Exhibit 10.23
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL (WHICH MAY BE COMPANY
COUNSEL) REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE
STATE SECURITIES LAWS.
WARRANT AGREEMENT
To Purchase Shares of the Series B Preferred Stock of
GENE LOGIC INC.
Dated as of April 15, 1997 (the "Effective Date")
WHEREAS, Gene Logic Inc., a Delaware corporation (the "Company") has
entered into a Master Lease Agreement dated as of March 18, 1996, Equipment
Schedule No. VL-1 dated as of March 18, 1996, and Equipment Schedule No. VL-2
dated as of April 23, 1996, and related Summary Equipment Schedules
(collectively, the "Leases") with Comdisco, Inc., a Delaware corporation (the
"Warrantholder"); and
WHEREAS, the Company desires to grant to Warrantholder, in consideration
for such Leases, the right to purchase shares of its Series B Preferred Stock;
NOW, THEREFORE, in consideration of the Warrantholder executing and
delivering such Leases and in consideration of mutual covenants and
agreements contained herein, the Company and Warrantholder agree as follows:
1. GRANT OF THE RIGHT TO PURCHASE PREFERRED STOCK.
The Company hereby grants to the Warrantholder, and the Warrantholder is
entitled, upon the terms and subject to the conditions hereinafter set forth,
to subscribe to and purchase from the Company, 13,636 fully paid and
non-assessable shares of the Company's Series B Preferred Stock ("Preferred
Stock") at a purchase price of $2.20 per share (the "Exercise Price"). The
number and purchase price of such shares are subject to adjustment as
provided in Section 8 hereof.
2. TERM OF THE WARRANT AGREEMENT.
Except as otherwise provided for herein, the term of this Warrant
Agreement and the right to purchase Preferred Stock as granted herein shall
commence on the Effective Date and shall be wholly void and of no effect
after the date (the "Expiration Date") which is the earlier of (i) ten (10)
years from the Effective Date, (ii) five (5) five years from the effective
date of the Company's initial public offering, (iii) the effective time of a
merger or reorganization following which the stockholders of the Company
immediately prior to such transaction own after such transaction less than
fifty percent (50%) of the equity securities of the surviving corporation
(or its parent, if any), or (iv) the closing of a sale of all or
substantially all of the Company's assets; provided that, if the last day on
which this Warrant Agreement may be exercised is a Sunday or a legal holiday
or a day on which banking institutions doing business in the City of
Baltimore are authorized by law to close, this Warrant Agreement may be
exercised prior to 5:00 p.m. (Eastern time) on the next succeeding full
business day with the same force and effect as if exercised on such last day
specified herein.
The Company shall notify the Warrantholder ten (10) business days prior
to the closing of the transaction set forth in clauses (iii) or (iv) above,
and if the Company fails to deliver such notice, then notwithstanding
anything to the contrary in this Warrant Agreement, the rights to purchase
the Company's Stock shall not expire until the Company complies with such
notice provisions. Such notice shall also contain such details of the
proposed transaction are reasonable in the circumstances. If such closing
does not take place, the Company shall promptly notify the Warrantholder that
such proposed transaction has been terminated, and the Warrantholder may
rescind any exercise of its purchase rights promptly after such notice of
termination of the proposed transaction. In the event of such rescission,
the Warrant Agreement will continue to be exercisable on the same terms and
conditions contained herein.
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3. EXERCISE OF THE PURCHASE RIGHTS.
The purchase rights set forth in this Warrant Agreement are exercisable
by the Warrantholder, in whole or in part, at any time, or from time to time,
prior to the expiration of the term set forth in Section 2 above, by
tendering to the Company at its principal office a notice of exercise in the
form attached hereto as Exhibit I (the "Notice of Exercise"), duly completed
and executed. Promptly upon receipt of the Notice of Exercise and the payment
of the purchase price in accordance with the terms set forth below, and in no
event later than twenty-one (21) days thereafter, the Company shall issue to
the Warrantholder a certificate for the number of shares of Preferred Stock
purchased and shall execute the acknowledgment of exercise in the form
attached hereto as Exhibit II (the "Acknowledgment of Exercise") indicating
the number of shares which remain subject to future purchases, if any.
