EXHIBIT 10.3
VOID AFTER 3:30 P.M., CENTRAL TIME, ON [______], [______]
WARRANT TO PURCHASE COMMON SHARES
TRANSGENOMIC, INC.
This is to certify that, for value received, [HOLDER], [ADDRESS] (the
"Holder"), is entitled to purchase, subject to the provisions of this Warrant,
from TRANSGENOMIC, INC. (the "Company"), a Delaware corporation, at any time
until 3:30 p.m., Central time, on [ ], [ ] ("Expiration Date"), [ ] Common
Shares of the Company at a purchase price per share of $5.00 during the period
this Warrant is exercisable. The number of Common Shares to be received upon the
exercise of this Warrant and the price to be paid for a Common Share may be
adjusted from time to time as hereinafter set forth. The purchase price of a
Common Share in effect at any time and as adjusted from time to time is
hereinafter sometimes referred to as the "Exercise Price." This Warrant is or
may be one of a series of warrants identical in form issued by the Company to
purchase an aggregate [ ] of Common Shares of the Company and the term
"Warrants" as used herein means all such Warrants (including this Warrant). The
Common Shares, as adjusted from time to time, underlying the Warrants are
hereinafter sometimes referred to as "Warrant Shares" and include all Common
Shares that have been issued upon the exercise of the Warrants and all unissued
Common Shares underlying the Warrants.
SECTION 1. EXERCISE OF WARRANT. This Warrant may be exercised in
whole or in part at any time or from time to time until the Expiration Date
or if the Expiration Date is a day on which banking institutions are
authorized by law to close, then on the next succeeding day which shall not
be such a day, by presentation and surrender hereof to the Company or at the
office of its stock transfer agent, if any, with the Purchase Form annexed
hereto duly executed and accompanied by payment of the Exercise Price for the
number of shares specified in such Form, together with all federal and state
taxes applicable upon such exercise. The Company agrees not to merge,
reorganize or take any action that would terminate this Warrant unless
provisions are made as part of such merger, reorganization or other action
which would provide the holders of this Warrant with an equivalent of this
Warrant as specified in this Section. The Company agrees to provide notice to
the Holder that any tender offer is being made for the Company's Common
Shares no later than three business days after the day the Company becomes
aware that any tender offer is being made for outstanding Common Shares of
the Company. If this Warrant should be exercised in part only, the Company
shall, upon surrender of this Warrant for cancellation, execute and deliver a
new Warrant evidencing the right of the Holder to purchase the balance of the
Common Shares purchasable hereunder. Upon receipt by the Company of this
Warrant at the office of the Company or at the office of the Company's stock
transfer agent, in proper form for exercise and accompanied by the Purchase
Form and the Exercise Price, the Holder shall be deemed to be the holder of
record of the Common Shares issuable upon such exercise, notwithstanding that
the stock transfer books of the Company shall then be closed or
that certificates representing such Common Shares shall not then be actually
delivered to the Holder.
SECTION 2. RESERVATION OF SHARES. The Company hereby agrees that at
all times there shall be reserved for issuance and/or delivery upon exercise
of this Warrant such number of Common Shares as shall be required for
issuance or delivery upon exercise of this Warrant.
SECTION 3. FRACTIONAL SHARES. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. With respect to any fraction of a Common Share called for upon any
exercise hereof, the Company shall, upon receipt by the Company or the
Company's stock transfer agent of the Exercise Price on such fractional
share, pay to the Holder an amount in cash equal to such fraction multiplied
by the current market value of such fractional share, determined as follows:
(a) If the Common Shares are listed on a national securities
exchange or a foreign exchange, are admitted to unlisted trading
privileges on such an exchange or are listed for trading on a trading
system of the National Association of Securities Dealers, Inc. ("NASD")
such as The Nasdaq SmallCap Market ("SCM") or the Nasdaq National
Market ("NNM") or the OTC Bulletin Board, then the current value shall
be the last reported sale price of the Common Shares on such an
exchange or system on the last business day prior to the date of
exercise of this Warrant or if no such sale is made on such day, the
average of the closing bid prices for the Common Shares for such day on
such exchange or such system shall be used;
(b) If the Common Shares are not so listed on such exchange or
system or admitted to unlisted trading privileges, the current value
shall be the average of the last reported bid prices reported by the
National Quotation Bureau, Inc. on the last business day prior to the
date of the exercise of this Warrant; or
(c) If the Common Shares are not so listed or admitted to
unlisted trading privileges and if bid prices are not so reported, the
current value shall be an amount, not less than book value, determined
in such reasonable manner as may be prescribed by the board of
directors of the Company.
