The securities represented hereby have not been registered under the
Securities Act of 1933, as amended, or any state securities laws and
neither the securities nor any interest therein may be offered, sold,
transferred, pledged or otherwise disposed of except pursuant to an
effective registration statement under such Act and such laws or an
exemption from registration under such Act and such laws which, in the
opinion of counsel for the holder, which counsel and opinion are
reasonably satisfactory to counsel for this corporation, is available.
SERIES C WARRANT AGREEMENT
This Agreement (the "AGREEMENT") dated December 28, 1998 between
SeraCare, Inc., a Delaware corporation (the "COMPANY" and the "WARRANT
AGENT") and those individuals and entities purchasing Class C Convertible
Preferred Stock in the aggregate amount of up to $2,500,000.00 (the
"Convertible Preferred") from the Company (the "Purchasers").
W I T N E S S E T H :
WHEREAS, the Company proposes to issue warrants to purchase shares of
the common stock of the Company, $.001 par value (the "Common Stock"), such
right to be evidenced by a "Series C Warrant", with the Series C Warrants
being collectively referred to herein as the "Series C Warrants" or
"Warrants" as additional consideration;
WHEREAS, the Company anticipates its issuance of Series C Warrants to
purchase up to 312,500 shares of Common Stock (such shares to be received
upon exercise of the Series C Warrants are referred to herein as the "WARRANT
SHARES");
WHEREAS, the Company desires to provide for the issuance of certificates
representing the Series C Warrants (a "Series C Warrant Certificate" or
collectively the "Series C Warrant Certificates");
WHEREAS, the Company desires to act as its own warrant agent in
connection with the issuance, transfer and exchange of Series C Warrant
Certificates and the exercise of the Series C Warrants;
NOW, THEREFORE, in consideration of the above and foregoing premises and
the mutual promises and agreements hereinafter set forth, it is agreed that:
1. SERIES C WARRANT CERTIFICATES.
(a) Each Series C Warrant shall entitle the holder (the
"Registered Holder," or, in the aggregate, the "Registered Holders") in whose
name the certificate shall be registered on the books maintained by the
Company to purchase one (1) share of Common Stock on the exercise thereof,
subject to modification and adjustment as provided in Section 9 hereof.
Series C Warrant Certificates shall be executed by the Company's Chairman,
President or Executive Vice President and attested to by the Company's
Secretary. The Series C Warrant Certificates shall be distributed to the
Purchasers concurrently with the tender by the Purchasers of the purchase
price of the Convertible Preferred.
(b) Subject to the provisions of Sections 3, 5, and 7 hereof, the
Company shall deliver Series C Warrant Certificates in required whole number
denominations to Registered Holders in connection with any transfer or
exchange permitted under this Agreement. Except as provided in Section 7
hereof, no certificates shall be issued except (i) certificates initially
issued hereunder, (ii) certificates issued on or after their initial issuance
date upon the exercise of any Warrant to evidence the unexercised Series C
Warrants held by the exercising Registered Holder and (iii) Series C Warrant
certificates issued after their initial issuance date, upon any transfer or
exchange of certificates or replacements of lost or mutilated certificates.
2. FORM AND EXECUTION OF SERIES C WARRANT CERTIFICATES.
(a) The Series C Warrant certificates shall be dated the date of
their issuance, whether on initial transfer or exchange or in lieu of
mutilated, lost, stolen or destroyed certificates. The form of Series C
Warrant certificate is annexed hereto as "Exhibit A."
(b) Each Series C Warrant certificate shall be numbered serially
bearing "WC" as an initial designation, and subsequent to this designation
the serial numbering of the Series C Warrant certificate should be sequential.
(c) The Series C Warrant Certificates shall be manually signed on
behalf of the Company by a proper officer thereof and shall not be valid for
any purpose unless so signed. In the event any officer of the Company who
executed certificates shall cease to be an officer of the Company such
certificates may be issued and delivered by the Company or transferred by the
Registered Holders with the same force and effect as though the person who
signed such certificate had not ceased to be an officer of the Company; and
any certificate signed on behalf of the Company by any person, who at the
actual date of the execution of such certificate was a proper officer of the
Company, shall be proper notwithstanding that at the date of
execution of this Agreement any such person was not such an officer.
