Contract
Exhibit
4.4
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 OF SUCH NOTE 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 5, 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 Warrant 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 9
hereof.
1. Term. The
term of this Warrant shall commence on May 5, 2004 and shall expire at 5:00
p.m., Eastern Time, on May 5, 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 during the Term commencing on the effective
date of a registration statement under the Securities Act providing for the
resale of the Warrant Stock and the shares of Common Stock issuable upon
conversion of the Issuer’s Series A Convertible Preferred Stock issued pursuant
to the Purchase Agreement and expiring on May 5, 2009.
(b) Method
of Exercise.
(i) The
Holder hereof may exercise this Warrant, in whole or in part (A) 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 Warrant 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 by certified
or
official bank check or by wire transfer to an account designated by the Issuer;
or (B) by notifying the Company that this Warrant is being exercised pursuant
to
a Cashless Exercise (as defined in Section 2(b)(ii) below).
(ii) Cashless
Exercise 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 Warrant Shares 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
applicable Exercise Price of this Warrant in effect on the date of exercise,
as
adjusted; and
(X)
= the
number of Warrant Shares 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.
(iii) 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(b)(ii) 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.
(v) 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(b)(ii) 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. Any Exercise Form
dated on the Final Plan Date must be received by the Company within five
Trading
Days of the Final Plan Date to be effective.
(vi) 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(b)(ii) above until April 1,
2008.
(c) 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, not exceeding three (3) Trading Days after such
exercise or, at the request of the Holder (provided that a registration
statement under the Securities Act providing for the resale of the Warrant
Stock
is then in effect), issued and delivered to the Depository Trust Company
(“DTC”) account on the Holder’s behalf via the Deposit Withdrawal Agent
Commission System (“DWAC”) within a reasonable time, not exceeding three
(3) Trading Days after such exercise, and the Holder hereof shall be deemed
for
all purposes to be the holder of the shares of Warrant Stock so purchased
as of
the date of 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
Warrant Price as hereinabove provided) shall also be issued to the Holder
hereof
at the Issuer’s expense within such time.
(d) Transferability
of Warrant. Subject to Section 2(f) and Section 2(g), 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.
(e) Continuing
Rights of Holder. The Issuer will, at the time of or at any time
after each exercise of this Warrant, upon the request of the Holder hereof,
acknowledge in writing the extent, if any, of its continuing obligation to
afford to such Holder all rights to which such Holder shall continue to be
entitled after such exercise in accordance with the terms of this Warrant,
provided that if any such Holder shall fail to make any such request, the
failure shall not affect the continuing obligation of the Issuer to afford
such
rights to such Holder.
(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) Except
as provided in paragraph (iii) below, 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 OF SUCH NOTE UNDER THE SECURITIES ACT AND UNDER
THE
PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED.
(iii) The
Issuer agrees to reissue certificates representing any of the Warrant Stock,
without the legend set forth above if at such time, prior to making any transfer
of any such securities, the Holder shall give written notice to the Issuer
describing the manner and terms of such transfer and removal as the Issuer
may
reasonably request. Such proposed transfer and removal will not be
effected until: (a) either (i) the Issuer has received an opinion of
counsel reasonably satisfactory to the Issuer, to the effect that the
registration of such securities under the Securities Act is not required
in
connection with such proposed transfer, (ii) a registration statement under
the
Securities Act covering such proposed disposition has been filed by the Issuer
with the Securities and Exchange Commission and has become effective under
the
Securities Act, (iii) the Issuer has received other evidence reasonably
satisfactory to the Issuer that such registration and qualification under
the
Securities Act and state securities laws are not required, or (iv) the Holder
provides the Issuer with reasonable assurances that such security can be
sold
pursuant to Rule 144 under the Securities Act; and (b) either (i) the Issuer
has
received an opinion of counsel reasonably satisfactory to the Issuer, to
the
effect that registration or qualification under the securities or “blue sky”
laws of any state is not required in connection with such proposed disposition,
or (ii) compliance with applicable state securities or “blue sky” laws has been
effected or a valid exemption exists with respect thereto. The Issuer
will respond to any such notice from a holder within five (5) business
days. In the case of any proposed transfer under this Section 2(f),
the Issuer will use reasonable efforts to comply with any such applicable
state
securities or “blue sky” laws, but shall in no event be required, (x) to qualify
to do business in any state where it is not then qualified, (y) to take any
action that would subject it to tax or to the general service of process
in any
state where it is not then subject, or (z) to comply with state securities
or
“blue sky” laws of any state for which registration by coordination is
unavailable to the Issuer. The restrictions on transfer contained in
this Section 2(f) shall be in addition to, and not by way of limitation of,
any
other restrictions on transfer contained in any other section of this
Warrant. Whenever a certificate representing the Warrant Stock is
required to be issued to a the Holder without a legend, in lieu of delivering
physical certificates representing the Warrant Stock, provided the Issuer’s
transfer agent is participating in the DTC Fast Automated Securities Transfer
program, the Issuer shall use its reasonable best efforts to cause its transfer
agent to electronically transmit the Warrant Stock to the Holder by crediting
the account of the Holder’s Prime Broker with DTC through its DWAC system (to
the extent not inconsistent with any provisions of this Warrant or the Purchase
Agreement).
