EXHIBIT 99.1
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "1933 ACT"), OR ANY STATE SECURITIES LAW, AND NEITHER THIS WARRANT NOR
SUCH SECURITIES MAY BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THEY
HAVE BEEN REGISTERED UNDER THE 1933 ACT OR SUCH SECURITIES LAWS OR UNLESS
AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
THIS WARRANT IS TRANSFERABLE ONLY UPON THE PRIOR WRITTEN CONSENT OF THE
COMPANY.
SERACARE, INC.
WARRANT TO PURCHASE COMMON STOCK
No. W-Q Date: November 20, 2000
EXERCISABLE COMMENCING ON THE DATE OF ISSUANCE
HEREOF AND ENDING ON THE EXPIRATION DATE
SeraCare, Inc., a Delaware corporation (the "COMPANY"), certifies for value
received that Quest Diagnostics Incorporated is, subject to and in accordance
with the terms and conditions herein set forth, the registered holder
("WARRANTHOLDER") of a warrant to purchase up to One Million Seven Hundred Forty
Eight Thousand Six Hundred Five (1,748,605) shares (as adjusted from time to
time in accordance with this Warrant) (the "WARRANT SHARES"), of the Company's
common stock, $0.001 par value ("COMMON STOCK"), at an exercise price determined
as provided hereinafter (such exercise price per share as adjusted from time to
time being referred to herein as the "EXERCISE PRICE"), at any time prior to the
Expiration Date (as defined in SECTION 1) at the Company's principal executive
office, with the appropriate form of Notice of Exercise set forth herein, duly
executed and by paying in full the Exercise Price, plus transfer taxes, if any
payable by Warrantholder in accordance with Section 9, in the manner set forth
in SECTION 1.
1. VESTING; EXERCISE; EXPIRATION AND TERMINATION.
1.1 This Warrant shall vest in four equal annual installments with the
first installment vesting on January 1, 2002, the second installment vesting on
January 1, 2003, the third installment vesting on January 1, 2004 and the fourth
installment vesting on January 1, 2005. This Warrant has been issued in
connection with a Collaboration Agreement, dated as of January 1, 2001, between
the Company and the Warrantholder (the "COLLABORATION AGREEMENT"). In the event
that the Collaboration Agreement is terminated prior to January 1, 2005, the
unvested portion of this Warrant, as of the date of such termination, shall also
terminate.
1.2 Subject to adjustment pursuant to SECTION 3, the initial Exercise
Price shall be $4.01.
1.3 The vested portion of this Warrant, as determined pursuant to
SECTION 1.1, may be exercised from time to time, in whole or in part, at the
Company's principal executive office from the date hereof until 5:00 p.m., Los
Angeles, California time on January 1, 2011 (the "EXPIRATION DATE"), by
delivering a duly completed and executed Notice of Exercise in the form attached
hereto (indicating the number of the Warrant Shares to be purchased) and paying
(subject to Section 1.8) the applicable Exercise Price, plus transfer taxes, if
any payable by Warrantholder in accordance with Section 9, of the Warrant Shares
so purchased.
1.4 The Exercise Price shall be payable, at the option of the
Warrantholder, (i) by cash, cashier's check or wire transfer or (ii) by net
issue exercise as provided in SECTION 1.5.
1.5 In lieu of payment of the Exercise Price by cash, cashier's check
or wire transfer, the Warrantholder may elect to exchange all or some of the
Warrant for shares of Common Stock equal to the value of the amount of the
Warrant being exchanged on the date of exchange. If the Warrantholder elects to
exchange this Warrant as provided in this SECTION 1.5, the Warrantholder will
tender to the Company the Warrant for the amount being exchanged, along with
written notice of the Warrantholder's election to exchange some or all of the
Warrant, and the Company will issue to the Warrantholder the number of shares of
the Common Stock computed using the following formula:
X = Y (A-B)
---------
A
Where X = the number of shares of Common Stock to be issued to
the Warrantholder;
Y = the number of shares of Common Stock purchasable under
the amount of the Warrant being exchanged (as adjusted
to the date of such calculation);
A = the Fair Market Value (as defined in SECTION 1.6) of
one share of the Common Stock; and
B = Exercise Price (as adjusted to the date of such
calculation).
