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Exhibit 4.1
Senior Subordinated Convertible Debenture to GCA Strategic Investment
Fund Limited
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER
HEREOF, BY PURCHASING SUCH SECURITIES AGREES FOR THE BENEFIT OF THE COMPANY THAT
SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE
COMPANY, (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT, OR (C) IF REGISTERED UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS. IN ADDITION, A SECURITIES PURCHASE AGREEMENT, DATED AS OF THE
DATE HEREOF, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY AT ITS PRINCIPAL
EXECUTIVE OFFICE, CONTAINS CERTAIN ADDITIONAL AGREEMENTS AMONG THE PARTIES,
INCLUDING, WITHOUT LIMITATION, PROVISIONS WHICH (A) LIMIT THE CONVERSION RIGHTS
OF THE HOLDER, (B) SPECIFY VOLUNTARY AND MANDATORY REPAYMENT, PREPAYMENT AND
REDEMPTION RIGHTS AND OBLIGATIONS AND (C) SPECIFY EVENTS OF DEFAULT FOLLOWING
WHICH THE REMAINING BALANCE DUE AND OWING HEREUNDER MAY BE ACCELERATED.
No. 1 $2,250,000
3% SENIOR SUBORDINATED CONVERTIBLE DEBENTURE
of
Boston Biomedica, Inc., a Massachusetts corporation (together with its
successors, the "Company"), for value received hereby promises to pay to:
GCA STRATEGIC INVESTMENT FUND LIMITED
(The "Holder") and registered assigns, the principal sum of Two Million Two
Hundred Fifty Thousand ($2,250,000) or, if less, the principal amount of this
Senior Subordinated Convertible Debenture (this "Convertible Debenture") then
outstanding, on the Maturity Date by wire transfer of immediately available
funds to the Holder in such coin or currency of the United States of America as
at the time of payment shall be legal tender for the payment of public and
private debts, and to pay interest which shall accrue beginning the date hereof,
quarterly in arrears, on (i) the last day of March, June, September and December
of each year until the Maturity Date, commencing September 30, 2000 (unless such
day is not a Business Day, in which event on the next succeeding Business Day)
(each an "Interest Payment Date"), (ii) the Maturity Date, (iii) each Conversion
Date, as hereafter defined, and (iv) the date the principal amount of the
Convertible Debentures shall be declared to be or shall automatically become due
and payable, on the principal sum hereof
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outstanding in like coin or currency, at the rates per annum set forth below,
from the most recent Interest Payment Date to which interest has been paid on
this Convertible Debenture, or if no interest has been paid on this Convertible
Debenture, from the date of this Convertible Debenture until payment in full of
the principal sum hereof has been made. The Maturity Date is August 25, 2003.
The interest rate shall be three percent (3%) per annum (the "Interest
Rate") or, if less, the maximum rate permitted by applicable law. Past due
amounts (including interest, to the extent permitted by law) will also accrue
interest at the Interest Rate plus 2% per annum or, if less, the maximum rate
permitted by applicable law, and will be payable on demand ("Default Interest").
Interest on this Convertible Debenture will be calculated on the basis of a
360-day year of twelve 30 day months. All payments of principal and interest
hereunder shall be made for the benefit of the Holder pursuant to the terms of
the Agreement (hereafter defined). At the option of the Company, interest may be
paid in cash or in shares of Common Stock. If the Company determines to pay
interest in shares of Common Stock, it shall be required to notify the Holder of
such election on the Closing Date. On each Conversion Date, interest shall be
paid in shares of Common Stock on the portion of the principal balance of the
Convertible Debenture then being converted. The number of shares of Common Stock
issued as interest shall be determined by dividing the dollar amount of interest
due on the applicable Interest Payment Date by the Conversion Price then in
effect.
This Convertible Debenture is a duly authorized issuance of Convertible
Debentures of the Company referred to in that certain Securities Purchase
Agreement dated as of the date hereof between the Company and the Purchaser
named therein (the "Agreement"). The Agreement contains certain additional
agreements among the parties with respect to the terms of this Convertible
Debenture, including, without limitation, provisions which (A) limit the
conversion rights of the Holder, (B) specify voluntary and mandatory repayment,
prepayment and redemption rights and obligations and (C) specify Events of
Default following which the remaining balance due and owing hereunder may be
accelerated. All such provisions are an integral part of this Convertible
Debenture and are incorporated herein by reference. This Convertible Debenture
is transferable and assignable to one or more Persons, in accordance with the
limitations set forth in the Agreement.
