NEITHER THIS WARRANT NOR THE SHARES OF STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO SALE, TRANSFER
OR OTHER DISPOSITION OF THIS WARRANT OR SAID SHARES MAY BE EFFECTED WITHOUT (i)
AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO, OR (ii) AN OPINION OF
COUNSEL, REASONABLY SATISFACTORY TO COUNSEL TO THE COMPANY, THAT AN EXEMPTION
FROM REGISTRATION UNDER SAID ACT IS AVAILABLE.
Warrant No. of
No. P-1 STOCK PURCHASE WARRANT Shares 400,000
-------
To Subscribe for and Purchase Common Stock of
BOSTON BIOMEDICA, INC.
THIS CERTIFIES that, for value received, Paradigm Group, L.L.C. (the
"Holder"), is entitled, upon the terms and subject to the conditions hereinafter
set forth, to subscribe for and purchase from Boston Biomedica, Inc., a
Massachusetts corporation (hereinafter called the "Company"), at the price
hereinafter set forth in Section 2 up to 400,000 fully paid and non-assessable
shares of the Company's common stock, $.01 par value per share (the "Shares").
This stock purchase warrant (the "Warrant") is issued to the Holder in
connection with, and subject to the terms of, that certain Warrant Purchase
Agreement dated August 18, 1999, by and between the Company and the Holder.
1. Definitions. As used herein the following term shall have the
-----------
following meaning:
"Act" means the Securities Act of 1933 as amended, or a similar Federal
---
statute and the rules and regulations of the Commission issued under that Act,
as they each may, from time to time, be in effect.
2. Purchase Rights. The purchase rights represented by this Warrant are
---------------
exercisable by the Holder in whole or in part, at any time and from time to time
commencing on the date hereof and ending at 5:00 p.m. on February 17, 2000. This
Warrant may be exercised for Shares at a price of $4.25 per share, subject to
adjustment as provided in Section 6 (the "Warrant Purchase Price").
3. Exercise of Warrant. Subject to Section 2 above, the purchase rights
-------------------
represented by this Warrant may be exercised, in whole or in part and from time
to time, by the surrender of this Warrant and the duly executed Notice of
Exercise (the form of which is attached as Exhibit A) at the principal office of
the Company and by the payment to the Company, by wire transfer of immediately
available funds, of an amount equal to the then applicable Warrant Purchase
Price per share multiplied by the number of Shares then being purchased. Upon
exercise, the Holder shall be entitled to receive, within a reasonable time, a
certificate or certificates, issued in the Holder's name or in such name or
names as the Holder may direct, for the number of Shares so purchased. The
Shares so purchased shall be deemed to be issued as of the close of business on
the date on which this Warrant shall have been exercised.
4. Shares to be Issued; Reservation of Shares. The Company covenants
-------------------------------------------
that the Shares that may be issued upon the exercise of the purchase rights
represented by this Warrant will, upon issuance, be fully paid and
non-assessable, and free from all liens and charges with respect to the issue
thereof. During the period within which the purchase rights represented by the
Warrant may be exercised, the Company will at all times have authorized and
reserved, for the purpose of issuance upon exercise of the purchase rights
represented by this Warrant, a sufficient number of shares of its Common Stock
to provide for the exercise of the right represented by this Warrant.
5. No Fractional Shares. No fractional shares shall be issued upon the
---------------------
exercise of this Warrant. In lieu thereof, a cash payment shall be made equal to
such fraction multiplied by the fair market value of such shares of Common
Stock, as determined in good faith by the Company's Board of Directors.
6. Adjustments of Warrant Purchase Price and Number of Shares. If there
----------------------------------------------------------
shall be any change in the Common Stock of the Company through merger,
consolidation, reorganization, recapitalization, stock dividend, stock split or
other change in the corporate structure of the Company, appropriate adjustments
shall be made by the Board of Directors of the Company (or if the Company is not
the surviving corporation in any such transaction, the Board of Directors of the
surviving corporation) in the aggregate number and kind of shares subject to
this Warrant, and the number and kind of shares and the price per share then
applicable to shares covered by the unexercised portion of this Warrant.
7. No Rights as Shareholders. This Warrant does not entitle the Holder
-------------------------
to any voting rights or other rights as a shareholder of the Company prior to
exercise of this Warrant and the payment for the Shares so purchased.
Notwithstanding the foregoing, the Company agrees to transmit to the Holder such
information, documents and reports as are generally distributed to holders of
the capital stock of the Company concurrently with the distribution thereof to
the shareholders. Upon valid exercise of this Warrant and payment for the Shares
so purchased in accordance with the terms of the Warrant, the Holder or the
Holder's designee, as the case may be, shall be deemed a shareholder of the
Company.
8. Sale or Transfer of the Warrant; Legend. The Warrant shall not be
----------------------------------------
sold or transferred. The Shares shall not be sold or transferred unless either
(i) they first shall have been registered under the Act, or (ii) the Company
first shall have been furnished with an opinion of legal counsel satisfactory to
the Company to the effect that such sale or transfer is exempt from the
registration requirements of the Act. Each certificate representing any Warrant
shall bear the legend set out on page 1 hereof. Unless the Shares have been
registered under the Act, each certificate representing any Shares shall bear a
legend substantially in the following form, as appropriate:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH,
THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION
MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
-2-
Such Warrant and Shares may be subject to additional restrictions on transfer
imposed under applicable state and federal securities law.
9. Modifications and Waivers. This Warrant may not be changed, waived,
-------------------------
discharged or terminated except by an instrument in writing signed by the party
against which enforcement of the same is sought.
10. Notices. Any notice, request or other document required or
-------
permitted to be given or delivered to the Holder or the Company shall be
delivered, or shall be sent by certified or registered mail, postage prepaid, to
the Holder at its address shown on the books of the Company or to the Company at
the address indicated therefor on the signature page of this Warrant, or, if
different, at the principal office of the Company.
11. Loss, Theft, Destruction or Mutilation of Warrant. The Company
-----------------------------------------------------
covenants with the Holder that upon its receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant or any stock certificate and, in the case of any such loss, theft
or destruction, of an indemnity or security reasonably satisfactory to it, and
upon reimbursement to the Company of all reasonable expenses incidental thereto,
and upon surrender and cancellation of this Warrant or stock certificate, if
mutilated, the Company will make and deliver a new Warrant or stock certificate,
of like tenor, in lieu of the lost, stolen, destroyed or mutilated Warrant or
stock certificate.
12. Representations and Warranties of Holder. By accepting this
--------------------------------------------
Warrant, the Holder represents and warrants that he, she or it is acquiring this
Warrant and the Shares for his, her or its own account, for investment and not
with a view to, or for sale in connection with, any distribution thereof or any
part thereof. Holder represents and warrants that he, she or it is (a)
experienced in the evaluation of businesses similar to the Company, (b) is able
to fend for himself, herself or itself in the transactions contemplated by this
Warrant, (c) has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Company, (d) has the ability to bear the economic risks of an investment in the
Company, (e) has been furnished with or has had access to such information as is
specified in subparagraph (b)(2) of Rule 502 promulgated under the Act and (f)
has been afforded the opportunity to ask questions of and to receive answers
from the Company and to obtain any additional information necessary to make an
informed investment decision with respect to an investment in the Company.
13. Binding Effect on Successors. This Warrant shall be binding upon
------------------------------
any corporation succeeding the Company by merger, consolidation or acquisition
of all or substantially all of the Company's assets, and all of the obligations
of the Company relating to the Shares issuable upon exercise of this Warrant
shall survive the exercise and termination of this Warrant and all of the
covenants and agreements of the Company shall inure to the benefit of the
successors and assigns of the Holder.
14. Governing Law. This Warrant shall be construed and enforced in
-------------
accordance with, and the rights of the parties shall be governed by, the laws of
the Commonwealth of Massachusetts.
-3-
IN WITNESS WHEREOF, BOSTON BIOMEDICA, INC. has caused this Warrant to
be executed under seal by its officer thereunto duly authorized.
Dated: August 18, 1999
BOSTON BIOMEDICA, INC.
CORPORATE
SEAL
By: /S/ Richard T. Schumacher
-----------------------------
Richard T. Schumacher,
Its President
Address: 375 West Street
West Bridgewater, MA 02379
#838389 v\3 - fitzgemr - hywl01!.doc_ - 11563/1
-4-
EXHIBIT A
NOTICE OF EXERCISE
------------------
To: BOSTON BIOMEDICA, INC.
1. The undersigned hereby elects to purchase _______ shares of Common
Stock of BOSTON BIOMEDICA, INC. (the "Company") pursuant to the terms of the
attached Warrant, and tenders herewith payment of the purchase price of such
shares in full.
2. Please issue a certificate or certificates representing said shares
in the name of the undersigned or in such other name or names as are specified
below.