SECTION 4. EXCHANGE, ASSIGNMENT OR LOSS OF WARRANT. This Warrant is
exchangeable, without expense, at the option of the Holder, upon presentation
and surrender hereof to the Company or at the office of its stock transfer
agent, if any, for other Warrants of different denominations entitling the
Holder thereof to purchase (under the same terms and conditions as provided
by this Warrant) in the aggregate the same number of Common Shares
purchasable hereunder. This Warrant may not be sold, transferred, assigned or
hypothecated except in compliance with federal and state securities laws. Any
transfer or assignment shall be made by surrender of this Warrant to the
Company or at the office of its stock transfer agent, if any, with the
Assignment Form annexed hereto duly executed and with funds sufficient to pay
any transfer tax; whereupon the Company shall, without charge, execute and
deliver a new Warrant in the name of the assignee named in such instrument of
assignment and this Warrant shall promptly be canceled. This Warrant may be
divided or combined with other Warrants which carry the same
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rights upon presentation hereof at the office of the Company or at the office of
its stock transfer agent, if any, together with a written notice specifying the
names and denominations in which new Warrants are to be issued and signed by the
Holder hereof. The term "Warrant" as used herein includes any warrants issued in
substitution for or replacement of this Warrant or into which this Warrant may
be divided or exchanged. Upon receipt by the Company of evidence satisfactory to
it of the loss, theft, destruction or mutilation of this Warrant and (in the
case of loss, theft or destruction) of reasonably satisfactory indemnification,
and upon surrender and cancellation of this Warrant, if mutilated, the Company
will execute and deliver a new Warrant of like tenor and date. Subject to such
right of indemnification, any such new Warrant executed and delivered shall
constitute an additional contractual obligation on the part of the Company,
whether or not this Warrant so lost, stolen, destroyed or mutilated shall be at
any time enforceable by anyone.
SECTION 5. RIGHTS OF THE HOLDER. The Holder shall not, by virtue
hereof, be entitled to any rights of a shareholder in the Company, either at
law or equity, and the rights of the Holder are limited to those expressed in
the Warrant and are not enforceable against the Company except to the extent
set forth herein.
SECTION 6. ADJUSTMENT PROVISIONS.
(a) ADJUSTMENTS OF THE EXERCISE PRICE.
(i) If the Company subdivides its outstanding Common
Shares into a greater number of Common Shares, the Exercise
Price in effect immediately prior to such subdivision shall be
proportionately reduced. Conversely, if the Company combines
its outstanding Common Shares into a lesser number of Common
Shares, the Exercise Price in effect immediately prior to such
combination -- shall be proportionally increased. In case of a
subdivision or combination, the adjustment of the Exercise
Price shall be made as of the effective date of the applicable
event. A distribution on Common Shares, including a
distribution of Convertible Securities, to shareholders of the
Company on a pro rata basis shall be considered a subdivision
of Common Shares for the purposes of this subsection (a)(i) of
this Section, except that the adjustment will be made as of
the record date for such distribution and any such
distribution of Convertible Securities shall be deemed to be a
distribution of the Common Shares underlying such Convertible
Securities.
(ii) If the Company shall at any time distribute or
cause to be distributed to its shareholders, on a pro rata
basis, cash, assets or securities of any entity other than the
Company, then the Exercise Price in effect immediately prior
to such distribution shall automatically be reduced by an
amount determined by dividing (x) the amount (if cash) or the
value (if assets or securities) of the holders of Warrants (as
such term is defined in the first paragraph hereof) pro rata
share of such distribution determined assuming that all
holders of Warrants had exercised their Warrants on the day
prior to such distribution, by (y) the number of
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Common Shares issuable upon the exercise of Warrants (as such
term is defined in the first paragraph hereof) by the holders
thereof on the day prior to such distribution.
(b) NO ADJUSTMENT FOR SMALL AMOUNTS. Anything in this Section
to the contrary notwithstanding, the Company shall not be required to
give effect to any adjustment in the Exercise Price unless and until
the net effect of one or more adjustments, determined as above
provided, shall have required a change of the Exercise Price by at
least one cent, but when the cumulative net effect of more than one
adjustment so determined shall be to change the actual Exercise Price
by at least one cent, such change in the Exercise Price shall thereupon
be given effect.
(c) NUMBER OF SHARES ADJUSTED. Upon any adjustment of the
Exercise Price, the Holder of this Warrant shall thereafter (until
another such adjustment) be entitled to purchase, at the new Exercise
Price, the number of Common Shares, calculated to the nearest full
share, obtained by multiplying the number of Common Shares initially
issuable upon exercise of this Warrant by the Exercise Price specified
in the first paragraph hereof and dividing the product so obtained by
the new Exercise Price.
