EXHIBIT 99.6
(And Exhibit A to Preferred Stock
and Warrant Purchase Agreement)
WARRANT TO PURCHASE PREFERRED STOCK
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR APPLICABLE STATE LAW, AND NO INTEREST HEREIN MAY BE
SOLD, DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS
(i) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE
STATE SECURITIES LAWS COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES,
(ii) THIS CORPORATION RECEIVES AN OPINION OF LEGAL COUNSEL FOR THE HOLDER OF
THESE SECURITIES SATISFACTORY TO THIS CORPORATION STATING THAT SUCH TRANSACTION
IS EXEMPT FROM REGISTRATION, OR (iii) THIS CORPORATION OTHERWISE SATISFIES
ITSELF THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION.
No. 00P-19 WARRANT TO PURCHASE SHARES OF
CONVERTIBLE PREFERRED STOCK
STOCK PURCHASE WARRANT
TO PURCHASE SHARES OF
CONVERTIBLE PREFERRED STOCK OF
A-FEM MEDICAL CORPORATION
For value received as set forth in that certain Preferred Stock and Warrant
Purchase Agreement between certain investors (each an "Investor" and
collectively, the "Investors") acting through their agent, Capital Consultants
LLC ("CCL"), and A-Fem Medical Corporation, a Nevada corporation (the "Company")
dated September 21, 2000, the Company grants to Capital Consultants LLC as Agent
for Client No. [285], the Holder, as hereinafter defined, the right, subject to
the terms of this Warrant, to purchase 79,861 shares of the Company's Series A
Convertible Preferred Stock, par value $.01 per share, at $.01 per share, as
adjusted (the "Exercise Price").
Section 1. Definitions.
As used in this Warrant, unless the context otherwise requires:
1.1. "Exercise Date" means any date when this Warrant is exercised in the
manner indicated in Sections 2.1 and 2.2.
1.2. "Expiration Date" means 5:00 p.m. Pacific Time, ten years from the
date hereof.
1.3. "Holder" means (i) CCL, as agent for any Investor it represents and
(ii) each Investor.
1.4. "Securities Act" means the Securities Act of 1933, as amended from
time to time, and all rules and regulations promulgated thereunder, or any act,
rules or regulations that replace the Securities Act or any such rules and
regulations.
1.5. "Preferred Stock" means shares of the class designated as Series A
Convertible Preferred Stock, par value $.01 per share, of the Company.
1.6. "Common Stock" means shares of the class designated as Common Stock,
par value $.01 per share, of the Company.
1.7. "Warrant Shares" means any shares of Preferred Stock issued or
issuable upon exercise of this Warrant.
Section 2. Duration and Exercise of Warrant.
2.1 Exercise Period. Subject to the provisions of Sections 2.4, 4 and 6
hereof, this Warrant may be exercised, in whole or in part, during the period
commencing on the date two years after the date hereof and ending on the
Expiration Date. After the Expiration Date this Warrant shall become void, and
all rights to purchase Warrant Shares hereunder shall thereupon cease.
2.2 Method of Exercise. This Warrant may be exercised by the Holder, in
whole or in part, by (i) surrendering this Warrant to the Secretary of the
Company, (ii) tendering to the Company payment in full by cash or by check
acceptable to the Company of the Exercise Price for the Warrant Shares for which
exercise is made and (iii) executing and delivering to the Secretary of the
Company an Exercise Form, in the form attached to this Warrant.
Upon exercise, the Holder shall be deemed to be the holder of record of the
Warrant Shares for which exercise is made, even though the transfer or registrar
books of the Company may then be closed or certificates representing such
Warrant Shares may not then be actually delivered to the Holder.
No fractional shares or scrip representing fractional shares shall be issued
upon the exercise of this Warrant. In lieu of any fractional share to which the
Holder would otherwise be entitled, the Company shall round up or down the
number of shares to the nearest whole share.
2.3 Certificates. As soon as practicable after the exercise, at the
Company's expense, certificates for such Warrant Shares shall be delivered to
the Holder and, unless this Warrant has expired, a warrant representing the
number of Warrant Shares, if any, with respect to which this Warrant shall not
have been exercised shall be issued to the Holder.
