THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT, OR AN EXEMPTION FROM
REGISTRATION, UNDER SAID ACT.
WARRANT TO PURCHASE
SHARES OF COMMON STOCK
OF
MERIDIAN MEDICAL TECHNOLOGIES, INC.
Expires May 1, 2005
No. W-1 New York, New York
204,770 Shares May 1, 1998
FOR VALUE RECEIVED, subject to the provisions hereinafter
set forth, the undersigned, MERIDIAN MEDICAL TECHNOLOGIES, INC.,
a Delaware corporation (together with its successors and assigns,
the "Issuer"), hereby certifies that
NOMURA HOLDING AMERICA INC.
or its registered assigns is entitled to subscribe for and
purchase, during the period specified in this Warrant, 204,770
shares (subject to adjustment as hereinafter provided) of the
duly authorized, validly issued, fully paid and non-assessable
Common Stock of the Issuer, at an initial exercise price per
share equal to $11.988 per share, subject, however, to the
provisions and upon the terms and conditions hereinafter set
forth. Capitalized terms used in this Warrant and not otherwise
defined herein shall have the respective meanings specified in
Section 7 hereof. This Warrant is one of the Warrants issued
pursuant to the Note and Warrant Purchase Agreement, initially
exercisable to purchase 204,770 shares of Warrant Stock in the
aggregate.
1. Duration. The right to subscribe for and purchase
shares of Warrant Stock represented hereby shall commence on the
date hereof and shall expire at 5:00 P.M., New York time, on May
1, 2005; provided, however, that if, on such expiration date, the
Issuer is then required, pursuant to an effective request
therefor, to effect, or is in the process of effecting, a
registration under the Securities Act for an Underwritten
Offering in which shares of Warrant Stock are, pursuant to the
Registration Rights Agreement dated as of May 1, 1998 by and
between the Issuer and Nomura Holding America Inc., entitled to
be included, or if the Issuer is in default of any obligations
created by such provisions, said right to subscribe for and
659294v9
purchase shares of Warrant Stock shall expire at 5:00 P.M., New
York time, on the 30th day following the date on which such
registration shall have become effective or on the 30th day
following the date all of such defaults have been cured, as the
case may be.
2. Method of Exercise; Payment; Issuance of New Warrant;
Transfer and Exchange.
(a) Time of Exercise. The purchase right represented by
this Warrant may be exercised in whole or in part at any time and
from time to time prior to expiration.
(b) Method of Exercise. The holder hereof may exercise
this Warrant, in whole or in part, by the surrender of this
Warrant (with the subscription form attached hereto duly
executed) at the principal office of the Issuer, and by the
payment to the Issuer of an amount of consideration therefor
equal to the Warrant Price in effect on the date of such exercise
multiplied by the number of shares of Warrant Stock with respect
to which this Warrant is then being exercised (after giving
effect to any reduction required by Section 6 hereof), payable at
such holder's election (i) by certified or official bank check,
(ii) by surrendering and canceling an amount of the principal of
and accrued interest on the Notes held by such holder equal in
the aggregate to the aggregate amount of the consideration
payable upon such exercise (and, for such purposes, all interest
accrued on such Notes to the date of such exercise shall first be
applied to such payment before any of the principal amount
thereof shall be so surrendered and applied), (iii) by
surrendering to the Issuer the right to receive a portion of the
number of shares of Warrant Stock with respect to which this
Warrant is then being exercised equal to the product obtained by
multiplying such number of shares of Warrant Stock by a fraction,
the numerator of which is the Warrant Price in effect on the date
of such exercise and the denominator of which is the Current
Market Price in effect on such date, or (iv) by a combination of
the foregoing methods of payment selected by the holder of this
Warrant. In any case where the consideration payable upon such
exercise is being paid in whole or in part pursuant to the
provisions of clause (ii) or clause (iii) of this Section 2(b),
such exercise shall be accompanied by written notice from the
holder of this Warrant specifying the manner of payment thereof,
and in the case of an application of clause (ii), stating the
respective amounts of principal and interest of the Notes to be
applied to such payment, and in the case of an application of
clause (iii), containing a calculation showing the number of
shares of Warrant Stock with respect to which rights are being
surrendered thereunder and the net number of shares to be issued
after giving effect to such surrender. If, pursuant to clause
(ii) above, less than the entire unpaid principal amount of any
Note shall be applied toward payment of the consideration payable
upon any exercise of this Warrant, the holder thereof shall
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659294v9
surrender the Note and the Issuer shall issue a new Note (dated
the date of the Note being surrendered) representing the balance
of the unpaid principal amount of the Note so surrendered,
payable to such holder or as such holder may otherwise direct.
(c) Issuance of Stock Certificates. In the event of any
exercise of the rights represented by this Warrant in accordance
with and subject to the terms and conditions hereof, (i)
certificates for the shares of Warrant Stock so purchased shall
be dated the date of such exercise and delivered to the holder
hereof within a reasonable time, not exceeding fifteen days after
such exercise, and the holder hereof shall be deemed for all
purposes to be the holder of the shares of Warrant Stock so
purchased as of the date of such exercise, and (ii) unless this
Warrant has expired, a new Warrant representing the number of
shares of Warrant Stock, if any, with respect to which this
Warrant shall not then have been exercised (less any amount
thereof which shall have been canceled in payment or partial
payment of the Warrant Price as hereinabove provided) shall also
be issued to the holder hereof within such time.