The Exercise Price may be paid at the Warrantholder's election either
(i) by cash or check, or (ii) by surrender of Warrants ("Net Issuance") as
determined below. If the Warrantholder elects the Net Issuance method, the
Company will issue Preferred Stock in accordance with the following formula:
X = Y(A-B)
------
A
Where: X = the number of shares of Preferred Stock to be
issued to the Warrantholder.
Y = the number of shares of Preferred Stock
requested to be exercised under this Warrant
Agreement.
A = the fair market value of one (1) share of
Preferred Stock.
B = the Exercise Price.
For purposes of the above calculation, current fair market value of
Preferred Stock shall mean with respect to each share of Preferred Stock:
(i) if this Warrant is exercised in connection with an
initial public offering of the Company's Common Stock, and if
the Company's Registration Statement relating to such public
offering has been declared effective by the Securities and
Exchange Commission, then the fair market value per share
shall be the product of (x) the initial "Price to Public"
specified in the final prospectus with respect to the offering
and (y) the number of shares of Common Stock into which each
share of Preferred Stock is convertible at the time of such
exercise;
(ii) if this Warrant is exercised after, and not in
connection with the Company's initial public offering, and:
(a) if traded on a securities exchange, the fair
market value shall be deemed to be the product of (x) the
average of the closing prices over a twenty-one (21) day
period ending three days before the day the current fair
market value of the securities is being determined and
(y) the number of shares of Common Stock into which each
share of Preferred Stock is convertible at the time of
such exercise; or
(b) if actively traded over-the-counter, the fair
market value shall be deemed to be the product of (x) the
average of the closing bid and asked prices quoted on the
NASDAQ system (or similar system) over the twenty-one
(21) day period ending three days before the day the
current fair market value of the securities is being
determined and (y) the number of shares of Common Stock
into which each share of Preferred Stock is convertible
at the time of such exercise;
(iii) if at any time the Common Stock is not listed
on any securities exchange or quoted in the NASDAQ System or
the over-the-counter market, the current fair market value of
Preferred Stock shall be the product of (x) the highest price
per share which the Company could obtain from a willing buyer
(not a current employee or director) for shares of Common
Stock sold by the Company, from authorized but unissued
shares, as determined in good faith by its Board of Directors
and (y) the number of shares of Common Stock into which each
share of Preferred Stock is convertible at the time of such
exercise, unless the Company shall become
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subject to a merger, acquisition or other consolidation
pursuant to which the Company is not the surviving party, in
which case the fair market value of Preferred Stock shall be
deemed to be the value received by the holders of the
Company's Preferred Stock on a common equivalent basis
pursuant to such merger or acquisition.
Upon partial exercise by either cash or Net Issuance, the Company shall
promptly issue an amended Warrant Agreement representing the remaining number
of shares purchasable hereunder. All other terms and conditions of such
amended Warrant Agreement shall be identical to those contained herein,
including, but not limited to the Effective Date hereof.
4. RESERVATION OF SHARES.
(a) Authorization and Reservation of Shares. During the term of this
Warrant Agreement, the Company will at all times have authorized and reserved
a sufficient number of shares of its Preferred Stock to provide for the
exercise of the rights to purchase Preferred Stock as provided for herein.
(b) Registration or Listing. If any shares of Preferred Stock required
to be reserved hereunder require registration with or approval of any
governmental authority under any Federal or State law (other than any
registration under the Securities Act of 1933, as amended (the "1933 Act"),
as then in effect, or any similar Federal statute then enforced, or any state
securities law, required by reason of any transfer involved in such
conversion), or listing on any domestic securities exchange, before such
shares may be issued upon conversion, the Company will, at its expense and as
expeditiously as possible, use its best efforts to cause such shares to be
duly registered, listed or approved for listing on such domestic securities
exchange, as the case may be. Nothing herein shall be deemed to require the
Company to register the issuance of its Preferred Stock or Common Stock in
connection with any exercise of this Warrant under the 1933 Act.
5. NO FRACTIONAL SHARES OR SCRIP.
No fractional shares or scrip representing fractional shares shall be
issued upon the exercise of the Warrant, but in lieu of such fractional
shares the Company shall make a cash payment therefor upon the basis of the
Exercise Price then in effect.
6. NO RIGHTS AS SHAREHOLDER.
This Warrant Agreement does not entitle the Warrantholder to any voting
rights or other rights as a shareholder of the Company prior to the exercise
of the Warrant.
7. WARRANTHOLDER REGISTRY.
The Company shall maintain a registry showing the name and address of
the registered holder of this Warrant Agreement.
