WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR UNDER
SUCH ACT OR AN APPLICABLE EXEMPTION FROM REGISTRATION THEREUNDER AND IN
COMPLIANCE WITH STATE SECURITIES LAWS.
VOID AFTER SEPTEMBER 9, 2001
CLONTECH LABORATORIES, INC.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
THIS CERTIFIES THAT, for value received, SUMMIT INVESTORS III, L.P., or its
assigns (the "Warrantholder"), are entitled to purchase up to Twenty-Five
Thousand, Seven Hundred and Eighty-Nine (25,789) shares (the "Shares") of the
fully paid and nonassessable Common Stock ("Common Stock") of CLONTECH
LABORATORIES, INC., a California corporation (the "Company"), at the Exercise
Price provided herein. The Exercise Price and the number of Shares purchasable
hereunder are subject to adjustment as provided herein. This Warrant is issued
pursuant to the Securities Purchase Agreement, dated as of the date of this
Warrant, by and between the Company and the Warrantholder.
III. TERM.
The purchase right represented by this Warrant is exercisable, in whole or
in part, at any time and from time to time during the term commencing on
September 9, 1997 (the "Effective Date") and ending on September 9, 2001 at 5:00
p.m., Pacific time (the "Expiration Date").
IV. ADJUSTMENT OF SHARES.
In addition to any other adjustment required pursuant to paragraph 7
hereof, at the end of each thirty (30) day period ending after the Effective
Date and on or prior to the Expiration Date, (a) the aggregate number of Shares
which may be purchased pursuant to this Warrant shall be decreased by one
forty-eighth (1/48) of 1.2% of the total number of shares of Common Stock
outstanding on a fully diluted basis, and (b) the Exercise Price per share shall
be adjusted to an amount equal to the quotient obtained by dividing $142,970 by
the aggregate number of Shares which may be purchased pursuant to this Warrant
immediately after giving effect to the adjustment described in clause (a).
V. METHOD OF EXERCISE; PAYMENT; ISSUANCE OF NEW WARRANT.
Subject to paragraph 1 hereof, the purchase right represented by this
Warrant may be exercised by the Warrantholder, in whole or in part, by the
surrender of this Warrant (with the notice of exercise form attached hereto as
Exhibit A duly executed) at the principal office of the Company and, subject to
paragraph 4 below, (i) by the payment to the Company, by certified or
1.
official bank check, payable to the order of the Company, (ii) by cancellation
by the Warrantholder of indebtedness of the Company to the Warrantholder, or
(iii) by a combination of (i) and (ii), of an amount equal to the Exercise Price
per share multiplied by the number of Shares then being purchased. In the event
of any exercise of the rights represented by this Warrant, certificates for the
Shares so purchased shall be delivered to the Warrantholder within ten (10)
business days of receipt of this Warrant and such notice, together with the
applicable exercise price, and, unless this Warrant has been fully exercised or
expires, a new Warrant representing the portion of the Shares, if any, with
respect to which this Warrant shall not then have been exercised shall also be
issued to the Warrantholder within such ten (10) business day period. Upon
receipt by the Company of this Warrant and such notice of exercise form,
together with the applicable exercise price, the Warrantholder shall be deemed
to be the holder of record of the Shares, notwithstanding that certificates
representing the Shares shall not then be actually delivered to such
Warrantholder or that such Shares are not then set forth on the stock transfer
books of the Company.
VI. NET EXERCISE.
In lieu of exercising this Warrant by payment of the exercise price in
cash, the Warrantholder may elect to receive Shares equal to the value of this
Warrant (or the portion thereof being cancelled) by surrender of this Warrant
(with the cashless exercise form attached hereto as Exhibit B duly executed) at
the principal office of the Company together with notice of such election, in
which event the Company shall issue to the Warrantholder hereof a number of
shares of the Company's Common Stock computed using the following formula:
Y (A - B)
X = ---------
A
Where
X is the number of shares of Common Stock to be issued
to the Warrantholder;
Y is the number of shares of Common Stock purchasable
under this Warrant;
A is the fair market value of one share of the
Company's Common Stock; and
B is the Exercise Price (as adjusted to the date of
such calculations).
For purposes of this paragraph 4, if the Shares are traded in a public
market, the fair market value of the Shares shall mean the average of the
closing bid and asked prices of the Shares quoted in the over-the-counter market
in which the Shares are traded or the closing price quoted on any exchange on
which the Shares are listed, whichever is applicable, as published in the
Western Edition of THE WALL STREET JOURNAL for the ten (10) trading days prior
to the date of determination of fair market value. If the Shares are not traded
in an over-the-counter market or on an exchange, the fair market value shall be
the price per share that the Company could obtain
2.
from a willing buyer for Shares sold by the Company from authorized but
unissued shares, as such price shall be determined in the good faith reasonable
judgment of the Company's Board of Directors (including the affirmative) vote of
the Designees, as such term is defined in the Shareholders Agreement of even
date herewith by and among Xxxxxxx Xxxx and certain Investors defined therein.
VII. STOCK FULLY PAID.
All Shares which may be issued upon the exercise of the rights represented
by this Warrant will, upon issuance, be validly issued, fully paid and
nonassessable. Issuance of certificates for Shares upon the exercise of this
Warrant shall be made without charge to the Warrantholder hereof for any issue
or transfer tax or other incidental expense in respect of the issuance of such
certificates, all of which taxes and expenses shall be paid by the Company, and
such certificates shall be issued in the name of the Warrantholder or in such
name or names as may be directed by the Warrantholder.
VIII. RESERVATION OF STOCK.
The Company covenants that during the term in which this Warrant is
exercisable, the Company will reserve from its authorized and unissued shares of
Common Stock a sufficient number of shares to provide for the issuance of all
shares of Common Stock issuable upon the exercise in full of this Warrant and,
from time to time, will take all steps necessary to amend its Articles of
Incorporation to provide sufficient reserves of shares of Common Stock issuable
upon exercise of the Warrant. 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.
IX. CERTAIN ADJUSTMENTS.
The number and kind of securities purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment from time to time
upon the occurrence of certain events, as follows:
A. ADJUSTMENT OF NUMBER OF SHARES. Upon each adjustment in the Exercise
Price pursuant to this paragraph 7, the number of Shares of Common Stock
purchasable hereunder shall be adjusted to the product (rounded to the nearest
whole share) obtained by multiplying the number of Shares purchasable
immediately prior to such adjustment in the Exercise Price by a fraction, the
numerator of which shall be the Exercise Price immediately prior to such
adjustment and the denominator of which shall be the Exercise Price immediately
thereafter.
B. RECLASSIFICATION OR MERGER. In case of any reclassification or change
of outstanding securities of the class issuable upon exercise of this Warrant
(other than a change in par value, or from par value to no par value, or from no
par value to par value, or as a result of a subdivision or combination), or in
case of any merger of the Company with or into another corporation (other than a
merger with another corporation in which the Company is a continuing corporation
and which does not result in any reclassification or change of outstanding
securities issuable upon exercise of this Warrant), or in case of any sale of
all or any substantial portion of
3.
the assets of the Company, the Company shall, as a condition precedent to such
transaction, execute a new Warrant or cause such successor or purchasing
corporation, as the case may be, to execute a new Warrant, providing the
Warrantholder upon such exercise the right to receive, in lieu of each Share
theretofore issuable upon exercise of this Warrant, the kind and amount of
shares of stock, other securities, money and property receivable upon such
reclassification, change or merger by a holder of one Share. Such new Warrant
shall provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this paragraph 7. The provisions
of this subparagraph 7(b) shall similarly apply to successive reclassifications,
changes, mergers and transfers.
C. SUBDIVISION OR COMBINATION OF SHARES. If the Company at any time
while this Warrant remains outstanding and unexpired shall subdivide or combine
its Stock, the Exercise Price shall proportionately be decreased in the case of
a subdivision or increased in the case of a combination.
D. STOCK DIVIDENDS. If the Company at any time while this Warrant is
outstanding and unexpired shall pay a dividend with respect to Common Stock
payable in Common Stock, or make any other distribution with respect to Common
Stock (except any distribution specifically provided for in subparagraph 7(b)
above) of Common Stock then in each such case the Exercise Price shall be
adjusted, from and after the date of determination of stockholders entitled to
receive such dividend or distribution, to that price determined by multiplying
the Exercise Price in effect immediately prior to such date of determination by
a fraction (i) the numerator of which shall be the total number of shares of
Common Stock outstanding immediately prior to such dividend or distribution, and
(ii) the denominator of which shall be the total number of shares of Common
Stock outstanding immediately after such dividend or distribution.
