Contract
Exhibit
4.19
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAW AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE
STATE SECURITIES LAWS OR THE ISSUER SHALL HAVE RECEIVED AN OPINION OF COUNSEL
TO
THE HOLDER OF THE SECURITIES (UNLESS THE ISSUER IN ITS SOLE DISCRETION
DETERMINES TO USE ITS OWN COUNSEL), WITH ANY SUCH COUNSEL TO THE HOLDER AND
ANY
SUCH OPINION OF SUCH COUNSEL TO BE REASONABLY ACCEPTABLE TO THE ISSUER, THAT
REGISTRATION UNDER THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE
STATE SECURITIES LAWS IS NOT REQUIRED.
WARRANT
TO PURCHASE
SHARES
OF
COMMON STOCK
OF
Expires
May 4, 2009
|
No.:
|
Number
of Shares:
|
|
Original
Date of Issuance: May 5, 2004
|
Reissuance
Date: December 19,
2007
|
FOR
VALUE
RECEIVED, subject to the provisions hereinafter set forth, the undersigned,
Chembio Diagnostics, Inc., a Nevada corporation (together with its successors
and assigns, the "Issuer"), hereby certifies that ________ or its
registered assigns is entitled to subscribe for and purchase, during the Term
(as hereinafter defined), up to ________ (__________) shares (subject to
adjustment as hereinafter provided) of the duly authorized, validly issued,
fully paid and non-assessable Common Stock of the Issuer, at an exercise price
per share equal to the Exercise Price then in effect, subject, however, to
the
provisions and upon the terms and conditions hereinafter set
forth. Capitalized terms used in this Warrant and not otherwise
defined herein shall have the respective meanings specified in Section 6
hereof.
1. Term. The
term of this Warrant shall commence on ______ and shall expire at 5:00 p.m.,
eastern time, on May 4, 2009 (such period being the "Term").
2. Method
of Exercise Payment; Issuance of New Warrant; Transfer and
Exchange.
(a) Time
of Exercise. The purchase rights represented by this Warrant may
be exercised in whole or in part anytime during the Term.
(b) Method
of Exercise. The Holder hereof may exercise this Warrant, in
whole or in part, by the surrender of this Warrant (with the exercise form
attached hereto duly executed) at the principal office of the Issuer, and by
the
payment to the Issuer of an amount of consideration therefor equal to the
Exercise Price in effect on the date of such exercise multiplied by the number
of shares of Warrant Stock with respect to which this Warrant is then being
exercised, payable at
such Holder's election (i) by certified or official bank check or by
wire transfer to an account designated by the Issuer, or
(ii) by "cashless exercise" in accordance with the provisions of section
(2)(c).
(c) Cashless
Exercise. (i) At the option of the Holder, this Warrant may be
exercised by means of a “cashless exercise” (a “Cashless Exercise”) in which the
Holder shall be entitled to receive a certificate for the number
of shares of Warrant Stock equal to the quotient obtained by dividing
[(A-B) (X)] by (A), where:
(A)
= the
VWAP for the ten-Trading Day period that ends on the first Trading Day
immediately preceding the date of such election;
(B)
= the
Exercise Price of this Warrant in effect on the date of exercise, as adjusted;
and
(X)
= the
number of shares of Warrant Stock issuable upon exercise of this Warrant in
accordance with the terms of this Warrant by means of a cash exercise rather
than a cashless exercise.
(ii) Notwithstanding
anything herein to the contrary, for any Notice of Exercise Form dated on the
Plan Closing Date received from a Holder who exercises its warrants on cashless
basis at $0.45 per share before 10:00p.m. ET on the Plan Closing Date, the
value
of (A) in the equation set forth in Section 2(c)(i) above shall be equal to
the
greater of $0.53 or the VWAP for the ten-Trading Day period that ends on the
second Trading Day prior to the date of the Notice of Exercise
Form.