All references herein to an "exercise" of the Warrant will include an
exchange pursuant to this SECTION 1.5.
1.6 "Fair Market Value" of a share of Common Stock as of a particular
date means:
(A) If traded on a securities exchange or the Nasdaq National Market,
the Fair Market Value will be deemed to be the average of the closing prices of
the Common Stock of the Company on such exchange or market over the 5 business
days ending immediately prior to the applicable date of valuation;
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(B) If actively traded over-the-counter, the Fair Market Value will be
deemed to be the average of the closing bid prices over the 30-day period ending
immediately prior to the applicable date of valuation; and
(C) If there is no active public market, the Fair Market Value will be
the value thereof as determined in good faith by the audit committee of the
Board of Directors of the Company.
1.7 "Easy Sale" Exercise. In lieu of the payment methods set forth in
Sections 1.4 and 1.5 above, when permitted by law and applicable regulations
(including Nasdaq and NASD rules), the Warrantholder may pay the Exercise Price
through a "same day sale" commitment from the Warrantholder (and if applicable a
broker-dealer that is a member of the National Association of Securities Dealers
(a "NASD Dealer")), whereby the Warrantholder irrevocably elects to exercise
this Warrant and to sell at least that number of Warrant Shares so purchased to
pay the Exercise Price for all of the Warrant Shares so purchased and the
Warrantholder (or, if applicable, the NASD Dealer) commits upon sale (or, in the
case of the NASD Dealer, upon receipt) of such Warrant Shares to forward the
Exercise Price directly to the Company, with any sale proceeds in excess of the
Exercise Price being for the benefit of the Warrantholder.
1.8 HSR Act. The Company hereby acknowledges that exercise of this
Warrant by Warrantholder may subject the Company and/or the Warrantholder to the
filing requirements of the HSR Act and that Warrantholder may be prevented from
exercising this Warrant until the expiration or early termination of all waiting
periods imposed by the HSR Act ("HSR Act Restrictions"). If on or before the
Expiration Date the Warrantholder has sent the Notice of Exercise to Company and
the Warrantholder has not been able to complete the exercise of this Warrant
prior to the Expiration Date because of HSR Act Restrictions, the Warrantholder
will be entitled to complete the process of exercising this Warrant in
accordance with the procedures contained herein notwithstanding the fact that
completion of the exercise of this Warrant would take place after the Expiration
Date.
1.9 Effective Date of Exercise. This Warrant will be deemed to have
been exercised immediately prior to the close of business on the date of its
surrender for exercise as provided above. However, if the Warrantholder is
subject to HSR Act filing requirements this Warrant will be deemed to have been
exercised on the date immediately following the date of the expiration of all
HSR Act Restrictions. The person entitled to receive the shares of Common Stock
issuable upon exercise of this Warrant will be treated for all purposes as the
holder of record of such shares as of the close of business on the date the
Warrantholder is deemed to have exercised this Warrant.
2. ISSUANCE OF SHARE CERTIFICATES. Subject to SECTION 1.1, upon
surrender of this Warrant, delivery of a duly completed and executed form of
Notice of Exercise and payment of the applicable Exercise Price, the Company
shall issue certificates representing the Warrant Shares ("SHARE CERTIFICATES")
in the name of the tendering Warrantholder or its designee and deliver the Share
Certificates to the tendering Warrantholder or its designee. In case of any
partial exercise of this Warrant, the Company will cancel this Warrant upon
surrender hereof and will execute and deliver a new Warrant of like tenor and
date for the balance of the Warrant
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Shares purchasable hereunder. If the securities of the Company deliverable upon
exercise of this Warrant have not been registered for resale under the 1933 Act,
any Share Certificate delivered shall bear appropriate private placement legends
thereon, including, without limitation, a legend in substantially the following
form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "1933 ACT"), OR ANY STATE SECURITIES
LAW, AND MAY NOT BE TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS THEY HAVE BEEN REGISTERED UNDER
THE 1933 ACT OR SUCH SECURITIES LAWS OR UNLESS AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE."
