EXHIBIT 4.4
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON THE
EXERCISE ARE SUBJECT TO THE RESTRICTIONS ON
TRANSFER SET FORTH IN SECTION 4 OF THIS WARRANT
Warrant No. __ Number of Shares: 89,552
(subject to adjustment)
Date of Issuance: March 14, 1997
SALIVA DIAGNOSTIC SYSTEMS, INC.
Common Stock Purchase Warrant
(Void after March 14, 2002)
Saliva Diagnostic Systems, Inc., a Delaware corporation (the
"Company"), for value received, hereby certifies that ▇▇▇▇▇▇▇ & Associates, Inc.
or its registered assigns (the "Registered Holder"), is entitled, subject to the
terms set forth below, to purchase from the Company, at any time or from time to
time on or after the date of issuance and on or before March 14, 2002 at not
later than 5:00 p.m. Vancouver, Washington time), 89,552 shares of Common Stock,
$.01 par value per share (the "Common Stock"), of the Company. The shares
purchasable upon exercise of this Warrant, and the Purchase Price per share
(defined below), each as adjusted from time to time pursuant to the provisions
of this Warrant, are hereinafter referred to as the "Warrant Shares" and the
"Purchase Price," respectively.
1. Exercise.
a. This Warrant may be exercised on or before the expiration
date of March 14, 2002 by the Registered Holder, in whole or in part, by
surrendering this Warrant, with the purchase form appended hereto as Exhibit I
duly executed by such Registered Holder or by such Registered Holder's duly
authorized attorney, at the principal office of the Company, or at such other
office or agency as the Company may designate, accompanied by payment in full,
in lawful money of the United States, of the Purchase Price payable in respect
of the number of Warrant Shares purchased upon such exercise. For purposes
hereof, the Purchase Price shall be equal to $1.34 per share.
b. Notwithstanding any provisions herein to the contrary, if
the Fair Market Value (hereinafter defined) of one share of Common Stock is
greater than the Purchase Price (at the date of calculation as set forth below),
in lieu of exercising this Warrant for cash, the Registered Holder may elect to
receive shares equal to the value (as determined below) of this Warrant (or the
portion thereof being canceled) by surrender of this Warrant at the principal
office of the Company together with the properly endorsed Notice of Exercise and
notice of such election in which event the Company shall issue to the Registered
Holder the number of shares of Common Stock computed using the following
formula:
Y (A-B)
X = -------
A
Where X = the number of shares of Common Stock to be issued to
the Registered Holder
Y = the number of shares of Common Stock purchasable
under the Warrant or, if only a portion of the
Warrant is being exercised, the portion of the
Warrant being canceled (at the date of such
calculation)
A = the Fair Market Value of one share of the Company's
Common Stock (at the date of such calculation)
B = Purchase Price (as adjusted to the date of such
calculation)
For purposes of the above calculation, if the Common Stock is
listed or quoted on a national securities exchange, the Nasdaq Stock Market, or
another nationally recognized exchange or trading system as of the Exercise
Date, the Fair Market Value per share of the Common Stock shall be deemed to be
the average of the last reported sales price per share of Common Stock thereon
for the five trading days immediately preceding the Exercise Date; provided,
however, that if no such price is reported during such five-day period, or if
the Common Stock is not listed or quoted on a national securities exchange, the
Nasdaq Stock Market, or another nationally recognized exchange or trading system
as of the Exercise Date, the Fair Market Value per share of Common Stock shall
be deemed to be the amount most recently determined by the Board of Directors to
represent the fair market value per share of the Common Stock (including without
limitation a determination for purposes of granting Common Stock options or
issuing Common Stock under an employee benefit plan of the Company); and upon
request of the Registered Holder, the Board of Directors (or a representative
thereof) shall promptly notify the Registered Holder of the Fair Market Value
per share of Common Stock. Notwithstanding the foregoing, if the Board of
Directors has not made such a determination within the three-month period prior
to the Exercise Date, then (A) the Fair Market Value per share of Common Stock
shall be the amount next determined by the Board of Directors to represent the
fair market value per share of the Common Stock (including without limitation a
determination for purposes of granting Common Stock options or issuing Common
Stock under an employee benefit plan of the Company), (B) the Board of Directors
shall make such a determination within 10 days of a request by the Registered
Holder that it do so, and (C) the exercise of this Warrant pursuant to
subsection 1.b. shall be delayed until such determination is made.
