EXHIBIT 4.2
PLACEMENT AGENT WARRANT AGREEMENT
WARRANT AGREEMENT dated as of January 31, 1997, between EXIGENT
DIAGNOSTICS, INC., a Delaware corporation ("Company"), and XXXXXXX XXXXX
SECURITIES INCORPORATED ("Agent").
WITNESSETH
WHEREAS, the Agent has agreed pursuant to the Placement Agency
Agreement dated December 10, 1996, by and between the Agent and the Company (the
"Placement Agency Agreement") to act as the placement agent in connection with
the Company's proposed private placement (the "Offering") of up to 7,15 units
("Units") (plus up to an additional 11.25 Units solely to cover over-
subscriptions, if any) each Unit consisting of 1000 shares of the Company's
common stock, par value $.01 per share ("Common Stock"); and
WHEREAS, the Company proposes to issue to the Agent or its designees
warrants ("Warrants") to purchase a number of shares of Common Stock, equal to
twenty percent (20%) of the number of shares of Common Stock contained in the
Units sold in the Offering; and
WHEREAS, the Warrants to be issued pursuant to this Agreement will be
issued at each of the Closings (as such term is defined in the Placement Agency
Agreement) by the Company to the Agent in consideration for, and as part of the
Agent's compensation in connection with, the Agent acting as the placement agent
pursuant to the Placement Agency Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant. The Company hereby grants to the Agent, and its assigns
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(each, a "Holder"), the right to purchase, at any tune during the term ("Warrant
Exercise Term") commencing on the date hereof and ending at 5:30 p.m., New York
time, on the later of (a) the seventh anniversary of the date of the Final
Closing (as defined in the Placement Agency Agreement) or (b) the date which is
three years after the dosing date of an initial public offering of the Company's
securities within such seven year period, an aggregate number of shares of
Common Stock ("Warrant Shares") equal to twenty percent (20%) of the number of
shares of Common Stock contained in the Units sold in the Offering at an initial
exercise price of $1.00 per share of Common Stock, subject to adjustment as
provided in Section 6 hereof (as in effect from time to time, the "Exercise
Price").
2. Warrant Certificates. The Warrants shall be evidenced by warrant
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certificates ("Warrant Certificates") in the form of Exhibit A hereto which
shall be issued and delivered to the Agent upon each sale of securities of the
Company in respect of which Warrants shall become issuable hereunder. The
Warrant Certificates, and the certificates representing the Warrant Shares
and/or other securities, property or rights issuable upon exercise of the
Warrants
(collectively, the "Warrant Securities"), shall be executed on behalf of the
Company by the manual or facsimile signature of the then present Chairman or
Vice Chairman of the Board of Directors or President or Vice President of the
Company attested to be the manual or facsimile signature of the then present
Secretary or Assistant Secretary of the Company. Warrant Certificates shall be
dated the date of execution by the Company upon initial issuance notwithstanding
any subsequent division, exchange, substitution or transfer.
3. Exercise of Warrant.
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3.1. Exercise. Warrants may be exercised, in whole or in part
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(but not as to fractional shares), by surrender of a Warrant Certificate with
the annexed Form of Election to Purchase duly executed, together with payment of
the Exercise Price for the Warrant Securities for which such Warrants are being
exercised at the Company's principal offices at 709 Swedeland Road, X.X. Xxx
0000, Xxxx xx Xxxxxxx, XX 00000. The Exercise Price shall be payable by
certified or official bank check. The Exercise Price may also be paid, in whole
or in part, in shares of Common Stock owned by the Holder having an average Fair
Market Value (as defined below) over the last five (5) trading days immediately
preceding the Exercise Date (as defined below) equal to the portion of Exercise
Price being paid in such shares. In addition, the Warrants may be exercised, by
surrendering the Warrant Certificate in the manner specified in this Section 3,
together with irrevocable instructions to the Company to issue in exchange for
the Warrant Certificate the number of shares of Common Stock equal to the
product of (a) the number of shares as to which the Warrants are being exercised
multiplied by (b) a fraction the numerator of which is the average Fair Market
Value of a share of Common Stock over the last five (5) trading days immediately
preceding the Exercise Date less the Exercise Price therefor and the denominator
of which is such average Fair Market Value. In the case of the purchase of less
than all the shares of Common Stock purchasable under any Warrant Certificate,
the Company shall cancel said Warrant Certificate and shall execute and deliver
a new Warrant Certificate of like tenor for the unexercised balance of the
Warrant Securities. For purposes hereof, "Exercise Date" shall mean the date on
which all deliveries required to be made to the Company upon exercise of
Warrants pursuant to this Section 3.1 shall have been made.