3. ADJUSTMENTS TO EXERCISE PRICE AND NUMBER OF WARRANT SHARES. The
Exercise Price and the number of Warrant Shares purchasable upon the exercise of
this Warrant are subject to adjustment from time to time upon the occurrence of
the events specified in this SECTION 3.
3.1 ADJUSTMENTS FOR STOCK SPLITS AND COMBINATIONS. If, while this
Warrant is outstanding, the Company effects a subdivision of the
outstanding Common Stock, the Exercise Price then in effect shall be
proportionately decreased and the number of Warrant Shares issuable
upon exercise of this Warrant shall be increased in proportion to such
increase of outstanding Common Stock, and conversely, if, while this
Warrant is outstanding, the Company combines the outstanding Common
Stock, the Exercise Price then in effect shall be proportionately
increased and the number of Warrant Shares issuable upon exercise of
this Warrant shall be decreased in proportion to such decrease in
outstanding Common Stock. Any adjustment under this SECTION 3.1 shall
become effective as of the record date for such event and if such
subdivision or combination is not consummated in full the Exercise
Price and the number of Warrant Shares shall be readjusted
accordingly. For purposes of this SECTION 3.1, a stock dividend shall
be considered a stock split.
3.2 ADJUSTMENT FOR RECLASSIFICATION, EXCHANGE AND SUBSTITUTION.
If the Warrant Shares issuable upon exercise of this Warrant are
changed into the same or a different number of shares of the same or
any other class or classes of stock, whether by reclassification or
otherwise (other than a subdivision or combination of shares provided
for in SECTION 3.1 or a capital reorganization, merger or
consolidation provided for in SECTION 3.3), or if all or any portion
of the class of securities then purchasable by this Warrant are
redeemed or cease to exist, then and in any such event the
Warrantholder shall have the right thereafter, upon exercise of this
Warrant, to receive in lieu of Warrant Shares the kind and amount of
stock and other securities or property receivable upon such
reclassification or other change, in an amount equal to the amount
that the Warrantholder would have been entitled to had this Warrant
been exercised to such extent prior to such event, and the Exercise
Price shall be proportionally adjusted, all subject to further
adjustment as set forth herein.
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3.3 ADJUSTMENT FOR CAPITAL REORGANIZATION, MERGER OR
CONSOLIDATION. In case of any capital reorganization of the capital
stock of the Company (other than a combination, reclassification,
exchange or subdivision of shares otherwise provided for herein), or
any merger or consolidation of the Company with or into another person
or entity, or the sale of all or substantially all the assets of the
Company then, and in each such case, as a part of such reorganization,
merger, consolidation, sale or transfer, lawful provision will be made
so that the holder of this Warrant will thereafter be entitled to
receive upon exercise of this Warrant, during the period specified
herein and upon payment of the Exercise Price then in effect, the
number of shares of stock or other securities or property of the
successor person or entity resulting from such reorganization, merger,
consolidation, sale or transfer that a holder of the shares
deliverable upon exercise of this Warrant would have been entitled to
receive in such reorganization, consolidation, merger, sale or
transfer if this Warrant had been exercised immediately before such
reorganization, merger, consolidation, sale or transfer, all subject
to further adjustment as provided in this SECTION 3. The foregoing
provisions of this SECTION 3.3 will similarly apply to successive
reorganizations, consolidations, mergers, sales and transfers and to
the stock or securities of any other person or entity that are at the
time receivable upon the exercise of this Warrant. If the per-share
consideration payable to the holder hereof for shares in connection
with any such transaction is in a form other than cash or marketable
securities, then the value of such consideration will be determined in
good faith by the audit committee of the Company's Board of Directors.
