1
EXHIBIT 10.79
********************************************************************************
STOCK PURCHASE WARRANT
To Purchase Common Stock of
ACCUMED INTERNATIONAL, INC.
********************************************************************************
2
THIS WARRANT AND THE SHARES OF COMMON STOCK INTO WHICH IT IS EXERCISABLE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") NOR UNDER ANY
STATE SECURITIES LAW AND MAY NOT BE PLEDGED, SOLD, ASSIGNED OR OTHERWISE
TRANSFERRED UNTIL A (1) REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE
STATE SECURITIES LAW HAS BECOME EFFECTIVE WITH RESPECT THERETO, OR (2) RECEIPT
BY THE COMPANY OF AN OPINION OF COUNSEL TO THE COMPANY TO THE EFFECT THAT
REGISTRATION UNDER THE ACT OR APPLICABLE STATE SECURITIES LAW IS NOT REQUIRED IN
CONNECTION WITH THE PROPOSED TRANSFER.
Void after 5:00 p.m. New York Time, on March [19] [23], 2005.
Warrant to Purchase ____________ [aggregate 1,337,333] Shares of Common
Stock.
WARRANT TO PURCHASE COMMON STOCK
OF
ACCUMED INTERNATIONAL, INC.
This is to Certify That, FOR VALUE RECEIVED, _______________
[Commonwealth Associates, ▇▇▇▇▇▇ ▇. ▇▇▇▇, Bellingham Capital Industries and/or
designees], or assigns ("Holder"), is entitled to purchase, subject to the
provisions of this Warrant, from AccuMed International, Inc., a Delaware
corporation ("Company"), 336,302 fully paid, validly issued and nonassessable
shares of Common Stock, par value $.01 per share, of the Company ("Common
Stock") at a price of $0.75 per share at any time or from time to time during
the period from the Initial Warrant Exercise Date (defined below) to March 23,
2005, but not later than 5:00 p.m. New York City Time, on March 23, 2005. The
number of shares of Common Stock to be received upon the exercise of this
Warrant and the price to be paid for each share of Common Stock may be adjusted
from time to time as hereinafter set forth. The shares of Common Stock
deliverable upon such exercise, and as adjusted from time to time, are
hereinafter sometimes referred to as "Warrant Shares" and the exercise price of
a share of Common Stock in effect at any time and as adjusted from time to time
is hereinafter sometimes referred to as the "Exercise Price". This Warrant,
together with warrants of like tenor, constituting in the aggregate warrants
(the "Warrants") to purchase up to __________ shares of Common Stock, was
originally issued pursuant to an agency agreement between the Company and
Commonwealth Associates ("Commonwealth"), in connection with the private
placement ("Private Placement") through Commonwealth of the Units of the
Company.
2
3
(a) EXERCISE OF WARRANT.
(1) This Warrant may be exercised in whole or in part
at any time or from time to time on or after the date of this Warrant ("Initial
Warrant Exercise Date") and until March 23, 2005 (the "Exercise Period"),
subject to the provisions of Section (j)(2) hereof; provided, however, that if
either such day is a day on which banking institutions in the State of New York
are authorized by law to close, then on the next succeeding day which shall not
be such a day. This Warrant may be exercised by presentation and surrender
hereof to the Company at its principal office, or at the office of its stock
transfer agent, if any, with the Purchase Form annexed hereto duly executed and
accompanied by payment of the Exercise Price for the number of Warrant Shares
specified in such form. As soon as practicable after each such exercise of the
warrants, but not later than seven (7) days from the date of such exercise, the
Company shall issue and deliver to the Holder a certificate or certificate for
the Warrant Shares issuable upon such exercise, registered in the name of the
Holder or its designed. If this Warrant should be exercised in part only, the
Company shall, upon surrender of this Warrant for cancellation, execute and
deliver a new Warrant evidencing the rights of the Holder thereof to purchase
the balance of the Warrant Shares purchasable thereunder. Upon receipt by the
Company of this Warrant at its office, or by the stock transfer agent of the
Company at its office, in proper form for exercise, the Holder shall be deemed
to be the holder of record of the shares of Common Stock issuable upon such
exercise, notwithstanding that the stock transfer books of the Company shall
then be closed or that certificates representing such shares of Common Stock
shall not then be physically delivered to the Holder.