3.2. Issuance of Certificates for Warrant Shares. Upon the
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exercise of the Warrants, the issuance of certificates for Warrant Securities
shall be made forthwith (and in any event such issuance shall be made within 10
business days from the Exercise Date) without charge to the Holder thereof
including, without limitation, any tax which may be payable in respect of the
issuance thereof, and such certificates shall (subject to the provisions of
Section 4 hereof) be issued in the name of, or in such names as may be directed
by, the Holder thereof; provided, however, 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 such certificates in a name other than that
of the Holder and the Company shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
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3.3. Fair Market Value. As is used herein, the "Fair Market
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Value" of a share of Common Stock on any day means: (a) if the principal market
for the Common Stock is The New York Stock Exchange, any other national
securities exchange or The Nasdaq National Market, the closing sales price of
the Common Stock on such day as reported by such exchange or market, or on a
consolidated tape reflecting transactions on such exchange or market, or (b) if
the principal market for the Common Stock is not a national securities exchange
or The Nasdaq National Market and the Common Stock is quoted on the National
Association of Securities Dealers Automated Quotations System, the mean between
the closing bid and the closing asked prices for the Common Stock on such day as
quoted on such System, or (c) if the Common Stock is not quoted on the National
Association of Securities Dealers Automated Quotations System, the mean between
the highest bid and lowest asked prices for the Common Stock on such day as
reported by the National Quotation Bureau, Inc.; provided that if none of (a),
(b) or (c) above is applicable, or if no trades have been made or no quotes are
available for such day, the Fair Market Value of the Common Stock shall be
determined, in good faith, by the Board of Directors of the Company.
4. Transfer of Securities. Each Holder, by acceptance of a Warrant
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Certificate, covenants and agrees that it is acquiring the Warrants evidenced
thereby, and, upon exercise thereof, the Warrant Securities, for its own account
-as an investment and not with a view to distribution thereof. The Warrant
Securities have not been registered under the Securities Act of 1933, as amended
(the "Act") or any state securities laws and no transfer of any Warrant
Securities shall be permitted unless the Company has received notice of such
transfer, at the address of its principal office set forth in Section 3.1
hereof, in the form of assignment attached hereto, accompanied by an opinion of
counsel reasonably satisfactory to the Company that an exemption from
registration of such Warrants Securities under the Act is available for such
transfer. Upon any exercise of the Warrants, certificates representing the
shares of Common Stock and any of the other securities issuable upon exercise of
the Warrants shall bear the following legend:
The securities represented by this certificate have not
been registered under the Securities Act of 1933
("Act") or any state securities laws for public resale,
and may not be offered or sold except pursuant to (i)
an effective registration statement under the Act and
such laws or (ii) an opinion of counsel satisfactory to
the issuer that an exemption from such registration is
available.
Any purported transfer of any Warrants or Warrant Securities not in compliance
with the provisions of this Section 4 shall be null and void.
5. [Intentionally Omitted.]
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6. Adjustments to Exercise Price and Number of Securities.