E. ADDITIONAL STOCK. If the Company shall issue, after September 9, 1997
(the "Purchase Date" with respect to such series), any Additional Stock (as
defined below) without consideration or for a consideration per share less than
the Exercise Price in effect immediately prior to the issuance of such
Additional Stock, the Exercise Price in effect immediately prior to each such
issuance shall forthwith (except as otherwise provided in this clause) be
adjusted to a price determined by multiplying such Exercise Price by a fraction,
the numerator of which shall be the sum of the number of shares of Common Stock
outstanding immediately prior to such issuance on a fully diluted basis after
giving effect to the conversion, exercise or exchange of any and all outstanding
warrants, options, preferred stock and any other securities of the Company
convertible into or exercisable or exchangeable for Common Stock of the Company
("Fully Diluted Basis"), plus the number of shares of Common Stock that the
aggregate consideration received by the Corporation for such issuance would
purchase at such Exercise Price, and the denominator of which shall be the
number of shares of Common Stock outstanding immediately prior to such issuance
on a Fully Diluted Basis plus the number of shares of such Additional Stock.
1. No adjustment of the Exercise Price for the Warrant shall be made
in an amount less than one cent ($0.01) per share, provided that any adjustments
which are not required to be made by reason of this sentence shall be carried
forward and shall be taken into account in any subsequent adjustment. Except to
the limited extent provided for in subsections 7(e)(iv)(C) and 7(e)(iv)(D), no
adjustment of such Exercise Price pursuant to this subparagraph
4.
7(e) shall have the effect of increasing the Exercise Price above the Exercise
Price in effect immediately prior to such adjustment.
2. In the case of the issuance of any Additional Stock for cash, the
consideration shall be deemed to be the amount of cash paid therefor before
deducting any reasonable discounts, commissions or other expenses allowed, paid
or incurred by the Company for any underwriting or otherwise in connection with
the issuance and sale thereof.
3. In the case of the issuance of any Additional Stock for a
consideration in whole or in part other than cash, the consideration other than
cash shall be deemed to be equal to the reasonable, good faith estimate of the
fair market value thereof as evidenced by the affirmative vote of a majority of
the Board of Directors (which majority must include the Series A Directors)
irrespective of any accounting treatment.
4. In the case of the issuance (whether before, on or after the
applicable Purchase Date) of options to purchase or rights to subscribe for
Common Stock, securities by their terms convertible into or exchangeable for
Common Stock or options to purchase or rights to subscribe for such convertible
or exchangeable securities, the following provisions shall apply for all
purposes of this paragraph 7(e) and paragraph 7(f):
a. The aggregate maximum number of shares of Common Stock
deliverable upon exercise (assuming the satisfaction of any conditions to
exercisability, including without limitation, the passage of time, but without
taking into account potential antidilution adjustments) of such options to
purchase or rights to subscribe for Common Stock shall be deemed to have been
issued at the time such options or rights were issued and for a consideration
equal to the consideration (determined in the manner provided in subsections
7(e)(ii) and 7(e)(iii), if any, received by the Company upon the issuance of
such options or rights plus the minimum exercise price provided in such options
or rights (without taking into account potential antidilution adjustments) for
the Common Stock covered thereby.
b. The aggregate maximum number of shares of Common Stock
deliverable upon conversion of or in exchange (assuming the satisfaction of any
conditions to convertibility or exchangeability, including, without limitation,
the passage of time, but without taking into account potential antidilution
adjustments) for any such convertible or exchangeable securities or upon the
exercise of options to purchase or rights to subscribe for such convertible or
exchangeable securities and subsequent conversion or exchange thereof shall be
deemed to have been issued at the time such securities were issued or such
options or rights were issued and for a consideration equal to the
consideration, if any, received by the Company for any such securities and
related options or rights (excluding any cash received on account of accrued
interest or accrued dividends), plus the minimum additional consideration, if
any, to be received by the Company (without taking into account potential
antidilution adjustments) upon the conversion or exchange of such securities or
the exercise of any related options or rights (the consideration in each case to
be determined in the manner provided in subsections 7(e)(ii) and 7(e)(iii).
c. In the event of any change in the number of shares of Common
Stock deliverable or in the consideration payable to the Company upon exercise
of such options
5.
or rights or upon conversion of or in exchange for such convertible or
exchangeable securities, including, but not limited to, a change resulting from
the antidilution provisions thereof, the Exercise Price of the Warrant, to the
extent in any way affected by or computed using such options, rights or
securities, shall be recomputed to reflect such change, but no further
adjustment shall be made for the actual issuance of Common Stock or any payment
of such consideration upon the exercise of any such options or rights or the
conversion or exchange of such securities.
d. Upon the expiration of any such options or rights, the
termination of any such rights to convert or exchange or the expiration of any
options or rights related to such convertible or exchangeable securities, the
Exercise Price of the Warrant, to the extent in any way affected by or computed
using such options, rights or securities or options or rights related to such
securities, shall be recomputed to reflect the issuance of only the number of
shares of Common Stock (and convertible or exchangeable securities which remain
in effect) actually issued upon the exercise of such options or rights, upon the
conversion or exchange of such securities or upon the exercise of the options or
rights related to such securities.
e. The number of shares of Common Stock deemed issued and the
consideration deemed paid therefor pursuant to subsections 7(e)(iv)(A) and
7(e)(iv)(B) shall be appropriately adjusted to reflect any change, termination
or expiration of the type described in either subsection 7(e)(iv)(C) or
7(e)(iv)(D).
F. "Additional Stock" shall mean any shares of Common Stock issued (or
deemed to have been issued pursuant to subsection 7(e)(4) by the Company after
the Effective Date other than
1. Common Stock issued pursuant to a transaction described in
paragraphs 7(c) or 7(d) hereof,
2. shares of Common Stock issuable or issued upon exercise of this
Warrant,
3. up to 2,571,429 shares of Common Stock issuable or issued to
employees, officers, consultants or directors of this Company directly or
pursuant to a stock option plan or restricted stock plan approved by the Board
of Directors of this Company (such number of shares to be calculated net of any
shares repurchased at cost by the Company in connection with the termination of
employment of an employee of the Company and proportionally adjusted to reflect
subsequent stock dividends, stock splits or recapitalizations), or
4. up to 1,000,000 shares of Common Stock issuable or issued upon
exercise of warrants to purchase Common Stock, which warrants are issued
pursuant to equipment leases, bank credit agreements or strategic joint ventures
or alliances approved by the Board of Directors of the Company.
G. OTHER DISTRIBUTIONS. In the event the Company shall declare a
distribution payable in securities of other persons, evidences of indebtedness
issued by the Company or other persons, assets (excluding cash dividends) or
options or rights not referred to in subparagraphs 7(c) or 7(d), then, in each
such case for the purpose of this subsection (g), the Warrantholders shall be
entitled to a proportionate share of any such distribution as though they were
the holders
6.
of the number of shares of Common Stock of the Company into which their shares
of the Warrants are convertible as of the record date fixed for the
determination of the holders of Common Stock of the Company entitled to receive
such distribution. In the event that any other adjustment event not expressly
provided for by this Section 7 shall occur (including, without limitation, the
granting of stock appreciation rights, phantom stock rights or other rights with
equity features), then the Company's Board of Directors shall make an
appropriate adjustment in the Exercise Price and the number of Shares obtainable
upon exercise of this Warrant so as to protect the rights of the Warrantholder.
H. NOTICES OF CERTAIN EVENTS. In case
(i) the Company shall take a record of the holders of
its Common Stock (or other stock or securities at the time receivable upon
the exercise of this Warrant) for the purpose of entitling them to receive
any dividend or other distribution, or any right to subscribe for or purchase
any shares of stock of any class or any other securities, or to receive any
other right, or
(ii) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation, or any conveyance of
all or substantially all of the assets of the Company to another corporation,
or
(iii) of any voluntary dissolution, liquidation of
winding up of the Company,
then, and in each such case, the Company will mail or cause to be mailed to the
Warrantholder a notice specifying, as the case may be, (A) the date on which a
record is to be taken for the purpose of such dividend, distribution or right,
and stating the amount and character of such dividend, distribution or right, or
(B) the date on which such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding up is to take place, and
the time, if any is to be fixed, as of which the holders of record of Common
Stock (or such stock or securities at the time receivable upon the exercise of
this Warrant) shall be entitled to exchange their shares of Common Stock (or
such other stock or securities) for securities or other property deliverable
upon such reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding up. Such notice shall be mailed at least
twenty (20) days prior to the date therein specified. All such notices, advices
and communications shall be deemed to have been received (I) in the case of
personal delivery, on the date of such delivery and (II) in the case of mailing,
on the third business day following the date of such mailing.
X. NOTICE OF ADJUSTMENTS.
Whenever any Exercise Price shall be adjusted pursuant to paragraph 7
hereof, the Company shall make a certificate signed by its chief financial
officer setting forth, in reasonable detail, the event requiring the adjustment,
the amount of the adjustment, the method by which such adjustment was
calculated, and the Exercise Price or Prices after giving effect to such
adjustment, and shall cause copies of such certificate to be mailed (by first
class mail, postage paid) to the Warrantholder.
7.
