Exhibit 4.4
Common Stock Warrant No. __________
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE
SOLD OR TRANSFERRED UNLESS SUCH SALE OR TRANSFER IS IN ACCORDANCE WITH THE
REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS OR SOME OTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS IS
AVAILABLE WITH RESPECT THERETO.
ENSYS ENVIRONMENTAL PRODUCTS, INC.
WARRANT TO PURCHASE
COMMON STOCK
1. ISSUANCE. This Warrant is issued to ________________________________
by EnSys Environmental Products, Inc., a Delaware corporation (referred to
hereinafter, with its successors, as the "Company"), on this __________ day of
____________, 1996 (the "Warrant Issuance Date"), in consideration of the
surrender to the Company for cancellation of certain warrants to purchase common
stock of Strategic Diagnostics Inc. ("SDI"), which warrants were issued on
____________________ and [EXCHANGED_____________________].
2. PURCHASE PRICE; NUMBER OF SHARES. Subject to the terms and conditions
hereinafter set forth, the registered holder of this Warrant (the "Holder) is
entitled upon surrender of this Warrant with the subscription form annexed
hereto, duly executed, at the office of the Company, to purchase __________
shares of common stock of the Company, par value $.01 per share (the "Common
Stock"), at the per share exercise price of $___________ (the "Purchase Price").
3. PAYMENT OF PURCHASE PRICE. Payment of the Purchase Price shall be
made in cash or by wire transfer or certified check or bank draft, payable to
the order of the Company, in lawful money of the United States.
4. PARTIAL EXERCISE. This Warrant may be exercised in part, and the
Holder shall be entitled to receive a new warrant, which shall be dated as of
the date of this Warrant, covering the number of shares in respect of which this
Warrant shall not have been exercised.
5. ISSUANCE DATE. The person or persons in whose name or names any
certificate representing shares of Common Stock is issued hereunder shall be
deemed to have become the holder of record of the shares represented thereby as
at the close of business on the date this Warrant is exercised with respect to
such shares, whether or not the transfer books of the Company shall be closed.
6. EXPIRATION DATE. This Warrant shall expire at the close of business
on ____________________, and shall be void thereafter.
7. RESERVED SHARES; VALID ISSUANCE. The Company covenants that it will
at all times from and after the date hereof reserve and keep available such
number of its authorized shares of Common Stock, free from all preemptive or
similar rights therein, as will be sufficient to permit the exercise of this
Warrant in full. The Company further covenants that, assuming the receipt by
the Company of the consideration therefor, such shares as may be issued pursuant
to the exercise
of this Warrant will, upon issuance, be duly and validly issued, fully paid and
nonassessable and free from all taxes, liens and charges with respect to the
issuance thereof.
8. DIVIDENDS. If at any time after the Warrant Issuance Date, the
Company subdivides the Common Stock, by split-up or otherwise, or combines the
Common Stock, or issues additional shares of Common Stock in payment of a stock
dividend on the Common Stock, the number of shares issuable on the exercise of
this Warrant shall forthwith be proportionately increased in the case of a
subdivision or stock dividend, or proportionately decreased in the case of a
combination, and the Purchase Price shall forthwith be proportionately decreased
in the case of a subdivision or stock dividend, or proportionately increased in
the case of a combination. Whenever the Purchase Price is adjusted, as herein
provided, the Company shall promptly deliver to the Holder a certificate of an
officer of the Company setting forth the Purchase Price after such adjustment
and setting forth a brief statement on the facts requiring such adjustment.