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6.1. Computation of Adjusted Exercise Price. Except as
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hereinafter provided, in case the Company shall at any time after the date
hereof issue or sell any shares of Common Stock, including, without limitation,
shares held in the Company's treasury and shares of Common Stock issued upon the
exercise of any options, rights or warrants to subscribe for shares of Common
Stock and shares of Common Stock issued upon the direct or indirect conversion
or exchange of securities for shares of Common Stock, for a consideration per
share less than the Exercise Price in effect immediately prior to the issuance
or sale of such shares or the Fair Market Value (as defined in Section 3.3
hereof of a share of Common Stock over the last five (5) trading days
immediately preceding the issuance or sale of such shares, or without
consideration, then forthwith upon such issuance or sale, the Exercise Price
shall (until another such issuance or sale) be reduced to the lower of the
prices (calculated to the nearest full cent) determined as follows:
(a) by dividing (i) an amount equal to the sum of (A) the
number of shares of Common Stock outstanding immediately prior to such issuance
or sale multiplied by the then existing Exercise Price, and (B) the aggregate
amount of the consideration, if any, received by the Company upon such issuance
or sale, by (ii) the total number of shares of Common Stock outstanding
immediately after such issuance or sale; and
(b) by multiplying the Exercise Price in effect immediately
prior to the of such issuance or sale by a fraction, the numerator of which
shall be the sum of (i) the number of shares of Common Stock outstanding
immediately prior to such issuance or sale multiplied by the average Fair Market
Value of a share of Common Stock over the last five (5) trading days immediately
preceding such issuance or sale, plus (ii) the aggregate amount of the
consideration received by the Company upon such issuance or sale, and the
denominator of which shall be the product of (A) the total number of shares of
Common Stock outstanding immediately after such issuance or sale, multiplied by
(B) such Fair Market Value; provided, however, that in no event shall the
Exercise Price be adjusted pursuant to the computations in this Section 6.1 to
an amount in excess of the Exercise Price in effect immediately prior to such
computation, except in the case of a combination of outstanding shares of Common
Stock, as provided by Section 6.3 hereof.
For the purposes of any computation to be made in accordance with this
Section 6.1, the following provisions shall be applicable:
(i) In case of the issuance or sale of shares of Common
Stock for a consideration part or all of which shall be cash, the amount of the
cash consideration therefor shall be deemed to be the amount of cash received by
the Company for such shares (or, if shares of Common Stock are offered by the
Company, for subscription, the subscription price, or, ff shares of Common Stock
are sold to underwriters or dealers for public offering without a subscription
offering, the public offering price, before deducting therefrom any compensation
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paid or discount allowed in the sale, underwriting or purchase thereof by
underwriters or dealers or others performing similar services, or any expenses
incurred in connection therewith) plus any amounts payable to security holders
or any affiliate thereof, including without limitation, any employment
agreement, royalty, consulting agreement, covenant not to compete, amount or
contingent payment right or similar arrangement, agreement or understanding,
whether oral or written; all such amounts shall be valued at the aggregate
amount payable thereunder whether such payments are absolute or contingent and
irrespective of the period or uncertainty of payment, the rate of interest, if
any, or the contingent nature thereof except if the payment of such amounts has
been approved by the Agent.
(ii) In case of the issuance or sale (otherwise
than as a dividend or other distribution on any stock of the Company) of shares
of Common Stock for a consideration part or all of which shall be other than
cash, the amount of the consideration therefor other than cash shall be deemed
to be the value of such consideration as determined in good faith by the Board
of Directors of the Company.
(iii) Shares of Common Stock issuable by way of
dividend or other distribution on any stock of the Company shall be deemed to
have been issued immediately after the opening of business on the day following
the record date for the determination of stockholders entitled to receive such
dividend or other distribution and shall be deemed to have been issued without
consideration.
(iv) The reclassification of securities of the
Company other than shares of Common Stock into securities including shares of
Common Stock shall be deemed to involve the issuance of such shares of Common
Stock for a consideration other than cash immediately after the opening of
business on the day following the record date for the determination of security
holders entitled to receive such shares, and the value of the consideration
allocable to such shares of Common Stock shall be determined as provided in
paragraph (2) of this Section 6.1.
(v) The number of shares of Common Stock at any one
time outstanding shall include the aggregate number of shares issued or issuable
(subject to readjustment upon the actual issuance thereof) upon the exercise of
then outstanding options, rights, warrants and upon the conversion or exchange
of then outstanding convertible or exchangeable securities.
(vi) No adjustment shall be made to the Exercise
Price then in effect upon the exercise of the Warrants or the conversion or
exchange of convertible or exchangeable securities outstanding as of the date
hereof or the exercise of options issued pursuant to the Company's stock option
plans described in the Memorandum.
