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EXHIBIT 4.9
Date of Issuance: October 13, 1998
Warrant No.
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THIS WARRANT AND THE WARRANT SHARES HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, NOR REGISTERED OR QUALIFIED
UNDER ANY STATE SECURITIES LAWS, AND MAY NOT
BE PLEDGED, HYPOTHECATED, SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF UNLESS SO REGISTERED
OR AN EXEMPTION THEREFROM IS AVAILABLE
WARRANT TO PURCHASE COMMON STOCK
OF
GENOMIC SOLUTIONS INC.
THIS CERTIFIES THAT, for value received, ESA, Inc., a Massachusetts
corporation (the "Holder"), is entitled to purchase from Genomic Solutions Inc.,
a Delaware corporation (the "Company"), at the exercise price of Six Dollars
($6.00) per share (the "Exercise Price"), One Hundred Twenty Five Thousand
(125,000) shares (subject to adjustment as provided in Section 5 hereof) of the
Company's common stock, par value $.001 (the "Common Stock").
SECTION 1. TERM OF WARRANT, RESTRICTIONS ON TRANSFER, EXERCISE OF
WARRANT.
SECTION 1.1. TERM OF WARRANT. Subject to the terms of this Warrant, the
Holder shall have the right, at the Holder's option, which may be exercised in
whole or in part (but only in quantities of 25,000 shares), at any time and from
time to time after the Date of Issuance, but before the date ten (10) years
after the Date of Issuance (the "Warrant Expiration Date"), to purchase from the
Company the number of fully paid and nonassessable shares of the Common Stock
that the Holder may at the time be entitled to purchase on exercise of this
Warrant (the "Warrant Shares"). After such time, this Warrant shall become null
and void.
SECTION 1.2. RESTRICTIONS ON TRANSFER. This Warrant is not transferable
without the prior written consent of the Company, except that upon providing
prior written notice to the Company and subject to compliance with federal and
state securities laws as determined by the Company, Holder may assign this
Warrant to (i) any or all of Holders' shareholders of record at the time of
assignment; or (ii) any or all of Holders' senior executives as they exist at
the time of assignment. The Warrant and the Warrant Shares will be restricted
securities as defined under the Securities Act of 1933, as amended (the "Act")
and therefore will also not be transferable except in compliance with applicable
federal and state securities laws, unless the proposed disposition is the
subject of a Federal currently effective registration statement under the Act or
unless the Company has received an opinion of counsel, in the form and substance
reasonably satisfactory to the Company to the effect that such registration is
not required in connection with such disposition. Unless the Warrant Shares
shall have been duly registered under the Act and any applicable state
securities laws, certificates representing such shares
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shall bear a legend comparable to the legend set forth above regarding
restrictions on transfer. Additionally, each certificate representing the
Warrant Shares shall bear the following legend:
The sale, transfer, assignment, pledge, hypothecation, or
other disposition of the shares represented by this
certificate is restricted by the provisions of the
Shareholders Agreement, dated as of December 24, 1997, as it
may be amended from time to time, to which the Company and the
holder of this certificate, among others, are parties, a copy
of which may be inspected at the principal office of the
Company. The provisions of such agreement are incorporated
herein by reference.
SECTION 1.3. EXERCISE OF WARRANT. This Warrant may be exercised upon
surrender hereof to the Company at its principal office, together with the
Purchase Form attached hereto duly filled in and signed, and upon payment by
certified check or wire transfer to the Company of the Exercise Price for each
share to be purchased.
SECTION 1.4. CERTIFICATE ISSUANCE. Subject to Section 1.2 and to
Section 2 hereof, upon such surrender of this Warrant and payment of the
Exercise Price, the Company shall issue and cause to be delivered with all
reasonable dispatch to or upon the written order of the Holder a certificate or
certificates for the number of full Warrant Shares so purchased upon the
exercise of this Warrant. Such certificate or certificates shall be deemed to
have been issued and any person so designated to be named therein shall be
deemed to have become a holder of record of such Warrant Shares as of the date
of the surrender of this Warrant and payment of the Exercise Price.