(d) DEFINITIONS.
(i) Whenever reference is made in this Section to the
distribution of Common Shares, the term "Common Shares" shall
mean the Common Shares of the Company authorized as of the
date hereof and any other class of stock ranking on a parity
with such Common Shares. However, subject to the provisions of
Section (ii) hereof, Common Shares issuable upon exercise
hereof shall include only Common Shares of the class
designated as Common Shares of the Company as of the date
hereof.
(ii) Whenever reference is made in this Section to
the distribution of Convertible Securities, the term
"Convertible Securities" shall mean options or Warrants or
rights for the purchase of Common Shares of the Company or for
the purchase of any stock or other securities convertible into
or exchangeable for Common Shares of the Company.
(e) ANTIDILUTION PROVISIONS.
(i) ADJUSTMENTS OF EXERCISE PRICE. If the Company
should at any time or from time to time hereafter issue or
sell any of its Common Shares (other than Common Shares
outstanding on completion of the Company's private offering of
a maximum of 2,000,000 Common Shares pursuant to the Company's
Private Placement Memorandum dated July 3, 1997, as amended
February 1998 and Supplemented June 1998 ("Memorandum") and
other than Common Shares issued upon the conversion or
exercise of Convertible Securities or warrants and options
described in the Memorandum as outstanding or issuable)
without consideration or for a consideration per share less
than the Exercise Price in effect
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immediately prior to the time of such issue or sale, then
forthwith upon such issue or sale, the Exercise Price shall be
automatically adjusted to a price (computed to the nearest
cent) determined by dividing (A) the sum of (x) the number of
Common Shares outstanding immediately prior to such issue or
sale multiplied by the Exercise Price in effect immediately
prior to such issue or sale and (y) the consideration, if any,
received by the Company upon such issue or sale, by (B) the
total number of Common Shares outstanding immediately after
such issue or sale. For purposes of this subsection (e)(i),
the following provisions (1) and (2) shall also be applicable:
(1) RIGHTS, OPTIONS OR WARRANTS. In case at
any time hereafter the Company shall in any manner
grant any right to subscribe for or to purchase, or
any option or warrant for the purchase of Common
Shares or for the purchase of any stock or securities
convertible into or exchangeable for Common Shares
(such convertible or exchangeable stock or securities
being hereinafter referred to as the "Underlying
Convertible Securities") and if the minimum price per
share for which Common Shares are issuable, pursuant
to such rights, options, warrants or upon conversion
or exchange of such Underlying Convertible Securities
(determined by dividing (a) the total amount, if any,
received or receivable by the Company as
consideration for the granting of such rights,
options or warrants plus the minimum aggregate amount
of additional consideration payable to the Company
upon the exercise of such rights, options or warrants
under the terms of such rights, options or warrants
at the time of making such computation, plus, in
minimum aggregate amount of additional consideration,
if any, payable upon the conversion or exchange
thereof under the terms of such Underlying
Convertible Securities at the time of making such
computation, by (b) the total maximum number of
Common Shares issuable pursuant to such rights,
options or warrants or upon the conversion or
exchange of the total maximum amount of such
Underlying Convertible Securities issuable upon the
exercise of such rights, options or warrants under
the terms of such rights, options, warrants or
Underlying Convertible Securities at the time of
making such computation) shall be less than the
Exercise Price in effect immediately prior to the
time of the granting of such rights or options, then
the total maximum number of Common Shares issuable
pursuant to such rights, options, warrants or upon
conversion or exchange of the total maximum amount of
such Underlying Convertible Securities issuable upon
the exercise of such rights, options or warrants
under the terms of such rights, options warrants or
Underlying Convertible Securities at the time of
making such computation shall (as of the date of
granting of such rights, options or warrants) be
deemed to be outstanding and to have been issued for
said price per share as so determined, provided that
no further adjustment of the Exercise Price shall be
made upon the actual issue of Common Shares so deemed
to have been issued unless the price per share
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received by the Company upon the actual issuance of
Common Shares so deemed to be issued differs from the
price per share which was last used to adjust the
Exercise Price or unless by the terms of such rights,
options or warrants or Underlying Convertible
Securities the price per share which the Company will
receive upon any such issuance of Common Shares
differs from the price per share which was last used
to adjust the Exercise Price, in either of which
events the Exercise Price shall be adjusted upon the
occurrence of either such event to reflect the new
price per share of Common Stock, and further provided
that, upon the expiration of such rights (including
rights to convert or exchange), options or warrants
(i) the number of shares of Common Stock deemed to
have been issued and outstanding by reason of the
fact that they were issuable pursuant to such rights,
options or warrants (including rights to convert or
exchange) that were not exercised shall no longer be
deemed to be issued and outstanding and (ii) the
Exercise Price shall forthwith be adjusted to the
price which would have prevailed had all adjustments
been made on the basis of the issue only of the
Common Shares actually issued upon the exercise of
such rights, options or warrants or upon conversion
or exchange of such Underlying Convertible
Securities. Such adjustments upon expiration shall
have no effect on Warrants exercised prior to such
expiration.