In all events, appropriate adjustment (as determined in good faith by
the audit committee of the Company's Board of Directors) will be made
in the application of the provisions of this Warrant with respect to
the rights and interests of the Warrantholder after the transaction,
to the end that the provisions of this Warrant will be applicable
after that event, as near as reasonably may be, in relation to any
shares or other property deliverable after that event upon exercise of
this Warrant. For the avoidance of doubt, the vesting (pursuant to
SECTION 1.1) of the unvested portion of this Warrant shall not
accelerate upon any event described in this SECTION 3.3.
3.4 ADJUSTMENT FOR ISSUANCE OF ADDITIONAL SHARES OF COMMON STOCK.
Except as otherwise provided in this SECTION 3.4, if the Company
issues any Additional Stock (as hereinafter defined) without
consideration or for a consideration per share less than $3.61 (the
"TRIGGER PRICE") (such price to be adjusted as appropriate to reflect
the occurrence of any of the events contemplated in SECTION 3), the
Exercise Price in effect immediately prior to such issuance and the
number of Warrant Shares issuable upon the exercise of this Warrant
will be adjusted as follows:
(A) The Exercise Price will be adjusted to equal (i) the Exercise
Price for which this Warrant is exercisable prior to the adjustment; (ii)
multiplied by a fraction, (x) the numerator of which is the sum of the number of
shares of Common Stock outstanding (assuming the exercise or conversion of all
options, warrants and convertible securities then outstanding) immediately prior
to the issue or sale plus the aggregate number of shares in the new issue that
could have been bought at the Trigger Price, and (y) the denominator of which is
the number of shares of Common Stock outstanding (assuming the exercise or
conversion of all options, warrants and convertible securities then outstanding)
immediately prior to the issue or sale plus the number of additional shares of
Common Stock issued.
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(B) The number of Warrant Shares issuable upon the exercise of this
Warrant will be adjusted to equal the number of Warrant Shares issuable upon the
exercise of this Warrant immediately prior to such issue or sale, multiplied by
a fraction, (i) the numerator of which is the Exercise Price in effect
immediately prior to the issue or sale, and (ii) the denominator of which is the
Exercise Price after giving effect to the adjustment set forth in SECTION 3.4(A)
above.
(C) In the case of the issuance of Additional Stock for a
consideration in whole or in part other than cash, the consideration other than
cash shall be deemed to be the fair value thereof as determined by the audit
committee of the Company's Board of Directors.
(D) In the case of the issuance of options to purchase or rights to
subscribe for Common Stock, securities by their terms convertible into or
exchangeable for Common Stock or options to purchase or rights to subscribe for
such convertible or exchangeable securities, the following provisions shall
apply for all purposes of this SECTION 3.4:
(1) The aggregate maximum number of shares of Common Stock deliverable
upon exercise (assuming the satisfaction of any conditions to exercisability,
including without limitation, the passage of time, but without taking into
account potential antidilution adjustments) of such options to purchase or
rights to subscribe for Common Stock will be deemed to have been issued at the
time such options or rights were issued and for a consideration equal to the
consideration (determined in the manner provided in SECTION 3.4(C)), if any,
received by the Company upon the issuance of such options or rights plus the
minimum exercise price provided in such options or rights (without taking into
account potential antidilution adjustments) for the Common Stock covered
thereby.