(d) Transferability and Nonnegotiability of Warrant. This
Warrant may not be transferred or assigned in whole or in part
without compliance with all applicable federal and state
securities laws by the transferor and the transferee (including,
to the extent required by law or reasonably requested by the
Issuer, the delivery of appropriate investment representations in
customary form). Subject to the provisions of this Warrant with
respect to compliance with the Securities Act, title to this
Warrant may be transferred by endorsement (by the holder
executing the form of assignment attached hereto) and delivery in
the same manner as a negotiable instrument transferable by
endorsement and delivery. This Warrant is exchangeable at the
principal office of the Issuer for Warrants for the purchase of
the same aggregate number of shares of Warrant Stock, each new
Warrant to represent the right to purchase such number of shares
of Warrant Stock as the holder hereof shall designate at the time
of such exchange. All Warrants issued on transfers or exchanges
shall be dated the date hereof and shall be identical with this
Warrant except as to the number of shares of Warrant Stock
issuable pursuant hereto.
(e) Exchange of Warrant Upon a Transfer. On surrender of
this Warrant for exchange, properly endorsed on the form of
assignment attached hereto, and subject to the provisions of this
Warrant with respect to compliance with the Securities Act and
the limitations on assignments and transfers contained herein,
the Issuer at its expense shall issue to or on the order of the
holder a new Warrant or Warrants of like tenor, in the name of
the holder or as the holder (on payment by the holder of any
applicable transfer taxes) may direct, exercisable in the
aggregate for the number of shares of Warrant Stock issuable upon
exercise hereof; provided, that nothing in this subsection (e)
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659294v9
shall be deemed to prohibit any transfer of Warrants by any
Person to (i) any Affiliate of such Person or (ii) any Person who
immediately prior to such transfer is a holder of Warrants.
(f) Compliance with Securities Laws.
(i) The holder of this Warrant, by acceptance hereof,
acknowledges that this Warrant and the shares of Warrant Stock to
be issued upon exercise hereof are being acquired solely for the
holder's own account and not as a nominee for any other party,
and for investment, and that the holder will not offer, sell or
otherwise dispose of this Warrant or any shares of Warrant Stock
to be issued upon exercise hereof except under circumstances that
will not result in a violation of the Securities Act or any state
securities laws. In the event that, upon exercise of this
Warrant, the shares of Warrant Stock to be issued hereunder shall
constitute "restricted securities" (as defined in Regulation D
promulgated under the Securities Act), then the holder shall, if
requested by the Issuer, confirm in writing to the Issuer that
the shares of Warrant Stock so purchased are being acquired
solely for the holder's own account and not as a nominee for any
other party, for investment, and not with a view toward any
distribution or resale that would violate the registration or
qualification provisions of the Securities Act or any state
securities laws.
(ii) Except as provided in paragraph (iii) below, this
Warrant and all certificates representing shares of Warrant Stock
issued upon exercise hereof shall be stamped or imprinted with a
legend in substantially the following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT, OR AN
EXEMPTION FROM REGISTRATION, UNDER SAID ACT.
(iii) The restrictions imposed by this Section 2(f)
upon the transfer of this Warrant and the shares of Warrant Stock
to be purchased upon exercise hereof shall terminate (A) when
such securities shall have been effectively registered under the
Securities Act, or (B) upon the Issuer's receipt of an opinion of
counsel, in form and substance reasonably satisfactory to the
Issuer (it being understood that in-house counsel to the holder
shall be deemed to be acceptable counsel), addressed to the
Issuer to the effect that such restrictions are no longer
required to ensure compliance with the Securities Act. Whenever
such restrictions shall cease and terminate as to any such
securities, the holder thereof shall be entitled to receive from
the Issuer (or its transfer agent and registrar), without expense
(other than applicable transfer taxes, if any), new Warrants (or,
in the case of shares of Warrant Stock, new stock certificates)
of like tenor not bearing the applicable legends required by
paragraph (ii) above relating to the Securities Act and state
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659294v9
securities laws.
(g) Continuing Rights of Holder. The Issuer will, at the
time of or at any time after each exercise of this Warrant, upon
the request of the holder hereof or of any shares of Warrant
Stock issued upon such exercise, acknowledge in writing the
extent, if any, of its continuing obligation to afford to such
holder all rights to which such holder shall continue to be
entitled after such exercise in accordance with the terms of this
Warrant, provided that if any such holder shall fail to make any
such request, the failure shall not affect the continuing
obligation of the Issuer to afford such rights to such holder.
(h) No Rights or Liabilities as Stockholders. This Warrant
shall not entitle the holder hereof to any of the rights of a
stockholder of the Issuer, except as expressly contemplated by
this Warrant. No provision of this Warrant, in the absence of
the actual exercise of this Warrant or any part hereof by the
holder hereof into shares of Warrant Stock issuable upon such
exercise, shall give rise to any liability on the part of such
holder as a stockholder of the Issuer, whether such liability
shall be asserted by the Issuer or by creditors of the Issuer or
otherwise.
3. Stock Fully Paid; Reservation of Shares. (a) The
Issuer covenants and agrees that all shares of Warrant Stock
which may be issued upon the exercise of this Warrant will, upon
issuance, be fully paid and non-assessable and free from all
taxes, liens and charges with respect to issuance (other than
taxes in respect of any transfer occurring contemporaneously with
such issuance, or as otherwise specified herein or in the Note
and Warrant Purchase Agreement). The Issuer further covenants
and agrees that during the period within which this Warrant may
be exercised, the Issuer will at all times have authorized and
reserved for the purpose of the issue upon exercise of the
subscription rights evidenced by this Warrant a sufficient number
of shares of Common Stock to provide for the exercise of this
Warrant.