(2) At any time during the Exercise Period, the Holder
may, at its option, exchange this Warrant, in whole or in part (a "Warrant
Exchange"), into the number of Warrant Shares determined in accordance with this
Section (a)(2), by surrendering this Warrant at the principal office of the
Company or at the office of its stock transfer agent, accompanied by a notice
stating such ▇▇▇▇▇▇'s intent to effect such exchange, the number of Warrant
Shares to be exchanged and the date on which the Holder requests that such
Warrant Exchange occur (the "Notice of Exchange"). The Warrant Exchange shall
take place on the date specified in the Notice of Exchange or, if later, the
date the Notice of Exchange is received by the Company (the "Exchange Date").
Certificates for the shares issuable upon such Warrant Exchange and, if
applicable, a new warrant of like tenor evidencing the balance of the shares
remaining subject to this Warrant, shall be issued as of the Exchange Date and
delivered to the Holder within seven (7) days following the Exchange Date. In
connection with any Warrant Exchange, this Warrant shall represent the right to
subscribe for and acquire the number of Warrant Shares (rounded to the next
highest integer) equal to (i) the number of Warrant Shares specified by the
Holder in its Notice of Exchange (the "Total Number") less (ii) the number of
Warrant Shares equal to the quotient obtained by dividing (A) the product of the
Total Number and the existing Exercise Price by (B) the current market value of
a share of Common Stock. Current market value shall have the meaning set forth
Section (c) below, except that for purposes hereof, the date of exercise, as
used in such Section (c), shall mean the Exchange Date.
3
4
(b) RESERVATION OF SHARES. The Company shall at all times reserve
for issuance and/or delivery upon exercise of this Warrant such number of shares
of its Common Stock as shall be required for issuance and delivery upon exercise
of this Warrant.
(c) FRACTIONAL SHARES. No fractional shares or script
representing fractional shares shall be issued upon the exercise of this
Warrant. With respect to any fraction of a share called for upon any exercise
hereof, the Company shall pay to the Holder an amount in cash equal to such
fraction multiplied by the current market value of a share, determined as
follows:
(1) If the Common Stock is listed on a national securities
exchange or admitted to unlisted trading privileges on such
exchange or listed for trading on the Nasdaq National Market, the
current market value shall be the last reported sale price of the
Common Stock on such exchange or market on the last business day
prior to the date of exercise of this Warrant or if no such sale
is made on such day, the average closing bid and asked prices for
such day on such exchange or market; or
(2) If the Common Stock is not so listed or admitted to
unlisted trading privileges, but is traded on the Nasdaq SmallCap
Market, the current Market Value shall be the average of the
closing bid and asked prices for such day on such market and if
the Common Stock is not so traded, the current market value shall
be the mean of the last reported bid and asked prices reported by
the National Quotation Bureau, Inc. on the last business day
prior to the date of the exercise of this Warrant; or
(3) If the Common Stock is not so listed or admitted to unlisted
trading privileges and bid and asked prices are not so reported,
the current market value shall be an amount, not less than book
value thereof as at the end of the most recent fiscal year of the
Company ending prior to the date of the exercise of the Warrant,
determined in such reasonable manner as may be prescribed by the
Board of Directors of the Company.
(d) EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT. This
Warrant is exchangeable, without expense, at the option of the Holder, upon
presentation and surrender hereof to the Company or at the office of its stock
transfer agent, if any, for other warrants of different denominations entitling
the holder thereof to purchase in the aggregate the same number of shares of
Common Stock purchasable hereunder. Upon surrender of this Warrant to the
Company at its principal office or at the office of its stock transfer agent, if
any, with the Assignment Form annexed hereto duly executed and funds sufficient
to pay any transfer tax, the Company shall, without charge, execute and deliver
a new Warrant in the name of the assignee named in such instrument of assignment
and this Warrant shall promptly be cancelled. This Warrant may be divided or
combined with other warrants which carry the same rights upon
4
5
presentation hereof at the principal office of the Company or at the
office of its stock transfer agent, if any, together with a written notice
specifying the names and denominations in which new Warrants are to be issued
and signed by the Holder hereof. The term "Warrant" as used herein includes any
Warrants into which this Warrant may be divided or exchanged. Upon receipt by
the Company of evidence satisfactory to it of the loss, theft, destruction or
mutilation of this Warrant, and (in the case of loss, theft or destruction) of
reasonably satisfactory indemnification, and upon surrender and cancellation of
this Warrant, if mutilated, the Company will execute and deliver a new Warrant
of like tenor and date. Any such new Warrant executed and delivered shall
constitute an additional contractual obligation on the part of the Company,
whether or not this Warrant so lost, stolen, destroyed, or mutilated shall be at
any time enforceable by anyone.