(g) In
no event may the Holder exercise this Warrant in whole or in part unless
the
Holder is an “accredited investor” as defined in Regulation D under the
Securities Act.
3. Stock
Fully Paid; Reservation and Listing of Shares; Covenants.
(a) Stock
Fully Paid. The Issuer represents, warrants, covenants and agrees
that all shares of Warrant Stock which may be issued upon the exercise of
this
Warrant or otherwise hereunder will, when issued in accordance with the terms
of
this Warrant, be duly authorized, validly issued, fully paid and non-assessable
and free from all taxes, liens and charges created by or through the
Issuer. The Issuer further covenants and agrees that during the
period within which this Warrant may be exercised, the Issuer will at all
times
have authorized and reserved for the purpose of the issue upon exercise of
this
Warrant a sufficient number of shares of Common Stock to provide for the
exercise of this Warrant.
(b) Reservation. If
any shares of Common Stock required to be reserved for issuance upon exercise
of
this Warrant or as otherwise provided hereunder require registration or
qualification with any governmental authority under any federal or state
law
before such shares may be so issued, the Issuer will in good faith use its
reasonable best efforts as expeditiously as possible at its expense to cause
such shares to be duly registered or qualified. If the Issuer shall
list any shares of Common Stock on any securities exchange or market it will,
at
its expense, list thereon, maintain and increase when necessary such listing,
of, all shares of Warrant Stock from time to time issued upon exercise of
this
Warrant or as otherwise provided hereunder (provided that such Warrant Stock
has
been registered pursuant to a registration statement under the Securities
Act
then in effect), and, to the extent permissible under the applicable securities
exchange rules, all unissued shares of Warrant Stock which are at any time
issuable hereunder, so long as any shares of Common Stock shall be so
listed. The Issuer will also so list on each securities exchange or
market, and will maintain such listing of, any other securities which the
Holder
of this Warrant shall be entitled to receive upon the exercise of this Warrant
if at the time any securities of the same class shall be listed on such
securities exchange or market by the Issuer.
(c) Covenants. The
Issuer shall not by any action including, without limitation, amending the
Articles of Incorporation or the by-laws of the Issuer, or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue
or
sale of securities or any other action, avoid or seek to avoid the observance
or
performance of any of the terms of this Warrant, but will at all times in
good
faith assist in the carrying out of all such terms and in the taking of all
such
actions as may be necessary or appropriate to protect the rights of the Holder
hereof against dilution (to the extent specifically provided herein) or
impairment. Without limiting the generality of the foregoing, the
Issuer will (i) not permit the par value, if any, of its Common Stock to
exceed
the then effective Warrant Price, (ii) not amend or modify any provision
of the
Articles of Incorporation or by-laws of the Issuer in any manner that would
adversely affect the rights of the Holders of the Warrants in their capacity
as
Holders of the Warrants, (iii) take all such action as may be reasonably
necessary in order that the Issuer may validly and legally issue fully paid
and
nonassessable shares of Common Stock, free and clear of any liens, claims,
encumbrances and restrictions (other than as provided herein) upon the exercise
of this Warrant, and (iv) use its reasonable best efforts to obtain all such
authorizations, exemptions or consents from any public regulatory body having
jurisdiction thereof as may be reasonably necessary to enable the Issuer
to
perform its obligations under this Warrant.
(d) 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 Warrant 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. The Issuer shall give the Holder
notice of any event described below which requires an adjustment pursuant
to
this Section 4 in accordance with Section 5.
(a) Recapitalization,
Reorganization, Reclassification, Consolidation, Merger or
Sale.
(i) In
case the Issuer after the Original Issue Date shall do any of the following
(each, a “Triggering Event”): (a) consolidate or merge with or
into another corporation where the holders of outstanding Voting Stock prior
to
such merger or consolidation do not own over 50% of the outstanding Voting
Stock
of the merged or consolidated entity immediately after such merger or
consolidation, or (b) sell all or substantially all of its properties or
assets
to any other Person, or (c) change the Common Stock to the same or different
number of shares of any class or classes of stock, whether by reclassification,
exchange, substitution or otherwise (other than by way of a stock split or
combination of shares or stock dividends or distributions provided for in
Section 4(b) or Section 4(c)), or (d)
effect a capital reorganization (other than the transactions executed in
connection with the Plan or by way of a stock split or combination of shares
or
stock dividends or distributions provided for in Section 4(b) or Section
4(c)), then, and in the case of each such Triggering Event, proper
provision shall be made so that, upon the basis and the terms and in the
manner
provided in this Warrant, the Holder of this Warrant shall be entitled upon
the
exercise hereof at any time after the consummation of such Triggering Event,
to
the extent this Warrant is not exercised prior to such Triggering Event,
to
receive at the Warrant Price in effect at the time immediately prior to the
consummation of such Triggering Event in lieu of the Common Stock issuable
upon
such exercise of this Warrant prior to such Triggering Event, the securities,
cash and property to which such Holder would have been entitled upon the
consummation of such Triggering Event if such Holder had exercised the rights
represented by this Warrant immediately prior thereto, subject to adjustments
(subsequent to such corporate action) as nearly equivalent as possible to
the
adjustments provided for elsewhere in this Section 4.