(b) If any shares of the Common Stock required to be
reserved for issuance upon exercise of this Warrant require
registration or qualification with any governmental authority
under any federal or state law before such shares may be so
issued, the Issuer will in good faith use its reasonable efforts
at its expense to cause such shares to be duly registered or
qualified.
(c) The Issuer shall not by any voluntary action including,
without limitation, amending the Certificate of Incorporation or
through 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
5
659294v9
times in good faith assist in the carrying out of all such terms
and in the taking of all such actions as may be necessary or
appropriate to protect the rights of the holder hereof against
impairment. Without limiting the generality of the foregoing,
the Issuer will (i) not permit the par value, if any, of its
Common Stock to exceed the then effective Warrant Price, (ii) not
amend or modify any provision of the Certificate of Incorporation
or by-laws of the Issuer in any manner that would adversely
affect in any way the powers, preferences or relative
participating, optional or other special rights of the Common
Stock, (iii) take all such action as may be reasonably necessary
in order that the Issuer may validly and legally issue fully paid
and nonassessable shares of Common Stock, free and clear of any
liens, claims, encumbrances and restrictions (other than as
provided herein) upon the exercise of this Warrant, and (iv) use
its reasonable best efforts to obtain all such authorizations,
exemptions or consents from any public regulatory body having
jurisdiction thereof as may be reasonably necessary to enable the
Issuer to perform its obligations under this Warrant.
4. Adjustment of Purchase Price and Number of Shares. The
number and kind of securities purchasable upon the exercise of
this Warrant and the payment of the Warrant Price shall be
subject to adjustment from time to time upon the happening of
certain events as follows:
(a) Recapitalization, Reorganization, Reclassification,
Consolidation, Merger or Sale. (i) In case of any
recapitalization or reorganization of the Issuer or any
reclassification or change of outstanding Securities issuable
upon exercise of this Warrant (other than a change in par value,
or from par value to no par value, or from no par value to par
value or as a result of a subdivision or combination), or in case
of any consolidation or merger of the Issuer with or into another
corporation (other than a merger with another corporation in
which the Issuer is the surviving corporation and which does not
result in any reclassification or change -- other than a change
in par value, or from par value to no par value, or from no par
value to par value, or as a result of a subdivision or
combination -- of outstanding Securities issuable upon exercise
of this Warrant), or in case of any sale or transfer to another
corporation of the property of the Issuer as an entirety or
substantially as an entirety, the Issuer or such successor or
purchasing corporation, as the case may be, shall, without
payment of any additional consideration therefor, issue a new
Warrant, providing that the holder of this Warrant shall have the
right to exercise such new Warrant and procure upon such exercise
in lieu of each share of Warrant Stock theretofore issuable upon
exercise of this Warrant the kind and the highest amount of
shares of Capital Stock, other securities, money and property
receivable upon such recapitalization, reorganization,
reclassification, change, consolidation, merger, sale or transfer
by a holder of one share of Common Stock issuable upon exercise
6
659294v9
of this Warrant had it been exercised immediately prior to such
recapitalization, reorganization, reclassification, change,
consolidation, merger, sale or transfer. Such new Warrant shall
provide for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this
Section 4. The provisions of this subsection (a) shall similarly
apply to successive recapitalizations, reorganizations,
reclassifications, changes, consolidations, mergers, sales and
transfers.
(ii) Notwithstanding anything contained in this Warrant
to the contrary, the Issuer will not effect any of the
transactions described in the above subparagraph (i) unless prior
to the consummation thereof, each person (other than the Issuer)
which may be required to deliver any Capital Stock, securities,
money or property upon the exercise of this Warrant as provided
herein shall assume, by written instrument delivered to, and
reasonably satisfactory to the Majority Holders, (A) the
obligations of the Issuer under this Warrant (and if the Issuer
shall survive the consummation of such transaction, such
assumption shall be in addition to (but without duplication), and
shall not release the Issuer from, any continuing obligations of
the Issuer under this Warrant) and (B) the obligation to deliver
to the holder of this Warrant such shares of Capital Stock, other
securities, money or property as, in accordance with the
foregoing provisions of this paragraph (a), such holder shall be
entitled to receive, and such person shall have similarly
delivered to such holder an opinion of counsel for such person,
which counsel shall be reasonably satisfactory to such holder,
stating that this Warrant shall thereafter continue in full force
and effect and the terms hereof (including, without limitation,
all of the provisions of this paragraph (a)) shall be applicable
to the Capital Stock, other securities, money or property which
such person may be required to deliver upon any exercise of this
Warrant or the exercise of any rights pursuant hereto.
(b) Subdivision or Combination of Shares. If the Issuer,
at any time while this Warrant is outstanding, shall subdivide or
combine any class or classes of its Common Stock, (i) in case of
subdivision of shares, the Warrant Price shall be proportionately
reduced (as at the effective date of such subdivision or, if the
Issuer shall take a record of holders of its Common Stock for the
purpose of so subdividing, as at the applicable record date,
whichever is earlier) to reflect the increase in the total number
of shares of Common Stock outstanding as a result of such
subdivision, or (ii) in the case of a combination of shares,
shall be proportionately increased (as at the effective date of
such combination or, if the Issuer shall take a record of holders
of its Common Stock for the purpose of so combining, as at the
applicable record date, whichever is earlier) to reflect the
reduction in the total number of shares of Common Stock
outstanding as a result of such combination.
