EXHIBIT 10.15
WARRANT PURCHASE AGREEMENT
This Warrant Purchase Agreement (this "AGREEMENT") is executed this 19 day
of June, 2000, by INFORMAX, INC., a Delaware corporation (the "BORROWER" or the
"COMPANY"), in favor of PNC Bank, National Association, a national banking
association (the "BANK"), in accordance with the terms of that certain Loan
Agreement dated May 6, 1999, between the Company and the Bank, as amended (the
"LOAN AGREEMENT"). In connection with Amendment No. 5 to the Loan Agreement
dated of even date herewith, between the Company and the Bank ("AMENDMENT NO.
5"), the Company has agreed to issue to the Bank warrants (each, a "WARRANT") to
purchase one fully paid and nonassessable share of the non-voting common stock
of the Company, par value [$0.01] per share (the "NON-VOTING COMMON STOCK"), in
an amount equal to (i) 9,000 shares of Non-voting Common Stock; and (ii) if any
amount is outstanding on the Bridge Note on September 19, 2000, 6,000 additional
shares of Non-Voting Common Stock (the "EXERCISE QUANTITY"). The shares of
Non-Voting Common Stock purchasable upon exercise of the Warrants and the
purchase price per Warrant are referred to herein as the "WARRANT SHARES" and
the "EXERCISE PRICE", respectively. Where shares of the common stock of the
Company are referenced herein without a "Non-Voting" prefix, such shares shall
be deemed to encompass both shares of the Company's Non-Voting Common Stock and
shares of the Company's voting common stock, par value $0.01 per share
(collectively, the "Common Stock").
NOW, THEREFORE, in consideration of the foregoing, the covenants and
agreements hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the Company and the Bank agree as follows:
1. GRANT OF WARRANTS. The Company hereby grants to the Bank Warrants to purchase
up to that number of shares which constitute the Exercise Quantity of the
Non-Voting Common Stock on the date of purchase. Each Warrant initially shall be
exercisable for one share of Non-Voting Common Stock. In consideration of the
grant of the Warrants to the Bank, the Bank has paid to the Company $.01 per
Warrant by personal check. The Bank and any subsequent registered holder of a
Warrant (each, a "HOLDER") shall have the rights and obligations set forth in
this Agreement and in the warrant certificate evidencing such Warrant, which
shall be substantially in the form attached hereto as Exhibit A (a "WARRANT
CERTIFICATE").
2. WARRANT CERTIFICATE.
(a) Form of Warrant Certificate. Each Warrant shall be evidenced by a
Warrant Certificate. Each Warrant Certificate shall have such marks of
identification or designation and such legends or endorsements thereon as the
Company deems appropriate, so long as they are not inconsistent with the
provisions of this Agreement, or as are required to comply with any applicable
law, rule or regulation or with any rule or regulation of any stock exchange on
which the Non-Voting Common Stock may from time to time be listed. Each Warrant
Certificate shall entitle the Holder thereof to exercise such number of Warrants
as shall be set forth thereon at the Exercise Price in effect on the date such
Warrant Certificate is delivered by the Company to such
Holder; provided, that the number of Warrants and the Exercise Price shall be
subject to adjustment as provided herein. Each Warrant Certificate shall provide
for a "net issuance option," which will allow the Holder thereof to surrender
some of the Warrants evidenced thereby for cancellation and receive in exchange
for other Warrants evidenced thereby shares of Non-Voting Common Stock, without
the payment of any cash, on the basis of a formula set forth in such Warrant
Certificate.
(b) Signature and Registration.
(i) The Warrant Certificates shall be manually executed on behalf of the
Company by its Chairman of the Board, its President or any Vice President and
shall be manually attested by the Secretary or an Assistant Secretary of the
Company.
(ii) The Company will keep or cause to be kept at its principal office
books for the registration and transfer of the Warrant Certificates issued
hereunder.
(c) Transfer, Split-Up, Combination and Exchange of Warrant Certificates.
Subject to compliance with all applicable laws and the provisions of this
Agreement, at any time prior to the close of business on 2007, [2007] (the
"FINAL EXPIRATION DATE"), any Warrant Certificate or Warrant Certificates may be
transferred, split up, combined or exchanged for another Warrant Certificate or
Warrant Certificates, entitling the Holder or Holders thereof to exercise the
same number of Warrants as the Warrant Certificate or Warrant Certificates
surrendered to the Company by the Holder thereof then entitled such Holder to
exercise. Any Holder desiring to transfer, split up, combine or exchange any
Warrant Certificate or Warrant Certificates shall make such request in writing
delivered to the Company, and shall surrender the Warrant Certificate or Warrant
Certificates to be transferred, split up, combined or exchanged, at the
principal office of the Company. Thereupon the Company shall deliver to the
person or persons entitled thereto a Warrant Certificate or Warrant
Certificates, as the case may be, as so requested.