3. EXERCISE.
(a) Subject to the provisions of Sections 8 and 9 hereof, the
Series C Warrants, as they may be adjusted as set forth herein, may be
exercised at a price (the "WARRANT EXERCISE PRICE") of $4.50 per share of
Common Stock subject to adjustment, in whole or in part at any time during
the period commencing on the date hereof and (the "WARRANT EXERCISE PERIOD")
terminating on the date which is the later of (i) five years from the date
hereof and (ii) that date on which a registration statement relating to the
shares underlying the Series C Warrants has remained in effect for an
aggregate of two years (the "WARRANT EXPIRATION DATE"), unless extended by a
majority vote of the Board of Directors for such length of time as they, in
their sole discretion, deem reasonable and necessary).
(b) Each Series C Warrant shall be deemed to have been exercised
immediately prior to the close of business on the date ("EXERCISE DATE") of
the surrender to the Company for exercise of the Series C Warrant
certificate. The exercise form shall be executed by the Warrant Holder
thereof or his attorney duly authorized in writing and shall be delivered
together with payment to the Company at its corporate offices located at 0000
Xxxxxxx Xxxx Xxxx, Xxxxx 0000, Xxx Xxxxxxx, XX. 00000 (the "CORPORATE
OFFICE"), or at any such other office or agency as the Company may designate,
in cash or by official bank or certified check, of an amount equal to the
aggregate Exercise Price, in lawful money of the United States of America.
(c) Cashless Conversion: On or after that date which is one (1)
year following the date of funding, to the extent that such Series C Warrants
have not been redeemed or exercised, the Warrant represented by this
certificate (or any portion hereof) may, at the election of the Holder, be
converted into the nearest whole number of shares of Common Stock equal to
(a) the product of (i) the number of shares then elected to be converted and
issued under this Warrant and (ii) the excess, if any, of (A) the average
closing Market Price Per Share for the 5 day period preceding the date of
conversion (as determined pursuant to Section 15 below) with respect to the
date of conversion over (B) the Exercise Price in effect on the business day
next preceding the date of conversion, divided by (b) the average closing
Market Price Per Share for the 5 day period preceding the date of conversion
(as determined pursuant to Section 15 below).
(d) Unless Warrant Shares may not be issued under applicable law,
the person entitled to receive the number of Warrant Shares deliverable on
exercise shall be treated for all purposes as the holder of such Warrant
Shares as of the close of business on the Exercise Date. The Company shall
not be
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obligated to issue any fractional share interest in Warrant Shares issuable
or deliverable on the exercise of any Series C Warrant or scrip or cash
therefore and such fractional shares shall be of no value whatsoever.
(e) Within fifteen days after the Exercise Date and in any event
prior to the Warrant Expiration Date, the Company, at its own expense, shall
cause to be issued and delivered to the person or persons entitled to receive
the same, a certificate or certificates in the name requested by the
Registered Holder for the number of Warrant Shares deliverable on such
exercise. No adjustment shall be made in respect of cash dividends on Warrant
Shares delivered on exercise of any Series C Warrant. All shares of Common
Stock delivered upon the exercise of the Series C Warrants shall be validly
issued, fully paid and non-assessable. Any Series C Warrants redelivered to
the Registered Holder in the event of the exercise of less than all of the
Series C Warrants pertaining to a surrendered Series C Warrant certificate,
shall be validly issued, fully paid and non-assessable.
(f) The Series C Warrants shall not entitle the holder thereof to
any of the rights of shareholders or to any dividend declared on the Common
Stock unless such holder or holders shall have exercised the Series C
Warrants prior to the record date fixed by the Board of Directors for the
determination of holders of Common Stock entitled to such dividends or other
rights.
4. REGISTRATION RIGHTS.
(a) Mandatory Registration:
(i) The Company will use its best efforts to file
with the Securities and Exchange Commission (the "COMMISSION") and to
cause to become effective no later than that date which is 90 days
from the closing of the funding (such day is referred to herein as
the "EFFECTIVE DATE"), an amendment to the S-3 registration statement
(the "AMENDED REGISTRATION STATEMENT") under the Act for the offering
and sale of the Warrant Shares, and, further, the Company shall use
its best efforts to keep such Amended Registration Statement
effective for the 24 months after the earlier of(i) the exercise in
full of all Warrants by the Holders and (ii) the redemption of all
Warrants issued to the Holders by the Company. But in any event, with
respect to the Warrant Shares, once the Warrant Shares no longer
require an effective Registration Statement in order for such Warrant
Shares to be lawfully traded under the rules and regulations of The
Securities Act of 1933, as amended ("The Act") or the Warrants
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issued to the Holders have expired, the Company shall no
longer be obligated to maintain such registration. The period during
which the Initial Registration Statement remains effective is
hereinafter referred to as the "INITIAL REGISTRATION PERIOD."