7
659294v9
(c) Certain Dividends and Distributions. If the Issuer, at
any time while this Warrant is outstanding, shall:
(i) Stock Dividends. Pay a dividend in, or make any other
distribution of, shares of any class or classes of Common Stock,
the Warrant Price shall be adjusted, as at the date the Issuer
shall take a record of the holders of such class or classes of
Common Stock, for the purpose of receiving such dividend or other
distribution (or if no such record is taken, as at the date of
such payment or other distribution), to that price determined by
multiplying the Warrant Price in effect immediately prior to such
record date (or if no such record is taken, then immediately
prior to such payment or other distribution), by a fraction (A)
the numerator of which shall be the total number of shares of
Common Stock outstanding immediately prior to such dividend or
distribution, and (B) the denominator of which shall be the total
number of shares of Common Stock outstanding immediately after
such dividend or distribution (plus in the event that the Issuer
paid cash for fractional shares, the number of additional shares
which would have been outstanding had the Issuer issued
fractional shares in connection with said dividends); or
(ii) Liquidating Dividends, etc. Make a distribution of its
property to the holders of its Common Stock as a dividend in
liquidation or partial liquidation or by way of return of capital
other than as a dividend payable out of funds legally available
for dividends under the laws of the State of Delaware, the holder
of this Warrant shall, upon exercise, be entitled to receive, in
addition to the number of shares of Warrant Stock receivable
thereupon, and without payment of any consideration therefor, a
sum equal to the amount of such property as would have been
payable to such holder as owner of that number of shares of
Warrant Stock of the Issuer receivable by exercise of this
Warrant, had such holder been the holder of record of such
Warrant Stock on the record date for such distribution; and an
appropriate provision therefor shall be made a part of any such
distribution.
(d) Issuance of Additional Shares of Common Stock. If the
Issuer, at any time while this Warrant is outstanding, shall
issue any Additional Shares of Common Stock (other than as
provided in the foregoing subsections (a) through (c) of this
Section 4), at a price per share less than 90% of the Warrant
Price then in effect or less than the Current Market Price then
in effect or without consideration, then the Warrant Price upon
each such issuance shall be adjusted to that price determined by
multiplying the Warrant Price then in effect by a fraction:
(i) the numerator of which shall be equal to the sum of (A)
the number of shares of Common Stock outstanding immediately
prior to the issuance of such Additional Shares of Common Stock
plus (B) the number of shares of Common Stock which the aggregate
consideration for the total number of such Additional Shares of
8
659294v9
Common Stock so issued would purchase at a price per share equal
to the Current Market Price then in effect or 90% of the Warrant
Price then in effect (whichever is greater), and
(ii) the denominator of which shall be equal to the number
of shares of Common Stock outstanding immediately after the
issuance of such Additional Shares of Common Stock.
The provisions of this subsection (d) shall not apply under any
of the circumstances for which an adjustment is provided in
subsections (a), (b) or (c) of this Section 4. No adjustment of
the Warrant Price shall be made under this subsection (d) upon
the issuance of any Additional Shares of Common Stock which are
issued pursuant to any Common Stock Equivalent if upon the
issuance of such Common Stock Equivalent (1) any adjustment shall
have been made pursuant to subsection (e) of this Section 4 or
(2) no adjustment was required pursuant to subsection (e) of this
Section 4.
(e) Issuance of Common Stock Equivalents. If the Issuer,
at any time while this Warrant is outstanding, shall issue any
Common Stock Equivalent and the price per share for which
Additional Shares of Common Stock may be issuable thereafter
pursuant to such Common Stock Equivalent shall be less than 90%
of the Warrant Price then in effect or less than the Current
Market Price then in effect, or if, after any such issuance of
Common Stock Equivalents, the price per share for which
Additional Shares of Common Stock may be issuable thereafter is
amended, and such price as so amended shall be less than the 90%
of the Warrant Price or less than the Current Market Price in
effect at the time of such amendment, then the Warrant Price upon
each such issuance or amendment shall be adjusted as provided in
the first sentence of subsection (d) of this Section 4 on the
basis that (i) the maximum number of Additional Shares of Common
Stock issuable pursuant to all such Common Stock Equivalents
shall be deemed to have been issued (whether or not such Common
Stock Equivalents are actually then exercisable, convertible or
exchangeable in whole or in part) as of the earlier of (A) the
date on which the Issuer shall enter into a firm contract for the
issuance of such Common Stock Equivalent, or (B) the date of
actual issuance of such Common Stock Equivalent, and (ii) the
aggregate consideration for such maximum number of Additional
Shares of Common Stock shall be deemed to be the minimum
consideration received or receivable by the Issuer for the
issuance of such Additional Shares of Common Stock pursuant to
such Common Stock Equivalent. No adjustment of the Warrant Price
shall be made under this subsection (e) upon the issuance of any
Convertible Security which is issued pursuant to the exercise of
any warrants or other subscription or purchase rights therefor,
if any adjustment shall previously have been made in the Warrant
Price then in effect upon the issuance of such warrants or other
rights pursuant to this subsection (e).