8. ADJUSTMENT RIGHTS.
The purchase price per share and the number of shares of Preferred Stock
purchasable hereunder are subject to adjustment, as follows:
(a) Merger and Sale of Assets. If at any time there shall be a capital
reorganization of the shares of the Company's stock (other than a
combination, reclassification, exchange or subdivision of shares otherwise
provided for herein), or a merger or consolidation of the Company with or
into another corporation whether or not the Company is the surviving
corporation (other than as provided for in Section 2. hereof), (hereinafter
referred to as a "Merger Event"), then, as a part of such Merger Event,
lawful provision shall be made so that the Warrantholder shall thereafter be
entitled to receive, upon exercise of the Warrant, the number of shares of
Preferred Stock or other securities of the successor corporation resulting
from such Merger Event, equal to that which would have been issuable if
Warrantholder had exercised this Warrant immediately prior to the Merger
Event. In any such case, appropriate adjustment (as determined in good faith
by the Company's Board of Directors) shall be made in the application of the
provisions of this Warrant Agreement with respect to the rights and interest
of the Warrantholder after the Merger Event to the end that the provisions of
this Warrant Agreement (including adjustments of the Exercise Price and
number of shares of Preferred Stock purchasable) shall be applicable to the
greatest extent possible.
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(b) Reclassification of Shares. If the Company at any time shall, by
combination, reclassification, exchange or subdivision of securities or
otherwise, change any of the securities as to which purchase rights under
this Warrant Agreement exist into the same or a different number of
securities of any other class or classes, this Warrant Agreement shall
thereafter represent the right to acquire such number and kind of securities
as would have been issuable as the result of such change with respect to the
securities which were subject to the purchase rights under this Warrant
Agreement immediately prior to such combination, reclas-sification, exchange,
subdivision or other change.
(c) Subdivision or Combination of Shares. If the Company at any time
shall combine or subdivide its Preferred Stock, the Exercise Price shall be
proportionately decreased in the case of a subdivision, or proportionately
increased in the case of a combination.
(d) Stock Dividends. If the Company at any time shall pay a dividend
payable in, or make any other distribution (except any distribution
specifically provided for in the foregoing subsections (a) or (b)) of the
Company's Preferred Stock, then the Exercise Price shall be adjusted, from
and after the record date of such dividend or distribution, to that price
determined by multiplying the Exercise Price in effect immediately prior to
such record date by a fraction (i) the numerator of which shall be the total
number of all shares of the Company's Preferred Stock outstanding immediately
prior to such dividend or distribution, and (ii) the denominator of which
shall be the total number of all shares of the Company's Preferred Stock
outstanding immediately after such dividend or distribution. The
Warrantholder shall thereafter be entitled to purchase, at the Exercise Price
resulting from such adjustment, the number of shares of Preferred Stock
(calculated to the nearest whole share) obtained by multiplying the Exercise
Price in effect immediately prior to such adjustment by the number of shares
of Preferred Stock issuable upon the exercise hereof immediately prior to
such adjustment and dividing the product thereof by the Exercise Price
resulting from such adjustment.
(e) Antidilution Rights. Additional antidilution rights applicable to
the Preferred Stock purchasable hereunder are as set forth in the Company's
Restated Certificate of Incorporation, as amended through the Effective Date,
a true and complete copy of which is attached hereto as Exhibit IV (the
"Charter"). The Company shall promptly provide the Warrantholder with any
restatement, amendment, modification or waiver of the Charter.
(f) Notice of Certain Events. If: (i) the Company shall declare any
dividend or distribution upon its Preferred Stock, whether in cash, property,
stock or other securities; (ii) the Company shall offer for subscription
prorata to the holders of its Preferred Stock any additional shares of
stock of any class or other rights; (iii) there shall be any Merger Event;
(iv) there shall be an initial public offering; or (v) there shall be any
voluntary dissolution, liquidation or winding up of the Company; then, in
connection with each such event, the Company shall send to the Warrantholder:
(A) at least twenty (20) days' prior written notice of the date on which the
books of the Company shall close or a record shall be taken for such
dividend, distribution, subscription rights (specifying the date on which the
holders of Preferred Stock shall be entitled thereto) or for determining
rights to vote in respect of such Merger Event, dissolution, liquidation or
winding up; (B) in the case of any such Merger Event, dissolution,
liquidation or winding up, at least twenty (20) days' prior written notice of
the date when the same shall take place (and specifying the date on which the
holders of Preferred Stock shall be entitled to exchange their Preferred
Stock for securities or other property deliverable upon such Merger Event,
dissolution, liquidation or winding up); and (C) in the case of a public
offering, the Company shall give the Warrantholder at least twenty (20) days
written notice prior to the effective date thereof.