(ii) Notwithstanding
anything contained in this Warrant to the contrary, a Triggering Event shall
not
be deemed to have occurred if, prior to the consummation thereof, each Person
(other than the Issuer) which may be required to deliver any securities,
cash or
property upon the exercise of this Warrant as provided herein shall assume,
by
written instrument delivered to, and reasonably satisfactory to, the Holder
of
this Warrant, (A) the obligations of the Issuer under this Warrant (and if
the
Issuer shall survive the consummation of such Triggering Event, such assumption
shall be in addition to, and shall not release the Issuer from, any continuing
obligations of the Issuer under this Warrant) and (B) the obligation to deliver
to such Holder such shares of securities, cash or property as, in accordance
with the foregoing provisions of this subsection (a), such Holder shall be
entitled to receive, and such Person shall have similarly delivered to such
Holder a written acknowledgement executed by the President or Chief Financial
Officer of the Company, stating that this Warrant shall thereafter continue
in
full force and effect and the terms hereof (including, without limitation,
all
of the provisions of this subsection (a)) shall be applicable to the securities,
cash or property which such Person may be required to deliver upon any exercise
of this Warrant or the exercise of any rights pursuant hereto.
(b) Stock
Dividends, Subdivisions and Combinations. If at any time the
Issuer shall:
(i) make
or issue or set a record date for the holders of its Common Stock for the
purpose of entitling them to receive a dividend payable in, or other
distribution of, shares of Common Stock,
(ii) subdivide
its outstanding shares of Common Stock into a larger number of shares of
Common
Stock, or
(iii) 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 Warrant Price then in effect shall be
adjusted to equal (A) the Warrant 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.
Notwithstanding
the foregoing, if such record date shall have been fixed and such dividend
is
not fully paid or if such distribution is not fully made on the date fixed
therefor, the Warrant Price shall be adjusted pursuant to this paragraph
as of
the time of actual payment of such dividends or distributions.
(c) Certain
Other Distributions. If at any time the Issuer shall make or
issue or set a record date for the determination of the holders of its Common
Stock for the purpose of entitling them to receive any dividend or other
distribution of:
(i) cash
(other than a cash dividend payable out of earnings or earned surplus legally
available for the payment of dividends under the laws of the jurisdiction
of
incorporation of the Issuer),
(ii) any
evidences of its indebtedness, any shares of stock of any class or any other
securities or property of any nature whatsoever (other than cash, Convertible
Securities or Additional Shares of Common Stock), or
(iii) any
warrants or other rights to subscribe for or purchase any evidences of its
indebtedness, any shares of stock of any class or any other securities or
property of any nature whatsoever (other than cash, Convertible Securities
or
Additional Shares of Common Stock), then (1) the number of shares of Common
Stock for which this Warrant is exercisable shall be adjusted to equal the
product of the number of shares of Common Stock for which this Warrant is
exercisable immediately prior to such adjustment multiplied by a fraction
(A)
the numerator of which shall be the Per Share Market Value of Common Stock
at
the date of taking such record and (B) the denominator of which shall be
such
Per Share Market Value minus the amount allocable to one share of Common
Stock
of any such cash so distributable and of the fair value (as determined in
good
faith by the Board of Directors of the Issuer and supported by an opinion
from
an investment banking firm of recognized national standing acceptable to
(but
not affiliated with) the Holder) of any and all such evidences of indebtedness,
shares of stock, other securities or property or warrants or other subscription
or purchase rights so distributable, and (2) the Warrant Price then in effect
shall be adjusted to equal (A) the Warrant 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. A reclassification of the Common Stock (other than a
change in par value, or from par value to no par value or from no par value
to
par value) into shares of Common Stock and shares of any other class of stock
shall be deemed a distribution by the Issuer to the holders of its Common
Stock
of such shares of such other class of stock within the meaning of this Section
4(c) and, if the outstanding shares of Common Stock shall be changed into
a
larger or smaller number of shares of Common Stock as a part of such
reclassification, such change shall be deemed a subdivision or combination,
as
the case may be, of the outstanding shares of Common Stock within the meaning
of
Section 4(b).