(ii) The Company further agrees, if necessary, to
supplement or make amendments to the Amended Registration Statement
and any prospectus contained therein, if required by the Amended
Registration Statement form utilized by the Company or by the
instructions applicable to such registration form or by the Act or
the rules and regulations thereunder, and the Company agrees to
furnish copies of such Amended Registration Statement, prospectus,
supplement or amendment prior to its being used and/or filed with
the Commission to the record holders of the Series C Warrants whose
Warrant Shares are included in the Amended Registration Statement.
(b) Each time that the Company shall propose the registration
under the Act of any shares of Common Stock of the Company (other than
pursuant to registration under form S-8 or S-4 or successor forms thereto),
notice of such proposed registration stating the total number of shares
proposed to be the subject of such registration shall be given to the record
owners of the Warrants. Within 30 days of receipt of notice from the Company,
the holder must notify the Company in writing of its election to participate
in such registration, indicating the number of Warrant Shares to be
registered. The Company will include and maintain the inclusion of such
Warrant Shares in any registration statement filed with the Commission with
regard to such proposed registration the number of shares underlying the
Series C Warrants specified in writing by any such record owners to it within
30 days after receipt of said notice. Once such a registration statement is
effective, the Company shall maintain effectiveness for a period of one year.
(c) All Registration Expenses incurred in connection with the
offering of securities of the Company pursuant to any registration statement
filed pursuant to this Section, whether or not such registration statement
becomes effective under the Act, shall be borne by the Company, except that
all underwriting discounts and commissions shall be borne by the record
owners.
(d) The piggyback registration rights provided in this Section may
be exercised by the record owners of the Series C Warrants from time to time
in accordance with the provisions of this Section with respect to any or all
registrations under the Act of Common Stock of the Company proposed under
this Section.
5. RESERVATION OF SHARES AND PAYMENT OF TAXES.
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(a) The Company covenants that it shall at all times reserve and
have available from its authorized Common Stock such number of shares as
shall then be issuable on the exercise of all outstanding Series C Warrants.
The Company covenants that all Warrant Shares shall be duly and validly
issued, fully paid and non-assessable, and shall be free from all taxes,
liens and charges with respect to the issuance thereof.
(b) The Company shall pay all documentary, stamp or similar taxes
and other government charges that may be imposed with respect of the issuance
of the Series C Warrants, and/or the issuance, transfer or delivery of any
Common Stock constituting the Warrant Shares on the exercise of the Series C
Warrants. In the event the Warrant Shares are to be delivered in a name other
than the name of the initial Registered Holder of the certificate, no such
delivery shall be made unless the person requesting the same has paid to the
Company the amount of any such taxes, charges, or transfer fees incident
thereto.
6. REGISTRATION OF TRANSFER.
(a) The Series C Warrant certificates may, subject to provisions
of the Federal Securities Laws and any applicable state securities laws, be
transferred in whole or in part. Certificates to be transferred shall be
surrendered to the Company at its Corporate Office. The Company shall
execute, issue and deliver in exchange therefor the Series C Warrant
certificates in the names and amounts that the holder making the transfer
shall have designated in writing. The Company shall keep transfer books at
its Corporate Office which shall register certificates and the transfer
thereof. On due presentment for registration of transfer of any certificate
at the Corporate Office, the Company shall execute, issue and deliver to the
transferee or transferees a new certificate or certificates representing an
equal aggregate number of securities. All such certificates shall be duly
endorsed or be accompanied by a written instrument or instruments of transfer
in form reasonably satisfactory to the Company. The established transfer fee
for any registration of transfer of certificates shall be paid by the Warrant
Holder or the person presenting the certificate for transfer.
(b) Prior to due presentment for registration or transfer thereof,
the Company may treat the Registered Holder of any certificate as the
absolute owner thereof (notwithstanding any notations of ownership or writing
thereon made by anyone), and the parties hereto shall not be affected by any
notice to the contrary.