(d) Subsequent Issuance of Warrant Certificates. Subsequent to their original
issuance, no Warrant Certificates shall be issued except (i) Warrant
Certificates issued upon any transfer, combination, split up or exchange of
Warrant Certificates pursuant to Section 2(c), (ii) Warrant Certificates issued
in replacement or mutilated, destroyed, lost or stolen Warrant Certificates, and
(iii) any Warrant Certificate issued pursuant to Section 3(d) upon the partial
exercise of any Warrant Certificate to evidence the unexercised portion of such
Warrant Certificate.
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3. EXERCISE OF WARRANTS; EXERCISE PRICE.
(a) The Holder of any Warrant Certificate may exercise the Warrants evidenced
thereby in whole or in part by surrendering such Warrant Certificate, with the
form of election to exercise attached thereto duly completed and executed, to
the Company at its principal office, together, to the extent necessary, with
payment of the aggregate Exercise Price for the Warrants being exercised, at or
prior to the close of business on the Final Expiration Date.
(b) The Exercise Price for each Warrant shall initially be $10.00 per share
of Non-Voting Common Stock, which the Company represents and warrants to the
Bank to be the fair market value per share of the Non-Voting Common Stock as of
the date of this Agreement based on the valuation used for the Xxxxx, Xxxx &
Xxxxx acquisition of Borrower's Non-Voting Common Stock. The Exercise Price
shall be subject to adjustment from time to time as provided in Section 6 and
shall be payable in accordance with Section 3(c).
(c) Upon receipt of a Warrant Certificate, with the form of election to
exercise duly completed and executed, accompanied by payment of the aggregate
Exercise Price for the Warrants being exercised, except to the extent that the
Holder thereof has determined to use the net issuance option, and an amount
equal to any applicable transfer taxes required to be paid by such Holder in
accordance with Section 5(c) in cash or by certified check or cashier's check
payable to the order of the Company, the Company shall promptly: (i) requisition
from any transfer agent of the Non-Voting Common Stock or otherwise obtain
certificates for the number of shares of Non-Voting Common Stock being
purchased; (ii) when appropriate, prepare or cause to be prepared a check for
the amount of cash to be paid in lieu of the issuance of a fractional share in
accordance with Section 7; (iii) after receipt of such certificates, cause the
same to be delivered to or upon the order of such Holder, registered in such
name or names as designated by such Holder; and (iv) when appropriate, deliver
such check to or upon the order of such Holder. The Company hereby irrevocably
authorizes each transfer agent of the Non-Voting Common Stock to comply with all
such requests from the Company in accordance with this Section 3(c).
(d) If the Holder of any Warrant Certificate shall exercise less than all the
Warrants evidenced thereby, a new Warrant Certificate evidencing a number of
Warrants equal to the number of Warrants remaining unexercised shall be issued
by the Company to such Holder or to its duly authorized assigns, subject to the
provisions of Section 7.
4. CANCELLATION OF WARRANT CERTIFICATES. All Warrant Certificates surrendered to
the Company for exercise, transfer, split up, combination or exchange shall be
canceled by it, and no Warrant Certificates shall be issued in lieu thereof
except as expressly permitted by the provisions of this Agreement.
5. RESERVATION AND AVAILABILITY OF COMMON STOCK; TAXES.
(a) The Company shall, at all times, reserve and keep available out of its
authorized and unissued shares of Non-Voting Common Stock or out of any shares
of Non-Voting Common
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Stock held in its treasury that number of shars of Non-Voting Common Stock that
will from time to time be sufficient to permit the exercise in full of all
outstanding Warrants.
(b) The Company shall take all such action as may be necessary to ensure that
all shares of Non-Voting Common Stock delivered upon the exercise of any
Warrants shall, at the time of delivery of the certificates for such shares of
Non-Voting Common Stock, be duly authorized, validly issued, fully paid and
nonassessable.
(c) The Company shall pay when due and payable any and all federal and state
transfer taxes and charges (other than any applicable income taxes) that may be
payable in respect of the issuance or delivery of Warrant Certificates or of
certificates for shares of Non-Voting Common Stock receivable upon the exercise
of any Warrants; provided, however, that the Company shall not be required to
pay any tax that may be payable in respect of the issuance and delivery of any
Warrant Certificate or stock certificate registered in a name other than that of
the Holder of the Warrant Certificate that has been surrendered.
6. ADJUSTMENTS.
(a) General. The Exercise Price, the number of outstanding Warrants and the
number and kind of stock or other securities or property purchasable upon
exercise of a Warrant shall be subject to adjustment from time to time pursuant
to the terms of this Section 6.
(b) Dilutive Issuances.