(e) RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof,
be entitled to any rights of a shareholder in the Company, either at law or
equity, and the rights of the Holder are limited to those expressed in the
Warrant and are not enforceable against the Company except to the extent set
forth herein.
(f) ANTI-DILUTION PROVISIONS. The Exercise Price in effect at any
time and the number and kind of securities purchasable upon the exercise of the
Warrants shall be subject to adjustment from time to time upon the happening of
certain events as follows:
(1) In case the Company shall (i) declare a dividend or
make a distribution on its outstanding shares of Common Stock in
shares of Common Stock, (ii) subdivide or reclassify its
outstanding shares of Common Stock into a greater number of
shares, or (iii) combine or reclassify its outstanding shares of
Common Stock into a smaller number of shares, the Exercise Price
in effect at the time of the record date for such dividend or
distribution or of the effective date of such subdivision,
combination or reclassification shall be adjusted so that it
shall equal the price determined by multiplying the Exercise
Price by a fraction, the denominator of which shall be the number
of shares of Common Stock outstanding after giving effect to such
action, and the numerator of which shall be the number of shares
of Common Stock outstanding immediately prior to such action.
Such adjustment shall be made successively whenever any event
listed above shall occur.
(2) In case the Company shall fix a record date for the
issuance of rights or warrants to all holders of its Common Stock
entitling them to subscribe for or purchase shares of Common
Stock (or securities convertible into Common Stock) at a price
(the "Subscription Price") (or having a conversion price per
share) less than the current market price of the Common Stock (as
defined in Subsection (8) below) on the record date mentioned
below, or less than the Exercise Price on such record date the
Exercise Price shall be adjusted so that the same shall equal the
lower of (i) the price determined by multiplying the Exercise
5
6
Price in effect immediately prior to the date of such issuance by
a fraction, the numerator of which shall be the sum of the number
of shares of Common Stock outstanding on the record date
mentioned below and the number of additional shares of Common
Stock which the aggregate offering price of the total number of
shares of Common Stock so offered (or the aggregate conversion
price of the convertible securities so offered) would purchase at
such current market price per share of the Common Stock, and the
denominator of which shall be the sum of the number of shares of
Common Stock outstanding on such record date and the number of
additional shares of Common Stock offered for subscription or
purchase (or into which the convertible securities so offered are
convertible) or (ii) in the event the Subscription Price is equal
to or higher than the current market price but is less than the
Exercise Price, the price determined by multiplying the Exercise
Price in effect immediately prior to the date of issuance by a
fraction, the numerator of which shall be the sum of the number
of shares outstanding on the record date mentioned below and the
number of additional shares of Common Stock which the aggregate
offering price of the total number of shares of Common Stock so
offered (or the aggregate conversion price of the convertible
securities so offered) would purchase at the Exercise Price in
effect immediately prior to the date of such issuance, and the
denominator of which shall be the sum of the number of shares of
Common Stock outstanding on the record date mentioned below and
the number of additional shares of Common Stock offered for
subscription or purchase (or into which the convertible
securities so offered are convertible). Such adjustment shall be
made successively whenever such rights or warrants are issued and
shall become effective immediately after the record date for the
determination of shareholders entitled to receive such rights or
warrants; and to the extent that shares of Common Stock are not
delivered (or securities convertible into Common Stock are not
delivered) after the expiration of such rights or warrants the
Exercise Price shall be readjusted to the Exercise Price which
would then be in effect had the adjustments made upon the
issuance of such rights or warrants been made upon the basis of
delivery of only the number of shares of Common Stock (or
securities convertible into Common Stock) actually delivered.