7. LOSS OR MUTILATION.
On receipt by the Company of evidence satisfactory as to the
ownership of and the loss, theft, destruction or
-6-
mutilation of any Series C Warrant certificate, the Company shall execute and
deliver in lieu thereof a new certificate representing an equal number of
Series C Warrants. In the case of loss, theft or destruction of any
certificate, the individual requesting reissuance of a new certificate shall
be required to indemnify the Company and, at the request of the Company, to
post an open-penalty insurance or indemnity bond. In the event a certificate
is mutilated, such certificate shall be surrendered and canceled by the
Company prior to delivery of a new certificate. Applicants for a new
certificate shall also comply with such other regulations and pay such other
reasonable charges as the Company may prescribe.
8. REDEMPTION RIGHT.
The Company shall have the right and option, upon 30 days' or more
prior written notice to each Registered Holder, to call, redeem and acquire
all of the Series C Warrants which remain outstanding and unexercised at the
date fixed for redemption (the "Series C Warrant Redemption Date") at a price
of $.01 per Series C Warrant if, and only if, the average of the closing
price per share for the 30 consecutive trading day period immediately prior
to the mailing of said notification shall have exceeded $7.00 per share. The
Series C Warrant Redemption Date shall be no less than 30 days after the date
of notice and the Series C Warrant Holders shall in all events have the right
during the period immediately following the date of such notice and prior to
the Series C Warrant Redemption Date to exercise the Series C Warrants in
accordance with provisions of Section 3 hereof (the "Redemption Notice
Period").
No call for redemption and no redemption of the Series C Warrants
shall be made unless the Company shall have an effective registration
statement on file during such period from the date of mailing of the notice
of redemption through the applicable redemption date with the Securities and
Exchange Commission and all applicable State Securities' Commissions relating
to the Common Stock underlying the Series C Convertible Preferred and the
Series C Warrants, except that this obligation as it relates to the Common
Stock may be satisfied if such Common Stock is saleable by the Holder in
accordance with Rule 144. Such registration statement must remain effective
for at least twelve months from the date of such notice. In the event that
any Warrants are exercised following notice but prior to redemption, this
call option shall be deemed not to have been exercised by the Company as to
the Warrants exercised by the holders thereof.
The redemption notice shall require each Warrant Holder to
surrender to the Company on the applicable redemption date at the Corporate
Office the certificate or certificates representing the Series C Warrants to
be redeemed. Notwithstanding the fact that any Warrants called for redemption
have not been surrendered for redemption and cancellation on the applicable
redemption
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date, such Warrants shall be deemed to have expired and all rights of the
holders of such unsurrendered Warrants shall cease and terminate, other than
the right to receive the redemption price without interest; provided, however
that such right to receive the redemption price shall itself expire one year
from the Redemption Date if no claim is made therefor prior to such date.
If the average closing price of the Company's common stock for the
thirty (30) day Redemption Notice Period is less than $7.00 per share, such
redemption notice shall become null and void and the Series C Warrant Holder
shall no longer be obligated to exercise such Series C Warrant within that
Redemption Notice Period.
On that date which is one (1) year following the date of funding,
to the extent that such Series C Warrants have not been redeemed or
exercised, (a) the Company's right to redeem such Series C Warrants shall
terminate and (b) any such Series C Warrants may be exercised through a
cashless exercise in accordance with Section 3(c) hereof.
9. ADJUSTMENT OF INITIAL EXERCISE
PRICE AND NUMBER OF SHARES PURCHASABLE.
For purposes hereof, the term "INITIAL EXERCISE PRICE" shall mean,
with respect to the Series C Warrants, $4.50. The Initial Exercise Price and
the number of shares of Common Stock purchasable pursuant to the Series C
Warrants shall be subject to adjustment from time to time as hereinafter set
forth in this Section 9: PROVIDED, HOWEVER, that no adjustment shall be made
unless by reason of the happening of any one or more of the events
hereinafter specified, the Exercise Price then in effect shall be changed by
one percent or more, but any adjustment that would otherwise be required to
be made but for this provision shall be carried forward and shall be made at
the time of and together with any subsequent adjustment which, together with
any adjustment or adjustment so carried forward, amounts to one percent or
more.
