warrant is registered on the books of the Company as the owner of this
Warrant (absent manifest error).
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SECTION 2. Transfers. As provided herein, this Warrant may be transferred
only pursuant to a registration statement filed under the Securities Act of
1933, as amended ("Securities Act") or an exemption from registration
thereunder. Subject to such restrictions, the Company shall transfer this
Warrant from time to time, upon the books to be maintained by the Company for
that purpose, upon surrender thereof for transfer properly endorsed or
accompanied by appropriate instructions for transfer upon any such transfer, and
a new Warrant shall be issued to the transferee and the surrendered Warrant
shall be canceled by the Company.
SECTION 3.
(a) Exercise of Warrant. Subject to the provisions hereof, the
Warrantholder may exercise this Warrant in whole or in part, at any time and
from time to time after the issuance hereof, upon delivery of the duly executed
Warrant exercise form attached hereto (the "Exercise Agreement") to the Company
during normal business hours on any business day at the Company's principal
executive offices (or such other office or agency of the Company as it may
designate by notice to the holder hereof), and upon (i) payment to the Company
in cash, by certified or official bank check or by wire transfer for the account
of the Company of the Warrant Price for the Warrant Shares specified in the
Exercise Agreement or (ii) delivery to the Company of a written notice of an
election to effect a "Cashless Exercise" (as defined below) for the Warrant
Shares specified in the Exercise Agreement. The Warrant Shares so purchased
shall be deemed to be issued to the holder hereof or such holder's designee, as
the record owner of such shares, as of the close of business on the date on
which this Warrant (or evidence of loss, theft or destruction thereof) shall
have been surrendered (subject to book entry transfer) and the completed
Exercise Agreement shall have been delivered. Certificates for the Warrant
Shares so purchased, representing ADRs for the aggregate number of shares
specified in the Exercise Agreement, shall be delivered to the holder hereof
within a reasonable time, not exceeding three (3) business days, after this
Warrant shall have been so exercised. The certificates so delivered shall be in
such denominations as may be requested by the holder hereof and shall be
registered in the name of such holder or such other name as shall be designated
by such holder. If this Warrant shall have been exercised only in part, then,
unless this Warrant has expired, the Company shall, at its expense, at the time
of delivery of such certificates, deliver to the holder a new Warrant
representing the number of shares with respect to which this Warrant shall not
then have been exercised (subject to book entry transfer set forth below).
(b) Cashless Exercise. To effect a Cashless Exercise, the holder shall
submit to the Company with the Exercise Agreement, written notice of the
holder's intention to do so, including a calculation of the number of Warrant
Shares to be issued upon such exercise in accordance with the terms hereof. In
the event of a Cashless Exercise, in lieu of paying the Warrant Price in cash,
the holder shall surrender this Warrant for that number of Warrant Shares
determined by multiplying the number of Warrant Shares to which it would
otherwise be entitled by a fraction, the numerator of which shall be the
difference between the then current Fair Market Value per ADR and the Warrant
Price, and the denominator of which shall be the then current Fair Market Value
per ADR. For this purpose, the "Fair Market Value" per ADR shall be the average
closing sale price for an ADR as reported by the Principal Market for the ten
(10) trading days immediately preceding the date of the Exercise Agreement.
(Each ADR currently represents one share of Common Stock; appropriate and
equitable adjustment to the terms and provisions of this Warrant shall be made
in the event of any change to the ratio of ADRs to shares of Common Stock.
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(c) Book-Entry. Notwithstanding anything to the contrary set forth herein,
upon exercise or redemption of any portion of this Warrant in accordance with
the terms hereof, the Warrantholder shall not be required to physically
surrender this Warrant to the Company unless such holder is purchasing the full
amount of Warrant Shares represented by this Warrant. The Warrantholder and the
Company shall maintain records showing the number of Warrant Shares so purchased
or redeemed hereunder and the dates of such purchases or shall use such other
method, reasonably satisfactory to the Warrantholder and the Company, so as not
to require physical surrender of this Warrant upon each such exercise or
redemption. The Warrantholder and any assignee, by acceptance of this Warrant or
a new Warrant, acknowledge and agree that, by reason of the provisions of this
paragraph, following exercise of any portion of this Warrant, the number of
Warrant Shares which may be purchased upon exercise of this Warrant may be less
than the number of Warrant Shares set forth on the face hereof.
