EXHIBIT 10.9
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. 1 STOCK PURCHASE WARRANT Shares 10,000
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To Subscribe for and Purchase Common Stock of
BOSTON BIOMEDICA, INC.
THIS CERTIFIES that, for value received, Worcester County Institution
for Savings, a Massachusetts savings bank (together with any subsequent
transferees of all or any portion of this Warrant, 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 of $20.00 per share (subject to
adjustment as provided in Section 6, the "Warrant Purchase Price"), 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 terms shall have the
following meanings:
"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.
"Commission" means the Securities and Exchange Commission, or any other
Federal agency at the time administering the securities laws of the United
States.
"Registration Statement" means a registration statement (other than a
registration statement on Form S-8 solely with respect to employee benefit
plans, or on Form S-4 solely with respect to Rule 145 transactions, or any
successor form or forms used for the purpose specified by such forms) filed by
the Company with the Commission under the Act for a public offering and sale of
securities of the Company.
"Shares" means the 10,000 shares of the Company's Common Stock issued or
issuable to the Holder upon the exercise of this Warrant and any other shares of
Common Stock of the Company issued with respect to such shares (because of stock
splits, stock dividends, reclassifications, recapitalizations, mergers,
consolidations, or similar events); provided, however, that any shares
previously sold by the Holder to the public pursuant to a registered public
offering or Rule 144 under the Act shall cease to be within the definition of
"Shares" as used herein.
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2. Purchase Rights. The purchase rights represented by this Warrant are
exercisable by the Holder in accordance with the following provisions:
(a) subject to the provisions of subparagraph (b) hereof, this Warrant
is exercisable, 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 December 1, 2001.
(b) the Holder's right to exercise this Warrant shall vest with respect
to the indicated percentage of the total number of Shares purchaseable hereunder
at the expiration of the indicated periods from the date hereof:
Years Expired From Percentage of Total Shares
Date of Issuance of Common Stock Purchaseable
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Less than 1 year 50%
1 or more and less than 2 years 62 1/2%
2 or more and less than 3 years 75%
3 or more and less than 4 years 87 1/2%
4 or more years 100%
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 (a) 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 check, of an amount equal to
the then applicable Warrant Purchase Price per share multiplied by the number of
Shares then being purchased, or (b) if in connection with a registered public
offering of the Company's securities, the surrender of this Warrant and the duly
executed Notice of Exercise (the form of which is attached as Exhibit A-1) at
the principal office of the Company together with notice of arrangements
reasonably satisfactory to the Company for payment to the Company either by
check or from the proceeds received from the sale of Shares to be sold by the
Holder in such public offering 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 all shares that may be issued upon the exercise of the purchase rights
represented by this Warrant will, upon
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issuance, be fully paid and non-assessable, and free from all taxes, 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.
(a) 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.
(b) Upon each adjustment under subparagraph (a) above, the Company shall
give prompt written notice thereof addressed to the Holder at the address of
such holder as shown on the records of the Company (if to the original holder,
to the attention of the Commercial Loan Department), which notice shall state
the Warrant Purchase Price resulting from such adjustment and the increase or
decrease, if any, in the number of shares of Common Stock issuable upon the
exercise of this Warrant, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based.
7. Piggyback Registration Rights. The Company agrees as follows:
(a) The rights granted to the Holder in Section 7(b) below are wholly
subordinated, junior and subject to the exercise of certain registration rights
granted to G & G Diagnostics Limited Partnership I under a certain Registration
Rights Agreement dated June 5, 1990 (the "G&G Registration Rights Agreement"), a
copy of which shall be furnished to the Holder upon written request and without
charge.
(b) If the Company shall determine to register any shares of its Common
Stock 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
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written request of the Holder within 30 days after receipt of any such notice
from the Company, the Company will, except as herein provided, cause all of the
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.
(c) If any shares registered pursuant to this Section 7 shall be
included in an underwritten public offering in whole or in part, the Company may
require that the Shares requested for inclusion hereunder be included in the
underwriting on the same terms and conditions as the securities otherwise being
sold through the underwriters. If and in the event that the managing underwriter
of such public offering shall be of the opinion that inclusion of all of the
Shares would adversely affect the marketing of the securities to be sold by the
Company therein, then the number of Shares otherwise to be included in the
underwritten public offering may be reduced on a pro rata basis with the shares
proposed to be included in such offering by any other selling shareholder
(exclusive of the Company and the holder or holders of shares subject to the G&G
Registration Rights Agreement). No Shares will be registered under this Section
7 if the holder or holders of shares subject to the G&G Registration Rights
Agreement request the registration of all but do not have all of their shares
subject to said G&G Registration Rights Agreement so registered.