(iii) Notwithstanding
anything herein to the contrary, for any Notice of Exercise Form dated between
and inclusive of the Plan Closing Date and the Final Plan Date received from
a
Holder who exercises at least 10% of all of such Holder's warrants and options
for cash before 10:00p.m. ET on the Plan Closing Date the value of (A) in the
equation set forth in Section 2(c)(i) above shall be equal to the greater of
$0.53 or the VWAP for the ten-Trading Day period that ends on the second Trading
Day prior to the date of the Notice of Exercise Form.
(iv) Notwithstanding
anything herein to the contrary, a Holder who does not exercise (i) at least
10%
of all of such Holder's warrants and options issued by the Company for cash
at
an exercise price of $0.40 per share before 10:00p.m. ET on the Plan Closing
Date, or (ii) its warrants on cashless basis at $0.45 per share by 10:00p.m.
ET
on the Plan Closing Date, shall not be permitted to exercise its Warrants on
a
cashless basis pursuant to Section 2(c)(i) above until April 1,
2008.
(d) Issuance
of Stock Certificates. In the event of any exercise of the rights
represented by this Warrant in accordance with and subject to the terms and
conditions hereof, (i) certificates for the shares of Warrant Stock so purchased
shall be dated the date of such exercise and delivered to the Holder hereof
within a reasonable time, after such exercise, and (ii) unless this Warrant
has
expired, a new Warrant representing the number of shares of Warrant Stock,
if
any, with respect to which this Warrant shall not then have been exercised
(less
any amount thereof which shall have been canceled in payment or partial payment
of the Exercise Price as hereinabove provided) shall also be issued to the
Holder hereof at the Issuer's expense within such time.
(e) Transferability
of Warrant. Subject to Section 2(f), this Warrant may be
transferred by a Holder without the consent of the Issuer. If
transferred pursuant to this paragraph and subject to the provisions of
subsection (f) of this Section 2, this Warrant may be transferred on the books
of the Issuer by the Holder hereof in person or by duly authorized attorney,
upon surrender of this Warrant at the principal office of the Issuer, properly
endorsed (by the Holder executing an assignment in the form attached hereto)
and
upon payment of any necessary transfer tax or other governmental charge imposed
upon such transfer. This Warrant is exchangeable at the principal
office of the Issuer for Warrants for the purchase of the same aggregate number
of shares of Warrant Stock, each new Warrant to represent the right to purchase
such number of shares of Warrant Stock as the Holder hereof shall designate
at
the time of such exchange. All Warrants issued on transfers or
exchanges shall be dated the Original Issue Date and shall be identical with
this Warrant except as to the number of shares of Warrant Stock issuable
pursuant thereto.
(f) Compliance
with Securities Laws.
(i)
The
Holder of this Warrant, by acceptance hereof, acknowledges that this Warrant
or
the shares of Warrant Stock to be issued upon exercise hereof are being acquired
solely for the Holder's own account and not as a nominee for any other party,
and for investment, and that the Holder will not offer, sell or otherwise
dispose of this Warrant or any shares of Warrant Stock to be issued upon
exercise hereof except pursuant to an effective registration statement, or
an
exemption from registration, under the Securities Act and any applicable state
securities laws.
(ii)
The
Holder of this Warrant by acceptance hereof, represents that it has not been
organized, reorganized or recapitalized specifically for the purpose of
investing in the Issuer; has sufficient business and financial
knowledge and experience so as to be capable of evaluating the merits and risks
of its investment in the Issuer; has had an opportunity to discuss the Issuer’s
business, management and financial affairs with the Issuer’s management, and had
all questions answered to its satisfaction.
(iii) This
Warrant and all certificates representing shares of Warrant Stock issued upon
exercise hereof shall be stamped or imprinted with a legend in substantially
the
following form:
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAW AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE
STATE SECURITIES LAWS OR THE ISSUER SHALL HAVE RECEIVED AN OPINION OF COUNSEL
TO
THE HOLDER OF THE SECURITIES (UNLESS THE ISSUER IN ITS SOLE DISCRETION
DETERMINES TO USE ITS OWN COUNSEL), WITH ANY SUCH COUNSEL TO THE HOLDER AND
ANY
SUCH OPINION OF SUCH COUNSEL TO BE REASONABLY ACCEPTABLE TO THE ISSUER, THAT
REGISTRATION UNDER THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE
STATE SECURITIES LAWS IS NOT REQUIRED.