This Convertible Debenture shall rank senior to any indebtedness of the
Company except (a) the Company's outstanding credit facility with Fleet Bank and
any successor thereof, including increases to such credit facility; (b) the
Company's mortgage loan with Commerce Bank; and (c) any future sale and lease
back transaction in connection with the Company's headquarters building in West
Bridgewater, MA, to which it shall be junior in ranking.
The Company shall keep a register (the "Register") in which shall be
entered the names and addresses of the registered holder of this Convertible
Debenture and particulars of this Convertible Debenture held by such holder and
of all transfers of this Convertible Debenture. References to the Holder or
"Holders" shall mean the Person listed in the Register as registered holder of
such Convertible Debentures. The ownership of this Convertible Debenture shall
be proven by the Register.
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1. CERTAIN TERMS DEFINED. All terms defined in the Agreement and not
otherwise defined herein shall have for purposes hereof the meanings provided
for in the Agreement.
2. COMPANY COVENANTS. The Company covenants and agrees to observe and
perform each of its covenants, obligations and undertakings contained in the
Agreement, which obligations and undertakings are expressly assumed herein by
the Company and made for the benefit of the holder hereof.
3. PAYMENT OF PRINCIPAL. The Company shall repay the remaining unpaid
balance of this Convertible Debenture on the Maturity Date. The Company may, and
shall be obligated to, prepay all or a portion of this Convertible Debenture on
the terms specified in the Agreement.
4. CONVERSION.
4.1 CONVERSION OF CONVERTIBLE DEBENTURE. Subject to Section 5 hereof,
the Holder shall have the right, at its option, at any time from and
after the 90th day following the date of issuance of this Convertible
Debenture, to convert the principal amount of this Convertible
Debenture, or any portion of such principal amount, into that number of
fully paid and nonassessable shares of Common Stock (as such shares
shall then be constituted) determined pursuant to this Section 4.1. The
number of shares of Common Stock to be issued upon each conversion of
this Convertible Debenture shall be determined by dividing the
Conversion Amount (as defined below) by the Conversion Price in effect
on the date (the "Conversion Date") a Notice of Conversion is delivered
to the Company, as applicable, by the Holder by facsimile dispatched
prior to 5:00 p.m., E.S.T. Prior to sending the facsimile Notice of
Conversion to the Company, the Holder shall notify the Company of such
conversion by telephone to one of the following individuals on the
following order of priority: (1) Richard T. Schumacher, (2) Kevin
Quinlan and (3) Kathi Benjamin (or to each of the individual's
voicemail if none of the individuals is available) as set forth in
Section 4.4 hereto. The Company may change the individuals to whom such
telephone notice shall be directed by notifying the Holder of any such
change. The term "Conversion Amount" means, with respect to any
conversion of this Convertible Debenture, the sum of (1) the principal
amount of this Convertible Debenture to be converted in such conversion
plus (2) accrued and unpaid interest, if any, on such principal amount
at the interest rates provided in this Convertible Debenture to the
Conversion Date plus (3) Default Interest, if any, on the interest
referred to in the immediately preceding clause (2) plus (4) at the
Holder's option, any amounts owed to the Holder pursuant to Section 4.3
hereof, Section 10.1 of the Agreement or Section 10.4 of the Agreement.
4.2 CONVERSION PRICE. At the option of the Holder, any portion or all
of the outstanding principal amount of this Convertible Debenture shall
be converted into a number of shares of Common Stock at the conversion
price (the "Conversion Price") equal to the lesser of (i) 110% of the
volume weighted average sales price of the Common Stock, as reported by
Bloomberg L.P. on the day immediately preceding the Closing Date (the
"Fixed Conversion
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Price") and (ii) 90% of the average of the five (5) lowest volume
weighted average sales prices of the Common Stock as reported by
Bloomberg L.P. during the 25 Trading Days immediately preceding but not
including the date of the related Notice of Conversion (the "Formula
Conversion Price").