(2) CONVERTIBLE SECURITIES. If the Company
shall in any manner issue or sell any Convertible
Securities other than the rights, options or warrants
described in subsection or (e)(i)(1) hereof and if
the minimum price per share for which Common Shares
are issuable upon conversion or exchange of such
Convertible Securities (determined by dividing (a)
the total amount received or receivable by the
Company as consideration for the issue or sale of
such Convertible Securities, plus the aggregate
amount of additional consideration, if any, payable
to the Company upon the conversion or exchange
thereof under the terms of such Convertible
Securities at the time of making such computation, by
(b) the total maximum number of Common Shares
issuable upon the conversion or exchange of all such
Convertible Securities under the terms of such
Convertible Securities at the time of making such
computation) shall be less than the Exercise Price in
effect immediately prior to the time of such issue or
sale, then the total maximum number of Common Shares
issuable upon conversion or exchange of all such
Convertible Securities at the time of making such
computation shall (as of the date of the issue or
sale of such Convertible Securities) be deemed to be
outstanding and to have been issued for said price
per share as so determined, provided that no further
adjustment of the Exercise Price shall be made upon
the actual issue of Common Shares so deemed to have
been issued unless the price per share received by
the Company upon the actual issuance of Common Shares
so deemed to be issued differs from the price per
share which was last used to adjust the Exercise
Price or unless by the terms of such
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Convertible Securities the price per share which the
Company will receive upon any such issuance of Common
Shares differs from the price per share which was
last used to adjust the Exercise Price, in either of
which events the Exercise Price shall be adjusted
upon the occurrence of either such event to reflect
the new price per share of Common Shares, and further
provided that, if any such issue or sale of such
Convertible Securities is made upon exercise of any
right to subscribe for or to purchase or any option
to purchase any such Convertible Securities for which
an adjustment of the Exercise Price has been or is to
be made pursuant to the provisions of subsection
(e)(i)(1) then no further adjustment of the Exercise
Price shall be made by reason of such issue or sale
unless the price per share received by the Company
upon the conversion or exchange of such Convertible
Securities when actually issued differs from the
price which was last used to adjust the Exercise
Price or unless by the terms of such Convertible
Securities the price per share which the Company will
receive upon any such issuance of Common Shares upon
conversion or exchange of such Convertible Securities
differs from the price per share which was last used
to adjust the Exercise Price, in either of which
events the Exercise Price shall be adjusted upon the
occurrence of either of such events to reflect the
new price per share of Common Shares, and further
provided that, upon the termination of the right to
convert or to exchange such (i) the number of Common
Shares deemed to have been issued and outstanding by
reason of the fact that they were issuable upon
conversion or exchange of any such Convertible
Securities, which were not so converted or exchanged,
shall no longer be deemed to be issued and
outstanding, and (ii) the Exercise Price shall
forthwith be adjusted to the price which would have
prevailed had all adjustments been made on the basis
of the issue only of the number of Common Shares
actually issued upon conversion or exchange of such
Convertible Securities. Such adjustments upon
expiration shall have no effect on Warrants exercised
prior to such expiration.
(ii) DETERMINATION OF ISSUE PRICE. In case any Common
Shares or Convertible Securities shall be issued for cash, the
consideration received therefor, which shall be the gross
sales price for such security without deducting therefrom any
commission or other expenses paid or incurred by the Company
for any underwriting of, or otherwise in connection with, the
issuance thereof, shall be deemed to be the amount received by
the Company therefor. In case any Common Shares or Convertible
Securities shall be issued for a consideration part or all of
which shall be other than cash, then, for the purpose of this
subsection (e), the Board of Directors of the Company shall
determine the fair value of such consideration, irrespective
of accounting treatment, and such Common Shares or Convertible
Securities shall be deemed to have been issued for an amount
of cash equal to the value so determined by the Board of
Directors. The reclassification of securities other than
Common Shares into securities,
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including Common Shares, shall be deemed to involve the
issuance for a consideration other than cash of such Common
Shares immediately prior to the close of business on the date
fixed for the determination of security holders entitled to
receive such Common Shares. In case any Common Shares or
Convertible Securities shall be issued together with other
stock or securities or other assets of the Company for
consideration, the Board of Directors of the Company shall
determine what part of the consideration so received is to be
deemed to be consideration for the issue of such Common Shares
or Convertible Securities.