(a) ADJUSTMENT TO EXERCISE PRICE; FAILURE TO REGISTER. The
exercise Price shall be automatically and permanently reduced by $.50 if the
registration statement relating to the Common Stock issuable upon the
conversion of the Series C Convertible Preferred and the Series C Warrants
(the "Registration Statement") has not become effective no later than 90 day
of the funding of the Series C Convertible Preferred related to the
Purchaser's Series C Warrants. Additionally, the Exercise Price shall be
subject to further downward adjustment in the amount of $.25 upon each
monthly anniversary thereafter if the Registration Statement has not been
declared effective by such date until the Registration Statement becomes
effective.
-8-
(b) ADJUSTMENTS IN THE EVENT OF STOCK DIVIDENDS, STOCK SPLITS AND
REVERSE STOCK SPLITS. In case the Company shall at any time issue Common
Stock or securities convertible into Common Stock without consideration by
way of dividend or effect a stock split or reverse stock split of the
outstanding shares of Common Stock. (i) the number of shares of Common Stock
which immediately prior to such change the Warrant Holders shall have been
entitled to purchase pursuant to this Agreement shall be increased or
decreased, as the case may be, in direct proportion to the increase or
decrease, respectively, in the number of shares outstanding immediately prior
to such change, and (ii) the Exercise Price in effect immediately prior to
such change shall be increased or decreased, as the case may be, in inverse
proportion to such increase or decrease in the number of such shares
outstanding immediately prior to such change.
(c) RIGHT TO REDUCE EXERCISE PRICE. The Company shall have the
right to reduce the Series C Warrant Exercise Price at any time and from time
to time that such appears in the Company's best interests to do so, but only
upon approval of the Board of Directors.
(d) SUBDIVISION OR COMBINATIONS. In case the Company shall at any
time change as a whole, by subdivision or combination in any manner or by the
making of a stock dividend, which results in the number of outstanding shares
of Common Stock at such time into a different number of shares, with or
without par value, (i) the number of shares of Common Stock which immediately
prior to such change the Warrant Holders shall have been entitled to purchase
pursuant to this Agreement shall be increased or decreased, as the case may
be, in direct proportion to the increase or decrease, respectively, in the
number of shares outstanding immediately prior to such change, and (ii) the
Exercise Price in effect immediately prior to such change shall be increased
or decreased, as the case may be, in inverse proportion to such increase or
decrease in the number of such shares outstanding immediately prior to such
change.
(e) OUTSTANDING SHARES. For the purpose of Sections 9(b) and 9(d)
above, the number of shares of Common Stock outstanding at any given time
shall not include shares in the treasury of the Company but shall include the
aggregate number of shares which the holders of securities convertible into
common stock, stock dividends, combination or subdivision rights, warrants,
options, or such other rights to receive additional shares or to have their
shares converted into a lesser amount pursuant to the events described in
Sections 9(b) and 9(d) herein, shall be entitled to receive. The Common Stock
pertaining to such stock dividends, combination or subdivision rights,
warrants, options, or such other rights shall be deemed to be issued as of
the date of the offering or granting of such dividends, rights, warrants or
options, as the case may be.
-9-
(f) TERMINOLOGY OF "SHARES". Subject to the provisions of
sub-paragraph 9(h) below, whenever reference is made in this Section 9 to the
issue or sale of shares of Common Stock, or simply shares, such term shall
mean any stock of any class of the Company other than preferred stock with a
fixed limit on dividends and a fixed amount payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Company. The shares issuable upon exercise of the Series C Warrants
shall, however, be shares of Common Stock of the Company.
(g) REORGANIZATION; ASSETS SALES; ETC. In case of any capital
reorganization or any reclassification of the capital stock of the Company or
in case of a non-surviving combination or a disposition of substantially all
of the assets of the Company other than in the ordinary course of the
Company's business, the Warrant Holders shall thereafter be entitled to
purchase (and it shall be a condition to the consummation of any such
reorganization, reclassification, non-surviving combination or disposition
that appropriate provision shall be made so that such Warrant Holder shall
thereafter be entitled to purchase) the kind and amount of shares of stock
and other securities and property receivable in such transaction by a holder
of the number of shares of Common Stock of the Company into which this
Agreement entitled the Warrant Holder to purchase immediately prior to such
capital reorganization, reclassification of capital stock, non-surviving
combination or disposition; and in any such case appropriate adjustments
shall be made in the application of the provisions of this Section 9 with
respect to rights and interests thereafter of the Warrant Holder to the end
that the provisions of this Section 9 shall thereafter be applicable, as near
as reasonably may be, in relation to any shares or other property thereafter
purchasable upon the exercise of a Series C Warrant.