4.3 AUTHORIZED SHARES.
(1) Consistent with Section 7.11 of the Agreement, the Company
(i) shall promptly irrevocably instruct the Company's transfer agent to
issue certificates for the Common Stock issuable upon conversion of
this Convertible Debenture and (ii) agrees that its issuance of this
Convertible Debenture shall constitute full authority to its officers
and agents who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for shares
of Common Stock in accordance with the terms and conditions of this
Convertible Debenture.
(2) If at any time a Holder of this Convertible Debenture
submits a Notice of Conversion (x) the Company does not have sufficient
authorized but unissued shares of Common Stock available to effect such
conversion in full in accordance with the provisions of this Article 4
or (y) the Company is prohibited by the applicable rules of the OTC
Bulletin Board or the National Market on which the shares of Common
Stock are listed and traded at that time to effect such conversion in
full as provided in subsection (3) below, without stockholder approval
(each, a "Conversion Default"), the Company shall issue to the Holder
all of the shares of Common Stock which are then available to effect
such conversion. The portion of this Convertible Debenture which the
Holder included in its Conversion Notice and which exceeds the amount
which is then convertible into available shares of Common Stock (the
"Excess Amount") shall, notwithstanding anything to the contrary
contained herein, not be convertible into Common Stock in accordance
with the terms hereof until (and at the Holder's option at any time
after) the date additional shares of Common Stock are authorized by the
Company, or its stockholders, as applicable, at which time the
Conversion Price in respect thereof shall be the lower of (i) the
Conversion Price on the Conversion Default Date (as defined below) and
(ii) the Conversion Price on the Conversion Date thereafter elected by
the Holder in respect thereof. The Company shall pay to the Holder
payments ("Conversion Default Payments") for a Conversion Default in
the amount of (N/365) x .24 x the Excess Amount on the Conversion Date
in respect of the Conversion Default (the "Conversion Default Date"),
where N = the number of days from the Conversion Default Date to the
date (the "Authorization Date") that the Company, or its stockholders,
as applicable, authorizes a sufficient number of shares of Common Stock
to effect conversion of the full outstanding principal balance of this
Convertible Debenture or until the Company redeems the Excess Amount in
accordance with the terms of this Convertible Debenture. The Company
shall use its best efforts to authorize, or cause its stockholders to
authorize within 40 days of the occurrence of a Conversion Default, as
applicable, a sufficient number of shares of Common Stock as soon as
practicable following the earlier of (i) such time that the Holder
notifies the Company or that the Company otherwise becomes aware that
there
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are or likely will be insufficient shares to allow full conversion
thereof and (ii) a Conversion Default. The Company shall send notice to
the Holder of the authorization of additional shares of Common Stock,
the Authorization Date and the amount of Holder's accrued Conversion
Default Payments. The accrued Conversion Default Payments for each
calendar month shall be paid in cash or shares of Common Stock (at such
time as there are sufficient authorized shares of Common Stock) at the
Holder's option, as follows:
(a) In the event the Holder elects to take such
payment in cash, cash payment shall be made to Holder by the
fifth Business Day of the month following the month in which
it has accrued; and
(b) In the event the Holder elects to take such
payment in Common Stock, the Holder may convert such payment
amount into Common Stock at the Conversion Price (as in effect
at the time of payment) at any time after the fifth Business
Day of the month following the month in which it has accrued
(at such time as there are sufficient authorized shares of
Common Stock) in accordance with the terms of this Article 4.
(3) The Holder's election pursuant to this Section 4.3 shall
be made in writing to the Company at any time prior to 5:00 p.m.,
E.S.T., on the third Business Day of the month following the month in
which Conversion Default payments have accrued. If no election is made,
the Holder shall be deemed to have elected to receive cash. Nothing
herein shall limit the Holders right to pursue actual damages (to the
extent in excess of the Conversion Default Payments) due to the
Company's failure to maintain a sufficient number of authorized shares
of Common Stock.