SECTION 4. Compliance with the Securities Act of 1933. Neither this Warrant
nor the Warrant Shares issued upon exercise hereof nor any other security issued
or issuable upon exercise of this Warrant may be offered or sold except as
provided in this agreement and in conformity with the Securities Act of 1933, as
amended, and then only against receipt of an agreement of such person to whom
such offer of sale is made to comply with the provisions of this Section 4 with
respect to any resale or other disposition of such security. The Company may
cause the legend set forth on the first page of this Warrant to be set forth on
each Warrant or similar legend on any security issued or issuable upon exercise
of this Warrant until the Warrant Shares have been registered for resale under
the Registration Rights Agreement or until Rule 144 is available, unless counsel
for the Company is of the opinion as to any such security that such legend is
unnecessary.
SECTION 5. Payment of Taxes. The Company will pay any documentary stamp
taxes attributable to the initial issuance of Warrant Shares issuable upon the
exercise of the Warrant; provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issuance or delivery of any certificates for Warrant Shares in a
name other than that of the registered holder of this Warrant in respect of
which such shares are issued, and in such case, the Company shall not be
required to issue or deliver any certificate for Warrant Shares or any Warrant
until the person requesting the same has paid to the Company the amount of such
tax or has established to the Company's satisfaction that such tax has been
paid. The holder shall be responsible for income taxes due under federal or
state law, if any such tax is due.
SECTION 6. Mutilated or Missing Warrants. In case this Warrant shall be
mutilated, lost, stolen, or destroyed, the Company shall issue in exchange and
substitution of and upon cancellation of the mutilated Warrant, or in lieu of
and substitution for the Warrant lost, stolen or destroyed, a new Warrant of
like tenor and for the purchase of a like number of Warrant Shares, but only
upon receipt of evidence reasonably satisfactory to the Company of such loss,
theft or destruction of the Warrant, and with respect to a lost, stolen or
destroyed Warrant, reasonable indemnity or bond with respect thereto, if
requested by the Company.
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SECTION 7. Reservation of Common Stock. The Company hereby represents and
warrants that there have been reserved, and the Company shall at all applicable
times keep reserved, out of the authorized and unissued Common Stock, a number
of shares sufficient to provide for the exercise of the rights of purchase
represented by the Warrant, and the transfer agent for the Common Stock or ADRs
("Transfer Agent"), and every subsequent transfer agent for the Common Stock or
other shares of the Company's capital stock, represented by ADRs, issuable upon
the exercise of any of the right of purchase aforesaid, shall be irrevocably
authorized and directed at all times to reserve such number of authorized and
unissued shares of Common Stock as shall be requisite for such purpose. The
Company agrees that all Warrant Shares issued upon exercise of the Warrant shall
be, at the time of delivery of the certificates for such Warrant Shares, duly
authorized, validly issued, fully paid and non-assessable shares of Common Stock
and ADRs. The Company will keep a conformed copy of this Warrant on file with
the Transfer Agent and with every subsequent transfer agent for the Common Stock
or other shares of the Company's capital stock, represented by ADRs, issuable
upon the exercise of the rights of purchase represented by the Warrant. The
Company will supply from time to time the Transfer Agent with duly executed
stock certificates required to honor the outstanding Warrant.
SECTION 8. Warrant Price. The Warrant Price, subject to adjustment as
provided in Section 9, shall, if payment is made in cash or by certified check,
be payable in lawful money of the United States of America.
SECTION 9. Adjustments. Subject and pursuant to the provisions of this
Section 9, the Warrant Price and number of Warrant Shares subject to this
Warrant shall be subject to adjustment from time to time as set forth
hereinafter.
(a) If the Company shall at any time or from time to time while the Warrant
is outstanding, pay a dividend or make a distribution on its Common Stock in
shares of Common Stock (including ADRs), subdivide its outstanding shares of
Common Stock into a greater number of shares or combine its outstanding shares
into a smaller number of shares or issue by reclassification of its outstanding
shares of Common Stock any shares of its capital stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), then the number of Warrant Shares
purchasable upon exercise of the Warrant and the Warrant Price in effect
immediately prior to the date upon which such change shall become effective,
shall be adjusted by the Company so that the Warrantholder thereafter exercising
the Warrant shall be entitled to receive the number of shares of Common Stock or
other capital stock, represented by ADRs, which the Warrantholder would have
received if the Warrant had been exercised immediately prior to such event. Such
adjustment shall be made successively whenever any event listed above shall
occur.