Notwithstanding
the foregoing, if such record date shall have been fixed and such dividend
is
not fully paid or if such distribution is not fully made on the date fixed
therefor, the Warrant Price shall be adjusted pursuant to this Section 4(c)
as
of the time of actual payment of such dividends or distributions.
(d) Issuance
of Additional Shares of Common Stock. In the event the Issuer
shall at any time following the Original Issue Date issue any Additional
Shares
of Common Stock (otherwise than as provided in the foregoing subsections
(a)
through (c) of this Section 4), at a price per share less than $.60 or without
consideration, then the Warrant Price upon each such issuance shall be adjusted
to the price equal to the consideration per share paid for such Additional
Shares of Common Stock.
(e) Issuance
of Common Stock Equivalents. If at any time the Issuer shall
issue or sell any Common Stock Equivalents, whether or not the rights to
exchange or convert thereunder are immediately exercisable, and the aggregate
price per share for which Common Stock is issuable upon such conversion or
exchange plus the consideration received by the Issuer for issuance of such
Common Stock Equivalent divided by the number of shares of Common Stock issuable
pursuant to such Common Stock Equivalent shall be less than $.60 or without
consideration, then the Warrant Price then in effect shall be adjusted as
provided in Section 4(d). No further adjustment of the Warrant Price
then in effect shall be made under this Section 4(e) upon the issuance of
any
Common Stock Equivalents which are issued pursuant to the exercise of any
warrants or other subscription or purchase rights therefor, if any such
adjustment shall previously have been made upon the issuance of such warrants
or
other rights pursuant to this Section 4(e). No further adjustments of
the Warrant Price then in effect shall be made upon the actual issue of such
Common Stock upon conversion or exchange of such Common Stock
Equivalents.
(f) Other
Provisions applicable to Adjustments under this Section. The
following provisions shall be applicable to the making of adjustments of
the number of shares of Common Stock for which this Warrant is exercisable
and
the Warrant Price then in effect provided for in this Section 4:
(i) Computation
of Consideration. To the extent that any Additional Shares of
Common Stock shall be issued for cash consideration, the consideration received
by the Issuer therefor shall be the amount of the cash received by the Issuer
therefor, or, if such Additional Shares of Common Stock are offered by the
Issuer for subscription, the subscription price, or, if such Additional Shares
of Common Stock are sold to underwriters or dealers for public offering without
a subscription offering, the initial public offering price (in any such case
subtracting any amounts paid or receivable for accrued interest or accrued
dividends and without taking into account any compensation, discounts or
expenses paid or incurred by the Issuer for and in the underwriting of, or
otherwise in connection with, the issuance thereof). In connection
with any merger or consolidation in which the Issuer is the surviving
corporation (other than any consolidation or merger in which the previously
outstanding shares of Common Stock of the Issuer shall be changed to or
exchanged for the stock or other securities of another corporation), the
amount
of consideration therefore shall be, deemed to be the fair value, as determined
reasonably and in good faith by the Board, of such portion of the assets
and
business of the nonsurviving corporation as the Board may determine to be
attributable to such Additional Shares of Common Stock. The
consideration for any Additional Shares of Common Stock issuable pursuant
to any
Convertible Securities or warrants or other rights to subscribe for or purchase
the same shall be the consideration received by the Issuer for issuing such
Convertible Securities or warrants or other rights plus the additional
consideration payable to the Issuer upon exercise of such warrants or other
rights. In the event of any consolidation or merger of the Issuer in
which the Issuer is not the surviving corporation or in which the previously
outstanding shares of Common Stock of the Issuer shall be changed into or
exchanged for the stock or other securities of another corporation, or in
the
event of any sale of all or substantially all of the assets of the Issuer
for
stock or other securities of any corporation, the Issuer shall be deemed
to have
issued a number of shares of its Common Stock for stock or securities or
other
property of the other corporation computed on the basis of the actual exchange
ratio on which the transaction was predicated, and for a consideration equal
to
the fair market value on the date of such transaction of all such stock or
securities or other property of the other corporation. In the event
any consideration received by the Issuer for any securities consists of property
other than cash, the fair market value thereof at the time of issuance or
as
otherwise applicable shall be as determined in good faith by the
Board. In the event Common Stock is issued with other shares or
securities or other assets of the Issuer for consideration which covers both,
the consideration computed as provided in this Section 4(f)(i) shall be
allocated among such securities and assets as determined in good faith by
the
Board.
(ii) When
Adjustments to Be Made. The adjustments required by this Section
4 shall be made whenever and as often as any specified event requiring an
adjustment shall occur, except that any adjustment of the number of shares
of
Common Stock for which this Warrant is exercisable that would otherwise be
required may be postponed (except in the case of a subdivision or combination
of
shares of the Common Stock, as provided for in Section 4(b)) up to, but not
beyond the date of exercise if such adjustment either by itself or with other
adjustments not previously made adds or subtracts less than one percent (1%)
of
the shares of Common Stock for which this Warrant is exercisable immediately
prior to the making of such adjustment. Any adjustment representing a
change of less than such minimum amount (except as aforesaid) which is postponed
shall be carried forward and made as soon as such adjustment, together with
other adjustments required by this Section 4 and not previously made, would
result in a minimum adjustment or on the date of exercise. For the
purpose of any adjustment, any specified event shall be deemed to have occurred
at the close of business on the date of its occurrence.