3. Loss,
Theft, Destruction of Warrants. Upon receipt of evidence
satisfactory to the Issuer of the ownership of and the loss, theft, destruction
or mutilation of any Warrant and, in the case of any such loss, theft or
destruction, upon receipt of indemnity or security satisfactory to the Issuer
or, in the case of any such mutilation, upon surrender and cancellation of
such
Warrant, the Issuer will make and deliver, in lieu of such lost, stolen,
destroyed or mutilated Warrant, a new Warrant of like tenor and representing
the
right to purchase the same number of shares of Common Stock.
4. Adjustment
of Exercise Price. The price at which such shares may be
purchased upon exercise of this Warrant shall be subject to adjustment from
time
to time as set forth in this Section 4.
(a) Subdivisions
and Combinations. If at any time the Issuer shall:
(i) subdivide
its outstanding shares of Common Stock into a larger number of shares of Common
Stock, or
(ii) combine
its outstanding shares of Common Stock into a smaller number of shares of Common
Stock,
then
(1)
the number of shares of Common Stock for which this Warrant is exercisable
immediately after the occurrence of any such event shall be adjusted to equal
the number of shares of Common Stock which a record holder of the same number
of
shares of Common Stock for which this Warrant is exercisable immediately prior
to the occurrence of such event would own or be entitled to receive after the
happening of such event, and (2) the Exercise Price then in effect shall be
adjusted to equal (A) the Exercise Price then in effect multiplied by the number
of shares of Common Stock for which this Warrant is exercisable immediately
prior to the adjustment divided by (B) the number of shares of Common Stock
for
which this Warrant is exercisable immediately after such
adjustment.
(b) Form
of Warrant after
Adjustments. The form of this Warrant need not be changed because
of any adjustments in the Exercise Price or the number and kind of Securities
purchasable upon the exercise of this Warrant.
(c) Notwithstanding
any other provision set forth in this Section 4, no adjustment to the Exercise
Price shall be required because of any issuance or sale of Additional Shares
of
Common Stock or Common Stock Equivalents in connection with the
Plan.
5. Fractional
Share. No fractional shares of Warrant Stock will be issued in
connection with any exercise of this Warrant. As to the remaining
fraction of a share, if any, which Holder would otherwise be entitled to
purchase at the time, if any, that all whole shares of Warrant Stock available
hereunder have been purchased purchase to the exercise of this Warrant, the
Issuer shall pay a cash adjustment in respect of such final fraction in an
amount equal to such fraction multiplied by the Exercise Price. The
Issuer shall pay this cash adjustment for fractional shares one time
only.
6. Definitions. For
the purposes of this Warrant, the following terms have the following
meanings:
"Board"
shall mean the Board of Directors of the Issuer.
"Common
Stock" means the Common Stock, par value $.01 per share, of the Issuer and
any other Capital Stock into which such stock may hereafter be
changed.
“Final
Plan Date” shall mean the date that is six months and twelve days after the
Plan Closing Date.
"Holders"
mean the Persons who shall from time to time own any Warrant. The
term "Holder" means one of the Holders.
"Issuer"
means Chembio Diagnostics, Inc., a Nevada corporation, and its
successors.
"Original
Issue Date" means «Year_Issued».
"OTC
Bulletin Board" means the
over-the-counter electronic bulletin board.
"Person"
means an individual,
corporation, limited liability company, partnership, joint stock company, trust,
unincorporated organization, joint venture, Governmental Authority or other
entity of whatever nature.