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659294v9
(f) Purchase of Common Stock by the Issuer. If the Issuer
at any time while this Warrant is outstanding shall, directly or
indirectly through a Subsidiary or otherwise, purchase, redeem or
otherwise acquire any of its Common Stock at a price per share
greater than the Current Market Price then in effect, then the
Warrant Price upon each such purchase, redemption or acquisition
shall be adjusted to that price determined by multiplying such
Warrant Price by a fraction (i) the numerator of which shall be
the number of shares of Common Stock outstanding immediately
prior to such purchase, redemption or acquisition minus the
number of shares of Common Stock which the aggregate
consideration for the total number of such shares of Common Stock
so purchased, redeemed or acquired would purchase at the Current
Market Price; and (ii) the denominator of which shall be the
number of shares of Common Stock outstanding immediately after
such purchase, redemption or acquisition. For the purposes of
this subsection (f), the date as of which the Current Market
Price shall be computed shall be the earlier of (x) the date on
which the Issuer shall enter into a firm contract for the
purchase, redemption or acquisition of such Common Stock, or (y)
the date of actual purchase, redemption or acquisition of such
Common Stock. For the purposes of this subsection (f), a
purchase, redemption or acquisition of a Common Stock Equivalent
shall be deemed to be a purchase of the underlying Common Stock,
and the computation herein required shall be made on the basis of
the full exercise, conversion or exchange of such Common Stock
Equivalent on the date as of which such computation is required
hereby to be made, whether or not such Common Stock Equivalent is
actually exercisable, convertible or exchangeable on such date.
(g) Other Provisions Applicable to Adjustments Under this
Section 4. The following provisions shall be applicable to the
making of adjustments in the Warrant Price hereinbefore provided
in Section 4(d), (e) and (f):
(i) Computation of Consideration. The consideration
received by the Issuer shall be deemed to be the following: to
the extent that any Additional Shares of Common Stock or any
Common Stock Equivalents shall be issued for a cash
consideration, the consideration received by the Issuer therefor,
or, if such Additional Shares of Common Stock or Common Stock
Equivalents are offered by the Issuer for subscription, the
subscription price, or, if such Additional Shares of Common Stock
or Common Stock Equivalents are sold to underwriters or dealers
for public offering without a subscription offering, the public
offering price, in any such case excluding any amounts paid or
receivable for accrued interest or accrued dividends and without
deduction of any compensation, discounts, commissions, or
expenses paid or incurred by the Issuer for or in connection with
the underwriting thereof or otherwise in connection with the
issue thereof; to the extent that such issuance shall be for a
consideration other than cash, then, except as herein otherwise
expressly provided, the fair market value of such consideration
10
659294v9
at the time of such issuance as determined in good faith by the
Board. The consideration for any Additional Shares of Common
Stock issuable pursuant to any Common Stock Equivalents shall be
the consideration received by the Issuer for issuing such Common
Stock Equivalents, plus the additional consideration payable to
the Issuer upon the exercise, conversion or exchange of such
Common Stock Equivalents. In case of the issuance at any time of
any Additional Shares of Common Stock or Common Stock Equivalents
in payment or satisfaction of any dividend upon any class of
Capital Stock other than Common Stock, the Issuer shall be deemed
to have received for such Additional Shares of Common Stock or
Common Stock Equivalents a consideration equal to the amount of
such dividend so paid or satisfied. In any case in which the
consideration to be received or paid shall be other than cash,
the Board shall notify the holder of this Warrant of its
determination of the fair market value of such consideration
prior to payment or accepting receipt thereof. If, within thirty
days after receipt of said notice, the Majority Holders shall
notify the Board in writing of their objection to such
determination, a determination of the fair market value of such
consideration shall be made by an Independent Appraiser selected
by the Majority Holders with the approval of the Board (which
approval shall not be unreasonably withheld), whose fees and
expenses shall be paid by the Issuer.
(ii) Readjustment of Warrant Price. Upon the expiration or
termination of the right to convert, exchange or exercise any
Common Stock Equivalent the issuance of which effected an
adjustment in the Warrant Price, if such Common Stock Equivalent
shall not have been converted, exercised or exchanged in its
entirety, the number of shares of Common Stock deemed to be
issued and outstanding by reason of the fact that they were
issuable upon conversion, exchange or exercise of any such Common
Stock Equivalent shall no longer be computed as set forth above,
and the Warrant Price shall forthwith be readjusted and
thereafter be the price which it would have been (but reflecting
any other adjustments in the Warrant Price made pursuant to the
provisions of this Section 4 after the issuance of such Common
Stock Equivalent) had the adjustment of the Warrant Price been
made in accordance with the issuance or sale of the number of
Additional Shares of Common Stock actually issued upon
conversion, exchange or issuance of such Common Stock Equivalent
and thereupon only the number of Additional Shares of Common
Stock actually so issued shall be deemed to have been issued and
only the consideration actually received by the Issuer (computed
as in clause (i) of this subsection (g)) shall be deemed to have
been received by the Issuer.
(iii) Treasury Shares. The number of shares of Common
Stock at any time outstanding shall not include any shares
thereof then directly or indirectly owned or held by or for the
account of the Issuer or any of its Subsidiaries.
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659294v9
(h) Other Action Affecting Common Stock. In case after the
date hereof the Issuer shall take any action affecting its Common
Stock, other than an action described in any of the foregoing
subsections (a) through (g) of this Section 4, inclusive, and the
failure to make any adjustment would not fairly protect the
purchase rights represented by this Warrant in accordance with
the essential intent and principle of this Section 4, then the
Warrant Price shall be adjusted in such manner and at such time
as the Board may in good faith determine to be equitable in the
circumstances.