(iii) Fractional
Interests. In computing adjustments under this Section 4,
fractional interests in Common Stock shall be taken into account to the
nearest one one-hundredth (1/100th) of a
share.
(iv) When
Adjustment Not Required. If the Issuer shall take a record of the
holders of its Common Stock for the purpose of entitling them to receive
a
dividend or distribution or subscription or purchase rights and shall,
thereafter and before the distribution to stockholders thereof, legally abandon
its plan to pay or deliver such dividend, distribution, subscription or purchase
rights, then thereafter no adjustment shall be required by reason of the
taking
of such record and any such adjustment previously made in respect thereof
shall
be rescinded and annulled.
(g) Form
of Warrant after Adjustments. The form of this Warrant need not
be changed because of any adjustments in the Warrant Price or the number
and
kind of Securities purchasable upon the exercise of this Warrant.
(h) Escrow
of Warrant Stock. If after any property becomes distributable
pursuant to this Section 4 by reason of the taking of any record of the holders
of Common Stock, but prior to the occurrence of the event for which such
record
is taken, and the Holder exercises this Warrant, any shares of Common Stock
issuable upon exercise by reason of such adjustment shall be deemed the last
shares of Common Stock for which this Warrant is exercised (notwithstanding
any
other provision to the contrary herein) and such shares or other property
shall
be held in escrow for the Holder by the Issuer to be issued to the Holder
upon
and to the extent that the event actually takes place, upon payment of the
current Warrant Price. Notwithstanding any other provision to the
contrary herein, if the event for which such record was taken fails to occur
or
is rescinded, then such escrowed shares shall be cancelled by the Issuer
and
escrowed property returned.
(i) Notwithstanding
any other provision set forth in this Section 4, no adjustment to the Warrant
Price shall be required because of any issuance or sale of Additional Shares
of
Common Stock or Common Stock Equivalents upon conversion of the preferred
stock
or the exercise of warrants and/or options in connection with the
Plan.
5. Notice
of Adjustments. Whenever the Warrant Price or Warrant Share
Number shall be adjusted pursuant to Section 4 hereof (for purposes of this
Section 5, each an “adjustment”), the Issuer shall cause its Chief Financial
Officer to prepare and execute a certificate setting forth, in reasonable
detail, the event requiring the adjustment, the amount of the adjustment,
the
method by which such adjustment was calculated (including a description of
the
basis on which the Board made any determination hereunder), and the Warrant
Price and Warrant Share Number after giving effect to such adjustment, and
shall
cause copies of such certificate to be delivered to the Holder of this Warrant
promptly after each adjustment. Any dispute between the Issuer and
the Holder of this Warrant with respect to the matters set forth in such
certificate may at the option of the Holder of this Warrant be submitted
to one
of the national accounting firms currently known as the “big four” selected by
the Holder, provided that the Issuer shall have ten (10) days after
receipt of notice from such Holder of its selection of such firm to object
thereto, in which case such Holder shall select another such firm and the
Issuer
shall have no such right of objection unless the Issuer identifies a valid
conflict of interest for such firm with any of the parties. The firm
selected by the Holder of this Warrant as provided in the preceding sentence
shall be instructed to deliver a written opinion as to such matters to the
Issuer and such Holder within thirty (30) days after submission to it of
such
dispute. Such opinion shall be final and binding on the parties
hereto. The costs and expenses of such accounting firm shall be paid
equally by the Company and the Holder.
6. Fractional
Shares. No fractional shares of Warrant Stock will be issued in
connection with any exercise hereof, but in lieu of such fractional shares,
the
Issuer shall make a cash payment therefor equal in amount to the product
of the
applicable fraction multiplied by the Per Share Market Value then in
effect.
7. Ownership
Cap and Certain Exercise Restrictions.
(a) Notwithstanding
anything to the contrary set forth in this Warrant, at no time may a Holder
of
this Warrant exercise this Warrant if the number of shares of Common Stock
to be
issued pursuant to such exercise would exceed, when aggregated with all other
shares of Common Stock owned by such Holder at such time, the number of shares
of Common Stock which would result in such Holder beneficially owning (as
determined in accordance with Section 13(d) of the Exchange Act and the rules
thereunder) in excess of 4.999% of the then issued and outstanding shares
of
Common Stock; provided, however, that upon a holder of this
Warrant providing the Issuer with sixty-one (61) days notice (pursuant to
Section 13 hereof) (the “Waiver Notice”) that such Holder would like to
waive this Section 7(a) with regard to any or all shares of Common Stock
issuable upon exercise of this Warrant, this Section 7(a) will be of no force
or
effect with regard to all or a portion of the Warrant referenced in the Waiver
Notice; provided, further, that this provision shall be of no
further force or effect (i) during the sixty-one (61) days immediately preceding
the expiration of the term of this Warrant, (ii) upon the Holder’s receipt of a
Call Notice (as defined in Section 8 hereof), or (iii) upon the issuance
of
Common Stock pursuant to the exercise of this Warrant in connection with
the
Plan.
