<PAGE> 1
As filed with the Securities and Exchange Commission on May 29, 1996
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
FORM S-3 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
_____________________
ACCUMED INTERNATIONAL, INC.
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(Exact name of registrant as specified in its charter)
______________________
DELAWARE 36-4054899
- ------------------------------- ----------------------------
(State of other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
920 N. Franklin Street, Suite 402
Chicago, Illinois 60610
(312) 642-9200
______________________
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
_______________________
PETER P. GOMBRICH
Chief Executive Officer
AccuMed International, Inc.
920 N. Franklin Street, Suite 402
Chicago, Illinois 60610
(312) 642-9200
______________________
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
_____________________________
Copy to:
GILLES S. ATTIA, ESQ.
Graham & James
400 Capitol Mall, Suite 2400
Sacramento, California 95814
(916) 558-6700
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
If only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed on continuous basis pursuant to Rule 415 under the Securities Act
of 1933, check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Amount to be Proposed Proposed Maximum Amount of
Securities to be Registered Maximum Offering Aggregate Registration
Registered Price Per Share(1) Offering Price Fee
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
Par Value $0.01 5,603,525 shares $7.09 $39,728,992 $13,700
- ----------------------------------------------------------------------------------------------------------
Common Stock Underlying
Warrants and Options 2,558,254 shares $7.09 $18,138,021 $6,254
==========================================================================================================
Total 8,161,779 shares $7.09 $57,867,013 $19,954
================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee in accordance with Rule 457(c) under the Securities Act
of 1933, as amended, based on $7.09 per share, the average of the high and
low sales prices reported for the Common Stock on May 22, 1996.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THE REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE> 2
PROSPECTUS
8,161,779 Shares
ACCUMED INTERNATIONAL, INC.
Common Stock
This Prospectus relates to 8,161,779 (the "Shares") of Common Stock, par
value $0.01 per share (the "Common Stock"), of AccuMed International, Inc.
(formerly Alamar Biosciences, Inc., the "Company" or "AccuMed") of which
2,558,254 shares (the "Underlying Shares") are underlying Common Stock Purchase
Warrants (the "Warrants") or stock options (the "Stock Options"). The Company
will not receive any of the proceeds from any sales of the Shares, but will
receive aggregate gross proceeds if all of the Warrants and Stock Options are
exercised to acquire the Warrant Shares for cash at their respective current
exercises prices. The Registration Statement of which this Prospectus forms a
part has been filed pursuant to the terms of the Warrants and Warrant
Agreements and several registration rights agreements between the Company and
holders of the Warrants and Shares, respectively. (Holders of Warrants, Stock
Options and Shares are collectively referred to as the "Selling
Securityholders.") See "Selling Securityholders."
The Shares of Common Stock may be offered and sold from time to time by
the Selling Securityholders through ordinary brokerage transactions in the
over-the-counter market, in negotiated transactions or otherwise, at market
prices prevailing at the time of the sale or at negotiated prices (this
"Offering"). See "Risk Factors," "Selling Securityholders" and "Plan of
Distribution."
The closing price for the Common Stock on May 28, 1996, as reported on the
National Association of Securities Dealers Automated Quotation System
("Nasdaq"), was $8.13 per share.
THE SECURITIES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK AND SHOULD BE
CONSIDERED ONLY BY PERSONS WHO CAN AFFORD THE LOSS OF THEIR ENTIRE INVESTMENT.
SEE "RISK FACTORS".
__________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
__________________
No underwriting commissions or discounts will be paid by the Company in
connection with this Offering. Estimated expenses payable by the Company in
connection with this Offering are approximately $70,000.
__________________
This date of this Prospectus is ___________, 1996.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended, and in accordance therewith files reports,
proxy statements and other information with the Commission. Such reports,
proxy statements and other information filed by the Company may be inspected
and copied at the public reference facilities maintained by the Commission at
450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and at the following
regional offices: New York Regional Office, 7 World Trade Center, Room 1400,
New York, New York 10048 and Chicago Regional Office, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such material may also be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. The Common Stock is
quoted on the Nasdaq SmallCap Market and reports and other information
regarding the Company may be inspected at the National Association of
Securities Dealers, Inc. at 1735 K Street, N.W., Washington, D.C. 20006.
Additional information regarding the Company and the securities offered
hereby is contained in the Registration Statement on Form S-3 (Registration No.
33-_____) of which this Prospectus forms a part, and the exhibits thereto filed
with the Commission under the Securities Act of 1933, as amended (the
"Securities Act"). For further information pertaining to the Company and the
securities offered hereby, reference is made to the Registration Statement and
the exhibits thereto, which may be inspected without charge at, and copies may
be obtained at prescribed fees from, the office of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549.
The Company furnishes shareholders with annual reports containing audited
financial statements and other periodic reports as the Company may deem to be
appropriate or as required by law or the rules of the National Association of
Securities Dealers, Inc.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents which have heretofore been filed by the Company
with the Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), are incorporated by reference herein and shall be deemed
to be a part hereof:
(1) The Company's Annual Report on Form 10-KSB for the year ended
September 30, 1995.
(2) The Company's Current Report on Form 8-K filed with the
Commission on January 16, 1996.
(3) The Company's Current Report on Form 8-K filed with the
Commission on January 17, 1996.
(4) The Company's Current Report on Form 8-K filed with the
Commission on January 19, 1996.
(5) The Company's Amendment No. 1 to the Current Report on Form
8-K/A filed with the Commission on January 24, 1996.
(6) The Company's Transition Report on Form 10-KSB for the
transition period ended December 31, 1995.
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(7) The description of Common Stock contained in the Company's
Registration Statement on Form 8-A filed with the Commission on
September 18, 1992 by which the Common Stock of the Company was
registered under Section 12 of the Exchange Act, and the
description of the Common Stock incorporated therein by
reference to the Registration Statement on Form S-1 (Regis. No.
33-48302) filed with the Commission on June 3, 1992 and amended
on June 25, 1992, July 23, 1992 and September 10, 1992, under
the caption "Description of Securities" therein.
(8) The description of the Common Stock contained in the Company's
Amendment No. 1 to Registration Statement on Form 8-A/A filed
with the Commission on January 2, 1996.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of this Offering shall be deemed to be incorporated by reference in
this Prospectus and to be a part hereof from the date of filing of such
documents. Any statement incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request, a copy of any or all of
the documents incorporated by reference in this Prospectus (not including
exhibits and other information that is incorporated by reference unless the
exhibits are themselves specifically incorporated by reference). Requests for
such documents should be directed to AccuMed International, Inc., located at
920 N. Franklin Street, Suite 402, Chicago, Illinois 60610, Attn: Mark L.
Santor, Chief Financial Officer, telephone (312) 642-9200.
The following are trademarks of the Company "Alamar" logo and name,
READar(TM), PIPETar(TM), alamarBlue(TM), AccuMed, Inc., AccuMed International,
Inc., AccuMap(TM), Sensititre, U.S., Sensititre U.K., SensiTouch(R),
SensiLink(TM), Aris(TM), JustOne(TM), MicroBact, Sensi-Cal(TM), Amco AEPA-1(R)
and Diascan.
The Company's address is 920 N. Franklin Street, Suite 402, Chicago,
Illinois 60610, and its telephone number is (312) 642-9200.
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PROSPECTUS SUMMARY
THE FOLLOWING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY THE MORE DETAILED
INFORMATION APPEARING ELSEWHERE IN THIS PROSPECTUS AND IN THE INFORMATION AND
DOCUMENTS INCORPORATED BY REFERENCE HEREIN. THE STATEMENTS THAT ARE NOT
HISTORICAL FACTS OR STATEMENTS OF CURRENT STATUS CONTAINED IN THIS PROSPECTUS
ARE FORWARD-LOOKING STATEMENTS (AS DEFINED IN THE PRIVATE SECURITIES LITIGATION
REFORM ACT OF 1995) THAT INVOLVE RISKS AND UNCERTAINTIES, INCLUDING, BUT NOT
LIMITED TO, THE RISKS SET FORTH IN "RISK FACTORS."
THE COMPANY
AccuMed International, Inc. (Nasdaq Symbol: ACMI) (the "Company" or
"AccuMed International") designs, manufactures and markets healthcare
diagnostic and screening products for the clinical laboratory, pharmaceutical
and veterinary segments of the healthcare industry. The Company's products
service both the microbiology and cytopathology segments of the worldwide
laboratory diagnostics market. AccuMed International is headquartered in
Chicago, with manufacturing facilities in Cleveland, Ohio and, through its
wholly-owned subsidiary, the United Kingdom.
BACKGROUND; MERGER WITH ACCUMED, INC. The Company was incorporated in
June 1988 under the name "Alamar Biosciences, Inc." under the laws of the State
of California (the "Former Alamar"). On December 29, 1995, the merger of
AccuMed, Inc., an Illinois corporation, with and into the Company (the
"Merger") was consummated pursuant to an Agreement and Plan of Reorganization
dated as of April 21, 1995 with AccuMed, Inc., as amended (the "Merger
Agreement"). Also effective on such date, the Company was reincorporated under
the laws of the State of Delaware, its name was changed to AccuMed
International, Inc., and the trading symbols for its Common Stock and Warrants
were changed from "ALMR" and "ALMRW" to "ACMI" and "ACMIW," respectively.
Pursuant to the Merger Agreement the Company issued 6,178,104 shares of Common
Stock and options to purchase an aggregate of 1,000,000 shares of Common Stock
to the former holders of AccuMed, Inc. stock and former AccuMed, Inc.
management, respectively. Pursuant to the Merger, the Company acquired its
wholly-owned subsidiary, AccuMed International, Ltd., an English registry
company ("AccuMed UK").
Prior to the Merger, the Company's business consisted of manufacturing and
marketing in vitro (i.e., outside the body) diagnostic testing products for
hospitals and reference laboratories, instruments for the interpretation and
data management of the results of such products, and a non-toxic indicator dye
for the detection of cell growth (such products are referred to collectively as
the "Alamar Product Line"). The Company has also generated revenue from
contract research projects, although no such revenue is being generated
currently. The Company has a limited operating history and limited revenues
from product sales to date.
AccuMed, Inc. was incorporated in February 1994 under the laws of the
State of Illinois. Prior to the Merger, AccuMed, Inc. was in the business of
designing, developing and marketing products for the microbiology and
cytopathology segments of the hospital and laboratory diagnostic market.
AccuMed, Inc.'s strategy had been to seek to acquire companies with products or
designs that reduce or potentially reduce costs and improve or potentially
improve the quality and efficiency of laboratory diagnosis. In February 1995,
AccuMed, Inc. acquired AccuMed UK and its business as well as certain U.S.
assets from Radiometer America, Inc. (the products of AccuMed UK are
collectively referred to as the "Sensititre Product Line"). Until such
acquisition, AccuMed, Inc. had no revenues and operations consisted of a
limited amount of research and development.
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BUSINESS OF THE COMPANY
AccuMed International is targeting the cytopathology market with its
proprietary automated cell image analysis product line for reading PAP smears
and other cytology materials. The system consists of an interactive
computer-controlled slide handling and data management system and an automatic
cell analysis system which analyzes cells by screening slides for potential
abnormalities. All systems are modular which permits them to be incorporated
into more advanced, fully-automated systems if and when such systems become
available.
AccuMed International's microbiology product line includes a series of
Minimum Inhibitory Concentration ("MIC") and identification ("ID") panels and a
range of automated instruments used to identify infectious organisms and
determine susceptibility to antimicrobial agents. The use of MIC/ID testing by
hospitals and laboratories allows physicians to diagnose the proper treatment
earlier, potentially shortening patient hospital stays.
CYTOPATHOLOGY DIVISION
PAP smear screening is conducted by specially trained and licensed
cytotechnologists who by federal law are permitted to inspect no more than
between 80 to 100 slides a day in search of abnormal cells. The clinical
laboratory services market is currently experiencing a shortage of qualified
cytotechnicians, and an increasing volume of cytologic tests to be processed.
Recognizing the need to provide tools to aid in productivity and quality while
reducing overall costs for this market, AccuMed International has developed an
automated slide handling data management system, and acquired and developed an
automated image cell analysis technology, the AcCell(TM) system.
ACCELL(TM) PRODUCTS. Marketed under the name AcCell(TM), the Company
offers cytopathology products that range from a fully automated slide handling
system to interactive cell analysis systems, all supported by an integrated
data management system. The AcCell(TM) system was initially developed for PAP
smear analysis, however, management believes that the system has a broad range
of cytopathology, pathology and histology applications beyond cervical PAP
smear screening. All systems are modular and allow for migration to more
advanced, fully automated systems.
The AcCell(TM) system accepts conventionally stained slides, reviews the
entire slide and automatically identifies any areas that require human review.
The coordinates of all suspicious areas can be electronically retained for easy
access and reference by the lab technician. Some AcCell(TM) models are
designed to use digital imagery to scan specimen slides. At each inspection
point a digital image is created and analyzed by the AcCell(TM) system using
proprietary software, hardware and image analysis systems.
AUTOMATIC SLIDE HANDLING SYSTEM. The AcCell(TM) products include a
software and data management package designed to be used in conjunction with
laboratory microscopes. As the slides move through the microscope, a
technician can observe the slide through a high resolution color video monitor
or microscope, thus avoiding use of the microscope, which can be strenuous. As
a system or individual component, the auto slide handling device offers
additional capacity, bar coding, digital storage of information, identification
and retrieval capabilities and auto focus capabilities. In addition, the
device can assist the technician in locating the exact location of
abnormalities and fits with all commonly used cytology/pathology laboratory
microscopes. The system does not require FDA approval, and
management expects to begin marketing the Automatic Slide Handling System in
the third quarter of 1996.
ACCELL(TM) 3000. The AcCell(TM) 3000 is a series of productivity
enhancement tools to be used for pre-
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screening conventionally prepared PAP smear specimens. The purpose of the pre-
screening is to detect areas of the slide that are either vacant or contain
clumps of material or blood which cannot be interpreted by the technician. The
resulting computer map produced by the AcCell(TM) 3000 system is designed to
guide the technician to only those portions of the slide which may contain
abnormal cells. A technician can access this map through a database and follow
the map by using the AcCell(TM) 2000 instrument.
Pre-market approval by the FDA is required prior to any sales in the
United States of the AcCell(TM) 3000 system. If such approval is obtained (of
which there can be no assurance), management anticipates that the Company will
hire sales specialists targeting geographical regions in the U.S., as well as
several representatives responsible for education, training and overall
support. The Company anticipates initiating marketing programs with major
laboratories and hospitals, as well as small independent laboratories to
increase sales of various systems. Management expects the Company to initiate
clinical testing in late 1996.
MICROBIOLOGY DIVISION
The Alamar Product Line and the Sensititre Product Line together provide a
range of complementary products to service the susceptibility and
identification segments of the laboratory diagnostic marketplace. These
product lines target both the high and low end volume users within the
laboratory diagnostics market.
SENSITITRE PRODUCT LINE. AccuMed UK with its Sensititre Product Line is a
leader in veterinary and pharmaceutical new drug development susceptibility and
identification testing. AccuMed UK was one of the first companies to introduce
a range of systems for antimicrobic sensitivity testing utilizing microwell
plate technology. The patented process developed by AccuMed UK has the ability
to "dry-down," which secure, antimicrobics in the well of the microplate
without loss of biological activity.
The Sensititre Product Line consists of four principal instruments, each
of which uses compatible technologies, and allows customers to upgrade. Such
products incorporate a range of accessories including substrate strips, dosing
heads, broths, and test plates for both susceptibility and identification
applications.
The Sensititre Product Line's microplate technology is based on AccuMed
UK's patented dry-form 96 well microwell plates. Microwell plates were
developed for susceptibility testing and can be manufactured both to a standard
configuration, and customer specification. These products include gram
negative and gram positive auto-identification plates. The Sensititre Product
Line microplates include the following.
JUST ONE STRIP. JustOne,(TM) is a single row of wells that can be
used to test one antibiotic rather than using an entire plate. This technology
was developed in conjunction with pharmaceutical companies to assist in the
marketing and product launching efforts for a new drug.
AUTOREADER. The AutoReader is a computerized, self-contained single
excitation/detection wavelength fluorimeter, designed to rapidly measure
intensity levels of fluorescence from automated microbiology test plates.
ARIS(TM). ARIS(TM) is a totally automated plate handling, incubating
and reading module that offers robotic processing of testing plates. ARIS(TM)
has a capacity of 64 plates, of any type and combination of MIC/Breakpoint and
Autoidentification. For use in larger laboratories, ARIS(TM) can be expanded by
linking multiple units to the single host computer.
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SENSITITRE AUTOMATED MICROBIOLOGY SYSTEM ("SAMS"). SAMS is a
sophisticated data management system which provides a wide range of data
tracking and reporting capabilities in connection with the Sensititre MIC/ID
Product line.
ALAMAR PRODUCT LINE. A MIC/ID test panel is a clinical diagnostic system
for the identification of infectious organisms, and the determination of the
organism's susceptibility to antimicrobial agents at a variety of minimum
inhibitory concentrations of antibiotics. The use of MIC/ID testing by
hospitals and laboratories allows physicians to diagnose the proper treatment
earlier, potentially shortening patient hospital stays. Also, by having a
choice of antibiotics, the physician can choose the least expensive and/or the
most compatible antimicrobial treatment for the patient.
The Alamar Product Line's manual MIC/ID testing system is a proprietary
disposable test kit system to diagnose the most effective type and dosage of
antibiotics in cases involving bacterial infection and to identify the
bacterium suspected of causing such infection. The manual MIC/ID testing
systems incorporate the Company's proprietary alamarBlue(TM) technology.
alamarBlue(TM) is a colorimetric interpretation which measures oxidation by
producing a distinctive color change in order to indicate the proliferation of
cells.
SEMI-AUTOMATED READING PRODUCTS. In order to compete in other segments of
the MIC/ID testing products market, the Company has developed a semi-automated
reading instrument ("READar(TM)"), and a related computerized data management
system. READar(TM) is an automated panel reader. READar's fluorescent reading
produces highly sensitive, reproducible and accurate results in less than 20
seconds. The Alamar Product Line MIC/ID testing kits are designed to be read
both manually and by the READar(TM).
The Company supplies its customers with an internally developed software
package and with personal computers purchased "off the shelf" for purposes of
management of the data generated by the READar(TM). No FDA marketing clearance
is required to market the Company's software package in the U.S. The list
price of a complete system, including the READar(TM) and the Company's data
management system, is $30,000.
TURN-KEY LABORATORY SERVICES GROUP. In addition to selling
susceptibility/ID systems, AccuMed International has established a laboratory
services group to provide "turn-key" antibiotic drug development and testing
services for major pharmaceutical manufacturers. The group has contracts with
approximately three pharmaceutical companies.
ALAMARBLUE(TM) LICENSE AGREEMENT WITH BECTON DICKINSON
alamarBlue(TM) is a non-toxic, water-soluble indicator dye which measures
cell growth for in vitro testing. alamarBlue(TM) is a "reagent" (i.e. a
substance used to detect and measure other substances) that is designed to be
used in place of established reagents such as MTT, XTT, or neutral red
reagents. The reagent can be interpreted visually due to the color change, or
even more precisely using an instrument to measure the accompanying fluorescent
response.
On October 11, 1995, the Company entered into a License Agent (the
"License Agreement") with Becton Dickinson & Co., Inc. ("Becton") pursuant to
which the Company granted Becton a semi-exclusive, worldwide license of the
Company's alamarBlue(TM) technology for a specific field of use. Pursuant to
the License Agreement, Becton has been granted rights in and to all of the
Company's alamarBlue(TM) technology and related trade secrets, know-how and
patent rights (the "Licensed Technology"). Such license is
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exclusive to Becton; however, the license permits the Company to continue to
practice all rights in the Licensed Technology, subject to certain restrictions
on the Company's ability to engage in significant transactions with substantial
competitors of Becton. The license is limited to certain applications in the
microbiology market. Becton is obligated to pay royalties on net sales of any
product which encompasses or incorporates the Licensed Technology for five
years, subject to certain conditions and restrictions. As of the date of this
Prospectus, a total of $3,500,000 in license fees has been received from Becton
by the Company, of which $500,000 will be creditable against future royalties.
INTELLECTUAL PROPERTY
On March 26, 1996, the U.S. Patent and Trademark Office (the "PTO") issued
to the Company Patent No. 5,501,959 in response to the Company's patent
application entitled "Antibiotic and Cytotoxic Drug Susceptibility Assays Using
Resazurin and Poising Agents" (the "AccuMed Patent"). The patent application
filed by Michael Lancaster in 1989 and assigned to the Company. The AccuMed
Patent provides patent protection for a portion of the Company's technology
when used in conjunction with a "poising" agent used to stabilize the bacterial
susceptibility process. The European Patent office has issued to the Company a
notice of intent to grant a European patent relating to the AccuMed Patent.
As a result of the Merger, the Company has obtained certain licenses on
several U.S. and foreign patents and other intellectual property rights
regarding aspects of the technology embodied in the Sensititre Product Line by
virtue of the acquisition of AccuMed UK as a wholly-owned subsidiary. Between
January 1994 and December 1995, AccuMed, Inc., filed or was assigned and
aggregate of six U.S. patent applications which have been acquired by the
Company as a result of the Merger. The products or technologies covered by
such patent applications include blood culture, AcCell(TM) 2000 and AcCell(TM)
3000. The Company has also applied during 1996 for six additional U.S.
patents relating to the optical imaging technology acquired in the Merger. The
Company was advised in March 1996 that two the applications relating to blood
culture have been allowed; management anticipates that such patents will issue
in 1996. There can be no assurance that the aforementioned patents and
licenses will adequately protect the Company from potential infringers. In
addition, since patent applications in the U.S. are maintained in secrecy until
patents issue, and since publications of discoveries in the scientific or
patent literature tend to lag behind actual discoveries by several months, the
Company cannot be certain that it was the first creator of inventions covered
by pending patent applications or that such companies were the first to file
patent applications for such inventions, and there can be no assurance that
patents currently in application will ever be issued.
On November 14, 1994, the Company filed a civil action in U.S. District
Court for the Eastern District of California (the "Complaint") against Difco
Laboratories, Inc. and Pasco Laboratories, Inc. (collectively, "Difco") seeking
compensatory damages in excess of $25 million, punitive damages, an injunction
against the further use and/or disclosure of the Company's trade secrets and
confidential information, and for a constructive trust to transfer U.S. Patent
No. 5,164,301 (the "301 Patent") to the Company. The Complaint alleged that
Difco and a former employee of Difco were issued the 301 Patent on November 17,
1992 by misusing proprietary information that Difco personnel misappropriated
from the Company in violation of a June 3, 1988 Confidentiality and Non-Use
Agreement between the Company and Difco (the "Confidentiality Agreement"). The
Company's U.S. patent application was filed in January 1989, and the Company
believes that the application for the 301 Patent issued to Difco was filed in
June 1990. On February 27, 1996, the Company entered into a Settlement
Agreement and Mutual Release (the "Settlement Agreement") in connection with
the Complaint. Pursuant to the Settlement Agreement the parties have settled
the controversies between them raised in the Complaint and related civil
actions and the Complaint and related civil actions were dismissed by mutual
consent and the order of the court on
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March 11, 1996. The terms of the Settlement Agreement are confidential and may
not be disclosed publicly, except as required by law or generally accepted
accounting principles, without the mutual agreement of the parties.
On May 2, 1995, the Company received notice that MicroScan, Inc.
("MicroScan"), a wholly-owned subsidiary of Dade International, Inc., filed an
intervention complaint with the court against both the Company and Difco, which
alleged that one of the Company's founders misappropriated confidential
information of MicroScan while an employee of MicroScan prior to co-founding
the Company in 1988, and used such information to develop the Company's
technology. On October 13, 1995, summary judgment was granted in favor of the
Company dismissing the MicroScan intervention complaint with prejudice.
Microscan did not appeal the judgment. On February 23, 1996, the court granted
the Company's motion that Microscan be required to pay the Company's attorneys
fees of approximately $120,000 on the basis that Microscan's intervention
complaint was made in bad faith.
Despite settlement of the controversies with Difco and entry of summary
judgment against Microscan, there can be no assurances that the Company will
not become a party to future litigation involving other parties in connection
with its intellectual property rights.
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THE OFFERING
Securities offered .......... 8,161,779 shares of Common Stock offered
by the Selling Securityholders.
Common Stock outstanding
after the offering (1) ..... 21,471,488 shares.
Use of Proceeds ............. The Company will not receive any proceeds from
the sale of the Common Stock by the Selling
Securityholders. Proceeds to the Company
pursuant to warrant exercises by the Selling
Securityholders, estimated to be approximately
$6,114,655 if all the Warrant Shares are
issued pursuant to cash exercises of the
Warrants, will be used by the Company for
general corporate purposes, including research
and development, sales and marketing,
manufacturing equipment and facilities and
working capital.
Nasdaq Common Stock Symbol .. ACMI
(1) Does not include (i) 3,508,403 shares reserved for issuance upon exercise
of outstanding warrants; (ii) 1,477,777 reserved for issuance upon
the exercise of outstanding stock options, or (iii) 185,672 shares
reserved for issuance upon exercise of options available for future grant
under the Company's employee benefit plans.
RISK FACTORS
The statements that are not historical facts or statements of current
status contained in this Prospectus are forward-looking statements (as defined
in the Private Securities Litigation Reform Act of 1995) that involve risks and
uncertainties, including, but not limited to, the risks set forth in "Risk
Factors." The decision of whether to make an investment in the Common Stock
involves an analysis of certain risks, including but not limited to, the risk
factors set forth in this Prospectus. Each potential investor is urged to
carefully consider the risks inherent in the recently consummated Merger, the
Company's significant and continuing operating losses, the regulatory
environment in which the Company operates, volatility of the Company's stock
price, and the uncertainty of the cost of integration and consolidation of the
recently merged companies. See "Risk Factors."
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RISK FACTORS
The securities offered hereby involve a high degree of risk, including,
but not necessarily limited to, the risk factors described below. Each
prospective investor should carefully consider the following risk factors
inherent in and affecting the business of the Company and this Offering before
making an investment decision. The statements that are not historical facts or
statements of current status contained in this Prospectus are forward-looking
statements that involve risks and uncertainties including, but not limited to,
the factors set forth below.
POSSIBLE NEED FOR ADDITIONAL FINANCING. The Company anticipates that it
will be required to obtain additional financing during the next 12 months to
successfully carry out its business plan, and there can be no assurances that
such funding will be available. If the Company is unable to raise additional
funding, current resources will be reallocated and appropriate reductions will
be made to the business plan.
Of the approximately $2,400,000 of accounts payable as of March 31, 1996
approximately $1,000,000 represents amounts payable for over 30 days. Amounts
owed to various vendors and suppliers are subject to late charges of
approximately 1.5% per month. In the event the Company is unable to increase
cash resources, significant demand on payables in excess of cash resources
could cause the Company to liquidate assets, issue additional equity
securities, curtail existing programs or make other arrangements that could
have a material adverse effect on the business and prospects of the Company.