(2) The aggregate maximum number of shares of Common Stock deliverable
upon conversion of or in exchange (assuming the satisfaction of any conditions
to convertibility or exchangeability, including, without limitation, the passage
of time, but without taking into account potential antidilution adjustments) for
any such convertible or exchangeable securities or upon the exercise of options
to purchase or rights to subscribe for such convertible or exchangeable
securities and subsequent conversion or exchange thereof will be deemed to have
been issued at the time such securities were issued or such options or rights
were issued and for a consideration equal to the consideration, if any, received
by the Company for any such securities and related options or rights (excluding
any cash received on account of accrued interest or accrued dividends), plus the
minimum additional consideration, if any, to be received by the Company (without
taking into account potential antidilution adjustments) upon the conversion or
exchange of such securities or the exercise of any related options or rights
(the consideration in each case to be determined in the manner provided in
SECTION 3.4(D)).
(3) In the event of any change in the number of shares of Common Stock
deliverable or in the consideration payable to the Company upon exercise of such
options or rights or upon conversion of or in exchange for such convertible or
exchangeable securities, including, but not limited to, a change resulting from
the antidilution provisions thereof, the Exercise Price and the number of
Warrant Shares issuable upon the exercise of this Warrant, to the extent in any
way affected by or computed using such options, rights or securities, will be
recomputed to reflect such change, but no further adjustment will be made for
the actual issuance
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of Common Stock or any payment of such consideration upon the exercise of any
such options or rights or the conversion or exchange of such securities.
(4) Upon the expiration of any such options or rights, the termination
of any such rights to convert or exchange or the expiration of any options or
rights related to such convertible or exchangeable securities, the Exercise
Price and the number of Warrant Shares issuable upon the exercise of this
Warrant, to the extent in any way affected by or computed using such options,
rights or securities or options or rights related to such securities, will be
recomputed to reflect the issuance of only the number of shares of Common Stock
(and convertible or exchangeable securities which remain in effect) actually
issued upon the exercise of such options or rights, upon the conversion or
exchange of such securities or upon the exercise of the options or rights
related to such securities.
(5) The number of shares of Common Stock deemed issued and the
consideration deemed paid therefor pursuant to SECTIONS 3.4(D)(1) and (2) will
be appropriately adjusted to reflect any change, termination or expiration of
the type described in either of SECTIONS 3.4(D)(3) and (4).
(E) "Additional Stock" means any shares of Common Stock issued (or
deemed to have been issued pursuant to SECTION 3.4(D) by the Company after the
date of this Warrant) other than:
(1) Common Stock issued pursuant to a transaction described in SECTION
3.1, SECTION 3.2 or SECTION 3.3 hereof;
(2) Common Stock issuable or issued to employees, consultants, or
directors of the Company directly or pursuant to a stock option plan, restricted
stock plan or similar plan or agreement;
(3) Common Stock, or securities exercisable for or convertible into
Common Stock, issued pursuant to an underwritten public offering;
(4) Common Stock, or securities exercisable for or convertible into
Common Stock, issued pursuant to asset or company acquisitions; or
(5) Common Stock issuable upon exercise or conversion of options,
warrants, or other securities outstanding as of the date of this Warrant.
3.5 ADJUSTMENT FOR DIVIDENDS OR DISTRIBUTIONS OF STOCK OR OTHER
SECURITIES OR PROPERTY. In case the Company will make or issue, or
will fix a record date for the determination of eligible holders
entitled to receive, a dividend or other distribution with respect to
the Common Stock (or any shares of stock or other securities at the
time issuable upon exercise of the Warrant) payable in: (i) securities
of the Company (other than a stock dividend for which adjustment is
made pursuant to SECTION 3.1) or (ii) assets (excluding cash dividends
paid or payable solely out of retained earnings), then, in each such
case, the Warrantholder on exercise hereof at any time after the
consummation, effective date or record date of such dividend or other
distribution, will receive, in addition to the shares of Common Stock
(or such other stock or securities)
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issuable on such exercise prior to such date, and without the payment
of additional consideration therefor, the securities or such other
assets of the Company to which such Warrantholder would have been
entitled upon such date if such Warrantholder had exercised this
Warrant on the date hereof and had thereafter, during the period from
the date hereof to and including the date of such exercise, retained
such shares and/or all other additional stock available by it as
aforesaid during such period giving effect to all adjustments called
for by SECTION 3.
