Exhibit 4.5 Form of Placement Agent Warrant
EACH SUBSCRIBER SHALL RECEIVE A WARRANT CERTIFICATE AT CLOSING WITH THE TERMS
SET FORTH HEREIN, NOT A WARRANT IN THE FORM HEREUNDER. THIS FORM OF WARRANT IS
BEING PROVIDED TO EACH SUBSCRIBER SOLELY TO SET FORTH THE TERMS OF THE WARRANT
CERTIFICATE TO BE ISSUED AT CLOSING.
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY MAY
NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER
SUCH ACT.
No. W-___ Warrant to Purchase ____ Shares of
Common Stock (subject to adjustment)
FORM OF WARRANT
TO PURCHASE COMMON STOCK
of
AMERICAN BIO MEDICA CORPORATION
This Warrant (the "Warrant") is issued to [Name of Purchaser] or his,
her or its permitted assigns ("Holder") by American Bio Medica Corporation, a
New York corporation (the "Company"), on August 22, 2001 (the "Warrant Issue
Date") for consideration of $____ in the aggregate, receipt of which is hereby
acknowledged.
1. Purchase Shares. Subject to the terms and conditions hereinafter set
forth, the Holder is entitled, upon surrender of this Warrant at the principal
office of the Company (or at such other place as the Company shall notify the
holder hereof in writing), to purchase from the Company up to _____________
shares of common stock, par value $0.01 per share ("Common Stock"), of the
Company (the "Warrant Shares") at the Exercise Price (defined below), subject to
adjustment as provided in Section 8 hereof.
2. Exercise Price. The purchase price for the Warrant Shares shall be
$1.20 per Warrant Share, as adjusted from time to time pursuant to Section 7
hereof (the "Exercise Price").
3. Exercise Period. This Warrant may be exercised at any time after
February 22, 2002 until 5:00 p.m., New York City time on the earlier of: (a)
August 22, 2006; or (b) upon redemption of this Warrant in accordance with the
terms and conditions set forth in Section 4 hereof.
4. Redemption. At any time after February 22, 2002 and prior to the
exercise of this Warrant:
(a) On not less than twenty (20) days notice given at any time
when the registration statement covering the resale of the shares of
Common Stock issuable upon exercise of this Warrant required to be
filed by the Company, pursuant to the registration rights agreement,
dated as of the date hereof, by and among the Company and the persons
signing the signature page thereof (the "Registration Rights
Agreement"), is effective and which shall remain effective during such
20 day notice period, this Warrant may be redeemed, at the option of
the Company, at a redemption price of $0.05, provided the closing price
on the Nasdaq SmallCap Market or, if applicable, any automated
quotation system or national securities exchange, of the Common Stock
issuable upon exercise of this Warrant shall equal or exceed the then
Exercise Price multiplied by three (3), for a period of twenty (20)
consecutive trading days ending at least three (3) days prior to the
date of the notice of redemption.
(b) If the conditions set forth in Section 4(a) are met, and
the Company elects to exercise its right to redeem this Warrant, it
shall mail a notice of redemption to the registered Holder of this
Warrant to be redeemed, first class, postage prepaid, not later than
the thirtieth day before the date fixed for redemption, at their last
address as shall appear on the records maintained by the Company. Any
notice mailed in the manner provided herein shall be conclusively
presumed to have been duly given whether or not the registered Holder
receives such notice.
(c) The notice of redemption shall specify (i) the redemption
price, (ii) the date fixed for redemption, and (iii) that the right to
exercise this Warrant shall terminate at 5:00 P.M. (New York time) on
the business day immediately preceding the date fixed for redemption.
The date fixed for the redemption of this Warrant shall be the
"Redemption Date." No failure to mail such notice nor any defect
therein or in the mailing thereof shall affect the validity of the
proceedings for such redemption except as to a registered Holder (A) to
whom notice was not mailed or (B) whose notice was defective. An
affidavit of the Secretary or an Assistant Secretary of the Company
that notice of redemption has been mailed shall, in the absence of
fraud, be prima facie evidence of the facts stated therein.
(d) Any right to exercise this Warrant shall terminate at 5:00
P.M. (New York time) on the business day immediately preceding the
Redemption Date. On and after the Redemption Date, Holder of this
Warrant shall have no further rights except to receive, upon surrender
of the Warrant, the redemption price.