(iii) DETERMINATION OF DATE OF ISSUE. In case the
Company shall take a record of the holders of Common Shares
for the purpose of entitling them (A) to receive a dividend or
other distribution payable in Common Shares or in Convertible
Securities or (B) to subscribe for or purchase Common Shares
or Convertible Securities, then such record date shall be
deemed to be the date of the issue or sale of the Common
Shares deemed to have been issued or sold upon the declaration
of such dividend or the making of such other distribution or
the date of the granting of such right of subscription or
purchase, as the case may be.
(iv) TREASURY SHARES. For the purpose of this Section
(f), Common Shares at any relevant time owned or held by, or
for the account of, the Company shall not be deemed
outstanding.
SECTION 7. OFFICER'S CERTIFICATE. Whenever the Exercise Price shall be
adjusted as required by the provisions of Section 6 hereof, the Company shall
forthwith file in the custody of its Secretary or an Assistant Secretary at its
principal office and with its stock transfer and warrant agent, if any, an
officer's certificate showing the adjusted Exercise Price determined as herein
provided and setting forth in reasonable detail the facts requiring such
adjustment. Each such officer's certificate shall be made available at all
reasonable times for inspection by the Holder and the Company shall, forthwith
after each such adjustment, deliver a copy of such certificate to the Holder.
SECTION 8. NOTICES TO HOLDERS. So long as this Warrant shall be
outstanding and unexercised (a) if the Company shall pay any dividend or make
any distribution upon the Common Shares, (b) if the Company shall offer to the
holders of Common Shares for subscription or purchase by them any shares of
stock of any class or any other rights or (c) if any capital reorganization of
the Company, reclassification of the capital stock of the Company, consolidation
or merger of the Company with or into another corporation, sale, lease or
transfer of all or substantially all of the property and assets of the Company
to another corporation or voluntary or involuntary dissolution, liquidation or
winding up of the Company shall be effected, then, in any such case, the Company
shall cause to be delivered to the Holder, at least 10 days prior to the date
specified in (x) or (y) below, as the case may be, a notice containing a brief
description of the proposed action and stating the date on which (x) a record is
to be taken for the purpose of such dividend, distribution or rights or (y) such
reclassification, reorganization, consolidation, merger, conveyance, lease,
dissolution, liquidation or winding up is to take place
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and the date, if any is to be fixed, as of which the holders of Common Shares of
record shall be entitled to exchange their Common Shares for securities or other
property deliverable upon such reclassification, reorganization, consolidation,
merger, conveyance, dissolution, liquidation or winding up.
SECTION 9. RECLASSIFICATION, REORGANIZATION OR MERGER. In case of any
reclassification, capital reorganization or other change of outstanding Common
Shares of the Company (other than a change in par value, from par value to no
par value, from no par value to par value or as a result of an issuance of
Common Shares by way of dividend or other distribution or of a subdivision or
combination) or in case of any consolidation or merger of the Company with or
into another corporation (other than a merger with a subsidiary in which merger
the Company is the continuing corporation and which does not result in any
reclassification, capital reorganization or other change of outstanding Common
Shares of the class issuable upon exercise of this Warrant) or in case of any
sale or conveyance to another corporation of the property of the Company as an
entirety or substantially as an entirety, the Company shall cause effective
provision to be made so that the Holder shall have the right thereafter, by
exercising this Warrant, to purchase the kind and amount of shares of stock and
other securities and property which the Holder would have received upon such
reclassification, capital reorganization or other change, consolidation, merger,
sale or conveyance had this Warrant been exercised prior to the consummation of
such transaction. Any such provision shall include provision for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Warrant. The foregoing provisions of this Section shall
similarly apply to successive reclassifications, capital reorganizations and
changes of Common Shares and to successive consolidations, mergers, sales or
conveyances. In the event the Company spins off a subsidiary by distributing to
the shareholders of the Company as a dividend or otherwise the stock of the
subsidiary, the Company shall reserve for the life of this Warrant shares of the
subsidiary to be delivered to the Holders of the Warrants upon exercise to the
same extent as if they were owners of record of the Warrant Shares on the record
date for distribution of the shares of the subsidiary.
SECTION 10. REGISTRATION UNDER THE SECURITIES ACT OF 1933.
(a) Within 45 days after receipt of a written request by the
then Holder(s) of Warrants or Warrant Shares representing at least 51%
of the total Warrant Shares made at any time within the period
commencing June 30, 1999 and ending June 30, 2003, the Company will
file, no more than once, a registration statement under the Securities
Act of 1933, as amended (the "Act"), registering the Warrants and the
Warrant Shares. The Company will use its best efforts to cause such
registration statement to become effective.
