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EXHIBIT 4.2
THE SECURITIES EVIDENCED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED
UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH
SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH RULE 144 UNDER THE ACT, OR THE
COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF SUCH SECURITIES
REASONABLY SATISFACTORY TO THE STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR
HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SUCH ACT.
No. 001 October 4, 2000
WARRANT TO PURCHASE COMMON STOCK
OF
ABAXIS, INC.
(void after October 4, 2005)
1. Number of Shares Subject to Warrant. FOR VALUE RECEIVED, subject to
the terms and conditions herein set forth, Holder (as defined below) is entitled
to purchase from Abaxis, Inc., a California corporation (the "Company"), during
the times specified in Section 6, at a price per share equal to the Warrant
Price (as defined below), the Warrant Stock (as defined below) upon exercise of
this Warrant pursuant to Section 6 hereof.
2. Definitions. As used in this Warrant, the following terms shall have
the definitions ascribed to them below:
(a) "Holder" shall mean ___________ or its assigns.
(b) "Securities" shall mean that ______ shares of the Common Stock of
the Company.
(c) "Warrant Price" shall be Seven Dollars ($7.00) per share.
(d) "Warrant Stock" shall mean the Securities purchasable upon
exercise of this Warrant or issuable upon conversion of this Warrant.
(e) "Market Price" of a share of Common Stock means:
(i) the average of the daily closing sales prices of the Common
Stock on the national securities exchange on which the Common Stock may at the
time be listed, or, if there shall have been no sales on any such exchange on
any day, the average of the reported bid and asked prices on all such exchanges
at the end of such day, in each case over the twenty trading days immediately
before the date of determination of Market Price, or
(ii) if on any date of determination of Market Price, the Common
Stock shall not be listed on a national securities exchange, the average of the
closing sales price on the NASDAQ Stock Market, or, if there shall have been no
sales on the NASDAQ Stock Market on
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any day, the average of the reported bid and asked prices on the NASDAQ Stock
Market at the end of such day, in each case over the twenty trading days
immediately before the date of determination of Market Price, or
(iii) if the Common Stock is not listed on any national
securities exchange or quoted on the NASDAQ Stock Market, the Market Price shall
be deemed to be the fair value thereof calculated as follows:
(A) the Company's Board of Directors shall initially
determine in good faith within 7 days the Market Price on the date of delivery
of the applicable notice or request and provide such determination in writing to
the Holder;
(B) the Holder shall have 7 business days from the receipt
of such written determination to accept or object to the Market Price as
determined by the Company's Board of Directors. If the Holder objects, the
Market Price shall be determined by an appraiser who shall be an independent
internationally recognized investment banking firm jointly chosen by the Holder
and the Company within 5 business days of the Company's receipt of the Holder's
objection. If the Holder and the Company fail to jointly appoint a sole
appraiser within the specified time, the Market Price shall be the value agreed
upon by an appraiser chosen at random by a mutually agreed upon party from a
group composed of 3 Company nominated appraisers and 3 Holder nominated
appraisers. If the chosen appraiser declines to provide an appraisal, the
process shall be repeated from the group of remaining nominated appraisers. The
compensation, costs, fees and expenses relating to the appraisers and the
related procedures for choosing an appraiser shall be borne equally by the
Holder and the Company.
(f) "SEC" means the Securities and Exchange Commission.
(g) "Trading Price" means the closing price per share of an acquiring
or merging (pursuant to Section 10) company's common stock on the last trading
day prior to signing of an acquisition, merger or similar agreement.
3. Fractional Shares. No fractional shares shall be issuable upon
exercise or conversion of the Warrant and the number of shares to be issued
shall be rounded down to the nearest whole share. If a fractional share interest
arises upon any exercise or conversion of the Warrant, the Company shall
eliminate such fractional share interest by paying the Holder an amount computed
by multiplying the fractional interest by the fair market value of a full share.
4. No Shareholder Rights. This Warrant, by itself, as distinguished from
any shares purchased hereunder, shall not entitle its Holder to any of the
rights of a shareholder of the Company.
5. Reservation of Stock. The Company will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the issuance
of Warrant Stock upon the exercise or conversion of this Warrant. Issuance of
this Warrant shall constitute full authority to the Company's officers who are
charged with the duty of executing stock certificates to execute and issue the
necessary certificates for shares of Warrant Stock issuable upon the exercise or
conversion of this Warrant.
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6. Exercise of Warrant. This Warrant may be exercised by the surrender of
this Warrant, together with the Notice of Exercise and Investment Representation
Statement in the forms attached hereto as Attachments 1 and 2, respectively,
duly completed and executed at the principal office of the Company, specifying
the portion of the Warrant to be exercised and accompanied by payment in full of
the Warrant Price in cash or by check with respect to the shares of Warrant
Stock being purchased. This Warrant shall be deemed to have been exercised
immediately prior to the close of business on the date of its surrender for
exercise as provided above, and the person entitled to receive the shares of
Warrant Stock issuable upon such exercise shall be treated for all purposes as
Holder of such shares of record as of the close of business on such date. As
promptly as practicable after such date, the Company shall issue and deliver to
the person or persons entitled to receive the same a certificate or certificates
for the number of full shares of Warrant Stock issuable upon such exercise. If
the Warrant shall be exercised for less than the total number of shares of
Warrant Stock then issuable upon exercise, promptly after surrender of the
Warrant upon such exercise, the Company will execute and deliver a new Warrant,
dated the date hereof, evidencing the right of the Holder to the balance of the
Warrant Stock purchasable hereunder upon the same terms and conditions set forth
herein.