(b) If any capital reorganization, reclassification of the capital stock of
the Company, consolidation or merger of the Company with another corporation, or
sale, transfer or other disposition of all or substantially all of the Company's
assets to another corporation shall be effected, then, as a condition of such
reorganization, reclassification, consolidation, merger, sale, transfer or other
disposition, lawful and adequate provision shall be made whereby each
Warrantholder shall thereafter have the right to purchase and receive upon the
basis and upon the terms and conditions herein specified and in lieu of the
Warrant Shares immediately theretofore issuable upon exercise of the Warrant,
such shares of stock, securities or assets as would have been issuable or
payable with respect to or in exchange for a number of Warrant Shares equal to
the number of Warrant Shares immediately theretofore issuable upon exercise of
the Warrant, had such reorganization, reclassification, consolidation, merger,
sale, transfer or other disposition not taken place, and in any such case
appropriate provision shall be made with respect to the rights and interests of
each Warrantholder to the end that the provisions hereof (including, without
limitations, provision for adjustment of the Warrant Price) shall thereafter be
applicable, as nearly equivalent as may be practicable in relation to any shares
of stock, securities or properties thereafter deliverable upon the exercise
hereof. The Company shall not effect any such consolidation, merger, sale,
transfer or other disposition unless prior to or simultaneously with the
consummation thereof the successor corporation (if other than the Company)
resulting from such consolidation or merger, or the corporation purchasing or
otherwise acquiring such assets or other appropriate corporation or entity shall
assume, by written instrument executed and delivered to the Company, the
obligation to deliver to the holder of the Warrant such shares of stock,
securities or assets as, in accordance with the foregoing provisions, such
holder may be entitled to purchase and the other obligations under this Warrant.
The provisions of this paragraph (b) shall similarly apply to successive
reorganizations, reclassifications, consolidations, mergers, sales, transfers or
other dispositions.
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(c) In case the Company shall fix a record date for the making of a
distribution to all holders of Common Stock (including any such distribution
made in connection with a consolidation or merger in which the Company is the
continuing corporation) of evidences of indebtedness or assets (other than cash
dividends or cash distributions payable out of consolidated earnings or earned
surplus or dividends or distributions referred to in Section 9(a)), or
subscription rights or warrants, the Warrant Price to be in effect after such
record date shall be determined by multiplying the Warrant Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be the total number of shares of Common Stock outstanding multiplied by
the Fair Market Value per share of Common Stock (as defined above), less the
fair market value (as determined by the Company's Board of Directors in good
faith) of said assets or evidences of indebtedness so distributed, or of such
subscription rights or warrants, and the denominator of which shall be the total
number of shares of Common Stock outstanding multiplied by such current Fair
Market Value per share of Common Stock. Such adjustment shall be made
successively whenever such a record date is fixed.
(d) In the event that the Company or any of its subsidiaries (A) issues or
sells any Common Stock or Convertible Securities (as defined in the Notes) or
(B) directly or indirectly effectively reduces the conversion, exercise or
exchange price for any Convertible Securities which are currently outstanding,
at or to an effective Per Share Selling Price (as defined in the Notes) which is
less than the greater of (I) the closing sale price per ADR on the Principal
Market on the Trading Day next preceding such issue or sale or, in the case of
issuances to holders of its Common Stock, the date fixed for the determination
of stockholders entitled to receive such warrants, rights, or options ("Fair
Market Price"), or (II) the Warrant Price, then in each such case the Warrant
Price in effect immediately prior to such issue or sale or record date, as
applicable, shall be automatically reduced effective concurrently with such
issue or sale to an amount determined by multiplying the Warrant Price then in
effect by a fraction, (x) the numerator of which shall be the sum of (1) the
number of shares of Common Stock outstanding immediately prior to such issue or
sale, plus (2) the number of shares of Common Stock which the aggregate
consideration received by the Company for such additional shares would purchase
at such Fair Market Price or Warrant Price, as the case may be, and (y) the
denominator of which shall be the number of shares of Common Stock of the
Company outstanding immediately after such issue or sale.