3. The undersigned represents and warrants as follows (the following
applies only in the event said shares have not been registered under the
Securities Act of 1933, as amended):
The undersigned is purchasing or acquiring the aforesaid
shares of Common Stock for its own account for investment and
not with a present view to, or for sale in connection with,
any distribution thereof in violation of the Act. The
undersigned represents and warrants that the undersigned: (a)
is experienced in the evaluation of businesses similar to the
Company, (b) has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits
and risks of an investment in the Company, (c) has the ability
to bear the economic risks of an investment in the Company,
(d) has been furnished with or has had access to such
information as is specified in subparagraph (b)(2) of Rule 502
promulgated under the Act and has carefully reviewed and
understood such information, (e) has been afforded the
opportunity to ask questions of and to receive answers from
the Company and to obtain any additional information necessary
to make an informed investment decision with respect to an
investment in the Company, and (f) is an "Accredited Investor"
as such term is defined in subparagraph (a) of Rule 501
promulgated under the Act.
4. In the event of partial exercise, please re-issue an appropriate
Warrant exercisable into the remaining shares.
-------------------------------
(Name)
-------------------------------
(Address)
-------------------------------
(Signature)
------------------------------
(Date)
#838389 v\2 - fitzgemr - hywl02!.doc_ - 11563/1
-5-
NEITHER THIS WARRANT NOR THE SHARES OF STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO SALE, TRANSFER
OR OTHER DISPOSITION OF THIS WARRANT OR SAID SHARES MAY BE EFFECTED WITHOUT (i)
AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO, OR (ii) AN OPINION OF
COUNSEL, REASONABLY SATISFACTORY TO COUNSEL TO THE COMPANY, THAT AN EXEMPTION
FROM REGISTRATION UNDER SAID ACT IS AVAILABLE.
Warrant No. of
No. P-2 STOCK PURCHASE WARRANT Shares 100,000
-------
To Subscribe for and Purchase Common Stock of
BOSTON BIOMEDICA, INC.
THIS CERTIFIES that, for value received, Paradigm Group, L.L.C. (the
"Holder"), is entitled, upon the terms and subject to the conditions hereinafter
set forth, to subscribe for and purchase from Boston Biomedica, Inc., a
Massachusetts corporation (hereinafter called the "Company"), at the price
hereinafter set forth in Section 2 up to 100,000 fully paid and non-assessable
shares of the Company's common stock, $.01 par value per share (the "Shares").
This stock purchase warrant (the "Warrant") is issued to the Holder in
connection with, and subject to the terms of, that certain Warrant Purchase
Agreement dated August 18, 1999, by and between the Company and the Holder.
1. Definitions. As used herein the following term shall have the
-----------
following meaning:
"Act" means the Securities Act of 1933 as amended, or a similar Federal
---
statute and the rules and regulations of the Commission issued under that Act,
as they each may, from time to time, be in effect.
2. Purchase Rights. The purchase rights represented by this Warrant are
---------------
exercisable by the Holder in whole or in part, at any time and from time to time
commencing on the date hereof and ending at 5:00 p.m. on February 17, 2000. This
Warrant may be exercised for Shares at a price of $5.25 per share, subject to
adjustment as provided in Section 6 (the "Warrant Purchase Price").
3. Exercise of Warrant. Subject to Section 2 above, the purchase rights
-------------------
represented by this Warrant may be exercised, in whole or in part and from time
to time, by the surrender of this Warrant and the duly executed Notice of
Exercise (the form of which is attached as Exhibit A) at the principal office of
the Company and by the payment to the Company, by wire transfer of immediately
available funds, of an amount equal to the then applicable Warrant Purchase
Price per share multiplied by the number of Shares then being purchased. Upon
exercise, the Holder shall be entitled to receive, within a reasonable time, a
certificate or certificates, issued in the Holder's name or in such name or
names as the Holder may direct, for the number of Shares so purchased. The
Shares so purchased shall be deemed to be issued as of the close of business on
the date on which this Warrant shall have been exercised.
4. Shares to be Issued; Reservation of Shares. The Company covenants
-------------------------------------------
that the Shares that may be issued upon the exercise of the purchase rights
represented by this Warrant will, upon issuance, be fully paid and
non-assessable, and free from all liens and charges with respect to the issue
thereof. During the period within which the purchase rights represented by the
Warrant may be exercised, the Company will at all times have authorized and
reserved, for the purpose of issuance upon exercise of the purchase rights
represented by this Warrant, a sufficient number of shares of its Common Stock
to provide for the exercise of the right represented by this Warrant.
5. No Fractional Shares. No fractional shares shall be issued upon the
---------------------
exercise of this Warrant. In lieu thereof, a cash payment shall be made equal to
such fraction multiplied by the fair market value of such shares of Common
Stock, as determined in good faith by the Company's Board of Directors.
6. Adjustments of Warrant Purchase Price and Number of Shares. If there
----------------------------------------------------------
shall be any change in the Common Stock of the Company through merger,
consolidation, reorganization, recapitalization, stock dividend, stock split or
other change in the corporate structure of the Company, appropriate adjustments
shall be made by the Board of Directors of the Company (or if the Company is not
the surviving corporation in any such transaction, the Board of Directors of the
surviving corporation) in the aggregate number and kind of shares subject to
this Warrant, and the number and kind of shares and the price per share then
applicable to shares covered by the unexercised portion of this Warrant.
7. No Rights as Shareholders. This Warrant does not entitle the Holder
-------------------------
to any voting rights or other rights as a shareholder of the Company prior to
exercise of this Warrant and the payment for the Shares so purchased.
Notwithstanding the foregoing, the Company agrees to transmit to the Holder such
information, documents and reports as are generally distributed to holders of
the capital stock of the Company concurrently with the distribution thereof to
the shareholders. Upon valid exercise of this Warrant and payment for the Shares
so purchased in accordance with the terms of the Warrant, the Holder or the
Holder's designee, as the case may be, shall be deemed a shareholder of the
Company.
8. Sale or Transfer of the Warrant; Legend. The Warrant shall not be
----------------------------------------
sold or transferred. The Shares shall not be sold or transferred unless either
(i) they first shall have been registered under the Act, or (ii) the Company
first shall have been furnished with an opinion of legal counsel satisfactory to
the Company to the effect that such sale or transfer is exempt from the
registration requirements of the Act. Each certificate representing any Warrant
shall bear the legend set out on page 1 hereof. Unless the Shares have been
registered under the Act, each certificate representing any Shares shall bear a
legend substantially in the following form, as appropriate:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH,
THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION
MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
-2-
Such Warrant and Shares may be subject to additional restrictions on transfer
imposed under applicable state and federal securities law.
9. Modifications and Waivers. This Warrant may not be changed, waived,
-------------------------
discharged or terminated except by an instrument in writing signed by the party
against which enforcement of the same is sought.
10. Notices. Any notice, request or other document required or
-------
permitted to be given or delivered to the Holder or the Company shall be
delivered, or shall be sent by certified or registered mail, postage prepaid, to
the Holder at its address shown on the books of the Company or to the Company at
the address indicated therefor on the signature page of this Warrant, or, if
different, at the principal office of the Company.
11. Loss, Theft, Destruction or Mutilation of Warrant. The Company
-----------------------------------------------------
covenants with the Holder that upon its receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant or any stock certificate and, in the case of any such loss, theft
or destruction, of an indemnity or security reasonably satisfactory to it, and
upon reimbursement to the Company of all reasonable expenses incidental thereto,
and upon surrender and cancellation of this Warrant or stock certificate, if
mutilated, the Company will make and deliver a new Warrant or stock certificate,
of like tenor, in lieu of the lost, stolen, destroyed or mutilated Warrant or
stock certificate.
12. Representations and Warranties of Holder. By accepting this
--------------------------------------------
Warrant, the Holder represents and warrants that he, she or it is acquiring this
Warrant and the Shares for his, her or its own account, for investment and not
with a view to, or for sale in connection with, any distribution thereof or any
part thereof. Holder represents and warrants that he, she or it is (a)
experienced in the evaluation of businesses similar to the Company, (b) is able
to fend for himself, herself or itself in the transactions contemplated by this
Warrant, (c) has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Company, (d) has the ability to bear the economic risks of an investment in the
Company, (e) has been furnished with or has had access to such information as is
specified in subparagraph (b)(2) of Rule 502 promulgated under the Act and (f)
has been afforded the opportunity to ask questions of and to receive answers
from the Company and to obtain any additional information necessary to make an
informed investment decision with respect to an investment in the Company.
13. Binding Effect on Successors. This Warrant shall be binding upon
------------------------------
any corporation succeeding the Company by merger, consolidation or acquisition
of all or substantially all of the Company's assets, and all of the obligations
of the Company relating to the Shares issuable upon exercise of this Warrant
shall survive the exercise and termination of this Warrant and all of the
covenants and agreements of the Company shall inure to the benefit of the
successors and assigns of the Holder.
14. Governing Law. This Warrant shall be construed and enforced in
-------------
accordance with, and the rights of the parties shall be governed by, the laws of
the Commonwealth of Massachusetts.
-3-
IN WITNESS WHEREOF, BOSTON BIOMEDICA, INC. has caused this Warrant to
be executed under seal by its officer thereunto duly authorized.
Dated: August 18, 1999
BOSTON BIOMEDICA, INC.
CORPORATE
SEAL
By: /S/ Richard T. Schumacher
-----------------------------
Richard T. Schumacher,
Its President
Address: 375 West Street
West Bridgewater, MA 02379
#838491 v\3 - fitzgemr - hyzf01!.doc_ - 11563/1
-4-
EXHIBIT A
NOTICE OF EXERCISE
------------------
To: BOSTON BIOMEDICA, INC.