(i) Special Definitions. For purposes of this Section 6, the following
definitions shall apply:
(A) "Additional Shares of Common Stock" shall be mean all shares
of Common Stock issued (or, pursuant to Section 6(b)(iii), deemed to
be issued) by the Company after the Original Issue Date, other than
shares of Common Stock issued or issuable:
(I) upon conversion or exchange of any Convertible
Securities outstanding on the Original Issue Date,
including, but not limited to, any shares issued to or
issuable pursuant to any antidilution protections in
existence on the date hereof that operate in favor of
the Holders of such Convertible Securities;
(II) upon exercise of any Options outstanding on the Original
Issue Date;
(III) as a dividend or distribution pro rata on the
outstanding share of Common Stock;
(IV) as a result of any stock split, combination,
reclassification, exchange or substitution for which an
adjustment is provided in Section 6(c), (d) or (e)
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(V) upon exercise of any Warrants; or
(VI) to employees, officers or directors of, or consultants
or advisors to, the Company or any subsidiary of the
Company pursuant to a stock grant, stock option plan,
employee stock purchase plan, restricted stock plan or
any other similar plan or agreement, which grant, plan
or agreement was approved by the Board of Directors of
the Company (the "BOARD") prior to its implementation.
(B) "Convertible Securities" shall mean any evidences of
indebtedness, shares or other securities directly or indirectly
convertible into or exchangeable for shares of Common Stock.
(C) "Option" shall mean any right, option or warrant to subscribe
for, purchase or otherwise acquire shares of Common Stock or
Convertible Securities, excluding rights, options or warrants
described in clause (V) or (VI) of Section 6(b)(i)(A).
(D) "Original Issue Date" shall mean the date of this Agreement.
(ii) Issuance of Securities Deemed to be an Issuance of Additional
Shares of Common Stock. If at any time after the Original Issue Date the
Company issues any Options or Convertible Securities or fixes a record date
for the determination of holders of any class of securities entitled to
receive any Options or Convertible Securities, then the maximum number of
shares of Common Stock (as set forth in the instruments relating thereto,
without regard to any provision thereof that permits or requires a
subsequent adjustment of such number) issuable upon the exercise of such
Options or, in the case of Convertible Securities and Options therefor, the
conversion or exchange of such Convertible Securities shall be deemed to be
Additional Shares of Common Stock issued as of the time of such issuance
or, in case a record date has been fixed, as of the close of business on
such record date. In any case in which Additional Shares of Common Stock
are deemed to have been issued in accordance with the preceding sentence:
(A) No further adjustment in the Exercise Price shall be made
solely on account of the subsequent issuance of Convertible Securities
or shares of Common Stock upon the exercise of any such Options or
upon the conversion or exchange of any such Convertible Securities
(including Convertible Securities issued upon exercise of Options);
(B) If any such Options or Convertible Securities by their terms
provide for any change in the amount or kind of consideration payable
to the Company upon the exercise, conversion or exchange thereof,
whether on account of the passage of time or for any other reason,
then the Exercise Price computed based upon the original issuance
thereof (or upon the occurrence of a record date with respect thereto)
and as subsequently adjusted for other reasons shall, upon any such
change becoming effective, be recomputed based on the number of such
Options or Convertible Securities then outstanding to reflect such
change;
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(C) If the number of shares of Common Stock issuable upon the
exercise, conversion or exchange of any such Options or Convertible
Securities changes, including, but not limited to, any change
resulting from the operation of the anti-dilution provisions thereof,
then the Exercise Price computed based upon the original issuance
thereof (or upon the occurrence of a record date with respect thereto)
and as subsequently adjusted for other reasons shall, upon any such
change becoming effective, be recomputed based on the number of such
Options or Convertible Securities then outstanding to reflect such
change;
(D) If any such Options or the conversion or exchange privileges
represented by any such Convertible Securities expire or terminate not
having been exercised, then the Exercise Price computed based upon the
original issuance thereof (or upon the occurrence of a record date
with respect thereto) and as subsequently adjusted for other reasons
shall, upon any such expiration or termination becoming effective, be
recomputed based on the number of such Options or Convertible
Securities then outstanding to reflect such expiration or termination;
and
(E) No readjustment pursuant to Clause (B), (C) or (D) above
shall have the effect of increasing the Exercise Price to an amount
that exceeds the lower of (x) the Exercise Price on the original
adjustment date prior to the original adjustment thereof on account of
such deemed issuance or (y) the Exercise Price that would have
resulted from any other issuances or deemed issuances of Additional
Shares of Common Stock between such original adjustment date and any
such readjustment date without taking into account such original
adjustment.
In the event that the Company, after the Original Issue Date, amends the
terms of any Options or Convertible Securities (whether such Options or
Convertible Securities were outstanding on the Original Issue Date or were
issued after the Original Issue Date), then such Options or Convertible
Securities, as so amended, shall be deemed to have been issued after the
Original Issue Date and the provisions of this Section 6(b) shall apply to
them as of the date of such amendment.