(h) OPTIONS; ETC. Except for officers, directors and employees of
the Corporation, in the event the Company shall distribute to any holder of
shares of Common Stock evidences of indebtedness or rights, options or
warrants or other securities exercisable or convertible into or exchangeable
for shares of Common Stock, the Warrant Holders shall receive, upon exercise,
against payment of the Exercise Price therefor, but without further
consideration, the indebtedness or securities which would be receivable in
such transaction by a holder or holders of the number of shares of Common
Stock into which the Warrant, as applicable, entitled the holder thereof to
purchase immediately prior to such distribution.
(i) ADJUSTMENT STATEMENT. Whenever the Exercise Price is adjusted
as herein provided, the Company shall forthwith deliver to each Series C
Warrant Holder a statement signed by the President or Executive Vice
President of the Company and by its Treasurer or Secretary stating the
adjusted Exercise Price and
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number of shares for which such Warrant is exercisable, determined as
specified herein. The statement shall show in detail the facts requiring
such adjustment, including a statement of the consideration received by the
Company for any additional stock issued.
(j) PRIOR NOTICE TO SERIES C WARRANT HOLDERS. In the event
that at any time:
(1) The Company shall pay any dividend payable in stock upon
its Common Stock or make any distribution (other than cash dividends
out of earnings or earned surplus) to the holders of its Common
Stock; or
(2) The Company shall offer for subscription pro rata to the
holders of its Common Stock any additional shares of stock of any
class or any other rights; or
(3) The Company shall effect any capital reorganization or any
reclassification of the outstanding capital stock of the Company
(other than a change in par value, or a change from par value to no
par value, or a change from no par value to par value, or a change
resulting solely from a subdivision or combination of outstanding
shares), or any consolidation or merger, or any sale, transfer or
other disposition of all or substantially all of its property,
assets, business and goodwill as an entirety, or the liquidation,
dissolution or winding up of the Company; or
(4) The Company shall declare a dividend upon its Common Stock
payable otherwise than out of earnings or earned surplus or otherwise
than in shares or any stock or obligations directly or indirectly
convertible into or exchangeable for shares;
then, in any such event, the Company shall cause at least twenty (20) days'
prior written notice to be mailed to each Warrant Holder at the address of
such holder shown on the books of the Company. The notice shall also specify
the date on which the books of the Company shall close or a record be taken
for such stock dividend, distribution or subscription rights, or the date on
which such reclassification, reorganization, consolidation, merger, sale,
transfer, disposition, liquidation, dissolution, winding up, or dividend, as
the case may be, shall take place, and the date of participation therein by
the holders of shares of Common Stock if any such date is to be fixed, and
shall also set forth such facts with respect thereto as shall be reasonably
necessary to indicate the effect of such action on the rights of the Warrant
Holder.
(k) DISPUTES. In the event that there is any dispute
-11-
as to the computation of the Exercise Price or the number of shares of Common
Stock required to be issued upon the exercise of the Warrants, the Company
will retain an independent and nationally recognized accounting firm to
conduct an audit of the computations pursuant to the terms hereof involved in
such dispute, including the financial statements or other information upon
which such computations were based. The determination of such nationally
recognized accounting firm shall, in the absence of manifest error, be
binding. If there shall be a dispute as to the selection of such nationally
recognized accounting firm, such firm shall be appointed by the American
Institute of Certified Public Accountants ("AICPA") if willing, otherwise the
American Arbitration Association ("AAA"). If the Exercise Price or number of
shares of Common Stock as determined by such accounting firm is one percent
or more higher or lower than the calculations thereof computed by the
Company, the expenses of such accounting firm and, if any, off AICPA and AAA,
shall be borne completely by the Company. In all other cases, they shall be
borne by the complaining Warrant Holders, as applicable.
(l) CORPORATE ACTION. Before taking any action which would cause
an adjustment reducing the Exercise Price below the then par value of the
shares of Common Stock issuable upon exercise of the Series C Warrants,
the Company shall take any corporate action which may, in the opinion of its
counsel, be necessary in order that the Company may validly and legally issue
fully paid and non-assessable shares of Common Stock at the adjusted Exercise
Price.