1. The undersigned hereby elects to purchase _______ shares of Common
Stock of BOSTON BIOMEDICA, INC. (the "Company") pursuant to the terms of the
attached Warrant, and tenders herewith payment of the purchase price of such
shares in full.
2. Please issue a certificate or certificates representing said shares
in the name of the undersigned or in such other name or names as are specified
below.
3. The undersigned represents and warrants as follows (the following
applies only in the event said shares have not been registered under the
Securities Act of 1933, as amended):
The undersigned is purchasing or acquiring the aforesaid
shares of Common Stock for its own account for investment and
not with a present view to, or for sale in connection with,
any distribution thereof in violation of the Act. The
undersigned represents and warrants that the undersigned: (a)
is experienced in the evaluation of businesses similar to the
Company, (b) has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits
and risks of an investment in the Company, (c) has the ability
to bear the economic risks of an investment in the Company,
(d) has been furnished with or has had access to such
information as is specified in subparagraph (b)(2) of Rule 502
promulgated under the Act and has carefully reviewed and
understood such information, (e) has been afforded the
opportunity to ask questions of and to receive answers from
the Company and to obtain any additional information necessary
to make an informed investment decision with respect to an
investment in the Company, and (f) is an "Accredited Investor"
as such term is defined in subparagraph (a) of Rule 501
promulgated under the Act.
4. In the event of partial exercise, please re-issue an appropriate
Warrant exercisable into the remaining shares.
-------------------------------
(Name)
-------------------------------
(Address)
-------------------------------
(Signature)
------------------------------
(Date)
#838491 v\3 - fitzgemr - hyzf03!.doc_ - 11563/1
-5-
NEITHER THIS WARRANT NOR THE SHARES OF STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO SALE, TRANSFER
OR OTHER DISPOSITION OF THIS WARRANT OR SAID SHARES MAY BE EFFECTED WITHOUT (i)
AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO, OR (ii) AN OPINION OF
COUNSEL, REASONABLY SATISFACTORY TO COUNSEL TO THE COMPANY, THAT AN EXEMPTION
FROM REGISTRATION UNDER SAID ACT IS AVAILABLE.
Warrant No. of
No. N-2__ STOCK PURCHASE WARRANT Shares 40,000
------
To Subscribe for and Purchase Common Stock of
BOSTON BIOMEDICA, INC.
THIS CERTIFIES that, for value received, National Securities (the
"Holder"), is entitled, upon the terms and subject to the conditions hereinafter
set forth, to subscribe for and purchase from Boston Biomedica, Inc., a
Massachusetts corporation (hereinafter called the "Company"), at the price
hereinafter set forth in Section 2 up to 40,000 fully paid and non-assessable
shares of the Company's common stock, $.01 par value per share (the "Shares"),
1. Definitions. As used herein the following term shall have the
-----------
following meaning:
"Act" means the Securities Act of 1933 as amended, or a similar Federal
---
statute and the rules and regulations of the Commission issued under that Act,
as they each may, from time to time, be in effect.
2. Purchase Rights. Reference is made to that certain Warrant Purchase
---------------
Agreement dated August 18, 1999 by and between the Company and Paradigm Group
L.L.C. (the "Investor") and the related warrant to purchase 400,000 shares of
the Company's Common Stock (the "$4.25 Warrant") and the related warrant to
purchase 100,000 shares of the Company's Common Stock (the "$5.25 Warrant) (the
$4.25 Warrant and the $5.25 Warrant are collectively referred to as the
"Warrants"). The purchase rights represented by this Warrant may be exercised by
the Holder in whole or in part only at such time as the $4.25 Warrant has been
exercised by the Investor and then from time to time thereafter and ending at
5:00 p.m. on August 15, 2001, but this Warrant may be exercised during such time
only for that percentage of the 40,000 Shares equal to the same percentage of
the 400,000 shares for which the Investor has exercised its $4.25 Warrant. If
and whenever the $4.25 Warrant has been exercised by the Investor, the Company
will provide notice of such exercise to the Holder within ten (10) days of such
exercise. This Warrant may be exercised for Shares at a price of $4.25 per
share, subject to the foregoing and to adjustment as provided in Section 6 (the
"Warrant Purchase Price").
3. Exercise of Warrant. Subject to Section 2 above, the purchase rights
-------------------
represented by this Warrant may be exercised, in whole or in part and from time
to time, by the surrender of this Warrant and the duly executed Notice of
Exercise (the form of which is attached as Exhibit
A) at the principal office of the Company and by the payment to the Company, by
wire transfer of immediately available funds, of an amount equal to the then
applicable Warrant Purchase Price per share multiplied by the number of Shares
then being purchased. Upon exercise, the Holder shall be entitled to receive,
within a reasonable time, a certificate or certificates issued in the Holder's
name for the number of Shares so purchased. The Shares so purchased shall be
deemed to be issued as of the close of business on the date on which this
Warrant shall have been exercised.
4. Shares to be Issued; Reservation of Shares. The Company covenants
-------------------------------------------
that the Shares that may be issued upon the exercise of the purchase rights
represented by this Warrant will, upon issuance, be fully paid and
non-assessable, and free from all liens and charges with respect to the issue
thereof. During the period within which the purchase rights represented by the
Warrant may be exercised, the Company will at all times have authorized and
reserved, for the purpose of issuance upon exercise of the purchase rights
represented by this Warrant, a sufficient number of shares of its Common Stock
to provide for the exercise of the right represented by this Warrant.
5. No Fractional Shares. No fractional shares shall be issued upon the
---------------------
exercise of this Warrant. In lieu thereof, a cash payment shall be made equal to
such fraction multiplied by the fair market value of such shares of Common
Stock, as determined in good faith by the Company's Board of Directors.
6. Adjustments of Warrant Purchase Price and Number of Shares. If there
----------------------------------------------------------
shall be any change in the Common Stock of the Company through merger,
consolidation, reorganization, recapitalization, stock dividend, stock split or
other change in the corporate structure of the Company, appropriate adjustments
shall be made by the Board of Directors of the Company (or if the Company is not
the surviving corporation in any such transaction, the Board of Directors of the
surviving corporation) in the aggregate number and kind of shares subject to
this Warrant, and the number and kind of shares and the price per share then
applicable to shares covered by the unexercised portion of this Warrant.
7. No Rights as Shareholders. This Warrant does not entitle the Holder
-------------------------
to any voting rights or other rights as a shareholder of the Company prior to
exercise of this Warrant and the payment for the Shares so purchased.
Notwithstanding the foregoing, the Company agrees to transmit to the Holder such
information, documents and reports as are generally distributed to holders of
the capital stock of the Company concurrently with the distribution thereof to
the shareholders. Upon valid exercise of this Warrant and payment for the Shares
so purchased in accordance with the terms of the Warrant, the Holder or the
Holder's designee, as the case may be, shall be deemed a shareholder of the
Company.
8. Sale or Transfer of the Warrant; Legend. The Warrant and the Shares
----------------------------------------
shall not be sold or transferred unless either (i) they first shall have been
registered under the Act, or (ii) the Company first shall have been furnished
with an opinion of legal counsel satisfactory to the Company to the effect that
such sale or transfer is exempt from the registration requirements of the Act.
Each certificate representing any Warrant shall bear the legend set out on page
1 hereof. Each certificate representing any Shares shall bear a legend
substantially in the following form, as appropriate:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN
-2-
CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH
SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
Such Warrant and Shares may be subject to additional restrictions on transfer
imposed under applicable state and federal securities law.
9. REGISTRATION RIGHTS
-------------------
9.1 Piggyback Registrations.
(a) If at any time or times within two (2) years after the date hereof,
the Company shall determine to register any of its securities under the Act and
in connection therewith the Company may lawfully register any of the Shares, the
Company will promptly give written notice thereof to the Holder. Upon the
written request of the Holder within thirty (30) days after receipt of any such
notice from the Company, the Company will, except as herein provided, cause all
Shares which the Holder has requested to be registered to be included in such
Registration Statement, all to the extent requisite to permit the sale or other
disposition of the Shares. However nothing herein shall prevent the Company from
at any time abandoning or delaying any registration.
(b) If the Company determines not to proceed with a registration after
the Registration Statement has been filed with the Commission and the Company's
decision not to proceed is primarily based upon the anticipated public offering
price of the securities to be sold by the Company, upon request of the Holder
who has requested registration hereunder, the Company shall promptly complete
the registration for the benefit of those selling security holders who indicate
a desire to complete the registration and who agree to bear all expenses
incurred by the Company as the result of such registration after the Company has
decided not to proceed.
(c) If any registration pursuant to this Section 9.1 shall be
underwritten in whole or in part, the Company may require that the Shares
requested for inclusion pursuant to this Section 9.1 be included in the
underwriting on the same terms and conditions as the securities otherwise being
sold through the underwriters. In the event that the Shares requested for
inclusion pursuant to this Section 9.1 would constitute more than 25% of the
total number of shares to be included in a proposed underwritten public
offering, and if in the good faith judgment of the managing underwriter of such
public offering the inclusion of all of the Shares originally covered by a
request for registration would reduce the number of shares to be offered by the
Company or interfere with the successful marketing of the shares of stock
offered by the Company, then the number of Shares otherwise to be included in
the underwritten public offering may be reduced.