SECTION 1.5. PARTIAL EXERCISE. In the event this Warrant is not
exercised in full, the Company, at its expense, shall forthwith issue and
deliver to, or upon the order of, Holder a new Warrant of like tenor in the name
of Holder or any permitted assignee (upon payment by Holder of any applicable
transfer taxes), calling in the aggregate on the face thereof for the number of
shares of Common Stock equal (without giving effect to any adjustment therein)
to (i) the number of such shares called for on the face of this Warrant minus
(ii) the number of such shares for which this Warrant shall have been exercised
(without giving effect to any adjustment in number as a result of changes called
for by Section 5).
SECTION 2. PAYMENT OF TAXES. The Company will pay all documentary stamp
taxes, if any, attributable to the initial issuance of any Warrant Shares upon
the exercise of this Warrant; provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issue or delivery of any Warrant or certificate for Warrant
Shares in a name other than that of the Holder of this Warrant as such name is
then shown on the books of the Company.
SECTION 3. MUTILATED OR MISSING WARRANT. Upon receipt of evidence
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction, upon
receipt of reasonably satisfactory indemnification or, in the case of any such
mutilation, upon surrender and cancellation of such Warrant, the Company will
make and deliver, in lieu of such lost, stolen, destroyed or mutilated Warrant,
a new Warrant of like tenor and representing
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the right to purchase the same aggregate number of Warrant Shares. Any such new
Warrant executed and delivered shall constitute an additional contractual
obligation on the part of the Company, whether or not the Warrant so lost,
stolen, destroyed or mutilated shall be at any time enforceable by anyone.
SECTION 4. CERTAIN COVENANTS.
SECTION 4.1. RESERVATION OF WARRANT SHARES. There have been reserved,
and the Company shall at all times keep reserved, out of its authorized Common
Stock, a number of shares of Common Stock sufficient to provide for the exercise
of the rights of purchase represented by this Warrant. Any transfer agent for
the Common Stock and any successor transfer agent for the Common Stock is hereby
irrevocably authorized to cause to be issued from time to time the share
certificates required to honor this Warrant upon its exercise in accordance with
the terms hereof. The Company will supply any such transfer agent with duly
executed share certificates for such purpose.
SECTION 4.2. NO IMPAIRMENT. The Company shall not by any action,
including, without limitation, amending its Amended and Restated Certificate of
Incorporation, as amended, any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate to protect the rights of the Holder against impairment.
Without limiting the generality of the foregoing, the Company will (a) take all
such action as may be necessary or appropriate in order that the Company may
validly issue fully paid and nonassessable Common Stock upon the exercise of
this Warrant and (b) obtain all such authorizations, exemptions or consents from
any public regulatory body having jurisdiction thereof as may be necessary to
enable the Company to perform its obligations under this Warrant.
SECTION 5. ANTI-DILUTION AND OTHER ADJUSTMENT PROVISIONS.
SECTION 5.1. COMMON STOCK DIVIDENDS, SUBDIVISIONS, COMBINATIONS. If the
Company shall: (a) pay or make a dividend or other distribution to all holders
of its Common Stock in shares of Common Stock, (b) subdivide, split or
reclassify the outstanding shares of its Common Stock into a larger number of
shares, or (c) combine or reclassify the outstanding shares of its Common Stock
into a smaller number of shares, then in each case the number of Warrant Shares
shall be adjusted to equal the number of such shares to which the Holder of this
Warrant would have been entitled upon the occurrence of such event had this
Warrant been exercised immediately prior to the happening of such event or, in
the case of a stock dividend or other distribution, prior to the record date for
determination of shareholders entitled thereto. An adjustment made pursuant to
this Section 5.1 shall become effective immediately after such record date, in
the case of a dividend or distribution, and immediately after the effective
date, in the case of a subdivision, split, combination or reclassification.