-5-
The foregoing provision of this subsection shall not apply to (1) issuances
or sales pursuant to the Company's duly adopted employee or director bona fide
options plans and/or compensation arrangements or to sales of Common Stock at a
Per Share Selling Price which is equal to or greater than $1.75 (as such figure
shall be appropriately and equitably adjusted for stock splits, stock dividends
and similar events), or (2) issuances in connection with an acquisition of or
strategic alliance with any entity engaged in a business which is related to or
complementary with the Company's business, provided that such transaction is not
a capital raising transaction. For the purposes of the foregoing adjustments, in
the case of the issuance of any Convertible Securities, the maximum number of
shares of Common Stock issuable upon exercise, exchange or conversion of such
Convertible Securities shall be deemed to be outstanding, provided that no
further adjustment shall be made upon the actual issuance of Common Stock upon
exercise, exchange or conversion of such Convertible Securities. For purposes of
this Section, if an event occurs that triggers more than one of the above
adjustment provisions, then only one adjustment shall be made and the
calculation method which yields the greatest downward adjustment in the Warrant
Price shall be used.
(e) An adjustment shall become effective immediately after the record date
in the case of each dividend or distribution and immediately after the effective
date of each other event which requires an adjustment.
(f) In the event that, as a result of an adjustment made pursuant to
Section 9, the holder of this Warrant shall become entitled to receive any
shares of capital stock of the Company other than shares of Common Stock
(represented by ADRs), the number of such other shares so receivable upon
exercise of this Warrant shall be subject thereafter 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 Warrant.
(g) In the event of any adjustment in the number of Warrant Shares issuable
hereunder upon exercise, the Warrant Price shall be inversely proportionately
increased or decreased, as the case may be, such that the aggregate purchase
price for Warrant Shares upon full exercise of this Warrant shall remain the
same. Similarly, in the event of any adjustment in the Warrant Price, the number
of Warrant Shares issuable hereunder upon exercise shall be inversely
proportionately increased or decreased, as the case may be, such that the
aggregate purchase price for Warrant Shares upon full exercise of this Warrant
shall remain the same.
SECTION 10. Fractional Interest. The Company shall not be required to issue
fractions of Warrant Shares upon the exercise of the Warrant. If any fraction of
a Warrant Share would, except for the provisions of this Section, be issuable
upon the exercise of the Warrant (or specified portions thereof), the Company
shall round such calculation to the nearest whole number and disregard the
fraction.
SECTION 11. Benefits. Nothing in this Warrant shall be construed to give
any person, firm or corporation (other than the Company and the Warrantholder)
any legal or equitable right, remedy or claim, it being agreed that this Warrant
shall be for the sole and exclusive benefit of the Company and the
Warrantholder.
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SECTION 12. Notices to Warrantholder. Upon the happening of any event
requiring an adjustment of the Warrant Price, the Company shall forthwith give
written notice thereof to the Warrantholder at the address appearing in the
records of the Company, stating the adjusted Warrant Price and the adjusted
number of Warrant Shares resulting from such event and setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. In the event of a dispute with respect to any such
calculation, the certificate of the Company's independent certified public
accountants shall be conclusive evidence of the correctness of any computation
made, absent manifest error. Failure to give such notice to the Warrantholder or
any defect therein shall not affect the legality or validity of the subject
adjustment. At the Warrantholder's request, the Company shall deliver to the
Warrantholder as of a requested date a notice specifying the Warrant Price and
the number of Warrant Shares into which this Warrant is exercisable as of such
date.
SECTION 13. Identity of Transfer Agent. The Transfer Agent for the Common
Stock is:
Bank of New York
000 Xxxxxxx Xxxxxx
00xx Xxxxx, 00xx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Forthwith upon the appointment of any subsequent transfer agent for the
Common Stock or other shares of the Company's capital stock issuable upon the
exercise of the rights of purchase represented by the Warrant, the Company will
fax to the Warrantholder a statement setting forth the name and address of such
transfer agent.