-3-
9.2 Registration Procedures. If and whenever the Company is required by
the provisions of Sections 9.1 to effect the registration of Shares under the
Act, the Company will:
(a) prepare and file with the Commission a Registration Statement with
respect to such securities, and use its best efforts to cause such Registration
Statement to become and remain effective for such period as may be reasonably
necessary to effect the sale of such securities, not to exceed nine (9) months;
(b) prepare and file with the Commission such amendments to such
Registration Statement and supplements to the prospectus contained therein as
may be necessary to keep such Registration Statement effective for such period
as may be reasonably necessary to effect the sale of such Shares, not to exceed
nine (9) months;
(c) furnish to the Holder participating in such registration and to the
underwriters of the securities being registered such reasonable number of copies
of the Registration Statement, preliminary prospectus, final prospectus and such
other documents as such underwriters may reasonably request in order to
facilitate the public offering of such securities;
(d) use its best efforts to register or qualify the securities covered
by such Registration Statement under the state securities or blue sky laws of
such jurisdictions as such participating Holder may reasonably request within
twenty (20) days following the original filing of such Registration Statement,
except that the Company shall not for any purpose be required to execute a
general consent to service of process or to qualify to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified;
(e) notify the Holder participating in such registration, promptly
after it shall receive notice thereof, of the time when such Registration
Statement has become effective or a supplement to any prospectus forming a part
of such registration statement has been filed;
(f) notify the Holder promptly of any request by the Commission for the
amending or supplementing of such Registration Statement or prospectus or for
additional information;
(g) prepare and file with the Commission, promptly upon the request of
the Holder, any amendments or supplements to such Registration Statement or
prospectus which, in the opinion of counsel for such Holder (and concurred in by
counsel for the Company), is required under the Act or the rules and regulations
thereunder in connection with the distribution of the Shares by such Holder;
(h) prepare and promptly file with the Commission and promptly notify
such Holder of the filing of such amendment or supplement to such Registration
Statement
-4-
or prospectus as may be necessary to correct any statements or omissions if, at
the time when a prospectus relating to such securities is required to be
delivered under the Act, any event shall have occurred as the result of which
any such prospectus or any other prospectus as then in effect would include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances in which they
were made, not misleading; and
(i) advise such Holder, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the Commission
suspending the effectiveness of such Registration Statement or the initiation or
threatening of any proceeding for that purpose and promptly use its best efforts
to prevent the issuance of any stop order or to obtain its withdrawal if such
stop order should be issued.
9.3 Expenses. With respect to each inclusion of Shares in a
Registration Statement pursuant to Section 9.1 hereof, all fees, costs and
expenses of and incidental to such registration, inclusion and public offering
(as specified in paragraph (b) below) in connection therewith shall be borne by
the Company, other than the fees and costs of counsel to the Holder, which fees
and costs shall be borne by the Holder; and provided, however, that any security
holders participating in such registration shall bear their pro rata share of
(i) the underwriting discount and commissions and transfer taxes, and (ii) the
expense of any special audit of the Company's financial statements if the notice
requesting registration does not permit use of existing or contemplated audited
statements.
9.4 Indemnification.
(a) The Company will indemnify and hold harmless each Holder whose
Shares are included in a Registration Statement pursuant to the provisions of
this Section 9 and any underwriter (as defined in the Act) for such Holder and
each person, if any, who controls such Investor or such underwriter within the
meaning of the Act, from and against, and will reimburse such Investor and each
such underwriter and controlling person with respect to, any and all loss,
damage, liability, cost and expense to which such Investor or any such
underwriter or controlling person may become subject under the Act or otherwise,
insofar as such losses, damages, liabilities, costs or expenses are caused by
any untrue statement or alleged untrue statement of any material fact contained
in such Registration Statement, any prospectus contained therein or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; provided, however, that
the Company will not be liable in any such case to the extent that any such
loss, damage, liability, cost or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission so
made in conformity with information furnished by such Holder, such underwriter
or such controlling person in writing specifically for use in the preparation
thereof.
-5-
(b) The Holder whose Shares are included in a Registration Statement
pursuant to the provisions of this Article will indemnify and hold harmless the
Company, any underwriter and any controlling person of the Company or such
underwriter from and against, and will reimburse the Company, underwriter or
controlling person with respect to, any and all loss, damage, liability, cost or
expense to which the Company, any underwriter or any controlling person thereof
may become subject under the Act or otherwise, insofar as such losses, damages,
liabilities, costs or expenses are caused by any untrue or alleged untrue
statement of any material fact contained in such Registration Statement, any
prospectus contained therein or any amendment or supplement thereto, or arise
out of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was so made in
reliance upon and in strict conformity with written information furnished by
such Investor specifically for use in the preparation thereof.
(c) Promptly after receipt by an indemnified party pursuant to the
provisions of paragraph (a) or (b) of this Section 9.4 of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party will, if a claim thereof is to be
made against the indemnifying party pursuant to the provisions of paragraph (a)
or (b), promptly notify the indemnifying party of the commencement thereof; but
the omission to so notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than hereunder.
In case such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party shall
have the right to participate in, and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided, however,
that if the defendants in any action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, or if there is a conflict of interest which would prevent
counsel for the indemnifying party from also representing the indemnified party,
the indemnified party or parties shall have the right to select separate counsel
to participate in the defense of such action on behalf of such indemnified party
or parties. After notice from the indemnifying party to the indemnified party of
its election so to assume the defense of any action, the indemnifying party will
not be liable to such indemnified party pursuant to the provisions of paragraphs
(a) or (b) hereof for any legal or other expense subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation, unless (i) the indemnified party shall have employed
counsel in accordance with the provision of the preceding sentence, (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after the notice of the commencement of the action, or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party.
-6-
9.5 Exclusive Obligation to Register. Except as provided in this
Section 9, the Company will have no obligation to the Holder to register under
the Act any Shares received by such Holder pursuant to this Agreement.
10. Modifications and Waivers. This Warrant may not be changed, waived,
-------------------------
discharged or terminated except by an instrument in writing signed by the party
against which enforcement of the same is sought.
11. Notices. Any notice, request or other document required or
-------
permitted to be given or delivered to the Holder or the Company shall be
delivered, or shall be sent by certified or registered mail, postage prepaid, to
the Holder at its address shown on the books of the Company or to the Company at
the address indicated therefor on the signature page of this Warrant, or, if
different, at the principal office of the Company.
12. Loss, Theft, Destruction or Mutilation of Warrant. The Company
-----------------------------------------------------
covenants with the Holder that upon its receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant or any stock certificate and, in the case of any such loss, theft
or destruction, of an indemnity or security reasonably satisfactory to it, and
upon reimbursement to the Company of all reasonable expenses incidental thereto,
and upon surrender and cancellation of this Warrant or stock certificate, if
mutilated, the Company will make and deliver a new Warrant or stock certificate,
of like tenor, in lieu of the lost, stolen, destroyed or mutilated Warrant or
stock certificate.
13. Representations and Warranties of Holder. By accepting this
--------------------------------------------
Warrant, the Holder represents and warrants that he, she or it is acquiring this
Warrant and the Shares for his, her or its own account, for investment and not
with a view to, or for sale in connection with, any distribution thereof or any
part thereof. Holder represents and warrants that he, she or it is (a)
experienced in the evaluation of businesses similar to the Company, (b) is able
to fend for himself, herself or itself in the transactions contemplated by this
Warrant, (c) has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Company, (d) has the ability to bear the economic risks of an investment in the
Company, (e) has been furnished with or has had access to such information as is
specified in subparagraph (b)(2) of Rule 502 promulgated under the Act and (f)
has been afforded the opportunity to ask questions of and to receive answers
from the Company and to obtain any additional information necessary to make an
informed investment decision with respect to an investment in the Company.
14. Binding Effect on Successors. This Warrant shall be binding upon
------------------------------
any corporation succeeding the Company by merger, consolidation or acquisition
of all or substantially all of the Company's assets, and all of the obligations
of the Company relating to the Shares issuable upon exercise of this Warrant
shall survive the exercise and termination of this Warrant and all of the
covenants and agreements of the Company shall inure to the benefit of the
successors and assigns of the Holder.
15. Governing Law. This Warrant shall be construed and enforced in
-------------
accordance with, and the rights of the parties shall be governed by, the laws of
the Commonwealth of Massachusetts.
-7-
IN WITNESS WHEREOF, BOSTON BIOMEDICA, INC. has caused this Warrant to
be executed under seal by its officer thereunto duly authorized.
Dated: August 18, 1999
BOSTON BIOMEDICA, INC.
CORPORATE
SEAL
By: /S/ Richard T. Schumacher
-----------------------------
Richard T. Schumacher,
Its President
Address: 375 West Street
West Bridgewater, MA 02379
#838574 v\4 - fitzgemr - hz1q04!.doc_ - 11563/1
-8-
EXHIBIT A
NOTICE OF EXERCISE
------------------
To: BOSTON BIOMEDICA, INC.