9. MERGERS AND RECLASSIFICATIONS. If at any time after the Warrant
Issuance Date there shall be any reclassification, capital reorganization or
change of the Common Stock (other than as a result of a subdivision, combination
or stock dividend provided for in Section 8 hereof), or any consolidation of the
Company with, or merger of the Company into, another corporation or other
business organization (other than a consolidation or merger in which the Company
is the continuing corporation and which does not result in any reclassification
or change of the outstanding Common Stock), or any sale or conveyance to another
corporation or other business organization of all or substantially all of the
assets of the Company, then, as a condition of such reclassification,
reorganization, change, consolidation, merger, sale or conveyance, lawful
provisions shall be made, and duly executed documents evidencing the same from
the Company or its successor shall be delivered to the Holder, so that the
Holder shall thereafter have the right to purchase, at a total price not to
exceed that payable upon the exercise of this Warrant in full, the kind and
amount of shares of stock and other securities and property receivable upon such
reclassification, reorganization, change, consolidation, merger, sale or
conveyance by a holder of the number of shares of Common Stock which might have
been purchased by the Holder immediately prior to such reclassification,
reorganization, change, consolidation, merger, sale or conveyance, and in any
such case appropriate provisions shall be made with respect to the rights and
interest of the Holder to the end that the provisions hereof (including without
limitation, provisions for the adjustment of the Purchase Price and the number
of shares issuable hereunder) shall thereafter be applicable in relation to any
shares of stock or other securities and property thereafter deliverable upon
exercise hereof.
10. FRACTIONAL SHARES. In no event shall any fractional share of Common
Stock be issued upon any exercise of this Warrant.
11. NOTICES OF RECORD DATE, ETC. In the event of:
(a) any taking by the Company of a record of the holders of any class
of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any
class or any other securities or property, or to receive any other right,
(b) any reclassification of the capital stock of the Company, capital
reorganization of the Company, consolidation or merger involving the
Company, or sale or conveyance of all or substantially all of its assets,
or
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(c) any voluntary or involuntary dissolution, liquidation or winding-
up of the Company,
then and in each such event the Company will mail or cause to be mailed to the
Holder a notice specifying (i) the date on which any such 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 (ii) the date on which
any such reclassification, reorganization, consolidation, merger, sale or
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 in respect of
such event are to be determined. Such notice shall be mailed at least 20 days
prior to the date specified in such notice on which any such action is to be
taken.
12. AMENDMENT. The terms of this Warrant may be amended, modified or
waived only by written agreement of the Company and the Holder.
13. WARRANT REGISTER; TRANSFER, ETC.
A. The Company will maintain a register containing the names and
addresses of the registered holders of outstanding Warrants. The Holder may
change its address as shown on the warrant register by written notice to the
Company requesting such change. Any notice or written communication required or
permitted to be given to the Holder may be given by certified mail or delivered
to the Holder at its address as shown on the warrant register.
B. This Warrant may not be transferred or assigned in whole or in
part by the Holder without the prior written consent of the Company, which
consent shall not be unreasonably withheld (it being understood that the Company
may withhold consent to any transfer of the Warrant to any person seeking to
obtain control of the Company), except that prior written consent of the Company
will not be required for a transfer of the Warrant in whole by the Holder to an
"affiliate" of the Holder. An "affiliate" of the Holder shall mean any other
person or entity directly or indirectly controlling, controlled by or under
direct or indirect common control with the Holder. Prior to and as a condition
to effecting any such transfer the Holder shall deliver to the Company an
opinion of counsel reasonably satisfactory to the Company to the effect that
such transfer will comply with all applicable securities laws.
C. In case this Warrant shall be mutilated, lost, stolen or
destroyed, the Company shall issue a new warrant of like tenor and denomination
and deliver the same (i) in exchange and substitution for and upon surrender and
cancellation of any mutilated Warrant, or (ii) in lieu of any Warrant lost,
stolen or destroyed, upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft or destruction of such Warrant (including a
reasonably detailed affidavit with respect to the circumstances of any loss,
theft or destruction) and of indemnity reasonably satisfactory to the Company.
14. NO IMPAIRMENT. The Company will not, by amendment of its Certificate
of Incorporation or through any reclassification, capital reorganization,
consolidation, merger, sale or conveyance of assets, dissolution, liquidation,
issue or sale of securities or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms of this Warrant, but
will at all times in good faith assist in the carrying out of all such terms and
in the taking of all such action as may be necessary or appropriate in order to
protect the rights of the Holder.
15. GOVERNING LAW. The provisions and terms of this Warrant shall be
governed by and construed in accordance with the internal laws of the State of
Delaware.
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16. SUCCESSORS AND ASSIGNS. This Warrant shall be binding upon the
Company's successors and assigns and shall inure to the benefit of the Holder's
successors, legal representatives and permitted assigns.