7. Conversion. In lieu of exercising this Warrant or any portion hereof,
the Holder hereof shall have the right to convert this Warrant or any portion
hereof into Warrant Stock by executing and delivering to the Company at its
principal office the written Notice of Conversion and Investment Representation
Statement in the forms attached hereto as Attachments 2 and 3, specifying the
portion of the Warrant to be converted, and accompanied by this Warrant. The
number of shares of Warrant Stock to be issued to Holder upon such conversion
shall be computed using the following formula:
X = (P)(Y)(A-B)/A
X = the number of shares of Securities to be issued to the Holder for the
portion of the Warrant being converted.
P = the portion of the Warrant being converted expressed as a decimal
fraction.
Y = the total number of shares of Securities issuable upon exercise
of the Warrant in full.
A = the Market Price.
B = the Warrant Price on the date of conversion.
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Any portion of this Warrant that is converted shall be immediately
canceled. This Warrant or any portion hereof shall be deemed to have been
converted immediately prior to the close of business on the date of its
surrender for conversion as provided above, and the person entitled to receive
the shares of Warrant Stock issuable upon such conversion shall be treated for
all purposes as Holder of such shares of record as of the close of business on
such date. As promptly as practicable after such date, the Company shall issue
and deliver to the person or persons entitled to receive the same a certificate
or certificates for the number of full shares of Warrant Stock issuable upon
such conversion. If the Warrant shall be converted for less than the total
number of shares of Warrant Stock then issuable upon conversion, promptly after
surrender of the Warrant upon such conversion, the Company will execute and
deliver a new Warrant, dated the date hereof, evidencing the right of the Holder
to the balance of the Warrant Stock purchasable hereunder upon the same terms
and conditions set forth herein.
8. Adjustment of Exercise Price and Number of Shares. The number of
shares issuable upon exercise of this Warrant (or any shares of stock or other
securities or property at the time receivable or issuable upon exercise of this
Warrant) and the Warrant Price therefor are subject to adjustment upon the
occurrence of the following events:
(a) Adjustment for Stock Splits, Stock Dividends, Recapitalizations,
etc. The Warrant Price and the number of shares issuable upon exercise of this
Warrant shall each be proportionally adjusted to reflect any stock dividend,
stock split, reverse stock split, combination of shares, reclassification,
recapitalization or other similar event altering the number of outstanding
shares of the Company's capital stock.
(b) Adjustment for Other Dividends and Distributions. In case the
Company shall make or issue, or shall fix a record date for the determination of
eligible holders entitled to receive, a dividend or other distribution with
respect to the shares payable in securities of the Company then, and in each
such case, the Holder, on exercise of this Warrant at any time after the
consummation, effective date or record date of such event, shall receive, in
addition to the Warrant Stock (or such other stock or securities) issuable on
such exercise prior to such date, the securities of the Company to which such
Holder would have been entitled upon such date if such Holder had exercised this
Warrant immediately prior thereto (all subject to further adjustment as provided
in this Warrant).
9. Adjustment for Capital Reorganization, Consolidation, Merger. If any
capital reorganization of the capital stock of the Company, or any consolidation
or merger of the Company with or into another corporation, or the sale of all or
substantially all of the Company's assets to another corporation shall be
effected in such a way that holders of the Company's capital stock will be
entitled to receive stock, securities or assets with respect to or in exchange
for the Company's capital stock, and in each such case the Holder, upon the
exercise of this Warrant, at any time after the consummation of such capital
reorganization, consolidation, merger, or sale, shall be entitled to receive, in
lieu of the stock or other securities and property receivable upon the exercise
of this Warrant prior to such consummation, the stock or other securities or
property to which such Holder would have been entitled upon such consummation if
such Holder had exercised this Warrant immediately prior to the consummation of
such capital reorganization, consolidation, merger, or sale, all subject to
further adjustment as provided in this
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Section 9; and in each such case, the terms of this Warrant shall be applicable
to the shares of stock or other securities or property receivable upon the
exercise of this Warrant after such consummation.
10. Transfer of Warrant. This Warrant may be transferred or assigned by
the Holder hereof in whole or in part, provided that the transferor provides, at
the Company's request, an opinion of counsel satisfactory to the Company that
such transfer does not require registration under the Act and the securities law
applicable with respect to any other applicable jurisdiction.
11. Termination. This Warrant shall terminate and no longer by exercisable
at 5:00 p.m. California time, on October 4, 2005.