“Plan”
shall mean any action the Company takes, with any required approval of the
holders thereof, on or before the Final Plan Date as contemplated by the Plan
Summary and accompanying materials provided to holders on December 4, 2007, in
connection with the reduction or other modification of terms of the Company’s
then-outstanding preferred stock, warrants and options, including, but not
limited to, actions the Company takes to (i) facilitate the conversion of the
Series A, B and C Convertible Preferred Stock; (ii) reduce the exercise price
of
any of the Company’s outstanding warrants or options; (iii) offer the holders of
the Company’s warrants and options the opportunity to exercise such warrants and
options on a cash and/or cashless basis; and (iv) make other amendments to
the
documents governing these securities to effect these modifications, and to
facilitate the conversion and exercise of these securities.
“Plan
Closing Date” shall be December 19, 2007.
"Securities"
means any debt or equity securities of the Issuer, whether now or hereafter
authorized, any instrument convertible into or exchangeable for Securities
or a
Security, and any option, warrant or other right to purchase or acquire any
Security. "Security" means one of the Securities.
"Securities
Act" means the Securities Act of 1933, as amended, or any similar federal
statute then in effect.
"Term"
has the meaning specified in Section 1 hereof.
"Trading
Day" means (a) a day on which the Common Stock is traded on the OTC Bulletin
Board, or (b) if the Common Stock is not traded on the OTC Bulletin Board,
a day
on which the Common Stock is quoted in the over-the-counter market as reported
by the National Quotation Bureau Incorporated (or any similar organization
or
agency succeeding its functions of reporting prices); provided,
however, that in the event that the Common Stock is not listed or
quoted
as set forth in (a) or (b) hereof, then Trading Day shall mean any day except
Saturday, Sunday and any day which shall be a legal holiday or a day on which
banking institutions in the State of New York are authorized or required by
law
or other government action to close.
"Warrants"
means this Warrants, and any other warrants of like tenor issued in substitution
or exchange for any thereof pursuant to the provisions hereof.
"Exercise
Price"
shall
be
as follows, except as may be adjusted from time to time as shall result from
the
adjustments specified in this Warrant:
(i) For
the period 4:01p.m. eastern time (“ET”) through 9:59p.m. ET on the Plan
Closing Date, $0.40 per share for all or any portion of this Warrant exercised
for cash;
(ii) For
the period 4:01p.m. ET through 9:59p.m. ET on the Plan Closing Date, $0.45
per
share for all or any portion of this Warrant exercised through a Cashless
Exercise;
(iii) For
the period beginning 10:00p.m. ET on the Plan Closing Date through 9:59p.m.
ET
on the Final Plan Date, $0.45 for all or any part of this Warrant exercised
by a
Holder who exercised at least 10% of all of such Holder’s warrants and options
for cash at the Plan Closing Date;
(iv) For
the period beginning 10:00p.m. ET on the Plan Closing Date, $___ per share
for
any Holder that did not exercise at least 10% of all of such Holder’s warrants
and options for cash at an exercise price of $0.40 per share at the Plan Closing
Date; and
(v) For
the period beginning 10:00p.m. ET on the Final Plan Date, $___ per share for
all
or any portion of this Warrant that has not been exercised on or before 9:59p.m.
ET on the Final Plan Date.
"Warrant
Stock" means Common Stock issuable upon exercise of any Warrant or Warrants
or otherwise issuable pursuant to any Warrant or Warrants.
7. Amendment
and Waiver. Any term, covenant, agreement or condition in this
Warrant may be amended, or compliance therewith may be waived (either generally
or in a particular instance and either retroactively or prospectively), by
a
written instrument or written instruments executed by the Issuer and the
majority of the Holders.
8. Governing
Law. THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAW.