SECTION 14. Notices. Any notice pursuant hereto to be given or made by the
Warrantholder to or on the Company shall be sufficiently given or made
personally or if sent by an internationally recognized courier by next day or
two day delivery service, addressed as follows:
TRINITY BIOTECH PLC
Xxxx Business Park
Xxxx Co. Wicklow, Ireland
Fax: 000-000-0-000-0000
Attention: CEO
with a copy to:
Xxxxxx, Xxxxxxx & Xxxxxxx
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn: Xxxx Xxxxxxxxx, Esq.
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or such other address as the Company may specify in writing by notice to
the Warrantholder complying as to delivery with the terms of this Section 14.
Any notice pursuant hereto to be given or made by the Company to or on the
Warrantholder shall be sufficiently given or made if personally delivered or if
sent by an internationally recognized courier service by overnight or two-day
service, to the address set forth on the Warrantholder's signature page to the
Purchase Agreement or otherwise on the books of the Company or, as to each of
the Company and the Warrantholder, at such other address as shall be designated
by such party by written notice to the other party complying as to delivery with
the terms of this Section 14.
All such notices, requests, demands, directions and other communications
shall, when sent by courier, be effective two (2) days after delivery to such
courier as provided and addressed as aforesaid.
SECTION 15. Registration Rights. The initial holder of this Warrant is
entitled to the benefit of certain registration rights in respect of the Warrant
Shares as provided in the Registration Rights Agreement.
SECTION 16. Successors. All the covenants and provisions hereof by or for
the benefit of the Warrantholder shall bind and inure to the benefit of its
respective successors and assigns hereunder.
SECTION 17. Governing Law; Jurisdiction. This Warrant shall be deemed to be
a contract made under the laws of the State of New York, without giving effect
to its conflict of law principles, and for all purposes shall be construed in
accordance with the laws of said State. The Company hereby agrees that all
actions or proceedings arising directly or indirectly from or in connection with
this Warrant shall be litigated only in the Supreme Court of the State of New
York or the United States District Court for the Southern District of New York
located in New York County, New York. The Company hereby consents to the
jurisdiction and venue of the foregoing courts and consents that any process or
notice of motion or other application to either of said courts or a judge
thereof may be served inside or outside the State of New York or the Southern
District of New York by registered mail, return receipt requested, directed to
the party being served at its address set forth in this Warrant (and service so
made shall be deemed complete three (3) days after the same has been posted as
aforesaid) or by personal service or in such other manner as may be permissible
under the rules of said courts. The Company irrevocably waives, to the fullest
extent permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such suit, action, or proceeding brought in such a
court and any claim that suit, action, or proceeding has been brought in an
inconvenient forum. The Company hereby waives any right to a jury trial in
connection with any litigation pursuant to this Warrant.
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SECTION 18. 9.9% Limitations; Maximum Common Stock Issuance.
(a) Notwithstanding anything to the contrary contained herein, the number
of shares of Common Stock (directly or indirectly through ADRs) that may be
acquired by the holder upon exercise pursuant to the terms hereof shall not
exceed a number that, when added to the total number of shares of Common Stock
deemed beneficially owned by such holder (other than by virtue of the ownership
of securities or rights to acquire securities (including the Warrant Shares)
that have limitations on the holder's right to convert, exercise or purchase
similar to the limitation set forth herein), together with all shares of Common
Stock deemed beneficially owned (other than by virtue of the ownership of
securities or rights to acquire securities that have limitations on the right to
convert, exercise or purchase similar to the limitation set forth herein) by the
holder's "affiliates" (as defined in Rule 144 of the Securities Act)
("Aggregation Parties") that would be aggregated for purposes of determining
whether a group under Section 13(d) of the Securities Exchange Act of 1934, as
amended, exists, would exceed 9.9% of the total issued and outstanding shares of
the Common Stock (the "Restricted Ownership Percentage"). Each holder shall have
the right (x) at any time and from time to time to reduce its Restricted
Ownership Percentage immediately upon notice to the Company and (y) (subject to
waiver) at any time and from time to time, to increase its Restricted Ownership
Percentage immediately in the event of the announcement as pending or planned,
of a Change of Control Transaction (as defined in the Notes).