10. NOTICES.
All notices, demands, elections, opinions or requests (however
characterized or described) required or authorized hereunder shall be deemed
given sufficiently if in writing and sent by registered or certified mail,
return receipt requested and postage prepaid, or by confirmed telex,
telegram, facsimile transmission or cable to, in the case of the Company:
SeraCare, Inc.
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
telecopier: (000) 000-0000
and if to the Warrant Holder at the address of such holder as set forth on
the books maintained by or on behalf of the Company.
11. BINDING AGREEMENT.
This Agreement shall be binding upon and inure to the benefit of
the Company and the Warrant Holders. Nothing in this Agreement is intended or
shall be construed to confer upon any other person any right, remedy or claim
or to impose on any other
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person any duty, liability or obligation.
12. FURTHER INSTRUMENTS.
The parties shall execute and deliver any and all such other
instruments and take any and all other actions as may be reasonably necessary
to carry out the intention of this Agreement.
13. SEVERABILITY.
If any provision of this Agreement shall be held, declared or
pronounced void, voidable, invalid, unenforceable, or inoperative for any
reason by any court of competent jurisdiction, government authority or
otherwise, such holding, declaration or pronouncement shall not affect
adversely any other provision of this Agreement, which shall otherwise remain
in full force and effect and be enforced in accordance with its terms, and
the effect of such holding, declaration or pronouncement shall be limited to
the territory or jurisdiction in which made.
14. WAIVER.
No delay or failure on the part of any party in the exercise of any
right or remedy arising from a breach of this Agreement shall operate as a
waiver of any subsequent right or remedy arising from a subsequent breach of
this Agreement.
15. RELEVANT MARKETS.
For the purposes of this Agreement, it is assumed that the Common
Stock is quoted on the American Stock Exchange, however, in the event the
Common Stock is:
(a) listed on NASDAQ, NASDAQ Small Cap, NASDAQ Bulletin Board, a
national securities exchange or admitted to unlisted trading privileges on
such exchange, the price of the Common Stock to be determined during any
applicable five (5) day trading period the "Market Price Per Share" shall be
the last reported sale price of the Common Stock on such exchange; or
(b) not quoted on the Bulletin Board listed or admitted to unlisted
trading privileges, the Market Price Per Share of the Common Stock to be
determined during any applicable five (5) day trading period shall be the
last reported sale price as reported on the "pink sheets" by the National
Daily Quotation Bureau, Inc.
16. GENERAL PROVISIONS.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK. This Agreement may not be
modified or amended or any term or provision hereof waived or discharged
except in writing by the
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party against which such amendment, modification, waiver or discharge is
sought to be enforced. The headings of this Agreement are for convenience and
reference only and shall not limit or otherwise affect the meaning hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date first set forth above.
SERACARE, INC
By: /s/ Xxxxx X. Xxxxxxx
----------------------------
Executive Vice President
[CORPORATE SEAL]
ATTEST: /s/ Xxxxx X. Xxxxxxx
----------------------------
Secretary
WARRANTHOLDERS:
By:
----------------------------
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The securities represented hereby have not been registered under
the Securities Act of 1933, as amended, or any state securities laws and
neither the securities nor any interest therein may be offered, sold,
transferred, pledged or otherwise disposed of except pursuant to an
effective registration statement under such Act and such laws or an
exemption from registration under such Act and such laws which, in the
opinion of counsel for the holder, which counsel and opinion are
reasonably satisfactory to counsel for this corporation, is available.
SERIES C WARRANT CERTIFICATE
SERACARE, INC.
Warrant No. WC- No. of C Warrants:
This certifies that, for value received and subject to the terms and
conditions set forth herein, _____________________ or their registered assign
(the "Warrant Holder") is the registered holder of ___________________________
Series C Warrants.
1. EXERCISE. The warrants evidenced hereby ("Series C Warrants"), as
they may be adjusted from time to time, may be exercised at a price of $4.50
per Warrant to acquire one (1) share of the common stock of SeraCare, Inc.