(e) From and after the Redemption Date specified, the Company
shall, at the place specified in the notice of redemption, upon
presentation and surrender to the Company by or on behalf of the
registered Holder thereof of one or more certificates evidencing this
Warrant to be redeemed, deliver or cause to be delivered to or upon the
written order of such Holder a sum in cash equal to the redemption
price of this Warrant. From and after the Redemption Date and upon the
deposit or setting aside by the Company of a sum sufficient to redeem
this Warrant, this Warrant shall expire and become void and all rights
hereunder, except the right to receive payment of the redemption price,
shall cease.
5. Method of Exercise. While this Warrant remains outstanding and
exercisable in accordance with Section 3 above, the Holder may exercise, in
whole or in part, the purchase rights evidenced hereby. Such exercise shall be
effected by:
(a) the surrender of the Warrant, together with a duly
executed copy of the form of Notice of Exercise attached hereto, to the
Secretary of the Company at its principal offices set forth on the
signature page hereof; and
(b) the payment in the form of:
a certified or bank cashier's check payable to the
order of the Company in an amount equal to the Exercise Price
multiplied by the number of Warrant Shares for which this
Warrant is being exercised; or
in lieu of any cash payment, the Holder of the
Warrants shall have th right at any time and from time to time
to exercise the Warrants in full or in part by surrendering
the Warrant in exchange for the number of shares equal to the
product of (x) the number of shares as to which the Warrants
are being exercised multiplied by (y) a fraction, the
numerator of which is the Market Price, (as defined below) of
the Shares less the Exercise Price and the denominator of
which is such Market Price. Solely for the purposes of this
paragraph, "Market Price" shall be the average last reported
sale price of the Common Shares as calculated over the five
(5) trading day period preceding the date on which the
Election to Purchase is surrendered to the Company.
6. Certificates for Shares. Upon the exercise of the purchase rights
evidenced by this Warrant, one or more certificates for the number of Warrant
Shares so purchased shall be issued as soon as practicable thereafter (with
appropriate restrictive legends, if applicable), and in any event within ten
(10) business days of the delivery of the Notice of Exercise.
7. Issuance of Shares. The Company covenants that the Warrant Shares,
when issued pursuant to the exercise of this Warrant, will be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens, and charges
with respect to the issuance thereof.
8. Adjustment of Exercise Price and Kind and Number of Shares. The
number and kind of securities purchasable upon exercise of this Warrant and the
Exercise Price shall be subject to adjustment from time to time as follows:
(a) Subdivisions, Combinations and Other Issuances. If the
Company shall at any time prior to the expiration of this Warrant (i)
subdivide its Common Stock, by split-up or otherwise, or combine its
Common Stock, or (ii) issue additional shares of its Common Stock or
other equity securities as a dividend with respect to any shares of its
Common Stock; the number of shares of Common Stock issuable on the
exercise of this Warrant shall forthwith be proportionately increased
in the case of a subdivision (by stock split, stock dividend or
otherwise), or proportionately decreased in the case of a combination.
Appropriate adjustments shall also be made to the Exercise Price
payable per share, but the aggregate Exercise Price payable for the
total number of Warrant Shares purchasable under this Warrant (as
adjusted) shall remain the same. Any adjustment under this Section 7(a)
shall become effective at the close of business on the date the
subdivision or combination becomes effective, or as of the record date
of such dividend, or in the event that no record date is fixed, upon
the making of such dividend.
(b) Reclassification, Reorganization and Consolidation. In
case of any reclassification, capital reorganization, or change in the
Common Stock of the Company (other than as a result of a subdivision,
combination, or stock dividend provided for in Section 8(a) above),
then, as a condition of such reclassification, reorganization, or
change, lawful provision shall be made, and duly executed documents
evidencing the same from the Company or its successor shall be
delivered to the Holder, so that the Holder shall have the right at any
time prior to the expiration of this Warrant to purchase, at a total
price equal to that payable upon the exercise of this Warrant (subject
to adjustment of the Exercise Price as provided in Section 8), the kind
and amount of shares of stock and other securities and property
receivable in connection with such reclassification, reorganization, or
change by a holder of the same number of shares of Common Stock as were
purchasable by the Holder immediately prior to such reclassification,
reorganization, or change. In any such case appropriate provisions
shall be made with respect to the rights and interest of the Holder so
that the provisions hereof shall thereafter be applicable with respect
to any shares of stock or other securities and property deliverable
upon exercise hereof, and appropriate adjustments shall be made to the
purchase price per share payable hereunder, provided the aggregate
Exercise Price shall remain the same.