(g) Notice of Adjustment. Upon any adjustment of the Exercise Price
and/or any increase or decrease in the number of shares that may be purchased
upon exercise of this Warrant, the Company shall give written notice thereof
to the Warrantholder. Each such written notice shall set forth, in reasonable
detail, (i) the event requiring the adjustment, (ii) the amount of the
adjustment, (iii) the method by which such adjustment was calculated, (iv)
the Exercise Price, and (v) the number of shares subject to purchase
hereunder after giving effect to such adjust-ment, and shall be given by
first class mail, postage prepaid, addressed to the Warrantholder, at the
address as shown on the books of the Company.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
(a) Reservation of Preferred Stock. The Preferred Stock issuable upon
exercise of the Warrantholder's rights has been duly and validly reserved
and, when issued in accordance with the provisions of this Warrant Agreement,
will be validly issued, fully paid and non-assessable, and will be free of
any taxes, liens, charges or encumbrances of any nature whatsoever; provided,
however, that the Preferred Stock issuable pursuant to this Warrant Agreement
may be subject to restrictions on transfer under state and/or Federal
securities laws. The issuance of
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certificates for shares of Preferred Stock upon exercise of the Warrant
Agreement shall be made without charge to the Warrantholder for any issuance
tax in respect thereof, or other cost incurred by the Company in connection
with such exercise and the related issuance of shares of Preferred Stock. The
Company shall not be required to pay any tax which may be payable in respect
of any transfer involved and the issuance and delivery of any certificate in
a name other than that of the Warrantholder.
(b) Due Authority. The execution and delivery by the Company of this
Warrant Agreement and the performance of all obligations of the Company
hereunder, including the issuance to Warrantholder of the right to acquire
the shares of Preferred Stock, have been duly authorized by all necessary
corporate action on the part of the Company, and the Leases and this Warrant
Agreement are not inconsistent with the Company's Charter or Bylaws, do not
contra-vene any law or governmental rule, regulation or order applicable to
it, do not and will not contravene any provision of, or constitute a default
under, any indenture, mortgage, contract or other instrument to which it is a
party or by which it is bound, and the Leases and this Warrant Agreement
constitute legal, valid and binding agreements of the Company, enforceable in
accordance with their respective terms.
(c) Consents and Approvals. No consent or approval of, giving of
notice to, registration with, or taking of any other action in respect of any
state, Federal or other governmental authority or agency is required with
respect to the execution, delivery and performance by the Company of its
obligations under this Warrant Agreement, except for the filing of notices
pursuant to Regulation D under the 1933 Act (if applicable) and any filing
required by applicable state securities law, which filings will be effective
by the time required thereby.
(d) Insurance. The Company has in full force and effect insurance
policies, with extended coverage, insuring the Company and its property and
business against such losses and risks, and in such amounts, as are customary
for corporations engaged in a similar business and similarly situated and as
otherwise may be required pursuant to the terms of any other contract or
agreement.
(e) Exempt Transaction. Subject to the accuracy of the Warrantholder's
representations in Section 10 hereof, the issuance of the Preferred Stock
upon exercise of this Warrant will constitute a transaction exempt from (i)
the registration requirements of Section 5 of the 1933 Act, in reliance upon
Section 4(2) thereof, and (ii) the qualification requirements of the
applicable state securities laws.
(f) Compliance with Rule 144. At the written request of the
Warrantholder, who proposes to sell Preferred Stock issuable upon the
exercise of the Warrant in compliance with Rule 144 promulgated by the
Securities and Exchange Commission, if the Company is then subject to the
reporting requirements under the Securities Exchange Act of 1934, as amended
(the "1934 Act"), the Company shall furnish to the Warrantholder, within ten
days after receipt of such request, a written statement confirming the
Company's compliance with the filing requirements of the Securities and
Exchange Commission as set forth in such Rule, as such Rule may be amended
from time to time.