(3) In case the Company shall hereafter distribute to the
holders of its Common Stock evidences of its indebtedness or
assets (excluding cash dividends or distributions and dividends
or distributions referred to in Subsection (1) above) or
subscription rights or warrants (excluding those referred to in
Subsection (2) above), then in each such case the Exercise Price
in effect thereafter shall be determined by multiplying the
Exercise Price in effect immediately prior thereto by a fraction,
the numerator of which shall be the total number of shares of
Common Stock outstanding multiplied by the current market price
per share of Common Stock (as defined in Subsection (8) below),
less the fair market value (as determined by the Company's Board
of Directors) of said assets or evidences of
6
7
indebtedness so distributed or of such rights or warrants, and
the denominator of which shall be the total number of shares of
Common Stock outstanding multiplied by such current market price
per share of Common Stock. Such adjustment shall be made
successively whenever such a record date is fixed. Such
adjustment shall be made whenever any such distribution is made
and shall become effective immediately after the record date for
the determination of shareholders entitled to receive such
distribution.
(4) In case the Company shall issue shares of its Common
Stock [excluding shares issued (i) in any of the transactions
described in Subsection (1) above, (ii) upon exercise of options
granted to the Company's employees under a plan or plans adopted
by the Company's Board of Directors and approved by its
shareholders, if such shares would otherwise be included in this
Subsection (4), (but only to the extent that the aggregate number
of shares excluded hereby and issued after the date hereof, shall
not exceed 5% of the Company's Common Stock outstanding at the
time of any issuance), (iii) upon exercise of options and
warrants outstanding at March 23, 1998, and this Warrant (iv) to
shareholders of any corporation which merges into the Company in
proportion to their stock holdings of such corporation
immediately prior to such merger, upon such merger, or (v) issued
in a bona fide public offering pursuant to a firm commitment
underwriting, but only if no adjustment is required pursuant to
any other specific subsection of this Section (f) (without regard
to Subsection (9) below) with respect to the transaction giving
rise to such rights] for a consideration per share (the "Offering
Price") less than the current market price per share [as defined
in Subsection (8) below] on the date the Company fixes the
offering price of such additional shares or less than the
Exercise Price, the Exercise Price shall be adjusted immediately
thereafter so that it shall equal the lower of (i) the price
determined by multiplying the Exercise Price in effect
immediately prior thereto by a fraction, the numerator of which
shall be the sum of the number of shares of Common Stock
outstanding immediately prior to the issuance of such additional
shares and the number of shares of Common Stock which the
aggregate consideration received [determined as provided in
Subsection (7) below] for the issuance of such additional shares
would purchase at such current market price per share of Common
Stock, and the denominator of which shall be the number of shares
of Common Stock outstanding immediately after the issuance of
such additional shares or (ii) in the event the Offering Price is
equal to or higher than the current market price per share but
less than the Exercise Price, the price determined by multiplying
the Exercise Price in effect immediately prior to the date of
issuance by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding immediately prior to
the issuance of such additional shares and the number of shares
of Common Stock which the aggregate consideration received
[determined as provided in subsection (7) below] for the issuance
of such additional shares would purchase at the Exercise Price in
effect
7
8
immediately prior to the date of such issuance, and the
denominator of which shall be the number of shares of Common
Stock outstanding immediately after the issuance of such
additional shares. Such adjustment shall be made successively
whenever such an issuance is made.
(5) In case the Company shall issue any securities
convertible into or exchangeable for its Common Stock [excluding
securities issued in transactions described in Subsections (2)
and (3) above] for a consideration per share of Common Stock (the
"Conversion Price") initially deliverable upon conversion or
exchange of such securities [determined as provided in Subsection
(7) below] less than the current market price per share [as
defined in Subsection (8) below] in effect immediately prior to
the issuance of such securities, or less than the Exercise Price,
the Exercise Price shall be adjusted immediately thereafter so
that it shall equal the lower of (i) the price determined by
multiplying the Exercise Price in effect immediately prior
thereto by a fraction, the numerator of which shall be the sum of
the number of shares of Common Stock outstanding immediately
prior to the issuance of such securities and the number of shares
of Common Stock which the aggregate consideration received
[determined as provided in Subsection (7) below] for such
securities would purchase at such current market price per share
of Common Stock, and the denominator of which shall be the sum of
the number of shares of Common Stock outstanding immediately
prior to such issuance and the maximum number of shares of Common
Stock of the Company deliverable upon conversion of or in
exchange for such securities at the initial conversion or
exchange price or rate or (ii) in the event the Conversion Price
is equal to or higher than the current market price per share but
less than the Exercise Price, the price determined by multiplying
the Exercise Price in effect immediately prior to the date of
issuance by a fraction, the numerator of which shall be the sum
of the number of shares outstanding immediately prior to the
issuance of such securities and the number of shares of Common
Stock which the aggregate consideration received [determined as
provided in subsection (7) below] for such securities would
purchase at the Exercise Price in effect immediately prior to the
date of such issuance, and the denominator of which shall be the
sum of the number of shares of Common Stock outstanding
immediately prior to the issuance of such securities and the
maximum number of shares of Common Stock of the Company
deliverable upon conversion of or in exchange for such securities
at the initial conversion or exchange price or rate. Such
adjustment shall be made successively whenever such an issuance
is made.