Whenever any adjustment is required to be made to the number of Warrant Shares,
the Exercise Price shall be changed to the number determined by dividing (i)
$750,000, or the appropriate prorated amount if partial exercise has occurred,
by (ii) the number of Warrant Shares immediately after such adjustment.
SECTION 5.2. REORGANIZATION OR RECLASSIFICATION. In case of any capital
reorganization or any reclassification of the Common Stock of the Company
(whether pursuant to a merger or
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consolidation or otherwise), this Warrant shall thereafter be exercisable for
the number of shares of stock or other securities or property receivable upon
such capital reorganization or reclassification of Common Stock, as the case may
be, by a Holder of the number of shares of Common Stock for which this Warrant
was exercisable immediately prior to such capital reorganization or
reclassification of Common Stock; and, in any case, appropriate adjustment shall
be made in the application of the provisions herein set forth with respect to
the rights and interests thereafter of the Holder of this Warrant such that the
provisions set forth herein shall thereafter be applicable, as nearly as
reasonably may be, in relation to any shares of stock or other securities or
property thereafter deliverable upon the exercise of this Warrant. The Company
shall not effect any such reorganization, consolidation, merger or sale unless,
prior to or contemporaneously with the consummation thereof: (i) the successor
corporation (if other than the Company) resulting from such consolidation or
merger or the corporation or other person purchasing assets shall assume by
written instrument executed and delivered to Holder, the obligation to deliver
to Holder such securities or property as, in accordance with the foregoing
provisions, Holder may be entitled to purchase or receive; or (ii) if the
successor corporation will not assume such obligation, upon twenty days' prior
written notice by the Company to the Holder of the Holder's right to exercise
the Warrant, which right may be exercised upon payment of the Aggregate Exercise
Price to the Company in exchange for the Warrant Shares or the surrender of the
Warrant to the Company and the Company's payment to the Holder in immediately
available funds of the Aggregate Fair Market Value in excess of the Aggregate
Exercise Price. For purposes of this Section, "Aggregate Exercise Price means an
amount equal to the product of the Exercise Price multiplied by the number of
Warrant Shares being purchased and surrendered for payment at such time. "Fair
Market Value" means, on any given date, the fair market value of the Common
Stock as determined in good faith by the Board of Directors; provided, however,
that: (a) if the Common Stock is admitted to quotation on the National
Association of Securities Dealers Automated Quotation System ("Nasdaq") SmallCap
Market on the date the Warrant is exercised, the Fair Market Value means the
average of the highest bid and lowest asked prices of the Common Stock on Nasdaq
reported for such date; (b) if the Common Stock is admitted to trading on a
national securities exchange or the Nasdaq National Market on the date the
Warrant is exercised, the Fair Market Value means the closing price reported for
the Common Stock on such exchange or system for such date or, if no sales were
reported for such date, for the last date preceding such date for which a sale
was reported; and (c) the Fair Market Value of the Common Stock on the effective
date of the registration statement for the Company's initial public offering
shall be the initial offering price. For purposes of this Section, the
"Aggregate Fair Market Value" means an amount equal to the product of the Fair
Market Value multiplied by the number of Warrant Shares being surrendered to the
Company at such time.
SECTION 5.3. NOTICE OF CERTAIN CORPORATE TRANSACTIONS. The Company
shall promptly mail to the Holder a notice of any proposed action referred to in
Sections 4.2, 5.1 or 5.2 hereof, stating the proposed record date (if any) or
effective date for any such transaction and briefly describing the transaction.
SECTION 5.4. NO ADJUSTMENT OR READJUSTMENT IN CERTAIN CIRCUMSTANCES.
The Company shall not make any adjustment or readjustment of the number of
Warrant Shares in the case of: (a) the exercise of this Warrant, or (b) by
reason of the issuance of shares of Common Stock or any other securities of the
Company in exchange for cash, property or services or other consideration.