10. REPRESENTATIONS AND COVENANTS OF THE WARRANTHOLDER.
This Warrant Agreement has been entered into by the Company in reliance
upon the following representations and covenants of the Warrantholder:
(a) Investment Purpose. The right to acquire Preferred Stock or the
Preferred Stock issuable upon exercise of the Warrantholder's rights
contained herein (and Common Stock issuable upon conversion thereof) will be
acquired for investment and not with a view to the sale or distribution of
any part thereof, and the Warrantholder has no present intention of selling
or engaging in any public distribution of the same except pursuant to a
registration or exemption.
(b) Private Issue. The Warrantholder understands (i) that the
Preferred Stock issuable upon exercise of this Warrant (or Common Stock
issuable upon conversion thereof) is not registered under the 1933 Act or
qualified under applicable state securities laws on the ground that the
issuance contemplated by this Warrant Agreement will be exempt from the
registration and qualifications requirements thereof, and (ii) that the
Company's reliance on such exemption is predicated on the representations set
forth in this Section 10.
(c) Disposition of Warrantholder's Rights. In no event will the
Warrantholder make a disposition of any of its rights to acquire Preferred
Stock or Preferred Stock issuable upon exercise of such rights (or Common
Stock issuable upon conversion thereof) unless and until (i) it shall have
notified the Company of the proposed disposition, and (ii) if requested by
the Company, it shall have furnished the Company with an opinion of counsel
(which counsel may
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either be inside or outside counsel to the Warrantholder) satisfactory to the
Company and its counsel to the effect that (A) appropriate action necessary
for compliance with the 1933 Act has been taken, or (B) an exemption from the
registration requirements of the 1933 Act is available. Notwithstanding the
foregoing, the restrictions imposed upon the transferability of any of its
rights to acquire Preferred Stock or Preferred Stock issuable on the exercise
of such rights (or Common Stock issuable upon conversion thereof) do not
apply to transfers from the beneficial owner of any of the aforementioned
securities to its nominee or from such nominee to its beneficial owner, and
shall terminate as to any particular share of Preferred Stock (or Common
Stock issuable upon conversion thereof) when (1) such security shall have
been effectively registered under the 1933 Act and sold by the holder thereof
in accordance with such registration or (2) such security shall have been
sold without registration in compliance with Rule 144 under the 1933 Act, or
(3) a letter shall have been issued to the Warrantholder at its request by
the staff of the Securities and Exchange Commission or a ruling shall have
been issued to the Warrantholder at its request by such Commission stating
that no action shall be recommended by such staff or taken by such
Commission, as the case may be, if such security is transferred without
registration under the 1933 Act in accordance with the conditions set forth
in such letter or ruling and such letter or ruling specifies that no
subsequent restrictions on transfer are required. Whenever the restrictions
imposed hereunder shall terminate, as hereinabove provided, the Warrantholder
or holder of a share of Preferred Stock then outstanding or Common Stock
issuable upon conversion thereof as to which such restrictions have
terminated shall be entitled to receive from the Company, without expense to
such holder, one or more new certificates for the Warrant or for such shares
of Preferred Stock (or Common Stock issuable upon conversion thereof) not
bearing any restrictive legend.
(d) Financial Risk. The Warrantholder has such knowledge and
experience in financial and business matters as to be capable of evaluating
the merits and risks of its investment, and has the ability to bear the
economic risks of its investment.
(e) Risk of No Registration. The Warrantholder understands that if the
Company does not register with the Securities and Exchange Commission
pursuant to Section 12 of the 1933 Act, or file reports pursuant to Section
15(d) of the 1934 Act, or if a registration statement covering the securities
under the 1933 Act is not in effect when it desires to sell (i) the rights to
purchase (or Common Stock issuable upon conversion thereof) Preferred Stock
pursuant to this Warrant Agreement, or (ii) the Preferred Stock issuable upon
exercise of the right to purchase, it may be required to hold such securities
for an indefinite period. The Warrantholder also understands that any sale
of its rights of the Warrantholder to purchase Preferred Stock or Preferred
Stock (or Common Stock issuable upon conversion thereof) which might be made
by it in reliance upon Rule 144 under the 1933 Act may be made only in
accordance with the terms and conditions of that Rule.
(f) Accredited Investor. Warrantholder is an "accredited investor"
within the meaning of the Securities and Exchange Rule 501 of Regulation D,
as presently in effect.