(iii) Adjustment of Exercise Price Upon Issuance of Additional Shares
of Common Stock. In the event that the Company, after the Original Issue
Date, issues any Additional Shares of Common Stock (including Additional
Shares of Common Stock deemed to be issued pursuant to Section 6(b)(ii)),
without consideration or for a consideration per share less than the
Exercise Price in effect on the date of and immediately prior to such
issuance, then such Exercise Price shall be reduced, concurrently with such
issuance, to a price (calculated to the nearest cent) determined by
multiplying such Exercise Price by a fraction, (A) the numerator of which
shall be (I) the number of shares of Common Stock outstanding immediately
prior to such issuance, plus (II) the number of shares of Common Stock that
the aggregate consideration received or to be received by the Company for
the total number of Additional Shares of Common Stock so issued would
purchase at such Exercise Price; and (B) the denominator of which
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shall be (I) the number of shares of Common Stock outstanding immediately
prior to such issuance, plus (II) the number of such Additional Shares of
Common Stock so issued. For purposes of this Section 6(b)(iii), (y) if a
record date is set for the issuance or deemed issuance of any Additional
Shares of Common Stock, then the close of business on such record date
shall be treated as the time of issuance of such Additional Shares of
Common Stock; and (z) all shares of Common Stock issuable upon exercise,
conversion or exchange or Options or Convertible Securities (including
Convertible Securities issuable upon exercise of Options) outstanding
immediately prior to such issuance shall be deemed to be outstanding (other
than any shares excludable from the definition of "Additional Shares of
Common Stock" in accordance with Section 6(b)(i)(A)(V) or (VI)).
(iv) Determination of Consideration. For purposes of this Section
6(b), the aggregate consideration received by the Company for the issuance
of any Additional Shares of Common Stock shall be computed as follows:
(A) Cash and Property. Such considerations shall:
(I) insofar as it consists of cash, be computed as the
aggregate of cash received by the Company;
(II) insofar as it consists of services or property other
than cash, be computed as the fair market value thereof
at the time of such issuance, as determined in good
faith by the Board; and
(III) in the event that Additional Shares of Common Stock are
issued together with other shares or securities or other
assets for a combined consideration, be the pro rata
portion of such consideration so received, computed as
provided in clauses (I) and (II) above, as determined in
good faith by the Board.
(B) Options and Convertible Securities. The consideration per
share received by the Company for Additional Shares of Common Stock
deemed to have been issued pursuant to Section 6(b)(ii), relating to
Options and Convertible Securities, shall be determined by dividing
(I) the total amount, if any, received or receivable by the
Company as consideration for the issuance of such
Options or Convertible Securities, plus the minimum
aggregate amount of additional consideration (as set
forth in the instruments relating thereto, without
regard to any provision thereof that permits or requires
a subsequent adjustment of such consideration) payable
to the Company upon the exercise of such Options or in
the conversion or exchange of such Convertible
Securities or, in the case of Options for Convertible
Securities, the exercise of such Options for Convertible
Securities and the conversion or exchange of such
Convertible Securities, by
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(II) the maximum number of shares of Common Stock (as set
forth in the instruments relating thereto, without
regard to any provision thereof that permits or requires
a subsequent adjustment of such number) issuable upon
the exercise of such Options or the conversion or
exchange of such Convertible Securities or, in the case
of Options for Convertible Securities, the exercise of
such Options for Convertible Securities and the
conversion or exchange of such Convertible Securities.
(v) Termination of Adjustment Rights. All rights relating to
adjustment of the Exercise Price granted pursuant to this Section 6(b)
shall terminate and be of no further force or effect upon the earlier of
(i) an Automatic Conversion (as defined in the Certificate of Designations,
Powers, Preferences and Rights of the Series A Preferred Stock of the
Company, the "Certificate of Designation") of the Company's Series A
Preferred Stock, or (ii) any time at which no shares of the Company's
Series A Preferred Stock are outstanding.
(c) Adjustment for Stock Splits and Combinations. If the Company, at any
time or from time to time, after the Original Issue Date effects a subdivision
of the outstanding Non-Voting Common Stock, the Exercise Price in effect
immediately before that subdivision shall be proportionately decreased. If the
Company, at any time or from time to time, after the Original Issue Date
combines the outstanding shares of Non-Voting Common Stock, the Exercise Price
in effect immediately before the combination shall be proportionately increased.
Any adjustment in accordance with this Section 6(c) shall become effective at
the close of business on the date that the related subdivision or combination
becomes effective.
