Exhibit 8
FORM OF ADVISOR WARRANT
NEITHER THIS WARRANT NOR ANY SECURITY INTO WHICH IT IS CONVERTIBLE HAS BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), NOR UNDER
ANY APPLICABLE STATE SECURITIES LAWS. THIS WARRANT HAS BEEN ACQUIRED FOR
INVESTMENT AND NEITHER THIS WARRANT NOR ANY SECURITY INTO WHICH IT IS
CONVERTIBLE MAY BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION OF THEM UNDER THE ACT OR AN OPINION OF COUNSEL OR OTHER EVIDENCE
ACCEPTABLE TO THE COMPANY THAT SUCH SALE OR TRANSFER IS EXEMPT FROM REGISTRATION
UNDER THE ACT. NEITHER THIS WARRANT NOR ANY SECURITY INTO WHICH IT IS
CONVERTIBLE MAY BE TRANSFERRED EXCEPT UPON THE CONDITIONS SPECIFIED IN THIS
WARRANT AND THE ADVISORY AGREEMENT, DATED AS OF MAY 10, 2002 (THE "ADVISORY
AGREEMENT"), AND NO TRANSFER OF THIS WARRANT OR ANY SECURITY INTO WHICH IT IS
CONVERTIBLE SHALL BE VALID OR EFFECTIVE UNLESS AND UNTIL SUCH CONDITIONS SHALL
HAVE BEEN COMPLIED WITH. THE TRANSFERABILITY OF THIS WARRANT AND ANY SECURITY
INTO WHICH IT IS CONVERTIBLE IS SUBJECT TO THE TRANSFER RESTRICTIONS SET FORTH
HEREIN AND IN THE ADVISORY AGREEMENT, A COPY OF WHICH WILL BE PROVIDED TO THE
HOLDER HEREOF UPON WRITTEN REQUEST TO THE COMPANY.
WARRANT
TO PURCHASE COMMON STOCK OF
BIO-PLEXUS, INC.
THIS WARRANT IS MADE AND DELIVERED PURSUANT TO A
CERTAIN ADVISORY AGREEMENT, DATED AS OF MAY
10, 2002, AND SUBJECT TO THE TERMS AND
CONDITIONS THEREOF.
Certificate No. AW-1 Date of Issuance: June 18, 2002
Expiration Date: December 18, 2004
WHEREAS, Bio-Plexus, Inc., a Delaware corporation (the "Company") and
COMMONWEALTH ASSOCIATES, L.P., the holder of this warrant (the "Holder") have
entered into an Advisory Agreement, dated as of May 10, 2002 (the "Advisory
Agreement"), pursuant to which the Holder agreed to serve as a financial advisor
to the Company
WHEREAS, the Holder has been issued this Warrant as provided in the
Advisory Agreement.
THIS CERTIFIES THAT, for value received, the receipt and sufficiency
of which is hereby acknowledged:
Subject to the conditions set forth herein, the Holder, with an
address at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, is entitled to subscribe
for and purchase from the Company, for a period of thirty (30) months,
commencing as of the date hereof and ending at 5:00 p.m. Eastern Standard Time
on December 18, 2004 (the "Exercise Period"), 1,000,000 shares of Common Stock
(the "Warrant Securities") at the Per Share Exercise Price. All capitalized
terms used but not defined herein shall have the meaning set forth in the
Advisory Agreement.
This Warrant is subject to the following provisions, terms and
conditions:
1. Definitions.
1.1 "Agent Warrant" is the warrant that may be issued to
Commonwealth pursuant to the terms of a Placement Agent Agreement, by and
between the Company and Commonwealth, dated as of even date herewith;
1.2 "Business Day" shall mean any day except a Saturday, a
Sunday, or a legal holiday in the City of New York other than a legal holiday on
which the New York Stock Exchange is open for trading on a regular basis.
1.3 "Common Stock" shall mean the shares of common stock,
$0.001 par value per share, of the Company.
1.4 "Commission" shall mean the U.S. Securities and Exchange
Commission or any other governmental authority at the time administering the
Securities Act.