Future design, development, testing and FDA submission costs will continue
to be significant with respect to products not currently marketed, and the
Company will also have significant capital requirements associated with
marketing its current products. The Company has been substantially dependent
on the private placements of its debt and equity securities and the proceeds of
its initial public offering of securities consummated in October 1992 (the
"IPO") to fund such requirements. Such private placements and the IPO have
raised approximately $20,483,000 in aggregate gross proceeds. There can be no
assurances that the Company will be able to obtain additional financing, or
that, if available, such additional financing would be on terms acceptable to
the Company.
LIMITED RELEVANT OPERATING HISTORY; SIGNIFICANT OPERATING LOSSES;
ACCUMULATED DEFICIT; UNCERTAINTY OF COSTS OF INTEGRATION AND CONSOLIDATION.
Although the Company was formed in 1988 (as Alamar Biosciences, Inc.), until
early 1994 the Company was engaged primarily in research and development and
prior to the Merger had not realized any significant revenues from product
sales. AccuMed, Inc. was incorporated in February 1994 and in February 1995
acquired AccuMed UK and its business as well as certain U.S. assets from
Radiometer America, Inc. Until such acquisition, AccuMed, Inc. had no revenues
and operations consisted of a limited amount of research and development.
Accordingly, although AccuMed UK had a significant operating history and revenue
from sales, AccuMed, Inc. had very limited operating history prior to the
Merger. Upon consummation of the Merger on December 29, the operations of the
Former Alamar and AccuMed, Inc. were combined and the resulting company began to
manufacture and sell both the Alamar Product Line and the Sensititre Product
Line. According, the combined company resulting from the Merger has a limited
relevant operating history upon which an evaluation of the Company's prospects
can be made. Such prospects must be considered in light of the risks, expenses
and difficulties frequently encountered in the establishment of a new business
in a continually evolving industry characterized by an increasing number of
market entrants and intense competition; the risks, expenses and difficulties
encountered in the shift from development to commercialization of new products
based on innovative technology; and the possible risks and expenses
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associated with integrating the operations of the two recently merged companies.
To date, the Company has incurred significant operating losses in each fiscal
quarter since its inception. For the years ended September 30, 1993, 1994 and
1995, and the three months ended December 31, 1995 the Company's operating
losses were $3,192,039, $3,146,476, $3,707,391 and $5,662,194, respectively and,
at March 31, 1995, the Company had an accumulated deficit of $ 25,410,621. Such
losses are continuing and are expected to continue for the foreseeable future
and until such time, if ever, as the Company is able to attain sales levels
sufficient to support its operations. Further, there can be no assurance that
the Company will be able to implement successfully its operating strategy,
generate increased revenues or ever achieve profitable operations.
The costs of integration and consolidation of the recently merged
companies as a single enterprise could prove substantial and the Company may be
required to raise additional funds to cover such costs. There can be no
assurance that the integration and consolidation of the recently merged
companies into a single entity will not face unforseen problems which could
materially increase the cost and delay the timing of such integration and
consolidation.
INDEBTEDNESS. The Company has indebtedness in the currently
outstanding principal amount of $555,000 evidenced by certain promissory notes
held by First Bank and Trust Company of Illinois ("First Bank") which are
payable on the earlier of upon demand by First Bank and April 30, 1996. The
Company attempted to repay in full the amounts owed to First Bank prior to
April 30, 1996, but such payment was rejected due to a dispute regarding fees
payable to First Bank. As of the date of this Prospectus, the Company has not
yet resolved such disputed amounts although negotiations are underway. And,
upon agreement of such disputes, the Company plans to repay the notes. Such
failure to pay constitutes an event of default, however, First Bank has not
sought to enforce available remedies, including foreclosing on the Certificates
of Deposit of the Company in the aggregate amount of $310,000 and other assets
of the Company which are pledged to secure the Company's obligations to First
Bank in order to satisfy the indebtedness. There can be no assurances that
First Bank will forebear from foreclosing prior to repayment, if any.
PROTECTION OF INTELLECTUAL PROPERTY. On March 26, 1996, the U.S. Patent
and Trademark Office issued to the Company Patent No. 5,501,959 in response to
the Company's patent application entitled "Antibiotic and Cytotoxic Drug
Susceptibility Assays Using Resazurin and Poising Agents" (the "AccuMed
Patent"). The patent application filed by Michael Lancaster in 1989 and
assigned to the Company. The AccuMed Patent provides patent protection for a
portion of the Company's technology when used in conjunction with a "poising"
agent used to stabilize the bacterial susceptibility process. The European
Patent office has issued to the Company a notice of intent to grant a European
patent relating to the AccuMed Patent. Despite issuance of the AccuMed Patent
there can be no assurances that the AccuMed Patent will afford the Company
commercially significant protection of the covered technologies.
As a result of the Merger, the Company has obtained certain licenses on
several U.S. and foreign patents and other intellectual property rights
regarding aspects of the technology embodied in the Sensititre Product Line by
virtue of the acquisition of AccuMed UK as a wholly-owned subsidiary. Between
January 1994 and December 1995, AccuMed, Inc., filed or was assigned and
aggregate of six U.S. patent applications which have been acquired by the
Company as a result of the Merger. The products or technologies covered by such
patent applications include blood culture, AcCell(TM) 2000 and AcCell(TM) 3000.
The Company has also applied during 1996 for six additional U.S. patents
relating to the optical imaging technology acquired in the Merger. There can be
no assurance that the aforementioned patents and licenses will adequately
protect the Company from potential infringers. In addition, since patent
applications in the U.S. are maintained in secrecy until patents issue, and
since publications of discoveries in the scientific or patent literature tend to
lag behind actual discoveries by several months, the Company cannot be certain
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that AccuMed, Inc. or AccuMed UK was the first creator of inventions covered by
pending patent applications or that such companies were the first to file patent
applications for such inventions, and there can be no assurance that patents
currently in application will ever be issued.
The Company may, in the future, file additional patent applications;
however, there can be no assurances that the Company will be successful in
obtaining approval of any future patent applications it files with respect to
its technologies.
On November 14, 1994, the Company filed a civil action in U.S. District
Court for the Eastern District of California (the "Complaint") against Difco
Laboratories, Inc. and Pasco Laboratories, Inc. (collectively, "Difco") seeking
compensatory damages in excess of $25 million, punitive damages, an injunction
against the further use and/or disclosure of the Company's trade secrets and
confidential information, and for a constructive trust to transfer U.S. Patent
No. 5,164,301 (the "301 Patent") to the Company. The Complaint alleged that
Difco and a former employee of Difco were issued the 301 Patent on November 17,
1992 by misusing proprietary information that Difco personnel misappropriated
from the Company in violation of a June 3, 1988 Confidentiality and Non-Use
Agreement between the Company and Difco (the "Confidentiality Agreement"). The
Company's U.S. patent application was filed in January 1989, and the Company
believes that the application for the 301 Patent issued to Difco was filed in
June 1990. On February 27, 1996, the Company entered into a Settlement
Agreement and Mutual Release (the "Settlement Agreement") in connection with
the Complaint. Pursuant to the Settlement Agreement the parties have settled
the controversies between them raised in the Complaint and related civil
actions and the Complaint and related civil actions were dismissed by mutual
consent and the order of the court on March 11, 1996. The terms of the
Settlement Agreement are confidential and may not be disclosed publicly, except
as required by law or generally accepted accounting principles, without the
mutual agreement of the parties.
On May 2, 1995, the Company received notice that MicroScan, Inc.
("MicroScan"), a wholly-owned subsidiary of Dade International, Inc., filed an
intervention complaint with the court against both the Company and Difco, which
alleged that one of the Company's founders misappropriated confidential
information of MicroScan while an employee of MicroScan prior to co-founding
the Company in 1988, and used such information to develop the Company's
technology. On October 13, 1995, summary judgment was granted in favor of the
Company dismissing the MicroScan intervention complaint with prejudice.
Microscan did not appeal the judgment. On February 23, 1996, the court granted
the Company's motion that Microscan be required to pay the Company's attorneys
fees of approximately $120,000 on the basis that Microscan's intervention
complaint was made in bad faith.
Despite settlement of the controversies with Difco and entry of summary
judgment against Microscan, there can be no assurances that the Company will
not become a party to future litigation involving other parties in connection
with its intellectual property rights.
The Company also relies for protection of its intellectual property on
trade secret law and nondisclosure and confidentiality agreements with its
employees, consultants, distributors, researchers and advisors. There can be
no assurances that such agreements will provide meaningful protection for the
Company's trade secrets or proprietary know-how in the event of any
unauthorized use or disclosure of such trade secrets or know-how. In addition,
others may obtain access to or independently develop technologies or know-how
similar to that of the Company.
The Company's success will also depend on its ability to avoid
infringement of patent or other proprietary rights of others. The Company is
not aware that it is infringing any such rights of a third-party,
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<PAGE> 15
nor is it aware of proprietary rights of others for which it will be required to
obtain a license in order to develop its products. However, there can be no
assurances that the Company is not infringing proprietary rights of others, or
that the Company will be able to obtain any technology licenses it may require
in the future.
UNCERTAINTY OF MANUFACTURING. The Company's manufacturing facility in
Sacramento, California, was closed effective August 31, 1995. From July 1,
1995 through consummation of the Merger on December 29, 1995, the Company's
products were manufactured in AccuMed UK's Grinstead, U.K. facility pursuant to
a Manufacturing and Supply Agreement between the Company and AccuMed UK (then a
wholly-owned subsidiary of AccuMed, Inc., which became a wholly-owned
subsidiary of the Company as a result of the Merger). Upon consummation of the
Merger on December 29, 1995, the Company acquired AccuMed UK's manufacturing
facility near London, England. The Company has had no experience operating a
facility in the United Kingdom and the Company's ability to successfully
operate such a facility will depend on it's ability to hire and retain skilled
management, production, engineering and other personnel to operate the
facility. Since consummation of the Merger, the Alamar Product Line and the
Sensititre Product Line are being manufactured at AccuMed UK's United Kingdom
facility acquired as a result of the Merger. While it is expected that
consolidation of AccuMed, Inc's and the Company's manufacturing operations may
result in certain economies of scale, there can be no assurances that the
Company's products will ever be manufactured in a cost-effective manner.
The Company's Cytopathology Division has only recently developed the
AcCell(TM) system that uses certain optical image technology and automated cell
image analysis to analyze slides that contain biological material such as PAP
smears. Sales and marketing of the AcCell(TM) products have not yet begun.
There can be no assurances that the Company will be able to enter into
arrangements that will lead to the cost-effective manufacture of the AcCell(TM)
products. In addition, the READar(TM) instrument and the PIPETar(TM)
instrument are manufactured for the Company by the developers of such products
or by other outside vendors. There can be no assurances that any of these
developers or vendors will be able to manufacture Alamar Product Line's current
and proposed automated reading or related products in a cost-effective manner.
DELAYED OR UNSUCCESSFUL PRODUCT DEVELOPMENT. The Company's Cytopathology
Division has only recently developed the AcCell(TM) systems which use certain
optical image technology and automated cell image analysis to analyze slides
that contain biological material such as PAP smears. The AcCell(TM) 3000 system
requires pre-market approval from the FDA before sales may be made in the U.S.
The Company anticipates commencing clinical testing of such product in late 1996
and anticipates submitting to the FDA a Pre-Market Application (PMA) or 510(k)
Notification in the first quarter of 1997. There can be no assurances that such
application will receive the necessary FDA approval. FDA approval is not
required to sell the AcCell(TM) systems outside the U.S.
The Sensititre Product Line's proposed blood culture products are in the
development stage. There can be no assurances that any of such products will
be fully developed or, if developed, that any of such products will receive the
necessary FDA clearance or approval for marketing. Even if such clearance or
approval is received, there can be no assurances that the proposed products
will be accepted by the market.
GOVERNMENT REGULATION. The Company's products and manufacturing processes
are regulated by state and federal agencies, including the FDA and comparable
agencies in certain states and other countries. United States regulatory
requirements promulgated under the Federal Food, Drug, and Cosmetic Act (the
"FD&C Act") provide that many of the Company's products may not be shipped in
interstate commerce without prior authorization from the FDA. Such
authorization is based on a review
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of the products' safety and effectiveness for their intended uses. Medical
devices may be authorized by the FDA for marketing either pursuant to a
premarket notification under Section 510(k) of the FD&C Act (a "510(k)
Notification") or a PMA.
The AcCell(TM) 3000 system may not be sold in the United States unless and
until the Company has obtained FDA approval of a PMA submission. A PMA
consists of information sufficient to establish independently that a device is
safe and effective for its intended use. By statute, the FDA is required to
respond to a PMA within 180 days from the date of its submission, however, the
approval process usually takes substantially longer. Management estimates that
the entire process of receiving pre-market approval of the complete system
could take up to two years after submission of initial clinical data which
management estimates will be submitted in early 1997. There can be no
assurances that the Company will receive FDA marketing approval for such
product or, if received, that such approval will not be withdrawn. Marketing
of the AcCell(TM) 3000 system outside of the U.S. does not require FDA
clearance or approval, and marketing of the AcCell(TM) 2000 throughout the
world does not require and FDA submissions or approvals.
The Company's Microbiology Division products for bacterial identification
and susceptibility testing require the submission to the FDA of certain
information prior to marketing to obtain a 510(k) Notification. Among other
things, the Company must show that its products are "substantially equivalent"
in terms of safety and effectiveness to existing products which are currently
permitted to be marketed. The Company is permitted to begin marketing a product
as to which it has submitted a 510(k) Notification at such time as the FDA
issues a written finding of "substantial equivalence." Requests for additional
information may delay the market introduction of certain of the Company's
products and in practice initial approval of products can take substantially
longer than the statutorily prescribed period of 90 days. All of the Company's
current Alamar Product Line products that require FDA clearance have been
cleared for marketing pursuant to 510(k) Notifications. The Alamar Product Line
manual ID/MIC testing kits require the submission to the FDA of a 510(k)
Notification with respect to each antibiotic to be tested by the Company's kits.
To date, the Company has submitted 510(k) Notifications, and obtained findings
of "substantial equivalence," for the Gram Negative Test Kit's testing of 32 out
of the approximately 35 antibiotics commonly used to fight gram negative
bacteria and for the Gram Positive Test Kit's testing of 21 out of the
approximately 22 antibiotics commonly used to fight gram positive bacteria. The
Company has also received marketing clearance for four separate 510(k)
Notifications with respect to the READar(TM) system. The Company expects to
submit applications to add individual antibiotics to the those previously
cleared for the Gram Negative and Gram Positive Test Kits as the market
warrants. However, the Company has experienced significant delays at the FDA in
the recent past, and there can be no assurances that clearances will continue to
be obtained as quickly as in the past or that the FDA will find "substantial
equivalence" for these additional antibiotics.
There can be no assurances that such a delay will not occur or that any of
the Company's proposed future products not currently being marketed will be
cleared or approved by the FDA. Failure to obtain marketing clearance or
approval for proposed future products may have a material adverse effect on the
Company.
In addition, the Company is subject to certain FDA registration,
record-keeping and reporting requirements, is obligated to follow FDA "Good
Manufacturing Practices" ("GMP") regulations and is subject to periodic FDA
inspection. The AccuMed UK manufacturing facility used to manufacture the
Company's products meet applicable GMP guidelines and FDA regulations. There
can be no assurances, however, that the facilities used to manufacture the
Company's products will continue to meet GMP guidelines. Future changes in
regulations or enforcement policies could impose more stringent requirements on
the Company, compliance with which could adversely affect the Company's
business.
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In connection with the Merger the required Notice of the relocation of
manufacturing of the Alamar Product Line from Sacramento, California to East
Grinstead, England has been provided to the FDA.
TECHNOLOGICAL CHANGE AND COMPETITION. The Company's AcCell(TM) systems,
if marketed abroad and if approved by the FDA and marketed in the U.S. (of
which there can be no assurances), face competition from companies that are
developing competing systems. The Company believes that other companies
developing automated cytology products may possess greater development
resources than the Company. The Company is currently aware of five companies
that have systems in various stages of development for automated PAP smear
screening. To date, management believes that none of these companies has
received FDA approval for such products. Most of such companies are developing
fully automated systems which are intended to eliminate or reduce the need for
cytotechnicians who interpret smears visually. Such systems require stringent
FDA testing.
The market for the Company's microbiology products is highly competitive,
and the Company competes with numerous well-established foreign and domestic
companies, most of which possess substantially greater financial, technical,
marketing, personnel and other resources than the Company and have established
reputations for success in the development, sale and service of manual and/or
automated in vitro diagnostic testing products. A significant portion of the
ID/MIC testing market in the United States is controlled by two companies,
Microscan and bioMerieux Vitek. These companies market a broad range of
medically related products and have resources far greater than those of the
Company. In addition, the Company is aware of several potential competitors
with similar competitive advantages in markets that the Company intends to enter
in the future. There can be no assurances that other technologies or products
which are functionally similar to those of the Company are not currently
available or under development, or that other companies with expertise and
resources that would encourage them to attempt to develop and market competitive
products will not develop new products directly competitive with the Company's
products. In addition, the medical diagnostic products market is characterized
by changing technology and evolving industry standards sometimes resulting in
product obsolescence or short product life cycles. Accordingly, the ability of
the Company to compete over the long-term will be dependent on the Company's
ability to introduce its products to the marketplace in a timely manner and
maintain a technically competent research and development staff which can
continually enhance and improve such products and successfully develop and
market new products. There can be no assurances that the Company will be able
to keep pace with technological developments or that its products will not
become obsolete.
DEPENDENCE ON KEY EMPLOYEES. The Company believes that its success will
depend to a significant extent upon the efforts and abilities of a small group
of executive, scientific and marketing personnel, in particular Peter P.
Gombrich the Company's Chief Executive Officer and Chairman of the Board. The
loss of the services of one or more of these key personnel could have a
material adverse effect on the Company. In addition, the Company's future
success will depend upon its ability to continue to attract and retain
qualified scientific and management personnel who are in great demand. There
can be no assurances that the Company will be successful in attracting and
retaining such personnel.
POSSIBLE VOLATILITY OF STOCK PRICE. The market price of the Company's
securities may be highly volatile as there have been periods of extreme
fluctuation in the stock market that, in many cases, were unrelated to the
operating performance of, or announcements concerning, the issuers of the
affected securities. Securities of issuers, such as the Company, having
relatively limited capitalization and securities that are thinly-traded are
particularly susceptible to change based on short-term trading strategies of
certain investors.
LACK OF DIVIDENDS. The Company has never paid cash or other dividends on
its Common Stock
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and does not intend to pay cash or other dividends in the foreseeable future.
AUTHORIZATION AND ISSUANCE OF PREFERRED STOCK. The Company's Certificate
of Incorporation authorize the issuance of preferred stock with such
designation, rights and preferences as may be determined from time to time by
the Board of Directors. Accordingly, the Board of Directors is empowered,
without shareholder approval, to issue preferred stock with dividend,
liquidation, conversion, voting or other rights which could adversely affect
the voting power or other rights of the holders of the Company's Common Stock.
Although the Company does not currently intend to issue any shares of its
preferred stock, in the event of issuance, such shares could be utilized, under
certain circumstances, as a method of discouraging, delaying or preventing a
change in control of the Company. There can be no assurances that the Company
will not, under certain circumstances, issue shares of its preferred stock.
OUTSTANDING WARRANTS. As of the date of this Prospectus, there are
outstanding immediately exercisable Warrants to purchase 6,028,760 shares of
Common Stock at exercise prices ranging from $ 0.25 to $ 5.00 per share. To
the extent that any such warrants are exercised, dilution in the ownership
interests of the Company's shareholders may occur.
SHARES ELIGIBLE FOR FUTURE SALE; REGISTRATION RIGHTS. As of the date of
this Prospectus there are 18,913,234 shares of Common Stock outstanding. Of
these, 1,571,123 shares of Common Stock included in the IPO and subsequent
registration statements are freely tradeable without restriction or requirement
of further registration under the Securities Act, unless such shares are held by
"affiliates" of the Company (as that term is defined in the Securities Act and
the regulations promulgated thereunder) and subject, in certain instances, to
the prospectus delivery requirements under the Securities Act. The balance of
the shares were sold by the Company in reliance on exemptions from the
registration requirements of the Securities Act. Of such shares, approximately
1,273,000 shares are currently eligible for immediate sale in the public market,
approximately 3,892,000 shares may be sold into the market upon compliance with
Regulation S and the balance will become eligible at various times in the
future. In addition the Company has granted certain demand and/or piggyback
registration rights relating to a substantial portion of the restricted shares
and a substantial number of shares of Common Stock underlying warrants issued by
the Company. Any future exercise of such registration rights and sale of such
securities will result in dilution in the interest of the Company's then
existing shareholders.
No prediction can be made as to the effect, if any, that future sales of
additional shares of Common Stock or the availability of such shares for sale
either pursuant to exercised registration rights or under Rule 144 or other
applicable exemptions under the Securities Act will have on the market price of
the Common Stock prevailing from time to time. Nevertheless, the possibility
that substantial amounts of Common Stock may be sold in the public market may
adversely affect prevailing market prices for the Common Stock and could impair
the ability of the Company to raise capital through the sale of its equity
securities.
CONTROL OF THE BOARD OF DIRECTORS. As a result of the Merger, the
Company's Board of Directors consists of Mr. Peter P. Gombrich, two individuals
selected by AccuMed, Inc. (Messrs. Joseph Plandowski and Paul Lavallee), three
individuals selected by Commonwealth Associates (a principal holder of the
Company's warrants and the underwriter and placement agent in several offerings
of the Company's securities), and American Equities Overseas, Inc. (which
represents several principal shareholders of the Company) (Messrs. Jack
Halperin, Leonard Schiller and Richard Corbin) and one individual selected by
mutual consent of the other nominees (Dr. John H. Abeles). [The Company's
directors, executive officers and their affiliates own approximately 20.7 % of
the outstanding shares of Common Stock. Such persons are thus able to exert
significant influence over the affairs of the Company.
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USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Shares
of Common Stock by the Selling Securityholders. If the holders exercise the
Warrants and Stock Options for cash to acquire all the underlying Shares, the
Company will receive aggregate gross proceeds of $6,114,655 at the respective
current exercise prices which will be used as unallocated working capital.
Certain of the Warrants have cashless exercise features which, if utilized,
will result in no proceeds to the Company upon exercise of such Warrants. The
Company has agreed to pay certain expenses in connection with this Offering,
currently estimated to be approximately $50,000.
RECENT DEVELOPMENTS
PROPOSED ACQUISITION OF ACCURON CORPORATION. The Company and Accuron
Corporation, and Ohio corporation ("Accuron"), have agreed to the purchase by
the Company of all assets of Accuron in consideration for the issuance of
100,000 shares of the Company's Common Stock. The assets to be acquired
consist largely of U.S. and foreign patents in the areas of image analysis and
automated cytology. The Company will not assume any liabilities of Accuron.
Management anticipates that the transaction will be consummated during the
second quarter of 1996. Such shares will have certain so-called "piggyback"
registration rights.
PRIVATE PLACEMENT OF SECURITIES. On May 23, 1996, the Board of
Directors approved the terms of two proposed private placements of Common Stock
of the Company. The Company has entered into an oral agreement with an
institutional shareholder for the purchase by such shareholder of 166,667
shares of Common Stock at a purchase price of $6.00 per share for aggregate
consideration of $1,000,000. Management anticipates that such transaction will
be consummated by May 31, 1996. American Equities Overseas, Inc. has made an
oral agreement with the Company to serve as placement agent on a best efforts
basis in the proposed private placement to non-U.S. persons of approximately
83,333 shares of Common Stock at $6.00 per share for aggregate consideration of
$500,000. Management anticipates that such transaction will be consummated by
June 7, 1996.
POSSIBLE REDEMPTION OF WARRANTS. The Company issued an aggregate of
2,702,905 Common Stock Purchase Warrants (the "Redeemable Warrants") in its
initial public offering in 1992 and in private placements in 1993. The Company
is entitled to redeem the Redeemable Warrants upon 60 days prior written notice
to the warrantholders given at least three days after the closing sales price
of the Common Stock has exceeded $7.50 per share for a minimum of 20
consecutive trading days. The Common Stock first closed trading above $7.50
per share on May 22, 1996. If the Common Stock continues to close above $7.50
per share for 20 consecutive trading days, the Company intends to give notice
of redemption of the Redeemable Warrants. The redemption price is $0.25 per
Redeemable Warrant. The exercise price of the Redeemable Warrants is $5.00 per
share. Therefore, if the Common Stock continues to trade above $5.25 per share
during the period after notice and prior to the redemption date, management
anticipates that holders of Redeemable Warrants will elect to exercise their
Redeemable Warrants prior to the redemption date. If all the Redeemable
Warrants were exercised the Company would receive proceeds of approximately
$13,500,000.
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UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS
The following unaudited pro forma condensed combined financial
statements give effect of the Merger of Alamar and AccuMed and the purchase of
certain assets and the assumption of certain liabilities from Sensititre US and
Sensititre UK by AccuMed on a purchase basis.
The unaudited pro forma condensed combined statements of operations
for the year ended September 30, 1995 and the three months ended December 31,
1995 assume that the Merger with AccuMed and the purchase of Sensititre US and
Sensititre UK occurred on October 1, 1994.
The pro forma adjustments are based on preliminary assumptions of the
allocation of the purchase price and are subject to substantial revision once
evaluation of the fair value of the assets and liabilities of AccuMed are
completed. Actual purchase accounting adjustments may differ from the pro
forma adjustments presented herein.
THE UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS ARE
NOT NECESSARILY INDICATIVE OF THE RESULTS THAT ACTUALLY WOULD HAVE OCCURRED IF
THE MERGERS HAD BEEN COMPLETED ON THE ASSUMED DATES NOR ARE THE STATEMENTS
INDICATIVE OF FUTURE COMBINED FINANCIAL POSITION OR EARNING.
The pro forma condensed financial statements should be read in
conjunction with the financial statements of Alamar for the fiscal year ended
September 30, 1995 and the financial statements for the transition period ended
December 31, 1995.