XI. FRACTIONAL SHARES.
No fractional shares of Common Stock will be issued in connection with any
exercise hereunder, but in lieu of such fractional shares the Company shall make
a cash payment therefor upon the basis of the Exercise Price then in effect.
XII. REPLACEMENT OF WARRANT.
On receipt of evidence reasonably satisfactory to the Company of the loss,
theft, destruction, or mutilation of this Warrant 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, the Company at its expense shall
execute and deliver, in lieu of this Warrant, a new warrant of like tenor and
amount.
XIII. REPRESENTATIONS AND WARRANTIES OF WARRANTHOLDER. Warrantholder hereby
represents and warrants that:
A. PURCHASE ENTIRELY FOR OWN ACCOUNT. This Warrant and the Common Stock
issuable upon exercise hereof (collectively, the "Securities") will be acquired
for investment for the Warrantholder's own account, not as a nominee or agent,
and not with a view to the resale or distribution of any part thereof, and the
Warrantholder has no present intention of selling, granting any participation
in, or otherwise distributing the same. The Warrantholder does not have any
contract, undertaking, agreement, or arrangement with any person to sell,
transfer, or grant participation to any person with respect to any of the
Securities.
B. INVESTMENT EXPERIENCE. The Warrantholder acknowledges that it is able
to protect its own economic interests, can bear the economic risk of its
investment, and has such knowledge and experience in financial or business
matters that it is capable of evaluating the merits and risks of the investment
in the investment in this Warrant.
C. ACCREDITED INVESTOR. The Warrantholder is an "accredited investor"
within the meaning of Rule 501 of Regulation D of the Securities and Exchange
Commission (the "SEC"), as presently in effect.
D. RESTRICTED SECURITIES. Warrantholder understands that the Securities
are characterized as "restricted securities" under the federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering, and that under such laws and applicable regulations
such securities may be resold without registration under the Securities Act of
1933, as amended (the "Act"), only in certain limited circumstances. In this
connection, the Warrantholder represents that it is familiar with SEC Rule 144,
as presently in effect, and understands the resale limitations imposed thereby
and by the Act.
E. FURTHER LIMITATIONS ON DISPOSITION. Without in any way limiting the
representations set forth above, the Warrantholder further agrees not to make
any disposition of all or any portion of the Securities unless and until the
transferee has agreed in writing for the benefit of the Company to be bound by
this paragraph 11, and:
8.
1. There is then in effect a Registration Statement under the Act,
covering such proposed disposition and such disposition is made in accordance
with such Registration Statement; or
2. Such Warrantholder shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and if
reasonably requested by the Company, such Warrantholder shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company that
such disposition will not require registration of such shares under the Act. It
is agreed that the Company will not require opinions of counsel for transactions
made pursuant to Rule 144 except in unusual circumstances.
Notwithstanding the provisions of paragraphs (i) and (ii) above, no such
registration statement or opinion of counsel shall be necessary for a transfer
(A) by a Warrantholder that is a partnership to a partner of such partnership or
a retired partner of such partnership who retires after the date hereof, (B) to
the estate of any such partner or retired partner or the transfer by gift, will
or intestate succession of any partner to his or her spouse or to the siblings,
lineal descendants or ancestors of such partner or his or her spouse, or (C) by
a Warrantholder to an affiliate of such Warrantholder if the transferee agrees
in writing to be subject to the terms hereof to the same extent as if he or she
were an original Warrantholder hereunder.
XIV. RIGHTS OF STOCKHOLDERS. This Warrant shall not entitle the Warrantholder
to any voting rights or other rights as a shareholder of the Company.
XV. GOVERNING LAW.
This Warrant shall be governed by the internal laws of the State of
California, as applied to contracts between residents of California and to be
performed entirely within California, without regard to the application of
conflict of law rules.
XVI. MISCELLANEOUS.
A. The terms of this Warrant shall be binding upon and shall inure to the
benefit of any successors or assigns of the Company and of the holder or holders
hereof and of the Common Stock issued or issuable upon the exercise hereof, and
all of the obligations of the Company relating to the Common Stock issuable upon
exercise of this Warrant shall survive the exercise of this Warrant.
B. The headings in this Warrant are for purposes of convenience and
reference only, and shall not be deemed to constitute a part hereof. Neither
this Warrant nor any term hereof may be changed, waived, discharged or
terminated orally but only by an instrument in writing signed by the Company and
the registered Warrantholder hereof. All notices and other communications from
the Company to the Warrantholder shall be delivered personally or mailed by
first-class registered or certified mail, postage prepaid, to the address
furnished to the Company in writing by the last Warrantholder who shall have
furnished an address to the Company in writing and shall be deemed to have been
given when so delivered or mailed.
9.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officer.
CLONTECH LABORATORIES, INC.
Date: September 9, 1997 By: /s/ Xxx Xxxx
----------------------- -----------------------------------------
AGREED TO AND ACCEPTED TO BY:
WARRANTHOLDER
SUMMIT INVESTORS III, L.P.
By: /s/ Xxxxxxx X. Xxxx
-----------------------------
General Partner
10.
EXHIBIT A
NOTICE OF EXERCISE
Clontech Laboratories, Inc.
Attention: Corporate Secretary
The undersigned hereby elects to purchase _______________ (________) shares
of the Common Stock of Clontech Laboratories, Inc. pursuant to the terms of the
attached Warrant, and tenders herewith payment of the purchase price of such
shares in full, together with all applicable transfer taxes, if any.
The undersigned hereby represents and warrants that the undersigned is
acquiring such shares for its own account for investment purposes only, and not
for resale or with a view to distribution of such shares or any part thereof.
Please issue a certificate or certificates representing such shares of the
Common Stock in the name of the undersigned or in such other name as is
specified below:
WARRANTHOLDER:
--------------------------------------------
Date: By:
---------------------- ----------------------------------------
Title:
-------------------------------------
Address:
-----------------------------------
-----------------------------------
-----------------------------------
Name In Which Shares Should Be Registered:
---------------------------------------
11.
EXHIBIT B
CASHLESS EXERCISE FORM
(To be executed upon a Cashless Exercise of Warrant)
Clontech Laboratories, Inc.:
Attention: Corporate Secretary
The undersigned hereby irrevocably elects to surrender its Warrant for
________ shares of Common Stock or such lesser number of shares of Common Stock
as may be purchased pursuant to the Net Exercise provisions of the within
Warrant.
Please issue a certificate or certificates for such Common Stock in the
name of:
Name
--------------------------------------
(Please Print Name, Address and Social
Security No.)
Address
-------------------------------------
--------------------------------------------
--------------------------------------------
Social Security Number
Signature
----------------------------------
NOTE: The above signature should
correspond exactly with the name on
the first page of the Warrants or
with the name of the assignee.
And if said number of shares shall not be all the shares exchangeable or
purchasable under the within Warrant, a new Warrant of like tenor is to be
issued in the name of the undersigned for the balance remaining of the shares
purchasable thereunder.
12.
EXHIBIT C
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant hereby
sells, assigns and transfers unto the Assignee named below all of the rights of
the undersigned under the within Warrant, with respect to the number of shares
of Common Stock set forth below:
Name of Assignee Address No. of Notes
and does hereby irrevocably constitute and appoint _________________________ to
make such transfer on the books of Clontech Laboratories, Inc., maintained for
the purpose, with full power of substitution in the premises.
The undersigned also represents that, by assignment hereof, the Assignee
acknowledges that this Warrant and the shares of stock to be issued upon
exercise hereof or conversion thereof are being acquired for investment and that
the Assignee will not offer, sell or otherwise dispose of this Warrant or any
shares of stock to be issued upon exercise hereof or conversion thereof except
under circumstances which will not result in a violation of the Securities Act
of 1933, as amended, or any state securities laws. Further, the Assignee has
acknowledged that upon exercise of this Warrant, the Assignee shall, if
requested by the Company, confirm in writing, in a form satisfactory to the
Company, that the shares of stock so purchased are being acquired for investment
and not with a view toward distribution or resale.
Dated:
------------------------------
-----------------------------
Signature of Warrantholder
13.
WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR UNDER
SUCH ACT OR AN APPLICABLE EXEMPTION FROM REGISTRATION THEREUNDER AND IN
COMPLIANCE WITH STATE SECURITIES LAWS.
VOID AFTER SEPTEMBER 9, 2001
CLONTECH LABORATORIES, INC.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
THIS CERTIFIES THAT, for value received, SUMMIT VENTURES IV, L.P., or
its assigns (the "Warrantholder"), are entitled to purchase up to Eight
Hundred Twenty-Five Thousand, Eight Hundred and Sixty-Six (825,866) shares
(the "Shares") of the fully paid and nonassessable Common Stock ("Common
Stock") of CLONTECH LABORATORIES, INC., a California corporation (the
"Company"), at the Exercise Price provided herein. The Exercise Price and
the number of Shares purchasable hereunder are subject to adjustment as
provided herein. This Warrant is issued pursuant to the Securities Purchase
Agreement, dated as of the date of this Warrant, by and between the Company
and the Warrantholder.
