EXHIBIT 4.3
PLACEMENT AGENT WARRANT AGREEMENT
WARRANT AGREEMENT dated as of March 6, 1998, between EXIGENT
DIAGNOSTICS, INC., a Delaware corporation ("Company"), and XXXXXXX XXXXX SECU-
RITIES INCORPORATED ("Agent").
W I T N E S S E T H
WHEREAS, the Agent has agreed pursuant to the Placement Agency
Agreement dated January 29, 1998, 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 85 units
("Units") (plus up to an additional 12.75 Units solely to cover over-
subscriptions, if any) each Unit consisting of 76,293 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 (each, a "Holder"), the right to purchase, at any time 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 closing 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 $1.30 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 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
divi sion, exchange, substitution or transfer.
3. EXERCISE OF WARRANT.
3.1 EXERCISE. Warrants may be exercised, in whole or in part
(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 Five Xxxxxx Xxxxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxx, 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 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.
3.3 FAIR MARKET VALUE. As is used herein, the "Fair Market
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
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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 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, accompa xxxx 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.]
6. ADJUSTMENTS TO EXERCISE PRICE AND NUMBER OF SECURITIES.
6.1 COMPUTATION OF ADJUSTED EXERCISE PRICE. Except as
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:
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(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 time 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:
(1) 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, if 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
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, earnout 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.
(2) 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.
(3) 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
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entitled to receive such dividend or other distribution and shall be deemed to
have been issued without consideration.
(4) 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.
(5) 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.
(6) 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
SECURITIES.
Except for options to be issued pursuant to the Company's stock
option plans 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.
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(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 minimum 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 ex changeable 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 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
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
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
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 reclassifications 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
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
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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
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 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
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 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, if
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 required to issue certificates representing fractions of shares of Common
Stock upon the exercise of the
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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 in good faith by the Board of Directors of the Company.
9. RESERVATION AND LISTING OF SECURITIES. The Company shall at all
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 duly and validly issued, fully paid, non-assessable and not subject to
the preemptive rights of any stockholder.
10. NOTICES TO WARRANT HOLDERS. Nothing contained in this Agreement
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 closing 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 closing 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.
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11. NOTICES. All notices, requests, consents and other
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
(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 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 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 close of
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 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 in any way
to, this Agreement shall be brought and enforced in 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 jurisdiction 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
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legal costs and expenses relating to such action or proceeding and/or incurred
in connection with the preparation therefor.
16. ENTIRE AGREEMENT. This Agreement contains the entire
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
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
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
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
-------------------------------------------
Name: X. XXXXXXX STOUGHTON
Title: CHAIRMAN & CEO
XXXXXXX XXXXX SECURITIES
INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------------
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 SECU RITIES 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 CERTIFI CATE 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"), up to ____________ fully paid and
non-assessable shares of common stock, $.01 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 certain events (the "Exercise Price"), of $1.30 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 March __, 1998, 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
instrument and is hereby referred to for a
A-1
description of the rights, limitations 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, 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 adjustment 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 transferee(s) 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.
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 March __, 1998, 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: ______________________, _____
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: ____________________, _____
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)