which is with par value of $0.001 (the "Common Stock" and the "Company,"
respectively). (The Common Stock acquirable upon exercise hereof is referred
to herein as "Warrant Stock.") If, at the time of any exercise of a Series C
Warrant, the Shares deliverable upon exercise of such Warrant shall not be
registered under the Securities Act, the Company may require, as a condition
of allowing such exercise, that the holder or transferee of such Warrant,
furnish to the Company an opinion of counsel of recognized standing in
securities law, to the effect that such exercise may be made without
registration under the Securities Act, provided that subject to receipt of
the aforementioned opinion, the exercise of the Warrant shall at all times be
within the control of such holder or transferee, as the case may be, and, if
required by the Company, by written representation that the shares being
acquired by the exercise of the Warrant are being purchased for investment
and not for distribution; acknowledging that such shares have not been
registered under the Securities Act of 1933, as amended (the "1933 Act"); and
agreeing that such shares may not be sold or transferred unless there is
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an effective Registration Statement for them under the 1933 Act, or in the
opinion of counsel to the Company such sale or transfer is not in violation
of the 1933 Act. No fractional shares may be acquired upon exercise hereof.
2. TERM OF WARRANT. This Series C Warrant may be exercised at any time
and from time to time in whole or in part commencing immediately upon
issuance and terminating on the date which is the later of (i) five years
from the date hereof and (ii) that date on which a registration statement
relating to the shares underlying the Series C Warrants has remained in
effect for an aggregate of two years, unless extended by a majority vote of
the Board of Directors for such length of time as they, in their sole
discretion, deem reasonable and necessary). The terms of the Series C Warrant
Agreement are hereby incorporated by reference as if fully set forth herein.
3. ADJUSTMENT OF EXERCISE PRICE. The number of shares purchasable upon
exercise of this Section C Warrant is subject to adjustment in accordance with
the Series C Warrant Agreement.
4. REDEMPTION. These Warrants may be redeemed in accordance with the
terms fully set forth in the Series C Warrant Agreement.
5. RESERVATION OF COMMON STOCK. The Company agrees that the number of
shares of Common Stock sufficient to provide for the exercise of the Series C
Warrants upon the basis set forth herein will at all times during the term of
this Series C Warrant be reserved for the exercise hereof.
6. MANNER OF EXERCISE. Exercise may be made of all or any part of the
Series C Warrants by surrendering this certificate, with the purchase form to
be provided by the Company, duly executed by the Warrant Holder or by the
Warrant Holder's duly authorized attorney, plus payment of the exercise price
therefor in cash at the office of the Company or its designated assign. A
cashless exercise may also be made by the holder in accordance with the
provisions of the Series C Warrant Agreement.
7. ISSUANCE OF COMMON STOCK UPON EXERCISE. The Company, at its own
expense, shall cause to be issued and delivered, within ten (10) days after
exercise of this Series C Warrant, a certificate or certificates in the name
or names requested by the Warrant Holder representing the number of shares of
Common Stock to which the Warrant Holder is entitled upon such exercise. All
shares of Common Stock or other securities delivered upon the exercise of
this Series C Warrant shall be validly issued, fully paid and non-assessable.
Irrespective of the date of issuance and delivery of any certificate
representing the shares of Common Stock upon the exercise of this Series C
Warrant, each person in whose name any
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such certificate is to be issued will for all purposes be deemed to have
become the holder of record of the Common Stock acquired on the date on which
a duly executed notice of exercise of this Series C Warrant and payment for
the number of shares exercised are received by the Company.
8. REGISTRATION RIGHTS. The shares underlying the Series C Warrants
shall have mandatory and piggyback registration rights.
9. NO RIGHT AS STOCKHOLDER. The Warrant Holder is not, by virtue of
his ownership of this Series C Warrant, entitled to any rights whatsoever as
a stockholder of the Company.
10. ASSIGNMENT. This Series C Warrant may not be assigned without
providing the Company an opinion satisfactory to its counsel that an
exemption from registration for the transfer exists.
11. WARRANT AGREEMENT. The actual terms and conditions of this Series C
Warrant are contained in a Warrant Agreement entered into by and between the
Company and the Warrant holder, the terms and conditions of which are
incorporated herein by this reference as if fully set forth herein and made a
part hereof. To the extent of any conflict herewith, the terms and conditions
of the Warrant Agreement shall apply.
IN WITNESS WHEREOF, the Company has caused this Warrant certificate to
be signed on its behalf by its President or Senior Vice President, his
signature to be attested to by its Secretary, and its corporate seal to be
hereunto affixed this ____ day of December, 1998.
(SEAL) SERACARE, INC.
ON BEHALF OF THE COMPANY
AND AS WARRANT AGENT
BY:___________________________
ATTEST:_____________________________
NAME:________________________
TITLE:_______________________
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