(6) Whenever the Exercise Price payable upon exercise of
each Warrant is adjusted pursuant to Subsections (1), (2), (3),
(4) and (5) above, the number of Warrant Shares purchasable upon
exercise of this Warrant shall simultaneously be adjusted by
multiplying the number of Warrant Shares initially
8
9
issuable upon exercise of this Warrant by the Exercise Price in
effect on the date hereof and dividing the product so obtained by
the Exercise Price, as adjusted.
(7) For purposes of any computation respecting
consideration received pursuant to Subsections (4) and (5) above,
the following shall apply:
(A) in the case of the issuance of shares of Common
Stock for cash, the consideration shall be the amount of
such cash, provided that in no case shall any deduction be
made for any commissions, discounts or other expenses
incurred by the Company for any underwriting of the issue
or otherwise in connection therewith;
(B) in the case of the issuance of shares of Common
Stock for a consideration in whole or in part other than
cash, the consideration other than cash shall be deemed to
be the fair market value thereof as determined in good
faith by the Board of Directors of the Company
(irrespective of the accounting treatment thereof), whose
determination shall be conclusive; and
(C) in the case of the issuance of securities
convertible into or exchangeable for shares of Common
Stock, the aggregate consideration received therefor shall
be deemed to be the consideration received by the Company
for the issuance of such securities plus the additional
minimum consideration, if any, to be received by the
Company upon the conversion or exchange thereof [the
consideration in each case to be determined in the same
manner as provided in clauses (A) and (B) of this
Subsection (7)].
(8) For the purpose of any computation under Subsections
(2), (3), (4) and (5) above, the current market price per share
of Common Stock at any date shall be determined in the manner set
forth in Section (c) hereof except that the current market price
per share shall be deemed to be the higher of (i) the average of
the prices for 30 consecutive trading days before such date or
(ii) the price on the trading day immediately preceding such
date.
(9) No adjustment in the Exercise Price shall be required
unless such adjustment would require an increase or decrease of
at least five cents ($0.05) in such price; provided, however,
that any adjustments which by reason of this Subsection (9) are
not required to be made shall be carried forward and taken into
account in any subsequent adjustment required to be made
hereunder. All calculations under this Section (f) shall be made
to the nearest cent or to the nearest one-hundredth of a share,
as the case may be. Anything in this Section (f) to the contrary
notwithstanding, the Company shall be entitled, but shall not be
required, to make such changes in the Exercise Price, in addition
to those required
9
10
by this Section (f), as it shall determine, in its sole
discretion, to be advisable in order that any dividend or
distribution in shares of Common Stock, or any subdivision,
reclassification or combination of Common Stock, hereafter made
by the Company shall not result in any Federal income tax
liability to the holders of Common Stock or securities
convertible into Common Stock (including Warrants).
(10) Whenever the Exercise Price is adjusted, as herein
provided, the Company shall promptly but no later than 10 days
after any request for such an adjustment by the Holder, cause a
notice setting forth the adjusted Exercise Price and adjusted
number of Warrant Shares issuable upon exercise of each Warrant,
and, if requested, information describing the transactions giving
rise to such adjustments, to be mailed to the Holders at their
last addresses appearing in the Warrant Register, and shall cause
a certified copy thereof to be mailed to its transfer agent, if
any. In the event the Company does not provide the Holder with
such notice and information within 10 days of a request by the
Holder, then notwithstanding the provisions of this Section (f),
the Exercise Price shall be immediately adjusted to equal the
lowest Offering Price, Subscription Price or Conversion Price, as
applicable, since the date of this Warrant, and the number of
shares issuable upon exercise of this Warrant shall be adjusted
accordingly. The Company may retain a firm of independent
certified public accountants selected by the Board of Directors
(who may be the regular accountants employed by the Company) to
make any computation required by this Section (f), and a
certificate signed by such firm shall be conclusive evidence of
the correctness of such adjustment.