2
c. Each exercise of this Warrant shall be deemed to have been
effected immediately prior to the close of business on the day on which this
Warrant shall have been surrendered to the Company as provided in subsections
1.a. and 1.b. above. At such time, the person or persons in whose name or names
any certificates for Warrant Shares shall be issuable upon such exercise as
provided in subsection 1.d. below shall be deemed to have become the holder or
holders of record of the Warrant Shares represented by such certificates.
d. As soon as practicable after the exercise of this Warrant
in full or in part, and in any event within 10 days thereafter, the Company, at
its expense, will cause to be issued in the name of, and delivered to, the
Registered Holder, or as such Holder (upon payment by such Holder of any
applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of
full Warrant Shares to which such Registered Holder shall be entitled upon such
exercise plus, in lieu of any fractional share to which such Registered Holder
would otherwise be entitled, cash in an amount determined pursuant to Section 3
hereof; and
(ii) in case such exercise is in part only, a new
warrant or warrants (dated the date hereof) of like tenor, calling in the
aggregate on the face or faces thereof for the number of Warrant Shares equal
(without giving effect to any adjustment therein) to the number of such shares
called for on the face of this Warrant minus the number of such shares purchased
by the Registered Holder upon such exercise (and in the case of exercise under
the net exercise provision of Subsection 1.b., minus the number of shares
underlying the Warrant which were surrendered in accordance therewith).
2. Adjustments.
a. If outstanding shares of the Company's Common Stock shall
be subdivided into a greater number of shares or a dividend in Common Stock
shall be paid in respect of Common Stock, the Purchase Price in effect
immediately prior to such subdivision or at the record date of such dividend
shall simultaneously with the effectiveness of such subdivision or immediately
after the record date of such dividend be proportionately reduced. If
outstanding shares of Common Stock shall be combined into a smaller number of
shares, the Purchase Price in effect immediately prior to such combination
shall, simultaneously with the effectiveness of such combination, be
proportionately increased. When any adjustment is required to be made in the
Purchase Price, the number of Warrant Shares purchasable upon the exercise of
this Warrant shall be changed to the number determined by dividing (i) an amount
equal to the number of shares issuable upon the exercise of this Warrant
immediately prior to such adjustment, multiplied by the Purchase Price in effect
immediately prior to such adjustment, by (ii) the Purchase Price in effect
immediately after such adjustment.
3
b. If there shall occur any capital reorganization or
reclassification of the Company's Common Stock (other than a change in par value
or a subdivision or combination as provided for in subsection 2.a. above), or
any consolidation or merger of the Company with or into another corporation, or
a transfer of all or substantially all of the assets of the Company, then, as
part of any such reorganization, reclassification, consolidation, merger or
sale, as the case may be, lawful provision shall be made so that the Registered
Holder of this Warrant shall have the right thereafter to receive upon the
exercise hereof the kind and amount of shares of stock or other securities or
property which such Registered Holder would have been entitled to receive if,
immediately prior to any such reorganization, reclassification, consolidation,
merger or sale, as the case may be, such Registered Holder had held the number
of shares of Common Stock which were then purchasable upon the exercise of this
Warrant. In any such case, appropriate adjustment (as reasonably determined in
good faith by the Board of Directors of the Company) shall be made in the
application of the provisions set forth herein with respect to the rights and
interest thereafter of the Registered Holder of this Warrant, such that the
provisions set forth in this Section 2 (including provisions with respect to
adjustment of the Purchase Price) shall thereafter be applicable, as nearly as
is reasonably practicable, in relation to any shares of stock or other
securities or property thereafter deliverable upon the exercise of this Warrant.
c. When any adjustment is required to be made in the Purchase
Price, the Company shall promptly mail to the Registered Holder a certificate
setting forth the Purchase Price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment. Such certificate shall also
set forth the kind and amount of stock or other securities or property into
which this Warrant shall be exercisable following the occurrence of any of the
events specified in subsection 2.a. or b. above.