9. Notices. Any
and all notices or other communications or deliveries required or permitted
to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earlier of (i) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile telephone number
specified for notice prior to 5:00 p.m., eastern time, on a Trading Day, (ii)
the Trading Day after the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile telephone number specified for
notice later than 5:00 p.m., eastern time, on any date and earlier than 11:59
p.m., eastern time, on such date, or (iii) actual receipt by the party to whom
such notice is required to be given. The addresses for such
communications shall be with respect to the Holder of this Warrant or of Warrant
Stock issued pursuant hereto, addressed to such Holder at its last known address
or facsimile number appearing on the books of the Issuer maintained for such
purposes, or with respect to the Issuer, addressed to:
0000
Xxxxxxxxxx Xxxx
Xxxxxxx,
XX 00000
Attention:
Xxxxxxxx X. Xxxxxxx,
President
Tel.
No.: (000)
000-0000
Fax
No.: (000) 000-0000
Copies
of
notices to the Issuer shall be sent to Xxxxxx Xxxxx LLP, 0000 Xxxxxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxx, XX 00000, Attention: Xxxx Xxxxxxxxx, Tel. No.:
(000) 000-0000, Fax No.: (000) 000-0000. Copies of notices to the
Holder shall be sent to _______________, Facsimile No.: . Any party
hereto may from time to time change its address for notices by giving at least
ten (10) days written notice of such changed address to the other party
hereto.
10. Successors
and Assigns. This Warrant and the rights evidenced hereby shall
inure to the benefit of and be binding upon the successors and assigns of the
Issuer, the Holder hereof and (if applicable) the Holders of Warrant
Stock.
11. Modification
and Severability. If, in any action before any court or agency
legally empowered to enforce any provision contained herein, any provision
hereof is found to be unenforceable, then such provision shall be deemed
modified to the extent necessary to make it enforceable by such court or
agency. If any such provision is not enforceable as set forth in the
preceding sentence, the unenforceability of such provision shall not affect
the
other provisions of this Warrant, but this Warrant shall be construed as if
such
unenforceable provision had never been contained herein.
12. Headings. The
headings of the Sections of this Warrant are for convenience of reference only
and shall not, for any purpose, be deemed a part of this Warrant.
IN
WITNESS WHEREOF, the Issuer has caused this Warrant to be executed by its
officer thereunto duly authorized.
Original
Issue
Date: May
5, 2004
Revised
Issue
Date: December
19, 2007
Xxxxxxxx
X. Xxxxxxx,
President
|
No.: ________
|
Number
of Shares: ____________
|
|
Original
Date of Issuance: May 5, 2004
|
Reissuance
Date: December 19,
2007
|
EXERCISE
FORM
The
undersigned ______________________________________, pursuant to the provisions
of the within Warrant, hereby elects to purchase _____________ shares of Common
Stock of Chembio Diagnostics, Inc. covered by the within Warrant.
Date:
_________________ Signature ___________________________________
Address ___________________________________
___________________________________
Number
of
shares of Common Stock beneficially owned or deemed beneficially owned by the
Holder on the date of Exercise: _________________________
ASSIGNMENT
FOR
VALUE
RECEIVED, _________________ hereby sells, assigns and transfers unto
__________________ the within Warrant and all rights evidenced thereby and
does
irrevocably constitute and appoint _____________, attorney, to transfer the
said
Warrant on the books of the within named corporation.
Date:
_________________ Signature ___________________________________
Address ___________________________________
___________________________________
PARTIAL
ASSIGNMENT
FOR
VALUE
RECEIVED, _________________ hereby sells, assigns and transfers unto
__________________ the right to purchase _________ shares of Warrant Stock
evidenced by the within Warrant together with all rights therein, and does
irrevocably constitute and appoint ___________________, attorney, to transfer
that part of the said Warrant on the books of the within named
corporation.
Date:
_________________ Signature ___________________________________
Address ___________________________________
___________________________________
FOR
USE BY THE ISSUER ONLY:
This
Warrant No. W-_________ canceled (or transferred or exchanged) this _____ day
of
_________________, _________, shares of Common Stock issued therefor in the
name
of ________________________________________________________________, Warrant
No.
W-___________ issued for ____________ shares of Common Stock in the name of
_____________________________________________________________________________.