(4) In no event shall the Company issue more than the Maximum
Number of Shares upon conversion of this Convertible Debenture, unless
the Company shall have obtained approval by the stockholders of the
Company ("Stockholder Approval") or a waiver of such requirement by the
OTC Bulletin Board or the National Market on which the shares of Common
Stock are listed and traded at that time. Once the Maximum Number of
Shares has been issued (the date of which is hereinafter referred to as
the "Maximum Conversion Date"), unless the Company shall have obtained
Stockholder Approval or a waiver of such requirement by the OTC
Bulletin Board or the National Market on which the shares of Common
Stock are listed and traded at that time within 40 days of the Maximum
Conversion Date, the Company shall pay to the Holder within five (5)
Business Days of the Maximum Conversion Date (or, if the Company is, in
good faith, using its best efforts to obtain Stockholder Approval, then
the earlier of (x) 40 days following the Maximum Conversion Date, and
(y) such date that it becomes reasonably apparent that Stockholder
Approval will not be obtained within such 40 days period), the
Redemption Price for the Excess Amount plus accrued and unpaid Default
Interest, if any.
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(5) The Maximum Number of Shares shall be subject to
adjustment from time to time for stock splits, stock dividends,
combinations, capital reorganizations and similar events relating to
the Common Stock occurring after the date hereof as contemplated by
Article 11 of the Agreement. With respect to each Holder of Convertible
Debentures, the Maximum Number of Shares shall refer to such Holder's
pro rata share thereof based upon the aggregate principal balance of
the Convertible Debentures then outstanding. In the event that the
Company obtains Stockholder Approval, approval of the OTC Bulletin
Board or the National Market on which the shares of Common Stock are
listed and traded at that time, or otherwise is able to increase the
number of shares to be issued above the Maximum Number of Shares (such
increased number being the "New Maximum Number of Shares"), the
references to Maximum Number of Shares above shall be deemed to be,
instead, references to the New Maximum Number of Shares.
4.4 METHOD OF CONVERSION.
(1) Prior to sending the Notice of Conversion via facsimile as
set forth in Section 4.1 hereof, the Holder shall give notice to
Richard T. Schumacher by telephone (and if Mr. Schumacher is not
available to be reached by telephone, either Kevin Quinlan or Kathi
Benjamin by telephone, or such other person designated by the Company
after the Closing Date) that the Holder intends to submit a Notice of
Conversion on such date. Notwithstanding anything to the contrary set
forth herein, upon conversion of this Convertible Debenture in
accordance with the terms hereof, the Holder shall not be required to
physically surrender this Convertible Debenture to the Company unless
the entire unpaid principal amount of this Convertible Debenture is so
converted. Rather, the Holder shall send to the Company, and the
Company shall send to the Holder, via overnight delivery service (a)
the originally signed and executed Notice of Conversion and (b) an
originally signed and executed ANNEX A to this Convertible Debenture
indicating the amounts to be converted and the new principal balance of
this Convertible Debenture taking into account the Notice of
Conversion. The Company shall keep as part of its records the
originally executed ledger and the Holder shall maintain a copy
thereof. Upon execution of the conversion contemplated by the Notice of
Conversion, the Company and the Holder shall deliver to one another an
executed copy of ANNEX A. It is specifically contemplated that the
Company shall act as the calculation agent for conversions and
repayments. In the event there is a dispute as to the number of shares
of Common Stock the Holder is entitled to receive upon a conversion of
this Convertible Debenture (or the amount of cash to be received upon
repayment or redemption of this Convertible Debenture), the amount of
any payments due upon an Event of Default under this Convertible
Debenture or the calculation of any of the foregoing, the Holder and
the Company agree that (i) the Company shall issue to the Holder the
undisputed number of shares of Common Stock (or pay any undisputed cash
amounts with respect to a redemption or default payments) and (ii) each
party will use its best efforts to resolve such dispute within one
business day following the receipt of a Notice of Conversion (or Notice
of Redemption, as applicable). If such dispute cannot be resolved
within the one-day period, the Company and the Holder shall submit the
dispute to
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an independent accountant mutually agreed upon by the Company and the
Holder to make a determination as to the amounts due to the Holder. Any
such determination shall be final and binding on the Company and the
Holder. The Company shall issue shares of Common Stock or pay any cash
amounts owed to the Holder as a result of the resolution of the dispute
within two business days following the receipt of the independent
accountant's determination. The Holder and any assignee, by acceptance
of this Convertible Debenture, acknowledge and agree that, by reason of
the provisions of this paragraph, following a conversion of a portion
of this Convertible Debenture, the principal amount represented by this
Convertible Debenture will be the amount indicated on the ledger
evidenced by ANNEX A attached hereto (which may be less than the amount
stated on the face hereof).