(b) In addition, if at any time during the period commencing
June 30, 1999 and ending December 31, 2005, the Company should file a
registration statement (which term shall not include any registration
statement filed on Form S-8 or S-4) under the Act, which relates to a
current offering of securities of the Company (except in connection
with an offering (i) to employees or (ii) of the Company's securities
solely in exchange for properties, assets or stock of other individuals
or corporations), such registration
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statement and the prospectus included therein shall also, at the
written request to the Company by any of the Holder(s) of the Warrants
and Warrant Shares, relate to and meet the requirements of the Act with
respect to any public offering of the Warrants and Warrant Shares so as
to permit the public sale thereof in compliance with the Act. The
Company shall give written notice to the Holder(s) of its intention to
file a registration statement under the Act relating to a current
offering of the aforesaid securities of the Company 30 or more days
prior to the filing of such registration statement, and the written
request provided for in the first sentence of this subsection shall be
made by the Holder(s) 10 or more days prior to the date specified in
the notice as the date on which it is intended to file such
registration statement. Neither the delivery of such notice by the
Company nor of such request by the Holder(s) shall in any way obligate
the Company to file such registration statement, and, notwithstanding
the filing of such registration statement, the Company may, at any time
prior to the effective date thereof, determine not to proceed to
effectiveness with such registration statement, without liability to
the Holder(s).
(c) In addition, the Company will cooperate with the then
Holder(s) of the Warrants and Warrant Shares in preparing and signing
any registration statement, in addition to the registration statements
discussed above, required in order to sell or transfer the Warrants and
Warrant Shares and will sign and supply all information required
therefor, but such additional registration shall be at cost and expense
of the then Holder(s).
(d) When, pursuant to subsections (a), (b) or (c) of this
Section, the Company shall take any action to permit a public offering
or sale or other distribution of the Warrants and Warrant Shares, the
Company shall:
(i) supply to each selling Holder a copy of the
registration statement and a reasonable number of copies of
the preliminary, final and other prospectus in conformity with
requirements of the Act and the Rules and Regulations
promulgated thereunder and such other documents as the Holders
shall reasonably request;
(ii) bear the complete cost and expense (other than
any selling commissions relating to the sale of the Warrants
and Warrant Shares, which shall be paid by the sellers
thereof) of such registrations or qualifications except those
filed under subsection (10)(c) which shall be cost and expense
of the Holder(s);
(iii) keep effective such registration statement
until the first of the following events occur (A) 12 months
have elapsed after the effective date of such registration
statement or (B) all of the registered Warrant Shares issued
by the Company either before or after the effective date of
such registration statement have been publicly sold under such
registration statement;
(iv) whenever the Company files a registration
statement pursuant to this Section that is declared effective
and that registers any Warrants or Warrant
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Shares for resale, the Company agrees to use its best efforts
to register or qualify the Warrants and Warrant Shares for
sale in those states requested by the person selling the
Warrants or Warrant Shares, provided that the Company shall
not be required to register or qualify the Warrants and
Warrant Shares for sale in any state in which the sale of the
Warrants or Warrants Shares by the person selling the Warrants
or Warrant Shares would be exempt from having to be registered
or qualified in such state. The determination of whether or
not such an exemption exists shall be made by counsel for the
Company and such determination shall be provided in writing to
the person desiring to sell Warrants or Warrant Shares in a
state; and
(v) indemnify and hold harmless each such Holder and
each underwriter, within the meaning of the Act, who may
purchase from or sell for any such Holder, any Warrants or
Warrant Shares, from and against any and all losses, claims,
damages and liabilities (including, but not limited to, any
and all expenses whatsoever reasonably incurred in
investigating, preparing, defending or settling any claim)
arising from (A) any untrue or alleged untrue statement of a
material fact contained in any registration statement
furnished pursuant to subsection (i) or any prospectus
included therein or (B) any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading
(unless such untrue statement or omission or such alleged
untrue statement or omission was based upon information
furnished or required to be furnished in writing to the
Company by such Holder or underwriter expressly for use
therein), which indemnification shall include each person, if
any, who controls any such Holder or underwriter within the
meaning of the Act; provided, however, that the Company shall
not be so obligated to indemnify any such Holder or
underwriter or controlling person unless such Holder and
underwriter shall at the same time indemnify the Company, its
directors, each officer signing any registration statement or
any amendment to any registration statement and each person,
if any, who controls the Company within the meaning of the
Act, from and against any and all losses, claims, damages and
liabilities (including, but not limited to, any and all
expenses whatsoever reasonably incurred in investigating,
preparing, defending or settling any claim) arising from (1)
any untrue or alleged untrue statement of a material fact
contained in any registration statement or prospectus
furnished pursuant to subsection (i) or (2) any omission or
alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein
not misleading, but the indemnity of such Holder, underwriter
or controlling person shall be limited to liability based upon
information furnished, or required to be furnished, in writing
to the Company by such Holder or underwriter or controlling
person expressly for use therein. The Company shall not be
liable for amounts paid in settlement of any such litigation
if such settlement was effected without the consent of the
Company. The indemnity agreement of the Company herein shall
not inure to the benefit of any such underwriter (or to the
benefit of any person who controls such underwriter) on
account of any losses, claims, damages
11
or liabilities (or actions or proceedings in respect thereof)
arising from the sale of any of such Warrants or Warrant
Shares by such underwriter to a person if such underwriter
failed to send or give a copy of the prospectus furnished
pursuant to subsection (i), as the same may then be
supplemented or amended (if such supplement or amendment shall
have been furnished to the Holders pursuant to said subsection
(i)), to such person with or prior to the written confirmation
of the sale involved.