1. The undersigned hereby elects to purchase _______ shares of Common
Stock of BOSTON BIOMEDICA, INC. (the "Company") pursuant to the terms of the
attached Warrant, and tenders herewith payment of the purchase price of such
shares in full.
2. Please issue a certificate or certificates representing said shares
in the name of the undersigned or in such other name or names as are specified
below.
3. The undersigned represents and warrants as follows (the following
applies only in the event said shares have not been registered under the
Securities Act of 1933, as amended):
The undersigned is purchasing or acquiring the aforesaid
shares of Common Stock for its own account for investment and
not with a present view to, or for sale in connection with,
any distribution thereof in violation of the Act. The
undersigned represents and warrants that the undersigned: (a)
is experienced in the evaluation of businesses similar to the
Company, (b) has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits
and risks of an investment in the Company, (c) has the ability
to bear the economic risks of an investment in the Company,
(d) has been furnished with or has had access to such
information as is specified in subparagraph (b)(2) of Rule 502
promulgated under the Act and has carefully reviewed and
understood such information, (e) has been afforded the
opportunity to ask questions of and to receive answers from
the Company and to obtain any additional information necessary
to make an informed investment decision with respect to an
investment in the Company, and (f) is an "Accredited Investor"
as such term is defined in subparagraph (a) of Rule 501
promulgated under the Act.
4. In the event of partial exercise, please re-issue an appropriate
Warrant exercisable into the remaining shares.
-------------------------------
(Name)
-------------------------------
(Address)
-------------------------------
(Signature)
------------------------------
(Date)
#838574 v\4 - fitzgemr - hz1q04!.doc_ - 11563/1
-9-
NEITHER THIS WARRANT NOR THE SHARES OF STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO SALE, TRANSFER
OR OTHER DISPOSITION OF THIS WARRANT OR SAID SHARES MAY BE EFFECTED WITHOUT (i)
AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO, OR (ii) AN OPINION OF
COUNSEL, REASONABLY SATISFACTORY TO COUNSEL TO THE COMPANY, THAT AN EXEMPTION
FROM REGISTRATION UNDER SAID ACT IS AVAILABLE.
Warrant No. of
No. N-1 STOCK PURCHASE WARRANT Shares 10,000
------
To Subscribe for and Purchase Common Stock of
BOSTON BIOMEDICA, INC.
THIS CERTIFIES that, for value received, National Securities (the
"Holder"), is entitled, upon the terms and subject to the conditions hereinafter
set forth, to subscribe for and purchase from Boston Biomedica, Inc., a
Massachusetts corporation (hereinafter called the "Company"), at the price
hereinafter set forth in Section 2 up to 10,000 fully paid and non-assessable
shares of the Company's common stock, $.01 par value per share (the "Shares"),
1. Definitions. As used herein the following term shall have the
-----------
following meaning:
"Act" means the Securities Act of 1933 as amended, or a similar Federal
---
statute and the rules and regulations of the Commission issued under that Act,
as they each may, from time to time, be in effect.
2. Purchase Rights. The purchase rights represented by this Warrant are
---------------
exercisable by the Holder in whole or in part, at any time and from time to time
commencing on the date hereof and ending at 5:00 p.m. on August 15, 2001. This
Warrant may be exercised for Shares at a price of $5.25 per share, subject to
adjustment as provided in Section 6 (the "Warrant Purchase Price").
3. Exercise of Warrant. Subject to Section 2 above, the purchase rights
-------------------
represented by this Warrant may be exercised, in whole or in part and from time
to time, by the surrender of this Warrant and the duly executed Notice of
Exercise (the form of which is attached as Exhibit A) at the principal office of
the Company and by the payment to the Company, by wire transfer of immediately
available funds, of an amount equal to the then applicable Warrant Purchase
Price per share multiplied by the number of Shares then being purchased. Upon
exercise, the Holder shall be entitled to receive, within a reasonable time, a
certificate or certificates issued in the Holder's name for the number of Shares
so purchased. The Shares so purchased shall be deemed to be issued as of the
close of business on the date on which this Warrant shall have been exercised.
4. Shares to be Issued; Reservation of Shares. The Company covenants
-------------------------------------------
that the Shares that may be issued upon the exercise of the purchase rights
represented by this Warrant
will, upon issuance, be fully paid and non-assessable, and free from all liens
and charges with respect to the issue thereof. During the period within which
the purchase rights represented by the Warrant may be exercised, the Company
will at all times have authorized and reserved, for the purpose of issuance upon
exercise of the purchase rights represented by this Warrant, a sufficient number
of shares of its Common Stock to provide for the exercise of the right
represented by this Warrant.
5. No Fractional Shares. No fractional shares shall be issued upon the
---------------------
exercise of this Warrant. In lieu thereof, a cash payment shall be made equal to
such fraction multiplied by the fair market value of such shares of Common
Stock, as determined in good faith by the Company's Board of Directors.
6. Adjustments of Warrant Purchase Price and Number of Shares. If there
----------------------------------------------------------
shall be any change in the Common Stock of the Company through merger,
consolidation, reorganization, recapitalization, stock dividend, stock split or
other change in the corporate structure of the Company, appropriate adjustments
shall be made by the Board of Directors of the Company (or if the Company is not
the surviving corporation in any such transaction, the Board of Directors of the
surviving corporation) in the aggregate number and kind of shares subject to
this Warrant, and the number and kind of shares and the price per share then
applicable to shares covered by the unexercised portion of this Warrant.
7. No Rights as Shareholders. This Warrant does not entitle the Holder
-------------------------
to any voting rights or other rights as a shareholder of the Company prior to
exercise of this Warrant and the payment for the Shares so purchased.
Notwithstanding the foregoing, the Company agrees to transmit to the Holder such
information, documents and reports as are generally distributed to holders of
the capital stock of the Company concurrently with the distribution thereof to
the shareholders. Upon valid exercise of this Warrant and payment for the Shares
so purchased in accordance with the terms of the Warrant, the Holder or the
Holder's designee, as the case may be, shall be deemed a shareholder of the
Company.
8. Sale or Transfer of the Warrant; Legend. The Warrant and the Shares
----------------------------------------
shall not be sold or transferred unless either (i) they first shall have been
registered under the Act, or (ii) the Company first shall have been furnished
with an opinion of legal counsel satisfactory to the Company to the effect that
such sale or transfer is exempt from the registration requirements of the Act.
Each certificate representing any Warrant shall bear the legend set out on page
1 hereof. Each certificate representing any Shares shall bear a legend
substantially in the following form, as appropriate:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH,
THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION
MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
Such Warrant and Shares may be subject to additional restrictions on transfer
imposed under applicable state and federal securities law.
9. REGISTRATION RIGHTS
-------------------
9.1 Piggyback Registrations.
(a) If at any time or times within two (2) years after the date hereof,
the Company shall determine to register any of its securities under the Act and
in connection therewith the Company may lawfully register any of the Shares, the
Company will promptly give written notice thereof to the Holder. Upon the
written request of the Holder within thirty (30) days after receipt of any such
notice from the Company, the Company will, except as herein provided, cause all
Shares which the Holder has requested to be registered to be included in such
Registration Statement, all to the extent requisite to permit the sale or other
disposition of the Shares. However nothing herein shall prevent the Company from
at any time abandoning or delaying any registration.
(b) If the Company determines not to proceed with a registration after
the Registration Statement has been filed with the Commission and the Company's
decision not to proceed is primarily based upon the anticipated public offering
price of the securities to be sold by the Company, upon request of the Holder
who has requested registration hereunder, the Company shall promptly complete
the registration for the benefit of those selling security holders who indicate
a desire to complete the registration and who agree to bear all expenses
incurred by the Company as the result of such registration after the Company has
decided not to proceed.
(c) If any registration pursuant to this Section 9.1 shall be
underwritten in whole or in part, the Company may require that the Shares
requested for inclusion pursuant to this Section 9.1 be included in the
underwriting on the same terms and conditions as the securities otherwise being
sold through the underwriters. In the event that the Shares requested for
inclusion pursuant to this Section 9.1 would constitute more than 25% of the
total number of shares to be included in a proposed underwritten public
offering, and if in the good faith judgment of the managing underwriter of such
public offering the inclusion of all of the Shares originally covered by a
request for registration would reduce the number of shares to be offered by the
Company or interfere with the successful marketing of the shares of stock
offered by the Company, then the number of Shares otherwise to be included in
the underwritten public offering may be reduced.