(2) The Company shall not be required to pay any tax which may
be payable in respect of any transfer involved in the issuance and
delivery of shares of Common Stock or other securities or property on
conversion of this Convertible Debenture in a name other than that of
the Holder (or in street name), and the Company shall not be required
to issue or deliver any such shares or other securities or property
unless and until the person or persons (other than the Holder or the
custodian in whose street name such shares are to be held for the
Holder's account) requesting the issuance thereof shall have paid to
the Company the amount of any such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
(3) Subject to Section 5 hereof, upon receipt by the Company
of a Notice of Conversion, the Holder shall be deemed to be the holder
of record of the Common Stock issuable upon such conversion, the
outstanding principal amount and the amount of accrued and unpaid
interest on this Convertible Debenture shall be deemed reduced to
reflect such conversion, and, unless the Company defaults on its
obligations under this Article 4, all rights with respect to the
portion of this Convertible Debenture being so converted shall
forthwith terminate except the right to receive the Common Stock or
other securities, cash or other assets, as herein provided, on such
conversion. Subject to Section 5 hereof, if the Holder shall have given
a Notice of Conversion as provided herein, the Company's obligation to
issue and deliver the certificates for shares of Common Stock shall be
absolute and unconditional, irrespective of the absence of any action
by the Holder to enforce the same, any waiver or consent with respect
to any provisions thereof, the recovery of any judgment against any
person or any action by the Holder to enforce the same, any failure or
delay in the enforcement of any other obligation of the Company to the
Holder of record, or any setoff, counterclaim, recoupment, limitation
or termination, other than a breach by the Holder of any obligation to
the Company, and subject to Section 4.4(1) irrespective of any other
circumstance which might otherwise limit such obligation of the Company
to the Holder in connection with such conversion. The date of receipt
(including receipt via telecopy) of such Notice of Conversion shall be
the Conversion Date so long as it is received and the telephone notice
thereof in accordance with Section 4.4(1) is made before 5:00 p.m.,
E.S.T., on such date.
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(4) Notwithstanding the foregoing, if a Holder has not
received certificates for all shares of Common Stock prior to the
expiration of the Deadline with respect to a conversion of any portion
of this Convertible Debenture for any reason, then (unless the Holder
otherwise elects to retain its status as a holder of Common Stock by so
notifying the Company), the Holder shall regain the rights of a Holder
of this Convertible Debenture with respect to such unconverted portions
of this Convertible Debenture and the Company shall, as soon as
practicable, return such unconverted Convertible Debenture to the
holder or, if the Convertible Debenture has not been surrendered,
adjust its records to reflect that such portion of this Convertible
Debenture not been converted. In all cases, the Holder shall retain all
of its rights and remedies (including, without limitation, (i) the
right to receive Conversion Default Payments to the extent required
thereby for such Conversion Default and any subsequent Conversion
Default and (ii) the right to have the Conversion Price with respect to
subsequent conversions determined in accordance with Section 4.3 for
the Company's failure to convert this Convertible Debenture.)
(5) In lieu of delivering physical certificates representing
the Common Stock issuable upon conversion, provided the Company's
transfer agent is participating in the Depository Trust Company ("DTC")
Fast Automated Securities Transfer program, upon request of the Holder
and its compliance with the provisions contained in Section 4.1 and in
this Section 4.4, the Company shall use its best efforts to cause its
transfer agent to electronically transmit the Common Stock issuable
upon conversion to the Holder by crediting the account of Holder's
prime broker (as designated by Holder from time to time) with DTC
through its Deposit Withdrawal Agent Commission System.