(i) Adjustment of Number of Shares. Upon each adjustment
in the Warrant Price pursuant to any of the foregoing provisions
of this Section 4, the number of shares of Warrant Stock
purchasable hereunder shall be adjusted, to the nearest one
hundredth of a whole share, to the product obtained by
multiplying such number of shares purchasable immediately prior
to such adjustment in the Warrant Price by a fraction, the
numerator of which shall be the Warrant Price immediately before
giving effect to such adjustment and the denominator of which
shall be the Warrant Price immediately after giving effect to
such adjustment. If the Issuer shall be in default under any
provision contained in Section 3 of this Warrant so that shares
issued at the Warrant Price adjusted in accordance with this
Section 4 would not be validly issued, the adjustment of number
of shares provided for in the foregoing sentence shall
nonetheless be made and the holder of this Warrant shall be
entitled to purchase such greater number of shares at the lowest
price at which such shares may then be validly issued under
applicable law. Such exercise shall not constitute a waiver of
any claim arising against the Issuer by reason of its default
under Section 3 of this Warrant.
5. Notice of Adjustments. Whenever the Warrant Price or
number of shares of Warrant Stock purchasable upon exercise of
this Warrant shall be adjusted pursuant to Section 4 hereof, the
Issuer shall cause its Chief Financial Officer to prepare and
execute a certificate setting forth, in reasonable detail, the
event requiring the adjustment, the amount of the adjustment, the
method by which such adjustment was calculated (including a
description of the basis on which the Board made any
determination hereunder), and the Warrant Price and number of
shares of Warrant Stock purchasable hereunder after giving effect
to such adjustment, and shall cause copies of such certificate to
be delivered to the holder of this Warrant promptly after each
adjustment. Any dispute between the Issuer and the holder of
this Warrant with respect to the matters set forth in such
certificate may at the option of the holder of this Warrant be
submitted to a nationally recognized accounting firm selected by
it, which firm shall be instructed to deliver a written opinion
as to such matters to the Issuer and such holder within thirty
days after submission to it of such dispute. Such opinion shall
be final and binding on the parties hereto. The fees and
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expenses of such accounting firm shall be paid by the Issuer.
6. Fractional Shares. No fractional shares of Warrant
Stock will be issued in connection with any exercise hereof, but
in lieu of such fractional shares, the Issuer shall make a cash
payment therefor equal in amount to the product of the applicable
fraction multiplied by the Current Market Price then in effect.
7. Definitions. For the purposes of this Warrant, the
following terms have the following meanings:
"Additional Shares of Common Stock" means all shares of
Common Stock issued by the Issuer after the date of this Warrant,
and all shares of Other Common Stock, if any, issued by the
Issuer after the date of this Warrant, except (i) Warrant Stock,
(ii) shares of Common Stock issuable upon exercise of the
warrants issued by the Company to ING (U.S.) Capital Corporation
("ING") pursuant to the Warrant Purchase Agreement dated as of
April 15, 1996 by and between ING and the Issuer, (iii) shares of
Common Stock issuable upon exercise of the warrants issued by the
Company to the Estate of Dr. Stanley Sarnoff, (iv) shares of
voting Common Stock issued upon conversion of any shares of the
Company's Class A Common Stock (as such term is defined in the
Warrant Purchase Agreement dated as of April 15, 1996 between
Brunswick Biomedical Corporation and ING), (v) shares of Common
Stock issuable upon exercise of the warrants issued in connection
with the merger of Brunswick Biomedical Corporation with and into
Survival Technology, Inc. and options assumed in such merger and
(vi) shares of Common Stock issued after May 1, 1998 pursuant to
stock options granted prior to, on or after that date under the
Issuer's current or future employee stock option and director
stock option plans, and shares of Common Stock issued after that
date pursuant to the Issuer's current or future employee stock
purchase, stock bonus and similar employee benefit plans.
"Board" shall mean the Board of Directors of the Issuer.
"Capital Stock" means and includes (i) any and all shares,
interests, participations or other equivalents of or interests in
(however designated) corporate stock, including, without
limitation, shares of preferred or preference stock, (ii) all
partnership interests (whether general or limited) in any Person
which is a partnership, (iii) all membership interests or limited
liability company interests in any limited liability company, and
(iv) all equity or ownership interests in any Person of any other
type.
"Certificate of Incorporation" means the Certificate of
Incorporation of the Issuer as in effect on the date of this
Warrant, and as hereafter from time to time amended, modified,
supplemented or restated in accordance with its terms and
pursuant to applicable law.
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"Common Stock" means the Common Stock, $0.10 par value per
share, of the Issuer and any other Capital Stock into which such
stock may hereafter be changed.
"Common Stock Equivalent" means any Convertible Security or
warrant, option or other right to subscribe for or purchase any
Additional Shares of Common Stock or any Convertible Security.
"Convertible Securities" means evidences of Indebtedness,
shares of Capital Stock or other Securities which are or may be
at any time convertible into or exchangeable for Additional
Shares of Common Stock. The term "Convertible Security" shall
mean one of the Convertible Securities.