2.4 Securities Act Compliance. Unless the transfer of the Warrant Shares
shall have been registered under the Securities Act, as a condition of the
delivery of certificates for the Warrant
Shares, the Company may require the Holder to deliver to the Company, in
writing, representations regarding the Holder's sophistication, investment
intent, acquisition for Holder's own account and such other matters as are
reasonable and customary for purchasers of securities in an unregistered private
offering. The Company may place conspicuously upon each Warrant and upon each
certificate representing the Warrant Shares a legend substantially in the
following form, the terms of which are agreed to by the Holder:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE
STATE LAW, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED,
ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (i)
THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAWS COVERING ANY SUCH TRANSACTION
INVOLVING SAID SECURITIES, (ii) THIS CORPORATION RECEIVES AN
OPINION OF LEGAL COUNSEL FOR THE HOLDER OF THESE SECURITIES
SATISFACTORY TO THIS CORPORATION STATING THAT SUCH TRANSACTION
IS EXEMPT FROM REGISTRATION, OR (iii) THIS CORPORATION
OTHERWISE SATISFIES ITSELF THAT SUCH TRANSACTION IS EXEMPT
FROM REGISTRATION."
2.5 Taxes. The Company shall not be required to pay any tax that may be,
payable in respect of any transfer of this Warrant.
Section 3. Validity and Reservation of Warrant Shares.
The Company covenants that all shares of Preferred Stock issued upon exercise of
this Warrant, pursuant to the terms and conditions herein, will be validly
issued, fully paid, nonassessable and free of preemptive rights. The Company
agrees that, as long as this Warrant may be exercised, the Company will reserve
from its authorized and unissued Preferred Stock a sufficient number of shares
to provide for the issuance of the Preferred Stock upon exercise of, this
Warrant (and shares of its Common Stock for issuance on conversion of such
Preferred Stock).
Section 4. Limited Rights of Warrant Holder.
The Holder shall not, solely by virtue of being the Holder of this Warrant, have
any of the rights of a holder of Preferred Stock of the Company, either at law
or equity, until such Warrant shall have been exercised and the Holder shall be
deemed to be the holder of record of Warrant Shares as provided in this Warrant,
at which time the person or entity in whose name the certificate for Warrant
Shares being purchased is to be issued shall be deemed the holder of record of
such shares for all purposes.
Section 5. Loss of Warrant.
Upon receipt by the Company of reasonably satisfactory evidence of the loss,
theft, destruction or mutilation of this Warrant and either (in the case of
loss, theft or destruction) reasonable
indemnification and a bond satisfactory to the Company if requested by the
Company or (in the case of mutilation) the surrender of this Warrant for
cancellation, the Company will execute and deliver to the Holder, without
charge, a new Warrant of like tenor and amount.
Section 6. Adjustments.
The Exercise Price and the number of shares purchasable under this Warrant are
subject to adjustment from time to time as follows:
6.1 Merger, Sale of Assets, etc. If at any time while this Warrant, or any
portion thereof, is outstanding and unexpired there shall be a reorganization
(other than a combination, reclassification, exchange or subdivision of shares
provided for herein), merger or consolidation of the Company with or into
another corporation, or the sale or transfer of all or substantially all of the
Company's properties and assets to any other person, then, as a part of such
reorganization, merger, consolidation, transfer or sale, provision shall be made
so that the Holder of this Warrant shall thereafter be entitled to immediately
exercise this Warrant and to receive upon exercise of this Warrant, and upon
payment of the Exercise Price then in effect, the number of shares of stock or
other securities or property of the Company, or of the successor corporation
resulting from such reorganization, merger, consolidation, transfer or sale, to
which a holder of the shares deliverable upon exercise of this Warrant would
have been entitled to receive in such reorganization, merger, consolidation or
sale, all subject to adjustment as provided herein.
6.2 Reclassification, etc. If the Company, at any time while this Warrant
or any portion hereof, remains outstanding and unexpired by reclassification of
securities or otherwise, shall change any of the securities as to which purchase
rights under this Warrant exist into the same or a different number of
securities of any other class or classes, this Warrant shall thereafter
represent the right to acquire such number and kind of securities as would have
been issuable as the result of such change with respect to the securities that
were subject to the purchase rights under this Warrant immediately prior to such
reclassification or other change and the Exercise Price thereof shall be
appropriately adjusted, all subject to further adjustments as provided in this
Section.
6.3 Split, Subdivision or Combination of Shares. If the Company at any time
while this Warrant, or any portion hereof, remains outstanding and unexpired
shall split, subdivide or combine the securities as to which purchase rights
under this Warrant exist, into a different number of securities of the same
class, the Exercise Price for such securities shall be proportionately decreased
in the case of a split or subdivision or proportionately increased in the case
of a combination.