9.2 Registration Procedures. If and whenever the Company is required by
the provisions of Sections 9.1 to effect the registration of Shares under the
Act, the Company will:
(a) prepare and file with the Commission a Registration Statement with
respect to such securities, and use its best efforts to cause such Registration
Statement to become and remain effective for such period as may be reasonably
necessary to effect the sale of such securities, not to exceed nine (9) months;
(b) prepare and file with the Commission such amendments to such
Registration Statement and supplements to the prospectus contained therein as
may be necessary to keep such Registration Statement effective for such period
as may be reasonably necessary to effect the sale of such Shares, not to exceed
nine (9) months;
(c) furnish to the Holder participating in such registration and to the
underwriters of the securities being registered such reasonable number of copies
of the Registration Statement, preliminary prospectus, final prospectus and such
other documents as such underwriters may reasonably request in order to
facilitate the public offering of such securities;
(d) use its best efforts to register or qualify the securities covered
by such Registration Statement under the state securities or blue sky laws of
such jurisdictions as such participating Holder may reasonably request within
twenty (20) days following the original filing of such Registration Statement,
except that the Company shall not for any purpose be required to execute a
general consent to service of process or to qualify to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified;
(e) notify the Holder participating in such registration, promptly
after it shall receive notice thereof, of the time when such Registration
Statement has become effective or a supplement to any prospectus forming a part
of such registration statement has been filed;
(f) notify the Holder promptly of any request by the Commission for the
amending or supplementing of such Registration Statement or prospectus or for
additional information;
(g) prepare and file with the Commission, promptly upon the request of
the Holder, any amendments or supplements to such Registration Statement or
prospectus which, in the opinion of counsel for such Holder (and concurred in by
counsel for the Company), is required under the Act or the rules and regulations
thereunder in connection with the distribution of the Shares by such Holder;
(h) prepare and promptly file with the Commission and promptly notify
such Holder of the filing of such amendment or supplement to such Registration
Statement or prospectus as may be necessary to correct any statements or
omissions if, at the time when a prospectus relating to such securities is
required to be delivered under the Act, any event shall have occurred as the
result of which any such prospectus or any other prospectus as then in effect
would include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading; and
(i) advise such Holder, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the Commission
suspending the
effectiveness of such Registration Statement or the initiation or threatening of
any proceeding for that purpose and promptly use its best efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such stop order should
be issued.
9.3 Expenses. With respect to each inclusion of Shares in a
Registration Statement pursuant to Section 9.1 hereof, all fees, costs and
expenses of and incidental to such registration, inclusion and public offering
(as specified in paragraph (b) below) in connection therewith shall be borne by
the Company, other than the fees and costs of counsel to the Holder, which fees
and costs shall be borne by the Holder; and provided, however, that any security
holders participating in such registration shall bear their pro rata share of
(i) the underwriting discount and commissions and transfer taxes, and (ii) the
expense of any special audit of the Company's financial statements if the notice
requesting registration does not permit use of existing or contemplated audited
statements.
9.4 Indemnification.
(a) The Company will indemnify and hold harmless each Holder whose
Shares are included in a Registration Statement pursuant to the provisions of
this Section 9 and any underwriter (as defined in the Act) for such Holder and
each person, if any, who controls such Investor or such underwriter within the
meaning of the Act, from and against, and will reimburse such Investor and each
such underwriter and controlling person with respect to, any and all loss,
damage, liability, cost and expense to which such Investor or any such
underwriter or controlling person may become subject under the Act or otherwise,
insofar as such losses, damages, liabilities, costs or expenses are caused by
any untrue statement or alleged untrue statement of any material fact contained
in such Registration Statement, any prospectus contained therein or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; provided, however, that
the Company will not be liable in any such case to the extent that any such
loss, damage, liability, cost or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission so
made in conformity with information furnished by such Holder, such underwriter
or such controlling person in writing specifically for use in the preparation
thereof.
(b) The Holder whose Shares are included in a Registration Statement
pursuant to the provisions of this Article will indemnify and hold harmless the
Company, any underwriter and any controlling person of the Company or such
underwriter from and against, and will reimburse the Company, underwriter or
controlling person with respect to, any and all loss, damage, liability, cost or
expense to which the Company, any underwriter or any controlling person thereof
may become subject under the Act or otherwise, insofar as such losses, damages,
liabilities, costs or expenses are caused by any untrue or alleged untrue
statement of any material fact contained in such Registration Statement, any
prospectus contained therein or any amendment or supplement thereto, or arise
out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was so made in reliance upon and in strict conformity with
written information furnished by such Investor specifically for use in the
preparation thereof.
(c) Promptly after receipt by an indemnified party pursuant to the
provisions of paragraph (a) or (b) of this Section 9.4 of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party will, if a claim thereof is to be
made against the indemnifying party pursuant to the provisions of paragraph (a)
or (b), promptly notify the indemnifying party of the commencement thereof; but
the omission to so notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than hereunder.
In case such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party shall
have the right to participate in, and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided, however,
that if the defendants in any action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, or if there is a conflict of interest which would prevent
counsel for the indemnifying party from also representing the indemnified party,
the indemnified party or parties shall have the right to select separate counsel
to participate in the defense of such action on behalf of such indemnified party
or parties. After notice from the indemnifying party to the indemnified party of
its election so to assume the defense of any action, the indemnifying party will
not be liable to such indemnified party pursuant to the provisions of paragraphs
(a) or (b) hereof for any legal or other expense subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation, unless (i) the indemnified party shall have employed
counsel in accordance with the provision of the preceding sentence, (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after the notice of the commencement of the action, or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party.
9.5 Exclusive Obligation to Register. Except as provided in this
Section 9, the Company will have no obligation to the Holder to register under
the Act any Shares received by such Holder pursuant to this Agreement.
10. Modifications and Waivers. This Warrant may not be changed, waived,
-------------------------
discharged or terminated except by an instrument in writing signed by the party
against which enforcement of the same is sought.
11. Notices. Any notice, request or other document required or
-------
permitted to be given or delivered to the Holder or the Company shall be
delivered, or shall be sent by certified or registered mail, postage prepaid, to
the Holder at its address shown on the books of the Company or to the Company at
the address indicated therefor on the signature page of this Warrant, or, if
different, at the principal office of the Company.
12. Loss, Theft, Destruction or Mutilation of Warrant. The Company
-----------------------------------------------------
covenants with the Holder that upon its receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant or any stock certificate and, in the case of any such loss, theft
or destruction, of an indemnity or security reasonably satisfactory to it, and
upon reimbursement to the Company of all reasonable expenses incidental thereto,
and upon surrender and cancellation of this Warrant or stock certificate, if
mutilated, the Company will make and deliver a new Warrant or stock certificate,
of like tenor, in lieu of the lost, stolen, destroyed or mutilated Warrant or
stock certificate.
13. Representations and Warranties of Holder. By accepting this
--------------------------------------------
Warrant, the Holder represents and warrants that he, she or it is acquiring this
Warrant and the Shares for his, her or its own account, for investment and not
with a view to, or for sale in connection with, any distribution thereof or any
part thereof. Holder represents and warrants that he, she or it is (a)
experienced in the evaluation of businesses similar to the Company, (b) is able
to fend for himself, herself or itself in the transactions contemplated by this
Warrant, (c) has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Company, (d) has the ability to bear the economic risks of an investment in the
Company, (e) has been furnished with or has had access to such information as is
specified in subparagraph (b)(2) of Rule 502 promulgated under the Act and (f)
has been afforded the opportunity to ask questions of and to receive answers
from the Company and to obtain any additional information necessary to make an
informed investment decision with respect to an investment in the Company.
14. Binding Effect on Successors. This Warrant shall be binding upon
------------------------------
any corporation succeeding the Company by merger, consolidation or acquisition
of all or substantially all of the Company's assets, and all of the obligations
of the Company relating to the Shares issuable upon exercise of this Warrant
shall survive the exercise and termination of this Warrant and all of the
covenants and agreements of the Company shall inure to the benefit of the
successors and assigns of the Holder.
15. Governing Law. This Warrant shall be construed and enforced in
-------------
accordance with, and the rights of the parties shall be governed by, the laws of
the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, BOSTON BIOMEDICA, INC. has caused this Warrant to
be executed under seal by its officer thereunto duly authorized.
Dated: August 18, 1999
BOSTON BIOMEDICA, INC.
CORPORATE
SEAL
By: /S/ Richard T. Schumacher
-----------------------------
Richard T. Schumacher,
Its President
Address: 375 West Street
West Bridgewater, MA 02379
#838574 v\4 - fitzgemr - hz1q04!.doc_ - 11563/1
EXHIBIT A
NOTICE OF EXERCISE
------------------
To: BOSTON BIOMEDICA, INC.
1. The undersigned hereby elects to purchase _______ shares of Common
Stock of BOSTON BIOMEDICA, INC. (the "Company") pursuant to the terms of the
attached Warrant, and tenders herewith payment of the purchase price of such
shares in full.
2. Please issue a certificate or certificates representing said shares
in the name of the undersigned or in such other name or names as are specified
below.
3. The undersigned represents and warrants as follows (the following
applies only in the event said shares have not been registered under the
Securities Act of 1933, as amended):
The undersigned is purchasing or acquiring the aforesaid
shares of Common Stock for its own account for investment and
not with a present view to, or for sale in connection with,
any distribution thereof in violation of the Act. The
undersigned represents and warrants that the undersigned: (a)
is experienced in the evaluation of businesses similar to the
Company, (b) has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits
and risks of an investment in the Company, (c) has the ability
to bear the economic risks of an investment in the Company,
(d) has been furnished with or has had access to such
information as is specified in subparagraph (b)(2) of Rule 502
promulgated under the Act and has carefully reviewed and
understood such information, (e) has been afforded the
opportunity to ask questions of and to receive answers from
the Company and to obtain any additional information necessary
to make an informed investment decision with respect to an
investment in the Company, and (f) is an "Accredited Investor"
as such term is defined in subparagraph (a) of Rule 501
promulgated under the Act.