(11) In the event that at any time, as a result of an
adjustment made pursuant to Subsection (1) above, the Holder of
this Warrant thereafter shall become entitled to receive any
shares of the Company, other than Common Stock, thereafter the
number of such other shares so receivable upon exercise of this
Warrant shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Common Stock contained in
Subsections (1) to (9), inclusive above.
(12) Irrespective of any adjustments in the Exercise Price
or the number or kind of shares purchasable upon exercise of this
Warrant, Warrants theretofore or thereafter issued may continue
to express the same price and number and kind of shares as are
stated in the similar Warrants initially issuable pursuant to
this Agreement.
(g) OFFICER'S CERTIFICATE. Whenever the Exercise Price shall be
adjusted as required by the provisions of the foregoing Section, the Company
shall forthwith file in the custody of its Secretary or an Assistant Secretary
at its principal office and with its stock
10
11
transfer agent, if any, an officer's certificate showing the adjusted Exercise
Price determined as herein provided, setting forth in reasonable detail the
facts requiring such adjustment, including a statement of the number of
additional shares of Common Stock, if any, and such other facts as shall be
necessary to show the reason for and the manner of computing such adjustment.
Each such officer's certificate shall be made available at all reasonable times
for inspection by the holder or any holder of a Warrant executed and delivered
pursuant to Section (a) and the Company shall, forthwith after each such
adjustment, mail a copy by certified mail of such certificate to the Holder or
any such holder.
(h) NOTICES TO WARRANT HOLDERS. So long as this Warrant shall be
outstanding, (i) if the Company shall pay any dividend or make any distribution
upon the Common Stock or (ii) if the Company shall offer to the holders of
Common Stock for subscription or purchase by them any share of any class or any
other rights or (iii) if any capital reorganization of the Company,
reclassification of the capital stock of the Company, consolidation or merger of
the Company with or into another corporation, sale, lease or transfer of all or
substantially all of the property and assets of the Company to another
corporation, or voluntary or involuntary dissolution, liquidation or winding up
of the Company shall be effected, then in any such case, the Company shall cause
to be mailed by certified mail to the Holder, at least fifteen days prior the
date specified in (x) or (y) below, as the case may be, a notice containing a
brief description of the proposed action and stating the date on which (x) a
record is to be taken for the purpose of such dividend, distribution or rights,
or (y) such reclassification, reorganization, consolidation, merger, conveyance,
lease, dissolution, liquidation or winding up is to take place and the date, if
any is to be fixed, as of which the holders of Common Stock or other securities
shall receive cash or other property deliverable upon such reclassification,
reorganization, consolidation, merger, conveyance, dissolution, liquidation or
winding up.
(i) RECLASSIFICATION, REORGANIZATION OR MERGER. In case of any
reclassification, capital reorganization or other change of outstanding shares
of Common Stock of the Company, or in case of any consolidation or merger of the
Company with or into another corporation (other than a merger with a subsidiary
in which merger the Company is the continuing corporation and which does not
result in any reclassification, capital reorganization or other change of
outstanding shares of Common Stock of the class issuable upon exercise of this
Warrant) or in case of any sale, lease or conveyance to another corporation of
the property of the Company as an entirety, the Company shall, as a condition
precedent to such transaction, cause effective provisions to be made so that the
Holder shall have the right thereafter by exercising this Warrant at any time
prior to the expiration of the Warrant, to purchase the kind and amount of
shares of stock and other securities and property receivable upon such
reclassification, capital reorganization and other change, consolidation,
merger, sale or conveyance by a holder of the number of shares of Common
Stock which might have been purchased upon exercise of this Warrant immediately
prior to such reclassification, change, consolidation, merger, sale or
conveyance. Any such provision shall include provision for adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Warrant. The foregoing provisions of this Section (i) shall
similarly apply to successive reclassifications, capital
11
12
reorganizations and changes of shares of Common Stock and to successive
consolidations, mergers, sales or conveyances. In the event that in connection
with any such capital reorganization or reclassification, consolidation, merger,
sale or conveyance, additional shares of Common Stock shall be issued in
exchange, conversion, substitution or payment, in whole or in part, for a
security of the Company other than Common Stock, any such issue shall be treated
as an issue of Common Stock covered by the provisions of Subsection (1) of
Section (f) hereof.