21
<PAGE> 21
ACCUMED INTERNATIONAL, INC
(formerly ALAMAR BIOSCIENCES, INC. AND SUBSIDIARIES)
PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED SEPTEMBER 30, 1995
<TABLE>
<CAPTION>
Historical Historical
------------- -----------------------------------------------
Alamar AccuMed Sensititre US Sensititre UK
year ended
September 30,
1995
(1) (2) (2)
------------- ------------- ------------- -------------
(unaudited) (unaudited) (unaudited)
<S> <C> <C> <C> <C>
Net Revenues $ 514,776 $ 2,609,233 $ 409,360 $ 639,561
Cost of revenues (1,431,187) (1,510,143) (247,860) (457,056)
------------- ------------- ------------- -------------
(916,411) 1,099,090 161,500 182,505
------------- ------------- ------------- -------------
Operating Expenses
General and Administration 2,094,890 1,040,083 208,420 74,589
Research and Development 386,882 453,277 0 88,872
Sales and Marketing 309,208 1,187,177 0 0
------------- ------------- ------------- -------------
Total operating expenses 2,790,980 2,680,537 208,420 163,461
------------- ------------- ------------- -------------
Income (Loss) from operations (3,707,391) (1,581,447) (46,920) 19,044
Interest income 7,949 12,930 0 0
Interest (expense) (46,657) (40,201) 0 0
Other income 32,566 1,308 0 0
Other (expense) (45,777) 0 0 0
------------- ------------- ------------- -------------
Earnings (Loss) before income taxes (3,759,310) (1,607,410) (46,920) 19,044
Provision for income taxes 800 0 0 0
------------- ------------- ------------- -------------
Net income (loss) $ (3,760,110) $ (1,607,410) $ (46,920) $ 19,044
============= ============= ============= =============
Net loss per common and
common equivalent share $ (0.59) $ (0.92)
============= =============
Weighted average shares outstanding 6,375,627 1,748,940
============= =============
<CAPTION>
Pro Forma Pro Forma
------------------------------ -----------------------------
AccuMed AccuMed Alamar/ Alamar
Sensitive as adjusted, for AccuMed as adjusted, for
Adjustments the year ended Adjustments the year ended
September 30, September 30,
1995 1995
(3) (4)
------------- ------------- ------------- -------------
(unaudited) (unaudited) (unaudited) (unaudited)
<S> <C> <C> <C> <C>
Net Revenues $ (193,000)(A) $ 3,485,154 $ 0 $ 3,979,930
Cost of revenues 109,000 (B) (2,108,059) 0 (3,537,246)
------------- ------------- ------------- -------------
(84,000) 1,359,095 0 442,684
------------- ------------- ------------- -------------
Operating Expenses
General and Administration 100,000 (C) 1,423,092 284,570 (E) 3,602,552
Research and Development 0 542,149 0 929,031
Sales and Marketing 0 1,187,177 0 1,496,385
------------- ------------- ------------- -------------
Total operating expenses 100,000 3,152,418 284,570 8,227,968
------------- ------------- ------------- -------------
Income (Loss) from operations (184,000) (1,793,323) (284,570) (5,785,284)
Interest income 0 12,930 0 20,679
Interest (expense) (35,475)(D) (75,676) 0 (122,333)
Other income 0 1,308 0 33,874
Other (expense) 0 0 0 (45,777)
------------- ------------- ------------- -------------
Earnings (Loss) before income taxes (219,475) (1,854,761) (284,570) (5,898,841)
Provision for income taxes 0 0 0 800
------------- ------------- ------------- -------------
Net income (loss) $ (219,475) $ (1,854,781) $ (284,570) $ (5,899,441)
============= ============= ============= =============
Net loss per common and
common equivalent share $ (1.06) $ (0.60)
============= =============
Weighted average shares outstanding 1,748,940 9,831,582
============= =============
</TABLE>
(1) includes the twelve months and nine months ended September 30, 1995 for
AccuMed and Sensititre US/UK, respectively
(2) includes the three months ended December 31, 1994, before the acquisitions
by AccuMed.
(3) AccuMed Consolidated includes AccuMed, Sensititre US, and Sensititre UK,
Ltd. after purchase accounting adjustments
(4) Alamar Consolidated includes Alamar Biosciences Inc., and AccuMed
Consolidated after purchase accounting adjustments. Weighted average
shares outstanding are 9,831,682 which represents 6,375,637 shares for
Alamar before the merger plus the weighted average (3,456,055) of the
4,178,104 shares (6,178,104 shares per the merger agreement less
2,000,000 shares issued but subject to forfeiture) to be issued in
connection with the AccuMed merger. The weighted average shares
outstanding for AccuMed gives effect to the shares issued by AccuMed
during the year ended September 30,1995 using the exchange ratio of
1.98 to 1. The total shares outstanding at September 30, 1995 are
15,107,443 (10,929,339 shares of Alamar and 4,178,104 shares issued to
AccuMed) which does not include the 2,000,000 shares issued but
subject to forfeiture.
22
<PAGE> 22
ALAMAR BIOSCIENCES, INC. AND SUBSIDIARIES
PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED SEPTEMBER 30, 1995
ALAMAR BIOSCIENCES, INC., AND SUBSIDIARIES
NOTES TO PRO FORMA CONDENSED COMBINED
STATEMENT OF OPERATIONS
SEPTEMBER 30, 1995
(UNAUDITED)
(A) To eliminate intercompany sales from Sensititre UK to Sensititre US.
(B) To eliminate intercompany profit from the cost of product sold from
Sensititre UK to Sensititre US.
(C) To reduce amortization expense ($20,000) for the amortization of the
purchase price of AccuMed, Inc. in excess of the fair market value of
acquired assets, less assumed liabilities, and transaction costs
incurred with the Merger of AccuMed, Inc. amortized over a 10 year
life, and to adjust amortization expense for Sensititre US and
Sensititre UK.
Adjustment to reflect a reasonable estimation ($120,000) of corporate
overhead costs for the three months ended December 31, 1994 carve out
period for Sensititre U.S. The estimate is based on a percentage of
total sales of Radiometer America, Inc., (of which Sensititre U.S. was
a division) to the Sensititre US product line.
(D) To adjust interest expense for $35,475, assuming that the $430,000
loan to finance the Sensititre acquisition occurred on October 1,
1994.
(E) To adjust amortization expense for the amortization of the purchase
price of AccuMed, Inc. in excess of the fair market value of acquired
assets, less assumed liabilities, and transaction costs incurred with
the Merger of AccuMed, Inc. amortized over a 10 year life, and to
adjust amortization expense for Sensititre US and Sensititre UK.
23
<PAGE> 23
ACCUMED INTERNATIONAL, INC.
(FORMERLY ALAMAR BIOSCIENCES, INC. AND SUBSIDIARIES)
PRO-FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS
FOR THE THREE MONTHS ENDED DECEMBER 31, 1995
<TABLE>
<CAPTION>
Historical Pro-forma Pro-forma Pro-forma
-------------- ------------ ----------- -----------
AccuMed
International, AccuMed Inc. Pro-Forma
Inc. (Acquiree) Adjustments Consolidated
-------------- ------------ ----------- ------------
(audited) (unaudited) (unaudited) (unaudited)
<S> <C> <C> <C> <C>
Net Revenues $100,130 $1,009,376 ($73,005) (A) $1,036,501
Cost of Revenues (338,730) (830,497) 71,892 (B) (1,097,335)
----------- ----------- -------- ----------
(238,600) 178,879 (1,113) (60,834)
Operating Expenses
General and Administration 1,418,797 758,066 0 2,176,863
Research and Development 3,997,600 338,178 0 4,335,778
Sales & Marketing 7,197 289,360 0 296,557
----------- ----------- -------- ----------
Total Operating Expenses 5,423,594 1,385,604 0 6,809,198
----------- ----------- -------- ----------
Income (Loss) from operations (5,662,194) (1,206,725) (1,113) (6,870,032)
Interest Income 4,748 0 0 4,748
Interest (expense) (10,862) (1,948) 0 (12,810)
Other (72,929) 0 0 (72,929)
----------- ----------- -------- ----------
Loss before income taxes (5,741,237) (1,208,673) (1,113) (6,951,023)
Provision for income taxes 800 0 0 800
----------- ----------- -------- ----------
Net loss ($5,742,037) ($1,208,673) ($1,113) ($6,951,823)
=========== =========== ======== ==========
Net loss per common share ($0.49) ($0.10) ($0.00) ($0.59)
Weighted average shares outstanding 11,742,980 11,742,980 11,742,980 11,742,980
</TABLE>
24
<PAGE> 24
ACCUMED INTERNATIONAL, INC. (FORMERLY ALAMAR BIOSCIENCES, INC.)
AND SUBSIDIARIES PRO FORMA CONDENSED COMBINED
STATEMENT OF OPERATIONS FOR THE THREE MONTHS ENDED DECEMBER 31, 1995
ACCUMED INTERNATIONAL, INC., AND SUBSIDIARIES
NOTES TO PRO FORMA CONDENSED COMBINED
STATEMENT OF OPERATIONS
DECEMBER 31, 1995
(UNAUDITED)
(A) To eliminate intercompany sales from AccuMed International Limited
(UK) to AccuMed Inc. (US)
(B) To eliminate intercompany profit from the cost of product sold from
AccuMed International Limited (UK) to AccuMed Inc. (US)
25
<PAGE> 25
RECENT DEVELOPMENTS
The Company and Accuron Corporation, and Ohio corporation ("Accuron"),
have agreed to the purchase by the Company of all assets of Accuron in
consideration for the issuance of 100,000 shares of the Company's Common Stock.
The assets to be acquired consist largely of U.S. and foreign patents in the
areas of image analysis and automated cytology. The Company will not assume
any liabilities of Accuron. Management anticipates that the transaction will
be consummated during the second quarter of 1996. Such shares will have
certain so-called "piggyback" registration rights.
PROPOSED ACQUISITION OF ACCURON CORPORATION. The Company and
Accuron Corporation, and Ohio corporation ("Accuron"), have agreed to the
purchase by the Company of all assets of Accuron in consideration for the
issuance of 100,000 shares of the Company's Common Stock. The assets to be
acquired consist largely of U.S. and foreign patents in the areas of image
analysis and automated cytology. The Company will not assume any liabilities
of Accuron. Management anticipates that the transaction will be consummated
during the second quarter of 1996. Such shares will have certain so-called
"piggyback" registration rights.
PRIVATE PLACEMENT OF SECURITIES. On May 23, 1996, the Board
of Directors approved the terms of two proposed private placements of Common
Stock of the Company. The Company has entered into an oral agreement with an
institutional shareholder for the purchase by such shareholder of 166,667
shares of Common Stock at a purchase price of $6.00 per share for aggregate
consideration of $1,000,000. Management anticipates that such transaction will
be consummated by May 31, 1996. American Equities Overseas, Inc. has made an
oral agreement with the Company to serve as placement agent on a best efforts
basis in the proposed private placement to non-U.S. persons of approximately
83,333 shares of Common Stock at $6.00 per share for aggregate consideration of
$500,000. Management anticipates that such transaction will be consummated by
June 7, 1996.
POSSIBLE REDEMPTION OF WARRANTS. The Company issued an
aggregate of 2,702,905 Common Stock Purchase Warrants (the "Redeemable
Warrants") in its initial public offering in 1992 and in private placements in
1993 [INCLUDING THE 574,905 WARRANTS OFFERED FOR SALE HEREBY BY THE SELLING
SECURITYHOLDERS -- THIS GOES IN THE SB-2 ONLY]. The Company is entitled to
redeem the Redeembale Warrants upon 60 days prior written notice to the
warrantholders given at least 3 days after the closing sales price of the
Common Stock has exceeded $7.50 per share for a minimum of 20 consecutive
trading days. The Common Stock first closed trading above $7.50 per share on
May 22, 1996. If the Common Stock continues to close above $7.50 per share for
20 consecutive trading days, the Company intends to give notice of redemption
of the Redeemable Warrants. The redemption price is $0.25 per Redeemable
Warrant. The exercise price of the Redeemable Warrants is $5.00 per share.
Therefore, if the Common Stock continues to trade above $5.25 per share during
the period after notice and prior to the redemption date, management
anticipates that holders of Redeemable Warrants will elect to exercise their
Redeemable Warrants prior to the redemption date. If all the Redeemable
Warrants were exercised the Company would receive proceeds of approximately
$13,500,000.
FORWARD LOOKING STATEMENTS
The statements that are not historical facts in this Prospectus are
"forward looking statements" and as such involve risks and uncertainties
including, but not limited to, the risks and uncertainties set forth under the
caption "Risk Factors" elsewhere in this Prospectus. Such statements include
the following specific statements":
Page 5, paragraph 4, sentence 2 and paragraph 6, last sentence;
page 6, paragraph 2, page 8, paragraph 3, sentence 5; page 13,
paragraph 2; page 14, paragraph 2, last sentence, and paragraph 4,
sentence 3; page 15, paragraph 2, sentence 4 and paragraph 3,
sentence 8; and "Recent Developments."
The above-referenced statements contained in this Prospectus are forward
looking statements that involve a number of risks and uncertainties. In
addition to the factors referenced above, among the other factors that could
cause actual results to differ materially are the following: business
conditions and growth in the health care diagnostic industry and general
economy; competitive factors, such as rival manufacturers and products, and
price pressures; inventory risks due to shifts in market demand; changes in
product mix; difficulties encountered in the shift from development to
commercialization of new products based on innovative technology; possible
risks and costs associated with combining the operations of the Former Alamar,
AccuMed UK and AccuMed, Inc. as a result of the Merger; and the risk factors
listed from time to time in the Company's Securities and Exchange Commission
reports and under the caption "Risk Factors" in this Prospectus.
26
<PAGE> 26
PRICE RANGE OF COMMON STOCK
The Company's Common Stock is traded in the over-the-counter market and
quoted on Nasdaq under the symbol "ACMI." The table below sets forth the range
of high and low closing prices for the Common Stock as reported on Nasdaq in
each completed quarter during the Company's two most recently completed fiscal
years, the Transition Period, each completed quarter during the current fiscal
year and a portion of the current quarter.
<TABLE>
<CAPTION>
COMMON STOCK
High Low
----- -----
<S> <C> <C>
1994 Fiscal Year
First Quarter ................................ $4.13 $2.13
Second Quarter ............................... 3.00 1.75
Third Quarter ................................ 2.75 1.00
Fourth Quarter ............................... 2.63 1.25
1995 Fiscal Year
First Quarter ................................ 1.75 0.31
Second Quarter ............................... 1.75 0.50
Third Quarter ................................ 1.50 0.81
Fourth Quarter ............................... 1.50 0.75
Transition Period (1)
Oct. 1, 1995 through December 31, 1995 ....... 1.69 1.00
1996 Fiscal Year (1)
First Quarter ................................ 6.25 1.06
Second Quarter (through May 28, 1996) ........ 9.00 4.88
</TABLE>
____________________________
(1) On December 31, 1995, the Company changed its fiscal year from October 1
through September 30 to January 1 through December 31. Therefore, the
"Transition Period" includes October 1, 1995 through December 31, 1995.
On May 28, 1996 the closing price of the Common Stock as reported by
Nasdaq was $8.13 per share. At May 28, 1996, the Company had approximately
225 shareholders of record and estimates that it had approximately 560
beneficial owners.
27
<PAGE> 27
SELLING SECURITYHOLDERS
The following table sets forth information as of May 28, 1996 (the
"Reference Date") with respect to the beneficial ownership of shares of Common
Stock by each of the Selling Securityholders. At the Reference Date there were
18,913,234 shares of Common Stock outstanding.
<TABLE>
<CAPTION>
Shares Beneficially
Shares Beneficially Owned Shares to be Sold in Owned
Prior to Offering (1) Offering After Offering(1)
------------------------------- -------------------- ----------------------
Name and Address of Beneficial Owner Number Percent Number Percent
- ------------------------------------ ------------- ------------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Orbis Pension Trustees Ltd. 1,000,000 5.29% 1,000,000 -0- -0-
E&M RP Trust 560,000 2.96% 560,000 -0- -0-
Commonwealth Associates(2) 2,207,509(2) 10.71% 537,222(2) 1,670,287 7.44%
Michael Falk(3) 397,222 2.10% 397,222(3) -0- -0-
Clarion Capital Corp. 320,000 1.69% 320,000 -0- -0-
The P.L. Thomas Group, Inc.(4) 461,313(4) 2.44% 301,313(4) 160,000 *
Vitali Maritime Corp.
c/o Sofianis Papanastion 294,000 1.54% 294,000 -0- -0-
George B. and Anna M. Pocisk 347,337 1.84% 261,000 86,337 *
Cantrade Privatbank AG 240,000 1.27% 240,000 -0- -0-
Gallagher Investment Corp. 240,000 1.27% 240,000 -0- -0-
Societe de Bourse Ferri
Ref France Finance IV 230,000 1.21% 230,000 -0- -0-
Peter Gombrich(5) 3,352,500(5) 17.66% 200,000(5) 3,285,834 15.00%
American Equities Overseas, Inc.(6) 262,500(6) 1.37% 162,500(6) 100,000 *
Fred Kassner 160,000 * 160,000 -0- -0-
Banque Pour L'Industrie Francaise 160,000 * 160,000 -0- -0-
Philip L. Thomas(4) 461,313(4) 2.44% 160,000(4) 301,313 1.36%
Mark L. Santor(7) 94,247(7) * 141,961(7) 2,286(7) *
Republic New York
Securities Corp. f/b/o
Samisa Investment Corp.
c/o American Equities Overseas 141,000 * 141,000 -0- -0-
Emerge Capital 115,000 * 115,000 -0- -0-
Vincent LaBarbara(3) 100,000 * 100,000(3) -0- -0-
Robert Priddy 849,749(8) 4.47% 100,000(8) 749,749 3.42%
Gwenda Gombrich, as Custodian
for Megan Klein(9) 3,352,500(9) 17.66% 83,293(8) 3,269,207(9) 14.88%
Gwenda Gombrich, as Custodian
for Lucas Klein(9) 3,352,500(9) 17.66% 83,293 3,269,207(9) 14.88%
Ann F. Gallagher 80,000 * 80,000 -0- -0-
Christopher C. Gallagher 80,000 * 80,000 -0- -0-
Daniel R. Lee 80,000 * 80,000 -0- -0-
Jo-Bar Enterprises LLC
c/o Joel A. Stone 80,000 * 80,000 -0- -0-
J.A. Cardwell 80,000 * 80,000 -0- -0-
Richard Friendman 80,000 * 80,000 -0- -0-
Axel Investment Corporation 75,000 * 75,000 -0- -0-
Michael Burke(10) 85,797(10) * 75,000 60,797 *
G&G Diagnostics LP I 75,000 * 75,000 -0- -0-
Leonard M. Schiller(11) 172,159(11) * 65,000(11) 132,159 *
Hultquist Capital LLC(12) 56,000 * 56,000 -0- -0-
Hans Bodmer 50,000 * 50,000 -0- -0-
Newburger & Berman
f/b/o Montaigne Fund 50,000 * 50,000 -0- -0-
Republic New York Securities Corp.
f/b/o Green Acres Enterprises Inc. 50,000 * 50,000 -0- -0-
Courcoux Bouvet 50,000 * 50,000 -0- -0-
Andrew B. Hart 40,000 * 40,000 -0- -0-
Northlea Partners Ltd.(14) 285,637 1.51% 40,000 245,637 1.12%
Hamilton T. Bailey 40,000 * 40,000 -0- -0-
Alan Hammerman 40,000 * 40,000 -0- -0-
James A. Cardwell, Jr. 40,000 * 40,000 -0- -0-
Charles Potter 40,000 * 40,000 -0- -0-
Shiela Y. Schiller 40,000 * 40,000 -0- -0-
Suzanne Schiller 40,000 * 40,000 -0- -0-
William R. and Barbara J. Schoen 40,000 * 40,000 -0- -0-
John Luck 40,000 * 40,000 -0- -0-
Frederick J. Oswald 40,000 * 40,000 -0- -0-
Richard A. Voell 40,000 * 40,000 -0- -0-
Wertheimer Partnership 40,000 * 40,000 -0- -0-
Jack Halperin(15) 80,388(15) * 36,800(15) 43,588 *
Leslie Hannefy(3) 37,929 * 37,929(3) -0- -0-
Steven Warner(3) 37,929 * 37,929(3) -0- -0-
John Abeles(13) 326,657(13) 1.73% 41,020(13) 285,637 1.30 %
Joseph D. Ferrone, M.D. 32,000 * 32,000 -0- -0-
Republic New York Securities Corp.
f/b/o J. Watling
c/o American Equities Overseas 30,200 * 30,200 -0- -0-
Republic New York
Securities Corp. f/b/o
Kelebe Investment Corp.
c/o American Equities Overseas 30,200 * 30,200 -0- -0-
Kenneth D. Miller(16) 195,004 1.02% 25,000 170,004 *
Richard Corbin(17) 47,159(16) * 25,000(16) 22,159 *
Paul Lavallee(19) 25,000(17) * 25,000(17) -0- -0-
Nagrasim S.p.a. 25,000 * 25,000 -0- -0-
Clariden Bank 25,000 * 25,000 -0- -0-
Joseph Plandowski(19) 25,000(18) * 25,000(18) -0- -0-
David Morley 20,000 * 20,000 -0- -0-
Republic New York Securities Corp.
f/b/o Mizebourne Investment Corp. 20,000 * 20,000 -0- -0-
Broadmark Capital Corporation(3)(20) 15,600 * 15,600(3) -0- -0-
Republic New York 15,200 * 15,200 -0- -0-
Don Earhart(21) 40,762 * 12,895 27,867 *
Keith Rosenbloom(3) 12,542 * 12,542(3) -0- -0-
Paul Goldenheim 10,000 * 10,000 -0- -0-
Cathy Ross(3) 10,000 * 10,000(3) -0- -0-
Michael Volpe(3) 10,000 * 10,000(3) -0- -0-
Stephen LaBarbara(3) 10,000 * 10,000(3) -0- -0-
Murray Segal(3) 10,000 * 10,000(3) -0- -0-
Pluvalca 10,000 * 10,000 -0- -0-
Joel Kanter(22) 16,215(21) * 9,215 7,000 *
Henry Wilson (23) 16,550(22) * 8,550 8,000 *
Joseph Schocken(24) 14,645(23) * 7,895 6,750 *
Edward Vanacore(3) 7,000 * 7,000(3) -0- -0-
Al Mirman(3) 5,000 * 5,000(3) -0- -0-
Richard Galterio(3) 5,000 * 5,000(3) -0- -0-
Alan Ebler 5,005(24) * 5,000(24) 5 *
Sharon Gignac 5,005(24) * 5,000(24) 5 *
Peggy Howard 5,005(24) * 5,000(24) 5 *
Peter Korreng 5,005(24) * 5,000(24) 5 *
David Panvelle 5,005(24) * 5,000(24) 5 *
Darla Pritchard 5,005(24) * 5,000(24) 5 *
Robert O'Sullivan(3) 2,000 * 2,000(3) -0- -0-
Russell Bailenson(3) 1,000 * 1,000(3) -0- -0-
</TABLE>
* Represents less than 1%.
(1) Unless otherwise noted, the Company believes that all persons named
in the table have sole voting and investment power with respect to all
shares of Common Stock listed as beneficially owned by them. A person
is deemed to be the beneficial holder of securities that can be
acquired by such person within 60 days from the Reference Date upon the
exercise of warrants or options. Each beneficial owner's percentage
ownership is determined by including shares underlying options or
warrants which are exercisable by such person currently or within 60
days following the Reference Date, and excluding shares underlying
options and warrants held by any other person. The percentage of
shares owned after the Offering is calculated assuming that 20,818,328
shares of Common Stock will be outstanding, which includes the
18,913,234 shares outstanding on the Reference Date and an
additional 2,558,254. Underlying Shares underlying the Warrants and
Stock Options which would have to be exercised in order to sell
the Underlying Shares.
(2) The number of shares owned prior to the Offering includes 4,102,187 shares
underlying warrants and options, and the number of shares owned after the
Offering includes 790,063 shares underlying warrants and options, each such
warrant or option is exercisable currently or within 60 days of the
Reference Date. Excludes securities held in Commonwealth Associates
trading account. Certain of the Warrants to purchase shares are held in
the name of Commonwealth Associates for the account of its equity owners,
certain of its employees and certain officers and/or directors of its
corporate general partner. Commonwealth Associates has acted as
underwriter and placement agent in sales of the Company's securities for
which it has received commissions in the form of cash and securities.
See "Certain Relationships and Transactions."
(3) Shares listed as being offered in this Offering by the Selling
Securityholder are Warrant Shares underlying currently exercisable Warrants
transferred to the Selling Securityholder by Commonwealth Associates or
issued directly to the Selling Securityholder as a designee of Commonwealth
Associates except, in the case of Mr. Falk, 222,222 of the Shares offered
are currently outstanding and were transferred to him by Commonwealth
Associates. The Selling Securityholder is currently or was formerly
associated with Commonwealth Associates. Commonwealth Associates
disclaims beneficial ownership of such Shares, Warrants and the underlying
Warrant Shares. Such Shares and Warrants were issued to Commonwealth
Associates or its designees as compensation for services rendered by
Commonwealth Associates to the Company in connection with the Merger. See
"Certain Relationships and Transactions."
(4) Philip L. Thomas is the President and sole shareholder of The P.L. Thomas
Group, Inc. The Shares listed as offered in this Offering by The P.L.
Thomas Group, Inc. include 301,313 Warrant Shares underlying currently
exercisable Warrants. The number of Shares listed as owned by Mr. Thomas
include the 301,313 Warrant Shares underlying Warrants registered in the
name of The P.L. Thomas Group, Inc. of which Mr. Thomas may be deemed the
beneficial owner. The shares listed as owned by The P.L. Thomas Group,
Inc. include the 160,000 Shares registered in the name of Philip L. Thomas
of which The P.L. Thomas Group, Inc. may be deemed the beneficial owner.
28
<PAGE> 28
(5) Includes 309,368 shares held by Gwenda Gombrich, Mr. Gombrich's
wife, as to which Mr. Gombrich disclaims beneficial ownership. Includes
66,666 shares underlying stock options that are exercisable currently
or within 60 days following the Reference Date, and 133,334 shares
underlying stock options that will become exercisable sometime after
the Reference Date. Mr. Gombrich is an officer and director of the
Company. See "Certain Relationships and Transactions."
(6) The Shares offered in this Offering by American Equities Overseas,
Inc. are underlying currently exercisable Warrants transferred to it by
Commonwealth Associates. Such Warrants were issued as compensation for
the services of Commonwealth Associates in connection with the Merger.
American Equities Overseas, Inc. has served as a placement agent in the
sale of the Company's Securities for which it has received commission
in the forms of cash and securities. See "Certain Relationships and
Transactions."
(7) Mr. Santor is an officer of the Company. See "Certain Relationships
and Transactions." Includes 106,961 shares underlying stock options
that are exercisable currently or within 60 days following the Reference
Date.
(8) Includes 100,000 Shares underlying a currently exercisable Warrant.
(9) Gwenda Gombrich is married to Peter P. Gombrich, the Company's Chief
Executive Officer and Chairman of the Board. Includes 3,043,132 shares
held of record by Mr. Gombrich as to which Ms. Gombrich disclaims
beneficial ownership.
(10) Includes 25,000 shares underlying stock options that are exercisable
currently or within 60 days following the Reference Date, and 50,000
shares underlying Stock Options that will become exercisable sometime
after the Reference Date. Mr. Burke is an officer of the Company. See
"Certain Relationships and Transactions."
(11) Mr. Schiller has been a director of the Company since April 21, 1995.
See "Certain Relationships and Transactions." Includes 5,000 shares
underlying stock options that are exercisable currently or within 60 days
following the Reference Date.
(12) Hultquist Capital LLC and its predecessor Bridgemere Capital
Corporation served as advisors to the Company in connection with the
Merger. See "Certain Relationships and Transactions."
(13) Includes 41,020 shares underlying stock options that are exercisable
currently or within 60 days following the Reference Date. Dr. Abeles
is a director of the Company. See "Certain Relationships and
Transactions."
(14) Dr. John Abeles is an affiliate of Northlea Partners Ltd. Dr.
Abeles has been a director of the Company since 1988. See "Certain
Relationships and Transactions."
(15) Includes 36,800 shares underlying stock options that are
exercisable currently or within 60 days following the Reference Date.
Mr. Halperin is a director of the Company. See "Certain Relationships
and Transactions."
(16) Mr. Miller was an officer of the Company. See "Certain Relationships
and Transactions."
(17) Includes 25,000 shares underlying stock options that are exercisable
currently or within 60 days following the Reference Date. Mr. Corbin is a
director of the Company. See "Certain Relationships and Transactions."
(18) Includes 25,000 shares underlying stock options that are
exercisable currently or within 60 days following the Reference Date.
Mr. Lavalee is a director of the Company. See "Certain Relationships
and Transactions."
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<PAGE> 29
(19) Includes 25,000 shares underlying stock options that are exercisable
currently or within 60 days following the Reference Date. Mr. Plandowski is
a director of the Company. See "Certain Relationships and Transactions."
(20) Joseph L. Schocken is the President of Broadmark Capital Corporation.
Mr. Schocken was a director of the Company from November 1992 until
April 1995. See "Certain Relationships and Transactions."
(21) Mr. Earhart is a former director of the Company.
(22) Includes 16,215 shares underlying stock options that are exercisable
currently or within 60 days following the reference date. Mr. Kanter is a
former director of the Company.
(23) Includes 16,550 shares underlying stock options that are exercisable
currently or within 60 days following the reference date. Mr. Wilson is a
former director of the Company.
(24) Includes 14,645 shares underlying stock options that are exercisable
currently or within 60 days following the reference date. Mr. Schocken is a
former director of the Company.
(25) Includes 5,000 shares underlying stock options that are exercisable
currently or within 60 days following the Reference date. The holder is a
former employee of the Company.
The Company has agreed to indemnify certain of the Selling Securityholders
and the Selling Securityholders have agreed to indemnify the Company against
certain civil liabilities, including liabilities under the Securities Act.
Except as noted in the footnotes above and under the caption "Certain
Relationships and Transactions" below, none of the Selling Securityholders has
held any office or maintained any material relationship with the Company during
the past three years.
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<PAGE> 30
CERTAIN RELATIONSHIPS AND TRANSACTIONS
Set forth below is certain information regarding certain relationships and
transactions between the Selling Securityholders and the Company.
The following officers, directors and former officers and directors of the
Company are among the Selling Securityholders. Peter P. Gombrich has been the
Chief Executive Officer and Chairman of the Board of the Company since
consummation of the Merger on December 29, 1995, and from April 21, 1995 until
consummation of the Merger, was the Acting Chief Executive and a director of the
Company. Leonard M. Schiller has been an director of the Company since April
21, 1995. Kenneth D. Miller was President of the Cytopathology Division of the
Company from August 1995 until May, 1996. Mr. Miller served as Chief
Executive Officer and a director of the Company from October 1989 until April
21, 1995 at which time he was appointed Senior Vice President of the Company.
Mark L. Santor has been Chief Financial Officer of the Company since June 1991,
Vice President, Finance and Operations since November 1992 and Secretary since
November 1994. He served as Assistant Secretary from May 1994 until November
1994. John H. Abeles, M.D. is an affiliate of Northlea Partners, a Selling
Securityholder. Dr. Abeles has been a director of the Company since October
1988. Jack Halperin has been a director of the Company since June 1991 and
served as Chairman of the Board of Directors from April 1995 until December 29,
1995. Mr. Halperin is legal counsel to American Equities Overseas, Inc., a
Selling Securityholder. Paul Lavallee and Joseph Plandowski have been directors
of the Company since December 29, 1995. Joseph L. Schocken is President of
Broadmark Capital Corporation, a Selling Securityholder. Mr. Schocken was a
director of the Company from November 1992 until April 1995. Michael Burke has
been a Senior Vice President and President of the Microbiology Division of the
Company since consummation of the Merger on December 29, 1995.
Pursuant to a letter agreement dated as of February 14, 1995 among the
Company, AccuMed, Inc. and Commonwealth Associates (the "Commonwealth
Agreement"), Commonwealth Associates was paid a fee for acting as a "finder" in
connection with the Merger. The fee was paid as follows: (i) $50,000 in cash
was paid by the Company on or before May 1, 1995; (ii) upon consummation of the
Merger, the Company issued 444,444 shares of Common Stock to Commonwealth
Associates and agreed to register the offer and resale of such shares on the
Registration Statement of which this Prospectus forms a part; and (iii) on
consummation of the Merger, the Company issued to Commonwealth Associates a
five-year warrant to purchase up to 750,000 shares of Common Stock at an
exercise price of $1.25 per share. The offer and resale of such Warrant Shares
were registered on the Registration Statement of which this Prospectus forms a
part pursuant to the Warrant Agreement governing the Warrants.
In addition, Commonwealth Associates acted as placement agent for the
Company in the sale of 5,648,400 shares of Common Stock in the unregistered
financings completed May 9, 1995, August 18, 1995 and August 22, 1995. Pursuant
to placement agency agreements between Commonwealth Associates and the Company,
Commonwealth Associates has received from the Company (i) $353,025 (a fee equal
to 10% of the aggregate gross proceeds of $3,530,250 to the Company from the
sale of Common Stock in the financings), (ii) a nonaccountable expense allowance
of 3% of gross proceeds ($105,907), (iii) approximately $10,591 in reimbursement
for the fees and expenses of Commonwealth Associates's counsel; and (iv)
warrants to purchase an aggregate of 564,840 shares of the Common Stock (which
is equal to 10% of the shares sold in the financings) issued to Commonwealth
Associates and its designees. Pursuant to a Consulting Agreement effective as
of January 1, 1995 (the "Consulting Agreement") between the Company and the
Commonwealth Associates, the Company paid a fee of $7,500 per month to
Commonwealth Associates for each of the first three months of the 12-month term
and $4,000 per month for each of the remaining nine months. Pursuant to the
Consulting Agreement, all accrued consulting fees up to May 9, 1995 were paid
from the proceeds of the private placements referred to above. The Consulting
Agreement terminated December 31, 1995.
In November 1994, the Company terminated a proposed private offering of
equity securities with respect to which Commonwealth Associates was acting as
placement agent. As reimbursement for certain
31
<PAGE> 31
expenses incurred by Commonwealth Associates in connection with such proposed
offering and in consideration for the cancellation by Commonwealth Associates of
certain warrants issued to it in connection with the Company's initial public
offering, the Company, on December 31, 1994, issued to Commonwealth Associates a
five-year warrant to purchase up to 420,000 shares of Common Stock at an
exercise price of $0.25 per share, subject to adjustment in certain
circumstances.
American Equities Overseas, Inc. ("AEO") has served as a placement agent
in the sale of the Company's securities for which it has received commissions
in the forms of cash and securities. The Warrants Shares offered in this
Offering by AEO are underlying currently exercisable Warrants transferred to it
by Commonwealth Associates. Such Warrants, which have a five-year term and an
exercise price of $1.25 per share, were issued to Commonwealth Associates as
compensations for its services in connection with the Merger. The Company has
also issued to AEO a 5-year Warrant (the "AEO Warrants") to purchase up to
100,000 shares of Common Stock at an exercise price of $0.25 per share, subject
to adjustment. The AEO Warrants were issued to AEO as a reimbursement for
expenses incurred by AEO in connection with Company's terminated private
placement in November 1994 and other advisory services provided by AEO to the
Company from time to time in connection with certain of the Company's European
investors. The AEO Warrants were also issued to provide incentives for AEO to
continue to facilitate communications between the Company and certain of its
European shareholders.
Hutlquist Capital LLC, a Selling Securityholder, is the successor to
Bridgmere Capital. The 56,000 Shares of Common Stock offered for sale by
Hutlquist Capital LLC were issued to it pursuant an agreement between the
Company and Bridgemere Capital under which Bridgemere Capital and Hultquist
Capital LLC acted as special advisors to the Board of Directors of the Former
Alamar in connection with the Merger. Pursuant to such agreement, Bridgemere
Capital and Hultquist Capital LLC were entitled to be paid cash compensation in
the aggregate amount of $105,000 of which $58,000 has been paid and $47,000 is
payable.
PLAN OF DISTRIBUTION
The Common Stock and Warrants offered hereby may be sold by the Selling
Securityholders from time to time as market conditions permit in the
over-the-counter market, or otherwise, at prices and terms then prevailing or at
prices related to the then current market price, or in negotiated transactions.
The shares offered hereby may be sold by one or more of the following methods,
without limitation: (a) a block trade in which a broker or dealer so engaged
will attempt to sell the shares as agent but may position and resell a portion
of the block as principal to facilitate the transaction; (b) purchases by a
broker or dealer as principal and resale by such broker or dealer for its
account pursuant to this Prospectus; (c) ordinary brokerage transactions and
transactions in which the broker solicits purchasers; and (d) face-to-face
transactions between sellers and purchasers without a broker-dealer. In
effecting sales, brokers or dealers engaged by the Selling Securityholders may
arrange for other brokers or dealers to participate. Such brokers or dealers
may receive commissions or discounts from Selling Securityholders in amounts to
be negotiated immediately prior to the sale. Such brokers or dealers and any
other participating brokers or dealers may be deemed to be "underwriters" within
the meaning of the Securities Act in connection with such sales. In addition,
any securities covered by this Prospectus that qualify for sale pursuant to Rule
144 under the Securities Act might be sold under Rule 144 rather than pursuant
to this Prospectus.
LEGAL MATTERS
The legality of the securities offered by this Prospectus will be passed
upon for the Company by
32
<PAGE> 32
Graham & James LLP, Sacramento, California.
Pursuant to an agreement between Graham & James LLP and the Company, on
August 18, 1995 the Company (i) issued to Graham & James LLP 240,000 shares of
Common Stock in lieu of cash payment of $150,000 in legal fees payable to
Graham & James LLP and (ii) deposited into escrow $150,000 pursuant to an
escrow agreement (the "Escrow Agreement") among Graham & James LLP, the Company
and the escrow agent. None of the legal fees payable to Graham & James LLP
were for legal services provided in connection with this Prospectus. Pursuant
to the Escrow Agreement, funds were released to the Company in the amounts
equal to the net proceeds realized by Graham & James LLP (if such proceeds were
$0.625 per share or more). All funds in the escrow were released to the
Company prior to the date of this Prospectus. The Company has registered the
resale of such shares under the Securities Act on a registration statement
pursuant to the Company's agreement with Graham & James LLP. Pursuant to an
agreement between Graham & James LLP and the Company, the Company issued to
Graham & James LLP on February 27, 1995 a warrant to purchase 140,000 shares of
Common Stock at an exercise price of $0.25 per share at any time prior to
February 2000. Such warrant was issued in lieu of cash payment of $105,000 in
legal fees payable to Graham & James LLP for services unrelated to the
preparation of this Prospectus.
Certain partners of Graham & James LLP own an aggregate of 2,331 shares of
Common Stock.
EXPERTS
The balance sheet of AccuMed, Inc as of December 31, 1994, and the
statements of operations, shareholder's deficit, and cash flows for the period
from February 7, 1994 (inception) through December 31, 1994, the balance sheets
of Alamar Biosciences, Inc. as of September 30, 1995 and 1994, and the
statements of operations, shareholder's equity, and cash flows for each of the
three years in the period ended September 30, 1995, and the balance sheet of
Sensititre/Alamar, the Microbiology Division of AccuMed, Inc., as of December
31, 1994 and the statements of net sales, cost of sales, and selling expenses
for the eight months ended December 31, 1994 and for each of the two years in
the period ended April 30, 1994, as incorporated by reference in the
Registration Statement of which this Prospectus forms a part, have been
incorporated herein in reliance on the reports, which included explanatory
paragraphs related to AccuMed, Inc.'s and Alamar Biosciences, Inc.'s ability to
continue as going concerns, of Coopers & Lybrand L.L.P., independent
accountants, given on the authority of said firm as experts in accounting and
auditing.
The balance sheets of AccuMed International Limited as of December 31,
1994, April 30, 1994 and 1993, and the statements of operations and cash flows
for the eight months ended December 31, 1994, and for each of the two years in
the period ended April 30, 1994, as incorporated by reference in the
Registration Statement of which this Prospectus forms a part, have been
incorporated herein in reliance on the report of Coopers & Lybrand, independent
accountants, given on the authority of said firm as experts in accounting and
auditing.
The consolidated financial statements of AccuMed International, Inc. and
subsidiaries as of December 31, 1995, and for the three months ended December
31, 1995, incorporated by reference herein and elsewhere in the Registration
Statement of which this Prospectus forms a part from the Company's Transition
Report of Form 10-KSB for the transition period ended December 31, 1995, have
been included therein and incorporated by reference herein and elsewhere in the
Registration Statement of which this Prospectus forms a part in reliance upon
the report of KPMG Peat Marwick LLP, independent certified public accountants,
included therein and incorporated herein by reference, and upon the authority
of said firm as experts in accounting and auditing.
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<PAGE> 33
No dealer, salesperson or any other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus and, if given or made, such information or representations must not
be relied upon as having been authorized by the Company or any Selling
Securityholder. This Prospectus does not constitute an offer to sell or the
solicitation of any offer to buy any security other than the shares of Common
Stock offered by this Prospectus, nor does it constitute an offer to sell or a
solicitation of any offer to buy the shares of Common Stock by anyone in any
jurisdiction in which such offer or solicitation is not authorized, or in which
the person making such offer or solicitation is not qualified to do so, or to
any person to whom it is unlawful to make such offer or solicitation. Neither
the delivery of this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that information contained herein is
correct as of any time subsequent to the date hereof.
8,161,779
Shares
ACCUMED INTERNATIONAL,
INC.
Common Stock
______________
PROSPECTUS
_______________
<PAGE> 34
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by the Company in connection
with the issuance and distribution of the securities being registered
hereunder. All of the amounts shown are estimates (except for the SEC
registration fee).
<TABLE>
<S> <C>
SEC registration fee ............................... $ 18,616
Printing and engraving expenses..................... 2,000
Accounting fees and expenses........................ 5,000
Legal fees and expenses............................. 35,000
Blue Sky fees and expenses.......................... 3,000
Miscellaneous....................................... 6,384
TOTAL............................................... $ 70,000
</TABLE>
None of these expenses will be paid by the Selling Securityholders
pursuant to the terms of the agreements under which the shares of Common Stock
to be sold hereby were issued.
Item 15. Indemnification of Directors and Officers
The Company has provisions in its Certificate of Incorporation which
eliminate the liability of the Company's directors to the Company and its
shareholders for monetary damages to the fullest extent permissible under
Delaware law and provisions which authorize the Company to indemnify its
directors and agents by bylaws, agreements or otherwise, to the fullest extent
permitted by law. Such limitation of liability does not affect the
availability of equitable remedies such as injunctive relief or rescission.
The Company's Bylaws provide that the Company shall indemnify its directors and
officers to the fullest extent permitted by Delaware law.
The Company's officers and directors are covered by a director's and
officer's liability insurance policy maintained by the Company. Under the
insurance policy, the Company is entitled to be reimbursed for indemnity
payments that it is required or permitted to make to its directors and
officers.
II-1
<PAGE> 35
Item 16. Exhibits
The following exhibits are filed herewith:
Exhibit
Number Description
------- -----------
4.1 Certificate of Incorporation of the Registrant (incorporated by
reference to the Registrant's Transition Report of Form 10-KSB for
the transition period ended December 31, 1995 (the "Transition
Report)).
4.2 Specimen Certificate for Common Stock (incorporated by
reference to the Transition Report).
4.3 Bylaws of the Registrant (incorporated by reference to
Transition Report).
4.4 Form of Common Stock Purchase Warrant dated as of December 29,
1995 by the Registrant in favor of Commonwealth Associates, Inc.
4.5 Form of Warrant Agreement between the Registrant and
Commonwealth Associates dated as of December 29, 1995 pertaining to
Warrants to purchase up to 750,000 shares of Common Stock of the
Company.
4.6 Warrant Certificate dated as of December 29, 1995 registered in
the name of The P.L. Thomas Group, Inc. representing the right to
purchase up to 237,840 shares of Common Stock of the Company.
4.7 Warrant Certificate dated as of December 29, 1995 registered in
the name of The P.L. Thomas Group, Inc. representing the right to
purchase up to 63,473 shares of Common Stock of the Company.
4.8 Warrant Agreement dated as of January 25, 1996 between the
Company and Robert Priddy.
4.9 Warrant Certificate dated as of January 25, 1996 registered in
the name of Robert Priddy representing the right to purchase 100,000
shares of Common Stock of the Company.
4.10 Form of Warrant Agreement between the Registrant and Commonwealth
Associates dated as of December 29, 1995 pertaining to Warrants to
purchase up to 104,000 shares of Common Stock of the Company,
including form of Warrant Certificate issued to designees of
Commonwealth Associates dated as of December 29, 1995 representing
the right to purchase up to an aggregate of 104,000 shares of Common
Stock of the Company.
4.11 Form of Warrant Agreement dated March 14, 1996 between the
Company and certain of the Selling Securityholders, including
form of Warrant Certificate evidencing right to purchase Common Stock
at $3.42 per share.
4.12 Form of Warrant Agreement dated March 14, 1996 between the
Company and certain of the Selling Securityholders, including
form of Warrant Certificate evidencing right to purchase Common Stock
at $3.87 per share.
5.1 Opinion of Graham & James LLP, counsel to the Registrant, regarding
the legality of the securities offered hereby.
23.1 Consent of Graham & James LLP (contained in Exhibit 5.1 filed
herewith.)
23.2 Consent of Coopers & Lybrand LLP.
II-2
<PAGE> 36
23.3 Consent of Coopers & Lybrand (UK).
23.4 Consent of KPMG Peat Marwick LLP.
24.1 Powers of Attorney (contained in the signature page to this
Registration Statement, page II-5).
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement to include any
additional or changed material information with respect to the plan of
distribution.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the Act") may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of
the Company in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE> 37
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement on Form S-3 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Chicago,
State of Illinois on May 28, 1996.
ACCUMED INTERNATIONAL, INC.
By: /s/ PETER P. GOMBRICH
------------------------------
Peter P. Gombrich,
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints, jointly and severally, Peter P.
Gombrich and Mark L. Santor, and each of them, attorneys-in-fact for the
undersigned, each with the power of substitution, for the undersigned in any
and all capacities, to sign any and all amendments to this Registration
Statement (including post-effective amendments), and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming that each
of said attorneys-in-fact or his substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-3 has been signed by the following persons in
the capacities and on the dates indicated.
Signature Title Date
- ------------------------- ----------------------------- -------------------
/s/ PETER P. GOMBRICH Chairman of the Board and May 28, 1996
- ------------------------- Chief Executive Officer
(Peter P. Gombrich) (Principal Executive Officer)
/s/ MARK L. SANTOR Vice President, Finance and May 28, 1996
- ------------------------- Chief Financial Officer
(Mark L. Santor) (Principal Financial and
Accounting Officer)
/s/ JOHN H. ABELES Director May 28, 1996
- ------------------------
(John H. Abeles)
/s/ RICHARD CORBIN Director May 28, 1996
- ------------------------
(Richard Corbin)
/s/ JACK HALPERIN Director May 28, 1996
- ------------------------
(Jack Halperin)
/s/ PAUL F. LAVALLEE Director May 28, 1996
- ------------------------
(Paul F. Lavallee)
/s/ JOSEPH PLANDOWSKI Director May 28, 1996
- ------------------------
(Joseph Plandowski)
/s/ LEONARD SCHILLER Director May 28, 1996
- ------------------------
(Leonard Schiller)
II-4
<PAGE> 38
INDEX TO EXHIBITS
Exhibit Description of Exhibit
Number
4.1 Certificate of Incorporation of the Registrant (incorporated by reference
to the Registrant's Transition Report of Form 10-KSB for the transition
period ended December 31, 1995 (the "Transition Report)).
4.2 Specimen Certificate for Common Stock (incorporated by reference to the
Transition Report).
4.3 Bylaws of the Registrant (incorporated by reference to Transition
Report).
4.4 Form of Common Stock Purchase Warrant dated as of December 29, 1995 by
the Registrant in favor of Commonwealth Associates, Inc.
4.5 Form of Warrant Agreement between the Registrant and Commonwealth
Associates dated as of December 29, 1995 pertaining to Warrants to
purchase up to 750,000 shares of Common Stock of the Company.
4.6 Warrant Certificate dated as of December 29, 1995 registered in the name
of The P.L. Thomas Group, Inc. representing the right to purchase up to
237,840 shares of Common Stock of the Company.
4.7 Warrant Certificate dated as of December 29, 1995 registered in the name
of The P.L. Thomas Group, Inc. representing the right to purchase up to
63,473 shares of Common Stock of the Company.
4.8 Warrant Agreement dated as of January 25, 1996 between the Company and
Robert Priddy.
4.9 Warrant Certificate dated as of January 25, 1996 registered in the name
of Robert Priddy representing the right to purchase 100,000 shares of
Common Stock of the Company.
4.10 Form of Warrant Agreement between the Registrant and Commonwealth
Associates dated as of December 29, 1995 pertaining to Warrants to
purchase up to 104,000 shares of Common Stock of the Company, including
form of Warrant Certificate issued to designees of Commonwealth Associates
dated as of December 29, 1995 representing the right to purchase up to an
aggregate of 104,000 shares of Common Stock of the Company.
4.11 Form of Warrant Agreement dated March 14, 1996 between the Company and
certain of the Selling Securityholders, including form of Warrant
Certificate evidencing right to purchase Common Stock at $3.42 per share.
4.12 Form of Warrant Agreement dated March 14, 1996 between the Company and
certain Selling Securityholders, including form of Warrant
Certificate evidencing right to purchase Common Stock at $3.87 per share.
5.1 Opinion of Graham & James LLP, counsel to the Registrant, regarding the
legality of the securities offered hereby.
23.1 Consent of Graham & James LLP (contained in Exhibit 5.1 filed herewith.)
23.2 Consent of Coopers & Lybrand LLP.
23.3 Consent of Coopers & Lybrand (UK).
23.4 Consent of KPMG Peat Marwick LLP.
24.1 Powers of Attorney (contained in the signature page to this Registration
Statement, page II-5).
II-5
<PAGE> 1
EXHIBIT 4.4
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE UPON
EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND MAY NOT BE OFFERED OR SOLD EXCEPT (i) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, (ii) TO THE EXTENT APPLICABLE,
PURSUANT TO RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT
RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) UPON THE DELIVERY BY THE
HOLDER TO THE COMPANY OF AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO
COUNSEL FOR THE ISSUER, STATING THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH
ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE AT ANY TIME FROM DECEMBER 28, 1995 UNTIL
5:00 P.M., NEW YORK TIME, DECEMBER 28, 2000
750,000 Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that Commonwealth Associates, a New
York limited partnership ("Commonwealth"), or registered assigns, is the
registered holder of Warrants to purchase, at any time from December 28, 1995
until 5:00 P.M. New York City time on December 28, 2000 ("Expiration Date"), up
to 750,000 fully-paid and non-assessable share(s) (the "Shares") of Common
Stock, no par value ("Common Stock"), of AccuMed International, Inc., a
Delaware corporation (the "Company"), at the initial exercise price, subject to
adjustment in certain events (the "Exercise Price"), of $1.25 per share, upon
surrender of this Warrant Certificate and payment of the Exercise Price at an
office or agency of the Company, but subject to the conditions set forth herein
and in the Warrant Agreement dated as of December 28, 1995, by and between the
Company and Commonwealth Associates (the "Warrant Agreement"). Payment of the
Exercise Price may be made in cash, or by check payable to the order of the
Company, or any combination of cash or check.
1
<PAGE> 2
No Warrant may be exercised after 5:00 P.M., New York City time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of
this instrument and is
2
<PAGE> 3
hereby referred to in a description of the rights, limitation of rights,
obligations, duties and immunities thereunder of the Company and the holders
(the words "holders" or "holder" meaning the registered holders or registered
holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain events,
the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like
number of Warrants shall be issued to the transferee(s) in exchange for this
Warrant Certificate, subject to the limitations provided herein and in the
Warrant Agreement, without any charge except for any tax, or other governmental
charge imposed in connection therewith.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
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IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed under its corporate seal.
Dated: December 28, 1995 ACCUMED INTERNATIONAL, INC.
[SEAL] By:___________________________
Name: Peter P. Gombrich
Title: Chief Executive Officer
Attest:
______________________
Mark L. Santor
Secretary
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EXHIBIT 4.5
WARRANT AGREEMENT dated as of December 28, 1995, by and between AccuMed
International, Inc., a Delaware corporation (the "Company"), and Commonwealth
Associates, a New York limited partnership ("Commonwealth").
W I T N E S S E T H:
WHEREAS, the Company proposes to issue to Commonwealth a warrant (the
"Warrant") to purchase up to 750,000 shares (the "Warrant Shares") of the
Company's Common Stock, par value $.01 per share (the "Common Stock"); and
WHEREAS, the Warrant issued pursuant to this Agreement is being issued by
the Company to Commonwealth and/or its designees in consideration for certain
services performed by Commonwealth in connection with the merger of AccuMed,
Inc. with and into the Company.
NOW, THEREFORE, in consideration of the premises, the agreements herein
set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Grant. On the terms and subject to the conditions set forth herein,
and unless this agreement is terminated prior to exercise in accordance with
Section 16 hereof, Commonwealth and/or its designees is hereby granted the
right to purchase, at any time from December 28, 1995 until 5:00 P.M., New York
time, on December 28, 2000 (the "Warrant Exercise Term"), up to 750,000 Warrant
Shares at an initial exercise price (subject to adjustment as provided in
Article 8 hereof) of $1.25 per Warrant Share.
2. Warrant Certificate. The warrant certificate (the "Warrant
Certificate") delivered and to be delivered pursuant to this Agreement shall be
in the form set forth in Exhibit A attached hereto and made a part hereof, with
such appropriate insertions, omissions, substitutions and other variations as
required or permitted by this Agreement.
3. Exercise of Warrant. The Warrant initially is exercisable at a price
of $1.25 per Warrant Share, payable in
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cash or by check to the order of the Company, or any combination of cash or
check, subject to adjustment as provided in Article 8 hereof. Upon surrender
of the Warrant Certificate with the annexed Form of Election to Purchase duly
executed, together with payment of the Exercise Price (as hereinafter defined)
for the Warrant Shares purchased, at the Company's principal offices (currently
located at 920 N. Franklin Street, Suite 402, Chicago, illinois 60610)
Commonwealth (or other registered holder of the Warrant Certificate) (the
"Holder") shall be entitled to receive a certificate or certificates for the
Warrant Shares so purchased. The purchase rights represented by each Warrant
Certificate are exercisable at the option of the Holder, in whole or in part
(but not as to fractional Warrant Shares). In the case of the purchase of less
than all the Warrant Shares purchasable under any Warrant Certificate, the
Company shall cancel said Warrant Certificate upon the surrender thereof and
shall execute and deliver a new Warrant Certificate of like tenor for the
balance of the Warrant Shares purchasable thereunder.