d. In the event that the Company shall make any distribution
of its assets upon or with respect to its Common Stock, as a liquidating or
partial liquidating dividend, or other than as a dividend payable out of
earnings or any surplus legally available for dividends under the laws of the
state of incorporation of the Company, the Registered Holder shall be entitled
to receive upon exercise of this Warrant the amount of such assets (or, at the
option of the Company, an amount equal to the value thereof at the time of
distribution, as determined by the Company's board of directors in its sole
discretion) which would have been distributed to such Registered Holder if it
had exercised its right to exercise immediately prior to the record date for
such distribution or, in the absence of a record date, immediately prior to the
date of such distribution.
3. Fractional Shares. The Company shall not be required upon the
exercise of this Warrant to issue any fractional shares, but shall make an
adjustment therefor in cash on the basis of the Fair Market Value per share of
Common Stock. For purposes hereof, Fair Market Value shall be determined as set
forth in subsection 1.b. above.
4
4. Requirements for Transfer.
a. This Warrant and the Warrant Shares shall not be sold or
transferred unless either (i) they first shall have been registered under the
Securities Act of 1933, as amended (the "Act"), or (ii) the Company first shall
have been furnished with an opinion of legal counsel, reasonably satisfactory to
the Company, to the effect that such sale or transfer is exempt from the
registration requirements of the Act.
b. Notwithstanding the foregoing, no registration or opinion
of counsel shall be required for (i) a transfer by a Registered Holder which is
a partnership to a partner of such partnership or a retired partner of such
partnership who retires after the date hereof, or to the estate of any such
partner or retired partner, if the transferee agrees in writing to be subject to
the terms of this Section 4, or (ii) a transfer made in accordance with Rule 144
under the Act.
c. Each certificate representing Warrant Shares shall bear a
legend substantially in the following form:
The securities represented by this certificate have
not been registered under the Securities Act of 1933,
as amended, and may not be offered, sold or otherwise
transferred, pledged or hypothecated unless and until
such securities are registered under such Act or an
exemption is available therefrom and established
satisfactory to the Company.
The foregoing legend shall be removed from the certificates representing any
Warrant Shares, at the request of the holder thereof, at such time as they
become eligible for resale pursuant to Rule 144(k) under the Act.
5. Demand Registration.
a. Subject to the terms and conditions hereof, within thirty
(30) days after the written request of the holders of a majority of Warrant
Shares plus Warrant Shares issuable upon conversion of then outstanding
Warrants, the Company shall, at the Company's cost and expense (other than the
fees and disbursements of counsel for the Registered Holder and the underwriting
discounts and brokerage commissions, if any, payable in respect of the Warrant
Shares sold by the Registered Holder) prepare and file with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3 (if
the same is available), with respect to all of the Warrant Shares and will use
all reasonable efforts to cause such registration statement to become effective
promptly. If Form S-3 is not available to the Company for such registration
statement, the Company shall use such form of registration statement that is
available and appropriate.
5
b. Except as set forth below, the Company shall keep effective
the registration statement contemplated by this Section 5 and shall from time to
time amend or supplement such registration statement, for a period of not less
than five (5) years, as extended by any period of time during which the
registration statement is not effective pursuant to Section 5.c. below, unless
all of the Warrant Shares set forth in such registration statement have
theretofore been sold or unless all of the Warrant Shares may be sold at any one
time under Rule 144 of the Act.
c. The Company may terminate or suspend the effectiveness of
any registration statement to be filed pursuant to Section 5.a. one time for a
period of not more than 30 days if the Company shall deliver to the Registered
Holder a certificate signed by the President or Chief Financial Officer of the
Company stating that in the good faith judgment of the Board of Directors of the
Company it would (i) be seriously detrimental to the Company for such
registration statement to be effected or remain effective at such time, (ii)
interfere with any proposed or pending material corporate transaction involving
the Company or any of its subsidiaries or (iii) result in any premature
disclosure thereof.
d. The Company shall not be obligated to file more than one
(1) registration statement under this Section 5.
e. The Company shall furnish to the Registered Holders such
number of copies of a prospectus in conformity with the requirements of the
Securities Act, and such other documents as may reasonably be requested in order
to facilitate the disposition of the Warrant Shares owned by the Registered
Holder.