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SECTION 5.5. CERTIFICATE OF ADJUSTMENT. Upon the occurrence of each
adjustment or readjustment pursuant to this Section 5, the Company, at its
expense, shall as promptly as practicable compute such adjustment or
readjustment in accordance with the provisions of this Section 5, and prepare
and furnish to the Holder a certificate setting forth such adjustment or
readjustment and showing in reasonable detail the facts upon which such
adjustment or readjustment is based. At its option, Holder may confirm such
adjustment by causing such adjustment to be completed by an independent
certified public accountant at the expense of the Holder.
SECTION 6. REGISTRATION RIGHTS.
SECTION 6.1 COMPANY REGISTRATION.
(a) Subject to certain limitations set forth in subsection (b)
of this Section, if the Company proposes to register any of its stock or other
securities under the Act in connection with the public offering of such
securities solely for cash (other than in a registration relating solely to the
sale of securities to participants in a Company stock option plan, or a
registration on any form which does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the securities or a SEC Rule 145 transaction), the Company
shall, at such time, promptly give the Holder written notice of the Company's
intention to effect such a registration (a "Piggyback Notice"). In the event the
Company receives a written request from the Holder not more than fifteen (15)
days after the mailing of the Piggyback Notice, the Company shall, subject to
the provisions of Sections 6.1 and 6.2, include in such filing and shall use its
best efforts to register the Warrant Shares as to which the Holder requested
registration, provided, however, if at any time after giving written notice of
its intention to register any equity securities and prior to the effective date
of the registration statement filed in connection with such registration, the
Company shall determine for any reason not to register such equity securities,
the Company may, at its election, give written notice of such determination to
the Holder and, thereupon, shall be relieved from its obligation with such
registration (but not from its obligation to pay the registration expenses in
connection therewith). Notwithstanding the foregoing, after the Company's
initial public offering, the Company will not be required to include the Warrant
Shares in an offering or to provide the Holder with a Piggyback Notice if the
underwriters have advised the Company in writing that in their judgment market
conditions will not allow the inclusion of any shares for resale by the
Company's stockholders in such offering.
(b) The registration rights granted to the Holder pursuant to Section
6.1(a) above are subordinate and subject to the rights of the holders of the
Company's Series M Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock and Series D Preferred Stock (collectively, the "Preferred Stock"), as
more particularly described in the Shareholders Agreement, as amended, between
the Company and certain of its stockholders, dated as of December 24, 1997. The
Company shall be required to include the Warrant Shares in any registration only
to the extent that such inclusion will not reduce the amount of securities to be
registered and sold by the holders of Preferred Stock. If the managing or
principal underwriters named in the registration statement advise the Company
that, in the good faith judgment of such managing or principal underwriters, the
number of shares of Common Stock which the Holder, the Company and all other
shareholders have requested to be included in such registration statement exceed
the number of shares it is advisable to offer and to sell at such time, then the
Company shall include in such registration, to the extent of the number of
shares of Common Stock
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which the Company is so advised can be sold in such offering, the shares of
Common Stock that the Company proposes to issue and sell for its own account,
the shares of Common Stock requested to be registered and sold by the holders of
Preferred Stock and the number of shares of Common Stock to be registered and
sold by the Holder and all other shareholders requesting registration; provided,
however, that the shares of Common Stock requested to be registered and sold by
the Holder and the shares of Common Stock requested to be registered by those
shareholders (the "Investors") pursuant to the Investor Agreement between the
Company and the former shareholders of PBA Technology Limited, dated as of
December 31, 1997 shall be appropriately reduced. In such case the number of
shares of Common Stock to be registered and sold by the Holder and the Investor
after such reduction shall be apportioned pro rata among the Holder and the
Investors according to the total amount of securities owned by the Holder and
each Investor or in such other proportions as shall be mutually agreed to by the
Holder and the Investors.