4. Issuance of Certificates.
Upon the exercise of the Warrants, the issuance of certificates for the
Warrant Shares purchased shall be made forthwith (and in any event within three
business days thereafter) without charge to the Holder thereof including,
without limitation, any tax which may be payable in respect of the issuance
thereof, and such certificates shall (subject to the provisions of Article 5
hereof) be issued in the name of, or in such names as may be directed by, the
Holder thereof; provided, however, that 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 any such certificates in a name other than that of the
Holder and the Company shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
The Warrant Certificate and the certificates representing the Warrant
Shares shall be executed on behalf of the Company by the manual or facsimile
signature of the present or any future Chairman or Vice Chairman of the Board
of Directors or President or Vice President of the Company under its corporate
seal reproduced thereon, attested to by the manual or facsimile
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signature of the present or any future Secretary or Assistant Secretary of the
Company. The Warrant Certificate and certificates representing the Warrant
Shares shall be dated the date of execution by the Company upon initial
issuance, division, exchange, substitution or transfer.
Upon exercise, in part or in whole, of the Warrants, certificates
representing the Warrant Shares shall bear a legend substantially similar to
the following:
"The securities represented by this certificate have
not been registered under the Securities Act of 1933,
as amended (the "Act"), and may not be offered or sold
except (i) pursuant to an effective registration
statement under the Act, (ii) to the extent
applicable, pursuant to Rule 144 under the Act (or any
similar rule under such Act relating to the
disposition of securities), or (iii) upon the delivery
by the holder to the Company of an opinion of counsel,
reasonably satisfactory to counsel to the issuer,
stating that an exemption from registration under such
Act is available."
5. Restriction on Transfer of Warrants and Warrant Shares.
Commonwealth, by its acceptance thereof, covenants and agrees that the
Warrant is being acquired as an investment and not with a view to the
distribution thereof, and that neither the Warrant nor, if exercised, any
Warrant Shares, may be directly or indirectly offered, transferred, assigned,
pledged, sold or otherwise disposed of for a period of eighteen (18) months
from December 28, 1995 except with the consent of the Company.
6. Price.
6.1. Initial and Adjusted Exercise Price. The initial exercise price of
the Warrant shall be $1.25 per Warrant Share. The adjusted exercise price
shall be the price which shall result from time to time from any and all
adjustments of the initial exercise price in accordance with the provisions of
Article 8 hereof.
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6.2. Exercise Price. The term "Exercise Price" herein shall mean the
initial exercise price or the adjusted exercise price, depending upon the
context.
7. Registration Rights.
7.1. Registration Under the Securities Act of 1933. The Warrant and the
Warrant Shares have not been registered for purposes of public distribution
under the Act.
7.2. Registrable Securities. As used herein the term "Registrable
Security" means the Warrant Shares and any shares of Common Stock issued upon
any stock split, dividend or stock dividend in respect of the Warrant Shares;
provided, however, that with respect to any particular Registrable Security,
such security shall cease to be a Registrable Security when, as of the date of
determination, (i) it has been effectively registered under the Act and
disposed of pursuant thereto, (ii) registration under the Act is no longer
required for subsequent public distribution of such security, or (iii) it has
ceased to be outstanding. The term "Registrable Securities" means any and/or
all of the securities falling within the foregoing definition of a "Registrable
Security." In the event of any merger, reorganization, consolidation,
recapitalization or other change in corporate structure affecting the Common
Stock, such adjustment shall be made in the definition of "Registrable
Security" as is appropriate in order to prevent any dilution or enlargement of
the rights granted pursuant to this Article 7.
7.3. Piggyback Registration. If, at any time during the seven (7) years
following the date of this Agreement, the Company proposes to prepare and file
any new registration statement or post-effective amendments thereto covering
equity or debt securities of the Company, or any such securities of the Company
held by its shareholders (in any such case, other than in connection with a
merger, acquisition or pursuant to Form S-8 or successor form) (for purposes of
this Article 7, collectively, a "Company Registration Statement"), it will give
written notice (the "Notice") of its intention to do so by registered mail, at
least thirty (30) business days prior to the filing of each such Company
Registration Statement, to all holders of the Registrable Securities. Upon the
written request of such a holder (a "Requesting Holder"), made within twenty
(20) business days after receipt of the Notice, that the Company include any of
the
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<PAGE> 5
Requesting Holder's Registrable Securities in the proposed Company Registration
Statement, the Company shall, as to each such Requesting Holder, use its best
efforts to effect the registration under the Act of the Registrable Securities
which it has been so requested to register ("Piggyback Registration"), at the
Company's sole cost and expense and at no cost or expense to the Requesting
Holders (except as to underwriting discounts and commissions and costs of
individual Requesting Holders' counsel and professional advisors).
Notwithstanding the provisions of this Section 7.3, the Company shall have
the right at any time after it shall have given written notice pursuant to this
Section 7.3 (irrespective of whether any written request for inclusion of such
securities shall have already been made) to elect not to file any such proposed
Company Registration Statement, or to withdraw the same after the filing but
prior to the effective date thereof.
7.4 Demand Registration Right.
(a) At any time during the Warrant Exercise Term, any "Majority Holder"
(as such term is defined in Section 7.4(c) below) of the Registrable Securities
shall have the right (which right is in addition to the piggyback registration
rights) provided for under Section 7.3 hereof), exercisable by written notice
to the Company (the "Demand Registration Request"), to have the Company prepare
and file with the Securities and Exchange Commission (the "Commission"), on one
occasion, at the sole expense of the Company (other than the pro rata portion
of underwriting discounts, if any, attributable to the Holder's Registrable
Securities and the expenses of Holder's counsel and advisors), a Registration
Statement and such other documents, including a prospectus, as may be necessary
(in the opinion of both counsel for the Company and counsel for such Majority
Holder), in order to comply with the provisions of the Act, so as to permit a
public offering and sale of the Registrable Securities until such time as (i)
the sale of all Registrable Securities by the holders thereof or (ii) receipt
by the holders thereof of an opinion of Company's counsel that the Registrable
Securities may be immediately publicly sold without registration under the
Securities Act.
(b) The Company covenants and agrees to give written notice of any
Demand Registration Request to all holders
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<PAGE> 6
of the Registrable Securities within ten (10) days from the date of the
Company's receipt of any such Demand Registration Request. After receiving
notice from the Company as provided in this Section 7.4(b), holders of
Registrable Securities may request the Company to include their Registrable
Securities in the Registration Statement to be filed pursuant to Section 7.4(a)
hereof by notifying the Company of their decision to include such securities
within ten (10) days of their receipt of the Company's notice.
(c) The term "Majority Holder" as used in this Section 7.4 shall means
any holder or any combination of holders of Registrable Securities, if included
in such holders' Registrable Securities are that aggregate number of
Warrant Shares (including Warrant Shares already issued and Warrant Shares
issuable pursuant to the exercise of outstanding warrants) as would constitute
a majority of the aggregate number of Warrant Shares (including Warrant Shares
already issued and Warrant Shares issuable pursuant to the exercise of
outstanding Warrants) included in all of the Registrable Securities.
7.5 Covenants of the Company With Respect to Registration. The Company
covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the
Company shall file the Registration Statement as expeditiously as possible, but
in no event later than ten (10) business days following receipt of any demand
therefor, shall use its best efforts to have any such Registration Statements
declared effective at the earliest possible time, and shall furnish each holder
of Registrable Securities such number of prospectuses as shall reasonably be
requested.
(b) The Company shall pay all costs, fees and expenses in connection
with all Registration Statements filed pursuant to Sections 7.3 and 7.4
hereof including, without limitation, the Company's legal and accounting fees,
printing expenses, and blue sky fees and expenses, except for any underwriting
discounts or commissions with respect to the Registrable Securities and except
for fees of counsel and other professional advisors of a holder or group of
holders.
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(c) The Company will take all necessary action which may be required in
qualifying or registering the Registrable Securities included in a Registration
Statement for offering and sale under the securities or blue sky laws of such
states as are requested by the holders of such securities, provided that the
Company shall not be obligated to so qualify or register the Registrable
Securities in any state that would require the Company to execute or file any
general consent to service of process or to qualify as a foreign corporation to
do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder of the Registrable
Securities to be sold pursuant to any Registration Statement and any
underwriter or person deemed to be an underwriter under the Act and each
person, if any, who controls such holder or underwriter or person deemed to be
an underwriter within the meaning of Section 15 of the Act or Section 20(a) of
the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all
loss, claim, damage, expense or liability (including all expenses reasonably
incurred in investigating, preparing or defending against any claim whatsoever)
to which any of them may become subject under the Act, the Exchange Act or
otherwise, arising from any untrue statement of a material fact contained in a
Registration Statement, any other registration statement filed by the Company
under the Act, any post-effective amendment to such registration statements, or
any prospectus included therein required to be filed or furnished by reason of
this Article 7 or caused by 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, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or alleged untrue statement
or omission or alleged omission based upon information furnished or required to
be furnished in writing to the Company by the holder of the Registrable
Securities or underwriter expressly for use therein; which indemnification
shall include each person, if any, who controls any such underwriter within the
meaning of the Act and each officer, director, employee and agent of such
underwriter; provided, however, that the Company shall not be obligated to so
indemnify such holder or any such underwriter or other person referred to above
unless such holder or underwriter or other person, as the case may be, shall at
the same time indemnify the Company to the extent required herein. Each person
who may be entitled to
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indemnification pursuant to the preceding sentence shall indemnify the Company,
its directors, each officer signing the 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 caused by any
untrue statement or alleged untrue statement of a material fact contained in a
Registration Statement, any registration statement or any prospectus required
to be filed or furnished by reason of this Article 7 or caused by any omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or alleged untrue
statement or omission based upon information furnished in writing to the
Company by the Holder or underwriter expressly for use therein.
(e) Promptly after receipt of notice of the commencement of any action
in respect of which indemnity may be sought against any indemnifying party
under this Section 7.5, the indemnified party will notify the indemnifying
party in writing of the commencement thereof, and the indemnifying party will,
subject to the provisions hereinafter stated, assume the defense of such action
(including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of expenses) insofar as such action relates to an alleged
liability in respect of which indemnity may be sought against the indemnifying
party. After notice from the indemnifying party of its election to assume the
defense of such claim or action, the indemnifying party shall no longer be
liable to the indemnified party under this Section 7.5 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, that if, in the written opinion of counsel to the indemnified party or
parties, it is advisable for the indemnified party or parties to be represented
by separate counsel, the indemnified party or parties shall have the right to
employ a single counsel to represent the indemnified parties who may be subject
to liability arising out of any claim in respect of which indemnity may be
sought by the indemnified parties thereof against the indemnifying party, in
which event the reasonable fees and expenses of such separate counsel shall be
borne by the indemnifying party. Any party against whom indemnification may be
sought under this Section 7.5 shall not be liable to indemnify any person that
might otherwise be
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indemnified pursuant hereto for any settlement of any action effected without
such indemnifying party's consent, which consent shall not be unreasonably
withheld.
(f) If for any reason the indemnification provided for in the preceding
subparagraph is held by a court of competent jurisdiction to be unavailable to
an indemnified party with respect to any loss, claim, damage, liability or
expense referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by the indemnified party as a result of such loss, claim,
damage or liability in such proportion as is appropriate to reflect not only
the relative benefits received by the indemnified party and the indemnifying
party, but also the relative fault of the indemnified party and the
indemnifying party, as well as any other relevant equitable considerations.
(g) Nothing contained in this Agreement shall be construed as requiring
any holder to exercise the Warrant prior to the initial filing of any
registration statement or the effectiveness thereof.
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8. Adjustments of Exercise Price and Number of Warrant Shares.
8.1. Computation of Adjusted Price. Except as hereinafter provided, in
case the Company shall at any time after the date hereof issue or sell any
shares of Common Stock (other than the issuances or sales referred to in
Section 8.6 hereof), including shares held in the Company's treasury and shares
of Common Stock issued upon the exercise of any options, rights or warrants to
subscribe for shares of Common Stock (other than the issuances or sales of
Common Stock pursuant to rights to subscribe for such Common Stock distributed
to all the shareholders of the Company and Holders of Warrants pursuant to
Section 8.9 hereof) and shares of Common Stock issued upon the direct or
indirect conversion or exchange of securities for shares of Common Stock, for a
consideration per share less than the Exercise Price in effect immediately
prior to the issuance or sale of such shares or the "Market Price" (as defined
in Section 8.1(iv) hereof) per share of Common Stock or without consideration,
then forthwith upon such issuance or sale, the Exercise Price shall (until
another such issuance or sale) be reduced to the price (calculated to the
nearest full cent) equal to the quotient derived by dividing (A) an amount
equal to the sum of (X) the product of (a) the total number of shares of Common
Stock outstanding immediately prior to such issuance or sale, multiplied by (b)
the lower of (i) the Exercise Price in effect immediately prior to such
issuance or sale or (ii) the "Market Price" (as defined in subsection (vi) of
this Section 8.1 hereof) per share of Common Stock on the date immediately
prior to the issuance or sale of such shares, plus, (Y) the aggregate of the
amount of all consideration, if any, received by the Company upon such issuance
or sale, by (B) the total number of shares of Common Stock outstanding
immediately after such issuance or sale; provided, however, that in no event
shall the Exercise Price be adjusted pursuant to this computation to an amount
in excess of the Exercise Price in effect immediately prior to such
computation, except in the case of a combination of outstanding shares of
Common Stock, as provided by Section 8.3 hereof.
For the purposes of any computation to be made in accordance with this
Section 8.1, the following provisions shall be applicable:
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(i) In case of the issuance or sale of shares of Common Stock for a
consideration part or all of which shall be cash, the amount of the cash
consideration therefor shall be deemed to be the amount of cash received by the
Company for such shares (or, if shares of Common Stock are offered by the
Company for subscription, the subscription price, or, if such securities shall
be sold to underwriters or dealers for public offering without a subscription
offering, the initial public offering price) before deducting therefrom any
compensation paid or discount allowed in the sale, underwriting or purchase
thereof by underwriters or dealers or others performing similar services, or
any expenses incurred in connection therewith.
(ii) In case of the issuance or sale (otherwise than as a dividend or
other distribution on any stock of the Company) of shares of Common Stock for a
consideration part or all of which shall be other than cash, the amount of the
consideration therefor other than cash shall be deemed to be the value of such
consideration as determined in good faith by the Board of Directors of the
Company.
(iii) Shares of Common Stock issuable by way of dividend or other
distribution on any stock of the Company shall be deemed to have been issued
immediately after the opening of business on the day following the record date
for the determination of shareholders entitled to receive such dividend or
other distribution and shall be deemed to have been issued without
consideration.
(iv) The reclassification of securities of the Company other than
shares of Common Stock into securities including shares of Common Stock shall
be deemed to involve the issuance of such shares of Common Stock for a
consideration other than cash immediately prior to the close of business on the
date fixed for the determination of security holders entitled to receive such
shares, and the value of the consideration allocable to such shares of Common
Stock shall be determined as provided in subsection (ii) of this Section 8.1.
(v) The number of shares of Common Stock at any one time outstanding
shall include the aggregate number of shares issued or issuable upon the
exercise of options, rights, warrants and upon the conversion or exchange of
convertible or exchangeable securities.
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(vi) The term "Market Price" at any date shall be deemed to be the last
reported sale price, or, in case no such reported sale takes place on such day,
the average of the last reported sale prices for the last three trading days,
in either case as officially reported by the principal securities exchange on
which the Common Stock is listed or admitted to trading or as reported in the
NASDAQ National Market System, or the NASDAQ Small Cap Market, or, if the
Common Stock is not listed or admitted to trading on any national securities
exchange or quoted on the NASDAQ National Market System or the NASDAQ Small Cap
Market, the closing bid price as furnished by the National Association of
Securities Dealers, Inc. through NASDAQ or similar organization if NASDAQ is no
longer reporting such information, or if the Common Stock is not listed or
admitted to trading on a securities exchange or quoted on NASDAQ, as determined
in good faith by resolution of the Board of Directors of the Company, based on
the best information available to it for the two days immediately preceding
such issuance or sale and the day of such issuance or sale.
8.2. Options, Rights, Warrants and Convertible and Exchangeable
Securities. Except in the case of the Company issuing rights to subscribe for
shares of Common Stock distributed to all the shareholders of the Company and
Holders of Warrants pursuant to Section 8.10 hereof, if the Company shall at
any time after the date hereof issue options, rights or warrants to subscribe
for shares of Common Stock, or issue any securities convertible into or
exchangeable for shares of Common Stock, (i) for a consideration per share less
than (a) the Exercise Price in effect immediately prior to the issuance of such
options, rights or warrants, or such convertible or exchangeable securities, or
(b) the Market Price, or (ii) without consideration, the Exercise Price in
effect immediately prior to the issuance of such options, rights or warrants,
or such convertible or exchangeable securities, as the case may be, shall be
reduced to a price determined by making a computation in accordance with the
provisions of Section 8.1 hereof, provided that:
(a) The aggregate maximum number of shares of Common Stock, as the case
may be, issuable under all the outstanding options, rights or warrants shall be
deemed to be issued and outstanding at the time all the outstanding options,
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rights or warrants were issued, and for a consideration equal to the minimum
purchase price per share provided for in the options, rights or warrants at the
time of issuance, plus the consideration (determined in the same manner as
consideration received on the issue or sale of shares in accordance with the
terms of the Warrants), if any, received by the Company for the options, rights
or warrants, and if no minimum price is provided in the options, rights or
warrants, then the consideration shall be equal to zero; provided, however,
that upon the expiration or other termination of the options, rights or
warrants, if any thereof shall not have been exercised, the number of shares of
Common Stock deemed to be issued and outstanding pursuant to this subsection
(a) (and for the purposes of subsection (v) of Section 8.1 hereof) shall be
reduced by such number of shares as to which options, warrants and/or rights
shall have expired or terminated unexercised, and such number of shares shall
no longer be deemed to be issued and outstanding, and the Exercise Price then
in effect shall forthwith be readjusted and thereafter be the price which it
would have been had adjustment been made on the basis of the issuance only of
shares actually issued or issuable upon the exercise of those options, rights
or warrants as to which the exercise rights shall not have expired or
terminated unexercised.
(b) The aggregate maximum number of shares of Common Stock issuable
upon conversion or exchange of any convertible or exchangeable securities
shall be deemed to be issued and outstanding at the time of issuance of such
securities, and for a consideration equal to the consideration (determined in
the same manner as consideration received on the issue or sale of shares of
Common Stock in accordance with the terms of the Warrants) received by the
Company for such securities, plus the minimum consideration, if any, receivable
by the Company upon the conversion or exchange thereof; provided, however, that
upon the termination of the right to convert or exchange such convertible or
exchangeable securities (whether by reason of redemption or otherwise), the
number of shares deemed to be issued and outstanding pursuant to this
subsection (b) (and for the purpose of subsection (v) of Section 8.1 hereof)
shall be reduced by such number of shares as to which the conversion or
exchange rights shall have expired or terminated unexercised, and such number
of shares shall no longer be deemed to be issued and outstanding and the
Exercise Price then in effect shall forthwith be readjusted and thereafter be
the price which it would have been had adjustment been made on the basis of the
issuance only of the shares actually issued or issuable upon the conversion or
exchange of those convertible or exchangeable securities as to
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which the conversion or exchange rights shall not have expired or terminated
unexercised.
(c) If any change shall occur in the price per share provided for in
any of the options, rights or warrants referred to in subsection (a) of
this Section 8.2, or in the price per share at which the securities referred to
in subsection (b) of this Section 8.2 are convertible or exchangeable, the
options, rights or warrants or conversion or exchange rights, as the case may
be, shall be deemed to have expired or terminated on the date when such price
change became effective in respect of shares not theretofore issued pursuant to
the exercise or conversion or exchange thereof, and the Company shall be deemed
to have issued upon such date new options, rights or warrants or convertible or
exchangeable securities at the new price in respect of the number of shares
issuable upon the exercise of such options, rights or warrants or the
conversion or exchange of such convertible or exchangeable securities.
8.3. Subdivision and Combination. In case the Company shall at any time
subdivide or combine the outstanding shares of Common Stock, the Exercise Price
shall forthwith be proportionately decreased in the case of subdivision or
increased in the case of combination.
8.4. Adjustment in Number of Warrant Shares. Upon each adjustment of the
Exercise Price pursuant to the provisions of this Article 8, the number of
Warrant Shares issuable upon the exercise of the Warrant shall be adjusted to
the nearest full Warrant Share by multiplying a number equal to the Exercise
Price in effect immediately prior to such adjustment by the number of Warrant
Shares issuable upon exercise of the Warrant immediately prior to such
adjustment and dividing the product so obtained by the adjusted Exercise Price.
8.5. Reclassification, Consolidation, Merger, etc. In case of any
reclassification or change of the outstanding shares of Common Stock (other
than a change in par value to no par value, or from no par value to par value,
or as a result of a subdivision or combination), or in the case of any
consolidation of the Company with, or merger of the Company into, another
corporation (other than a consolidation or merger in which the Company is the
surviving corporation and which does not result in any reclassification or
change of the outstanding
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shares of Common Stock, except a change as a result of a subdivision or
combination of such shares or a change in par value, as aforesaid), or in the
case of a sale or conveyance to another corporation of the property of the
Company as an entirety, the Holders shall thereafter have the right to purchase
the kind and number of shares of stock and other securities and property
receivable upon such reclassification, change, consolidation, merger, sale or
conveyance as if the Holders were the owners of the Warrant Shares underlying
the Warrant at a price equal to the product of (x) the number of shares of
Common Stock issuable upon conversion of the Warrant Shares and (y) the
Exercise Price prior to the record date for such reclassification, change,
consolidation, merger, sale or conveyance as if such Holders had exercised the
Warrant.
8.6. No Adjustment of Exercise Price in Certain Cases. Notwithstanding
anything herein to the contrary, no adjustment of the Exercise Price shall be
made:
(a) Upon the issuance or sale of the Warrant or the Warrant
Shares; or
(b) Upon (i) the issuance of options pursuant to the
Company's employee stock option plans in effect on the date hereof
or the issuance or sale by the Company of any shares of Common
Stock pursuant to the exercise of any such options, or (ii) the
issuance or sale by the Company of any shares of Common Stock
pursuant to the exercise of any options or warrants previously
issued and outstanding on the date hereof; or
(c) If the amount of said adjustment shall be less than one
cent ($0.01) per Share, provided, however, that in such case any
adjustment that would otherwise be required then to be made shall
be carried forward and shall be made at the time of and together
with the next subsequent adjustment which, together with any
adjustment so carried forward, shall amount to at least one cent
($0.01) per Share.
8.7. Redemption of Warrant; Redemption of Warrant Shares.
Notwithstanding anything to the contrary contained in
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the Warrant or elsewhere, the Warrant cannot be redeemed by the Company under
any circumstances.
8.8. Dividends and Other Distributions with Respect to Outstanding
Securities. In the event that the Company shall at any time prior to the
exercise of the Warrant declare a dividend (other than a dividend consisting
solely of shares of Common Stock or a cash dividend or distribution payable out
of current or retained earnings) or otherwise distribute to its shareholders
any monies, assets, property, rights, evidences of indebtedness, securities
(other than shares of Common Stock), whether issued by the Company or by
another person or entity, or any other thing of value, the Holder of the
Warrant shall thereafter be entitled, in addition to the securities receivable
upon the exercise thereof, to receive, upon the exercise of such Warrant, the
same monies, property, assets, rights, evidences of indebtedness, securities or
any other thing of value that he would have been entitled to receive at the
time of such dividend or distribution. At the time of any such dividend or
distribution, the Company shall make appropriate reserves to ensure the timely
performance of the provisions of this Subsection 8.8.
8.9. Subscription Rights for Shares of Common Stock or Other Securities.
In the case that the Company or an affiliate of the Company shall at any time
after the date hereof and prior to the exercise of the Warrant issue any rights
to subscribe for shares of Common Stock or any other securities of the Company
or of such affiliate to all the shareholders of the Company, the Holder of the
unexercised Warrant shall be entitled, in addition to the securities receivable
upon the exercise of the Warrant, to receive such rights at the time such
rights are distributed to the other shareholders of the Company.
9. Exchange and Replacement of Warrant Certificates.
The Warrant Certificate is exchangeable without expense, upon the
surrender hereof by the registered Holder at the principal executive office of
the Company, for a new Warrant Certificate of like tenor and date representing
in the aggregate the right to purchase the same number of Warrant Shares in
such denominations as shall be designated by the Holder thereof at the time of
such surrender.
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Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of the Warrant Certificate, and, in
case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Warrant, if
mutilated, the Company will make and deliver a new Warrant Certificate of like
tenor, in lieu thereof.
10. Elimination of Fractional Interests.
The Company shall not be required to issue certificates representing
fractions of Warrant Shares upon the exercise of the Warrant, nor shall it be
required to issue scrip or pay cash in lieu of fractional interests, it being
the intent of the parties that all fractional interests shall be eliminated by
rounding any fraction up to the nearest whole number of Warrant Shares.
11. Reservation and Listing of Securities.
The Company shall at all times reserve and keep available out of its
authorized shares of Common Stock, solely for the purpose of issuance upon the
exercise of the Warrant, such number of shares of Common Stock as shall be
issuable upon such exercise. The Company covenants and agrees that, upon
exercise of the Warrant and payment of the Exercise Price therefor, all shares
of Common Stock issuable upon such exercise shall be duly and validly issued,
fully paid, non-assessable and not subject to the preemptive rights of any
shareholder. As long as the Warrant shall be outstanding, the Company shall
use its best efforts to cause all Warrant Shares to be listed on or quoted by
NASDAQ or listed on such national securities exchanges as the Company's Common
Stock is listed.
12. Notices to Warrant Holder.
Nothing contained in this Agreement shall be construed as conferring upon
the Holder the right to vote or to consent or to receive notice as a
shareholder in respect of any meetings of shareholders for the election of
directors or any other matter, or as having any rights whatsoever as a
shareholder of the Company. If, however, at any time prior to the expiration
of the Warrants and their exercise, any of the following events shall occur:
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(a) the Company shall take a record of the holders of its
shares of Common Stock for the purpose of entitling them to receive
a dividend or distribution payable otherwise than in cash, or a
cash dividend or distribution payable otherwise than out of current
or retained earnings, as indicated by the accounting treatment of
such dividend or distribution on the books of the Company; or
(b) the Company shall offer to all the holders of its Common
Stock any additional shares of capital stock of the Company or
securities convertible into or exchangeable for shares of capital
stock of the Company, or any option, right or warrant to subscribe
therefor; or
(c) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation or merger) or a sale
of all or substantially all of its property, assets and business as
an entirety shall be proposed;
then, in any one or more of said events, the Company shall give written notice
to the Holder of such event at least fifteen (15) days prior to the date fixed
as a record date or the date of closing the transfer books for the
determination of the shareholders entitled to such dividend, distribution,
convertible or exchangeable securities or subscription rights, options or
warrants, or entitled to vote on such proposed dissolution, liquidation,
winding up or sale. Such notice shall specify such record date or the date of
closing the transfer books, as the case may be. Failure to give such notice or
any defect therein shall not affect the validity of any action taken in
connection with the declaration or payment of any such dividend or
distribution, or the issuance of any convertible or exchangeable securities or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
13. Notices.
All notices, requests, consents and other communications hereunder shall
be in writing and shall be deemed to have been duly made when delivered, or
mailed by registered or certified mail, return receipt requested:
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(a) If to the registered Holder of the Warrant, to the
address of such Holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth in Section 3
of this Agreement or to such other address as the Company may
designate by notice to the Holder.
14. Supplements and Amendments.
The Company and Commonwealth may from time to time supplement or amend
this Agreement without the approval of any Holder of the Warrant and/or
securities underlying the Warrant in order to cure any ambiguity, to correct or
supplement any provision contained herein which may be defective or
inconsistent with any provisions herein, or to make any other provisions in
regard to matters or questions arising hereunder which the Company and
Commonwealth may deem necessary or desirable and which the Company and the
Underwriter deem not to adversely affect the interests of the Holder of the
Warrant.
15. Successors.
All the covenants and provisions of this Agreement by or for the benefit
of the Company and the Holder inure to the benefit of their respective
successors and assigns hereunder.
16. Termination.
This Agreement shall terminate at the close of business on September 1,
2003. Notwithstanding the foregoing, this Agreement will terminate on any
earlier date when the Warrant has been exercised and all securities underlying
the Warrant have been resold to the public; provided, however, that the
provisions of Section 7 shall survive such termination until the close of
business on September 1, 2006 with respect to any outstanding Registrable
Securities.
17. Governing Law.
This Agreement and the Warrant Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of New York and for
all purposes shall be construed in accordance with the laws of said State.
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<PAGE> 20
18. Jurisdiction; Consent to Service of Process.
(a) The Company hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any New York State court
or Federal court of the United States of America sitting in the Borough of
Manhattan, City of New York, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment hereon. The Company and
Commonwealth, by their acceptance of this Agreement, hereby irrevocably and
unconditionally agree that all claims in respect of any such action or
proceeding may be heard and determined in such New York State court or, to the
extent permitted by law, in such Federal court. Each such party also agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any right that
the Holder may otherwise have to bring any action or proceeding relating to
this Agreement against the Company or its properties in the courts of any
jurisdiction.
(b) The Company hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any New York State or Federal
court. The Company and Commonwealth, by their acceptance of this Agreement,
hereby irrevocably waive, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(c) The Company and Commonwealth, by their acceptance hereof, irrevocably
consent to service of process in the manner provided for notices in Section 13.
Nothing in this Agreement will affect the right of any party to this Agreement
to serve process in any other manner permitted by law.
19. Benefits of This Agreement.
Nothing in this Agreement shall be construed to give to any person or
corporation other than the Company and Commonwealth and any other registered
Holder of the Warrant or any securities underlying the Warrant any legal or
equitable right, remedy or
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claim under this Agreement; and this Agreement shall be for the sole and
exclusive benefit of the Company and Commonwealth and any such other Holder.
20. Counterparts.
This Agreement may be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be an original, and such
counterparts shall together constitute but one and the same instrument.
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<PAGE> 22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
[SEAL] ACCUMED INTERNATIONAL, INC.
By:__________________________________
Name: Peter P. Gombrich
Title: Chief Executive Officer
Attest:
_______________________
Mark L. Santor
Secretary
COMMONWEALTH ASSOCIATES
By: Commonwealth
Associates Management Company, Inc., General
Partner
By:________________________________
Name:
Title:
<PAGE> 23
EXHIBIT A
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE UPON
EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND MAY NOT BE OFFERED OR SOLD EXCEPT (i) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, (ii) TO THE EXTENT APPLICABLE,
PURSUANT TO RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT
RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) UPON THE DELIVERY BY THE
HOLDER TO THE COMPANY OF AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO
COUNSEL FOR THE ISSUER, STATING THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH
ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE AT ANY TIME FROM DECEMBER 28, 1995 UNTIL
5:00 P.M., NEW YORK TIME, DECEMBER 28, 2000
_______ Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that _____________ __________________
("__________"), or registered assigns, is the registered holder of Warrants to
purchase, at any time from December 28, 1995 until 5:00 P.M. New York City time
on December 28, 2000 ("Expiration Date"), up to _______ fully-paid and
non-assessable share(s) (the "Shares") of Common Stock, no par value ("Common
Stock"), of AccuMed International, Inc., a Delaware corporation (the
"Company"), at the initial exercise price, subject to adjustment in certain
events (the "Exercise Price"), of $1.25 per share, upon surrender of this
Warrant Certificate and payment of the Exercise Price at an office or agency of
the Company, but subject to the conditions set forth herein and in the Warrant
Agreement dated as of December 28, 1995, by and between the Company and
Commonwealth Associates (the "Warrant Agreement"). Payment of the Exercise
Price may be made in cash, or by check payable to the order of the Company, or
any combination of cash or check.
No Warrant may be exercised after 5:00 P.M., New York City time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, shall thereafter be void.
<PAGE> 24
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of
this instrument and is hereby referred to in a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Company and the holders (the words "holders" or "holder" meaning the registered
holders or registered holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain events,
the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like
number of Warrants shall be issued to the transferee(s) in exchange for this
Warrant Certificate, subject to the limitations provided herein and in the
Warrant Agreement, without any charge except for any tax, or other governmental
charge imposed in connection therewith.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
<PAGE> 25
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed under its corporate seal.
Dated: December 28, 1995 ACCUMED INTERNATIONAL, INC.
[SEAL] By:___________________________
Name: Peter P. Gombrich
Title: Chief Executive Officer
Attest:
______________________
Mark L. Santor
Secretary
<PAGE> 1
EXHIBIT 4.6
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE COMMON
STOCK ISSUABLE UPON EXERCISE OF SUCH WARRANTS HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
UNDER ANY STATE SECURITIES LAWS, AND ARE TRANSFERABLE
ONLY IN COMPLIANCE WITH SUCH LAWS
WARRANT CERTIFICATE
237,840 Warrants to Purchase Common Stock
ACCUMED INTERNATIONAL, INC.
(Incorporated under the laws of the State of Delaware)
These Warrants are issued in exchange for Warrants to purchase 150,000
shares of common stock of AccuMed, Inc., pursuant to the Agreement and Plan of
Reorganization by and between Alamar Biosciences, Inc. (which has been renamed
"AccuMed International, Inc." and reincorporated in the State of Delaware), and
AccuMed, Inc., entered into as of April 21, 1995, and as amended by Amendment
No. 1 dated as of August 1, 1995, and Amendment No. 2 dated as of October 6,
1995 (the "Agreement"), whereby AccuMed, Inc., was merged with and into Alamar
Biosciences, Inc. (renamed "AccuMed International, Inc.") (the "Corporation").
Accordingly, these Warrants are subject to all the terms and conditions of the
Agreement. Capitalized terms used herein and not otherwise defined shall have
the same meaning as they have in the Agreement.
This is to certify that, for value received, The P. L. Thomas Group, Inc.,
or registered assigns, is the owner of 237,840 Warrants, each of which entitles
the registered owner to purchase from the Corporation, at any time, the
following shares of fully paid and non-assessable, no par value, common stock
(the "Common Stock") of the Corporation, at a purchase price per share (the
"Applicable Exercise Price") of (i) $.82 as to 79,280 Warrants, (ii) $1.64 as
to 79,280 Warrants, and (iii) $2.47 as to 79,280 Warrants. The shares of
Common Stock issuable upon the exercise of the Warrants are sometimes called
the "Warrant Shares."
Subject to the provisions hereof, the Warrants represented by this Warrant
Certificate may be exercised by the registered holder in whole or in part by
surrender of this
<PAGE> 2
Warrant Certificate at the principal executive offices of the Corporation with
the form of election to exercise attached hereto duly executed and with payment
in full to the Corporation of the Applicable Exercise Price for the Warrant
Shares so purchased. Payment of such Applicable Exercise Price shall be made
in cash or by certified official bank check. Thereupon, the Warrants shall be
deemed to have been exercised and the person exercising the same to have become
a holder of record of the Warrant Shares so purchased (or of the other
securities or property to which such person is entitled upon such exercise) for
all purposes; and certificates for Warrant Shares so purchased shall be
delivered to the purchaser within a reasonable time (not exceeding 10 days)
after the Warrants shall have been exercised as set forth above.
Subject to the provisions hereof and the Agreement, the right of the
registered holder to exercise the Warrants represented by this Warrant
Certificate shall be immediately exercisable in full as of the date hereof. If
only a portion of the Warrants shall be exercised, the holder of this Warrant
Certificate shall be entitled to receive a similar warrant certificate of like
tenor and date covering the number of Warrants which shall not have been
exercised.
This Warrant Certificate is exchangeable upon surrender by its registered
holder at the principal executive offices of the Corporation, for new warrant
certificates of like tenor and date representing in the aggregate the right to
purchase the number of Warrant Shares which may be purchased hereunder.
The Corporation covenants and agrees that all shares of Common Stock which
may be issued upon the exercise of the rights represented by this Warrant
Certificate will, upon issuance, be validly issued, fully paid and
non-assessable and free from all taxes, liens and charges with respect to the
issue thereof (other than taxes in respect of any transfer occurring
contemporaneously with such issue). The Corporation further covenants and
agrees that it will at all times have authorized and reserved a sufficient
number of shares of Common Stock to provide for the exercise of the rights
represented by this Warrant Certificate.
ARTICLE I
2
<PAGE> 3
Section 1.1 Adjustment of Number of Shares and Applicable Exercise Price.
(a) The Applicable Exercise Price of the Warrants shall be subject to
adjustment from time to time as follows:
(1) If the number of shares of Common Stock outstanding at any time
after the date hereof is increased by a stock dividend payable in shares
of Common Stock or by a subdivision or split-up of shares of Common
Stock, then, following the record date fixed for the determination of
holders of Common Stock entitled to receive such stock dividend,
subdivision or split-up, the number of Warrants and the Applicable
Exercise Price shall be appropriately adjusted so that the number of
shares of Common Stock issuable on exercise of each Warrant shall be
increased and the Applicable Exercise Price decreased in proportion to
such increase of outstanding shares.
(ii) If the number of shares of Common Stock outstanding at any time
after the date hereof is decreased by a combination of the outstanding
shares of Common Stock, then, following the record date for such
combination, the number of Warrant Shares issuable upon exercise of
Warrants and the Applicable Exercise Price shall be appropriately
adjusted so that the number of shares of Common Stock issuable on
exercise of each Warrant shall be decreased and the Applicable Exercise
Price shall be increased in proportion to such decrease in outstanding
shares.
(iii) If any consolidation or merger of the Corporation with or into
another entity, or the sale of all or substantially all its assets to
another entity shall be effected, or in case of any capital
reorganization or reclassification of the capital stock of the
Corporation, then lawful and adequate provision shall be made whereby
each holder of Warrants shall thereafter have the right to receive upon
the basis and upon the terms and conditions specified herein and in lieu
of the shares of Common Stock of the Corporation immediately theretofore
receivable upon the conversion of such Warrants, such shares of stock,
securities, interests or assets as may be issued or payable with respect
to or in exchange for a number of outstanding shares of Common Stock
equal to the number of shares of
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<PAGE> 4
Common Stock immediately theretofore so receivable by such holder had such
consolidation, merger, sale, reorganization or reclassification not taken
place, and in any such case appropriate provision shall be made with
respect to the rights and interests of the holder to the end that the
provisions hereof (including without limitation provisions for adjustment
of the Applicable Exercise Price) shall thereafter be applicable, as
nearly as may be in relation to any shares of stock, securities or assets
thereafter deliverable upon the exercise of such conversion rights.
(iv) All calculations under this paragraph (a) shall be made to the
nearest cent or to the nearest one hundredth (1/100) of a share, or one
cent ($.01), as the case may be.
(b) In any case in which the provisions of this Article I shall
require that an adjustment shall become effective immediately after a record
date for an event, the Corporation may defer until the occurrence of such event
(x) issuing to the holder of any Warrant exercised after such record date and
before the occurrence of such event, the additional shares of Common Stock
issuable upon such exercise by reason of the adjustment required by such event
over and above the shares of Common Stock issuable upon such exercise before
giving effect to such adjustment and (y) paying to such holder any amount in
cash in lieu of a fractional share of Common Stock pursuant to Section 1.2;
provided, however, that the Corporation shall deliver to such holder a due bill
or other appropriate instrument evidencing such holder's right to receive such
additional shares, and such cash, upon the occurrence of the event requiring
such adjustment.
(c) Any and all Warrant Shares issued pursuant to the exercise of
the Warrants shall bear a legend reflecting that such Warrant Shares have not
been registered under the Securities Act of 1933, as amended, or under any
state securities law, and cannot be transferred by sale, pledge or otherwise,
except in compliance with such securities laws and all regulations thereunder.
As a condition to the issuance of Warrant Shares, the holder hereof requesting
to so exercise the Warrants shall execute appropriate investment letters and
other documents as may be reasonably required by the Corporation and its
counsel to assure that Warrant Shares are issued only in compliance with
applicable securities law.
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<PAGE> 5
(d) In the event the Corporation proposes to take any action of the
types described in this Section 1.1, the Corporation shall give notice to each
holder of Warrants, at the address of such holder shown on the books of the
Corporation, which notice shall specify the record date, if any, with respect
to any such action and the date on which such action is to take place. The
notice shall also set forth the facts with respect thereto reasonably necessary
to indicate the effect of the action (to the extent the effect may be known at
the date of such notice) on the Applicable Exercise Price and the number, kind
or class of shares or other securities or property which shall be deliverable
or purchasable upon the occurrence of such action or deliverable upon exercise
of the Warrants. In the case of any action which would require the fixing of a
record date, notice shall be given at least 10 days prior to the date so fixed,
and in case of all other action, such notice shall be given at least 15 days
prior to taking of such proposed action. Failure to give such notice, or any
defect therein, shall not affect the legality or validity of any such action,
and the holder of these Warrants shall have no right to prevent or delay any
such action by injunction or otherwise.
(e) In the event that at any time as a result of an adjustment made
pursuant to this Section 1.1, the holder of any Warrants thereafter surrendered
or exercised shall become entitled to receive any shares of the Corporation or
another corporation other than shares of Common Stock, the provisions of this
Section 1.1 and Section 1.2 with respect to the Common Stock shall apply on
like terms to any such other shares.
Section 1.2. No certificates for fractional shares of Common Stock shall
be issued upon the exercise of Warrants, but in lieu thereof the Corporation
shall pay, upon exercise in full of the Warrants represented by this Warrant
Certificate, out of funds legally available therefor, a cash adjustment in
respect of such fractional shares based upon the then effective Applicable
Exercise Price.
ARTICLE II
Section 2.1. If the Corporation at any time after the date hereof,
proposes to register any of its shares of Common Stock under the Securities Act
pursuant to a registration
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<PAGE> 6
statement, it will promptly give written notice to the registered holder (which
may be made by telecopy) hereof of its intention to do so and, upon the written
request of the holder given within 20 days after receipt of any such notice
(which request shall state the intended method of disposition of such Warrant
Shares by such holder), the Corporation will use its best efforts to cause any
or all of the Warrant Shares held by such holder, or which may be acquired by
such holder upon exercise of the Warrants, to be registered under the
Securities Act, all to the extent requisite to permit the sale or other
disposition (in accordance with the intended methods thereof, as aforesaid) by
such holder of such Warrant Shares; provided, however, that the Corporation may
at any time withdraw or cease proceeding with any such registration if it shall
at the same time withdraw or cease proceeding with the registration of such
other Common Stock originally proposed to be registered; provided, further,
that if the Corporation's underwriters recommend a reduction in the number of
shares to be registered, the number of Warrant Shares which the Corporation is
required to register hereunder on behalf of the holder shall be reduced in the
same ratio that the recommended reduction bears to the total number of shares
originally proposed to be registered. The Corporation need not reduce the
number of any shares which it proposes to sell, in which case any reduction
shall be allocated proportionately among the balance of the shares to be
registered, including the Warrant Shares. Notwithstanding the foregoing, the
Corporation shall not be required to register the Warrant Shares under this
Section in the event the Corporation shall register securities solely pursuant
to a registration statement on Form S-8 under the Securities Act or subsequent
or equivalent forms or as a result of any amendment to the Form S-3
registration statements currently effective with respect to AccuMed
International, Inc. (formerly "Alamar Biosciences, Inc.").
Section 2.2. All expenses incurred by the Corporation in complying with
this Article II, including, without limitation, all registration and filing
fees (including all expenses incident to filing with the National Association
of Securities Dealers, Inc.), printing expenses, fees and disbursements of
counsel for the Corporation, the expense of any special audits incident to or
required by any such registration, and the expense (including counsel fees) of
complying with securities or Blue Sky laws shall be paid by the Corporation;
provided in no event shall the Corporation be liable for any fees payable to
counsel or
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<PAGE> 7
accountants retained by any holder hereof or for underwriting fees, discounts
or selling commissions attributable to such Warrant Shares.
Section 2.3. In the event of any registration of Warrant Shares under the
Securities Act pursuant to this Article 2, the Corporation will indemnify and
hold harmless the holder against any losses, claims, damages or liabilities to
which such holder may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained (on the effective date thereof) in any
registration statement under which such Warrant Shares were registered under
the Securities Act, any preliminary prospectus, prospectus subject to
completion or final prospectus contained therein, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; and will reimburse
such holder for reasonable legal or any other expenses reasonably incurred by
such holder in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Corporation will not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or omission or
alleged omission made in said registration statement, said preliminary
prospectus, prospectus subject to completion or final prospectus, or said
amendment or supplement in reliance upon and in conformity with written
information furnished to the Corporation through an instrument duly executed by
such holder specifically for use in the preparation thereof.
Section 2.4. In the event of any registration of any Warrant Shares
pursuant to this Article II, the holder will indemnify and hold harmless the
Corporation, its attorneys, accountants, underwriters and each other person, if
any, who controls the Corporation within the meaning of the Securities Act,
against any losses, claims, damages or liabilities, joint or several, to which
the Corporation or such other person may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or
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<PAGE> 8
alleged untrue statement of any material fact contained (on the effective date
thereof) in any registration statement under which such Warrant Shares were
registered under the Securities Act, any preliminary prospectus, prospectus
subject to completion or final prospectus contained therein, or any amendment
or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent and only to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in said registration statement, said
preliminary prospectus, prospectus subject to completion or final prospectus or
said amendment or supplement in reliance upon and in conformity with written
information furnished to the Corporation through an instrument duly executed by
such holder specifically for use in the preparation thereof, and such holder
will reimburse the Corporation and each such other person for any legal or any
other expenses reasonably incurred by the Corporation or such other person in
connection with investigating or defending any such loss, claim, damage,
liability or action.
Section 2.5. In the event of any claim for which indemnity is sought
under Section 2.3 or 2.4, above, the party seeking indemnification shall give
prompt notice of its claim to the other party and shall permit the other party
to engage counsel and to defend against the same.
Section 2.6. The holder's right to request registration of Warrant Shares
under this Article II shall cease and terminate as to any particular Warrant
Shares when such Warrant Shares shall have been effectively registered under
the Securities Act. The holder's right to request registration of Warrant
Shares under this Article II shall be transferable in connection with any
disposition of such shares to a transferee holding at least 10,000 of such
Warrant Shares upon the agreement of such transferee to be bound by the terms
hereof; provided, however, if at any time The P. L. Thomas Group, Inc., shall
hold less than 10,000 Warrant Shares as a result of having transferred Warrant
Shares together with registration rights hereunder, its registration rights
with respect to the Warrant Shares it still holds shall terminate. For
purposes of this Warrant Certificate, shares of Common Stock shall cease to be
Warrant Shares when such shares have been sold pursuant to an effective
registration
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<PAGE> 9
statement under the Securities Act or pursuant to an exemption from
registration thereunder.
ARTICLE III
Section 3.l. If the Corporation is publicly held and so is required to
make filings under the Securities Act or the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated by the Securities and
Exchange Commission thereunder, the Corporation covenants that it will, so long
as any Warrant Shares or Warrants exercisable for Warrant Shares remain
outstanding, file all reports so required to be filed by it or, if it is not
required to file such reports, it will, upon the request of any registered
holder hereof, make publicly available such information as will enable such
holder to sell such Warrant Shares without registration within the limitations
of the exemptions provided by (i) Rule 144 promulgated under the Securities
Act, as such rule may be amended from time to time, or (ii) any similar rule or
regulation hereafter promulgated by the Securities and Exchange Commission.
ARTICLE IV
Section 4.l. The issue of any stock or other certificate upon the
exercise of the Warrants shall be made without charge to the registered holder
hereof for any transfer or issuance tax in respect of the issue thereof. The
Corporation shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the issue and delivery of any
certificate in a name other than that of the registered holder of this Warrant
Certificate, and the Corporation shall not be required to issue or deliver any
such certificate unless and until the person or persons requesting the issue
thereof shall have paid to the Corporation the amount of such tax or shall have
established to the satisfaction of the Corporation that such tax has been paid.
Section 4.2. If this Warrant Certificate shall be lost, stolen, mutilated
or destroyed, the Corporation shall, on such terms as to indemnify or otherwise
protect the Corporation as the Corporation may in its discretion impose, issue
a new warrant certificate of like denomination, tenor and date as the
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Warrant Certificate so lost, stolen, mutilated or destroyed. Any such new
warrant certificate shall constitute an original contractual obligation of the
Corporation, whether or not the allegedly lost, stolen, mutilated or destroyed
Warrant Certificate shall be at any time enforceable by anyone.
Section 4.3. The Corporation may deem and treat the registered holder of
this Warrant Certificate as the absolute owner of this Warrant Certificate for
all purposes and shall not be affected by any notice to the contrary. This
Warrant Certificate and all rights hereunder are transferable on the books of
the Corporation, upon surrender of this Warrant Certificate, with the form of
assignment attached hereto duly executed by the registered holder hereof or by
his attorney duly authorized in writing, to the Corporation at its principal
executive offices and thereupon there shall be issued in the name of the
transferee or transferees, in exchange for this Warrant Certificate, a new
warrant certificate or warrant certificates of like tenor and date,
representing in the aggregate the right to subscribe for and purchase the
number of shares which may be subscribed for and purchased hereunder; provided
that the Corporation shall not be obligated to record or give effect to any
transfer of Warrants, unless the holder shall furnish evidence reasonably
satisfactory to the Corporation that the proposed transfer does not violate any
applicable securities law or regulation. References in this Certificate to a
"holder" shall include any transferee or transferees to whom the Warrants may
be transferred pursuant to the foregoing.
Section 4.4. Except as otherwise provided herein, this Warrant
Certificate shall not entitle the holder to any rights of a stockholder of the
Corporation either at law or in equity, including, without limitation, the
right to vote, to receive dividends and other distributions, to exercise any
preemptive rights or to receive any notice of meetings of stockholders or of
any other proceedings of the Corporation.
Section 4.5. Upon the exercise or transfer of any Warrants hereunder, if
the holder has Warrants with different Applicable Exercise Prices, such holder
shall designate the Applicable Exercise Price with respect to the Warrants
exercised or transferred. Such designation shall be recorded by the
Corporation in its books and records and shall be specifically identified with
such Warrants.
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Section 4.6. This Warrant Certificate shall, in all events, remain
outstanding and fully exercisable until it is exercised in its entirety or
terminates in accordance with the terms hereof.
Section 4.7. In the event that one or more of the provisions of this
Warrant Certificate shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Warrant Certificate, but this
Warrant Certificate shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
Section 4.8. This Warrant Certificate shall be governed by and construed
in accordance with the laws of the State of Delaware applicable to agreements
made and to be entirely performed within such State.
Dated: As of December 29, 1995.
ACCUMED INTERNATIONAL, INC.
By
-------------------------------
- ------------------------
Peter P. Gombrich
Chief Executive Officer
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FORM OF EXERCISE
(to be executed by the registered holder hereof)
The undersigned hereby exercises the right to purchase shares
of common stock ("Common Stock") of ACCUMED INTERNATIONAL, INC., evidenced by
the within Warrant Certificate for an Applicable Exercise Price of $
per share and herewith makes payment of the purchase price in full of $ .
Kindly issue certificates for shares of Common Stock (and for the unexercised
balance of the Warrants evidenced by the within Warrant Certificate, if any) in
accordance with the instructions given below.
Dated: .
-----------------
-----------------------------------------
Instructions for registration of stock
- --------------------------------------
Name (Please Print)
Social Security or other identifying Number:
---------------------------
Address:
-------------------------------
City/State and Zip Code
Instructions for registration of certificate representing
the unexercised balance of Warrants (if any)
- --------------------------------------
Name (Please Print)
Social Security or other identifying Number:
---------------------------
Address:
------------------------------
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<PAGE> 13
City, State and Zip Code
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<PAGE> 14
TRANSFER OF WARRANT CERTIFICATE
For value received hereby sells, assigns
and transfers unto the rights to purchase
shares of common stock of ACCUMED INTERNATIONAL, INC., at an Applicable
Exercise Price of
$ per share, which rights are represented by the within Warrant
Certificate, and does hereby irrevocably constitute and appoint
attorney to transfer said rights on the books of the within named
Corporation, with full power of substitution in the premises.
----------------------------------
DATED: .
-----------------
In the Presence of
-----------------------------------
Social Security and Other Identifying
Number of Assignee:
----------------------------------
Address of Assignee:
- --------------------------------------
City, State and Zip Code
<PAGE> 1
EXHIBIT 4.7
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE COMMON
STOCK ISSUABLE UPON EXERCISE OF SUCH WARRANTS HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
UNDER ANY STATE SECURITIES LAWS, AND ARE TRANSFERABLE
ONLY IN COMPLIANCE WITH SUCH LAWS
WARRANT CERTIFICATE
63,473 Warrants to Purchase Common Stock
ACCUMED INTERNATIONAL, INC.
(Incorporated under the laws of the State of Delaware)
These Warrants are issued in exchange for Warrants to purchase shares of
common stock of AccuMed, Inc., pursuant to the Agreement and Plan of
Reorganization by and between Alamar Biosciences, Inc. (which has been renamed
"AccuMed International, Inc." and reincorporated in the State of Delaware), and
AccuMed, Inc., entered into as of April 21, 1995, and as amended by Amendment
No. 1 dated as of August 1, 1995, and Amendment No. 2 dated as of October 6,
1995 (the "Agreement"), whereby AccuMed, Inc., was merged with and into Alamar
Biosciences, Inc. (renamed "AccuMed International, Inc.") (the "Corporation").
Accordingly, these Warrants are subject to all the terms and conditions of the
Agreement, including the provisions of Section 1.13 of Amendment No. 1 thereof,
a copy of which is attached hereto as Exhibit A. Capitalized terms used herein
and not otherwise defined shall have the same meaning as they have in the
Agreement.
This is to certify that, for value received, The P. L. Thomas Group, Inc.,
or registered assigns, is the owner of 63,473 Warrants, each of which entitles
the registered owner to purchase from the Corporation, subject to the terms
hereof and the Agreement, the following shares of fully paid and
non-assessable, no par value, common stock (the "Common Stock") of the
Corporation, at a purchase price per share (the "Applicable Exercise Price") of
(i) $.82 as to 21,158 Warrants, (ii) $1.64 as to 21,158 Warrants, and (iii)
$2.47 as to 21,158 Warrants. The
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shares of Common Stock issuable upon the exercise of the Warrants are sometimes
called the "Warrant Shares."