(e) Each Holder shall supply such information as the Company
may reasonably require from such Holder, or any underwriter for such
Holders, for inclusion in such registration statement or posteffective
amendment.
(f) The Company's agreements with respect to the Warrants and
Warrant Shares in this Section will continue in effect regardless of
the exercise or surrender of this Warrant.
(g) Any notices or certificates by the Company to the Holder
and by the Holder to the Company shall be deemed delivered if in
writing and delivered personally or sent by certified mail, return
receipt requested, to the Holder, addressed to the Holder at the
Holder's address as set forth on the Warrant or stockholder register of
the Company, or, if the Holder has designated, by notice in writing to
the Company, any other address, to such other address, and, if to the
Company, addressed to it at 5600 South 42nd Street, Omaha, Nebraska
67107. The Company may change its address by written notice to the
Holder.
SECTION 11. TRANSFER TO COMPLY WITH THE SECURITIES ACT OF 1933. The
Company may cause the following legend, or one similar thereto, to be set forth
on the Warrants and on each certificate representing Warrant Shares or any other
security issued or issuable upon exercise of this Warrant not theretofore
distributed to the public or sold to underwriters for distribution to the public
pursuant to Section 10 hereof, unless legal counsel for the Company is of the
opinion as to any such certificate that such legend, or one similar thereto, is
unnecessary:
The securities represented by this certificate may not be offered for
sale, sold or otherwise transferred except pursuant to an effective
registration statement made under the Securities Act of 1933 (the
"Act") and under any applicable state securities law, or pursuant to an
exemption from registration under the Act and under any applicable
state securities law, the availability of which is to be established to
the satisfaction of the Company.
SECTION 12. EXCHANGE PROVISIONS.
(a) For purposes of this Section, this Warrant shall be deemed
to represent the same number of Warrants as there are Warrant Shares
underlying this Warrant. For example, if there are 10,000 Warrant
Shares underlying this Warrant, then for purposes of this Section, the
Holder shall be deemed to hold 10,000 Warrants.
12
(b) For purposes of this Section, the following terms shall
have the following meanings:
(i) "Current Market Value of a Warrant Share" shall
be the value of a Warrant Share as determined under subsection
(3)(a) or (b) hereof except that the time of the determination
thereunder shall be the last business day prior to the day the
Company receives a notice from the Holder under this Section.
(ii) "Warrant Value" shall mean the Current Market
Value of a Warrant Share minus or less the Exercise Price
payable under this Warrant as of the close of business on the
last business day prior to the day the Company receives a
notice from the Holder under this Section.
(c) The Holder shall have the right to exchange, in a cashless
transaction, all or part of the Holder's Warrants for Common Shares
issued by the Company at any time prior to the Expiration Date of such
Warrants by providing written notice ("Notice") to the Company. Such
Notice may only be provided after the earlier of the date the Company
has received proceeds from the initial public offering by the Company
pursuant to a registration statement declared effective under the Act
or December 31, 1999, and only at a time when the Company's Common
Shares are listed or approved for trading or quotation on a domestic or
foreign exchange, interdealer trading system or national quotation
bureau. Such Notice shall set forth the number of Warrants which the
Holder elects to exchange for Common Shares.
(d) Within 10 days after receipt of such Notice by the
Company, the Company shall issue the number of Common Shares of the
Company to the Holder which is determined by dividing the Warrant Value
of the Warrants being exchanged by the Current Market Value of a
Warrant Share as of the date the Notice is received by the Company.