6. Company Registration.
a. If the Company shall determine to register any of its
securities either for its own account or the account of a security holder or
holders (including The Tail Wind Fund Ltd. and any of its transferees)
exercising their respective demand registration rights, other than a
registration relating solely to employee benefit plans, or a registration
relating to a corporate reorganization or other transaction under Rule 145, or a
registration on any registration form that does not permit secondary sales, the
Company will:
(i) promptly give to each Registered Holder written
notice thereof; and
(ii) use its best efforts to include in such
registration (and any related qualification under blue sky laws or other
compliance), except as set forth in Section 6.b. below, and in any underwriting
involved therein, all the Warrant Shares specified in a written request or
requests, made by any Registered Holder and received by the Company within ten
(10) days after the written notice from the Company described in clause (i)
above is received by the Registered Holder. Such written request may specify all
or a part of a Holder's Warrant Shares.
6
b. If the registration of which the Company gives notice is
for a registered public offering involving an underwriting, the Company shall so
advise the Registered Holders as a part of the written notice given pursuant to
Section 6.a. In such event, the right of any Registered Holder to registration
pursuant to this Section 6 shall be conditioned upon such Registered Holder's
participation in such underwriting and the inclusion of such Registered Holder's
Warrant Shares in the underwriting to the extent provided herein. All Registered
Holders proposing to distribute their securities through such underwriting shall
(together with the Company and the other holders of securities of the Company
with registration rights to participate therein distributing their securities
through such underwriting) enter into an underwriting agreement in customary
form with the representative of the underwriter or underwriters selected by the
Company.
Notwithstanding any other provision of this Section 6, if the
representative of the underwriters advises the Company in writing that marketing
factors require a limitation on the number of shares to be underwritten, the
representative may (subject to the limitations set forth below) exclude all
Warrant Shares from, or limit the number of Warrant Shares to be included in,
the registration and underwriting. The Company shall so advise all holders of
securities requesting registration, and the number of shares of securities that
are entitled to be included in the registration and underwriting shall be
allocated first to the Company for securities being sold for its own account. If
any person does not agree to the terms of any such underwriting, such person
shall be excluded therefrom by written notice from the Company or the
underwriter. Any Warrant Shares or other securities excluded or withdrawn from
such underwriting shall be withdrawn from such registration.
7. The Company Covenants.
a. In the event of a registration pursuant to the provisions
of Sections 5 or 6, the Company shall use all reasonable efforts to cause the
Warrant Shares so registered to be registered or qualified for sale under the
securities or blue sky laws of such jurisdictions as the Registered Holder may
reasonably request; provided, however, that the Company shall not be required to
qualify to do business in any state by reason of this Section 7.a. in which it
is not otherwise required to qualify to do business.
b. The Company shall notify the Registered Holder promptly
when such registration statement has become effective or a supplement to any
prospectus forming a part of such registration statement has been filed.
c. The Company shall advise the Registered Holder, promptly
after it shall receive notice or obtain knowledge of the issuance of any stop
order by the Commission suspending the effectiveness of such registration
statement, or the initiation or threatening of any proceeding for that purpose,
and promptly use all reasonable efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such stop order should be issued.
7
d. The Company shall promptly notify the Registered Holder, at
any time when a prospectus relating thereto is required to be delivered under
the Securities Act, of the happening of any event of which it has knowledge as a
result of which the prospectus included in such registration statement, as then
in effect, would include an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and at the reasonable request of each Registered Holder prepare and
furnish to them such number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Warrant Shares or securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made.
e. If requested by the underwriter for any underwritten
offering of Warrant Shares on behalf of the Registered Holder pursuant to a
registration requested under Sections 5 or 6, the Company and the Registered
Holder will enter into an underwriting agreement with such underwriter for such
offering, which shall be reasonably satisfactory in substance and form to the
Company, the Registered Holder, and the underwriter, and such agreement shall
contain such representations and warranties by the Company and each Registered
Holder and such other terms and provisions as are customarily contained in an
underwriting agreement with respect to secondary distributions solely by selling
stockholders, including, without limitation, indemnities substantially to the
effect and to the extent provided in Section 8.