17. BUSINESS DAYS. If the last or appointed day for the taking of any
action required or the expiration of any right granted herein shall be a
Saturday or Sunday or a legal holiday in Delaware, then such action may be taken
or right may be exercised on the next succeeding day which is not a Saturday or
Sunday or such a legal holiday.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its duly authorized officer, under seal, as of the date above written.
ENSYS ENVIRONMENTAL PRODUCTS, INC.
By:___________________________________
Title:__________________________________
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SUBSCRIPTION
To: ____________________________ Date: _________________________________
The undersigned hereby subscribes for __________ shares of Common Stock
covered by this Warrant. The certificate(s) for such shares shall be issued in
the name of the undersigned or as otherwise indicated below:
Signature_______________________________
Name for Registration_____________________
Mailing Address_________________________
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Common Stock Warrant No. __________
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE
SOLD OR TRANSFERRED UNLESS SUCH SALE OR TRANSFER IS IN ACCORDANCE WITH THE
REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS OR SOME OTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS IS
AVAILABLE WITH RESPECT THERETO.
ENSYS ENVIRONMENTAL PRODUCTS, INC.
WARRANT TO PURCHASE
COMMON STOCK
1. ISSUANCE. This Warrant is issued to ___________________ by EnSys
Environmental Products, Inc., a Delaware corporation (referred to
hereinafter, with its successors, as the "Company"), on this __________ day
of ____________________, 1996 (the "Warrant Issuance Date"), in consideration
of the surrender to the Company for cancellation of certain warrants to
purchase common stock of Strategic Diagnostics Inc., which warrants were
issued on __________ ___, 199_.
2. PURCHASE PRICE; NUMBER OF SHARES. Subject to the terms and conditions
hereinafter set forth, the registered holder of this Warrant (the "Holder) is
entitled upon surrender of this Warrant with the subscription form annexed
hereto, duly executed, at the office of the Company, to purchase __________
shares of common stock of the Company, par value $.01 per share (the "Common
Stock"), at the per share exercise price of $__________ (the "Purchase Price").
3. PAYMENT OF PURCHASE PRICE. The Purchase Price may be paid (i) in cash
or by check, (ii) by the surrender by the Holder to the Company of any
promissory notes or other obligations issued by the Company, with all such notes
and obligations so surrendered being credited against the Purchase Price in an
amount equal to the principal amount thereof plus accrued interest to the date
of surrender, (iii) through delivery by the Holder to the Company of other
securities issued by the Company, with such securities being credited against
the Purchase Price in an amount equal to the fair market value thereof, as
determined in good faith by the Board of Directors of the Company (the "Board"),
or (iv) by any combination of the foregoing. The Board shall promptly respond
in writing to an inquiry by the Holder as to the fair market value of any
securities the Holder may wish to deliver to the Company pursuant to clause
(iii) above.
4. NET ISSUE ELECTION. The Holder may elect to receive, without the
payment by the Holder of any additional consideration, shares equal to the value
of this Warrant or any portion hereof by the surrender of this Warrant or such
portion to the Company, with the net issue election notice annexed hereto duly
executed, at the office of the Company; PROVIDED, that the Holder may not make
such an election unless (i) the Company has registered its securities pursuant
to the Securities Act of 1933, as amended, (the "Act") or in connection with
such registration or (ii) upon the expiration of this Warrant. Thereupon, the
Company shall issue to the Holder such number of fully paid and nonassessable
shares of Common Stock as is computed using the following formula:
X = Y (A-B)
-------
A
where X = the number of shares to be issued to the Holder pursuant to this
Section 4.
Y = the number of shares covered by this Warrant in respect of which the
net issue election is made pursuant to this Section 4.
A = the fair market value of one share of Common Stock. If the Company's
securities are registered pursuant to the Act, the fair market value shall mean
the average high and low prices of the Common Stock on the day prior to the
exercise of this Warrant, if the Common Stock is being traded on a national
exchange; or the last reported sale price on the day prior to exercise of this
Warrant, if the Common Stock is traded on the Nasdaq National Market, and if the
Common Stock is not traded on a national exchange; or the closing bid price (or
average of bid prices) last quoted on the day prior to the exercise of this
Warrant by an established quotation service for over-the-counter securities, if
the Common Stock is not reported on the Nasdaq National Market or a national
exchange. If the election occurs in connection with the registration of
securities, then the fair market value shall be the price offered to the public.