(c) The Holder hereby agrees that for a period of 180 days
following the effective date of the first registration statement of the Company
covering Common Stock filed on Form S-l under the Act and for any registration
effected pursuant to Section 6.1(a) above, provided the Holders are given
written notice of the offering at least fifteen (15) days prior to the Company's
filing with the SEC of a registration statement relating thereto), it shall not,
unless otherwise agreed by the Company and the managing underwriters, directly
or indirectly sell, offer to sell, contract to sell (including, without
limitation, any short sale), grant any option to purchase or otherwise transfer
or dispose of (other than to donees who agree to be similarly bound) any
securities of the Company held by it at any time during such period except
Common Stock included in such registration.
SECTION 6.2. OTHER PROVISIONS RELATING TO REGISTRATION RIGHTS. In
connection with any registration pursuant to this Section 6:
(a) Upon the request of the Holder of the Warrant Shares then
being registered, the Company shall cooperate with any underwriters (as defined
in the Act) for the Holder, including, without limitation, providing such
information, certificates, comfort letters of accountants and opinions of
counsel as may be customarily and reasonably requested by such underwriters;
provided that any underwriters for the Holder must be approved by the Company
(which approval shall not be unreasonably withheld).
(b) The Company shall furnish to the Holder of the Warrant
Shares being registered, at the Company's sole cost and expense, such number of
prospectuses conforming to the requirements of the Act, and the rules and
regulations thereunder, relating to the Warrant Shares subject thereto as may
from time to time be reasonably requested by such holders.
(c) All fees, disbursements and expenses incident to the
Company's performance of or compliance with its obligations under this Section 6
shall be borne by the Company, including, without limitation, all registration
and filing fees, printing expenses, fees and disbursements of counsel for the
Company and expenses of complying with applicable securities or blue sky laws.
(d) The Company agrees to use its best efforts at its own
expense to effect and to keep effective necessary registrations or
qualifications under the securities or Blue Sky laws of such
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jurisdictions as may be reasonably requested by any of the holders of the
Warrant Shares or by any underwriters for such holders so as to permit the
disposition of the Warrant Shares being registered.
(e) The Holder agrees to provide in an expeditious manner
whatever information and undertakings are reasonably requested by the Company in
order to comply with the requirements of the Act and of the Securities Exchange
Act of 1934, as amended, the rules and regulations thereunder and the guides and
other pronouncements of the Commission in connection with the registration of
the Holder's Warrant Shares.
(f) The Company shall indemnify and hold harmless the Holder
and any underwriter (as defined in the Act) who participates in such
registration for such Holder and each person, if any, who controls the Holder or
any underwriter against any losses, claims, damages or liabilities, joint or
severally, or actions in respect thereof to which the Holder or any underwriter
or controlling person may become subject under the Act, or otherwise, insofar as
such losses, claims damages, liabilities or actions in respect thereof arise out
of, or are based upon, any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such Warrant
Shares were registered under the Act, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereto, or arise
out of, or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Holder or any underwriter or
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company shall have the right,
at its option, to defend at its expense and by its own counsel against any
losses, claims, damages or liabilities, provided that (i) such counsel is
reasonably satisfactory to the Holder of the Warrant Shares; (ii) the Holder of
the Warrant Shares is kept fully informed of all developments, and is furnished
with copies of all documents and papers, related thereto and is given the right
to participate in the defense and investigation thereof at the expense of the
Company if (A) in the written opinion of counsel to such holders, use of counsel
of the Company's choice would be expected to give rise to a conflict of
interest; (B) there are or may be legal defenses available to the Holder that
are different from or additional to those available to the Company; (C) the
Company shall not have employed counsel to represent the Holder within a
reasonable time after notice of such claim is given to the Company or notice
that the Company intends to assume the defense of such claim is given to the
Holder; or (D) the Company shall authorize the Holder to employ separate counsel
at the expense of the Company; and provided, further, that 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 or said final
prospectus in conformity with written information furnished to the Company by
the Holder specifically for use in the preparation thereof, the Company will not
be so liable to the Holder or underwriter and the Holder agrees to indemnify and
hold the Company harmless from any loss, claim, damage, liability or action
arising from such information furnished to the Company by it and to use
reasonable efforts to cause any underwriter for the Holder to indemnify and hold
the Company harmless from any loss, claim, damage, liability or action arising
from information furnished to the Company by such underwriter; provided that
▇▇▇▇▇▇'s indemnification obligations will be limited to Holder's proceeds from
such registration.