(c) Notice of Adjustment. When any adjustment is required to
be made in the number or kind of shares purchasable upon exercise of
the Warrant, or in the Exercise Price, the Company shall promptly
notify the holder of such event and of the number of shares of Common
Stock or other securities or property thereafter purchasable upon
exercise of this Warrant.
(d) Issuance of New Warrant. Upon the occurrence of any of the
events listed in this Section 7 that results in an adjustment of the
type, number or exercise price of the securities underlying this
Warrant, the Holder shall have the right to receive a new warrant
reflecting such adjustment upon the Holder tendering this Warrant in
exchange. The new warrant shall otherwise have terms identical to this
Warrant.
9. Covenants and Conditions.
(a) No Impairment. Pursuant to the terms and conditions of
this Warrant, Company shall: (i) reserve an appropriate number of
shares of Company's Common Stock to facilitate the issuance of shares
to Holder pursuant to this Warrant, (ii) not amend its articles or take
any other action that would materially impair Company's ability to
comply with the terms of the Warrant or otherwise unfairly impair the
rights of the Holder, and (iii) provide Holder with at least 10 days
prior written notice of the record date for any proposed dividend or
distribution by the Company.
(b) Registration Rights. The Company and Holder shall enter
into the Registration Rights Agreement simultaneous with the execution
of this Warrant on terms mutually agreeable to both parties.
10. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefor on the basis of the Exercise Price then in effect.
11. No Stockholder Rights. Prior to exercise of this Warrant, the
Holder shall not be entitled to any rights of a stockholder with respect to the
shares of Common Stock issuable on the exercise hereof, including (without
limitation) the right to vote such shares of Common Stock, receive dividends or
other distributions thereon, exercise preemptive rights or be notified of
stockholder meetings, and such holder shall not be entitled to any notice or
other communication concerning the business or affairs of the Company. However,
nothing in this Section 11 shall limit the right of the Holder to be provided
the notices required under this Warrant.
12. Successors and Assigns. The terms and provisions of this Warrant
shall inure to the benefit of, and be binding upon, the Company and the Holder
and their respective successors and assigns.
13. Amendments and Waivers. Any term of this Warrant may be amended and
the observance of any term of this Warrant may be waived (either generally or in
a particular instance and either retroactively or prospectively), with the
written consent of the Company and the Holder. Any waiver or amendment effected
in accordance with this Section shall be binding upon each holder of any shares
of Common Stock purchased under this Warrant at the time outstanding (including
securities into which such shares have been converted), each future holder of
all such Shares, and the Company.
14. Notices. All notices required under this Warrant and shall be
deemed to have been given or made for all purposes (i) upon personal delivery,
(ii) upon confirmation receipt that the communication was successfully sent to
the applicable number if sent by facsimile; (iii) one day after being sent, when
sent by professional overnight courier service, or (iv) five days after posting
when sent by registered or certified mail. Notices to the Company shall be sent
to the principal office of the Company (or at such other place as the Company
shall notify the Holder hereof in writing). Notices to the Holder shall be sent
to the address of the Holder on the books of the Company (or at such other place
as the Holder shall notify the Company hereof in writing).
15. Attorneys' Fees. If any action of law or equity is necessary to
enforce or interpret the terms of this Warrant, the prevailing party shall be
entitled to its reasonable attorneys' fees, costs and disbursements in addition
to any other relief to which it may be entitled.
16. Captions. The section and subsection headings of this Warrant are
inserted for convenience only and shall not constitute a part of this Warrant in
construing or interpreting any provision hereof.
17. Governing Law. This Warrant shall be governed by the laws of the
State of New York, without regard to the provisions thereof relating to conflict
of laws.
IN WITNESS WHEREOF, American Bio Medica Corporation caused this Warrant
to be executed by an officer thereunto duly authorized.
AMERICAN BIO MEDICA CORPORATION
By: /s/ Stan Cipkowski
------------------------
Stan Cipkowski
President
Address: 122 Smith Road
Kinderhook, NY 12106
Fax Number: (518) 758-8171
NOTICE OF EXERCISE
To: American Bio Medica Corporation
Attn: Stan Cipkowski
The undersigned hereby elects to:
Purchase shares of Common Stock of American Bio Medica Corporation,
pursuant to the terms of the attached Warrant and payment of the Exercise Price
per share required under such Warrant accompanies this notice.
The undersigned hereby represents and warrants that the undersigned is
acquiring such shares for its own account for investment purposes only, and not
for resale or with a view to distribution of such shares or any part thereof.
WARRANTHOLDER:
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Address:
Date:
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Name in which shares should be registered: