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EXHIBIT 4.14
WARRANTS
(Cancellable @ $5.00 Liquidity Event)
FOR GOOD AND VALUABLE CONSIDERATION, the receipt of which is hereby
acknowledged, Genomic Solutions, Inc., a Delaware corporation, ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, hereinafter referred to as the
"Company", grants to hereinafter referred to as "Optionee", or assigns, the
right to purchase shares of common stock of the Company at an initial
exercise price per share of one cent, subject to termination in whole or in part
in accordance with subsection (M) of this Warrant. The Warrants will expire on
October 28, 2009.
(A) Stock Dividends. In the event that the Company shall issue any shares
of common stock as a dividend upon its common stock before these Warrants are
exercised, Optionee upon exercising these Warrants after the date of record when
said stock dividends are payable, shall be entitled to receive, in addition to
the shares of common stock purchased hereunder, without the payment of further
consideration, the number of shares of the common stock which it would have
been entitled to receive if it had been a holder of record on such record date
of the number of shares of the common stock then purchasable under these
Warrants (increased proportionately on account of any prior common stock
dividends).
(B) Splits. In the event that the Company by amendment of its Articles of
Incorporation or otherwise shall split up its outstanding shares of common stock
into a greater number of shares, or decrease the outstanding shares by
combination or otherwise, the number of shares of common stock called for by
these Warrants shall be increased or decreased correspondingly on account of
each such stock split or combination without any increase or decrease in the
total purchase price (for all shares).
(C) Adjustment for Reclassification, Exchange, or Substitution. If the
Common Stock purchasable upon exercise of this Warrant shall be changed into the
same or a different number of shares of any class or classes of stock, whether
by capital reorganization, reclassification, or otherwise (other than a
subdivision or combination of shares or stock dividend provided for above, or a
reorganization, merger, consolidation or sale of assets provided for below),
then and in each such event the holder of this Warrant shall have the right
thereafter to be issued upon the exercise of this Warrant the kind and amounts
of shares of stock and other securities and property receivable upon such
reorganization, reclassification or other change, by holders of the number of
shares of Common Stock purchasable upon exercise of the Warrant immediately
prior to such reorganization, reclassification, or change, all subject to
further adjustment as provided herein.
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(D) Reorganization, Mergers, Consolidations, or Sales of Assets. If at any
time or from time to time there shall be a capital reorganization of the Common
Stock (other than a subdivision, combination, reclassification, or exchange of
shares provided for above) or a merger or consolidation of the Company with or
into another corporation, or the sale of all or substantially all of the
Company's properties and assets to any other person, then:
1. If in any such transaction, the shareholders of Company receive cash
or Freely Marketable Securities (as hereinafter defined), or a combination
thereof, this Warrant shall be exercised immediately prior to the consummation
of any such transaction (but such exercise may be conditioned upon the
consummation of such transaction) and thereafter, the holder of this Warrant
shall be entitled to receive, upon the surrender of this Warrant and payment of
the applicable purchase price, only the cash or the Freely Marketable Securities
to which a holder of common stock deliverable upon exercise of this Warrant
immediately prior to the consummation of such transaction would have been
entitled to received on account of such transaction.
2. If the provisions of subsection (D)(1) are not applicable,
provision shall be made so that as a part of such reorganization, merger,
consolidation, or sale, the holders of this Warrant shall thereafter be entitled
to receive upon exercise of this Warrant the number of shares of stock or other
securities or property of the Company, or of the successor corporation resulting
from such merger or consolidation or sale, to which a holder of Common Stock
deliverable upon exercise would have been entitled on such capital
reorganization, merger, consolidation, or sale.
3. For purposes of this Warrant, "Freely Marketable Securities" shall
mean securities of a class registered under Section 12(b) or Section 12(g) of
the Securities Exchange Act of 1934 (or if not so registered, with respect to
which an underwritten public offering of such securities shall have been
completed pursuant to a Registration Statement filed under the Securities Act of
1933 and as a consequence of the distribution of securities pursuant to such
offering will necessitate registration of such class of securities under the
Securities Exchange Act of 1934), which may be resold by the holder thereof
without a requirement for any registration under federal or state securities
laws, provided however, that underwriter lock-up provisions not exceeding 180
days or limitations on the manner in which such securities may be sold or the
quantity of such securities which may be sold in any three month period under
Rule 145 of the rules and regulations promulgated under the Securities Act of
1933 (but not a delay in the time at which such securities may be sold other
than resulting from the foregoing) shall not be considered to render otherwise
Freely Marketable Securities not freely marketable.
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(E) Successive Application of Provisions. Appropriate adjustment shall be
made in the application of these provisions with respect to the rights of
the holders of the Warrant after a stock dividend, stock split,
reclassification, exchange, substitution, reorganization, merger, consolidation,
or sale to the end that these provisions (including adjustment of the Minimum
Company Value then in effect and the number of shares purchasable upon exercise
of the Warrant) shall be applicable after that event as nearly equivalent as may
be practicable.
(F) Sale of Shares Below Minimum Company Value. The provisions of this
subsection "F" shall apply to the issue or sale of Additional Shares of Common
Stock (as hereinafter defined) or Convertible Securities as defined in
subsection "F-3".
1. If at any time or from time to time after April 23, 1999 the
Company shall issue or sell Additional Shares of Common Stock, other than as a
dividend as provided above, and other than upon a subdivision as provided above,
for a consideration per share less than $4.50 (the "Minimum Company Value") (or,
if an adjusted Minimum Company Value shall be in effect by reason of a previous
adjustment, then less than such adjusted Minimum Company Value) then and in each
such case, as of the opening of business on the date of such issue or sale,
Optionee shall have the right to purchase upon exercise of this Warrant the
number of shares of common stock of the Company as results from dividing the
number of shares of common stock of Company which were purchasable upon exercise
of this Warrant as of the close of business the preceding day by a fraction (i)
the numerator of which shall be (a) the number of shares of Common Stock
outstanding (including any Additional Shares of Common Stock and the shares
subject to outstanding options or warrants excluded from the definition of
Additional Shares of Common Stock hereunder immediately prior to such issue or
sale), plus (b) the number of shares of Common stock which the aggregate
consideration received by the Company for the total number of Additional Shares
of Common Stock so issued would purchase at such Minimum Company Value, and (ii)
the denominator of which shall be the number of shares of Common Stock
outstanding (including any Additional Shares of Common Stock and the shares
subject to outstanding options or warrants excluded from the definition of
Additional Shares of Common Stock hereunder) immediately prior to such issue or
sale plus the number of such Additional Shares of Common Stock so issued.
2. For the purpose of making any adjustment in the number of shares of
Common Stock purchasable on exercise of this Warrant as provided above, the
consideration received by the Company for any issue or sale of securities shall,
(a) to the extent it consists of cash, be computed at the net amount of cash
received by the Company after deduction of any underwriting or similar
commissions, concessions, or compensation paid or allowed by the Company in
connection with such issue or sale, (b) to
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the extent it consists of property other than cash, be computed at the fair
value of that property as determined in good faith by the Board; and (c) if
Additional Shares of Common Stock, Convertible Securities (as hereinafter
defined), or rights or options to purchase either Additional Shares of Common
Stock or Convertible Securities are issued or sold together with other stock or
securities or other assets of the Company for a consideration that covers both,
be computed as the portion of the consideration so received that may be
reasonably determined in good faith by the Board to be allocable to such
Additional Shares of Common Stock, Convertible Securities or rights or options.
3. For the purpose of the adjustment provided above, if at any time or
from time to time after April 23, 1999, the Company shall issue any rights or
options for the purchase of, or stock or other securities convertible into
Additional Shares of Common Stock (such convertible stock or securities being
hereinafter referred to as "Convertible Securities"), then, in each case, if the
Effective Price (as hereinafter defined) of such rights, options, or Convertible
Securities shall be less than the then existing Minimum Company Value, the
Company shall be deemed to have issued at the time of the issuance of such
rights or options or Convertible Securities the maximum number of Additional
Shares of Common Stock issuable upon exercise or conversion thereof and to have
received as consideration for the issuance of such shares an amount equal to the
total amount of the consideration, if any, received by the Company for the
issuance of such shares, rights or options or Convertible Securities, plus in
the case of such options or rights, the minimum amounts of consideration, if
any, payable to the Company upon exercise or conversion of such options or
rights.
If any such rights or options or the conversion privilege represented by
any such Convertible Securities shall expire or be cancelled without having been
exercised, the number of shares of common stock which may be purchased upon
exercise of this Warrant shall be readjusted to the number of shares of common
stock that would have been applicable had any adjustment been made on the basis
that the only Additional Shares of Common Stock so issued were the Additional
Shares of Common Stock, if any, actually issued or sold on the exercise of such
rights or options or rights of conversion of such Convertible Securities, and
such Additional Shares of Common Stock, if any, were issued or sold for the
consideration actually received by the Company upon such exercise, plus the
consideration, if any, actually received by the Company for the granting of all
such rights or options, whether or not exercised, plus the consideration
received for issuing or selling the convertible Securities actually converted
plus the consideration, if any, actually received by the Company on the
conversion of such Convertible Securities.
4. For the purpose of the adjustment provided for above, if at any time
or from time to time after April 23, 1999,
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the Company shall issue any rights or options for the purchase of Convertible
Securities, then, in each such case, if the Effective Price thereof is less than
the then current Minimum Company Value, the Company shall be deemed to have
issued at the time of the issuance of such rights or options the maximum number
of Additional Shares of Common stock issuable upon conversion of the total
amount of Convertible Securities covered by such rights or options and to have
received as consideration for the issuance of such Additional Shares of Common
Stock an amount equal to the amount of consideration, if any, received by the
Company for the issuance of such rights or options, plus the minimum amounts
of consideration, if any, payable to the Company upon exercise of such rights or
options plus the minimum amounts of consideration, if any, payable to the
Company upon the conversion of such Convertible Securities.
The provisions above for the readjustment of the number of shares of common
stock which may be purchased upon exercise of this Warrant after the expiration
of rights or options or the rights of conversion of Convertible Securities,
shall apply mutatis mutandis to the rights, options and Convertible Securities
referred to in this subsection.
5. "Effective Price" for purposes hereof shall mean the quotient
determined by dividing the total of all of such consideration by such maximum
number of Additional Shares of Common Stock. No further adjustment in the number
of shares of common stock which may be purchased upon exercise of this Warrant
shall be made as a result of the actual issuance of Additional Shares of Common
Stock or Convertible Securities on the exercise of any such rights or options or
on the conversion of any such Convertible Securities.
(G) Definition. The term "Additional Shares of Common Stock" as used herein
shall mean all shares of Common Stock issued by the Company after April 23, 1999
whether or not subsequently reacquired or retired by the Company, other than (i)
up to (x) 2,162,020 shares of common stock issued upon exercise of incentive or
non-qualified stock options outstanding on April 23, 1999, and (y) 968,751
shares of common stock issued upon exercise of incentive or non-qualified
options granted after April 23, 1999 with an exercise price of not less than
$2.00 per share, to employees, consultants or non-employee directors pursuant to
the existing stock option plans adopted by the Board, (ii) 5,093,576 shares of
common stock issued upon conversion of the outstanding shares of Series B
Preferred Stock, (iii) 4,070,339 shares of common stock issued upon conversion
of the outstanding shares of Series C Preferred Stock, (iv) 1,100,000 shares of
common stock issued upon conversion of the outstanding shares of Series D
Preferred Stock, (v) 270,027 shares of common stock issued upon conversion of
the outstanding shares of Series M Preferred Stock, (vi) shares of common stock
issued upon exercise of any Warrants issued pursuant to the terms of the
Business Loan Agreement between Company, White Pines Limited 248
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Partnership I, Pacific Capital L.P., Chase Venture Capital Associates, L.P.,
American Healthcare Fund II, ▇▇▇ ▇. ▇. Bund ▇▇▇▇▇ ▇▇▇▇▇▇ Prototype PS Plan
Account #▇▇▇-▇▇▇▇▇-▇▇▇▇▇, ▇▇▇▇▇ Consulting Associates, Inc., Volunteer
Healthcare Associates, L.L.C., McDonald Investments Inc. Custodian FBO ▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ III IRA Rollover Account #▇▇▇▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Grove Investment Partners, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ Living Trust u/a/d September 9, 1997, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Investments Inc. Custodian FBO ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇ Rollover Account #▇▇▇▇▇▇▇▇,
National City Bank of Michigan/Illinois, Custodian FBO ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇
Rollover Account dated June 12, 1991 Account #MI-1491-00-4, ▇▇▇▇▇▇▇ and
Associates Profit Sharing Plan u/a/d January 1, 1991 and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
dated April 23, 1999, and (vii) shares of common stock issued upon exercise of
any Warrants issued pursuant to the terms of the Business Loan Agreement between
Company, White Pines Limited Partnership I, Pacific Capital L.P., Chase Venture
Capital Associates, L.P., American Healthcare Fund II, ▇▇▇ ▇. ▇. Bund, ▇▇▇▇▇
Consulting Associates, Inc., Volunteer Healthcare Associates, L.L.C., ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Grove Investment Partners,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Living Trust u/a/d September 9, 1997, McDonald Investments Inc.
Custodian FBO ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇ Rollover Account #▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and
Associates Profit Sharing Plan u/a/d January 1, 1991, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ dated October 28, 1999 (hereinafter
referred to as the "Loan Agreement").
(H) Accountants' Certificate of Adjustment. In each case of an adjustment
or readjustment of the MinimUm Company Value or the number of shares of Common
Stock or other securities issuable upon exercise of the Warrant, the Company
shall compute such adjustment or readjustment in accordance herewith and prepare
a certificate showing such adjustment or readjustment, and shall mail such
certificate, by first class mail, postage prepaid, to the registered holder
hereof at the holder's address as shown in the Company's books. The certificate
shall set forth such adjustment or readjustment, describing in detail the facts
upon which such adjustment or readjustment is based including a statement of the
Minimum Company Value at the time in effect, and the number of additional shares
of Common Stock and the type and amount, if any, of other property which at the
time would be received upon exercise of the Warrant.
(I) Exercise.
1. OPTIONAL. This Warrant may not be exercised with respect to that
portion of the shares for which the right to subscribe for and purchase such
shares may be terminated in accordance with the provisions of subsection (M)
below except for the exercise of this Warrant in accordance with subsection
(D)(1) above by reason of a transaction described therein which does not effect
the termination of this Warrant in accordance with such
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subsection (M)/. This Warrant may be exercised at any time in whole or part with
respect to the number of shares of common stock with respect to which the
rights to purchase such shares of common stock are no longer subject to
termination in accordance with the provisions of subsection (M) by delivering to
the Company (a) the form of Exercise Notice attached hereto duly completed and
executed by the holder of this Warrant, (b) this Warrant certificate for
notation thereon of such exercise, and (c) either payment of the applicable
purchase price or the election to exercise this Warrant in accordance with "4"
below. Upon any excercise of this warrant only in part, new Warrants shall be
executed and delivered by Company to the holder of this Warrant in accordance
with subsection (M)(3) hereof.
2. MANDATORY. This Warrant shall be exercised concurrent with the
consummation of the sale by Company of its common stock in a firm commitment
underwriting pursuant to a registration statement on Form S-1, Form S3-1, Form
SB-2, or their then equivalents, filed under the Securities Act of 1933, as
amended, and resulting in an aggregate offering price to the public of at least
$20,000,000, and where the offering price to the public is not less than $8.00
per share.
3. EFFECT OF EXERCISE. The holder will be deemed to be the holder of
record of the shares of common stock as to which this Warrant was exercised in
accordance with this Warrant, effective at the close of business on the date (a)
such exercise is completed and all documents specified in "(1)" above are
delivered to the Company, or (b) the later of (x) the consummation of the sale
contemplated by "(2)" above, or (y) the surrender thereafter of this Warrant
to the Company together with either payment of the applicable purchase price or
the election to exercise this Warrant in accordance with "4" below. The holder
hereof, upon such surrender, and payment or election, shall become entitled as
of such date to all dividends, subscription and other rights of a holder of
record of such shares of the common stock. when issued, said shares shall be
fully paid and nonassessable and free from any liens and charges.
4. NET EXERCISE. Instead of payment of the applicable purchase price,
the Optionee may exercise this Warrant by electing to receive, without the
payment by the Optionee of any additional consideration, shares of common stock
equal to the value of this Warrant by the surrender of all or part of this
Warrant to the Company with the Exercise Notice specifying reliance on this
subsection 1(4)/. Thereupon, the Company shall issue to the Optionee such number
of fully paid and nonassessable shares of common stock as is computed using the
following formula:
X = Y (A-B)
------
A
where
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X = the number of shares to be issued to the Optionee pursuant to this
subsection 1(4).
Y = the number of shares of common stock subject to issuance upon exercise
of the portion of the Warrant the Optionee elects to exercise pursuant
to this subsection 1(4).
A = the "Fair Market Value" of one share of common stock on the date the
net exercise election is made pursuant to this subsection 1(4) as
agreed to by Company and Optionee within ten days of the date of such
exercise, or in the absence of such an agreement, as determined by
appraisal in the manner provided in subsection K below.
B = the Exercise Price in effect under this Warrant at the time the net
exercise election is made pursuant to this subsection 1(4).
5. FRACTIONAL SHARES. No fractional shares shall be issued upon the
exercise of this Warrant. In lieu of fractional shares, the Company shall pay
the holder a sum in cash equal to the fair market value of the fractional shares
(if "Fair Market Value" was determined as contemplated by "4" above, then such
amount; otherwise as determined by the Board) on the date of exercise.
(J) Shares Reserved. The Company shall at all times authorize and reserve
unissued, a number of shares of its common stock sufficient to satisfy the
rights of the holders of these Warrants, and shall keep the transfer agent
supplied with sufficient stock certificates to provide for the exercise of all
outstanding warrants.
(K) Put. Optionee may require the Company to redeem these Warrants or the
shares of common stock issued upon exercise of the Warrants at any time
beginning April 23, 2004 and prior to the date on which Company shall have
completed an "Initial Public offering" as defined in the Registration Rights
Agreement dated April 23, 1999, as amended October 28, 1999, between the
parties. The price per share shall be the greater of W "Fair Market Value" as
agreed to by Company and Optionee, or in the absence of such an agreement, as
determined by appraisal as hereinafter provided, or (ii) based on a value of the
Company determined in accordance with the following formula:
Value = (EBITDA + Extraordinary Expense-Extraordinary Income) times seven
plus cash and cash equivalents minus Long Term Debt
EBITDA shall be defined as the earnings of the Company before interest,
taxes, depreciation and amortization. The EBITDA utilized for determining
the value of the Company shall be the greater of (i) EBITDA for the last
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fiscal year immediately preceding the redemption of the Warrants or shares,
or (ii) one-half of the aggregate EBITDA for the two fiscal years
immediately preceding the redemption of the Warrants or shares.
If "Fair Market Value" is to be determined by appraisal, Company and Optionee
shall each appoint one independent appraiser who is a regionally or nationally
recognized investment banking firm, or an independent appraiser who is a member
of a recognized professional organization, within ten days of notice by either
Company or Optionee to the other that appraisal is being demanded. Within 20
days of appointment, each appraiser shall determine the price at which the
shares would exchange between a willing buyer and a willing seller, when the
former is not under any compulsion to buy and the latter is not under any
compulsion to sell, both having reasonable knowledge of the relevant facts. For
purposes of determining the value of the shares, it shall be assumed that the
business of the Company is ongoing. The mean of the values determined in each
such appraisal shall constitute "Fair Market Value". The cost of the appraisals
shall be borne by the Company.
No adjustment shall be made to the price per share determined pursuant to the
foregoing for any discounts, including, but not limited to, discounts based upon
a lack of marketability or shares constituting a minority interest in the stock
of the Company.
All computations and determinations for the purpose of the foregoing
determination of value shall be made in accordance with generally accepted
principles of accounting consistently applied.
(L) Payment of Redemption Price. The redemption price applicable under the
provisions of subsection (K) shall be determined within 30 days of the date on
which Optionee shall notify Company that Optionee is requiring a redemption of
this Warrant or the shares. The redemption price shall be paid to Optionee in
cash within ten days thereafter upon surrender by Optionee of this Warrant or
the shares, provided however, that such payment of the redemption price shall be
subject to the ability of Company reasonably to obtain debt or equity financing
which may be necessary to fund such payment. In the event that Company shall be
unable to pay the redemption price solely for the reason specified in the
preceding sentence within 90 days of when due, Optionee shall have the right, at
Optionee's sole discretion, to either:
(i) rescind the demand for the redemption of this Warrant or the shares
whereupon all rights of Optionee to require redemption of this Warrant or the
shares at any future date in accordance with the terms and provisions of
subsection K and this subsection (L) shall remain in full force and effect, or
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(ii) accept payment of the price by the execution and delivery by
Company to Optionee of a Promissory Note in the amount of the redemption price,
in the form of the Promissory Note attached as Exhibit A to the Loan Agreement,
except that such Promissory Note would be payable in two equal consecutive
annual installments commencing one year after the redemption of the Warrants or
the shares. Any such Promissory Note would thereafter constitute a "Note" for
all purposes under the Loan Agreement, including without limitation, that
payment of the indebtedness represented by such Promissory Note would be secured
by the Collateral subject to the Security Agreement.
(M) Cancellation. The right of the holder of this Warrant to subscribe for
and purchase shares of common stock may terminate, in whole or in part, in
accordance with the following provisions:
1. For purposes of this subsection (M), "Liquidity Event" shall mean
(x) the merger or consolidation of Company with, or sale or transfer of all or
substantially all of the outstanding capital stock or assets of Company to, any
other entity in which transaction the shareholders of Company receive cash or
Freely Marketable Securities, or a combination thereof, or (y) the consummation
of the sale of Company's common stock in a firm commitment underwriting pursuant
to a registration statement on Form S-1, Form SB-1, Form SB-2, or their then
equivalents, filed under the Securities Act of 1933, as amended, and resulting
in an aggregate offering price to the public of at least $20,000,000.
2. If the price per share of common stock of Company applicable in a
Liquidity Event shall exceed 111-1/9%. of the Minimum Company Value, the right
to subscribe for and purchase shares of common stock shall terminate
concurrently with the completion of the Liquidity Event with respect to that
portion of the shares of common stock of Company purchaseable under the terms of
this Warrant as shall be applicable in accordance with the following:
Fraction of
Warrants
Which
Date of Liquidity Event Terminate
----------------------- ---------
Prior to April 24, 2000 all
After April 23, 2000 but prior to April 24, 2001 189/262
After April 23, 2001 but prior to April 24, 2002 116/262
After April 23, 2002 but prior to April 24, 2003 58/262
After April 23, 2003 none
3. Within ten days of the surrender of this Warrant by the registered
holder at the office of the Company at any time, the Company shall execute and
deliver to the holder in exchange for this Warrant:
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(i) a warrant in the form attached to the Loan Agreement as Exhibit
B-1 to subscribe for and purchase the number of shares of common stock with
respect to which such rights are no longer subject to termination in accordance
with the provisions of this subsection (M), and
(ii) a Warrant of like tenor to this Warrant except for substituting
therein the appropriate subsection (M)(2) as set forth on the Appendix attached
hereto to subscribe for and purchase the, balance of the number of shares of
common stock with respect to which such rights remain subject to termination in
accordance with this subsection (M).
(N) Construction. The validity and interpretation of the terms and
provisions of this Warrant shall be governed by the laws of the State of
Delaware. The descriptive headings of the several sections of this Warrant are
inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions thereof.
(O) Exchange of Warrant. This Warrant is exchangeable upon the surrender
hereof by the registered holder at the office of the Company for new Warrants
of like tenor representing in the aggregate the rights to subscribe for and
purchase the number of shares which may be subscribed for and purchased
hereunder, each of such new Warrants to represent the right to subscribe for and
purchase such number of shares as shall be designated by the holder at the time
of such surrender.
(P) Lost Warrant Certificate. If this Warrant is lost, stolen, mutilated or
destroyed, the Company shall, upon request in writing from the registered
holder, issue a new Warrant of like denomination, tenor and date as this
Warrant, subject to the Company's right to require the holder to give the
Company a bond or other satisfactory security sufficient to indemnify the
Company against any claim that may be made against it (including any expense or
liability) on account of the alleged loss, theft, mutilation or destruction of
this Warrant or the issuance of such new Warrant.
(Q) Waivers and Amendments. This Warrant or any provision hereof may be
changed, waived, discharged or terminated only by a statement in writing signed
by the party against which enforcement of the change, waiver, discharge or
termination is sought.
(R) Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be delivered by personal delivery,
reputable overnight courier service, telecopier or mailed by United States mail,
first class postage prepaid, or by registered or certified mail with return
receipt requested, addressed as specified in the heading hereof. Each of the
parties shall be entitled to specify a different
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address by giving five days, advance written notice as aforesaid to the other
parties.
IN WITNESS WHEREOF, these Warrants are issued this 28th day of
October, 1999.
GENOMIC SOLUTIONS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD OR OFFERED FOR SALE,
PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT AND
ANY APPLICABLE STATE SECURITIES LAW OR UNLESS THE CORPORATION HAS RECEIVED
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED TO EFFECTUATE SUCH TRANSACTION.
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NOTICE OF EXERCISE
TO GENOMIC SOLUTIONS, INC.
The undersigned hereby irrevocably elects to exercise the Warrant delivered
herewith as to shares of common stock and requests that
certificates for such shares be issued in the name of and delivered to the
undersigned at the address stated below, and, if additional shares remain
available for purchase pursuant to the Warrant, the new Warrant evidencing the
right to purchase the balance of such shares shall be registered in the name of,
and delivered to, the undersigned at the address stated below. The undersigned
hereby agrees with and represents to the Company that said shares of common
stock are acquired for investment and not with a view to, or for sale in
connection with, any distribution or public offering thereof within the meaning
of the Securities Act of 1933, as amended.
[delete one of the following]
The undersigned elects to exercise the Warrant in accordance with subsection
I(4) thereof.
Payment is enclosed in the amount of $
------------------
Dated:
------------------------------
By
---------------------------------
Its
--------------------------------
ADDRESS:
------------------------------------
------------------------------------
------------------------------------
PHONE:
------------------------------
FACSIMILE:
--------------------------
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APPENDIX
If the exchange of Warrants provided in subsection (M) (3) occurs after April
23, 2000 but prior to April 24, 2001, the following provisions shall be
substituted as subsection (M) (2) in the Warrant issued pursuant to subsection
(M)(3)(ii):
If the price per share of common stock of Company applicable in a Liquidity
Event shall exceed 111-1/9% of the Minimum Company Value, the right to subscribe
for and purchase shares of common stock shall terminate concurrently with the
completion of the Liquidity Event with respect to that portion of the shares of
common stock of Company purchasable under the terms of this Warrant as shall be
applicable in accordance with the following:
Fraction of
Warrants
Which
Date of Liquidity Event Terminate
----------------------- ---------
Prior to April 24, 2001 all
After April 23, 2001 but prior to April 24, 2002 116/189
After April 23, 2002 but prior to April 24, 2003 58/189
After April 23, 2003 none
If the exchange of Warrants provided in subsection (M) (3) occurs after April
23, 2001 but prior to April 24, 2002, the following provisions shall be
substituted as subsection (M) (2) in the Warrant issued pursuant to subsection
(M)(3)(ii).
If the price per share of common stock of Company applicable in a Liquidity
Event shall exceed 111-1/9% of the Minimum Company Value, the right to
subscribe for and purchase shares of common stock shall terminate concurrently
with the completion of the Liquidity Event with respect to that portion of the
shares of common stock of Company purchasable under the terms of this Warrant as
shall be applicable in accordance with the following:
Fraction of
Warrants
Which
Date of Liquidity Event Terminate
------------------------ ---------
Prior to April 24, 2002 all
After April 23, 2002 but prior to April 24, 2003 58/116
After April 23, 2003 none
If the exchange of Warrants provided in subsection (M) (3) occurs after April
23, 2002 but prior to April 24, 2003, the following provisions shall be
substituted as subsection (M) (2) in the Warrant issued pursuant to subsection
(M)(3)(ii).
If the price per share of common stock of Company applicable in a Liquidity
Event occurring prior to April 24, 2003 shall exceed 111-1/9% of the Minimum
Company Value, the right to subscribe for and purchase shares of common stock
purchasable under the terms of this Warrant shall terminate concurrently with
the completion of the Liquidity Event.
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