5. REDEMPTION BY COMPANY.
5.1 COMPANY'S RIGHT TO REDEEM UPON RECEIPT OF NOTICE OF CONVERSION. In
addition to the redemption rights set forth in the Agreement, upon
delivery of a Notice of Conversion by the Holder (the "Initial Notice
of Conversion"), if the Closing Bid Price of the Company's Common Stock
on the date of the Notice of Conversion is less than 65% of the Closing
Bid Price of the Common Stock on the Closing Date, the Company may
elect to redeem in whole or in part, the remaining unpaid principal
amount of this Convertible Debenture, for cash at a redemption price
(the "Redemption Price") equal to (x) the number of shares of Common
Stock into which this Convertible Debenture is then convertible, times
(y) the average Closing Bid Price of Common Stock for the five (5)
Trading Days as reported by Bloomberg L.P. immediately prior to the
date that this Convertible Debenture is called for redemption, plus
accrued and unpaid interest. The election by the Company to redeem any
amount of this Convertible Debenture shall be applicable to any
subsequent amount to be converted as set forth in any Notice of
Conversion received by the Company in the twenty (20) calendar day
period following the date of the Initial Notice of Conversion, subject
to the provisions of Section 5.2 below.
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5.2 MECHANICS OF REDEMPTION. The Company shall provide written notice
of its election to redeem rather than convert the amounts set forth in
the Notice of Conversion ("Redemption Notice") via facsimile to the
Holder within one Business Day of the Confirmed Delivery of the Notice
of Conversion to the Company, if such Confirmed Delivery is on a
Business Day or by 5:00 E.S.T. of the next Business Day if such Notice
of Conversion is not delivered on a Business Day, with a copy by either
overnight or 2-day courier to the Holder of this Convertible Debenture
to be redeemed at the address and facsimile number of such Holder
appearing in the Company's register for the Convertible Debentures. The
Company shall effect each such redemption within three (3) Business
Days of giving the Redemption Notice. Such Redemption Notice shall
indicate whether the Company will redeem all or part of such portion of
the Convertible Debenture to be redeemed and the applicable Redemption
Price. The Company shall not be entitled to send any notice of
redemption and begin the redemption procedure unless it has (i) the
full amount of the Redemption Price, in cash, available in a demand or
other immediately available account in a bank or similar financial
institution or (ii) immediately available credit facilities, in the
full amount of the Redemption Price, with a bank or similar financial
institution on the date the Redemption Notice is sent to the Holders of
this Convertible Debenture. Provided, however, the Company will process
any Notice of Conversion received prior to the issuance of a Redemption
Notice; and further provided that, after a Redemption Notice has been
issued, the Holder may issue a Notice of Conversion which will not be
honored unless the Company fails to make the redemption payment when
due. In the event of such failure, the Notice of Conversion will be
honored as of the date of the Notice of Conversion. Additionally, if
the Company fails to make full payments of the Redemption Price of this
Convertible Debenture being redeemed by the third Business Day
following the Notice of Redemption, then the Company waives its right
to redeem any of the remaining then outstanding Convertible Debentures
pursuant to Section 5.1, unless approved in writing by the Holder.
5.3 PAYMENT OF REDEMPTION PRICE. The Redemption Price shall be paid to
the Holder of this Convertible Debenture within three (3) Business Days
of the delivery of the Redemption Notice.
6. HOLDER'S RIGHT TO ADVANCE NOTICE OF ELECTION TO REDEEM.
6.1 HOLDER'S RIGHT TO ELECT TO RECEIVE NOTICE OF CASH REDEMPTION BY
COMPANY. The Holder of this Convertible Debenture shall have the right
to require the Company to provide advance notice stating whether the
Company will elect to redeem all or part of the redeemable portion in
cash, pursuant to the Company's redemption rights discussed in Section
5.1 above.
6.2 MECHANICS OF HOLDER'S ELECTION NOTICE. Holder shall give notice to
the Company by facsimile (the "Election Notice"), requiring that the
Company disclose whether the Company would elect to redeem the
redeemable portion of this Convertible Debenture (in
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whole or in part) if the Holder were to provide a Notice of Conversion within
the next four (4) Business Days and sought to convert the Convertible
Debenture in such principal amount as is specified in the Election Notice.
6.3 COMPANY'S RESPONSE. Company must respond, disclosing its election, within
two (2) Business Days of receipt of Holder's Election Notice via facsimile.