(b) The
Holder may not exercise the Warrant hereunder to the extent such exercise
would
result in the Holder beneficially owning (as determined in accordance with
Section 13(d) of the Exchange Act and the rules thereunder) in excess of
9.999%
of the then issued and outstanding shares of Common Stock, including shares
issuable upon exercise of the Warrant held by the Holder after application
of
this Section; provided, however, that upon a holder of this
Warrant providing the Company with a Waiver Notice that such holder would
like
to waive this Section 7(b) with regard to any or all shares of Common Stock
issuable upon exercise of this Warrant, this Section 7(b) shall be of no
force
or effect with regard to those shares of Warrant Stock referenced in the
Waiver
Notice; provided, further, that this provision shall be of no
further force or effect (i) during the sixty-one (61) days immediately preceding
the expiration of the term of this Warrant, (ii) upon the Holder’s receipt of a
Call Notice, or (iii) upon the issuance of Common Stock pursuant to the exercise
of this Warrant in connection with the Plan.
8. Call. Notwithstanding
anything herein to the contrary, commencing twelve (12) months following
the
effective date of a registration statement under the Securities Act providing
for the resale of the Warrant Stock and the shares of Common Stock issuable
upon
conversion of the Issuer’s Series A Preferred Stock issued pursuant to the
Purchase Agreement (the “Registration Statement”), the Issuer, at its
option, may call up to one hundred percent (100%) of this Warrant if the
Per
Share Market Value of the Common Stock has been greater than $3.00 (as may
be
adjusted for any stock splits or combinations of the Common Stock) for a
period
of twenty (20) consecutive Trading Days immediately prior to the date of
delivery of the Call Notice (a “Call Notice Period”) by providing the
Holder of this Warrant written notice pursuant to Section 13 (the “Call
Notice”); provided, that (a) the Registration Statement is
then in effect and has been effective, without lapse or suspension of any
kind,
for a period of 60 consecutive calendar days, (b) trading in the Common Stock
shall not have been suspended by the Securities and Exchange Commission or
the
OTC Bulletin Board and (c) the Issuer is in material compliance with the
terms
and conditions of this Warrant and the other Transaction Documents (as defined
in the Purchase Agreement); provided, further, that the
Registration Statement is in effect from the date of delivery of the Call
Notice
until the date which is the later of (i) the date the Holder exercises the
Warrant pursuant to the Call Notice and (ii) the 20th day after
the
Holder receives the Call Notice (the “Early Termination
Date”). The rights and privileges granted pursuant to this
Warrant with respect to the shares of Warrant Stock subject to the Call Notice
(the “Called Warrant Shares”) shall expire on the Early Termination Date
if this Warrant is not exercised with respect to such Called Warrant Shares
prior to such Early Termination Date. In the event this Warrant is
not exercised with respect to the Called Warrant Shares, the Issuer shall
remit
to the Holder of this Warrant (A) $.01 per Called Warrant Share and (B) a
new
Warrant representing the number of shares of Warrant Stock, if any, which
shall
not have been subject to the Call Notice upon the Holder tendering to the
Issuer
the applicable Warrant certificate.
9. Definitions. For
the purposes of this Warrant, the following terms have the following
meanings:
“Additional
Shares of Common Stock” means all shares of Common Stock issued by the
Issuer after the original issue date, and all shares of Other Common, if
any,
issued by the Issuer after the original issue date, except: (i)
securities issued (other than for cash) in connection with a merger,
acquisition, or consolidation, (ii) securities issued pursuant to a bona
fide
firm underwritten public offering of the Issuer’s securities, (iii) securities
issued pursuant to the conversion or exercise of convertible or excercisable
securities issued or outstanding on or prior to the original issue date or
issued pursuant to the Purchase Agreement, (iv) the Warrant Stock, (v)
securities issued in connection with strategic alliances or other partnering
arrangements so long as such issuances are not for the purpose of raising
capital, (vi) Common Stock issued or options to purchase Common Stock granted
or
issued pursuant to the Issuer’s stock option plans and employee stock purchase
plans as they now exist, (vii) any warrants issued to the placement agent
for
the transactions contemplated by the Purchase Agreement, and (viii) the payment
of any dividend on the Series A Convertible Preferred Stock of the
Issuer.