11. TRANSFERS.
Subject to the terms and conditions contained in Section 10 hereof, this
Warrant Agreement and all rights hereunder are transferable in whole or in
part by the Warrantholder and any successor transferee, provided, however, in
no event shall the number of transfers of the rights and interests in all of
the Warrants exceed three (3) transfers. The transfer shall be recorded on
the books of the Company upon receipt by the Company of a notice of transfer
in the form attached hereto as Exhibit III (the "Transfer Notice"), at its
principal offices and the payment to the Company of all transfer taxes and
other governmental charges imposed on such transfer.
12. MARKET STAND-OFF.
If requested by the Company or the representative of the underwriters of
Common Stock (or other securities) of the Company, Warrantholder shall not
sell or otherwise transfer or dispose of any Common Stock (or other
securities) of the Company held by such Warrantholder (other than those
included in the registration, if any) for a period specified by the
representative of the underwriters not to exceed one hundred eighty (180)
days following the effective date of a registration statement of the Company
filed under the 1933 Act pertaining to the Company's initial public offering.
The Company may impose stop-transfer instructions with respect to the shares
of Common Stock (or other securities) subject to the foregoing restriction
until the end of said one hundred eighty (180) day period.
13. MISCELLANEOUS.
(a) Effective Date. The provisions of this Warrant Agreement shall be
construed and shall be given effect in all respects as if it had been
executed and delivered by the Company on the date hereof. This Warrant
Agreement
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shall be binding upon any successors or assigns of the Company.
(b) Attorney's Fees. In any litigation, arbitration or court
proceeding between the Company and the Warrantholder relating hereto, the
prevailing party shall be entitled to attorneys' fees and expenses and all
costs of proceedings incurred in enforcing this Warrant Agreement.
(c) Governing Law. This Warrant Agreement shall be governed by and
construed for all purposes under and in accordance with the laws of the State
of Delaware.
(d) Counterparts. This Warrant Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(e) Notices. Except as otherwise provided in this Warrant Agreement,
any requirement for a notice, demand or request under this Warrant will be
satisfied by a writing (a) hand-delivered with receipt; (b) mailed by United
States registered or certified mail or Express Mail, return receipt
requested, postage prepaid; or (c) sent by Federal Express or any other
nationally recognized overnight courier service, and addressed as follows:
if to the Warrantholder, at its address as shown on the books of the Company,
with a copy to the attention of General Counsel, 0000 Xxxxx Xxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000; and if to the Company, at 00000 Xxx Xxxxxxxx Xxxx,
Xxxxxxxx, XX 00000, Attention: Chief Financial Officer, with a copy to L. Xxx
Xxxxxxxx, Esq., Cooley Godward LLP, 0000 Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxx
Xxxxx, Xxxxxxxxxx 00000. All notices that are sent in accordance with this
Section 13(e) will be deemed received by the Warrantholder or the Company on
the earliest of the following applicable time periods: (i) the date the
return receipt is executed; or (ii) the date delivered as documented by the
overnight courier service or the hand delivery receipt. Either the
Warrantholder or the Company may designate a change of address by written
notice to the other party.
(f) Remedies. In the event of any default hereunder, the
non-defaulting party may proceed to protect and enforce its rights either by
suit in equity and/or by action at law, including but not limited to an
action for damages as a result of any such default, and/or an action for
specific performance for any default where Warrantholder will not have an
adequate remedy at law and where damages will not be readily ascertainable.
The Company expressly agrees that it shall not oppose an application by the
Warrantholder or any other person entitled to the benefit of this Agreement
requiring specific performance of any or all provisions hereof or enjoining
the Company from continuing to commit any such breach of this Agreement.
(g) No Impairment of Rights. The Company will not, by amendment of its
Charter or through any other means, 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 actions as may be necessary or appropriate in order to protect the
rights of the Warrantholder against impairment.
(h) Survival. The representations, warranties, covenants and
conditions of the respective parties contained herein or made pursuant to
this Warrant Agreement shall survive the execution and delivery of this
Warrant Agreement.
(i) Severability. In the event any one or more of the provisions of
this Warrant Agreement shall for any reason be held invalid, illegal or
unenforceable, the remaining provisions of this Warrant Agreement shall be
unimpaired, and the invalid, illegal or unenforceable provision shall be
replaced by a mutually acceptable valid, legal and enforceable provision,
which comes closest to the intention of the parties underlying the invalid,
illegal or unenforceable provision.