III. TERM.
The purchase right represented by this Warrant is exercisable, in whole or
in part, at any time and from time to time during the term commencing on
September 9, 1997 (the "Effective Date") and ending on September 9, 2001 at 5:00
p.m., Pacific time (the "Expiration Date").
IV. ADJUSTMENT OF SHARES.
In addition to any other adjustment required pursuant to paragraph 7
hereof, at the end of each thirty (30) day period ending after the Effective
Date and on or prior to the Expiration Date, (a) the aggregate number of Shares
which may be purchased pursuant to this Warrant shall be decreased by one
forty-eighth (1/48) of 1.2% of the total number of shares of Common Stock
outstanding on a fully diluted basis, and (b) the Exercise Price per share shall
be adjusted to an amount equal to the quotient obtained by dividing $142,970 by
the aggregate number of Shares which may be purchased pursuant to this Warrant
immediately after giving effect to the adjustment described in clause (a).
V. METHOD OF EXERCISE; PAYMENT; ISSUANCE OF NEW WARRANT.
Subject to paragraph 1 hereof, the purchase right represented by this
Warrant may be exercised by the Warrantholder, in whole or in part, by the
surrender of this Warrant (with the notice of exercise form attached hereto as
Exhibit A duly executed) at the principal office of the Company and, subject to
paragraph 4 below, (i) by the payment to the Company, by certified or
1.
official bank check, payable to the order of the Company, (ii) by cancellation
by the Warrantholder of indebtedness of the Company to the Warrantholder, or
(iii) by a combination of (i) and (ii), of an amount equal to the Exercise Price
per share multiplied by the number of Shares then being purchased. In the event
of any exercise of the rights represented by this Warrant, certificates for the
Shares so purchased shall be delivered to the Warrantholder within ten (10)
business days of receipt of this Warrant and such notice, together with the
applicable exercise price, and, unless this Warrant has been fully exercised or
expires, a new Warrant representing the portion of the Shares, if any, with
respect to which this Warrant shall not then have been exercised shall also be
issued to the Warrantholder within such ten (10) business day period. Upon
receipt by the Company of this Warrant and such notice of exercise form,
together with the applicable exercise price, the Warrantholder shall be deemed
to be the holder of record of the Shares, notwithstanding that certificates
representing the Shares shall not then be actually delivered to such
Warrantholder or that such Shares are not then set forth on the stock transfer
books of the Company.
VI. NET EXERCISE.
In lieu of exercising this Warrant by payment of the exercise price in
cash, the Warrantholder may elect to receive Shares equal to the value of this
Warrant (or the portion thereof being cancelled) by surrender of this Warrant
(with the cashless exercise form attached hereto as Exhibit B duly executed) at
the principal office of the Company together with notice of such election, in
which event the Company shall issue to the Warrantholder hereof a number of
shares of the Company's Common Stock computed using the following formula:
Y (A - B)
X = ---------
A
Where
X is the number of shares of Common Stock to be issued
to the Warrantholder;
Y is the number of shares of Common Stock purchasable
under this Warrant;
A is the fair market value of one share of the
Company's Common Stock; and
B is the Exercise Price (as adjusted to the date of
such calculations).
For purposes of this paragraph 4, if the Shares are traded in a public
market, the fair market value of the Shares shall mean the average of the
closing bid and asked prices of the Shares quoted in the over-the-counter market
in which the Shares are traded or the closing price quoted on any exchange on
which the Shares are listed, whichever is applicable, as published in the
Western Edition of THE WALL STREET JOURNAL for the ten (10) trading days prior
to the date of determination of fair market value. If the Shares are not traded
in an over-the-counter market or on an exchange, the fair market value shall be
the price per share that the Company could obtain
2.
from a willing buyer for Shares sold by the Company from authorized but
unissued shares, as such price shall be determined in the good faith reasonable
judgment of the Company's Board of Directors (including the affirmative) vote of
the Designees, as such term is defined in the Shareholders Agreement of even
date herewith by and among Xxxxxxx Xxxx and certain Investors defined therein.
VII. STOCK FULLY PAID.
All Shares which may be issued upon the exercise of the rights represented
by this Warrant will, upon issuance, be validly issued, fully paid and
nonassessable. Issuance of certificates for Shares upon the exercise of this
Warrant shall be made without charge to the Warrantholder hereof for any issue
or transfer tax or other incidental expense in respect of the issuance of such
certificates, all of which taxes and expenses shall be paid by the Company, and
such certificates shall be issued in the name of the Warrantholder or in such
name or names as may be directed by the Warrantholder.
VIII. RESERVATION OF STOCK.
The Company covenants that during the term in which this Warrant is
exercisable, the Company will reserve from its authorized and unissued shares of
Common Stock a sufficient number of shares to provide for the issuance of all
shares of Common Stock issuable upon the exercise in full of this Warrant and,
from time to time, will take all steps necessary to amend its Articles of
Incorporation to provide sufficient reserves of shares of Common Stock issuable
upon exercise of the Warrant. 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.
IX. CERTAIN ADJUSTMENTS.
The number and kind of securities purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment from time to time
upon the occurrence of certain events, as follows:
A. ADJUSTMENT OF NUMBER OF SHARES. Upon each adjustment in the Exercise
Price pursuant to this paragraph 7, the number of Shares of Common Stock
purchasable hereunder shall be adjusted to the product (rounded to the nearest
whole share) obtained by multiplying the number of Shares purchasable
immediately prior to such adjustment in the Exercise Price by a fraction, the
numerator of which shall be the Exercise Price immediately prior to such
adjustment and the denominator of which shall be the Exercise Price immediately
thereafter.
B. RECLASSIFICATION OR MERGER. In case of any reclassification or change
of outstanding securities of the class issuable upon exercise of this Warrant
(other than a change in par value, or from par value to no par value, or from no
par value to par value, or as a result of a subdivision or combination), or in
case of any merger of the Company with or into another corporation (other than a
merger with another corporation in which the Company is a continuing corporation
and which does not result in any reclassification or change of outstanding
securities issuable upon exercise of this Warrant), or in case of any sale of
all or any substantial portion of
3.
the assets of the Company, the Company shall, as a condition precedent to such
transaction, execute a new Warrant or cause such successor or purchasing
corporation, as the case may be, to execute a new Warrant, providing the
Warrantholder upon such exercise the right to receive, in lieu of each Share
theretofore issuable upon exercise of this Warrant, the kind and amount of
shares of stock, other securities, money and property receivable upon such
reclassification, change or merger by a holder of one Share. Such new Warrant
shall provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this paragraph 7. The provisions
of this subparagraph 7(b) shall similarly apply to successive reclassifications,
changes, mergers and transfers.
C. SUBDIVISION OR COMBINATION OF SHARES. If the Company at any time
while this Warrant remains outstanding and unexpired shall subdivide or combine
its Stock, the Exercise Price shall proportionately be decreased in the case of
a subdivision or increased in the case of a combination.
D. STOCK DIVIDENDS. If the Company at any time while this Warrant is
outstanding and unexpired shall pay a dividend with respect to Common Stock
payable in Common Stock, or make any other distribution with respect to Common
Stock (except any distribution specifically provided for in subparagraph 7(b)
above) of Common Stock then in each such case the Exercise Price shall be
adjusted, from and after the date of determination of stockholders entitled to
receive such dividend or distribution, to that price determined by multiplying
the Exercise Price in effect immediately prior to such date of determination by
a fraction (i) the numerator of which shall be the total number of shares of
Common Stock outstanding immediately prior to such dividend or distribution, and
(ii) the denominator of which shall be the total number of shares of Common
Stock outstanding immediately after such dividend or distribution.
E. ADDITIONAL STOCK. If the Company shall issue, after September 9, 1997
(the "Purchase Date" with respect to such series), any Additional Stock (as
defined below) without consideration or for a consideration per share less than
the Exercise Price in effect immediately prior to the issuance of such
Additional Stock, the Exercise Price in effect immediately prior to each such
issuance shall forthwith (except as otherwise provided in this clause) be
adjusted to a price determined by multiplying such Exercise Price by a fraction,
the numerator of which shall be the sum of the number of shares of Common Stock
outstanding immediately prior to such issuance on a fully diluted basis after
giving effect to the conversion, exercise or exchange of any and all outstanding
warrants, options, preferred stock and any other securities of the Company
convertible into or exercisable or exchangeable for Common Stock of the Company
("Fully Diluted Basis"), plus the number of shares of Common Stock that the
aggregate consideration received by the Corporation for such issuance would
purchase at such Exercise Price, and the denominator of which shall be the
number of shares of Common Stock outstanding immediately prior to such issuance
on a Fully Diluted Basis plus the number of shares of such Additional Stock.
1. No adjustment of the Exercise Price for the Warrant shall be made
in an amount less than one cent ($0.01) per share, provided that any adjustments
which are not required to be made by reason of this sentence shall be carried
forward and shall be taken into account in any subsequent adjustment. Except to
the limited extent provided for in subsections 7(e)(iv)(C) and 7(e)(iv)(D), no
adjustment of such Exercise Price pursuant to this subparagraph
4.