“Articles
of Incorporation” means the Articles of Incorporation of the Issuer as in
effect on the Original Issue Date, and as hereafter from time to time amended,
modified, supplemented or restated in accordance with the terms hereof and
thereof and pursuant to applicable law.
“Board”
shall mean the Board of Directors of the Issuer.
“Capital
Stock” means and includes (i) any and all shares, interests, participations
or other equivalents of or interests in (however designated) corporate stock,
including, without limitation, shares of preferred or preference stock, (ii)
all
partnership interests (whether general or limited) in any Person which is
a
partnership, (iii) all membership interests or limited liability company
interests in any limited liability company, and (iv) all equity or ownership
interests in any Person of any other type.
“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.
“Common
Stock Equivalent” means any Convertible Security or warrant, option or other
right to subscribe for or purchase any Additional Shares of Common Stock
or any
Convertible Security.
“Convertible
Securities” means evidences of Indebtedness, shares of Capital Stock or
other Securities which are or may be at any time convertible into or
exchangeable for Additional Shares of Common Stock. The term
“Convertible Security” means one of the Convertible Securities.
“Final
Plan Date” shall mean the date that is six months and twelve days after the
Plan Closing Date.
“Governmental
Authority” means any governmental, regulatory or self-regulatory entity,
department, body, official, authority, commission, board, agency or
instrumentality, whether federal, state or local, and whether domestic or
foreign.
“Holders”
mean the Persons who shall from time to time own any Warrant. The
term “Holder” means one of the Holders.
“Independent
Appraiser” means a nationally recognized or major regional investment
banking firm or firm of independent certified public accountants of recognized
standing (which may be the firm that regularly examines the financial statements
of the Issuer) that is regularly engaged in the business of appraising the
Capital Stock or assets of corporations or other entities as going concerns,
and
which is not affiliated with either the Issuer or the Holder of any
Warrant.
“Issuer”
means Chembio Diagnostics, Inc., a Nevada corporation, and its
successors.
“Majority
Holders” means at any time the Holders of Warrants exercisable for a
majority of the shares of Warrant Stock issuable under the Warrants at the
time
outstanding.
“Original
Issue Date” means May 5, 2004.
“OTC
Bulletin Board” means the over-the-counter electronic bulletin
board.
“Other
Common” means any other Capital Stock of the Issuer of any class which shall
be authorized at any time after the date of this Warrant (other than Common
Stock) and which shall have the right to participate in the distribution
of
earnings and assets of the Issuer without limitation as to amount.
“Outstanding
Common Stock” means, at any given time, the aggregate amount of outstanding
shares of Common Stock, assuming full exercise, conversion or exchange (as
applicable) of all options, warrants and other Securities which are convertible
into or exercisable or exchangeable for, and any right to subscribe for,
shares
of Common Stock that are outstanding at such time.
“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.
“Per
Share Market Value” means on any particular date (a) the closing bid price
for a share of Common Stock in the over-the-counter market, as reported by
the
OTC Bulletin Board or in the National Quotation Bureau Incorporated or similar
organization or agency succeeding to its functions of reporting prices) at
the
close of business on such date, or (b) if the Common Stock is not then reported
by the OTC Bulletin Board or the National Quotation Bureau Incorporated (or
similar organization or agency succeeding to its functions of reporting prices),
then the average of the “Pink Sheet” quotes for the relevant determination
period, or (c) if the Common Stock is not then publicly traded the fair market
value of a share of Common Stock as determined by the Board in good faith;
provided, however, that the Majority Holders, after receipt of the
determination by the Board, shall have the right to select, jointly with
the
Issuer, an Independent Appraiser, in which case, the fair market value shall
be
the determination by such Independent Appraiser; and provided,
further that all determinations of the Per Share Market Value shall
be
appropriately adjusted for any stock dividends, stock splits or other similar
transactions during such period. The determination of fair market
value shall be based upon the fair market value of the Issuer determined
on a
going concern basis as between a willing buyer and a willing seller and taking
into account all relevant factors determinative of value, and shall be final
and
binding on all parties. In determining the fair market value of any
shares of Common Stock, no consideration shall be given to any restrictions
on
transfer of the Common Stock imposed by agreement or by federal or state
securities laws, or to the existence or absence of, or any limitations on,
voting rights.
“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.
“Purchase
Agreement” means the Series A Convertible Preferred Stock and Warrant
Purchase Agreement dated as of May 5, 2004 among the Issuer and the investors
a
party thereto.
“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.
“Subsidiary”
means any corporation at least 50% of whose outstanding Voting Stock shall
at
the time be owned directly or indirectly by the Issuer or by one or more
of its
Subsidiaries, or by the Issuer and one or more of its Subsidiaries.
“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.
“Voting
Stock” means, as applied to the Capital Stock of any corporation, Capital
Stock of any class or classes (however designated) having ordinary voting
power
for the election of a majority of the members of the Board of Directors (or
other governing body) of such corporation, other than Capital Stock having
such
power only by reason of the happening of a contingency.