(j) Amendments. Any provision of this Warrant Agreement may be amended
by a written instrument signed by the Company and by the Warrantholder.
(k) Additional Documents. The Company, upon execution of this Warrant
Agreement, shall provide the Warrantholder with certified resolutions with
respect to the representations, warranties and covenants set forth in
subparagraphs (a) through (d), and (f) of Section 9 above. If the purchase
price for the Leases referenced in the preamble of this Warrant Agreement
exceeds $1,000,000, the Company will also provide Warrantholder with an
opinion from the Company's counsel with respect to those same
representations, warranties and covenants. The Company shall also supply
such other documents as the Warrantholder may from time to time reasonably
request.
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14. CONFIDENTIALITY.
In handling any confidential information Warrantholder shall exercise
the same degree of care that it exercises with respect to its own proprietary
information of the same type to maintain the confidentiality of any nonpublic
information thereby received or received pursuant to this or any other
agreement except that disclosure of such information may be made (i) to the
subsidiaries or affiliates of Warrantholder in connection with their present
or prospective business relations with Company, (ii) to prospective
transferees or purchasers of any interest in this or any other agreement,
provided that they have entered into a comparable confidentiality agreement
in favor of Company, (iii) as may be required in connection with the
examination, audit or similar investigation of Warrantholder. Confidential
information hereunder shall not include information that either: (a) is in
the public domain or in the knowledge or possession of Warrantholder when
disclosed to Warrantholder, or becomes part of the public domain after
disclosure to Warrantholder through no fault of Warrantholder; or (b) is
disclosed to Warrantholder by a third party, provided Warrantholder does not
have actual knowledge that such third party is prohibited from disclosing
such information.
IN WITNESS WHEREOF, the parties hereto have caused this Warrant
Agreement to be executed by its officers thereunto duly authorized as of the
Effective Date.
Company: GENE LOGIC INC.
By: /s/ Xxxx Xxxxxxx
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Title: SVP Corp. Dev. & CFO
------------------------------
Warrantholder: COMDISCO, INC.
By: _____________________________
Title: _____________________________
-8-
EXHIBIT I
NOTICE OF EXERCISE
To: ____________________________
(1) The undersigned Warrantholder hereby elects to purchase
_______ shares of the Series B Preferred Stock of Gene Logic
Inc., pursuant to the terms of the Warrant Agreement dated the
15th day of April, 1997 (the "Warrant Agreement") between Gene
Logic Inc. and the Warrantholder, and tenders herewith payment
of the purchase price for such shares in full, together with
all applicable transfer taxes, if any.
(2) In exercising its rights to purchase the Series B Preferred
Stock of Gene Logic Inc., the undersigned hereby confirms and
acknowledges the investment representations and warranties
made in Section 10 of the Warrant Agreement and the agreements
made in Section 12 of the Warrant Agreement.
(3) Please issue a certificate or certificates representing said
shares of Series B Preferred Stock in the name of the under-
signed or in such other name as is specified below.
_________________________________
(Name)
_________________________________
(Address)
Warrantholder: COMDISCO, INC.
By: _____________________________
Title: _____________________________
Date: _____________________________
-9-
EXHIBIT II
ACKNOWLEDGMENT OF EXERCISE
The undersigned ____________________________________, hereby acknowledge
receipt of the "Notice of Exercise" from Comdisco, Inc., to purchase ____
shares of the Series B Preferred Stock of Gene Logic Inc., pursuant to the
terms of the Warrant Agreement, and further acknowledges that ______ shares
remain subject to purchase under the terms of the Warrant Agreement.
Company:
By: ____________________________
Title: ___________________________
Date: ____________________________
-10-
EXHIBIT III
TRANSFER NOTICE
(To transfer or assign the foregoing Warrant Agreement execute this form and
supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant Agreement and all rights
evidenced thereby are hereby transferred and assigned to
_________________________________________________________________
(Please Print)
whose address is___________________________________________________
___________________________________________________________________
Dated __________________________________________
Holder's Signature ______________________________
Holder's Address ________________________________
______________________________________________
Signature
Guaranteed ____________________________________________
NOTE: The signature to this Transfer Notice
must correspond with the name as it
appears on the face of the Warrant
Agreement, without alteration or
enlargement or any change whatever.
Officers of corporations and those acting
in a fiduciary or other representative
capacity should file proper evidence of
authority to assign the foregoing Warrant
Agreement.
-11-