If Company does not respond to Holder within two (2) Business Days (by 12:00
noon, if required above) via facsimile, Company shall be deemed to have
forfeited its right to exercise redemption pursuant to Section 5.1 upon its
receipt of (but only with respect to) that Notice of Conversion.
7. HOLDER'S COVENANTS. The Holder of this Convertible Debenture, by its
acceptance thereof, covenants and agrees that the Convertible Debenture is
being acquired as an investment and not with a view to the distribution
thereof in violation of the Securities Act, and that the Convertible
Debenture may not be transferred, sold, assigned, hypothecated or otherwise
disposed of, in whole, or in part, except as provided on the first page
hereof and provided that the Holder shall have furnished to the Company an
opinion of counsel, in form and substance reasonably satisfactory to the
Company, to the effect that such transfer is exempt from the registration
requirements of the Securities Act and any applicable state securities laws.
8. MISCELLANEOUS. This Convertible Debenture shall be deemed to be a contract
made under the laws of the State of Massachusetts, and for all purposes shall
be governed by and construed in accordance with the laws of said State. The
parties hereto, including all guarantors or endorsers, hereby waive
presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance and enforcement of this
Convertible Debenture, except as specifically provided herein, and assent to
extensions of the time of payment, or forbearance or other indulgence without
notice. The Company hereby submits to the exclusive jurisdiction of the
United States District Court for Boston, Massachusetts and of any
Massachusetts state court sitting in Boston, Massachusetts for purposes of
all legal proceedings arising out of or relating to this Convertible
Debenture. The Company irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the
venue of any such proceeding brought in such a court and any claim that any
such proceeding brought in such a court has been brought in an inconvenient
forum. The Company hereby irrevocably waives any and all right to trial by
jury in any legal proceeding arising out of or relating to this Convertible
Debenture.
The Holder of this Convertible Debenture by acceptance of this
Convertible Debenture agrees to be bound by the provisions of this Convertible
Debenture which are expressly binding on such Holder.
[Signature page follows]
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated: August 25, 2000
BOSTON BIOMEDICA, INC.
By: /s/ Kevin W. Quinlan
-----------------------
Name: Kevin W. Quinlan
Title: President
<PAGE>
ANNEX A
CONVERSION AND REPAYMENT LEDGER
<TABLE>
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PRINCIPAL INTEREST CONVERTED PRINCIPAL CONVERTED NEW PRINCIPAL ISSUER HOLDER
DATE BALANCE OR PAID OR PAID BALANCE INITIALS INITIALS
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<S> <C> <C> <C> <C> <C> <C>
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</TABLE>
BOSTON BIOMEDICA, INC. HOLDER:
By: ______________________ By:________________________________
Name:____________________ Name:______________________________
Title: _____________________ Title: ____________________________
<PAGE>
FULL NAME AND ADDRESS OF SUBSCRIBER FOR REGISTRATION PURPOSES:
NAME:
ADDRESS:
TEL NO:
FAX NO:
CONTACT
NAME:
DELIVERY INSTRUCTIONS (IF DIFFERENT FROM REGISTRATION NAME):
NAME:
ADDRESS:
TEL NO:
FAX NO:
CONTACT
NAME:
SPECIAL INSTRUCTIONS:
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NOTICE OF CONVERSION
(To be Executed by the Registered Holder
in order to Convert the Convertible Debenture)
The undersigned hereby irrevocably elects to convert $________ of the
principal balance of the Convertible Debenture into shares of Common Stock, $.01
par value per share (the "Common Stock"), of Boston Biomedica, Inc. (the
"Company") according to the conditions hereof, as of the date written below. No
fee will be charged to the Holder for any conversion, except for transfer taxes,
if any. The undersigned, as contemplated by Section 5.1 of the Securities
Purchase Agreement pursuant to which the Convertible Debenture was issued,
hereby states that the representations and warranties of the undersigned set
forth therein are true and correct in all material respects as of the date
hereof.
Conversion calculations:
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Date of Conversion
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Applicable Conversion Price
-------------------------------------------
Number of Shares
-------------------------------------------
Name/Signature
Address:
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