6.2. Options, Rights, Warrants and Convertible and Exchangeable
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Securities. Except for options to be issued pursuant to the Company's stock
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option plans
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described in the Memorandum, in case the Company shall at any time after the
date hereof grant or issue options, rights or warrants to subscribe for shares
of Common Stock, or issue any securities convertible into or exchangeable for
shares of Common Stock, where the aggregate consideration per share is less than
the Exercise Price in effect immediately prior to the issuance of such options,
rights or warrants, or such convertible or exchangeable securities, the Exercise
Price in effect immediately prior to the issuance of such options, rights or
warrants, or such convertible or exchangeable securities, as the case may be,
shall be reduced to a price determined by making a computation in accordance
with the provisions of Section 6.1 hereof, provided that:
(a) The aggregate maximum number of shares of Common
Stock, as the case may be, issuable under such options, rights or warrants shall
be deemed to be issued and outstanding at the time such options, rights or
warrants were issued.
(b) The aggregate consideration for any such options,
rights or warrants shall be equal to the minimum purchase price per share
provided for in such options, rights or warrants at the time of issuance, plus
the consideration, if any, received by the Company for such options, rights or
warrants.
(c) The aggregate maximum number of shares of Common
Stock issuable upon conversion or exchange of any convertible or exchangeable
securities shall be deemed to be issued and outstanding at the time of issuance
of such securities.
(d) The aggregate consideration for any such
convertible or exchangeable securities shall be equal to the consideration
received[ by the Company for such securities, plus the total consideration, if
any, receivable by the Company upon the conversion or exchange thereof.
(e) If any change shall occur in the exercise price
per share provided for in any of such options, rights or warrants or in the
price per share at which such convertible or exchangeable securities are
convertible or exchangeable, such options, rights or warrants or convertible or
exchangeable securities, as the case may be, shall be deemed to have expired or
terminated on the date when such price change became effective in respect of
shares not theretofore issued pursuant to the exercise or conversion or exchange
thereof, and the Company shall be deemed to have issued upon such date new
options, rights or warrants or convertible or exchangeable securities at the new
price in respect of the number of shares issuable upon the exercise of such
options, rights or warrants or the conversion or exchange of such convertible or
exchangeable securities.
(f) In case there has been any adjustment hereunder in
the Exercise Price by reason of the offer, issue or sale of any subscription or
purchase rights or options or any convertible or exchangeable securities or
obligations and the purchase, conversion or exchange privilege so created
thereafter terminates unexercised or changes, such Exercise
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Price shall as of the date of such termination or change be adjusted to reflect
such termination or change.
6.3. Subdivision and Combination. In case the Company shall at
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any time subdivide or combine the outstanding shares of Common Stock, the
Exercise Price shall forthwith be proportionately decreased in the case of
subdivision or increased in the case of combination.
6.4. Adjustment in Number of Securities. Upon each adjustment of
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the Exercise Price pursuant to the provisions of this Section 6, the number of
securities issuable upon the exercise of each Warrant shall be adjusted to the
nearest full amount by multiplying a number equal to the Exercise Price in
effect immediately prior to such adjustment by the number of Warrant Shares
issuable upon exercise of the Warrants immediately prior to such adjustment and
dividing the product so obtained by the adjusted Exercise Price.
6.5. Definition of Common Stock. For the purpose of this
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Agreement, the term "Common Stock" shall mean (i) the class of stock designated
as Common Stock in the Certificate of Incorporation of the Company as may be
amended as of the date hereof, or (ii) any other class of stock resulting from
successive changes or modifications of such Common Stock consisting solely of
changes in par value, or from par value to no par value, or from no par value to
par value.