To the extent requested by the underwriter, the Registered
Holder agrees not to sell or otherwise transfer or dispose of any Warrant Shares
held by it during the period commencing on its receipt of written notice from
the Company of such underwritten public offering and ending 180 days following
the effective date of a registration statement of the Company filed under the
Act in connection with such firmly underwritten public offering of the Company's
Common Stock, provided that all executive officers and directors of the Company
enter into similar agreements.
8. Indemnification; Miscellaneous Operative Provisions.
a. Subject to the conditions set forth below, the Company
agrees to indemnify and hold harmless the Registered Holder, its respective
officers, directors, partners, employees, agents, shareholders and counsel, and
each person, if any, who controls any such person within the meaning of Section
15 of the Securities Act or Section 20(a) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") from and against any and all loss,
liability, charge, claim, damage, and expense whatsoever (which shall include,
for all purposes of this Section 8, but not be limited to, reasonable attorneys'
fees and any and all reasonable expenses whatsoever incurred in investigating,
preparing, or defending against any litigation, commenced or threatened, or any
claim whatsoever), arising out of, based upon, or in connection
8
with any untrue statement or alleged untrue statement of a material fact
contained (A) in any registration statement, preliminary prospectus, or final
prospectus (as from time to time amended and supplemented) or any amendment or
supplement thereto, relating to the sale of any of the Warrant Shares, or (B) in
any application or other document or communication (in this Section 8
collectively called an "Application") executed by or on behalf of the Company or
based upon written information furnished by or on behalf of the Company filed in
any jurisdiction in order to register or qualify any of the Warrant Shares under
the securities or blue sky laws thereof or filed with the Commission, the Nasdaq
Stock Market or any securities exchange, or (C) in any reports or documents
filed under the Exchange Act; or any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
made therein not misleading, unless (x) such statement or omission was made in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Registered Holder for inclusion in any
registration statement, preliminary prospectus, or final prospectus, or any
amendment or supplement thereto, or in any application, as the case may be, or
(y) such loss, liability, charge, claim, damage or expense arises out of the
Registered Holder's failure to comply with the terms and provisions of this
Agreement. The foregoing agreement to indemnify shall be in addition to any
liability the Company may otherwise have, including liabilities arising under
this Agreement.
If any action is brought against the Registered Holders or any
of their respective officers, directors, partners, employees, agents,
shareholders, or counsel, or any controlling persons of such person (an
"indemnified party") in respect of which indemnity may be sought against the
Company pursuant to the foregoing paragraph, such indemnified party or parties
shall promptly notify the Company in writing of the institution of such action
(but the failure so to notify shall not relieve the Company from any liability
other than pursuant to this Section 8.a. unless, the failure to so notify shall
prejudice any rights or defenses with respect to such claim) and the Company
shall promptly assume the defense of such action, including the employment of
counsel (reasonably satisfactory to such indemnified party or parties) provided
that the indemnified party shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless:
(i) the employment of such counsel shall have been
authorized in writing by the Company in connection with the defense of such
action; or
(ii) such indemnified party or parties shall have
reasonably concluded, based on an opinion of counsel, that there may be one or
more legal defenses available to it or them or to other indemnified parties
which are different from or additional to those available to the Company, in any
material respect, and that as a result thereof a conflict of interest would
arise absent separate representation of the parties.