8. Registration Procedures. If and whenever the Company is required by
the provisions of Section 7 to effect the registration of the 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 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 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 the Holder
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may reasonably request within 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 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 promptly file with the Commission and promptly notify
the 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;
(h) advise the 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; and
(i) furnish on the effective date of the Registration Statement to the
Holder and any underwriters, at the closing provided for in the underwriting
agreement, an opinion of counsel for the Company and a letter from the
independent certified public accountants for the Company, in form and substance
customary for similar offerings;
9. Expenses. All expenses in connection with, or incidental to, the
preparation and filing of any Registration Statement pursuant to Section 7
hereof, any registration or qualification under securities or blue sky laws of
states in which the offering will be made, and any filing fee of the National
Association of Securities Dealers, Inc. ("NASD") relating to such offering,
shall be borne by the Company; provided, however, that the Holder shall bear its
pro rata share of the underwriting discount and commissions and transfer taxes,
all fees and disbursements of Holder's counsel, and, to the extent required by
applicable state securities laws and NASD rules and regulations, all legal fees
and disbursements and other
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expenses of complying with state securities or blue sky laws of any
jurisdictions in which the Shares to be offered are to be registered or
qualified.
10. Indemnification.
(a) The Company will indemnify and hold harmless the Holder and any
underwriter (as defined in the Act) for such Holder and each person, if any, who
controls such Holder or such underwriter within the meaning of the Act, from and
against, and will reimburse such Holder and each such underwriter and
controlling person with respect to, any and all loss, damage, liability, cost
and expense to which such Holder 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 any 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 will indemnify and hold harmless the Company, its
directors and officers, any underwriter and any controlling person of 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 any 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 written information furnished by such Holder specifically for use
in the preparation thereof.
11. Rights and Obligations Survive Exercise and Expiration of Warrant.
The rights and obligations of the Company and the Holder set forth in Sections
7, 8, 9 and 10 shall survive the exercise and expiration of this Warrant.
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12. 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 of Common Stock 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 of Common Stock 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.
13. Sale or Transfer of the Warrant; Legend. The Warrant and the shares
of Common Stock 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 Common
Stock 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.
Such Warrant and Shares may be subject to additional restrictions on transfer
imposed under applicable state and federal securities law.
14. 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.
15. Notices. Any notice, request or other document required or permitted
to be given or delivered to the holder hereof 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.
16. 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
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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.
17. Representations and Warranties of Holder. By accepting this Warrant,
the Holder represents and warrants that it is acquiring this Warrant and the
Shares for 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 it is (a) experienced in the evaluation of
businesses similar to the Corporation, (b) is able to fend for 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 Corporation, (d) has the ability to bear the
economic risks of an investment in the Corporation, (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 Corporation and to obtain any
additional information necessary to make an informed investment decision with
respect to an investment in the Corporation.
18. 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.
19. 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: December 1, 1991
BOSTON BIOMEDICA, INC.
CORPORATE
SEAL
By: ____________________________
Its President
Address: _______________________
________________________________
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EXHIBIT A
NOTICE OF EXERCISE
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To: BOSTON BIOMEDICA, INC.
1. The undersigned hereby elects to purchase _______ shares of Common
Stock of BOSTON BIOMEDICA, INC. 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 that the aforesaid shares of Common Stock
are being acquired for the account of the undersigned for investment and not
with a view to, or for resale in connection with, the distribution thereof and
that the undersigned has no present intention of distributing or reselling such
shares. The undersigned further represents that such shares shall not be sold or
transferred unless either (1) they first shall have been registered under the
Securities Act of 1933, as amended, or (ii) the Company first shall have been
furnished with an opinion of legal counsel reasonably satisfactory to the
Company to the effect that such sale or transfer is exempt from the registration
requirement.
4. In the event of partial exercise, please re-issue an appropriate
Warrant exercisable into the remaining shares.
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(Name)
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(Address)
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(Signature)
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(Date)
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EXHIBIT A-1
NOTICE OF EXERCISE
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To: BOSTON BIOMEDICA, INC. (the "Company")
1. Contingent upon and effective immediately prior to the closing (the
"Closing") of the Company's public offering contemplated by the Registration
Statement of Form S_____, filed __________, 19__, the undersigned hereby elects
to purchase _____ shares of Common Stock of the Company (or such lesser number
of shares as may be sold on behalf of the undersigned at the Closing) pursuant
to the terms of the attached Warrant.
2. Please deliver to the custodian for the selling shareholders a stock
certificate representing such ____ shares.
3. The undersigned has instructed the custodian for the selling
shareholders to deliver to the Company $______ from the net proceeds due the
undersigned from the sale of shares in the aforesaid public offering.
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(Signature)
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(Date)
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