(d) Adjustment for Reorganization, Reclassification or Substitution. If the
shares of Non-Voting Common Stock issuable upon exercise of the Warrants are
changed into the same or a different number of shares of any class or classes of
stock of the Company or other securities or property of the Company, whether by
capital reorganization, reclassification or otherwise (other than a subdivision
or combination of shares provided for above in Section 6(e) or a stock dividend,
merger, consolidation, share exchange or sale of assets provided for below in
Section 6(e)), then, from and after each such event, each Holder of a Warrant
shall have the right to exercise such Warant for the amount and kind of shares
of stock and other securities and property receivable upon such reorganization,
reclassification or other change by a holder of the number of shares of
Non-Voting Common Stock for which such Warrant would have been exercisable
immediately prior to such reorganization, reclassification or change, subject to
further adjustment as provided herein.
(e) Adjustment for Merger, Consolidation, etc. In case of any merger,
consolidation or share exchange of the Compnay with or into another person, a
sale of all or substantially all of the assets of the Company to another person
or any other transaction involving the Company and another person having a
similar effect (other than a subdivision or combination of shares or
reorganization, reclassification or other transaction provided for above or a
stock dividend provided for below), then, from and after each such event, each
Holder of a Warrant shall have the right to exercise such Warrant for the amount
and kind of shares of stock and other securities an dproperty receivable upon
such merger, consolidation, share exchange, sale or other
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transaction by a holder of the number or shares of Common stock for which such
Warrant would have been exercisable immediately prior to such merger,
consolidation, share exchange, sale or other transaction, subject to further
adjustment as provided herein. In each such case, prior to and as a condition
to the consummation of any such transaction, appropriate adjustments (as
determined in good faith by the Board) shall be made in the provision of this
Section 6 with respect to the rights and interests of the Holders of the
Warrants, to the end that these provisions shall thereafter be applicable, in as
equivalent a manner as reasonably can be achieved, in relation to any shares of
stock, other securities or property thereafter deliverable upon exercise of the
Warrants.
(f) Adjustment for Certain Dividends and Distributions. If the Company, at
any time or from time to time, after the Original Issue Date makes or issues, or
fixes a record date for the determination of holders of shares of Non-Voting
Common Stock entitled to receive, a dividend or other distribution payable in
additional shares of Non-Voting Common Stock, then, and in each such event, the
Exercise Price in effect from and after the time of such issuance or, in the
event such a record date has been fixed, the close of business on such record
date shall be equal to the producer of the Exercise Price in effect immediately
prior to such time multiplied by a fraction:
(i) the numerator of which shall be the total number of shares of
Non-Voting Common Stock issued and outstanding or issuable upon exercise of
any Options or upon conversion or exchange of any Convertible Securities
issued and outstanding immediately prior to the time of such issuance or
the close of business on such record date; and
(ii) the denominator of which shall be the total number of shares of
Non-Voting Common Stock issued and outstanding or issuable upon exercise of
any Options or upon conversion or exchange of any Convertible Securities
issued and outstanding immediately prior to the time of such issuance or
the close of business on such record date, plus the number of shares of
Non-Voting Common Stock issued or issuable in payment of such dividend or
distribution; provided, however, that if such a record date has been fixed
and such dividend is not fully paid or such distribution is not fully made
on the date set therefore, then the Exercise Price then in effect shall be
appropriately recalculated as of the close of business on such record date.
(g) Adjustments for Other Dividends and Distributions. If the Company, at
any time or from time to time, after the Original Issue Date makes or issues, or
fixes a record date for the determination of holders of shares of Common Stock
entitled to receive, a dividend or other distribution payable in securities of
the Company or any subsidiary of the Company other than shares of Common Stock,
then, and in each such event, appropriate provision shall be made so that each
Holder of a Warrant exercised after such issuance or such record date, as the
case may be, shall receive, in addition to the shares of Common Stock otherwise
receivable upon such exercise, the amount of securities and other property, if
any, that would have been received by such Holder had such Warrant been
exercised immediately prior to such issuance or the close of business on such
record date and the securities received upon such exercise been retained from
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the date of such issuance or such record date to and including the actual
exercise date of such Warrant.
(h) Adjustment in Number of Warrants. When any adjustment is required to be
made in the Exercise Price pursuant to this Section 6, then the number of
outstanding Warrants shall be simultaneously adjusted to equal the number
determined by dividing (i) the product of the number of Warrants outstanding
immediately prior to such adjustment multiplied by the Exercise Price in effect
immediately prior to such adjustment, by (ii) the Exercise Price in effect
immediately after such adjustment.
(i) Certificate as to Adjustment. In each case of an adjustment or
readjustment of the Exercise Price pursuant to this Section 6, the Company, at
its expense, shall promptly compute such adjustment or readjustment in
accordance with the provisions hereof and prepare a certificate showing such
adjustment or readjustment, and shall mail such certificate, by first class
mail, postage prepaid, to each registered Holder of a Warrant a certificate
setting forth such adjustment and the related adjustment in the number of
outstanding Warrants and describing in reasonable detail the facts upon which
such adjustments are based. The Company shall, upon the written request at any
time of any Holder of a Warrant, furnish or cause to be furnished to such Holder
a certificate setting forth (i) all such adjustments since the Original Issue
Date, (ii) the Exercise Price then in effect, and (iii) the number of shares of
Common Stock and the amount, if any, of other securities or property that would
then be receivable upon exercise of a Warrant.