3.6 DETERMINATION OF ADJUSTMENT. Any determination as to whether
an adjustment is required to be made under SECTION 3 to (i) the
Exercise Price in effect hereunder, (ii) the number of Warrant Shares
issuable upon exercise of this Warrant, or (iii) as to the amount of
any such adjustment described in clauses (i) or (ii) of this SECTION
3.6, shall be binding upon the Warrantholder and the Company if made
in good faith by the audit committee of the Company's Board of
Directors.
4. FRACTIONAL WARRANTS AND FRACTIONAL SHARES. The Company shall not be
required to issue fractional shares of Common Stock on the exercise of this
Warrant or issue fractions of warrants on any distribution of warrants to the
Warrantholder or distribute warrant certificates that evidence fractional
warrants. If more than one warrant shall be presented for exercise in full at
the same time by the same Warrantholder, the number of full shares of Common
Stock which shall be issuable upon the exercise thereof shall be computed on the
basis of the aggregate number of shares of Common Stock represented by the
warrants so presented. If any fraction of a share would, except for the
provisions of this SECTION 4, be issuable on the exercise of any warrant (or
specified portion thereof), the Company shall pay an amount in cash equal to the
same fraction of the then current fair market value of a full share of Common
Stock.
5. EXCHANGE OF WARRANT. This Warrant may be divided or combined upon
request to the Company by the Warrantholder, into a certificate or certificates
representing the right to purchase the same aggregate number of Warrant Shares.
Unless the context indicates otherwise, the term "WARRANTHOLDER" shall include
any permitted transferee or transferees of this Warrant and the term "WARRANT"
shall include any and all warrants issued upon division, exchange, substitution
or transfer of this Warrant.
6. MUTILATED OR MISSING WARRANT. If this Warrant shall be mutilated,
lost, stolen or destroyed, the Company shall issue and deliver, in exchange and
substitution for and upon cancellation of the mutilated Warrant, or in lieu of
and substitution for the lost, stolen or destroyed Warrant, a new warrant of
like tenor, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction of this Warrant and an indemnity, if
requested, reasonably satisfactory to the Company. The applicant shall also
comply with such other reasonable regulations and pay such other reasonable
administrative charges as the Company may prescribe.
7. NO IMPAIRMENT. The Company will not hereafter reorganize, dissolve
or take any other voluntary action, a primary purpose or effect of which is to
avoid or seek to avoid the observance or performance of any of the terms of this
Warrant.
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8. RESERVATION AND ISSUANCE OF WARRANT SHARES. The Company represents
and warrants that (i) there have been reserved, and the Company shall at all
times keep reserved so long as this Warrant remains outstanding, out of its
authorized capital a number of shares of Common Stock sufficient to provide for
the exercise of the rights of purchase represented by this Warrant, and (ii) the
Common Stock issued upon exercise of this Warrant will, upon issuance in
accordance with the terms of this Warrant, be duly and validly issued, fully
paid and nonassessable shares of Common Stock.
9. PAYMENT OF TAXES. The Company will pay all documentary stamp taxes
attributable to the initial issuance of Common Stock issuable upon the exercise
of this Warrant; PROVIDED, HOWEVER, that the Company shall not be required to
pay any tax or other charges that may be payable in respect of any transfer
involved in the issuance of any warrants or any Share Certificates in a name
other than that of the Warrantholder of record, and the Company shall not be
required to issue or deliver such Share Certificates unless and 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 reasonable satisfaction of
the Company that such tax has been paid.