1.5 "Company" shall have the meaning specified in the
introduction to this Warrant, and shall include any corporation or business
entity resulting from the merger, consolidation or conversion of the Company.
1.6 "Excluded Securities" shall mean (i) any shares of
Common Stock issuable upon exercise of stock options granted by the Company to
its employees in accordance with the Company's 2001 Stock Incentive Plan or any
shares of Common Stock that become issuable upon exercise of stock options
granted by the Company to its employees in accordance with any future stock
option or incentive plan that is approved by the Board of Directors of the
Company; (ii) the Agent Warrants; and (iii) the ICR Warrant.
1.7 "Fair Market Price per Share" shall mean the average of
the closing sales prices, if available, or the average of the bid and asked
prices for the Warrant Securities, Common Stock or Marketable Securities, as the
case may be (or their successors) on the principal market therefor for the five
(5) Trading Days preceding the day which is two (2) Business Days prior to the
day of exercise, or if no such price is available, then a price that is mutually
agreed upon by the Holder and the Company. If the Holder and the Company cannot
agree upon a mutually acceptable price, then such price shall be determined by a
written appraisal of a recognized firm of investment bankers who shall be
selected by the Company and shall be reasonably acceptable to the holders of a
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majority of the Warrants. The determination of such independent appraiser shall
be conclusive and binding on the Holder and the Company.
1.8 "ICR Warrant" shall mean the warrant to purchase fifteen
thousand (15,000) shares of Common Stock issued by the Company to Integrated
Corporate Relations, Inc., a consultant to the Company, to be issued following
the date hereof.
1.9 "Marketable Securities" shall mean securities of a
corporation subject to the informational and reporting requirements of the
Securities Exchange Act of 1934, as amended, that are listed and actively traded
on a nationally-recognized stock exchange or inter-dealer quotation system in
the United States.
1.10 "Per Share Exercise Price" shall be One Dollar ($1.00),
as may be adjusted in accordance with Section 4 hereof.
1.11 "Securities Act" shall mean the Securities Act of 1933,
as amended, or any similar or successor federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect at
the time. Reference to a particular section of the Securities Act shall include
a reference to the comparable section, if any, of any such similar or successor
federal statute.
1.12 "This Warrant" shall mean and include this Warrant and
any Warrant or Warrants hereafter issued as a consequence of the exercise or
transfer of this Warrant in whole or in part.
1.13 "Trading Days" shall mean any days during the course of
which the principal securities exchange on which the Common Stock is listed or
admitted to trading is open for the exchange of securities, or if the Common
Stock is not listed or admitted to trading on any national securities exchange,
the average closing sale price as furnished by the NASD through The Nasdaq Stock
Market, Inc. ("Nasdaq") or by the OTC Electronic Bulletin Board or similar
organization if Nasdaq is no longer reporting such information.
2. Payment upon Exercise; Issuance of Certificates; No Fractional
Shares.
(a) This Warrant may be exercised during the Exercise
Period, as to the whole number of whole Warrant Securities, by the surrender of
this Warrant with the election at the end hereof (the "Election") duly executed
to the Company, during normal business hours on any Business Day, at 000
Xxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx 00000, Attention: President, or at such
other place as is designated in writing by the Company. Such executed Election
must be accompanied by payment in an amount equal to the applicable exercise
price multiplied by the number of Warrant Securities for which this Warrant is
being exercised. Such payment may be made by certified or bank cashier's check
payable to the order of the Company. The Company agrees that the Warrant
Securities so purchased shall be and are deemed to be issued to the Holder or
its designee (subject to the transfer restrictions applicable to this Warrant)
as the record owner of such Warrant Securities as of the close of business on
the date on which this Warrant shall have been surrendered and payment shall
have been made as aforesaid.
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(b) Certificates for the Warrant Securities so purchased,
representing the aggregate number of securities specified in the Election, shall
be delivered to the Holder or its designee within a reasonable time, not
exceeding ten (10) Business Days after this Warrant shall have been exercised.
The stock certificate or certificates so delivered shall be in such
denominations as may be requested by the Holder and shall be registered in the
name of the Holder or such other name as shall be designated by the Holder
(subject to the transfer restrictions applicable to this Warrant). The Company
shall pay all expenses and charges payable in connection with the preparation,
execution and delivery of stock certificates pursuant to this Section 2, except
that, in case such stock certificates shall be registered in a name or names
other than the Holder or the Holder's designee, funds sufficient to pay all
stock transfer taxes which shall be payable in connection with the execution and
delivery of such stock certificates shall be paid by the Holder to the Company
at the time of delivery of such stock certificates by the Company.
(c) This Warrant shall be exercisable only for a whole
number of Warrant Securities. No fractions of such securities, or scrip for any
such fraction of securities, shall be issued upon the exercise of this Warrant.
The Company shall pay a cash adjustment in respect of such fractional interest
in an amount equal to the Fair Market Price per Share of one share of Warrant
Securities at the time of such exercise multiplied by such fraction computed to
the nearest whole cent.
3. Cashless Exercise. The Company agrees that:
(a) The Holder may exercise this Warrant by surrendering it
to the Company and receiving, in exchange therefor, the number of shares of
Common Stock then purchasable upon exercise of that portion of the Warrant to be
exercised less the number of shares of Common Stock equal to the quotient of the
aggregate exercise price of all such shares underlying that portion of the
Warrant to be exercised divided by the Fair Market Price per Share.
(b) Concurrent with the occurrence of any event described in
Section 4 for cash, the Holder may exercise this Warrant by surrendering it to
the Company in exchange for the amount of cash per share the Holder would be
entitled to receive after the happening of such event if this Warrant had been
exercised immediately prior to the close of business on such record date or
effective date, as applicable, less the applicable exercise price per share.
(c) Concurrent with the occurrence of any event described in
Section 4 for Marketable Securities, the Holder may exercise this Warrant by
surrendering it to the Company in exchange for the applicable amount of such
Marketable Securities the Holder would be entitled to receive after the
happening of such event if this Warrant had been exercised immediately prior to
the close of business on such record date or effective date, as applicable, less
the number of such Marketable Securities equal to the quotient of the aggregate
exercise price of all securities underlying this Warrant divided by the Fair
Market Price per Share of such Marketable Securities.
4. Adjustments.
(a) Merger, Sale of Assets, etc. In the event the Company,
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at any time prior to the Holder's exercise of this Warrant, (i) reorganizes
(other than a combination, reclassification, exchange or subdivision); (ii)
merges or consolidates the Company with or into another corporation in which the
Company is not the surviving entity, or merges with another corporation in which
the Company is the surviving entity but the shares of the Company's capital
stock outstanding immediately prior to the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash or
otherwise; or (iii) sells or transfers the Company's properties and assets as,
or substantially as, an entirety to any other person, then, as part of such
reorganization, merger, consolidation, sale or transfer, provision shall be made
so that the Holder shall thereafter be entitled to receive upon exercise of this
Warrant the number of securities or property of the successor corporation
resulting from such reorganization, merger, consolidation, sale or transfer that
a holder of the securities deliverable upon exercise of this Warrant would have
been entitled to receive in such reorganization, consolidation, merger, sale or
transfer if this Warrant had been exercised immediately prior to such
reorganization, merger, consolidation, sale or transfer.
(b) Declaration of Dividends, Stock Splits, etc. In the
event the Company declares a dividend or distribution of its capital stock, or
effects a stock split or reverse stock split with respect to its capital stock,
or issues any shares of its capital stock by reclassification of shares of its
capital stock, the exercise rights of the Holder in effect on the date of such
event shall be adjusted proportionately so that the Holder thereafter shall be
entitled to receive upon exercise pursuant to the terms and conditions hereof
the aggregate number of shares of capital stock that the Holder would own or be
entitled to receive after the happening of any of the events mentioned in this
Section 4(ii) if this Warrant had been exercised immediately prior to the close
of business on the date of such happening.
(c) Issuances below Per Share Exercise Price. In the event
the Company issues or sells any shares of Common Stock for no consideration or
for a consideration per share less than the Per Share Exercise Price in effect
on the date of such issuance or sale, or issues or sells any debt or equity
securities of the Company that are convertible into Common Stock (the
"Convertible Securities") (other than the Excluded Securities) with a conversion
or exercise price less than the Per Share Exercise Price then in effect (a
"Dilutive Issuance"), then immediately upon the Dilutive Issuance and prior to
the issuance of the Warrant Securities (excluding stock dividends, subdivisions,
split-ups, combinations, dividends, recapitalizations or other issuances of
securities which are covered by Sections 4(a) and (b) herein), the Per Share
Exercise Price for the Warrant Securities shall thereafter be adjusted to a
price equal to the quotient obtained by dividing:
(1) an amount equal to the sum of
(x) the total number of shares of Common Stock
outstanding immediately prior to such issuance multiplied by the Per Share
Exercise Price in effect immediately prior to such issuance, plus
(y) the consideration received by the Company upon
such issuance, by
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(2) the total number of shares of Common Stock
outstanding immediately prior to such issuance plus the additional shares of
Common Stock or securities exercisable for or convertible into Common Stock
issued in such issuance (but not including any additional shares of Common Stock
deemed to be issued as a result of any adjustment in the Per Share Exercise
Price of any shares of Common Stock resulting from such issuance).
(d) Written Notice. The Company shall give written notice to
the Holder within ten (10) days following the consummation of any transaction
within the scope of this Section 4 and provide in such written notice a brief
description of the terms and conditions of such transaction.
(e) Minimal Adjustments. No adjustment in a Per Share
Exercise Price need be made if such adjustment would result in a change in such
Per Share Exercise Price of less than five cents ($0.05). Any adjustment of less
than five cents ($0.05) which is not made shall be carried forward and shall be
made at the time of and together with any subsequent adjustment which, on a
cumulative basis, amounts to an adjustment of five cents ($0.05) or more in a
Per Share Exercise Price.
5. Registration Rights.
(a) At any time that the Company proposes to file a Company
registration statement (a "Company Registration Statement"), either for its own
account or for the account of a shareholder or shareholders, covering the
disposition of securities of the Company, the Company shall give the Holder
written notice of its intention to do so and of the intended method of sale (the
"Registration Notice") within a reasonable time prior to the anticipated filing
date of the Company Registration Statement effecting such Registration. The
Holder may request inclusion of any or all of the Warrant Securities in such
Company Registration by delivering to the Company, within ten (10) Business Days
after receipt of the Registration Notice, a written notice (the "Piggyback
Notice") stating the number of Warrant Securities proposed to be included and
that such shares are to be included in any underwriting only on the same terms
and conditions as the shares of Common Stock otherwise being sold through
underwriters or otherwise under such Company Registration Statement; provided
that the Holder will not be required to make any representation other than as to
title to the Warrant Securities and will not be required to give any indemnity
substantially more unfavorable to the Holder than is given herein or in each
case as may reasonably be required by the underwriter pursuant to applicable
law. The Company shall use its best efforts to cause all Warrant Securities
specified in the Piggyback Notice to be included in the Company Registration
Statement and any related offering, all to the extent required to permit the
sale by the Holder of such Warrant Securities in accordance with the method of
sale applicable to the other shares of Common Stock included in such Company
Registration Statement; provided, however, that if, at any time after giving
written notice of its intention to register any securities and prior to the
effective date of the Company Registration Statement filed in connection with
such registration, the Company shall determine for any reason not to register or
to delay registration of such securities, the Company may, at its election, give
written notice of such determination to the Holder and, thereupon:
(i) in the case of a determination not to register,
shall be relieved of its obligation to register any Warrant Securities
in connection with such registration (but not from its obligation to
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pay any expenses in connection therewith), and
(ii) in the case of a delay in registering, shall be
permitted to delay registering any Warrant Securities for the same
period as the delay in registering such other securities.
(b) The Company's obligation to include Warrant Securities
in a Company Registration Statement pursuant to 5(a) shall be subject to the
following limitations:
(iii) the Company shall not be required to include any
Warrant Securities in the Company Registration Statement filed in
connection with an initial public offering having gross proceeds in
excess of Ten Million Dollars ($10,000,000); provided that no
securities are included in such Registration Statement for the account
of any other security holders.
(iv) The Company shall not be obligated to include any
Warrant Securities in a registration statement filed on Form S-4, Form
S-8 or such other similar successor forms then in effect under the
Securities Act.
(v) If a Company Registration Statement involves an
underwritten offering and the managing underwriter advises the Company
in writing that, in its opinion, the number of securities requested to
be included in such Company Registration Statement exceeds the number
which can be sold in such offering without adversely affecting the
offering, the Company will include in such Company Registration
Statement the number of such securities which the Company is so
advised can be sold in such offering without adversely affecting the
offering, determined in the following priority:
(A) first, the securities proposed by the Company
to be sold for its own account,
(B) second, any Warrant Securities requested to be
included in such offering.
6. Issue Tax. The issuance of certificates for the Warrant
Securities upon the exercise of this Warrant shall be made without charge to the
Holder for any issuance tax in respect thereof, provided that the Company shall
not be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any certificate in a name other than
that of the Holder or the Holder's designee.
7. Transferability and Assignment. Subject to compliance with
applicable federal and state securities laws, and to the extent applicable, the
Holder shall have the right, in its sole and absolute discretion, to transfer,
sell, pledge or otherwise exchange this Warrant. In the event the Holder
proposes to effect an assignment, the Holder must present this Warrant to the
Company for transfer, accompanied by a duly completed and executed Form of
Assignment (as provided at the end hereof), the transferee must agree to be
bound by the terms of this Warrant as if such transferee were an original holder
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of this Warrant, and the Holder must deliver to the Company an opinion of
counsel of the Holder in form reasonably satisfactory to the Company that the
transfer may be properly made under an exemption from registration under the
Securities Act and applicable state securities laws. Upon any registration of
transfer, the Company shall execute and deliver a new Warrant certificate to the
person entitled thereto. In the event the Warrant is transferred, the subsequent
holder shall have no greater rights than those afforded the Holder hereunder.
Any transfer made in violation of this Section 7 shall be void.
8. Reservation of Warrant Securities. The Company shall, at all
times when this Warrant shall be outstanding, reserve and keep available out of
its authorized but unissued stock, for the purpose of effecting the exercise of
this Warrant, such number of its duly authorized shares of capital stock as
shall from time to time be sufficient to effect the exercise of this Warrant.
Alternatively, the Company shall take all action necessary to cause it to be
authorized to issue all necessary shares issuable upon exercise of this Warrant.
All shares of capital stock which may be issued in connection with the exercise
of this Warrant will, upon issuance by the Company, be validly issued, fully
paid and non-assessable.
9. Mutilated or Missing Warrant Certificate. In case the
certificate evidencing this Warrant shall be mutilated, lost, stolen or
destroyed, the Company shall, at the request of the Holder, issue and deliver in
exchange and substitution for and upon cancellation of the mutilated
certificate, or in lieu of and in substitution for the certificate lost, stolen
or destroyed, a new Warrant certificate of like tenor and representing the
equivalent rights and interests, but only upon receipt of evidence satisfactory
to the Company of such loss, theft or destruction of such Warrant. Applicants
for such substitute Warrant certificate shall also comply with such other
reasonable requirements and pay such other reasonable charges as the Company may
prescribe. The Company shall pay all taxes (other than securities transfer
taxes) and all other expenses and charges payable in connection with the
preparation, execution and delivery of Warrants pursuant to this Section 9.
10. No Rights as a Shareholder. Nothing contained herein shall be
construed as conferring upon the Holder or its transferees any rights as a
shareholder of the Company, including the right to vote, receive dividends,
consent or receive notices as a shareholder in respect of any meeting of
shareholders for the election of directors of the Company or any other matter.