7(e) shall have the effect of increasing the Exercise Price above the Exercise
Price in effect immediately prior to such adjustment.
2. In the case of the issuance of any Additional Stock for cash, the
consideration shall be deemed to be the amount of cash paid therefor before
deducting any reasonable discounts, commissions or other expenses allowed, paid
or incurred by the Company for any underwriting or otherwise in connection with
the issuance and sale thereof.
3. In the case of the issuance of any Additional Stock for a
consideration in whole or in part other than cash, the consideration other than
cash shall be deemed to be equal to the reasonable, good faith estimate of the
fair market value thereof as evidenced by the affirmative vote of a majority of
the Board of Directors (which majority must include the Series A Directors)
irrespective of any accounting treatment.
4. In the case of the issuance (whether before, on or after the
applicable Purchase Date) of options to purchase or rights to subscribe for
Common Stock, securities by their terms convertible into or exchangeable for
Common Stock or options to purchase or rights to subscribe for such convertible
or exchangeable securities, the following provisions shall apply for all
purposes of this paragraph 7(e) and paragraph 7(f):
a. The aggregate maximum number of shares of Common Stock
deliverable upon exercise (assuming the satisfaction of any conditions to
exercisability, including without limitation, the passage of time, but without
taking into account potential antidilution adjustments) of such options to
purchase or rights to subscribe for Common Stock shall be deemed to have been
issued at the time such options or rights were issued and for a consideration
equal to the consideration (determined in the manner provided in subsections
7(e)(ii) and 7(e)(iii), if any, received by the Company upon the issuance of
such options or rights plus the minimum exercise price provided in such options
or rights (without taking into account potential antidilution adjustments) for
the Common Stock covered thereby.
b. The aggregate maximum number of shares of Common Stock
deliverable upon conversion of or in exchange (assuming the satisfaction of any
conditions to convertibility or exchangeability, including, without limitation,
the passage of time, but without taking into account potential antidilution
adjustments) for any such convertible or exchangeable securities or upon the
exercise of options to purchase or rights to subscribe for such convertible or
exchangeable securities and subsequent conversion or exchange thereof shall be
deemed to have been issued at the time such securities were issued or such
options or rights were issued and for a consideration equal to the
consideration, if any, received by the Company for any such securities and
related options or rights (excluding any cash received on account of accrued
interest or accrued dividends), plus the minimum additional consideration, if
any, to be received by the Company (without taking into account potential
antidilution adjustments) upon the conversion or exchange of such securities or
the exercise of any related options or rights (the consideration in each case to
be determined in the manner provided in subsections 7(e)(ii) and 7(e)(iii).
c. In the event of any change in the number of shares of Common
Stock deliverable or in the consideration payable to the Company upon exercise
of such options
5.
or rights or upon conversion of or in exchange for such convertible or
exchangeable securities, including, but not limited to, a change resulting from
the antidilution provisions thereof, the Exercise Price of the Warrant, to the
extent in any way affected by or computed using such options, rights or
securities, shall be recomputed to reflect such change, but no further
adjustment shall be made for the actual issuance of Common Stock or any payment
of such consideration upon the exercise of any such options or rights or the
conversion or exchange of such securities.
d. Upon the expiration of any such options or rights, the
termination of any such rights to convert or exchange or the expiration of any
options or rights related to such convertible or exchangeable securities, the
Exercise Price of the Warrant, to the extent in any way affected by or computed
using such options, rights or securities or options or rights related to such
securities, shall be recomputed to reflect the issuance of only the number of
shares of Common Stock (and convertible or exchangeable securities which remain
in effect) actually issued upon the exercise of such options or rights, upon the
conversion or exchange of such securities or upon the exercise of the options or
rights related to such securities.
e. The number of shares of Common Stock deemed issued and the
consideration deemed paid therefor pursuant to subsections 7(e)(iv)(A) and
7(e)(iv)(B) shall be appropriately adjusted to reflect any change, termination
or expiration of the type described in either subsection 7(e)(iv)(C) or
7(e)(iv)(D).
F. "Additional Stock" shall mean any shares of Common Stock issued (or
deemed to have been issued pursuant to subsection 7(e)(4) by the Company after
the Effective Date other than
1. Common Stock issued pursuant to a transaction described in
paragraphs 7(c) or 7(d) hereof,
2. shares of Common Stock issuable or issued upon exercise of this
Warrant,
3. up to 2,571,429 shares of Common Stock issuable or issued to
employees, officers, consultants or directors of this Company directly or
pursuant to a stock option plan or restricted stock plan approved by the Board
of Directors of this Company (such number of shares to be calculated net of any
shares repurchased at cost by the Company in connection with the termination of
employment of an employee of the Company and proportionally adjusted to reflect
subsequent stock dividends, stock splits or recapitalizations), or
4. up to 1,000,000 shares of Common Stock issuable or issued upon
exercise of warrants to purchase Common Stock, which warrants are issued
pursuant to equipment leases, bank credit agreements or strategic joint ventures
or alliances approved by the Board of Directors of the Company.
G. OTHER DISTRIBUTIONS. In the event the Company shall declare a
distribution payable in securities of other persons, evidences of indebtedness
issued by the Company or other persons, assets (excluding cash dividends) or
options or rights not referred to in subparagraphs 7(c) or 7(d), then, in each
such case for the purpose of this subsection (g), the Warrantholders shall be
entitled to a proportionate share of any such distribution as though they were
the holders
6.
of the number of shares of Common Stock of the Company into which their shares
of the Warrants are convertible as of the record date fixed for the
determination of the holders of Common Stock of the Company entitled to receive
such distribution. In the event that any other adjustment event not expressly
provided for by this Section 7 shall occur (including, without limitation, the
granting of stock appreciation rights, phantom stock rights or other rights with
equity features), then the Company's Board of Directors shall make an
appropriate adjustment in the Exercise Price and the number of Shares obtainable
upon exercise of this Warrant so as to protect the rights of the Warrantholder.
H. NOTICES OF CERTAIN EVENTS. In case
(i) the Company shall take a record of the holders of
its Common Stock (or other stock or securities at the time receivable upon
the exercise of this Warrant) for the purpose of entitling them to receive
any dividend or other distribution, or any right to subscribe for or purchase
any shares of stock of any class or any other securities, or to receive any
other right, or
(ii) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation, or any conveyance of
all or substantially all of the assets of the Company to another corporation,
or
(iii) of any voluntary dissolution, liquidation of
winding up of the Company,
then, and in each such case, the Company will mail or cause to be mailed to the
Warrantholder a notice specifying, as the case may be, (A) the date on which a
record is to be taken for the purpose of such dividend, distribution or right,
and stating the amount and character of such dividend, distribution or right, or
(B) the date on which such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding up is to take place, and
the time, if any is to be fixed, as of which the holders of record of Common
Stock (or such stock or securities at the time receivable upon the exercise of
this Warrant) shall be entitled to exchange their shares of Common Stock (or
such other stock or securities) for securities or other property deliverable
upon such reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding up. Such notice shall be mailed at least
twenty (20) days prior to the date therein specified. All such notices, advices
and communications shall be deemed to have been received (I) in the case of
personal delivery, on the date of such delivery and (II) in the case of mailing,
on the third business day following the date of such mailing.
X. NOTICE OF ADJUSTMENTS.
Whenever any Exercise Price shall be adjusted pursuant to paragraph 7
hereof, the Company shall make a certificate signed by its chief financial
officer setting forth, in reasonable detail, the event requiring the adjustment,
the amount of the adjustment, the method by which such adjustment was
calculated, and the Exercise Price or Prices after giving effect to such
adjustment, and shall cause copies of such certificate to be mailed (by first
class mail, postage paid) to the Warrantholder.
7.
XI. FRACTIONAL SHARES.
No fractional shares of Common Stock will be issued in connection with any
exercise hereunder, but in lieu of such fractional shares the Company shall make
a cash payment therefor upon the basis of the Exercise Price then in effect.
XII. REPLACEMENT OF WARRANT.
On receipt of evidence reasonably satisfactory to the Company of the loss,
theft, destruction, or mutilation of this Warrant 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, the Company at its expense shall
execute and deliver, in lieu of this Warrant, a new warrant of like tenor and
amount.
XIII. REPRESENTATIONS AND WARRANTIES OF WARRANTHOLDER. Warrantholder hereby
represents and warrants that:
A. PURCHASE ENTIRELY FOR OWN ACCOUNT. This Warrant and the Common Stock
issuable upon exercise hereof (collectively, the "Securities") will be acquired
for investment for the Warrantholder's own account, not as a nominee or agent,
and not with a view to the resale or distribution of any part thereof, and the
Warrantholder has no present intention of selling, granting any participation
in, or otherwise distributing the same. The Warrantholder does not have any
contract, undertaking, agreement, or arrangement with any person to sell,
transfer, or grant participation to any person with respect to any of the
Securities.