"Current Market Price" as of any day means (i) the average
of the last sale prices of the Common Stock on the 10 most recent
Trading Days preceding such day, as quoted in the National Market
System ("NMS/NASDAQ") of the National Association of Securities
Dealers, Inc. Automated Quotation System ("NASDAQ"), as
published in The Wall Street Journal (or, if for any reason such
information for such Trading Day is not available in The Wall
Street Journal, then as published in any other newspaper of
general circulation which regularly publishes such information);
or (ii) if such Common Stock is not then quoted in NMS/NASDAQ,
but is listed on the New York Stock Exchange and reported on the
New York Stock Exchange Consolidated Tape, such Current Market
Price shall be the average of the last sale prices (regular way)
of the Common Stock on the 10 most recent Trading Days preceding
such day, as reported on such Consolidated Tape (as published in
The Wall Street Journal or, if for any reason such information
for such Trading Day is not available in The Wall Street Journal,
then as published in any other newspaper of general circulation
which regularly publishes such information); or (iii) if such
Common Stock is not then listed on the New York Stock Exchange,
Inc. or reported on such Consolidated Tape, but is listed or
admitted to trading on any other domestic securities exchange,
then such Current Market Price shall be the average of the last
sale prices on the 10 most recent Trading Days preceding such day
on the principal domestic stock exchange on which such stock is
then listed or admitted to trading, or, if no sale takes place on
such day on such exchange, the average of the closing bid and
asked prices on such day as officially quoted on such exchange;
or (iv) if such Common Stock is not then listed or admitted to
trading on any domestic securities exchange nor quoted in
NMS/NASDAQ, then the Current Market Price for such Trading Day
shall be the average of the respective averages of the reported
closing bid and asked price quotations on the 10 most recent
Trading Days preceding such day in the over-the-counter market,
as reported by NASDAQ, or, if not so reported, as furnished by
the National Quotation Bureau, Inc., or, if such firm at the time
is not engaged in the business of reporting such prices, as
furnished by any similar firm then engaged in such business as
selected by the Issuer, or if there is no such firm, as furnished
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659294v9
by any member of the National Association of Securities Dealers,
Inc. selected by the Issuer with the written approval of the
Majority Holders; or (v) if such Common Stock is not listed or
admitted to trading on any domestic securities exchange or quoted
in the domestic over-the-counter market, the Current Market Price
shall be deemed to be an amount mutually agreed upon in writing
between the Issuer and the Majority Holders within fifteen days
immediately following the date on which the Current Market Price
is to be determined. If no such agreement as to Current Market
Price is so reached, the Current Market Price shall be the fair
market value per share of Common Stock as of the applicable date
hereunder, as determined by an Independent Appraiser selected by
the Majority Holders and consented to by the Issuer (such consent
not to be unreasonably withheld), whose fees and expenses shall
be paid by the Issuer. The determination of fair market value by
such Independent Appraiser shall be based upon the fair market
value of the Issuer determined on a going concern basis as
between a willing buyer and a willing seller and taking into
account all relevant factors determinative of value, and shall be
final and binding on all parties. In determining the fair market
value of any shares of Common Stock, no consideration shall be
given to any restrictions on transfer of the Common Stock imposed
by any stockholders' agreement or similar agreement or by federal
or state securities laws.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute at the time in effect,
and a reference to a particular section thereof shall include a
reference to the comparable section, if any, of any such similar
federal statute.
"Independent Appraiser" means a nationally recognized
investment banking firm or other nationally recognized firm that
is regularly engaged in the business of appraising the Capital
Stock or assets of corporations or other entities as going
concerns, and which is not affiliated with either the Issuer or
the holder of any Warrant.
"Issuer" means Meridian Medical Technologies, Inc., a
Delaware corporation, and its successors.
"Majority Holders" means at any time the holders of Warrants
exercisable for a majority of the shares of Warrant Stock
issuable under the Warrants at the time outstanding.
"NASD" means the National Association of Securities Dealers,
Inc., and any successor organization or entity.
"Note and Warrant Purchase Agreement" means the Note and
Warrant Purchase Agreement, dated as of May 1, 1998, between the
Issuer and Nomura Holding America Inc., as such agreement may
from time to time be amended, modified or supplemented in
accordance with its terms.
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"Notes" means the 12.0% Senior Subordinated Notes Due 2005
of the Issuer in the aggregate original principal amount of
$15,000,000 issued pursuant to the Note and Warrant Purchase
Agreement.
"Other Common Stock" means any Capital Stock of the Issuer
of any class which shall be authorized at any time after the date
of this Warrant (other than Common Stock) and which shall have
the right to participate in the distribution of earnings and
assets of the Issuer without limitation as to amount.
"Person" means and includes an individual, a partnership, a
joint venture, a corporation, a company, a trust, an
unincorporated organization and a government or any department or
agency thereof.
"SEC" means the United States Securities and Exchange
Commission and any successor agency, authority, commission or
governmental body.
"Securities" means any debt or equity securities of the
Issuer, whether now or hereafter authorized, any instrument
convertible into or exchangeable for Securities or a Security,
and any option, warrant or other right to purchase or acquire any
Security. "Security" shall mean one of the Securities.
"Securities Act" means as of any date the Securities Act of
1933, as amended, or any similar federal statute then in effect,
and a reference to a particular section thereof shall include a
reference to the comparable section, if any, of any such similar
federal statute.
"Subsidiary" means, with respect to any Person, any
corporation or other entity of which at least a majority of the
outstanding Voting Stock is at the time directly or indirectly
owned or controlled by such Person or by one or more of any
entities directly or indirectly owned or controlled by such
Person.
"Trading Day" shall mean any day on which equity securities
are traded and quoted on NASDAQ, or, if at any time of
determination the Common Stock shall no longer be quoted on
NASDAQ, then such term shall mean any day on which equity
securities are traded on the principal domestic securities
exchange on which the Common Stock shall then be listed.
"Underwritten Offering" means any public offering of
Securities distributed by means of a firm commitment
underwriting.
"Voting Stock", as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however
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designated) having ordinary voting power for the election of a
majority of the members of the Board of Directors (or other
governing body) of such corporation, other than Capital Stock
having such power only by reason of the happening of a
contingency.