(g) The Holder shall not be required to make any
representations or warranties
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to or agreements with the Company or the underwriters other than customary
representations, warranties or agreements regarding the Holder, the Holder's
Warrant Shares and the Holder's intended method of distribution and any other
representation required by law.
SECTION 7. TERMINATION OF RESTRICTIONS. The restrictions imposed by
Section 1.2 hereof upon the transferability of any Warrant Shares shall cease
and terminate as to any Warrant Shares (a) when such securities shall have been
effectively registered under the Act and any applicable state securities laws
and disposed of in accordance with the registration statement(s) covering such
securities, or (b) when, in the opinions of both counsel for the Holder and
counsel for the Company, such restrictions are no longer required in order to
insure compliance with the Act and applicable state securities laws. Whenever
such restrictions shall terminate as to any Warrant Shares, the Holder shall be
entitled to receive from the Company, without expense (other than transfer
taxes, if any), new securities of like tenor not bearing a legend as to
restrictions on transfer.
SECTION 8. NO RIGHTS AS A SHAREHOLDER. Nothing contained in this
Warrant shall be construed as conferring upon the Holder the right to vote or to
receive dividends or to consent or to receive notice as a shareholder in respect
of any meeting of shareholders for the election of directors of the Company or
any other matter, or any rights whatsoever as a shareholder of the Company.
SECTION 9. REPRESENTATIONS AND WARRANTIES. The Company hereby
represents and warrants to the Holder as follows:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;
(b) The Company has the full corporate power and authority to
execute, deliver and issue this Warrant and to carry out its
obligations hereunder;
(c) The execution, delivery and issuance of this Warrant and
the performance of the obligations hereunder have been duly authorized
by all necessary corporate action on the part of the company and this
warrant has been duly executed and delivered and constitutes the valid
and legally binding obligation of the Company, enforceable against it
in accordance with its terms; and
(d) The Warrant Shares will, when issued pursuant to this
Warrant, be duly authorized and validly issued, fully paid and
nonassessable.
SECTION 10. NOTICES. Any notice pursuant to this Warrant by the Company
or by the Holder shall be in writing and shall be mailed first class, postage
prepaid, or delivered (a) to the Company, at its principal office at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or (b) to the Holder, at its
address as indicated in the books and records of the Company. Either party may
from time to time change the address to which notices to it are to be delivered
or mailed under this Warrant by notice in writing to the other party.
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SECTION 11. SUCCESSORS. All the covenants and provisions of this
Warrant by or for the benefit of the Company or the Holder shall bind and inure
to the benefit of their respective successors and assigns.
SECTION 12. APPLICABLE LAW; ENTIRE AGREEMENT. This Warrant shall be
governed by and construed in accordance with the laws of the State of Delaware
without giving effect to principles of conflict of laws. This Warrant shall be
deemed to be the complete and final expression of the agreement between the
parties with respect to the subject matter hereof.
SECTION 13. CAPTIONS. The captions of the Sections and subsections of
this Warrant have been inserted for convenience only and shall have no
substantive effect.
IN WITNESS WHEREOF, the undersigned has executed this Warrant this
13th day of October, 1998.
GENOMIC SOLUTIONS INC., a Delaware
corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: President and Chief Executive
Officer
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