10. RESTRICTIONS ON TRANSFER; ACCREDITED INVESTOR REPRESENTATIONS.
10.1 This Warrant may not be sold, transferred, assigned,
hypothecated or otherwise disposed of except with the prior written consent of
the Company; provided that Quest Diagnostics Incorporated may transfer this
Warrant to an Affiliate (as such term is defined in the Collaboration Agreement)
of Quest Diagnostics Incorporated, without the prior written consent of the
Company, so long as such transfer is made in compliance with applicable
securities laws. In addition to the restrictions on transfer of the Warrant in
the preceding sentence, absent an effective registration statement under the
1933 Act (and/or compliance with any applicable state securities law
registration requirements) covering the disposition of this Warrant or the
Warrant Shares issued or issuable upon exercise of this Warrant, neither this
Warrant nor the Warrant Shares issued or issuable upon exercise of this Warrant
may be sold, transferred, assigned, hypothecated or otherwise disposed of
without first providing the Company with evidence reasonably satisfactory to the
Company that such sale, transfer, assignment, hypothecation or other disposal
will be exempt from the registration and prospectus delivery requirements of
applicable federal and state securities laws and regulations.
10.2 The Warrantholder, by its acceptance hereof, represents,
warrants, covenants and agrees, and upon the exercise of this Warrant shall be
deemed to have represented, warranted, covenanted and agreed as of the date of
such exercise, that (i) the Warrantholder has sufficient knowledge of the
business and affairs of the Company and the Company has made available to the
Warrantholder or its agents all documents and information relating to an
investment in the Warrant Shares requested by or on behalf of the Warrantholder;
(ii) the Warrantholder is acquiring the Warrant Shares for investment for its
own account, and not with a view to or for sale in connection with any
distribution thereof; (iii) the Warrantholder understands that the Warrant
Shares to be purchased have not been registered pursuant to the 1933 Act or any
state securities laws, and the offer and sale of the Warrant Shares is intended
to be exempt from registration under the 1933 Act and under applicable state
securities laws, which exemption depends upon, among other things, the bona fide
nature of the investment intent and the accuracy of the Warrantholder's
representations as expressed herein; (iv) the Warrantholder
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was not organized or reorganized for the purpose of purchasing the Warrant or
the Warrant Shares; (v) if the Warrant Shares are not listed for trading on a
national securities exchange or quoted on The Nasdaq Stock Market, the
Warrantholder understands that no public market exists for the Warrant Shares
and that there is no assurance that a public market will ever exist for the
Warrant Shares; (vi) the Warrantholder has such knowledge and experience in
financial and business matters so as to be capable of evaluating the merits and
risks of its investment in the Warrant Shares, and the Warrantholder is capable
of bearing the economic risks of such investment, including the risk of loss of
its entire investment in the Warrant Shares; and (vii) the Warrantholder is an
"accredited investor" as defined in Rule 501 promulgated by the Securities
Exchange Commission under the 1933 Act.
11. NO RIGHTS AS A SHAREHOLDER. Nothing contained herein shall be
construed as conferring upon the Warrantholder any rights whatsoever as a
shareholder of the Company, including the right to vote, to receive dividends,
to consent or to receive notices as a shareholder in respect of any meeting of
shareholders for the election of directors of the Company or any other matter.
If, however, at any time prior to the expiration of this Warrant and prior to
its exercise, a dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation, merger or sale of its property, assets
and business, as an entirety) shall be proposed, then the Company shall give
notice in writing of such event to the Warrantholder at least 15 days prior to
the date fixed as a record date or the date of closing the transfer books or
other applicable date with respect thereto. Such notice shall specify such
record date or the date of closing the transfer books, as the case may be.
12. "MARKET STAND-OFF" AGREEMENT. Warrantholder hereby agrees that it
will not, to the extent requested by the Company and an underwriter of the
Common Stock (or other securities of the Company), sell or otherwise transfer or
dispose of any Warrant Shares in a market transaction during the 180-day period
following the effective date of a registration statement of the Company filed
under the 1933 Act; provided that the foregoing restrictions shall apply to
Warrantholder only if all officers and directors of the Company enter into
similar agreements. The underwriters in connection with an underwritten public
offering by the Company are intended third party beneficiaries of this SECTION
12 and shall have the right, power and authority to enforce the provisions
hereof as though they were a party hereto. In order to enforce the foregoing
covenant, the Company may impose stop-transfer instructions with respect to the
Warrant Shares until the end of the 180-day period.