“Warrant
Price” shall be as follows, except as may be adjusted from time to time as
shall result from the adjustments specified in this Warrant, including Section
4
hereto:
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(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;
|
|
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(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;
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(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;
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(iv)
|
For
the period beginning 10:00p.m. ET on the Plan Closing Date, $0.90
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
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(v)
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For
the period beginning 10:00p.m. ET on the Final Plan Date, $0.90
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.
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“Warrant
Share Number” means at any time the aggregate number of shares of Warrant
Stock which may at such time be purchased upon exercise of this Warrant,
after
giving effect to all prior adjustments and increases to such number made
or
required to be made under the terms hereof.
“Warrant
Stock” means Common Stock issuable upon exercise of any Warrant or Warrants
or otherwise issuable pursuant to any Warrant or Warrants.
“Warrants”
means the Warrants issued and sold pursuant to the Purchase Agreement,
including, without limitation, this Warrant, and any other warrants of like
tenor issued in substitution or exchange for any thereof pursuant to the
provisions of Section 2(c), 2(d) or 2(e) hereof or of any of such other
Warrants.
10. Other
Notices. In case at any time:
(a) the
Issuer shall make any distributions to the holders of Common Stock;
or
(b) the
Issuer shall authorize the granting to all holders of its Common Stock of
rights
to subscribe for or purchase any shares of Capital Stock of any class or
other
rights; or
(c) there
shall be any reclassification of the Capital Stock of the Issuer;
or
(d) there
shall be any capital reorganization by the Issuer; or
(e) there
shall be any (i) consolidation or merger involving the Issuer or (ii) sale,
transfer or other disposition of all or substantially all of the Issuer’s
property, assets or business (except a merger or other reorganization in
which
the Issuer shall be the surviving corporation and its shares of Capital Stock
shall continue to be outstanding and unchanged and except a consolidation,
merger, sale, transfer or other disposition involving a wholly-owned
Subsidiary); or
(f) there
shall be a voluntary or involuntary dissolution, liquidation or winding-up
of
the Issuer or any partial liquidation of the Issuer or distribution to holders
of Common Stock; then, in each of such cases, the Issuer shall give written
notice to the Holder of the date on which (i) the books of the Issuer shall
close or a record shall be taken for such dividend, distribution or subscription
rights or (ii) such reorganization, reclassification, consolidation, merger,
disposition, dissolution, liquidation or winding-up, as the case may be,
shall
take place. Such notice also shall specify the date as of which the
holders of Common Stock of record shall participate in such dividend,
distribution or subscription rights, or shall be entitled to exchange their
certificates for Common Stock for securities or other property deliverable
upon
such reorganization, reclassification, consolidation, merger, disposition,
dissolution, liquidation or winding-up, as the case may be. Such
notice shall be given at least twenty (20) days prior to the record date
or
effective date for the event specified in such notice.
11. 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 Holders; provided, however, that no such amendment or
waiver shall reduce the Warrant Share Number, increase the Warrant Price,
shorten the period during which this Warrant may be exercised or modify any
provision of this Section 11 without the consent of the Holder of this
Warrant.
12. 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.
13. 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 Jenkens
& Xxxxxxxxx Xxxxxx Xxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxxxxxxx X. Xxxxxxx, Facsimile
No.: (000) 000-0000. 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.
14. Warrant
Agent. The Issuer may, by written notice to each Holder of this
Warrant, appoint an agent for the purpose of issuing shares of Warrant Stock
on
the exercise of this Warrant pursuant to subsection (b) of Section 2 hereof,
exchanging this Warrant pursuant to subsection (d) of Section 2 hereof or
replacing this Warrant pursuant to subsection (d) of Section 3 hereof, or
any of
the foregoing, and thereafter any such issuance, exchange or replacement,
as the
case may be, shall be made at such office by such agent.
15. Remedies. The
Issuer stipulates that the remedies at law of the Holder of this Warrant
in the
event of any default or threatened default by the Issuer in the performance
of
or compliance with any of the terms of this Warrant are not and will not
be
adequate and that, to the fullest extent permitted by law, such terms may
be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
16. 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 (to the extent provided herein) the Holders
of
Warrant Stock issued pursuant hereto, and shall be enforceable by any such
Holder or Holder of Warrant Stock.
17. 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.
18. 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 executed this Warrant as of the day and year
first above written.
By:
Name: Xxxxxxxx
X. Xxxxxxx
Title: President
|
No.: _____________
|
Number
of Shares: _____________
|
|
Original
Date of Issuance: May 5,
2009
|
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.
Dated: _________________
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.
Dated: _________________
Signature
___________________________
Address
_____________________
_____________________
|
No.: _____________
|
Number
of Shares: _____________
|
|
Original
Date of Issuance: May 5,
2009
|
Reissuance
Date: December 19,
2007
|
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.
Dated: _________________
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 _______________.