The Warrants represented by this Certificate shall not be exercisable
unless and until it is determined that either the First Year Performance
Targets or the Earn-Back Targets for the Second Year Performance Period, as
provided in the Agreement, have been achieved.
Subject to the provisions hereof, the Warrants represented by this Warrant
Certificate may be exercised by the registered holder in whole or in part by
surrender of this Warrant Certificate at the principal executive offices of the
Corporation with the form of election to exercise attached hereto duly executed
and with payment in full to the Corporation of the Applicable Exercise Price
for the Warrant Shares so purchased. Payment of such Applicable Exercise Price
shall be made in cash or by certified official bank check. Thereupon, the
Warrants shall be deemed to have been exercised and the person exercising the
same to have become a holder of record of the Warrant Shares so purchased (or
of the other securities or property to which such person is entitled upon such
exercise) for all purposes; and certificates for Warrant Shares so purchased
shall be delivered to the purchaser within a reasonable time (not exceeding 10
days) after the Warrants shall have been exercised as set forth above. If only
a portion of the Warrants shall be exercised, the holder of this Warrant
Certificate shall be entitled to receive a similar warrant certificate of like
tenor and date covering the number of Warrants which shall not have been
exercised.
Unless the Corporation achieves either the First Year Performance Targets
or the Earn-Back Targets For the Second Year Performance Period, the Warrants
represented by this Warrant Certificate shall terminate and automatically be
cancelled, and the holder will surrender the Warrant Certificate for
cancellation upon the request of the Corporation.
This Warrant Certificate is exchangeable upon surrender by its registered
holder at the principal executive offices of the Corporation, for new warrant
certificates of like tenor and date representing in the aggregate the right to
purchase the number of Warrant Shares which may be purchased hereunder.
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<PAGE> 3
The Corporation covenants and agrees that all shares of Common Stock which
may be issued upon the exercise of the rights represented by this Warrant
Certificate will, upon issuance, be validly issued, fully paid and
non-assessable and free from all taxes, liens and charges with respect to the
issue thereof (other than taxes in respect of any transfer occurring
contemporaneously with such issue). The Corporation further covenants and
agrees that it will at all times have authorized and reserved a sufficient
number of shares of Common Stock to provide for the exercise of the rights
represented by this Warrant Certificate.
ARTICLE I
Section 1.1 Adjustment of Number of Shares and Applicable Exercise Price.
(a) The Applicable Exercise Price of the Warrants shall be subject to
adjustment from time to time as follows:
(i) If the number of shares of Common Stock outstanding at any time
after the date hereof is increased by a stock dividend payable in shares
of Common Stock or by a subdivision or split-up of shares of Common
Stock, then, following the record date fixed for the determination of
holders of Common Stock entitled to receive such stock dividend,
subdivision or split-up, the number of Warrants and the Applicable
Exercise Price shall be appropriately adjusted so that the number of
shares of Common Stock issuable on exercise of each Warrant shall be
increased and the Applicable Exercise Price decreased in proportion to
such increase of outstanding shares.
(ii) If the number of shares of Common Stock outstanding at any time
after the date hereof is decreased by a combination of the outstanding
shares of Common Stock, then, following the record date for such
combination, the number of Warrant Shares issuable upon exercise of
Warrants and the Applicable Exercise Price shall be appropriately
adjusted so that the number of shares of Common Stock issuable on
exercise of each Warrant shall be decreased and the Applicable Exercise
Price shall be increased in proportion to such decrease in outstanding
shares.
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<PAGE> 4
(iii) If any consolidation or merger of the Corporation with or into
another entity, or the sale of all or substantially all its assets to
another entity shall be effected, or in case of any capital
reorganization or reclassification of the capital stock of the
Corporation, then lawful and adequate provision shall be made whereby
each holder of Warrants shall thereafter have the right to receive upon
the basis and upon the terms and conditions specified herein and in lieu
of the shares of Common Stock of the Corporation immediately theretofore
receivable upon the conversion of such Warrants, such shares of stock,
securities, interests or assets as may be issued or payable with respect
to or in exchange for a number of outstanding shares of Common Stock
equal to the number of shares of Common Stock immediately theretofore so
receivable by such holder had such consolidation, merger, sale,
reorganization or reclassification not taken place, and in any such case
appropriate provision shall be made with respect to the rights and
interests of the holder to the end that the provisions hereof (including
without limitation provisions for adjustment of the Applicable Exercise
Price) shall thereafter be applicable, as nearly as may be in relation to
any shares of stock, securities or assets thereafter deliverable upon the
exercise of such conversion rights.
(iv) All calculations under this paragraph (a) shall be made to the
nearest cent or to the nearest one hundredth (1/100) of a share, or one
cent ($.01), as the case may be.
(b) In any case in which the provisions of this Article I shall
require that an adjustment shall become effective immediately after a record
date for an event, the Corporation may defer until the occurrence of such event
(x) issuing to the holder of any Warrant exercised after such record date and
before the occurrence of such event, the additional shares of Common Stock
issuable upon such exercise by reason of the adjustment required by such event
over and above the shares of Common Stock issuable upon such exercise before
giving effect to such adjustment and (y) paying to such holder any amount in
cash in lieu of a fractional share of Common Stock pursuant to Section 1.2;
provided, however, that the Corporation shall deliver to such holder a due bill
or other appropriate instrument evidencing such holder's right to receive such
additional shares,
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<PAGE> 5
and such cash, upon the occurrence of the event requiring such adjustment.
(c) Any and all Warrant Shares issued pursuant to the exercise of the
Warrants shall bear a legend reflecting that such Warrant Shares have not been
registered under the Securities Act of 1933, as amended, or under any state
securities law, and cannot be transferred by sale, pledge or otherwise, except
in compliance with such securities laws and all regulations thereunder. As a
condition to the issuance of Warrant Shares, the holder hereof requesting to so
exercise the Warrants shall execute appropriate investment letters and other
documents as may be reasonably required by the Corporation and its counsel to
assure that Warrant Shares are issued only in compliance with applicable
securities law.
(d) In the event the Corporation proposes to take any action of the
types described in this Section 1.1, the Corporation shall give notice to each
holder of Warrants, at the address of such holder shown on the books of the
Corporation, which notice shall specify the record date, if any, with respect to
any such action and the date on which such action is to take place. The notice
shall also set forth the facts with respect thereto reasonably necessary to
indicate the effect of the action (to the extent the effect may be known at the
date of such notice) on the Applicable Exercise Price and the number, kind or
class of shares or other securities or property which shall be deliverable or
purchasable upon the occurrence of such action or deliverable upon exercise of
the Warrants. In the case of any action which would require the fixing of a
record date, notice shall be given at least 10 days prior to the date so fixed,
and in case of all other action, such notice shall be given at least 15 days
prior to taking of such proposed action. Failure to give such notice, or any
defect therein, shall not affect the legality or validity of any such action,
and the holder of these Warrants shall have no right to prevent or delay any
such action by injunction or otherwise.
(e) In the event that at any time as a result of an adjustment made
pursuant to this Section 1.1, the holder of any Warrants thereafter surrendered
or exercised shall become entitled to receive any shares of the Corporation or
another corporation other than shares of Common Stock, the provisions of
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<PAGE> 6
this Section 1.1 and Section 1.2 with respect to the Common Stock shall apply on
like terms to any such other shares.
Section 1.2. No certificates for fractional shares of Common Stock
shall be issued upon the exercise of Warrants, but in lieu thereof the
Corporation shall pay, upon exercise in full of the Warrants represented by
this Warrant Certificate, out of funds legally available therefor, a cash
adjustment in respect of such fractional shares based upon the then effective
Applicable Exercise Price.
ARTICLE II
Section 2.1. If the Corporation at any time after the date hereof,
proposes to register any of its shares of Common Stock under the Securities Act
pursuant to a registration statement and if the Warrants have become
exercisable pursuant to the terms hereof, the Corporation will promptly give
written notice to the registered holder (which may be made by telecopy) hereof
of its intention to do so and, upon the written request of the holder given
within 20 days after receipt of any such notice (which request shall state the
intended method of disposition of such Warrant Shares by such holder), the
Corporation will use its best efforts to cause any or all of the Warrant Shares
held by such holder, or which may be acquired by such holder upon exercise of
the Warrants, to be registered under the Securities Act, all to the extent
requisite to permit the sale or other disposition (in accordance with the
intended methods thereof, as aforesaid) by such holder of such Warrant Shares;
provided, however, that the Corporation may at any time withdraw or cease
proceeding with any such registration if it shall at the same time withdraw or
cease proceeding with the registration of such other Common Stock originally
proposed to be registered; provided, further, that if the Corporation's
underwriters recommend a reduction in the number of shares to be registered,
the number of Warrant Shares which the Corporation is required to register
hereunder on behalf of the holder shall be reduced in the same ratio that the
recommended reduction bears to the total number of shares originally proposed
to be registered. The Corporation need not reduce the number of any shares
which it proposes to sell, in which case any reduction shall be allocated
proportionately among the balance of the shares to be registered, including the
Warrant Shares. Notwithstanding the foregoing, the
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<PAGE> 7
Corporation shall not be required to register the Warrant Shares under this
Section in the event the Corporation shall register securities solely pursuant
to a registration statement on Form S-8 under the Securities Act or subsequent
or equivalent forms or as a result of any amendment to the Form S-3
registration statements currently effective with respect to AccuMed
International, Inc. (formerly "Alamar Biosciences, Inc.").
Section 2.2. All expenses incurred by the Corporation in complying
with this Article II, including, without limitation, all registration and filing
fees (including all expenses incident to filing with the National Association
of Securities Dealers, Inc.), printing expenses, fees and disbursements of
counsel for the Corporation, the expense of any special audits incident to or
required by any such registration, and the expense (including counsel fees) of
complying with securities or Blue Sky laws shall be paid by the Corporation;
provided in no event shall the Corporation be liable for any fees payable to
counsel or accountants retained by any holder hereof or for underwriting fees,
discounts or selling commissions attributable to such Warrant Shares.
Section 2.3. In the event of any registration of Warrant Shares
under the Securities Act pursuant to this Article 2, the Corporation will
indemnify and hold harmless the holder against any losses, claims, damages or
liabilities to which such holder may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained (on the effective date
thereof) in any registration statement under which such Warrant Shares were
registered under the Securities Act, any preliminary prospectus, prospectus
subject to completion or final prospectus contained therein, or any amendment
or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; and will reimburse
such holder for reasonable legal or any other expenses reasonably incurred by
such holder in connection with investigating or defending any such loss,
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<PAGE> 8
claim, damage, liability or action; provided, however, that the Corporation
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
omission or alleged omission made in said registration statement, said
preliminary prospectus, prospectus subject to completion or final prospectus,
or said amendment or supplement in reliance upon and in conformity with written
information furnished to the Corporation through an instrument duly executed by
such holder specifically for use in the preparation thereof.
Section 2.4. In the event of any registration of any Warrant Shares
pursuant to this Article II, the holder will indemnify and hold harmless the
Corporation, its attorneys, accountants, underwriters and each other person, if
any, who controls the Corporation within the meaning of the Securities Act,
against any losses, claims, damages or liabilities, joint or several, to which
the Corporation or such other person may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained (on the effective
date thereof) in any registration statement under which such Warrant Shares
were registered under the Securities Act, any preliminary prospectus,
prospectus subject to completion or final prospectus contained therein, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent and only to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in said registration statement,
said preliminary prospectus, prospectus subject to completion or final
prospectus or said amendment or supplement in reliance upon and in conformity
with written information furnished to the Corporation through an instrument
duly executed by such holder specifically for use in the preparation thereof,
and such holder will reimburse the Corporation and each such other person for
any legal or any other expenses reasonably incurred by the Corporation or such
other person in connection with investigating or defending any such loss,
claim, damage, liability or action.
Section 2.5. In the event of any claim for which indemnity is sought
under Section 2.3 or 2.4, above, the party seeking indemnification shall give
prompt notice of its claim to
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<PAGE> 9
the other party and shall permit the other party to engage counsel and to
defend against the same.
Section 2.6. The holder's right to request registration of Warrant Shares
under this Article II shall cease and terminate as to any particular Warrant
Shares when such Warrant Shares shall have been effectively registered under
the Securities Act. The holder's right to request registration of Warrant
Shares under this Article II shall be transferable in connection with any
disposition of such shares to a transferee holding at least 10,000 of such
Warrant Shares upon the agreement of such transferee to be bound by the terms
hereof; provided, however, if at any time The P. L. Thomas Group, Inc., shall
hold less than 10,000 Warrant Shares as a result of having transferred Warrant
Shares together with registration rights hereunder, its registration rights
with respect to the Warrant Shares it still holds shall terminate. For
purposes of this Warrant Certificate, shares of Common Stock shall cease to be
Warrant Shares when such shares have been sold pursuant to an effective
registration statement under the Securities Act or pursuant to an exemption
from registration thereunder.
ARTICLE III
Section 3.l. If the Corporation is publicly held and so is required to
make filings under the Securities Act or the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated by the Securities and
Exchange Commission thereunder, the Corporation covenants that it will, so long
as any Warrant Shares or Warrants exercisable for Warrant Shares remain
outstanding, file all reports so required to be filed by it or, if it is not
required to file such reports, it will, upon the request of any registered
holder hereof, make publicly available such information as will enable such
holder to sell such Warrant Shares without registration within the limitations
of the exemptions provided by (i) Rule 144 promulgated under the Securities
Act, as such rule may be amended from time to time, or (ii) any similar rule or
regulation hereafter promulgated by the Securities and Exchange Commission.
ARTICLE IV
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Section 4.l. The issue of any stock or other certificate upon the
exercise of the Warrants shall be made without charge to the registered holder
hereof for any transfer or issuance tax in respect of the issue thereof. The
Corporation shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the issue and delivery of any
certificate in a name other than that of the registered holder of this Warrant
Certificate, and the Corporation shall not be required to issue or deliver any
such certificate unless and until the person or persons requesting the issue
thereof shall have paid to the Corporation the amount of such tax or shall have
established to the satisfaction of the Corporation that such tax has been paid.
Section 4.2. If this Warrant Certificate shall be lost, stolen,
mutilated or destroyed, the Corporation shall, on such terms as to indemnify or
otherwise protect the Corporation as the Corporation may in its discretion
impose, issue a new warrant certificate of like denomination, tenor and date as
the Warrant Certificate so lost, stolen, mutilated or destroyed. Any such new
warrant certificate shall constitute an original contractual obligation of the
Corporation, whether or not the allegedly lost, stolen, mutilated or destroyed
Warrant Certificate shall be at any time enforceable by anyone.
Section 4.3. The Corporation may deem and treat the registered
holder of this Warrant Certificate as the absolute owner of this Warrant
Certificate for all purposes and shall not be affected by any notice to the
contrary. This Warrant Certificate and all rights hereunder are transferable
on the books of the Corporation, upon surrender of this Warrant Certificate,
with the form of assignment attached hereto duly executed by the registered
holder hereof or by his attorney duly authorized in writing, to the Corporation
at its principal executive offices and thereupon there shall be issued in the
name of the transferee or transferees, in exchange for this Warrant
Certificate, a new warrant certificate or warrant certificates of like tenor
and date, representing in the aggregate the right to subscribe for and purchase
the number of shares which may be subscribed for and purchased hereunder;
provided that the Corporation shall not be obligated to record or give effect
to any transfer of Warrants, unless the holder shall furnish evidence
reasonably satisfactory to the Corporation that the proposed transfer does not
violate any applicable securities law
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or regulation. References in this Certificate to a "holder" shall include any
transferee or transferees to whom the Warrants may be transferred pursuant to
the foregoing.
Section 4.4. Except as otherwise provided herein, this Warrant
Certificate shall not entitle the holder to any rights of a stockholder of the
Corporation either at law or in equity, including, without limitation, the
right to vote, to receive dividends and other distributions, to exercise any
preemptive rights or to receive any notice of meetings of stockholders or of
any other proceedings of the Corporation.
Section 4.5. Upon the exercise or transfer of any Warrants
hereunder, if the holder has Warrants with different Applicable Exercise
Prices, such holder shall designate the Applicable Exercise Price with respect
to the Warrants exercised or transferred. Such designation shall be recorded
by the Corporation in its books and records and shall be specifically
identified with such Warrants.
Section 4.6. This Warrant Certificate shall, in all events, remain
outstanding and, subject to the Warrants becoming exercisable, shall remain
fully exercisable until it is exercised in its entirety.
Section 4.7. In the event that one or more of the provisions of this
Warrant Certificate shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Warrant Certificate, but this
Warrant Certificate shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
Section 4.8. This Warrant Certificate shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
agreements made and to be entirely performed within such State.
Dated: As of December 29, 1995.
ACCUMED INTERNATIONAL, INC.
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By
--------------------------------
- ---------------------------- Peter P. Gombrich
Chief Executive Officer
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<PAGE> 13
FORM OF EXERCISE
(to be executed by the registered holder hereof)
The undersigned hereby exercises the right to purchase
shares of common stock ("Common Stock") of ACCUMED INTERNATIONAL, INC.,
evidenced by the within Warrant Certificate for an Applicable Exercise Price
of $ per share and herewith makes payment of the purchase price in full of
$ . Kindly issue certificates for shares of Common Stock (and for the
unexercised balance of the Warrants evidenced by the within Warrant
Certificate, if any) in accordance with the instructions given below.
Dated: .
---------------
--------------------------------------
Instructions for registration of stock
- --------------------------------------
Name (Please Print)
Social Security or other identifying Number:
------------------------
Address:
-------------------------------------------
City/State and Zip Code
Instructions for registration of certificate representing
the unexercised balance of Warrants (if any)
- --------------------------------------
Name (Please Print)
Social Security or other identifying Number:
-------------------
Address:
------------------------------------------
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<PAGE> 14
City, State and Zip Code
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<PAGE> 15
TRANSFER OF WARRANT CERTIFICATE
For value received hereby sells,
assigns and transfers unto the rights to purchase
shares of common stock of ACCUMED INTERNATIONAL, INC., at an Applicable
Exercise Price of $ per share, which rights are represented by and subject
to the terms and conditions of the within Warrant Certificate, and does hereby
irrevocably constitute and appoint attorney to transfer
said rights on the books of the within named Corporation, with full power of
substitution in the premises.
----------------------------------
DATED: .
---------------
In the Presence of
------------------------
Social Security and Other Identifying
Number of Assignee:
------------------
Address of Assignee:
- -------------------------------------
City, State and Zip Code
15
<PAGE> 1
EXHIBIT 4.8
WARRANT AGREEMENT dated as of January 25, 1996, by and between AccuMed
International, Inc., a Delaware corporation (the "Company"), and Robert Priddy,
an individual residing in the State of Florida ("Priddy").
W I T N E S S E T H:
WHEREAS, the Company proposes to issue to Priddy a warrant (the "Warrant")
to purchase up to 100,000 shares (the "Warrant Shares") of the Company's Common
Stock, par value $.01 per share (the "Common Stock"); and
WHEREAS, the Warrant issued pursuant to this Agreement is being issued by
the Company to Priddy in consideration for the making of a loan by Priddy to
the Company in principal amount of $250,000 pursuant to that certain Promissory
Note from the Company to Priddy of even date herewith (the "Note").
NOW, THEREFORE, in consideration of the premises, the agreements herein
set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Grant. On the terms and subject to the conditions set forth herein,
and unless this agreement is terminated prior to exercise in accordance with
Section 16 hereof, Priddy is hereby granted the right to purchase, at any time
from January 25, 1996 until 5:00 P.M., New York time, on January 25, 2001 (the
"Warrant Exercise Term"), up to 100,000 Warrant Shares at an exercise price per
share (subject to adjustment as provided in Article 8 hereof) equal to $1.25.
2. Warrant Certificate. The warrant certificate (the "Warrant
Certificate") delivered and to be delivered pursuant to this Agreement shall be
in the form set forth in Exhibit A attached hereto and made a part hereof, with
such appropriate insertions, omissions, substitutions and other variations as
required or permitted by this Agreement.
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<PAGE> 2
3. Exercise of Warrant. The Warrant is exercisable with respect to some
or all of the Warrant Shares (but not as to any fractional shares) by payment
of the applicable Exercise Price per share on the date of exercise in cash or
by check to the order of the Company, or any combination of cash or check.
Upon surrender of the Warrant Certificate with the annexed Form of Election to
Purchase duly executed, together with payment of the Exercise Price (as
hereinafter defined) for the Warrant Shares purchased, at the Company's
principal offices (currently located at 920 N. Franklin Street, Suite 402,
Chicago, Illinois 60610) Priddy (or other registered holder of the Warrant
Certificate) (the "Holder") shall be entitled to receive a certificate or
certificates for the Warrant Shares so purchased. The purchase rights
represented by each Warrant Certificate are exercisable at the option of the
Holder, in whole or in part (but not as to fractional Warrant Shares). In the
case of the purchase of less than all the Warrant Shares purchasable under any
Warrant Certificate, the Company shall cancel said Warrant Certificate upon the
surrender thereof and shall execute and deliver a new Warrant Certificate of
like tenor for the balance of the Warrant Shares purchasable thereunder.
4. Issuance of Certificates.
Upon the exercise of the Warrants, the issuance of certificates for the
Warrant Shares purchased shall be made forthwith (and in any event within five
business days thereafter) without charge to the Holder thereof including,
without limitation, any tax which may be payable in respect of the issuance
thereof, and such certificates shall (subject to the provisions of Article 5
hereof) be issued in the name of, or in such names as may be directed by, the
Holder thereof; provided, however, that 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 any such certificates in a name other than that of the
Holder and the Company shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
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<PAGE> 3
The Warrant Certificate and the certificates representing the Warrant
Shares shall be executed on behalf of the Company by the manual or facsimile
signature of the present or any future Chairman or Vice Chairman of the Board
of Directors or President or Vice President of the Company under its corporate
seal reproduced thereon, attested to by the manual or facsimile signature of
the present or any future Secretary or Assistant Secretary of the Company. The
Warrant Certificate and certificates representing the Warrant Shares shall be
dated the date of execution by the Company upon initial issuance, division,
exchange, substitution or transfer.
Upon exercise, in part or in whole, of the Warrants, certificates
representing the Warrant Shares shall bear a legend substantially similar to
the following:
"The securities represented by this certificate have
not been registered under the Securities Act of 1933,
as amended (the "Act"), and may not be offered or sold
except (i) pursuant to an effective registration
statement under the Act, (ii) to the extent
applicable, pursuant to Rule 144 under the Act (or any
similar rule under such Act relating to the
disposition of securities), or (iii) upon the delivery
by the holder to the Company of an opinion of counsel,
reasonably satisfactory to counsel to the issuer,
stating that an exemption from registration under such
Act is available."
5. Restriction on Transfer of Warrants and Warrant Shares. Priddy, by
his acceptance thereof, covenants and agrees that the Warrant is being acquired
as an investment and not with a view to the distribution thereof.
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<PAGE> 4
6. Price.
6.1. Initial and Adjusted Exercise Price. The initial exercise price
of the Warrant shall be equal to the closing bid price of the Common Stock as
reported by The Nasdaq Stock Market as of the date hereof. The adjusted
exercise price shall be the price which shall result from time to time from any
and all adjustments of the initial exercise price in accordance with the
provisions of Article 8 hereof.
6.2. Exercise Price. The term "Exercise Price" herein shall mean the
initial exercise price or the adjusted exercise price, depending upon the
context.
7. Registration Rights.
7.1. Registration Under the Securities Act of 1933. The Warrant and
the Warrant Shares have not been registered for purposes of public distribution
under the Act.
7.2. Registrable Securities. As used herein the term "Registrable
Security" means the Warrant Shares and any shares of Common Stock issued upon
any stock split, dividend or stock dividend in respect of the Warrant Shares;
provided, however, that with respect to any particular Registrable Security,
such security shall cease to be a Registrable Security when, as of the date of
determination, (i) it has been effectively registered under the Act and
disposed of pursuant thereto, (ii) registration under the Act is no longer
required for subsequent public distribution of such security, or (iii) it has
ceased to be outstanding. The term "Registrable Securities" means any and/or
all of the securities falling within the foregoing definition of a "Registrable
Security." In the event of any merger, reorganization, consolidation,
recapitalization or other change in corporate structure affecting the Common
Stock, such adjustment shall be made in the definition of "Registrable
Security" as is appropriate in order to prevent any dilution or enlargement of
the rights granted pursuant to this Article 7.
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<PAGE> 5
7.3. Piggyback Registration. If, at any time during the seven (7)
years following the date of this Agreement, the Company proposes to prepare and
file any new registration statement or post-effective amendments thereto
covering equity or debt securities of the Company, or any such securities of
the Company held by its shareholders (in any such case, other than in
connection with a merger, acquisition or pursuant to Form S-8 or successor
form) (for purposes of this Article 7, collectively, a "Company Registration
Statement"), it will give written notice (the "Notice") of its intention to do
so by registered mail, at least thirty (30) business days prior to the filing
of each such Company Registration Statement, to all holders of the Registrable
Securities. Upon the written request of such a holder (a "Requesting Holder"),
made within twenty (20) business days after receipt of the Notice, that the
Company include any of the Requesting Holder's Registrable Securities in the
proposed Company Registration Statement, the Company shall, as to each such
Requesting Holder, use its best efforts to effect the registration under the
Act of the Registrable Securities which it has been so requested to register
("Piggyback Registration"), at the Company's sole cost and expense and at no
cost or expense to the Requesting Holders (except as to underwriting discounts
and commissions and costs of individual Requesting Holders' counsel and
professional advisors).
Notwithstanding the provisions of this Section 7.3, the Company shall have
the right at any time after it shall have given written notice pursuant to this
Section 7.3 (irrespective of whether any written request for inclusion of such
securities shall have already been made) to elect not to file any such proposed
Company Registration Statement, or to withdraw the same after the filing but
prior to the effective date thereof.
7.4 Demand Registration Right.
(a) At any time during the Warrant Exercise Term, any "Majority Holder"
(as such term is defined in Section 7.4(c) below) of the Registrable Securities
shall have the right (which right is in addition to the piggyback registration
rights provided for under Section 7.3 hereof), exercisable by written notice to
the Company (the "Demand Registration Request"), to have the Company prepare
and file with the Securities and Exchange Commission (the "Commission"), on one
occasion, at the
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<PAGE> 6
sole expense of the Company (other than the pro rata portion of underwriting
discounts, if any, attributable to the Holder's Registrable Securities and the
expenses of Holder's counsel and advisors), a Registration Statement and such
other documents, including a prospectus, as may be necessary (in the opinion of
both counsel for the Company and counsel for such Majority Holder), in order to
comply with the provisions of the Act, so as to permit a public offering and
sale of the Registrable Securities until such time as (i) the sale of all
Registrable Securities by the holders thereof or (ii) receipt by the holders
thereof of an opinion of Company's counsel that the Registrable Securities may
be immediately publicly sold without registration under the Securities Act.