B. INVESTMENT EXPERIENCE. The Warrantholder acknowledges that it is able
to protect its own economic interests, can bear the economic risk of its
investment, and has such knowledge and experience in financial or business
matters that it is capable of evaluating the merits and risks of the investment
in the investment in this Warrant.
C. ACCREDITED INVESTOR. The Warrantholder is an "accredited investor"
within the meaning of Rule 501 of Regulation D of the Securities and Exchange
Commission (the "SEC"), as presently in effect.
D. RESTRICTED SECURITIES. Warrantholder understands that the Securities
are characterized as "restricted securities" under the federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering, and that under such laws and applicable regulations
such securities may be resold without registration under the Securities Act of
1933, as amended (the "Act"), only in certain limited circumstances. In this
connection, the Warrantholder represents that it is familiar with SEC Rule 144,
as presently in effect, and understands the resale limitations imposed thereby
and by the Act.
E. FURTHER LIMITATIONS ON DISPOSITION. Without in any way limiting the
representations set forth above, the Warrantholder further agrees not to make
any disposition of all or any portion of the Securities unless and until the
transferee has agreed in writing for the benefit of the Company to be bound by
this paragraph 11, and:
8.
1. There is then in effect a Registration Statement under the Act,
covering such proposed disposition and such disposition is made in accordance
with such Registration Statement; or
2. Such Warrantholder shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and if
reasonably requested by the Company, such Warrantholder shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company that
such disposition will not require registration of such shares under the Act. It
is agreed that the Company will not require opinions of counsel for transactions
made pursuant to Rule 144 except in unusual circumstances.
Notwithstanding the provisions of paragraphs (i) and (ii) above, no such
registration statement or opinion of counsel shall be necessary for a transfer
(A) by a Warrantholder that is a partnership to a partner of such partnership or
a retired partner of such partnership who retires after the date hereof, (B) to
the estate of any such partner or retired partner or the transfer by gift, will
or intestate succession of any partner to his or her spouse or to the siblings,
lineal descendants or ancestors of such partner or his or her spouse, or (C) by
a Warrantholder to an affiliate of such Warrantholder if the transferee agrees
in writing to be subject to the terms hereof to the same extent as if he or she
were an original Warrantholder hereunder.
XIV. RIGHTS OF STOCKHOLDERS. This Warrant shall not entitle the Warrantholder
to any voting rights or other rights as a shareholder of the Company.
XV. GOVERNING LAW.
This Warrant shall be governed by the internal laws of the State of
California, as applied to contracts between residents of California and to be
performed entirely within California, without regard to the application of
conflict of law rules.
XVI. MISCELLANEOUS.
A. The terms of this Warrant shall be binding upon and shall inure to the
benefit of any successors or assigns of the Company and of the holder or holders
hereof and of the Common Stock issued or issuable upon the exercise hereof, and
all of the obligations of the Company relating to the Common Stock issuable upon
exercise of this Warrant shall survive the exercise of this Warrant.
B. The headings in this Warrant are for purposes of convenience and
reference only, and shall not be deemed to constitute a part hereof. Neither
this Warrant nor any term hereof may be changed, waived, discharged or
terminated orally but only by an instrument in writing signed by the Company and
the registered Warrantholder hereof. All notices and other communications from
the Company to the Warrantholder shall be delivered personally or mailed by
first-class registered or certified mail, postage prepaid, to the address
furnished to the Company in writing by the last Warrantholder who shall have
furnished an address to the Company in writing and shall be deemed to have been
given when so delivered or mailed.
9.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officer.
CLONTECH LABORATORIES, INC.
Date: September 9, 1997 By: /s/ Xxx Xxxx
----------------------- -----------------------------------------
AGREED TO AND ACCEPTED TO BY:
WARRANTHOLDER
SUMMIT INVESTORS III, L.P.
By: /s/ Xxxxxxx X. Xxxx
-----------------------------
General Partner
10.
WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR UNDER
SUCH ACT OR AN APPLICABLE EXEMPTION FROM REGISTRATION THEREUNDER AND IN
COMPLIANCE WITH STATE SECURITIES LAWS.
VOID AFTER SEPTEMBER 9, 2001
CLONTECH LABORATORIES, INC.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
THIS CERTIFIES THAT, for value received, SUMMIT SUBORDINATED DEBT FUND
II, L.P., or its assigns (the "Warrantholder"), are entitled to purchase up
to Fifty Thousand, Two Hundred and Twenty-Four (50,224) shares (the
"Shares") of the fully paid and nonassessable Common Stock ("Common Stock")
of CLONTECH LABORATORIES, INC., a California corporation (the "Company"), at
the Exercise Price provided herein. The Exercise Price and the number of
Shares purchasable hereunder are subject to adjustment as provided herein.
This Warrant is issued pursuant to the Securities Purchase Agreement, dated
as of the date of this Warrant, by and between the Company and the
Warrantholder.
III. TERM.
The purchase right represented by this Warrant is exercisable, in whole or
in part, at any time and from time to time during the term commencing on
September 9, 1997 (the "Effective Date") and ending on September 9, 2001 at 5:00
p.m., Pacific time (the "Expiration Date").
IV. ADJUSTMENT OF SHARES.
In addition to any other adjustment required pursuant to paragraph 7
hereof, at the end of each thirty (30) day period ending after the Effective
Date and on or prior to the Expiration Date, (a) the aggregate number of Shares
which may be purchased pursuant to this Warrant shall be decreased by one
forty-eighth (1/48) of 1.2% of the total number of shares of Common Stock
outstanding on a fully diluted basis, and (b) the Exercise Price per share shall
be adjusted to an amount equal to the quotient obtained by dividing $142,970 by
the aggregate number of Shares which may be purchased pursuant to this Warrant
immediately after giving effect to the adjustment described in clause (a).
V. METHOD OF EXERCISE; PAYMENT; ISSUANCE OF NEW WARRANT.
Subject to paragraph 1 hereof, the purchase right represented by this
Warrant may be exercised by the Warrantholder, in whole or in part, by the
surrender of this Warrant (with the notice of exercise form attached hereto as
Exhibit A duly executed) at the principal office of the Company and, subject to
paragraph 4 below, (i) by the payment to the Company, by certified or
1.
official bank check, payable to the order of the Company, (ii) by cancellation
by the Warrantholder of indebtedness of the Company to the Warrantholder, or
(iii) by a combination of (i) and (ii), of an amount equal to the Exercise Price
per share multiplied by the number of Shares then being purchased. In the event
of any exercise of the rights represented by this Warrant, certificates for the
Shares so purchased shall be delivered to the Warrantholder within ten (10)
business days of receipt of this Warrant and such notice, together with the
applicable exercise price, and, unless this Warrant has been fully exercised or
expires, a new Warrant representing the portion of the Shares, if any, with
respect to which this Warrant shall not then have been exercised shall also be
issued to the Warrantholder within such ten (10) business day period. Upon
receipt by the Company of this Warrant and such notice of exercise form,
together with the applicable exercise price, the Warrantholder shall be deemed
to be the holder of record of the Shares, notwithstanding that certificates
representing the Shares shall not then be actually delivered to such
Warrantholder or that such Shares are not then set forth on the stock transfer
books of the Company.
VI. NET EXERCISE.
In lieu of exercising this Warrant by payment of the exercise price in
cash, the Warrantholder may elect to receive Shares equal to the value of this
Warrant (or the portion thereof being cancelled) by surrender of this Warrant
(with the cashless exercise form attached hereto as Exhibit B duly executed) at
the principal office of the Company together with notice of such election, in
which event the Company shall issue to the Warrantholder hereof a number of
shares of the Company's Common Stock computed using the following formula:
Y (A - B)
X = ---------
A
Where
X is the number of shares of Common Stock to be issued
to the Warrantholder;
Y is the number of shares of Common Stock purchasable
under this Warrant;
A is the fair market value of one share of the
Company's Common Stock; and
B is the Exercise Price (as adjusted to the date of
such calculations).
For purposes of this paragraph 4, if the Shares are traded in a public
market, the fair market value of the Shares shall mean the average of the
closing bid and asked prices of the Shares quoted in the over-the-counter market
in which the Shares are traded or the closing price quoted on any exchange on
which the Shares are listed, whichever is applicable, as published in the
Western Edition of THE WALL STREET JOURNAL for the ten (10) trading days prior
to the date of determination of fair market value. If the Shares are not traded
in an over-the-counter market or on an exchange, the fair market value shall be
the price per share that the Company could obtain
2.
from a willing buyer for Shares sold by the Company from authorized but
unissued shares, as such price shall be determined in the good faith reasonable
judgment of the Company's Board of Directors (including the affirmative) vote of
the Designees, as such term is defined in the Shareholders Agreement of even
date herewith by and among Xxxxxxx Xxxx and certain Investors defined therein.