11. Legend. The Warrant Securities issued upon exercise of this
Warrant shall be subject to a stop transfer order and the certificate or
certificates evidencing such Warrant Securities shall bear the following legend:
"The securities represented by this certificate
have not been registered under the Securities Act
of 1933, as amended (the "Act"), or any state
securities laws and neither such securities nor
any interest therein may be offered, sold,
pledged, assigned or otherwise transferred unless
(1) a registration statement with respect thereto
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is effective under the Act and any applicable
state securities laws, or (2) the Company receives
an opinion of counsel to the holder of such
securities, which counsel and opinion are
reasonably satisfactory to the Company, that such
securities may be offered, sold, pledged, assigned
or transferred in the manner contemplated without
an effective registration statement under the Act
or applicable state securities laws."
12. Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be mailed by
certified mail, return receipt requested, or by Federal Express, Express Mail or
similar overnight delivery or courier service or delivered (in person or by
telecopy, telex or similar telecommunications equipment) against receipt to the
party to whom it is to be given, (i) if to the Company, addressed to Bio-Plexus,
Inc., 000 Xxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx 00000, Xxxx: President, Telecopy
No. (000) 000-0000; with a copy to Xxxx and Reige, P.C., Xxx Xxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000, Attn: Xxxxx X. Xxxxxxxxx, Esq., Telecopy No. (860)
240-1002, (ii) if to the Holder, at the address set forth above, or (iii) in
either case, to such other address as the party shall have furnished in writing
in accordance with the provisions of this Section 12. Notice to the estate of
any party shall be sufficient if addressed to the party as provided in this
Section 12. Any notice or other communication given by certified mail shall be
deemed given at the time of certification thereof, except for a notice changing
a party's address which shall be deemed given at the time of receipt thereof.
Any notice given by other means permitted by this Section 12 shall be deemed
given at the time of receipt thereof.
13. Governing Law. This Warrant shall be construed in accordance
with the laws of the State of New York, without regard to principles governing
conflicts of law. Any action or proceeding arising out of or relating to this
Warrant shall be commenced in a federal or state court having competent
jurisdiction in the State of New York, and for the purpose of any such action or
proceeding, each of the Company and the Holder and any assignee of the Holder
submits to the personal jurisdiction of the State of New York.
14. Remedies. The Company stipulates that the remedies at law of
the Holder in the event of any default or threatened default by the Company in
the performance of or compliance with any of the terms of this Warrant are not
and will not be adequate, and that such terms may be specifically enforced by a
decree for the specific performance of any agreement contained herein or by an
injunction against a violation of any of the terms hereof or otherwise.
15. Amendments. The terms of this Warrant may be amended,
modified or waived only pursuant to a written instrument signed by the party
against whom enforceability may be sought.
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16. Headings. The descriptive headings of the several sections of
this Warrant are inserted for purposes of reference only, and shall not affect
the meaning or construction of any of the provisions hereof.
[Remainder of page intentionally left blank]
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[Signature Page to Warrant]
Dated: June ____, 2002
BIO-PLEXUS, INC.
By: _____________________________________
Name:
Title:
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FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the
attached Warrant.)
FOR VALUE RECEIVED, ___________________ hereby sells, assigns,
and transfers unto _____________________________ Warrants to purchase
_____________ shares of _______________ of Bio-Plexus, Inc. (the "Company"),
together with all right, title, and interest therein, and does hereby
irrevocably constitute and appoint _____________________________ attorney to
transfer such Warrant on the books of the Company, with full power of
substitution.
Dated:
------------------------
Signature:___________________________________
NOTICE
The signature on the foregoing Assignment must correspond to the
name as written upon the face of this Warrant in every particular, without
alteration or enlargement or any change whatsoever.
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To: Bio-Plexus, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxx 00000
ELECTION TO EXERCISE
The undersigned hereby exercises his or its rights to purchase
______ Warrant Securities covered by the within Warrant certificate and tenders
payment herewith in the amount of $_____________ in accordance with the terms
thereof, and requests that certificates for such securities be issued in the
name of, and delivered to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print Name, Address and Social Security or Tax Identification Number)
Signature: ____________________________
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