(j) REGISTRATION UNDER THE SECURITIES ACT OF 1933.
(1) The Company shall advise the Holder of this Warrant or
of the Warrant Shares or any then holder of Warrants or Warrant
Shares (such persons being collectively referred to herein as
"holders") by written notice at least four weeks (except, in the
case of the proposed registration statements relating to (i) the
shares of Common Stock issuable upon conversion of the Series A
Convertible Preferred Stock issued in the exchange offer by the
Company in February 1998, and (ii) the shares of Common Stock
issued in the Units sold by the Company in the Private Placement
and the shares of Common Stock underlying Warrants included in
such Units, five days) prior to the filing of any registration
statement or post-effective amendment thereto under the
Securities Act of 1933 (the "Act") covering securities of the
Company and will for a period of five years, commencing on the
initial closing of the Private Placement, upon the request of any
such holder, include in any such registration statement such
information as may be required to permit a public offering of the
Warrant Shares. The Company shall supply prospectuses and other
documents as the Holder may request in order to facilitate the
public sale or other disposition of the Warrant Shares, qualify
the Warrant Shares for sale in such states as any such holder
designates and do any and all other acts and things which may be
necessary or desirable to enable such Holders to consummate the
public sale or other disposition of the Warrant Shares, and
furnish indemnification in the manner as set forth in Subsection
(3)(C) of this Section (j). Such holders shall furnish
information and indemnification as set forth in Subsection (3)(C)
of this Section (j), except that the maximum amount which may be
recovered from the Holder shall be limited to the amount of
proceeds received by the Holder from the sale of the Warrant
Shares.
(2) If any majority holder (as defined in Subsection (4)
of this Section (j) below) shall give notice to the Company at
any time during the five year period commencing on the initial
closing of the Private Placement to the effect that such holder
contemplates (i) the transfer of all or any part of his or its
Warrants and/or Warrant Shares, or (ii) the exercise and/or
conversion of all or any part of his or its Warrants and the
transfer of all or any part of the Warrants and/or Warrant Shares
under such circumstances that a public offering (within the
meaning of the Act) of Warrant Shares will be involved, and
desires to register
12
13
under the Act the Warrant Shares, then the Company shall, within
three weeks after receipt of such notice, file a registration
statement pursuant to the Act, to the end that the Warrant Shares
may be sold under the Act as promptly as practicable thereafter
and the Company will use its best efforts to cause such
registration to become effective and continue to be effective
(current) (including the taking of such steps as are necessary to
obtain the removal of any stop order) until the holder has
advised that all of the Warrant Shares have been sold; provided
that such holder shall furnish the Company with appropriate
information (relating to the intentions of such holders) in
connection therewith as the Company shall reasonably request in
writing. In the event the registration statement is not declared
effective under the Act prior to March 23, 2005, the Company
shall extend the expiration date of the Warrants to a date not
less than 90 days after the effective date of such registration
statement. The holder may, at its option, request the
registration of the Warrant Shares in a registration statement
made by the Company as contemplated by Subsection (1) of this
Section (j) or in connection with a request made pursuant to
Subsection (2) of this Section (j) prior to the acquisition of
the Warrant Shares upon exercise of the Warrants and even though
the holder has not given notice of exercise of the Warrants. If
the Company determines to include securities to be sold by it in
any registration statement originally requested pursuant to this
Subsection (2) of this Section (j), such registration shall
instead be deemed to have been a registration under Subsection
(1) of this Section (j) and not under Subsection (2) of this
Subsection (j). The holder may thereafter at its option, exercise
the Warrants at any time or from time to time subsequent to the
effectiveness under the Act of the registration statement in
which the Warrant Shares were included. Any registration
requested pursuant to this Section (j)(2) shall, if the Company
is eligible to use Form S-3 (or any successor Form) under the
Act, be effected on a Form S-3 Registration Statement.