7. FRACTIONAL SHARES.
(a) The Company shall not be required to issue fractional shares of
Non-Voting Common Stock upon the exercise of any Warrants or to distribute
certificates that evidence fractional shares of Common Stock. In lieu of issuing
a fractional share of Non-Voting Common Stock, the Company shall pay to the
Holder of any Warrants at the time such Warrants are exercised an amount in cash
equal to the same fraction of the current marker value of one share of Common
Stock on the date that such Warrants are exercised.
(b) For purposes hereof, the current market value of a share of Common
Stock (or any other security) shall be the closing price per share of Common
Stock (or the standard unit for such other security) on the date of
determination. Such closing price shall be:
(i) the last sale price, regular way, or, in case no such sale takes
place, the average of the closing bid and asked prices on the date of
determination, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted
to trading on the New York Stock Exchange; or
(ii) if the Common Stock (or such other class or series of securities)
is not listed or admitted to trading on the New York Stock Exchange, the
last sale price, regular way, or, in case no such sale takes place, the
average of the closing bid and asked prices on such day, in either case as
reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the principal
national
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securities exchange on which the Common Stock (or such other class or
series of securities) is listed or admitted to trading; or
(iii) if the Common Stock (or such other class or series of
securities) is not listed or admitted to trading on any national securities
exchange, the last quoted sale price or, if not so quoted, the average of
the high bid and low asked prices on such day in the over-the-counter
market, as reported by the National Association of Securities Dealers, Inc.
Automated Quotations System or such other system then in use by such
organization; or
(iv) if the Common Stock (or such other class or series of securities)
is not listed or admitted to trading on any national securities exchange
and prices therefor are not reported by such organization, the average of
the closing bid and asked prices as furnished by a professional market
maker making a market in the Common Stock (or such other class or series of
securities) selected by the Board; or
(v) if the Common Stock (or such other class or series of securities)
is not so listed or admitted to trading and prices therefor are not so
reported or quoted, the fair market value per share (or other appropriate
unit) as determined in good faith by the Board, whose determination shall
be conclusive and binding on all Holders of Warrants.
8. PIGGYBACK REGISTRATION.
(a) If at any time the Company determines to file a registration statement
(including pursuant to the request of any security holder of the Company which
has the right to require the Company to file such a registration statement)
under the Securities Act of 1933, as amended (the "1933 ACT"), to register an
offering of shares of Common Stock, it must give to the Holders written notice
of such determination at least 15 days prior to each such filing. If, within 15
days after receipt of any such notice, any Holder so requests in writing, the
Company must include in such registration statement all of such Holder's shares
of Common Stock purchasable or purchased from time to time upon exercise of such
Holder's Warrants that such Holder requests to be so included. All such Warrant
Shares, together with any other shares of Common Stock the holders of which have
the right to require the Company to include such shares in any such registration
statement, are sometimes referred to herein as the "REGISTRABLE SECURITIES."
(b) Any Registrable Securities of a Holder that are to be included in an
underwritten public offering pursuant to this Section 8 shall be offered and
sold upon such terms as the managing underwriters thereof determine; provided,
however, that any such terms must be the same as the terms to which any other
holder of Registrable Securities will be bound and must not be substantially
different from the terms pursuant to which the Company and any other security
holder selling shares of Common Stock in such offering are selling such shares.
The managing underwriters may condition any Holder's participation in such an
underwritten public offering upon such Holder's execution of an underwriting
agreement containing customary terms and conditions. If the managing
underwriters for an underwritten public offering determine that the number of
shares of Common Stock proposed to be sold in such offering would adversely
affect the marketing of the shares of Common Stock proposed to be sold in such
offering would adversely affect the marketing of the shares of Common Stock to
be sold by the Company therein or by the
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person or persons who exercised their right to require the Company to register
such offering under the 1933 Act, then the number of shares that may be included
in the underwriting pursuant to this Section 8(b) shall be allocated, first, to
the Company and Preferred Holders as provided by the terms of the Investor
Rights Agreement by and between the Company and certain holders of the Company's
Series A Preferred Stock, dated May 22, 1999; and, second, to all other
shareholders participating in such underwritten offering on a pro rata basis.
If any Holder which has elected to participate in an underwritten public
offering determines that it does not approve of the terms of any such offering
prior to the effectiveness of the related registration statement under the 1933
Act, then such Holder may elect to withdraw therefrom by giving written notice
of such withdrawal to the Company and the managing underwriters delivered at
least ten (10) business days prior to the effective date of the registration
statement. Any Registrable Securities excluded or withdrawn from such
underwriting shall be excluded and withdrawn from the registration.