6.6. Merger or Consolidation. In the event there is proposed any
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consolidation of the Company with, or merger of the Company with or into,
another corporation, other than a merger or consolidation in which the Company
is the surviving corporation and after which at least fifty percent (50%) of the
outstanding voting securities of the Company are owned by the stockholders of
the Company immediately prior to such merger or consolidation, subject to its
obligations of confidentiality, the Company shall provide the Holder with not
less than 30 days' prior written notice of the proposed effective date of such
merger or consolidation (the "Effective Date"). The Holder shall be entitled to
exercise its Warrants at any time up to the third business day prior to the
Effective Date, and this Agreement and any unexercised Warrants shall terminate
and be of no further force and effect on the Effective Date (or such later date
on which the merger or consolidation becomes effective). Any such exercise by
the Holder may be conditioned upon and made subject to the consummation of the
merger or consolidation.
6.7. No Adjustment of Exercise Price in Certain Cases. No
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adjustment of the Exercise Price shall be made:
(a) Upon the issuance or sale of the Warrants or the shares
of Common Stock issuable upon the exercise of the Warrants.
(b) If the amount of said adjustment shall be less than two
cents (2c) per security issuable upon exercise of the Warrants; provided,
however, that in such
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case any adjustment that would otherwise be required then to be made shall be
carried forward and shall be made at the time of and together with the next
subsequent adjustment which, together with any adjustment so carried forward,
shall amount to at least two cents (2c) per security issuable upon exercise of
the Warrants.
6.8. Dividends and Other Distributions. In the event that the
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Company shall at any time prior to the exercise of all Warrants declare a
dividend (other than a dividend consisting solely of shares of Common Stock) or
otherwise distribute to its stockholders any assets, property, rights, evidence
of indebtedness, securities (other than shares of Common Stock), whether issued
by the Company or by -another, or any other thing of value, the Holders of the
unexercised Warrants shall thereafter be entitled, in addition to the shares of
Common Stock or other securities and property receivable upon the exercise
thereof, to receive, upon the exercise of such Warrants, the same property,
assets, rights, evidences of indebtedness, securities or any other thing of
value that they would have been entitled to receive at the time of such dividend
or distribution as if the Warrants had been exercised immediately prior to such
dividend or distribution. At the time of any such dividend or distribution, the
Company shall make appropriate reserves to ensure the timely performance of the
provisions of this Section 6.8.
7. Exchange and Replacement of Warrant Certificates. Each Warrant
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Certificate is exchangeable without expense, upon the surrender thereof by the
registered Holder at the principal office of the Company, for a new Warrant
Certificate of like tenor and date representing in the aggregate the right to
purchase the same number of securities in such denominations as shall be
designated by the Holder thereof at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of any Warrant Certificate,, and,
in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Warrants, ff
mutilated, the Company will make and deliver a new Warrant Certificate of like
tenor, in lieu thereof.
8. Elimination of Fractional Interests. The Company shall not be
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required to issue certificates representing fractions of shares of Common Stock
upon the exercise of the Warrants, but instead shall pay cash in lieu of such
fractional interests to the Holders entitled thereto based on the Fair Market
Value of the Common Stock as determined m good faith by the Board of Directors
of the Company.
9. Reservation and Listing of Securities. The Company shall at all
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times reserve and keep available out of its authorized shares of Common Stock,
solely for the purpose of issuance upon the exercise of the Warrants, such
number of shares of Common Stock or other securities, properties or rights as
shall be issuable upon the exercise thereof. The Company covenants and agrees
that, upon exercise of the Warrants and payment of the Exercise Price therefor,
all shares of Common Stock and other securities issuable upon such exercise
shall be
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duly and validly issued, fully paid, nonassessable and not subject to the
preemptive rights of any stockholder.