(3) The following provision of this Section (j) shall also
be applicable:
(A) Within ten days after receiving any such notice
pursuant to Subsection (2) of this Section (j), the
Company shall give notice to the other holders of Warrants
and Warrant Shares, advising that the Company is
proceeding with such registration statement and offering
to include therein Warrant Shares of such other holders,
provided that they shall furnish the Company with such
appropriate information (relating to the intentions of
such holders) in connection therewith as the Company shall
reasonably request in writing. Following the effective
date of such registration, the Company shall upon the
request of any owner of Warrant Shares forthwith supply
such a number of prospectuses meeting the requirements of
the Act, as shall be requested by such owner to permit
such holder to make a public offering of all Warrant
Shares from time to
13
14
time offered or sold to such holder, provided that such
holder shall from time to time furnish the Company with
such appropriate information (relating to the intentions
of such holder) in connection therewith as the Company
shall request in writing. The Company shall also use its
best efforts to qualify the Warrant Shares for sale in
such states as such majority holder shall designate.
(B) The Company shall bear the entire cost and
expense of any registration of securities initiated by it
under Subsection (1) of this Section (j) notwithstanding
that Warrant Shares subject to this Warrant may be
included in any such registration. The Company shall also
comply with one request for registration made by the
majority holder pursuant to Subsection (2) of this Section
(j) at its own expense and without charge to any holder of
any Warrants and/or Warrant Shares; and the Company shall
comply with one additional request made by the majority
holder pursuant to Subsection (2) of this Section (j) (and
not deemed to be pursuant to Subsection (1) of this
Section (j)) at the sole expense of such majority holder.
Any holder whose Warrant Shares are included in any such
registration statement pursuant to this Section (j) shall,
however, bear the fees of his own counsel and any
registration fees, transfer taxes or underwriting
discounts or commissions applicable to the Warrant Shares
sold by him pursuant thereto.
(C) The Company shall indemnify and hold harmless
each such holder and each underwriter, within the meaning
of the Act, who may purchase from or sell for any such
holder any Warrants and/or Warrant Shares from and against
any and all losses, claims, damages and liabilities caused
by any untrue statement or alleged untrue statement of a
material fact contained in any registration statement
under the Act or any prospectus included therein required
to be filed or furnished by reason of this Section (j) or
caused by any omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or
alleged untrue statement or omission or alleged omission
based uponinformation furnished or required to be
furnished in writing to the Company by such holder or
underwriter expressly for use therein, which
indemnification shall include each person, if any, who
controls any such underwriter within the meaning of such
Act provided, however, that the Company will not be liable
in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission
or alleged omission made in said registration statement,
said preliminary prospectus, said final
14
15
prospectus or said amendment or supplement in reliance
upon and in conformity with written information furnished
by such Holder or any other Holder, specifically for use
in the preparation thereof.
(D) Neither the giving of any notice by any such
majority holder nor the making of any request for
prospectuses shall impose such majority holder or owner
making such request any obligation to sell any Warrants
and/or Warrant Shares, or exercise any Warrants.
(4) The term "majority holder" as used in this Section (j)
shall include any owner or combination of owners of Warrants or
Warrant Shares in any combination if the holdings of the
aggregate amount of:
(i) the Warrants held by him or among them, plus
(ii) the Warrants which he or they would be holding
if the Warrants for the Warrant Shares owned by him or
among them had not been exercised,
would constitute a majority of the Warrants originally issued.
The Company's agreements with respect to Warrants or Warrant
Shares in this Section (j) shall continue in effect regardless of the exercise
and surrender of this Warrant.
ACCUMED INTERNATIONAL, INC.
By ________________________________
[SEAL] ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Chief Executive Officer and President
Dated: March 19, 1998
Attest:
_____________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇, Secretary
PURCHASE FORM
Dated ____________, 19
16
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing _______ shares of Common Stock and hereby
makes payment of _______ in payment of the actual exercise price thereof.
________________
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name _______________________________________
(Please typewrite or print in block letters)
Address ____________________________________
Signature __________________________________
17
ASSIGNMENT FORM
FOR VALUE RECEIVED, ______________ hereby sells, assigns and
transfers unto
Name _______________________________________
(Please typewrite or print in block letters)
Address ____________________________________
the right to purchase Common Stock represented by this Warrant to the extent of
______ shares as to which such right is exercisable and does hereby irrevocably
constitute and appoint ___________ as attorney, to transfer the same on the
books of the Company with full power of substitution in the premises.
Date ____________, 19__
Signature __________________________________