(e) The Holder shall surrender the Warrant which the Holder is
exchanging for Common Shares upon receipt thereof. If the entire
Warrant is being exchanged by the Holder for Common Shares, the Company
shall cancel the entire Warrant. If less than the entire Warrant is
being exchanged for Common Shares, the Company shall issue a new
Warrant to the Holder representing the portion of this Warrant which
was not exchanged for Common Shares.
13
SECTION 13. APPLICABLE LAW. This Warrant shall be governed by, and
construed in accordance with, the laws of the State of Nebraska.
Dated: [ ].
TRANSGENOMIC, INC.
By
---------------------------------------
Name
-------------------------------------
Title
------------------------------------
14
PURCHASE FORM
Dated: [__________], 19[___]
The undersigned hereby irrevocably elects to exercise the Warrant to
the extent of purchasing [ ] shares of Common Shares and hereby makes payment of
$[ ] in payment of the actual exercise price thereof.
INSTRUCTIONS FOR REGISTRATION OF SHARES
Name:
---------------------------------------------------------------------------
(Please typewrite or print in block letters)
Address:
------------------------------------------------------------------------
Signature:
----------------------------------------------------------------------
ASSIGNMENT FORM
Dated: [_________], 19[___]
FOR VALUE RECEIVED,
-------------------------------------------------------------
hereby sells, assigns and transfers unto
----------------------------------------
Name:
---------------------------------------------------------------------------
(Please typewrite or print in block letters)
Address:
------------------------------------------------------------------------
the right to purchase Common Shares represented by this Warrant to the extent of
Common Shares as to which such right is exercisable and does hereby irrevocably
constitute and appoint attorney to transfer the same on the books of the Company
with full power of substitution in the premises.
Signature:
15
EXHIBIT 10.3
SCHEDULE
OF
WARRANT HOLDERS
--------------------------------------------- --------------------------------------------
NAME/ADDRESS NO. OF COMMON SHARES
--------------------------------------------- --------------------------------------------
SMITH HAYES FINANCIAL SVCS. 108,250
Consolidated Investment Corp.
200 Centre Terrace
1225 L Street
Lincoln, NE 68501
--------------------------------------------- --------------------------------------------
Leroy J. Schroeder 2,500
800 US Bank Building
Lincoln, NE 68508
--------------------------------------------- --------------------------------------------
Section 1. MILLENNIUM FINANCIAL GROUP 500
Anthony H. Mannara
Via G. Cattori 3
6902 Lugano-Paradiso
Switzerland
--------------------------------------------- --------------------------------------------
Namaste Ltd. 2,225
P.O. Box 3338, 1225 Geneva 3
Switzerland
--------------------------------------------- --------------------------------------------
Deltron Ltd. 2,225
Island Resources Ltd.
National House, Santon
Isle of Man IM4 1HA
--------------------------------------------- --------------------------------------------
Michael R. Fugler 800
235 West 56th, Suite 37E
New York, NY 10019
--------------------------------------------- --------------------------------------------
Shelley K. Gluck 250
3340 Indian Creek
Ft. Worth, TX 76180
--------------------------------------------- --------------------------------------------
David M. Dobson 500
Via Santa Radegonda 16
20121 Milano, Italy
--------------------------------------------- --------------------------------------------
Paolo E. Floriani 500
Via Cattori 3
6902 Paradiso, Switzerland
--------------------------------------------- --------------------------------------------
James M. McCrory 500
Viale Geno 16
22100 Como, Italy
--------------------------------------------- --------------------------------------------
Frank T. Marino 500
32 Quai G. Ador
Geneva, Switzerland
--------------------------------------------- --------------------------------------------
Section 2. RAF/AMERICAN FRONTEER 16,850
John P. Kanouff
2525 East Cedar Avenue
Denver, CO 80209
--------------------------------------------- --------------------------------------------
16
--------------------------------------------- --------------------------------------------
Robert H. Taggart 3,370
7163 S. Chapparal Circle East
Aurora, CO 80016
--------------------------------------------- --------------------------------------------
Section 3. American Fronteer 6,740
Financial Corporation
One Norwest Center
1700 Lincoln Street, 32nd Floor
Denver, CO 80203
--------------------------------------------- --------------------------------------------
Section 4. American Fronteer 6,740
Financial Corporation
One Norwest Center
1700 Lincoln Street, 32nd Floor
Denver, CO 80203
--------------------------------------------- --------------------------------------------
Section 5. G.S. BECKWITH GILBERT 300,000
G. S. Beckwith Gilbert
Field Point Capital Management
47 Arch Street
Greenwich, CT 06830
17