In the event of clauses (i) or (ii) above, such fees and expenses shall be born
by the Company and the Company shall not have the right to direct the defense of
such action on behalf of the
9
indemnified party or parties. Anything in this Section 8 to the contrary
notwithstanding, the Company shall not be liable for any settlement of any such
claim or action affected without its written consent, which shall not be
unreasonably withheld. The Company shall not, without the prior written consent
of each indemnified party that is not released as described in this sentence,
settle or compromise any action, or permit a default or consent to the entry of
judgment in or otherwise seek to terminate any pending or threatened action, in
respect of which indemnity may be sought hereunder (whether or not any
indemnified party is a party thereto) unless such settlement, compromise,
consent, or termination includes an unconditional release of each indemnified
party from all liability in respect of such action. The Company agrees promptly
to notify each Registered Holder of the commencement of any litigation or
proceedings against the Company or any of its officers or directors in
connection with the sale of any Warrant Shares or any preliminary prospectus,
prospectus, registration statement, or amendment or supplement thereto, or any
application relating to any sale of any Warrant Shares.
b. Each Registered Holder agrees to indemnify and hold
harmless the Company, each director of the Company, each officer of the Company
who shall have signed any registration statement covering Warrant Shares by the
Registered Holder, each other person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, and its or their respective counsel, to the same extent as the foregoing
indemnity from the Company to the Registered Holder in Section 8.a. but only
with respect to statements or omissions, if any, made in any registration
statement, preliminary prospectus, or final prospectus (as from time to time
amended and supplemented) or any amendment or supplement thereto, or in any
application, in reliance upon and in conformity with written information
furnished to the Company with respect to the Registered Holder by or on behalf
of the Registered Holder, expressly for inclusion in any registration statement,
preliminary or final prospectus, or application, as the case may be. If any
action shall be brought against the Company or any other person so indemnified
based on any such registration statement, preliminary prospectus, or final
prospectus, or any amendment or supplement thereto, or in any application, and
in respect of which indemnity may be sought against the Registered Holder
pursuant to this Section 8.b., the Registered Holder shall have the rights and
duties given to the Company, and the Company and each other person so
indemnified shall have the rights and duties given to the indemnified parties,
by the provisions of Section 8.a.
c. If the indemnification provided for in this Section 8 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement
10
of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information, and opportunity
to correct or prevent such statement or omission.
d. In the event of a breach by any party of its obligations
under this Warrant, the other party, in addition to being entitled to exercise
all rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Warrant. Such rights shall be in
addition to, and not in lieu of, the Registered Holder's right to receive
monetary damages.
e. The provisions of this Warrant, including the provisions of
this sentence, may not be amended, modified or supplemented, unless such
amendment, modification or supplement is in writing and signed by the parties
hereto.
f. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, reputable
overnight courier, registered first-class mail, telex, or telecopied, initially
to the address set forth below, and thereafter at such other address, notice of
which is given in accordance with the provisions of this Section 8.f.
(i) if to the Company:
Saliva Diagnostic Systems, Inc.
▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to the Registered Holder at the address
specified from time to time by the Company.
All such notices and communications shall be deemed to have been duly given:
when delivered by hand, if personally delivered or by reputable overnight
courier; two business days after being deposited in the mail, postage prepaid,
if mailed; when answered back, if telexed; and when receipt is acknowledged, if
telecopied.
g. The Registered Holder shall cooperate in all reasonable
respects with the filing of the registration statement contemplated hereby.
Without limiting the foregoing, the Registered Holder shall furnish to the
Company (or any regulatory authority) such written information and
representations that the Company may reasonably request in order to facilitate
any registration of the Warrant Shares hereunder.
11
9. No Impairment. The Company will not, by amendment of its
charter documents or through reorganization, consolidation, merger, dissolution,
sale of assets or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, and will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate in order to protect
the rights of the holder of this Warrant against impairment.
10. Notices of Record Date, Etc. In case:
a. the Company shall take a record of the holders of its
Common Stock (or other stock or securities at the time deliverable upon the
exercise of this Warrant) for the purpose of entitling or enabling them to
receive any dividend or other distribution, or to receive any right to subscribe
for or purchase any shares of stock of any class or any other securities, or to
receive any other right; or
b. of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation (other than a
consolidation or merger in which the Company is the surviving entity), or any
transfer of all or substantially all of the assets of the Company; or
c. of the voluntary or involuntary dissolution, spin-off,
liquidation or winding-up of the Company,
then, and in each such case, the Company will mail or cause to be mailed to the
Registered Holder of this Warrant a notice specifying, as the case may be, (i)
the date on which a record is to be taken for the purpose of such dividend,
distribution or right, and stating the amount and character of such dividend,
distribution or right, or (ii) the effective date on which such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation or
winding-up is to take place, and the time, if any is to be fixed, as of which
the holders of record of Common Stock (or such other stock or securities at the
time deliverable upon the exercise of this Warrant) shall be entitled to
exchange their shares of Common Stock (or such other stock or securities) for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation or
winding-up. Such notice shall be mailed at least ten (10) days prior to the
record date or effective date for the event specified in such notice.