(b) Notwithstanding anything contained herein, in the event that the
Warrantholder has timely exercised this Warrant and the issuance of all or a
portion of the Warrant Shares to be issued pursuant to such exercise would cause
the Maximum Common Stock Issuance to be exceeded, then the Company shall not be
obligated to issue any such Warrant Shares to the extent such shares are in
excess of such Maximum Common Stock Issuance, and the applicable provisions
contained in of the Purchase Agreement shall govern.
SECTION 19. Replacement Warrants. The Company agrees that within ten (10)
business days after any request from time to time of the Warrantholder, it shall
deliver to such holder a new Warrant in substitution of this Warrant which is
identical in all respects except that the then Warrant Price shall be
appropriately specified in the Warrant, and the Warrant shall specify the fixed
number of Warrant Shares into which the Warrants are then exercisable. Such
changes are intended not as amendments to the Warrant but only as clarification
of the foregoing numbers for convenience purposes, and such changes shall not
affect any provisions concerning adjustments to the Warrant Price or number of
Warrant Shares contained herein.
SECTION 20. Absolute Obligation to Issue Warrant Shares. The Company's
obligations to issue and deliver Warrant Shares in accordance with the terms
hereof are absolute and unconditional, irrespective of any action or inaction by
the holder hereof to enforce the same, any waiver or consent with respect to any
provision hereof, the recovery of any judgment against any Person or any action
to enforce the same, or any setoff, counterclaim, recoupment, limitation or
termination, or any breach or alleged breach by the holder hereof or any other
Person of any obligation to the Company or any violation or alleged violation of
law by the holder or any other Person, and irrespective of any other
circumstance which might otherwise limit such obligation of the Company to the
holder hereof in connection with the issuance of Warrant Shares. The Company
will at no time close its shareholder books or records in any manner which
interferes with the timely exercise of this Warrant or otherwise take any action
to impair this Warrant.
SECTION 21. Assignment, Etc. The Warrantholder may assign or transfer this
Warrant to any transferee provided that the Warrantholder shall notify the
Company of any such assignment or transfer promptly. This Warrant shall be
binding upon the Company and its successors and shall inure to the benefit of
the Warrantholder and its successors and permitted assigns.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
as of November 27, 2002.
TRINITY BIOTECH PLC
By: /s/ Xxxxxxx Xxxxxx
------------------
Name: Xxxxxxx Xxxxxx
Title: CFO
Attest:
Sign: /s/ Xxxxx X'Xxxxxx
--------------------
Print Name: Xxxxx X'Xxxxxx
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TRINITY BIOTECH PLC
WARRANT EXERCISE FORM
TRINITY BIOTECH PLC
Bray Business Park
Xxxx Co. Wicklow, Ireland
Fax: ____________________
Attention: CEO
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant ("Warrant") for, and to purchase thereunder
payment by cash, wire transfer or certified check, or by cashless exercise,
_______________ shares of Common Stock* represented by ADRs ("Warrant Shares")
provided for therein, and requests that certificates for the Warrant Shares be
issued as follows:
-------------------------------
Name
-------------------------------
Address
-------------------------------
-------------------------------
and, if the number of Warrant Shares shall not be all the Warrant Shares
purchasable upon exercise of the Warrant, that a new Warrant for the balance of
the Warrant Shares (subject to book-entry).
In lieu of delivering physical certificates representing the Warrant Shares
purchasable upon exercise of this Warrant, provided the Company's transfer agent
is participating in the Depository Trust Company ("DTC") Fast Automated
Securities Transfer ("FAST") program, upon request of the Holder, the Company
shall use its best efforts to cause its transfer agent to electronically
transmit the Warrant Shares issuable upon conversion or exercise to the
undersigned, by crediting the account of the undersigned's prime broker with DTC
through its Deposit Withdrawal Agent Commission ("DWAC") system.
Dated:_______________________ Signature:
--------------------------------
--------------------------------
Name (please print)
--------------------------------
Address
----------------
* NOTE: If exercise of the Warrant is made by surrender of the Warrant and the
number of shares indicated exceeds the maximum number of shares to which a
holder is entitled, the Company will issue such maximum number of shares
purchasable upon exercise of the Warrant registered in the name of the
undersigned Warrantholder or the undersigned's Assignee as below indicated
and deliver same to the address stated below.