Otherwise, the fair market value shall be as determined in good faith by the
Board, at the time the net issue election is made pursuant to this Section 4.
B = the Purchase Price in effect under this Warrant at the time the net
issue election is made pursuant to this Section 4.
The Board shall promptly respond in writing to an inquiry by the Holder as to
the fair market value of one share of Common Stock.
5. PARTIAL EXERCISE. This Warrant may be exercised in part, and the
Holder shall be entitled to receive a new warrant, which shall be dated as of
the date of this Warrant, covering the number of shares in respect of which this
Warrant shall not have been exercised.
6. ISSUANCE DATE. The person or persons in whose name or names any
certificate representing shares of Common Stock is issued hereunder shall be
deemed to have become the holder of record of the shares represented thereby as
at the close of business on the date this Warrant is exercised with respect to
such shares, whether or not the transfer books of the Company shall be closed.
7. EXPIRATION DATE. This Warrant shall expire at the close of business
[on the expiration date of the original warrants] and shall be void thereafter.
8. RESERVED SHARES; VALID ISSUANCE. The Company covenants that it will
at all times from and after the date hereof reserve and keep available such
number of its authorized shares of Common Stock, free from all preemptive or
similar rights therein, as will be sufficient to permit the exercise of this
Warrant in full. The Company further covenants that, assuming the receipt by
the Company of the consideration therefor, such shares as may be issued pursuant
to the exercise of this Warrant will, upon issuance, be duly and validly issued,
fully paid and nonassessable and free from all taxes, liens and charges with
respect to the issuance thereof.
9. DIVIDENDS. If at any time after the Warrant Issuance Date, the
Company subdivides the Common Stock, by split-up or otherwise, or combines the
Common Stock, or issues additional shares of Common Stock in payment of a stock
dividend on the Common Stock, the number of shares issuable on the exercise of
this Warrant shall forthwith be proportionately increased in the case of a
subdivision or stock dividend, or proportionately decreased in the case of a
combination, and the Purchase Price shall forthwith be proportionately decreased
in the case of a subdivision or stock dividend, or proportionately increased in
the case of a combination. Whenever the Purchase
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Price is adjusted, as herein provided, the Company shall promptly deliver to the
Holder a certificate of an officer of the Company setting forth the Purchase
Price after such adjustment and setting forth a brief statement on the facts
requiring such adjustment.
10. MERGERS AND RECLASSIFICATIONS. If at any time after the Warrant
Issuance Date there shall be any reclassification, capital reorganization or
change of the Common Stock (other than as a result of a subdivision, combination
or stock dividend provided for in Section 9 hereof), or any consolidation of the
Company with, or merger of the Company into, another corporation or other
business organization (other than a consolidation or merger in which the Company
is the continuing corporation and which does not result in any reclassification
or change of the outstanding Common Stock), or any sale or conveyance to another
corporation or other business organization of all or substantially all of the
assets of the Company, then, as a condition of such reclassification,
reorganization, change, consolidation, merger, sale or conveyance, lawful
provisions shall be made, and duly executed documents evidencing the same from
the Company or its successor shall be delivered to the Holder, so that the
Holder shall thereafter have the right to purchase, at a total price not to
exceed that payable upon the exercise of this Warrant in full, the kind and
amount of shares of stock and other securities and property receivable upon such
reclassification, reorganization, change, consolidation, merger, sale or
conveyance by a holder of the number of shares of Common Stock which might have
been purchased by the Holder immediately prior to such reclassification,
reorganization, change, consolidation, merger, sale or conveyance, and in any
such case appropriate provisions shall be made with respect to the rights and
interest of the Holder to the end that the provisions hereof (including without
limitation, provisions for the adjustment of the Purchase Price and the number
of shares issuable hereunder) shall thereafter be applicable in relation to any
shares of stock or other securities and property thereafter deliverable upon
exercise hereof.
11. FRACTIONAL SHARES. In no event shall any fractional share of Common
Stock be issued upon any exercise of this Warrant.