11. Reservation of Shares. The Company will at all times reserve
and keep available, solely for issuance and delivery upon the exercise of this
Warrant, such number of Warrant Shares and other stock, securities and property,
as from time to time shall be issuable upon the exercise of this Warrant.
12. Exchange of Warrants. Upon the surrender by the Registered
Holder of any Warrant or Warrants, properly endorsed, to the Company at the
principal office of the Company,
12
the Company will, subject to the provisions of Section 4 hereof, issue and
deliver to or upon the order of such Registered Holder, at the Company's
expense, a new Warrant or Warrants of like tenor, in the name of such Registered
Holder or as such Registered Holder (upon payment by such Registered Holder of
any applicable transfer taxes) may direct, representing in the aggregate on the
face or faces thereof for the number of shares of Common Stock represented for
on the face or faces of the Warrant or Warrants so surrendered.
13. Replacement of Warrants. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) upon delivery of an
indemnity agreement in an amount reasonably satisfactory to the Company, or (in
the case of mutilation) upon surrender and cancellation of this Warrant, the
Company will issue, in lieu thereof, a new Warrant of like tenor.
14. Transfers, etc.
a. The Company will maintain a register containing the names
and addresses of the Registered Holders of this Warrant. Any Registered Holder
may change its or his address as shown on the warrant register by written notice
to the Company requesting such change.
b. Subject to the provisions of Section 4 hereof, this Warrant
and all rights hereunder are transferable, in whole or in part, upon surrender
of this Warrant with a properly executed assignment (in the form of Exhibit II
hereto) at the principal office of the Company.
c. Until any transfer of this Warrant is made in the warrant
register, the Company may treat the Registered Holder of this Warrant as the
absolute owner hereof for all purposes; provided, however, that if and when this
Warrant is properly assigned in blank, the Company may (but shall not be
obligated to) treat the bearer hereof as the absolute owner hereof for all
purposes, notwithstanding any notice to the contrary.
15. No Rights as Stockholder. Until the exercise of this Warrant,
the Registered Holder of this Warrant shall not have or exercise any rights by
virtue hereof as a stockholder of the Company.
16. Change or Waiver. Any term of this Warrant may be changed or
waived only by an instrument in writing signed by the party against which
enforcement of the change or waiver is sought.
17. Headings. The headings in this Warrant are for purposes of
reference only and shall not limit or otherwise affect the meaning of any
provision of this Warrant.
13
18. Governing Law. This Warrant will be governed by and construed
in accordance with the laws of the State of Delaware.
Saliva Diagnostic Systems, Inc.
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
[Corporate Seal]
14
EXHIBIT I
PURCHASE FORM
To: Dated:
--------------------------------------------------- ------------------
The undersigned, pursuant to the provisions set forth in the attached
Warrant (No. ____), hereby irrevocably elects to purchase __________ shares of
Common Stock covered by such Warrant. The undersigned herewith makes payment of
$_______________, representing the full purchase price for such shares at the
price per share provided for in such Warrant. Such payment takes the form of
$_______________ in lawful money of the United States.
Signature:
------------------------------
Address:
--------------------------------
--------------------------------
15
EXHIBIT II
ASSIGNMENT FORM
FOR VALUE RECEIVED,________________________________________________________
hereby sells, assigns and transfers all of the rights of the undersigned under
the attached Warrant (No. _____) with respect to the number of shares of Common
Stock covered thereby set forth below, unto:
Name of Assignee Address No. of Shares
---------------- ----------------------------------------------- -------------
Dated: Signature:
--------------------- -----------------------------------------
Dated: Signature:
--------------------- -----------------------------------------
16