VII. STOCK FULLY PAID.
All Shares which may be issued upon the exercise of the rights represented
by this Warrant will, upon issuance, be validly issued, fully paid and
nonassessable. Issuance of certificates for Shares upon the exercise of this
Warrant shall be made without charge to the Warrantholder hereof for any issue
or transfer tax or other incidental expense in respect of the issuance of such
certificates, all of which taxes and expenses shall be paid by the Company, and
such certificates shall be issued in the name of the Warrantholder or in such
name or names as may be directed by the Warrantholder.
VIII. RESERVATION OF STOCK.
The Company covenants that during the term in which this Warrant is
exercisable, the Company will reserve from its authorized and unissued shares of
Common Stock a sufficient number of shares to provide for the issuance of all
shares of Common Stock issuable upon the exercise in full of this Warrant and,
from time to time, will take all steps necessary to amend its Articles of
Incorporation to provide sufficient reserves of shares of Common Stock issuable
upon exercise of the Warrant. 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.
IX. CERTAIN ADJUSTMENTS.
The number and kind of securities purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment from time to time
upon the occurrence of certain events, as follows:
A. ADJUSTMENT OF NUMBER OF SHARES. Upon each adjustment in the Exercise
Price pursuant to this paragraph 7, the number of Shares of Common Stock
purchasable hereunder shall be adjusted to the product (rounded to the nearest
whole share) obtained by multiplying the number of Shares purchasable
immediately prior to such adjustment in the Exercise Price by a fraction, the
numerator of which shall be the Exercise Price immediately prior to such
adjustment and the denominator of which shall be the Exercise Price immediately
thereafter.
B. RECLASSIFICATION OR MERGER. In case of any reclassification or change
of outstanding securities of the class issuable upon exercise of this Warrant
(other than a change in par value, or from par value to no par value, or from no
par value to par value, or as a result of a subdivision or combination), or in
case of any merger of the Company with or into another corporation (other than a
merger with another corporation in which the Company is a continuing corporation
and which does not result in any reclassification or change of outstanding
securities issuable upon exercise of this Warrant), or in case of any sale of
all or any substantial portion of
3.
the assets of the Company, the Company shall, as a condition precedent to such
transaction, execute a new Warrant or cause such successor or purchasing
corporation, as the case may be, to execute a new Warrant, providing the
Warrantholder upon such exercise the right to receive, in lieu of each Share
theretofore issuable upon exercise of this Warrant, the kind and amount of
shares of stock, other securities, money and property receivable upon such
reclassification, change or merger by a holder of one Share. Such new Warrant
shall provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this paragraph 7. The provisions
of this subparagraph 7(b) shall similarly apply to successive reclassifications,
changes, mergers and transfers.
C. SUBDIVISION OR COMBINATION OF SHARES. If the Company at any time
while this Warrant remains outstanding and unexpired shall subdivide or combine
its Stock, the Exercise Price shall proportionately be decreased in the case of
a subdivision or increased in the case of a combination.
D. STOCK DIVIDENDS. If the Company at any time while this Warrant is
outstanding and unexpired shall pay a dividend with respect to Common Stock
payable in Common Stock, or make any other distribution with respect to Common
Stock (except any distribution specifically provided for in subparagraph 7(b)
above) of Common Stock then in each such case the Exercise Price shall be
adjusted, from and after the date of determination of stockholders entitled to
receive such dividend or distribution, to that price determined by multiplying
the Exercise Price in effect immediately prior to such date of determination by
a fraction (i) the numerator of which shall be the total number of shares of
Common Stock outstanding immediately prior to such dividend or distribution, and
(ii) the denominator of which shall be the total number of shares of Common
Stock outstanding immediately after such dividend or distribution.
E. ADDITIONAL STOCK. If the Company shall issue, after September 9, 1997
(the "Purchase Date" with respect to such series), any Additional Stock (as
defined below) without consideration or for a consideration per share less than
the Exercise Price in effect immediately prior to the issuance of such
Additional Stock, the Exercise Price in effect immediately prior to each such
issuance shall forthwith (except as otherwise provided in this clause) be
adjusted to a price determined by multiplying such Exercise Price by a fraction,
the numerator of which shall be the sum of the number of shares of Common Stock
outstanding immediately prior to such issuance on a fully diluted basis after
giving effect to the conversion, exercise or exchange of any and all outstanding
warrants, options, preferred stock and any other securities of the Company
convertible into or exercisable or exchangeable for Common Stock of the Company
("Fully Diluted Basis"), plus the number of shares of Common Stock that the
aggregate consideration received by the Corporation for such issuance would
purchase at such Exercise Price, and the denominator of which shall be the
number of shares of Common Stock outstanding immediately prior to such issuance
on a Fully Diluted Basis plus the number of shares of such Additional Stock.
1. No adjustment of the Exercise Price for the Warrant shall be made
in an amount less than one cent ($0.01) per share, provided that any adjustments
which are not required to be made by reason of this sentence shall be carried
forward and shall be taken into account in any subsequent adjustment. Except to
the limited extent provided for in subsections 7(e)(iv)(C) and 7(e)(iv)(D), no
adjustment of such Exercise Price pursuant to this subparagraph
4.
7(e) shall have the effect of increasing the Exercise Price above the Exercise
Price in effect immediately prior to such adjustment.
2. In the case of the issuance of any Additional Stock for cash, the
consideration shall be deemed to be the amount of cash paid therefor before
deducting any reasonable discounts, commissions or other expenses allowed, paid
or incurred by the Company for any underwriting or otherwise in connection with
the issuance and sale thereof.
3. In the case of the issuance of any Additional Stock for a
consideration in whole or in part other than cash, the consideration other than
cash shall be deemed to be equal to the reasonable, good faith estimate of the
fair market value thereof as evidenced by the affirmative vote of a majority of
the Board of Directors (which majority must include the Series A Directors)
irrespective of any accounting treatment.
4. In the case of the issuance (whether before, on or after the
applicable Purchase Date) of options to purchase or rights to subscribe for
Common Stock, securities by their terms convertible into or exchangeable for
Common Stock or options to purchase or rights to subscribe for such convertible
or exchangeable securities, the following provisions shall apply for all
purposes of this paragraph 7(e) and paragraph 7(f):
a. The aggregate maximum number of shares of Common Stock
deliverable upon exercise (assuming the satisfaction of any conditions to
exercisability, including without limitation, the passage of time, but without
taking into account potential antidilution adjustments) of such options to
purchase or rights to subscribe for Common Stock shall be deemed to have been
issued at the time such options or rights were issued and for a consideration
equal to the consideration (determined in the manner provided in subsections
7(e)(ii) and 7(e)(iii), if any, received by the Company upon the issuance of
such options or rights plus the minimum exercise price provided in such options
or rights (without taking into account potential antidilution adjustments) for
the Common Stock covered thereby.
b. The aggregate maximum number of shares of Common Stock
deliverable upon conversion of or in exchange (assuming the satisfaction of any
conditions to convertibility or exchangeability, including, without limitation,
the passage of time, but without taking into account potential antidilution
adjustments) for any such convertible or exchangeable securities or upon the
exercise of options to purchase or rights to subscribe for such convertible or
exchangeable securities and subsequent conversion or exchange thereof shall be
deemed to have been issued at the time such securities were issued or such
options or rights were issued and for a consideration equal to the
consideration, if any, received by the Company for any such securities and
related options or rights (excluding any cash received on account of accrued
interest or accrued dividends), plus the minimum additional consideration, if
any, to be received by the Company (without taking into account potential
antidilution adjustments) upon the conversion or exchange of such securities or
the exercise of any related options or rights (the consideration in each case to
be determined in the manner provided in subsections 7(e)(ii) and 7(e)(iii).
c. In the event of any change in the number of shares of Common
Stock deliverable or in the consideration payable to the Company upon exercise
of such options
5.
or rights or upon conversion of or in exchange for such convertible or
exchangeable securities, including, but not limited to, a change resulting from
the antidilution provisions thereof, the Exercise Price of the Warrant, to the
extent in any way affected by or computed using such options, rights or
securities, shall be recomputed to reflect such change, but no further
adjustment shall be made for the actual issuance of Common Stock or any payment
of such consideration upon the exercise of any such options or rights or the
conversion or exchange of such securities.
d. Upon the expiration of any such options or rights, the
termination of any such rights to convert or exchange or the expiration of any
options or rights related to such convertible or exchangeable securities, the
Exercise Price of the Warrant, to the extent in any way affected by or computed
using such options, rights or securities or options or rights related to such
securities, shall be recomputed to reflect the issuance of only the number of
shares of Common Stock (and convertible or exchangeable securities which remain
in effect) actually issued upon the exercise of such options or rights, upon the
conversion or exchange of such securities or upon the exercise of the options or
rights related to such securities.
e. The number of shares of Common Stock deemed issued and the
consideration deemed paid therefor pursuant to subsections 7(e)(iv)(A) and
7(e)(iv)(B) shall be appropriately adjusted to reflect any change, termination
or expiration of the type described in either subsection 7(e)(iv)(C) or
7(e)(iv)(D).