6.4 Adjustments for Dividends in Stock or Other Securities or Property. If
while this Warrant, or any portion hereof, remains outstanding and unexpired,
the holders of the securities as to which purchase rights under this Warrant
exist at the time shall have received, or on or after the record date for the
determination of eligible shareholders, shall have become entitled to receive,
without payment therefore, other or additional stock or other securities or
property (other than cash) of the Company by way of dividend, then and in each
such case, this Warrant shall represent the right to acquire, in addition to the
number of shares of the security receivable
upon exercise of this Warrant, and without payment of any additional
consideration therefor, the amount of such other or additional stock or other
securities or property (other than cash) of the Company that such holder would
hold on the date of such exercise had it been the holder of record of the
security receivable upon exercise of 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 adjustment called
for during such period by the provisions of this Section 6.
6.5 Certificate of Adjustments. Upon the occurrence of each adjustment or
readjustment pursuant to this Section 6, the Company, at its expense, shall
promptly compute such adjustment or readjustment in accordance with the terms
hereof and furnish to the Holder of this Warrant a certificate, signed by the
Chairman of the Board, the President or the Chief Financial Officer, setting
forth such adjustment or readjustment and showing in detail the facts upon which
such adjustment or readjustment is based. The Company shall, upon the written
request at any time of any such Holder, furnish or cause to be furnished to such
Holder a certificate setting forth: (A) such adjustments and readjustments, (B)
the Exercise Price at the time in effect and (C) the number of shares and the
amount, if any, of other property that at the time would be received upon the
exercise of the Warrant.
6.6 No Impairment. The Company will not, by any voluntary action, avoid or
seek to avoid the observance or performance of any of the terms to be observed
or performed hereunder by the Company, but will at all times in good faith
assist in the carrying out of all the provisions of this Section 6 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.
Section 7. Registration Rights.
Upon exercise of this Warrant, the Holder shall have and be entitled to
exercise, together with all other holders of Registrable Securities possessing
registration rights under that certain A-Fem Medical Corporation Amended and
Restated Registration Rights Agreement, of even date herewith, between the
Company and CCL ("Investors' Rights Agreement"), the rights of registration
granted under the Investors' Rights Agreement to Registrable Securities (with
respect to the shares of common stock issuable upon conversion of the Preferred
Stock issuable upon exercise of this Warrant). By its receipt of this Warrant,
Holder agrees to be bound by the Investors' Rights Agreement.
Section 8. Miscellaneous.
8.1 Successors and Assigns. All the covenants and provisions of this
Warrant that are by or for the benefit of the Company shall bind and inure to
the benefit of its successors and assigns hereunder.
8.2 Notice. Any notice or demand pursuant to this Warrant shall be given in
writing and shall be deemed effectively given upon personal delivery to the
party to be notified or three days
following deposit with the United States Post Office, postage prepaid,
registered or certified with return receipt requested and addressed to the party
to be notified as provided below:
If to the Company:
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If to the Holder:
Capital Consultants LLC
Suite 200
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Each party may specify a different address than set forth above by 10 days'
advance notice thereof given in the foregoing manner.
8.3 Applicable Law. The validity, interpretation and performance of this
Warrant shall be governed by the laws of the State of Oregon as applied to
agreements among Oregon residents entered into and to be performed entirely
within the State of Oregon.
8.4 Headings. The Article headings herein are for convenience only and are
not part of this Warrant and shall not affect the interpretation thereof.
8.5 Amendments; Waiver. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. No waivers of, or exceptions to any term, condition or provision of
this Warrant, in any one or more instances, shall be deemed to be, or construed
as, a further or continuing waiver of any such term, condition or provision.
Dated: September 21, 2000
A-FEM MEDICAL CORPORATION
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Chief Executive Officer
EXERCISE FORM
(To Be Executed by the Holder
to Exercise the Warrant in Whole or in Part)
To: A-FEM MEDICAL CORPORATION
I, the undersigned, hereby irrevocably elect to exercise the right of purchase
represented by Warrant No. ____ for, and to purchase thereunder, ______ shares
of Series A Convertible Preferred Stock for a purchase price of $.01 per share,
as provided for therein. I hereby tender payment herewith to the order of A-FEM
MEDICAL CORPORATION in the amount of $_________. I request that certificates for
such shares of Series A Convertible Preferred Stock be issued and delivered as
stated below, and, if said number of shares of Series A Convertible Preferred
Stock shall not be all the shares of Series A Convertible Preferred Stock
purchasable thereunder, that a new Warrant for the balance remaining of the
shares of Series A Convertible Preferred Stock purchasable under the within
Warrant be registered and delivered to me, as stated below:
Signature:
Name:
Address:
Deliver to:
Address:
Note: Signature must correspond with the name as written upon the face of the
Warrant in every particular, without alteration or enlargement or any change
whatsoever.