12. Miscellaneous. This Warrant shall be governed by the laws of the State
of California, as such laws are applied to contracts to be entered into and
performed entirely in California by California residents. The headings in this
Warrant are for purposes of convenience and reference only, and shall not be
deemed to constitute a part hereof. Neither this Warrant nor any term hereof may
be changed or waived orally, but only by an instrument in writing signed by the
Company and the Holder of this Warrant. All notices and other communications
from the Company to the Holder of this Warrant shall be delivered personally or
mailed by first class mail, postage prepaid, to the address furnished to the
Company in writing by the last Holder of this Warrant who shall have furnished
an address to the Company in writing, and if mailed shall be deemed given three
days after deposit in the United States mail.
Abaxis, Inc.
By: /s/ Clinton H. Severson
----------------------------
Clinton H. Severson, President
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Attachment 1
NOTICE OF EXERCISE
TO: ABAXIS, INC.
1. The undersigned hereby elects to purchase ________________ shares of
the Warrant Stock of Abaxis, Inc. pursuant to the terms of the attached Warrant,
and tenders herewith payment of the purchase price in full, together with all
applicable transfer taxes, if any.
2. Please issue a certificate or certificates representing said shares of
Warrant Stock in the name of the undersigned or in such other name as is
specified below:
----------------------------------
(Name)
----------------------------------
(Address)
----------------------- -----------------------------------------------
(Date) (Name of Warrant Holder)
By:
-------------------------------------------
Title:
-----------------------------------------
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Attachment 2
INVESTMENT REPRESENTATION STATEMENT
Shares of the Securities
(as defined in the attached Warrant) of
ABAXIS, INC.
In connection with the purchase of the above-listed securities, the undersigned
hereby represents to Abaxis, Inc. (the "Company") as follows:
(a) The securities to be received upon the exercise of the Warrant (the
"Securities") will be acquired for investment for its own account, not as a
nominee or agent, and not with a view to the sale or distribution of any part
thereof, and the undersigned has no present intention of selling, granting
participation in or otherwise distributing the same, but subject, nevertheless,
to any requirement of law that the disposition of its property shall at all
times be within its control. By executing this Statement, the undersigned
further represents that it does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer, or grant participation to such
person or to any third person, with respect to any Securities issuable upon
exercise of the Warrant.
(b) The undersigned understands that the Securities issuable upon exercise
of the Warrant at the time of issuance may not be registered under the Act, and
applicable state securities laws, on the ground that the issuance of such
securities is exempt pursuant to Section 4 (2) of the Act and state law
exemptions relating to offers and sales not by means of a public offering, and
that the Company's reliance on such exemptions is predicated on the
undersigned's representations set forth herein.
(c) The undersigned agrees that in no event will it make a disposition of
any Securities acquired upon the exercise of the Warrant unless and until (i) it
shall have notified the Company of the proposed disposition and shall have
furnished the Company with a statement of the circumstances surrounding the
proposed disposition, and (ii) it shall have furnished the Company with an
opinion of counsel satisfactory to the Company and Company's counsel to the
effect that (A) appropriate action necessary for compliance with the Act and any
applicable state securities laws has been taken or an exemption from the
registration requirements of the Act and such laws is available, and (B) the
proposed transfer will not violate any of said laws.
(d) The undersigned acknowledges that an investment in the Company is
highly speculative and represents that it is able to fend for itself in the
transactions contemplated by this Statement, has such knowledge and experience
in financial and business matters as to be capable of evaluating the merits and
risks of its investments, and has the ability to bear the economic risks
(including the risk of a total loss) of its investment. The undersigned
represents that it has had the opportunity to ask questions of the Company
concerning the Company's business and assets and to obtain any additional
information which it considered necessary to verify the accuracy of or to
amplify the Company's disclosures, and has had all questions which have been
asked by it satisfactorily answered by the Company.
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(e) The undersigned acknowledges that the Securities issuable upon
exercise of the Warrant must be held indefinitely unless subsequently registered
under the Act or an exemption from such registration is available. The
undersigned is aware of the provisions of Rule 144 promulgated under the Act
which permit limited resale of shares purchased in a private placement subject
to the satisfaction of certain conditions, including, among other things, the
existence of a public market for the shares, the availability of certain current
public information about the Company, the resale occurring not less than one
year after a party has purchased and paid for the security to be sold, the sale
being through a "broker's transaction" or in transactions directly with a
"market makers" (as provided by Rule 144(f)) and the number of shares being sold
during any three-month period not exceeding specified limitations.
Dated:
-------------------------
-------------------------------------------
(Typed or Printed Name)
By:
-------------------------------------------
(Signature)
-------------------------------------------
(Title)
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Attachment 3
NOTICE OF CONVERSION
TO: ABAXIS, INC.
1. The undersigned hereby elects to acquire ________________ shares of
the Securities of Abaxis, Inc., pursuant to the terms of the attached Warrant,
by conversion of _____________ percent (________ %) of the Warrant.
2. Please issue a certificate or certificates representing said shares of
Securities in the name of the undersigned or in such other name as is specified
below:
----------------------------------
(Name)
----------------------------------
(Address)
----------------------- -----------------------------------------------
(Date) (Name of Warrant Holder)
By:
-------------------------------------------
Title:
-----------------------------------------
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