F. "Additional Stock" shall mean any shares of Common Stock issued (or
deemed to have been issued pursuant to subsection 7(e)(4) by the Company after
the Effective Date other than
1. Common Stock issued pursuant to a transaction described in
paragraphs 7(c) or 7(d) hereof,
2. shares of Common Stock issuable or issued upon exercise of this
Warrant,
3. up to 2,571,429 shares of Common Stock issuable or issued to
employees, officers, consultants or directors of this Company directly or
pursuant to a stock option plan or restricted stock plan approved by the Board
of Directors of this Company (such number of shares to be calculated net of any
shares repurchased at cost by the Company in connection with the termination of
employment of an employee of the Company and proportionally adjusted to reflect
subsequent stock dividends, stock splits or recapitalizations), or
4. up to 1,000,000 shares of Common Stock issuable or issued upon
exercise of warrants to purchase Common Stock, which warrants are issued
pursuant to equipment leases, bank credit agreements or strategic joint ventures
or alliances approved by the Board of Directors of the Company.
G. OTHER DISTRIBUTIONS. In the event the Company shall declare a
distribution payable in securities of other persons, evidences of indebtedness
issued by the Company or other persons, assets (excluding cash dividends) or
options or rights not referred to in subparagraphs 7(c) or 7(d), then, in each
such case for the purpose of this subsection (g), the Warrantholders shall be
entitled to a proportionate share of any such distribution as though they were
the holders
6.
of the number of shares of Common Stock of the Company into which their shares
of the Warrants are convertible as of the record date fixed for the
determination of the holders of Common Stock of the Company entitled to receive
such distribution. In the event that any other adjustment event not expressly
provided for by this Section 7 shall occur (including, without limitation, the
granting of stock appreciation rights, phantom stock rights or other rights with
equity features), then the Company's Board of Directors shall make an
appropriate adjustment in the Exercise Price and the number of Shares obtainable
upon exercise of this Warrant so as to protect the rights of the Warrantholder.
H. NOTICES OF CERTAIN EVENTS. In case
(i) the Company shall take a record of the holders of
its Common Stock (or other stock or securities at the time receivable upon
the exercise of this Warrant) for the purpose of entitling them to receive
any dividend or other distribution, or any right to subscribe for or purchase
any shares of stock of any class or any other securities, or to receive any
other right, or
(ii) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation, or any conveyance of
all or substantially all of the assets of the Company to another corporation,
or
(iii) of any voluntary dissolution, liquidation of
winding up of the Company,
then, and in each such case, the Company will mail or cause to be mailed to the
Warrantholder a notice specifying, as the case may be, (A) the date on which a
record is to be taken for the purpose of such dividend, distribution or right,
and stating the amount and character of such dividend, distribution or right, or
(B) the date on which such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding up is to take place, and
the time, if any is to be fixed, as of which the holders of record of Common
Stock (or such stock or securities at the time receivable upon the exercise of
this Warrant) shall be entitled to exchange their shares of Common Stock (or
such other stock or securities) for securities or other property deliverable
upon such reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding up. Such notice shall be mailed at least
twenty (20) days prior to the date therein specified. All such notices, advices
and communications shall be deemed to have been received (I) in the case of
personal delivery, on the date of such delivery and (II) in the case of mailing,
on the third business day following the date of such mailing.
X. NOTICE OF ADJUSTMENTS.
Whenever any Exercise Price shall be adjusted pursuant to paragraph 7
hereof, the Company shall make a certificate signed by its chief financial
officer setting forth, in reasonable detail, the event requiring the adjustment,
the amount of the adjustment, the method by which such adjustment was
calculated, and the Exercise Price or Prices after giving effect to such
adjustment, and shall cause copies of such certificate to be mailed (by first
class mail, postage paid) to the Warrantholder.
7.
XI. FRACTIONAL SHARES.
No fractional shares of Common Stock will be issued in connection with any
exercise hereunder, but in lieu of such fractional shares the Company shall make
a cash payment therefor upon the basis of the Exercise Price then in effect.
XII. REPLACEMENT OF WARRANT.
On receipt of evidence reasonably satisfactory to the Company of the loss,
theft, destruction, or mutilation of this Warrant 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, the Company at its expense shall
execute and deliver, in lieu of this Warrant, a new warrant of like tenor and
amount.
XIII. REPRESENTATIONS AND WARRANTIES OF WARRANTHOLDER. Warrantholder hereby
represents and warrants that:
A. PURCHASE ENTIRELY FOR OWN ACCOUNT. This Warrant and the Common Stock
issuable upon exercise hereof (collectively, the "Securities") will be acquired
for investment for the Warrantholder's own account, not as a nominee or agent,
and not with a view to the resale or distribution of any part thereof, and the
Warrantholder has no present intention of selling, granting any participation
in, or otherwise distributing the same. The Warrantholder does not have any
contract, undertaking, agreement, or arrangement with any person to sell,
transfer, or grant participation to any person with respect to any of the
Securities.
B. INVESTMENT EXPERIENCE. The Warrantholder acknowledges that it is able
to protect its own economic interests, can bear the economic risk of its
investment, and has such knowledge and experience in financial or business
matters that it is capable of evaluating the merits and risks of the investment
in the investment in this Warrant.
C. ACCREDITED INVESTOR. The Warrantholder is an "accredited investor"
within the meaning of Rule 501 of Regulation D of the Securities and Exchange
Commission (the "SEC"), as presently in effect.
D. RESTRICTED SECURITIES. Warrantholder understands that the Securities
are characterized as "restricted securities" under the federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering, and that under such laws and applicable regulations
such securities may be resold without registration under the Securities Act of
1933, as amended (the "Act"), only in certain limited circumstances. In this
connection, the Warrantholder represents that it is familiar with SEC Rule 144,
as presently in effect, and understands the resale limitations imposed thereby
and by the Act.
E. FURTHER LIMITATIONS ON DISPOSITION. Without in any way limiting the
representations set forth above, the Warrantholder further agrees not to make
any disposition of all or any portion of the Securities unless and until the
transferee has agreed in writing for the benefit of the Company to be bound by
this paragraph 11, and:
8.
1. There is then in effect a Registration Statement under the Act,
covering such proposed disposition and such disposition is made in accordance
with such Registration Statement; or
2. Such Warrantholder shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and if
reasonably requested by the Company, such Warrantholder shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company that
such disposition will not require registration of such shares under the Act. It
is agreed that the Company will not require opinions of counsel for transactions
made pursuant to Rule 144 except in unusual circumstances.
Notwithstanding the provisions of paragraphs (i) and (ii) above, no such
registration statement or opinion of counsel shall be necessary for a transfer
(A) by a Warrantholder that is a partnership to a partner of such partnership or
a retired partner of such partnership who retires after the date hereof, (B) to
the estate of any such partner or retired partner or the transfer by gift, will
or intestate succession of any partner to his or her spouse or to the siblings,
lineal descendants or ancestors of such partner or his or her spouse, or (C) by
a Warrantholder to an affiliate of such Warrantholder if the transferee agrees
in writing to be subject to the terms hereof to the same extent as if he or she
were an original Warrantholder hereunder.
XIV. RIGHTS OF STOCKHOLDERS. This Warrant shall not entitle the Warrantholder
to any voting rights or other rights as a shareholder of the Company.
XV. GOVERNING LAW.
This Warrant shall be governed by the internal laws of the State of
California, as applied to contracts between residents of California and to be
performed entirely within California, without regard to the application of
conflict of law rules.
XVI. MISCELLANEOUS.
A. The terms of this Warrant shall be binding upon and shall inure to the
benefit of any successors or assigns of the Company and of the holder or holders
hereof and of the Common Stock issued or issuable upon the exercise hereof, and
all of the obligations of the Company relating to the Common Stock issuable upon
exercise of this Warrant shall survive the exercise of this Warrant.
B. The headings in this Warrant are for purposes of convenience and
reference only, and shall not be deemed to constitute a part hereof. Neither
this Warrant nor any term hereof may be changed, waived, discharged or
terminated orally but only by an instrument in writing signed by the Company and
the registered Warrantholder hereof. All notices and other communications from
the Company to the Warrantholder shall be delivered personally or mailed by
first-class registered or certified mail, postage prepaid, to the address
furnished to the Company in writing by the last Warrantholder who shall have
furnished an address to the Company in writing and shall be deemed to have been
given when so delivered or mailed.
9.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officer.
CLONTECH LABORATORIES, INC.
Date: September 9, 1997 By: /s/ Xxx Xxxx
----------------------- -----------------------------------------
AGREED TO AND ACCEPTED TO BY:
WARRANTHOLDER
SUMMIT INVESTORS III, L.P.
By: /s/ Xxxxxxx X. Xxxx
-----------------------------
General Partner
10.