(c) All registration rights granted under this Section 8 shall terminate
and be of no further force or effect from and after the fifth anniversary of the
effective date under the 1933 Act of the registration statement for the
Company's first firm commitment underwritten public offering of shares of Common
Stock (the "INITIAL OFFERING"). A Holder shall not be entitled to exercise its
registration rights under this Section 8 at any time that (i)(A) the Initial
Offering has been completed; (B) the Company is subject to and is in compliance
with the applicable reporting requirements under the Securities Exchange Act of
1934, as amended; and (C) all Warrant Shares beneficially owned by such Holder
may be sold pursuant to Rule 144(k) under the 1933 Act, and (ii) all Warrant
Shares held by and issuable to such Holder (and its affiliates, partners, former
partners, members and former members) may be sold under Rule 144 during any
ninety (90) day period. If at any time the Warrants are exercisable, in whole or
in part, for any securities other than shares of Non-Voting Common Stock then
the provisions of this Section 8 shall apply equally to the registration of any
offering of that class or series of securities.
(d) In connection with any offering of Warrant Shares pursuant to the
provisions of this Section, Company and Holder shall be obligated to indemnify
each other (and the officers, directors and controlling Person thereof) pursuant
to the terms of Section 2.9 (entitled "Indemnification") of the Non-Preferred
Holder Rights Agreement by and between the Company and certain of its investors,
executed March 29, 2000.
(e) Notwithstanding anything to the contrary herein, the Company shall not
be obligated to register any Warrants or Warrant Certificates pursuant to this
Agreement.
(f) Notwithstanding anything to the contrary set forth herein:
(i) The provisions of this Section 8 shall not apply to any
registration statement that is being filed to register the offering of (A)
securities being offered in the Initial Offering, (B) securities to be
issued solely in connection with the acquisition of any entity or business,
(C) securities issuable solely pursuant to employee benefit plans
(including pursuant to the exercise of stock options), or (D) securities
the offering of
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which is being registered on a registration form that does not permit the
registration of the offering of securities for security holders.
(ii) The Company may withdraw any registration statement referred to
in this Section 8 in accordance with the provisions of the 1933 Act without
thereby incurring any liability to any Holder of Warrants.
9. AGREEMENT OF WARRANT HOLDERS. Every Holder of a Warrant, by accepting the
same, acknowledges and agrees with the Company and with every other Holder of a
Warrant that:
(a) Each Warrant is transferable only by the transfer of the Warrant
Certificate that evidences such Warrant upon the registry books of the Company
which shall be accomplished by surrendering such Warrant Certificate for
transfer at the Company's principal office, duly endorsed or accompanied by a
proper instrument of transfer; and
(b) The Company may deem and treat the person in whose name a Warrant
Certificate is registered as the absolute owner thereof and of the Warrants
evidenced thereby for all purposes whatsoever, notwithstanding any notations of
ownership or writing on such Warrant Certificate made by anyone other than the
Company or any other notice to the contrary.
10. RESTRICTIONS ON TRANSFER.
(a) The Warrants and the Warrant Shares or the other securities issuable
upon exercise of the Warrants may not be sold or otherwise transferred unless
either (i) such transaction first shall have been registered under the 1933 Act
and any applicable state or other securities law or (ii) the Company first shall
have been furnished with an opinion of legal counsel or other evidence, in
either case reasonably satisfactory to the Company, to the effect that such
transaction is exempt from the registration requirements of the 1933 Act and any
applicable state or other securities law.
(b) The Holder of the Warrant, by acceptance hereof, acknowledges that this
Warrant, the shares of Non-Voting Common Stock to be issued upon exercise hereof
are being acquired solely for the Holder's own account and not a nominee for any
other party, and for investment and that the Holder will not offer, sell or
otherwise dispose of the Warrant, the shares of Non-Voting Common Stock to be
issued upon exercise hereof except under circumstances that will not result in a
violation of applicable federal and state securities laws. Further, the Holder
shall comply with such additional reasonable requests of the Company necessary
to enable the shares of Non-Voting Common Stock to be issued upon exercise
hereof in compliance with applicable state and federal securities laws.
(c) The Holder of this Warrant agrees not to make any disposition of all or
any portion of the Warrant or of the shares of Non-Voting Common Stock to be
issued upon exercise hereof to any Competitor of the Company. For the purposes
of this Agreement, the term "COMPETITOR" means any person, partnership, limited
liability company, corporation or other entity (other than the Company) which is
engaged as its principal line of business, in the Company's Business. For the
purposes of this Agreement, the term "COMPANY'S BUSINESS"
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means the business of the development and licensing of pharma-informatic
software tools of the type developed by the Company.