10. Notices to Warrant Holders. Nothing contained in this Agreement
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shall be construed as conferring upon the Holders the right to vote or to
consent or to receive notice as a stockholder in respect of any meetings of
stockholders for the election of directors or any other matter, or as having any
rights whatsoever as a stockholder of the Company. If, however, at any time
prior to the expiration of the Warrants and their exercise, any of the following
events shall occur:
(a) the Company shall take a record of the holders of its
shares of Common Stock for the purpose of entitling them to receive a dividend
or distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained earnings, as
indicated by the accounting treatment of such dividend or distribution on the
books of the Company; or
(b) the Company shall offer to all the holders of its
Common Stock any additional shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the Company, or
any option right or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation or merger) or a sale, of all or
substantially all of its property, assets and business as an entirety shall be
proposed;
then, in any one or more of said events, the Company shall give written notice
of such event at least 15 days prior to the date fixed as a record date or the
date of dosing the transfer books for the determination of the stockholders
entitled to such dividend, distribution, convertible or exchangeable securities
or subscription rights, or entitled to vote on such proposed dissolution,
liquidation, winding up or sale. Such notice shall specify such record date or
the date of dosing the transfer books, as the case may be. Failure to give such
notice or any defect therein shall not affect the validity of any action taken
in connection with the declaration or payment of any such dividend, or the
issuance of any convertible or exchangeable securities, or subscription rights,
options or warrants, or any proposed dissolution, liquidation, winding up or
sale.
11. Notices. All notices, requests, consents and other
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communications hereunder shall be in writing and shall be deemed to have been
duly made when delivered, or mailed by registered or certified mail, return
receipt requested:
(a) If to a Holder, to the address of such Holder as
shown on the books of the Company; or
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(b) If to the Company, to the address set forth in
Section 3.1 hereof, or to such other address as the Company may designate by
notice to the Holders.
12. Supplements and Amendments. The Company and the Agent may
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from time to time supplement or amend this Agreement without the approval of any
Holders in order to cure any ambiguity, to correct or supplement any provision
contained herein which may be defective or inconsistent with any provision
herein or to make any other provisions in regard to matters or questions arising
hereunder which the Company and the Agent may deem necessary or desirable and
which the Company and the Agent deem shall not adversely affect the interests of
any other Holders of Warrant Certificates. Other amendments to this Agreement
may be made only with the written consent of a Majority of Holders.
13. Successors. All the covenants and provisions of this
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Agreement shall be binding upon and inure to the benefit of the Company, the
Holders and their respective successors and assigns hereunder.
14. Termination. This Agreement shall terminate at the dose of
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business on the seventh anniversary of the date hereof. Notwithstanding the
foregoing, the indemnification provisions of Section 5.5 hereof shall survive
such termination until the close of business on the fourteenth anniversary of
the date hereof.
15. Governing Law: Submission to Jurisdiction. This
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Agreement and each Warrant Certificate issued hereunder shall be governed by,
and construed in accordance with, the laws of the State of New York applicable
to contracts entered into and to be performed wholly within said State.
The Company, the Agent and each of the Holders hereby agree that
any action, proceeding or claim against it arising out of, or relating m any way
to, this Agreement shall be brought and enforced m the courts of the State of
New York, and any Federal court located in the County of New York, and
irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive.
The Company, the Agent and each of the Holders hereby irrevocably waives any
objection to such exclusive action or inconvenient forum. Any such process or
summons to be served upon any of the Company, the Agent and any of the Holders
(at the option of the party bringing such action, proceeding or claim) may be
served by transmitting a copy thereof, by registered or certified mail, return
receipt requested, postage prepaid, addressed to it at the address as set forth
in Section 11 hereof. Such mailing shall be deemed personal service and shall be
legal and binding upon the party so served in any action, proceeding or claim.
The Company and each Holder, by its acceptance of a Warrant Certificate, agrees
that the prevailing party(ies) in any such action or proceeding shall be
entitled to recover from the other party(ies) all of its/their reasonable legal
costs and expenses relating to such action or proceeding and/or incurred in
connection with the preparation therefor.
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16. Entire Agreement. This Agreement contains the entire
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understanding between the parties hereto and supersedes all prior agreements and
understandings, written or oral, with respect to the subject matter hereof.
17. Severability. If any provision of this Agreement shall be held
------------
to be invalid and unenforceable, such invalidity or unenforceability shall not
affect any other provision of this Agreement.
18. Captions. The caption headings of the Sections of this Agreement
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are for convenience of reference only and are not intended, nor should they be
construed, as a part of this Agreement and shall be given no substantive effect.