"Warrants" means the Warrants issued and sold pursuant to
the Note and Warrant Purchase Agreement, including, without
limitation, this Warrant, and any other warrants of like tenor
issued in substitution or exchange for any thereof pursuant to
the provisions of Section 2(c) or 2(d) hereof or Section 2(c) or
2(d) of any of such other Warrants.
"Warrant Price" shall mean the price specified in the first
paragraph of this Warrant and such other prices as shall result
from the adjustments specified in Section 4 hereof.
"Warrant Stock" shall mean Common Stock issuable upon
exercise of any Warrants or Warrants.
8. Amendment and Waiver. Any term, covenant, agreement or
condition in this Warrant may be amended, or compliance therewith
may be waived (either generally or in a particular instance and
either retroactively or prospectively), by a written instrument
or written instruments executed by the Issuer and the Majority
Holders; provided, however, that no such amendment or waiver
shall reduce the number of shares of Warrant Stock issuable under
the Warrants, increase the Warrant Price, shorten the period
during which the Warrants may be exercised or modify any
provision of this Section 8 without the consent of the holders of
all Warrants then outstanding.
9. Governing Law. THIS WARRANT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
10. Notices. All notices and other communications provided
for hereunder shall be in writing and delivered by hand or sent
by first class mail or sent by telecopy (with such telecopy to be
confirmed promptly in writing sent by first class mail), and if
to the holder of this Warrant or of Warrant Stock issued pursuant
hereto, addressed to such holder at its last known address or
telecopy number appearing on the books of the Issuer maintained
for such purposes, and if to the Issuer, addressed to:
Meridian Medical Technologies, Inc.
10240 Old Columbia Road
Columbia, Maryland 21046
Attention: Chief Executive Officer
Telecopy No.: (410) 309-1691;
with a copy to:
Arnold & Porter
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659294v9
555 12th Street, N.W.
Washington, D.C. 20004-1202
Attention: Steven Kaplan, Esq.
Telecopy No.: (202) 942-5999;
or to such other address or addresses or telecopy number or
numbers as any such party may most recently have designated in
writing to the other parties hereto by such notice. All such
communications shall be deemed to have been given or made when so
delivered by hand or sent by telecopy, or three business days
after being so mailed.
11. Remedies. The Issuer stipulates that the remedies at
law of the holder of this Warrant in the event of any default or
threatened default by the Issuer in the performance of or
compliance with any of the terms of this Warrant are not and will
not be adequate and that, to the fullest extent permitted by law,
such terms may be specifically enforced by a decree for the
specific performance of any agreement contained herein or by an
injunction against a violation of any of the terms hereof or
otherwise.
12. Successors and Assigns. This Warrant and the rights
evidenced hereby shall inure to the benefit of and be binding
upon the successors and assigns of the Issuer, the holder hereof
and (to the extent provided herein) the holders of Warrant Stock
issued pursuant hereto, and shall be enforceable by any such
holder or holder of Warrant Stock.
13. Modification and Severability. If, in any action
before any court or agency legally empowered to enforce any
provision contained herein, any provision hereof is found to be
unenforceable, then such provision shall be deemed modified to
the extent necessary to make it enforceable by such court or
agency. If any such provision is not enforceable as set forth in
the preceding sentence, the unenforceability of such provision
shall not affect the other provisions of this Agreement, but this
Agreement shall be construed as if such unenforceable provision
had never been contained herein.
14. Integration. This Warrant and the other Warrants
issued pursuant to the Note and Warrant Purchase Agreement
replace all prior agreements, supersede all prior negotiations
and constitute the entire agreement of the parties with respect
to the transactions contemplated herein. References to the Note
and Warrant Purchase Agreement herein shall, to the extent that
the Notes and other obligations thereunder have been repaid and
such Note and Warrant Purchase Agreement have terminated, mean
the Note and Warrant Purchase Agreement as in effect immediately
prior to its termination.
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15. Headings. The headings of the Sections of this Warrant
are for convenience of reference only and shall not, for any
purpose, be deemed a part of this Warrant.
MERIDIAN MEDICAL TECHNOLOGIES, INC.
By: _____________________________
Name:
Title:
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659294v9
SUBSCRIPTION
MERIDIAN MEDICAL TECHNOLOGIES, INC.
The undersigned _______________, pursuant to the provisions
of the within Warrant, hereby elects to purchase _______________
shares of Common Stock of MERIDIAN MEDICAL TECHNOLOGIES, INC.
covered by the within Warrant.
Dated: _______________ Signature _______________
Address _______________
_______________
ASSIGNMENT
FOR VALUE RECEIVED, _______________ hereby sells, assigns
and transfers unto _______________ the within Warrant and all
rights evidenced thereby and does irrevocably constitute and
appoint _______________, attorney, to transfer the said Warrant
on the books of the within named corporation.
Dated: _______________ Signature _______________
Address _______________
_______________
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED, _______________ hereby sells, assigns
and transfers unto _______________ the right to purchase _____
shares of Warrant Stock evidenced by the within Warrant together
with all rights therein, and does irrevocably constitute and
appoint __________, attorney, to transfer that part of the said
Warrant on the books of the within named corporation.
Dated: _______________ Signature _______________
Address _______________
_______________
FOR USE BY THE CORPORATION ONLY:
This Warrant No. W-___ canceled (or transferred or exchanged)
this ___ day of ____________ 19_, _______________ shares of
Common Stock issued therefor in the name of _______________,
Warrant No. W-__ issued for _____ shares of Common Stock in the
name of _______________.
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