4. In the event of partial exercise, please re-issue an appropriate
Warrant exercisable into the remaining shares.
-------------------------------
(Name)
-------------------------------
(Address)
-------------------------------
(Signature)
------------------------------
(Date)
#838574 v\4 - fitzgemr - hz1q04!.doc_ - 11563/1
NEITHER THIS WARRANT NOR THE SHARES OF STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO SALE, TRANSFER
OR OTHER DISPOSITION OF THIS WARRANT OR SAID SHARES MAY BE EFFECTED WITHOUT (i)
AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO, OR (ii) AN OPINION OF
COUNSEL, REASONABLY SATISFACTORY TO COUNSEL TO THE COMPANY, THAT AN EXEMPTION
FROM REGISTRATION UNDER SAID ACT IS AVAILABLE.
Warrant No. of
No. N-3 STOCK PURCHASE WARRANT Shares 25,000
------
To Subscribe for and Purchase Common Stock of
BOSTON BIOMEDICA, INC.
THIS CERTIFIES that, for value received, National Securities (the
"Holder"), is entitled, upon the terms and subject to the conditions hereinafter
set forth, to subscribe for and purchase from Boston Biomedica, Inc., a
Massachusetts corporation (hereinafter called the "Company"), at the price
hereinafter set forth in Section 2 up to 25,000 fully paid and non-assessable
shares of the Company's common stock, $.01 par value per share (the "Shares"),
1. Definitions. As used herein the following term shall have the
-----------
following meaning:
"Act" means the Securities Act of 1933 as amended, or a similar Federal
---
statute and the rules and regulations of the Commission issued under that Act,
as they each may, from time to time, be in effect.
2. Purchase Rights. Reference is made to that certain Warrant Purchase
---------------
Agreement dated August 18, 1999 by and between the Company and Paradigm Group
L.L.C. (the "Investor") and the related warrant to purchase 400,000 shares of
the Company's Common Stock (the "$4.25 Warrant") and the related warrant to
purchase 100,000 shares of the Company's Common Stock (the "$5.25 Warrant) (the
$4.25 Warrant and the $5.25 Warrant are collectively referred to as the
"Warrants"). The purchase rights represented by this Warrant may be exercised by
the Holder in whole or in part only at such time as the Investor has exercised
its Warrants in full, and then from time to time thereafter ending at 5:00 p.m.
on August 15, 2001. If and whenever the Warrants have been exercised by the
Investor, the Company will provide notice of such exercise to the Holder within
ten (10) days of such exercise. This Warrant may be exercised for Shares at a
price of $8.00 per share, subject to the foregoing and to adjustment as provided
in Section 6 (the "Warrant Purchase Price").
3. Exercise of Warrant. Subject to Section 2 above, the purchase rights
-------------------
represented by this Warrant may be exercised, in whole or in part and from time
to time, by the surrender of this Warrant and the duly executed Notice of
Exercise (the form of which is attached as Exhibit A) at the principal office of
the Company and by the payment to the Company, by wire transfer of immediately
available funds, of an amount equal to the then applicable Warrant Purchase
Price per share multiplied by the number of Shares then being purchased. Upon
exercise, the
Holder shall be entitled to receive, within a reasonable time, a certificate or
certificates issued in the Holder's name for the number of Shares so purchased.
The Shares so purchased shall be deemed to be issued as of the close of business
on the date on which this Warrant shall have been exercised.
4. Shares to be Issued; Reservation of Shares. The Company covenants
-------------------------------------------
that the Shares that may be issued upon the exercise of the purchase rights
represented by this Warrant will, upon issuance, be fully paid and
non-assessable, and free from all liens and charges with respect to the issue
thereof. During the period within which the purchase rights represented by the
Warrant may be exercised, the Company will at all times have authorized and
reserved, for the purpose of issuance upon exercise of the purchase rights
represented by this Warrant, a sufficient number of shares of its Common Stock
to provide for the exercise of the right represented by this Warrant.
5. No Fractional Shares. No fractional shares shall be issued upon the
---------------------
exercise of this Warrant. In lieu thereof, a cash payment shall be made equal to
such fraction multiplied by the fair market value of such shares of Common
Stock, as determined in good faith by the Company's Board of Directors.
6. Adjustments of Warrant Purchase Price and Number of Shares. If there
----------------------------------------------------------
shall be any change in the Common Stock of the Company through merger,
consolidation, reorganization, recapitalization, stock dividend, stock split or
other change in the corporate structure of the Company, appropriate adjustments
shall be made by the Board of Directors of the Company (or if the Company is not
the surviving corporation in any such transaction, the Board of Directors of the
surviving corporation) in the aggregate number and kind of shares subject to
this Warrant, and the number and kind of shares and the price per share then
applicable to shares covered by the unexercised portion of this Warrant.
7. No Rights as Shareholders. This Warrant does not entitle the Holder
-------------------------
to any voting rights or other rights as a shareholder of the Company prior to
exercise of this Warrant and the payment for the Shares so purchased.
Notwithstanding the foregoing, the Company agrees to transmit to the Holder such
information, documents and reports as are generally distributed to holders of
the capital stock of the Company concurrently with the distribution thereof to
the shareholders. Upon valid exercise of this Warrant and payment for the Shares
so purchased in accordance with the terms of the Warrant, the Holder or the
Holder's designee, as the case may be, shall be deemed a shareholder of the
Company.
8. Sale or Transfer of the Warrant; Legend. The Warrant and the Shares
----------------------------------------
shall not be sold or transferred unless either (i) they first shall have been
registered under the Act, or (ii) the Company first shall have been furnished
with an opinion of legal counsel satisfactory to the Company to the effect that
such sale or transfer is exempt from the registration requirements of the Act.
Each certificate representing any Warrant shall bear the legend set out on page
1 hereof. Each certificate representing any Shares shall bear a legend
substantially in the following form, as appropriate:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH,
THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION
MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF
-2-
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
Such Warrant and Shares may be subject to additional restrictions on transfer
imposed under applicable state and federal securities law.
9. REGISTRATION RIGHTS
-------------------
9.1 Piggyback Registrations.
(a) If at any time or times within two (2) years after the date hereof,
the Company shall determine to register any of its securities under the Act and
in connection therewith the Company may lawfully register any of the Shares, the
Company will promptly give written notice thereof to the Holder. Upon the
written request of the Holder within thirty (30) days after receipt of any such
notice from the Company, the Company will, except as herein provided, cause all
Shares which the Holder has requested to be registered to be included in such
Registration Statement, all to the extent requisite to permit the sale or other
disposition of the Shares. However nothing herein shall prevent the Company from
at any time abandoning or delaying any registration.
(b) If the Company determines not to proceed with a registration after
the Registration Statement has been filed with the Commission and the Company's
decision not to proceed is primarily based upon the anticipated public offering
price of the securities to be sold by the Company, upon request of the Holder
who has requested registration hereunder, the Company shall promptly complete
the registration for the benefit of those selling security holders who indicate
a desire to complete the registration and who agree to bear all expenses
incurred by the Company as the result of such registration after the Company has
decided not to proceed.
(c) If any registration pursuant to this Section 9.1 shall be
underwritten in whole or in part, the Company may require that the Shares
requested for inclusion pursuant to this Section 9.1 be included in the
underwriting on the same terms and conditions as the securities otherwise being
sold through the underwriters. In the event that the Shares requested for
inclusion pursuant to this Section 9.1 would constitute more than 25% of the
total number of shares to be included in a proposed underwritten public
offering, and if in the good faith judgment of the managing underwriter of such
public offering the inclusion of all of the Shares originally covered by a
request for registration would reduce the number of shares to be offered by the
Company or interfere with the successful marketing of the shares of stock
offered by the Company, then the number of Shares otherwise to be included in
the underwritten public offering may be reduced.
9.2 Registration Procedures. If and whenever the Company is required by
the provisions of Sections 9.1 to effect the registration of Shares under the
Act, the Company will:
-3-
(a) prepare and file with the Commission a Registration Statement with
respect to such securities, and use its best efforts to cause such Registration
Statement to become and remain effective for such period as may be reasonably
necessary to effect the sale of such securities, not to exceed nine (9) months;
(b) prepare and file with the Commission such amendments to such
Registration Statement and supplements to the prospectus contained therein as
may be necessary to keep such Registration Statement effective for such period
as may be reasonably necessary to effect the sale of such Shares, not to exceed
nine (9) months;
(c) furnish to the Holder participating in such registration and to the
underwriters of the securities being registered such reasonable number of copies
of the Registration Statement, preliminary prospectus, final prospectus and such
other documents as such underwriters may reasonably request in order to
facilitate the public offering of such securities;
(d) use its best efforts to register or qualify the securities covered
by such Registration Statement under the state securities or blue sky laws of
such jurisdictions as such participating Holder may reasonably request within
twenty (20) days following the original filing of such Registration Statement,
except that the Company shall not for any purpose be required to execute a
general consent to service of process or to qualify to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified;
(e) notify the Holder participating in such registration, promptly
after it shall receive notice thereof, of the time when such Registration
Statement has become effective or a supplement to any prospectus forming a part
of such registration statement has been filed;
(f) notify the Holder promptly of any request by the Commission for the
amending or supplementing of such Registration Statement or prospectus or for
additional information;
(g) prepare and file with the Commission, promptly upon the request of
the Holder, any amendments or supplements to such Registration Statement or
prospectus which, in the opinion of counsel for such Holder (and concurred in by
counsel for the Company), is required under the Act or the rules and regulations
thereunder in connection with the distribution of the Shares by such Holder;
(h) prepare and promptly file with the Commission and promptly notify
such Holder of the filing of such amendment or supplement to such Registration
Statement or prospectus as may be necessary to correct any statements or
omissions if, at the time when a prospectus relating to such securities is
required to be delivered under the Act, any event shall have occurred as the
result of which any such prospectus or any other prospectus as then in effect
-4-
would include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading; and
(i) advise such Holder, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the Commission
suspending the effectiveness of such Registration Statement or the initiation or
threatening of any proceeding for that purpose and promptly use its best efforts
to prevent the issuance of any stop order or to obtain its withdrawal if such
stop order should be issued.