13. NOTICE. Any notice or other communication hereunder must be given
in writing and shall be deemed to have been given for all purposes (a) upon
personal delivery, (b) one business day after being sent, when sent by
professional overnight courier service from and to locations within the
continental United States, or (c) five days after posting when sent by
registered or certified mail (return receipt requested), addressed to the
Company or the Warrantholder as follows:
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IF TO WARRANTHOLDER, ADDRESSED TO:
Quest Diagnostics Incorporated
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO THE COMPANY, ADDRESSED TO:
SeraCare, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
14. SUPPLEMENTS AND AMENDMENTS. Neither this Warrant nor any term
hereof may be changed or waived except pursuant to an instrument in writing
signed by the party against which enforcement of the change or waiver is sought.
15. SUCCESSORS. All the representations, warranties, agreements,
covenants and provisions of this Warrant by or for the benefit of the Company or
the Warrantholder shall bind and inure to the benefit of their respective
permitted successors and assigns hereunder.
16. GOVERNING LAW. This Warrant shall be governed by, interpreted
under, and construed and enforced in accordance with the internal laws, and not
the laws pertaining to conflicts or choice of laws, of the State of Delaware.
17. BENEFITS OF THIS WARRANT. Nothing in this Warrant shall be
construed to give to any person or entity other than the Company and the
Warrantholder any legal or equitable right, remedy or claim under this Warrant;
and this Warrant shall be for the sole and exclusive benefit of the Company and
the Warrantholder.
18. INVALIDITY OF PROVISIONS. If any provision of this Warrant is or
becomes invalid, illegal or unenforceable in any respect, such provision shall
be deemed amended to the extent necessary to cause it to express the intent of
the parties to the maximum possible extent and be valid, legal and enforceable.
The invalidity or deemed amendment of such provision shall not affect the
validity, legality or enforceability of any other provision hereof.
19. SECTION HEADINGS. The section headings contained in this Warrant
are for convenience only and shall be without substantive meaning or content.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed as of the day and year first above written.
SERACARE, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President and Chief Executive Officer
ACCEPTED AND AGREED TO:
QUEST DIAGNOSTICS INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Corporate Vice President, Business Development
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EXHIBIT A
NOTICE OF EXERCISE
(TO BE EXECUTED UPON EXERCISE OF WARRANT)
[ ] WARRANT NO. ___
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant Certificate for, and to purchase thereunder,
the securities of SeraCare, Inc., as provided for therein, and (check the
applicable box):
/_/ Tenders herewith payment of the exercise price in full in the form of
cash or a certified or official bank check in same-day funds in the
amount of $____________ for _________ such securities.
/_/ Elects the Net Issue Exercise option pursuant to Section 1.5 of the
Warrant, and accordingly requests delivery of a net of ______________
of such securities, according to the following calculation:
X = Y (A-B) ( ) = (____) [(_____) - (_____)]
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A (_____)
Where X = the number of shares of Common Stock to be issued to
Warrantholder.
Y = the number of shares of Common Stock purchasable under the
amount of the Warrant being exchanged (as adjusted to the
date of such calculation).
A = the Fair Market Value of one share of the Company's Common
Stock.
B = Exercise Price (as adjusted to the date of such
calculation).
Please issue a certificate or certificates for such securities in the
name of, and pay any cash for any fractional share to (please print name,
address and social security number):
Name:
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Address:
---------------------------------
Warrantholder:
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Print name
Executed as of , .
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Signature
(Signature must conform in all respects to name of holder as specified on the
face of the Warrant tendered with this Notice of Exercise.)
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