12. NOTICES OF RECORD DATE, ETC. In the event of:
(a) any taking by the Company of a record of the holders of any class
of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any
class or any other securities or property, or to receive any other right,
(b) any reclassification of the capital stock of the Company, capital
reorganization of the Company, consolidation or merger involving the
Company, or sale or conveyance of all or substantially all of its assets,
or
(c) any voluntary or involuntary dissolution, liquidation or winding-
up of the Company,
then and in each such event the Company will mail or cause to be mailed to the
Holder a notice specifying (i) the date on which any such 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 (ii) the date on which
any such reclassification, reorganization, consolidation, merger, sale or
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 in respect of
such event are to be determined. Such notice shall be mailed at least 20 days
prior to the date specified in such notice on which any such action is to be
taken.
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13. AMENDMENT. The terms of this Warrant may be amended, modified or
waived only by written agreement of the Company and the Holder.
14. WARRANT REGISTER; TRANSFER, ETC.
A. The Company will maintain a register containing the names and
addresses of the registered holders of outstanding Warrants. The Holder may
change its address as shown on the warrant register by written notice to the
Company requesting such change. Any notice or written communication required or
permitted to be given to the Holder may be given by certified mail or delivered
to the Holder at its address as shown on the warrant register.
B. This Warrant may not be transferred or assigned in whole or in
part by the Holder without the prior written consent of the Company, which
consent shall not be unreasonably withheld (it being understood that the Company
may withhold consent to any transfer of the Warrant to any person seeking to
obtain control of the Company), except that prior written consent of the Company
will not be required for a transfer of the Warrant in whole by the Holder to an
"affiliate" of the Holder. An "affiliate" of the Holder shall mean any other
person or entity directly or indirectly controlling, controlled by or under
direct or indirect common control with the Holder. Prior to and as a condition
to effecting any such transfer the Holder shall deliver to the Company an
opinion of counsel reasonably satisfactory to the Company to the effect that
such transfer will comply with all applicable securities laws.
C. In case this Warrant shall be mutilated, lost, stolen or
destroyed, the Company shall issue a new warrant of like tenor and denomination
and deliver the same (i) in exchange and substitution for and upon surrender and
cancellation of any mutilated Warrant, or (ii) in lieu of any Warrant lost,
stolen or destroyed, upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft or destruction of such Warrant (including a
reasonably detailed affidavit with respect to the circumstances of any loss,
theft or destruction) and of indemnity reasonably satisfactory to the Company.
15. NO IMPAIRMENT. The Company will not, by amendment of its Certificate
of Incorporation or through any reclassification, capital reorganization,
consolidation, merger, sale or conveyance of assets, dissolution, liquidation,
issue or sale of securities or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms of this Warrant, but
will at all times in good faith assist in the carrying out of all such terms and
in the taking of all such action as may be necessary or appropriate in order to
protect the rights of the Holder.
16. GOVERNING LAW. The provisions and terms of this Warrant shall be
governed by and construed in accordance with the internal laws of the State of
Delaware.
17. SUCCESSORS AND ASSIGNS. This Warrant shall be binding upon the
Company's successors and assigns and shall inure to the benefit of the Holder's
successors, legal representatives and permitted assigns.
18. BUSINESS DAYS. If the last or appointed day for the taking of any
action required or the expiration of any right granted herein shall be a
Saturday or Sunday or a legal holiday in Delaware, then such action may be taken
or right may be exercised on the next succeeding day which is not a Saturday or
Sunday or such a legal holiday.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its duly authorized officer, under seal, as of the date above written.
ENSYS ENVIRONMENTAL PRODUCTS, INC.
By:___________________________________
Title:__________________________________
5
SUBSCRIPTION
To: ____________________________ Date: _________________________________
The undersigned hereby subscribes for __________ shares of Common Stock
covered by this Warrant. The certificate(s) for such shares shall be issued in
the name of the undersigned or as otherwise indicated below:
Signature_______________________________
Name for Registration_____________________
Mailing Address_________________________
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NET ISSUE ELECTION NOTICE
To: ____________________________ Date: _________________________________
The undersigned hereby elects under Section 4 to surrender the right to
purchase __________ shares of Common Stock Pursuant to this Warrant. The
certificate(s) for the shares issuable upon such net issue election shall be
issued in the name of the undersigned or as otherwise indicated below.
Signature_______________________________
Name for Registration_____________________
Mailing Address_________________________
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