9.3 Expenses. With respect to each inclusion of Shares in a
Registration Statement pursuant to Section 9.1 hereof, all fees, costs and
expenses of and incidental to such registration, inclusion and public offering
(as specified in paragraph (b) below) in connection therewith shall be borne by
the Company, other than the fees and costs of counsel to the Holder, which fees
and costs shall be borne by the Holder; and provided, however, that any security
holders participating in such registration shall bear their pro rata share of
(i) the underwriting discount and commissions and transfer taxes, and (ii) the
expense of any special audit of the Company's financial statements if the notice
requesting registration does not permit use of existing or contemplated audited
statements.
9.4 Indemnification.
(a) The Company will indemnify and hold harmless each Holder whose
Shares are included in a Registration Statement pursuant to the provisions of
this Section 9 and any underwriter (as defined in the Act) for such Holder and
each person, if any, who controls such Investor or such underwriter within the
meaning of the Act, from and against, and will reimburse such Investor and each
such underwriter and controlling person with respect to, any and all loss,
damage, liability, cost and expense to which such Investor or any such
underwriter or controlling person may become subject under the Act or otherwise,
insofar as such losses, damages, liabilities, costs or expenses are caused by
any untrue statement or alleged untrue statement of any material fact contained
in such Registration Statement, any prospectus contained therein or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; provided, however, that
the Company will not be liable in any such case to the extent that any such
loss, damage, liability, cost or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission so
made in conformity with information furnished by such Holder, such underwriter
or such controlling person in writing specifically for use in the preparation
thereof.
(b) The Holder whose Shares are included in a Registration Statement
pursuant to the provisions of this Article will indemnify and hold harmless the
Company, any underwriter and any controlling person of the Company or such
underwriter from and against,
-5-
and will reimburse the Company, underwriter or controlling person with respect
to, any and all loss, damage, liability, cost or expense to which the Company,
any underwriter or any controlling person thereof may become subject under the
Act or otherwise, insofar as such losses, damages, liabilities, costs or
expenses are caused by any untrue or alleged untrue statement of any material
fact contained in such Registration Statement, any prospectus contained therein
or any amendment or supplement thereto, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was so made in reliance upon and in
strict conformity with written information furnished by such Investor
specifically for use in the preparation thereof.
(c) Promptly after receipt by an indemnified party pursuant to the
provisions of paragraph (a) or (b) of this Section 9.4 of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party will, if a claim thereof is to be
made against the indemnifying party pursuant to the provisions of paragraph (a)
or (b), promptly notify the indemnifying party of the commencement thereof; but
the omission to so notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than hereunder.
In case such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party shall
have the right to participate in, and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided, however,
that if the defendants in any action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, or if there is a conflict of interest which would prevent
counsel for the indemnifying party from also representing the indemnified party,
the indemnified party or parties shall have the right to select separate counsel
to participate in the defense of such action on behalf of such indemnified party
or parties. After notice from the indemnifying party to the indemnified party of
its election so to assume the defense of any action, the indemnifying party will
not be liable to such indemnified party pursuant to the provisions of paragraphs
(a) or (b) hereof for any legal or other expense subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation, unless (i) the indemnified party shall have employed
counsel in accordance with the provision of the preceding sentence, (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after the notice of the commencement of the action, or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party.
-6-
9.5 Exclusive Obligation to Register. Except as provided in this
Section 9, the Company will have no obligation to the Holder to register under
the Act any Shares received by such Holder pursuant to this Agreement.
10. Modifications and Waivers. This Warrant may not be changed, waived,
-------------------------
discharged or terminated except by an instrument in writing signed by the party
against which enforcement of the same is sought.
11. Notices. Any notice, request or other document required or
-------
permitted to be given or delivered to the Holder or the Company shall be
delivered, or shall be sent by certified or registered mail, postage prepaid, to
the Holder at its address shown on the books of the Company or to the Company at
the address indicated therefor on the signature page of this Warrant, or, if
different, at the principal office of the Company.
12. Loss, Theft, Destruction or Mutilation of Warrant. The Company
-----------------------------------------------------
covenants with the Holder that upon its receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant or any stock certificate and, in the case of any such loss, theft
or destruction, of an indemnity or security reasonably satisfactory to it, and
upon reimbursement to the Company of all reasonable expenses incidental thereto,
and upon surrender and cancellation of this Warrant or stock certificate, if
mutilated, the Company will make and deliver a new Warrant or stock certificate,
of like tenor, in lieu of the lost, stolen, destroyed or mutilated Warrant or
stock certificate.
13. Representations and Warranties of Holder. By accepting this
--------------------------------------------
Warrant, the Holder represents and warrants that he, she or it is acquiring this
Warrant and the Shares for his, her or its own account, for investment and not
with a view to, or for sale in connection with, any distribution thereof or any
part thereof. Holder represents and warrants that he, she or it is (a)
experienced in the evaluation of businesses similar to the Company, (b) is able
to fend for himself, herself or itself in the transactions contemplated by this
Warrant, (c) has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Company, (d) has the ability to bear the economic risks of an investment in the
Company, (e) has been furnished with or has had access to such information as is
specified in subparagraph (b)(2) of Rule 502 promulgated under the Act and (f)
has been afforded the opportunity to ask questions of and to receive answers
from the Company and to obtain any additional information necessary to make an
informed investment decision with respect to an investment in the Company.
14. Binding Effect on Successors. This Warrant shall be binding upon
------------------------------
any corporation succeeding the Company by merger, consolidation or acquisition
of all or substantially all of the Company's assets, and all of the obligations
of the Company relating to the Shares issuable upon exercise of this Warrant
shall survive the exercise and termination of this Warrant and all of the
covenants and agreements of the Company shall inure to the benefit of the
successors and assigns of the Holder.
15. Governing Law. This Warrant shall be construed and enforced in
-------------
accordance with, and the rights of the parties shall be governed by, the laws of
the Commonwealth of Massachusetts.
-7-
IN WITNESS WHEREOF, BOSTON BIOMEDICA, INC. has caused this Warrant to
be executed under seal by its officer thereunto duly authorized.
Dated: August 18, 1999
BOSTON BIOMEDICA, INC.
CORPORATE
SEAL
By: /S/ Richard T. Schumacher
-----------------------------
Richard T. Schumacher,
Its President
Address: 375 West Street
West Bridgewater, MA 02379
#838574 v\4 - fitzgemr - hz1q04!.doc_ - 11563/1
-8-
EXHIBIT A
NOTICE OF EXERCISE
------------------
To: BOSTON BIOMEDICA, INC.
1. The undersigned hereby elects to purchase _______ shares of Common
Stock of BOSTON BIOMEDICA, INC. (the "Company") pursuant to the terms of the
attached Warrant, and tenders herewith payment of the purchase price of such
shares in full.
2. Please issue a certificate or certificates representing said shares
in the name of the undersigned or in such other name or names as are specified
below.
3. The undersigned represents and warrants as follows (the following
applies only in the event said shares have not been registered under the
Securities Act of 1933, as amended):
The undersigned is purchasing or acquiring the aforesaid
shares of Common Stock for its own account for investment and
not with a present view to, or for sale in connection with,
any distribution thereof in violation of the Act. The
undersigned represents and warrants that the undersigned: (a)
is experienced in the evaluation of businesses similar to the
Company, (b) has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits
and risks of an investment in the Company, (c) has the ability
to bear the economic risks of an investment in the Company,
(d) has been furnished with or has had access to such
information as is specified in subparagraph (b)(2) of Rule 502
promulgated under the Act and has carefully reviewed and
understood such information, (e) has been afforded the
opportunity to ask questions of and to receive answers from
the Company and to obtain any additional information necessary
to make an informed investment decision with respect to an
investment in the Company, and (f) is an "Accredited Investor"
as such term is defined in subparagraph (a) of Rule 501
promulgated under the Act.
4. In the event of partial exercise, please re-issue an appropriate
Warrant exercisable into the remaining shares.
-------------------------------
(Name)
-------------------------------
(Address)
-------------------------------
(Signature)
------------------------------
(Date)
#838574 v\4 - fitzgemr - hz1q04!.doc_ - 11563/1
-9-