(d) Each certificate evidencing securities issuable upon exercise of a
Warrant shall bear a legend substantially in the following form:
THE SECURITIES EVIDENCED HEREBY WERE ACQUIRED IN A TRANSACTION THAT WAS NOT
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE OR OTHER SECURITIES LAW. THE HOLDER HEREOF, BY
ACQUIRING THIS INSTRUMENT, AGREES FOR THE BENEFIT OF INFORMAX, INC. (THE
"COMPANY") THAT THE SECURITIES EVIDENCED HEREBY MAY BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO AN AVAILABLE EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT, OR (2) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT; AND (B) PURSUANT TO AN
AVAILABLE EXEMPTION OR EFFECTIVE REGISTRATION UNDER ANY APPLICABLE STATE OR
OTHER SECURITIES LAW.
Notwithstanding the foregoing, such legend shall not be placed on
any such certificate or shall be removed from any such certificate (i)
at the request of the holder thereof, if such holder shall be entitled
to sell the securities to be evidenced or evidenced thereby in
accordance with Rule 144(k) under the 1933 Act, or (ii) if the holder
thereof is selling the securities to be evidenced thereby in a
registered public offering in accordance with Section 8.
11. WARRANT CERTIFICATE HOLDER NOT DEEMED A STOCKHOLDER. No Holder of any
Warrant, as such, shall be entitled to vote or receive dividends or shall be
deemed for any other purpose the holder of the shares of Common Stock or other
securities which may at any time be issuable upon the exercise of such Warrant.
Nothing contained herein or in any Warrant Certificate shall be construed to
confer upon the Holder of any Warrant, as such, any of the rights of a
stockholder of the Company, including any right to vote for the election of
directors or upon any other matter submitted to stockholders of the Company at
any meeting thereof, to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders, except as
otherwise expressly provided herein or therein or until such Warrant has been
exercised in accordance with the provisions hereof and thereof.
12. ISSUANCE OF NEW WARRANT CERTIFICATES. Notwithstanding anything to the
contrary set forth herein or in the Warrant Certificates, the Company may, at
its option, issue new Warrant Certificates evidencing the Warrants, in such form
as may be approved by the Board, to reflect any adjustment or change in the
Exercise Price and the number or kind of stock or other securities or property
purchasable upon exercise of the Warrants.
-14-
13. AMENDMENT. Except as otherwise expressly provided in this Agreement, no
modification or amendment hereof will be effective unless made in a writing
signed by appropriate officers of the parties hereto. Notwithstanding the
foregoing, any term of this Agreement may be amended with the written consent of
the Company and Persons holding a majority of the Warrants and Warrant Shares
and shall automatically apply to any Holder of Warrant Shares whether or not
such Holder consented to such Amendment.
14. CAPITALIZED TERMS. Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to them in the Loan Agreement.
15. SUCCESSORS AND ASSIGNS. The terms of this Agreement shall be binding upon
the Company and the Bank and their respective permitted successors and assigns.
16. INTEGRATION. This Agreement and the Warrant Certificates represent the
entire agreement of the Company and the Bank with respect to the subject matter
hereof and thereof, and there are no promises, undertakings, representations or
warranties by either relative to the subject matter hereof and thereof not
expressly set forth or referred to herein or in the Warrant Certificates.
17. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
THIS AGREEMENT AND ALL RELATED INSTRUMENTS AND AGREEMENTS SHALL BE DEEMED
TO BE CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN THE COMMONWEALTH OF
PENNSYLVANIA, AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, AND SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA
(WITHOUT GIVING EFFECT TO ANY PROVISIONS THEREOF CONCERNING CHOICE OF LAW)
AND THE UNITED STATES OF AMERICA. THE FEDERAL COURTS AND COURTS OF
PENNSYLVANIA LOCATED IN ALLEGHENY COUNTY, PENNSYLVANIA SHALL HAVE EXCLUSIVE
JURISDICATION OVER ANY PROCEEDINGS IN CONNECTION HEREWITH AND THEREWITH.
EACH OF THE BANK AND THE COMPANY HEREBY WAIVES ANY RIGHT THAT IT MAY HAVE
TO A TRIAL BY JURY OF ANY DISPUTE (WHETHER A CLAIM IN TORT, CONTRACT,
EQUITY OR OTHERWISE) ARISING UNDER OR RELATING TO THIS AGREEMENT OR ANY
RELATED MATTERS, AND ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING
WITHOUT A JURY.
[Signature Page to Follow]
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Witness the due execution of this Agreement as of the date first above
written.
ATTEST: INFORMAX, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxx Xxxxxxxxx
----------------------------- ----------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxx Xxxxxxxxx
--------------------------- --------------------------
Title: CFO Title: CEO/Chairman
-------------------------- -------------------------
PNC BANK,
NATIONAL ASSOCIATION
By: /s/ Xxxxxxxxx Xxxxxxx
----------------------------
Name: Xxxxxxxxx Xxxxxxx
--------------------------
Title: Managing Director
-------------------------
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