19. Benefits of this Agreement. Nothing in this Agreement shall be
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construed to give to any person or corporation other than the Company and the
Agent and any other Holder(s) of the Warrant Certificates or Warrant Securities
any legal or equitable right, remedy or claim under this Agreement; and this
Agreement shall be for the sole and exclusive benefit of the Company and the
Agent and any other such Holder(s).
20. Counterparts. This Agreement may be executed in any number of
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counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
EXIGENT DIAGNOSTICS, INC.
By: /s/ X. Xxxxxxx Stoughton
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Name: X. Xxxxxxx Stoughton
Title:
XXXXXXX XXXXX SECURITIES INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title:
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[FORM OF WARRANT CERTIFICATE]
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED(THE "ACT") OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR
SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR
(ii) AN OPINION OF COUNSEL, SATISFACTORY TO THE ISSUER, THAT AN EXEMPTION FROM
SUCH REGISTRATION IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
No. W- _________ Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that _____________, or its assigns,
is the holder of _________ Warrants to purchase initially, at any time after the
date hereof until 5:30 p.m. New York time on the last day of the Warrant
Exercise Term ("Expiration Date") common stock, $.0l par value ("Common Stock"),
of Exigent Diagnostics, Inc., a Delaware corporation (the "Company"), (shares of
Common Stock are referred to herein individually as a "Security" and
collectively as the "Securities"), at the initial exercise price, subject to
adjustment in events (the "Exercise Price"), of $1.00 upon surrender of this
Warrant Certificate and payment of the Exercise Price at an office or agency of
the Company, but subject to the conditions set forth herein and in the Warrant
Agreement dated as of December ______, 1996, between the Company and Xxxxxxx
Xxxxx Securities Incorporated (the "Warrant Agreement"). Capitalized terms used
herein and not defined herein shall have the meanings ascribed to such terms by
the Warrant Agreement Payment of the Exercise Price shall be made by certified
or official bank check payable to the order of the Company or by any other
method permitted by the Warrant Agreement.
No Warrant may be exercised after 5:30 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, hereby shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of this
Agreement and is hereby referred to for a description of the rights, obligations
of rights, obligations, duties and immunities thereunder of the Company and the
Holders of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may,
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subject to certain conditions, be adjusted. In such event, the Company will, at
the request of the Holder, issue a new Warrant Certificate evidencing the
adjust3nent in the Exercise Price and the number and/or type of securities
issuable upon the exercise of the Warrants; provided, however, that the failure
of the Company to issue such new Warrant Certificates shall not in any way
change, alter, or otherwise impair, the rights of the Holder as set forth in the
Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate and executed form of assignment as attached hereto at the office of
the Company set forth in the Warrant Agreement, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferees) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the Warrant
Agreement, without any charge except for any tax or other governmental charge
imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such unexercised Warrants.
The Company may deem and treat the Holder(s) hereof as reflected on
the records of the Company as the absolute owner(s) of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, and of any distribution to the
Holder(s) hereof, and for all other purposes, and the Company shall not be
affected by any notice to the contrary.
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IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated as of __________, 199____
EXIGENT DIAGNOSTICS, INC.
[SEAL]
By
Name:
Title:
Attest
______________________________
Secretary
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[FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 3.1]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase shares of Common Stock.
In accordance with the terms of Section 3.1 of the Warrant Agreement
dated as of December _______, 1996, between Exigent Diagnostics, Inc. and
Xxxxxxx Xxxxx Securities Incorporated, the undersigned requests that a
certificate for such securities be registered in the name of ___________________
whose address is __________________ and that such Certificate be delivered to
______________________ whose address is _______________________.
Dated: _____________, 199___
Signature:
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant
Certificate.)
(Insert Social Security or Other Identifying
Number of Holder)
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[FORM OF ASSIGNMENT]
(To be executed by the Holder if such Holder
desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED _________________ here sells, assigns and transfers
unto ______________________________ (Please print name and address of
transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby
irrevocably constitute and appoint ________ Attorney, to transfer the within
Warrant Certificate on the books of the within-named Company, with full power of
substitution.
Dated: ____________, 199__
Signature:
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant
Certificate.)
(Insert Social Security or Other Identifying
Number of Holder)
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