(b) The Company covenants and agrees to give written notice of any
Demand Registration Request to all holders of the Registrable Securities within
ten (10) days from the date of the Company's receipt of any such Demand
Registration Request. After receiving notice from the Company as provided in
this Section 7.4(b), holders of Registrable Securities may request the Company
to include their Registrable Securities in the Registration Statement to be
filed pursuant to Section 7.4(a) hereof by notifying the Company of their
decision to include such securities within ten (10) days of their receipt of
the Company's notice.
(c) The term "Majority Holder" as used in this Section 7.4 shall means
any holder or any combination of holders of Registrable Securities, if included
in such holders' Registrable Securities are that aggregate number of Warrant
Shares (including Warrant Shares already issued and Warrant Shares issuable
pursuant to the exercise of outstanding warrants) as would constitute a
majority of the aggregate number of Warrant Shares (including Warrant Shares
already issued and Warrant Shares issuable pursuant to the exercise of
outstanding Warrants) included in all of the Registrable Securities.
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<PAGE> 7
7.5 Covenants of the Company With Respect to Registration. The Company
covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the
Company shall file the Registration Statement as expeditiously as possible, but
in no event later than ten (10) business days following receipt of any demand
therefor, shall use its best efforts to have any such Registration Statements
declared effective at the earliest possible time, and shall furnish each holder
of Registrable Securities such number of prospectuses as shall reasonably be
requested.
(b) The Company shall pay all costs, fees and expenses in connection
with all Registration Statements filed pursuant to Sections 7.3 and 7.4 hereof
including, without limitation, the Company's legal and accounting fees,
printing expenses, and blue sky fees and expenses, except for any underwriting
discounts or commissions with respect to the Registrable Securities and except
for fees of counsel and other professional advisors of a holder or group of
holders.
(c) The Company will take all necessary action which may be required in
qualifying or registering the Registrable Securities included in a Registration
Statement for offering and sale under the securities or blue sky laws of such
states as are requested by the holders of such securities, provided that the
Company shall not be obligated to so qualify or register the Registrable
Securities in any state that would require the Company to execute or file any
general consent to service of process or to qualify as a foreign corporation to
do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder of the Registrable
Securities to be sold pursuant to any Registration Statement and any
underwriter or person deemed to be an underwriter under the Act and each
person, if any, who controls such holder or underwriter or person deemed to be
an underwriter within the meaning of Section 15 of the Act or Section 20(a) of
the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all
loss, claim, damage, expense or liability (including all expenses reasonably
incurred in investigating, preparing or defending against any claim
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<PAGE> 8
whatsoever) to which any of them may become subject under the Act, the Exchange
Act or otherwise, arising from any untrue statement of a material fact
contained in a Registration Statement, any other registration statement filed
by the Company under the Act, any post-effective amendment to such registration
statements, or any prospectus included therein required to be filed or
furnished by reason of this Article 7 or caused by 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, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or alleged untrue statement or omission or alleged omission based upon
information furnished or required to be furnished in writing to the Company by
the holder of the Registrable Securities or underwriter expressly for use
therein; which indemnification shall include each person, if any, who controls
any such underwriter within the meaning of the Act and each officer, director,
employee and agent of such underwriter; provided, however, that the Company
shall not be obligated to so indemnify such holder or any such underwriter or
other person referred to above unless such holder or underwriter or other
person, as the case may be, shall at the same time indemnify the Company to the
extent required herein. Each person who may be entitled to indemnification
pursuant to the preceding sentence shall indemnify the Company, its directors,
each officer signing the 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 caused by any untrue statement or
alleged untrue statement of a material fact contained in a Registration
Statement, any registration statement or any prospectus required to be filed or
furnished by reason of this Article 7 or caused by any omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or alleged untrue statement or
omission based upon information furnished in writing to the Company by the
Holder or underwriter expressly for use therein.
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<PAGE> 9
(e) Promptly after receipt of notice of the commencement of any action
in respect of which indemnity may be sought against any indemnifying party
under this Section 7.5, the indemnified party will notify the indemnifying
party in writing of the commencement thereof, and the indemnifying party will,
subject to the provisions hereinafter stated, assume the defense of such action
(including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of expenses) insofar as such action relates to an alleged
liability in respect of which indemnity may be sought against the indemnifying
party. After notice from the indemnifying party of its election to assume the
defense of such claim or action, the indemnifying party shall no longer be
liable to the indemnified party under this Section 7.5 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, that if, in the written opinion of counsel to the indemnified party or
parties, it is advisable for the indemnified party or parties to be represented
by separate counsel, the indemnified party or parties shall have the right to
employ a single counsel to represent the indemnified parties who may be subject
to liability arising out of any claim in respect of which indemnity may be
sought by the indemnified parties thereof against the indemnifying party, in
which event the reasonable fees and expenses of such separate counsel shall be
borne by the indemnifying party. Any party against whom indemnification may be
sought under this Section 7.5 shall not be liable to indemnify any person that
might otherwise be indemnified pursuant hereto for any settlement of any action
effected without such indemnifying party's consent, which consent shall not be
unreasonably withheld.
(f) If for any reason the indemnification provided for in the preceding
subparagraph is held by a court of competent jurisdiction to be unavailable to
an indemnified party with respect to any loss, claim, damage, liability or
expense referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by the indemnified party as a result of such loss, claim,
damage or liability in such proportion as is appropriate to reflect not only
the relative benefits received by the indemnified party and the indemnifying
party, but also the relative fault of the indemnified party and
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<PAGE> 10
the indemnifying party, as well as any other relevant equitable considerations.
(g) Nothing contained in this Agreement shall be construed as requiring
any holder to exercise the Warrant prior to the initial filing of any
registration statement or the effectiveness thereof.
8. Adjustments of Exercise Price and Number of Warrant Shares.
8.1 Adjustment on Occurrence of an Event of Default. In the event of
an occurrence of an Event of Default (as defined in the Note, which definition
is incorporated herein by reference), the Exercise Price shall be reduced to
one-half (rounded to the nearest whole cent) of the then-current exercise
price.
8.2 Adjustment in Number of Warrant Shares. Upon each adjustment of
the Exercise Price pursuant to the provisions of this Article 8 (except for any
adjustment pursuant to Subsection 8.1), the number of Warrant Shares issuable
upon the exercise of the Warrant shall be adjusted to the nearest full Warrant
Share by multiplying a number equal to the Exercise Price in effect immediately
prior to such adjustment by the number of Warrant Shares issuable upon exercise
of the Warrant immediately prior to such adjustment and dividing the product so
obtained by the adjusted Exercise Price.
8.3 Subdivision and Combination. In case the Company shall at any
time subdivide or combine the outstanding shares of Common Stock, the Exercise
Price shall forthwith be proportionately decreased in the case of subdivision
or increased in the case of combination
8.4 Reclassification, Consolidation, Merger, etc. In case of any
reclassification or change of the outstanding shares of Common Stock (other
than a change in par value to no par value, or from no par value to par value,
or as a result of a subdivision or combination), or in the case of any
consolidation of the Company with, or merger of the Company into, another
corporation (other than a consolidation or merger in which the Com-
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<PAGE> 11
pany is the surviving corporation and which does not result in any
reclassification or change of the outstanding shares of Common Stock, except a
change as a result of a subdivision or combination of such shares or a change
in par value, as aforesaid), or in the case of a sale or conveyance to another
corporation of the property of the Company as an entirety, the Holders shall
thereafter have the right to purchase the kind and number of shares of stock
and other securities and property receivable upon such reclassification,
change, consolidation, merger, sale or conveyance as if the Holders were the
owners of the Warrant Shares underlying the Warrant at a price equal to the
product of (x) the number of shares of Common Stock issuable upon conversion of
the Warrant Shares and (y) the Exercise Price prior to the record date for such
reclassification, change, consolidation, merger, sale or conveyance as if such
Holders had exercised the Warrant.
8.5 Redemption of Warrant; Redemption of Warrant Shares.
Notwithstanding anything to the contrary contained in the Warrant or elsewhere,
the Warrant cannot be redeemed by the Company under any circumstances.
8.6 Dividends and Other Distributions with Respect to Outstanding
Securities. In the event that the Company shall at any time prior to the
exercise of the Warrant declare a dividend (other than a dividend consisting
solely of shares of Common Stock or a cash dividend or distribution payable out
of current or retained earnings) or otherwise distribute to its shareholders
any monies, assets, property, rights, evidences of indebtedness, securities
(other than shares of Common Stock), whether issued by the Company or by
another person or entity, or any other thing of value, the Holder of the
Warrant shall thereafter be entitled, in addition to the securities receivable
upon the exercise thereof, to receive, upon the exercise of such Warrant, the
same monies, property, assets, rights, evidences of indebtedness, securities or
any other thing of value that he would have been entitled to receive at the
time of such dividend or distribution. At the time of any such dividend or
distribution, the Company shall make appropriate reserves to ensure the timely
performance of the provisions of this Subsection 8.6.
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8.7 Subscription Rights for Shares of Common Stock or Other
Securities. In the case that the Company or an affiliate of the Company shall
at any time after the date hereof and prior to the exercise of the Warrant
issue any rights to subscribe for shares of Common Stock or any other
securities of the Company or of such affiliate to all the shareholders of the
Company, the Holder of the unexercised Warrant shall be entitled, in addition
to the securities receivable upon the exercise of the Warrant, to receive such
rights at the time such rights are distributed to the other shareholders of the
Company.
9. Exchange and Replacement of Warrant Certificates.
The Warrant Certificate is exchangeable without expense, upon the
surrender hereof by the registered Holder at the principal executive office of
the Company, for a new Warrant Certificate of like tenor and date representing
in the aggregate the right to purchase the same number of Warrant Shares in
such denominations as shall be designated by the Holder thereof at the time of
such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of the Warrant Certificate, and, in
case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Warrant, if
mutilated, the Company will make and deliver a new Warrant Certificate of like
tenor, in lieu thereof.
10. Elimination of Fractional Interests.
The Company shall not be required to issue certificates representing
fractions of Warrant Shares upon the exercise of the Warrant, nor shall it be
required to issue scrip or pay cash in lieu of fractional interests, it being
the intent of the parties that all fractional interests shall be eliminated by
rounding any fraction up to the nearest whole number of Warrant Shares.
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<PAGE> 13
11. Reservation and Listing of Securities.
The Company shall at all times reserve and keep available out of its
authorized shares of Common Stock, solely for the purpose of issuance upon the
exercise of the Warrant, such number of shares of Common Stock as shall be
issuable upon such exercise. The Company covenants and agrees that, upon
exercise of the Warrant and payment of the Exercise Price therefor, all shares
of Common Stock issuable upon such exercise shall be duly and validly issued,
fully paid, non-assessable and not subject to the preemptive rights of any
shareholder. As long as the Warrant shall be outstanding, the Company shall
use its best efforts to cause all Warrant Shares to be listed on or quoted by
NASDAQ or listed on such national securities exchanges as the Company's Common
Stock is listed.
12. Notices to Warrant Holder.
Nothing contained in this Agreement shall be construed as conferring upon
the Holder the right to vote or to consent or to receive notice as a
shareholder in respect of any meetings of shareholders for the election of
directors or any other matter, or as having any rights whatsoever as a
shareholder of the Company. If, however, at any time prior to the expiration
of the Warrants and their exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of its
shares of Common Stock for the purpose of entitling them to receive
a dividend or distribution payable otherwise than in cash, or a
cash dividend or distribution payable otherwise than out of current
or retained earnings, as indicated by the accounting treatment of
such dividend or distribution on the books of the Company; or
(b) the Company shall offer to all the holders of its Common
Stock any additional shares of capital stock of the Company or
securities convertible into or exchangeable for shares of capital
stock of the Company, or any option, right or warrant to subscribe
therefor; or
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<PAGE> 14
(c) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation or merger) or a sale
of all or substantially all of its property, assets and business as
an entirety shall be proposed;
then, in any one or more of said events, the Company shall give written notice
to the Holder of such event at least fifteen (15) days prior to the date fixed
as a record date or the date of closing the transfer books for the
determination of the shareholders entitled to such dividend, distribution,
convertible or exchangeable securities or subscription rights, options or
warrants, or entitled to vote on such proposed dissolution, liquidation,
winding up or sale. Such notice shall specify such record date or the date of
closing the transfer books, as the case may be. Failure to give such notice or
any defect therein shall not affect the validity of any action taken in
connection with the declaration or payment of any such dividend or
distribution, or the issuance of any convertible or exchangeable securities or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
13. Notices.
All notices, requests, consents and other communications hereunder shall
be in writing and shall be deemed to have been duly made when delivered, or
mailed by registered or certified mail, return receipt requested:
(a) If to the registered Holder of the Warrant, to the address
of such Holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth in Section 3
of this Agreement or to such other address as the Company may
designate by notice to the Holder.
14. Supplements and Amendments.
The Company and Priddy may from time to time supplement or amend this
Agreement without the approval of any Holder of the Warrant and/or securities
underlying the Warrant in order to cure any ambiguity, to correct or supplement
any provision contained
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<PAGE> 15
herein which may be defective or inconsistent with any provisions herein, or to
make any other provisions in regard to matters or questions arising hereunder
which the Company and Priddy may deem necessary or desirable and which the
Company and Priddy not to adversely affect the interests of the Holder of the
Warrant.
15. Successors.
All the covenants and provisions of this Agreement by or for the benefit
of the Company and the Holder inure to the benefit of their respective
successors and assigns hereunder.
16. Termination.
This Agreement shall terminate at the close of business on January 25,
2003. Notwithstanding the foregoing, this Agreement will terminate on any
earlier date when the Warrant has been exercised and all securities underlying
the Warrant have been resold to the public; provided, however, that the
provisions of Section 7 shall survive such termination until the close of
business on September 1, 2006 with respect to any outstanding Registrable
Securities.
17. Governing Law.
This Agreement and the Warrant Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of Illinois and for
all purposes shall be construed in accordance with the laws of said State.
18. Benefits of This Agreement.
Nothing in this Agreement shall be construed to give to any person or
corporation other than the Company and Priddy and any other registered Holder
of the Warrant or any securities underlying the Warrant any legal or equitable
right, remedy or claim under this Agreement; and this Agreement shall be for
the sole and exclusive benefit of the Company and Priddy and any such other
Holder.
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<PAGE> 16
19. Counterparts.
This Agreement may be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be an original, and such
counterparts shall together constitute but one and the same instrument.
16
<PAGE> 17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
ACCUMED INTERNATIONAL, INC.
By: /S/ Peter P. Gombrich
-------------------------------
Name: Peter P. Gombrich
Title: Chief Executive Officer
Attest:
/S/ Mark L. Santor
- -------------------------------
Mark L. Santor
Secretary
/S/ Robert Priddy
-------------------------------
Robert Priddy
<PAGE> 1
EXHIBIT 4.9
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE UPON
EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND MAY NOT BE OFFERED OR SOLD EXCEPT (i) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, (ii) TO THE EXTENT APPLICABLE,
PURSUANT TO RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT
RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) UPON THE DELIVERY BY THE
HOLDER TO THE COMPANY OF AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO
COUNSEL FOR THE ISSUER, STATING THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH
ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE AT ANY TIME FROM JANUARY 25, 1996 UNTIL
5:00 P.M., NEW YORK TIME, JANUARY 25, 2001
100,000 Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that Robert Priddy, or registered
assigns, is the registered holder of Warrants to purchase, at any time from
January 25, 1996 until 5:00. New York City time on January 25, 2001
("Expiration Date"), up to 100,000 fully-paid and non-assessable share(s) (the
"Shares") of Common Stock, no par value ("Common Stock"), of AccuMed
International, Inc., a Delaware corporation (the "Company"), at the initial
exercise price, subject to adjustment in certain events (the "Exercise Price"),
of $1.25 per share, upon surrender of this Warrant Certificate and payment of
the Exercise Price at an office or agency of the Company, but subject to the
conditions set forth herein and in the Warrant Agreement dated as of January
25, 1996, by and between the Company and Robert Priddy (the "Warrant
Agreement"). Payment of the Exercise Price may be made in cash, or by check
payable to the order of the Company, or any combination of cash or check.
No Warrant may be exercised after 5:00 P.M., New York City time, on the
Expiration Date, at which time all Warrants
<PAGE> 2
evidenced hereby, unless exercised prior thereto, shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of
this instrument and is hereby referred to in a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Company and the holders (the words "holders" or "holder" meaning the registered
holders or registered holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain events,
the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like
number of Warrants shall be issued to the transferee(s) in exchange for this
Warrant Certificate, subject to the limitations provided herein and in the
Warrant Agreement, without any charge except for any tax, or other governmental
charge imposed in connection therewith.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
<PAGE> 3
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed under its corporate seal.
Dated: January 25, 1996 ACCUMED INTERNATIONAL, INC.
By: /S/ Peter P. Gombrich
------------------------------------
Name: Peter P. Gombrich
Title: Chief Executive Officer
Attest:
/S/ Mark L. Santor
- --------------------------------
Mark L. Santor
Secretary
<PAGE> 1
EXHIBIT 4.10
WARRANT AGREEMENT dated as of December 29, 1995, by and between AccuMed
International, Inc., a Delaware corporation (the "Company"), and Commonwealth
Associates, a New York limited partnership ("Commonwealth").
W I T N E S S E T H:
WHEREAS, the Company proposes to issue to Commonwealth a warrant (the
"Warrant") to purchase up to 104,000 shares (the "Warrant Shares") of the
Company's Common Stock, par value $.01 per share (the "Common Stock"); and
WHEREAS, the Warrant issued pursuant to this Agreement is being issued by
the Company to Commonwealth and/or its designees in consideration for certain
services performed by Commonwealth in connection with the merger of AccuMed,
Inc. with and into the Company.
NOW, THEREFORE, in consideration of the premises, the agreements herein
set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Grant. On the terms and subject to the conditions set forth herein,
and unless this agreement is terminated prior to exercise in accordance with
Section 16 hereof, Commonwealth and/or its designees is hereby granted the
right to purchase, at any time from December 29, 1995 until 5:00 P.M., New York
time, on October 31, 1997 (the "Warrant Exercise Term"), up to 104,000 Shares
of Common Stock at an initial exercise price (subject to adjustment as provided
in Article 8 hereof) of $2.125 per Warrant Share.
2. Warrant Certificate. The warrant certificate (the "Warrant
Certificate") delivered and to be delivered pursuant to this Agreement shall be
in the form set forth in Exhibit A attached hereto and made a part hereof, with
such appropriate insertions, omissions, substitutions and other variations as
required or permitted by this Agreement.
<PAGE> 2
3. Exercise of Warrant. The Warrant initially is exercisable at a price
of $2.125 per Warrant Share, payable in cash or by check to the order of the
Company, or any combination of cash or check, subject to adjustment as provided
in Article 8 hereof. Upon surrender of the Warrant Certificate with the
annexed Form of Election to Purchase duly executed, together with payment of
the Exercise Price (as hereinafter defined) for the Warrant Shares purchased,
at the Company's principal offices, (currently located at 920 N. Franklin
Street, Suite 402, Chicago, illinois 60610) Commonwealth (or other registered
holder of the Warrant Certificate) (the "Holder") shall be entitled to receive
a certificate or certificates for the Warrant Shares so purchased. The
purchase rights represented by each Warrant Certificate are exercisable at the
option of the Holder, in whole or in part (but not as to fractional Warrant
Shares). In the case of the purchase of less than all the Warrant Shares
purchasable under any Warrant Certificate, the Company shall cancel said
Warrant Certificate upon the surrender thereof and shall execute and deliver a
new Warrant Certificate of like tenor for the balance of the Warrant Shares
purchasable thereunder.
4. Issuance of Certificates.
Upon the exercise of the Warrants, the issuance of certificates for the
Warrant Shares purchased shall be made forthwith (and in any event within three
business days thereafter) without charge to the Holder thereof including,
without limitation, any tax which may be payable in respect of the issuance
thereof, and such certificates shall (subject to the provisions of Article 5
hereof) be issued in the name of, or in such names as may be directed by, the
Holder thereof; provided, however, that 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 any such certificates in a name other than that of the
Holder and the Company shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
2
<PAGE> 3
The Warrant Certificate and the certificates representing the Warrant
Shares shall be executed on behalf of the Company by the manual or facsimile
signature of the present or any future Chairman or Vice Chairman of the Board
of Directors or President or Vice President of the Company under its corporate
seal reproduced thereon, attested to by the manual or facsimile signature of
the present or any future Secretary or Assistant Secretary of the Company or
Exective Vice President. The Warrant Certificate and certificates representing
the Warrant Shares shall be dated the date of execution by the Company upon
initial issuance, division, exchange, substitution or transfer.
Upon exercise, in part or in whole, of the Warrants, certificates
representing the Warrant Shares shall bear a legend substantially similar to
the following:
"The Warrants represented by this certificate and the
securities issuable upon exercise thereof have not been
registered under the Securities Act of 1933, as amended (the
"Act"), and may not be offered or sold except (i) pursuant to
an effective registration statement under the Act, (ii) to the
extent applicable, pursuant to Rule 144 under the Act (or any
similar rule under such Act relating to the disposition of
securities), or (iii) upon the delivery by the holder to the
Company of an opinion of counsel, reasonably satisfactory to
counsel to the issuer, stating that an exemption from
registration under such Act is available."
5. Restriction on Transfer of Warrants and Warrant Shares.
Commonwealth, by its acceptance thereof, covenants and agrees that the
Warrant is being acquired as an investment and not with a view to the
distribution thereof.
6. Price.
3
<PAGE> 4
6.1. Initial and Adjusted Exercise Price. The initial exercise price of
the Warrant shall be $2.125 per Warrant Share. The adjusted exercise price
shall be the price which shall result from time to time from any and all
adjustments of the initial exercise price in accordance with the provisions of
Article 8 hereof.
6.2. Exercise Price. The term "Exercise Price" herein shall mean the
initial exercise price or the adjusted exercise price, depending upon the
context.
7. Registration Rights.
7.1. Registration Under the Securities Act of 1933. The Warrant and the
Warrant Shares have not been registered for purposes of public distribution
under the Act.
7.2. Registrable Securities. As used herein the term "Registrable
Security" means the Warrant Shares and any shares of Common Stock issued upon
any stock split, dividend or stock dividend in respect of the Warrant Shares;
provided, however, that with respect to any particular Registrable Security,
such security shall cease to be a Registrable Security when, as of the date of
determination, (i) it has been effectively registered under the Act and
disposed of pursuant thereto, (ii) registration under the Act is no longer
required for subsequent public distribution of such security, or (iii) it has
ceased to be outstanding. The term "Registrable Securities" means any and/or
all of the securities falling within the foregoing definition of a "Registrable
Security." In the event of any merger, reorganization, consolidation,
recapitalization or other change in corporate structure affecting the Common
Stock, such adjustment shall be made in the definition of "Registrable
Security" as is appropriate in order to prevent any dilution or enlargement of
the rights granted pursuant to this Article 7.
7.3. Piggyback Registration. If, at any time during the seven (7) years
following the date of this Agreement, the Company proposes to prepare and file
any new registration statement or post-effective amendments thereto covering
equity or debt securities of the Company, or any such securities of the
4
<PAGE> 5
Company held by its shareholders (in any such case, other than in connection
with a merger, acquisition or pursuant to Form S-8 or successor form) (for
purposes of this Article 7, collectively, a "Company Registration Statement"),
it will give written notice (the "Notice") of its intention to do so by
registered mail, at least thirty (30) business days prior to the filing of each
such Company Registration Statement, to all holders of the Registrable
Securities. Upon the written request of such a holder (a "Requesting Holder"),
made within twenty (20) business days after receipt of the Notice, that the
Company include any of the Requesting Holder's Registrable Securities in the
proposed Company Registration Statement, the Company shall, as to each such
Requesting Holder, use its best efforts to effect the registration under the
Act of the Registrable Securities which it has been so requested to register
("Piggyback Registration"), at the Company's sole cost and expense and at no
cost or expense to the Requesting Holders (except as to underwriting discounts
and commissions and costs of individual Requesting Holders' counsel and
professional advisors).
Notwithstanding the provisions of this Section 7.3, the Company shall have
the right at any time after it shall have given written notice pursuant to this
Section 7.3 (irrespective of whether any written request for inclusion of such
securities shall have already been made) to elect not to file any such proposed
Company Registration Statement, or to withdraw the same after the filing but
prior to the effective date thereof.
7.4 Demand Registration Right.
(a) At any time during the Warrant Exercise Term, any "Majority Holder"
(as such term is defined in Section 7.4(c) below) of the Registrable Securities
shall have the right (which right is in addition to the piggyback registration
rights) provided for under Section 7.3 hereof), exercisable by written notice
to the Company (the "Demand Registration Request"), to have the Company prepare
and file with the Securities and Exchange Commission (the "Commission"), on one
occasion, at the sole expense of the Company (other than the pro rata portion
of underwriting discounts, if any, attributable to the Holder's Registrable
Securities and the expenses of Holder's counsel and
5
<PAGE> 6
advisors), a Registration Statement and such other documents, including a
prospectus, as may be necessary (in the opinion of both counsel for the Company
and counsel for such Majority Holder), in order to comply with the provisions
of the Act, so as to permit a public offering and sale of the Registrable
Securities until such time as (i) the sale of all Registrable Securities by the
holders thereof or (ii) receipt by the holders thereof of an opinion of
Company's counsel that the Registrable Securities may be immediately publicly
sold without registration under the Securities Act.
(b) The Company covenants and agrees to give written notice of any Demand
Registration Request to all holders of the Registrable Securities within ten
(10) days from the date of the Company's receipt of any such Demand
Registration Request. After receiving notice from the Company as provided in
this Section 7.4(b), holders of Registrable Securities may request the Company
to include their Registrable Securities in the Registration Statement to be
filed pursuant to Section 7.4(a) hereof by notifying the Company of their
decision to include such securities within ten (10) days of their receipt of
the Company's notice.
(c) The term "Majority Holder" as used in this Section 7.4 shall means any
holder or any combination of holders of Registrable Securities, if included in
such holders' Registrable Securities are that aggregate number of Warrant
Shares (including Warrant Shares already issued and Warrant Shares issuable
pursuant to the exercise of outstanding warrants) as would constitute a
majority of the aggregate number of Warrant Shares (including Warrant Shares
already issued and Warrant Shares issuable pursuant to the exercise of
outstanding Warrants) included in all of the Registrable Securities.
7.5 Covenants of the Company With Respect to Registration. The Company
covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the
Company shall file the Registration Statement as expeditiously as possible, but
in no event later than ten (10) business days following receipt of any demand
6
<PAGE> 7
therefor, shall use its best efforts to have any such Registration Statements
declared effective at the earliest possible time, and shall furnish each holder
of Registrable Securities such number of prospectuses as shall reasonably be
requested.
(b) The Company shall pay all costs, fees and expenses in connection with
all Registration Statements filed pursuant to Sections 7.3 and 7.4 hereof
including, without limitation, the Company's legal and accounting fees,
printing expenses, and blue sky fees and expenses, except for any underwriting
discounts or commissions with respect to the Registrable Securities and except
for fees of counsel and other professional advisors of a holder or group of
holders.
(c) The Company will take all necessary action which may be required in
qualifying or registering the Registrable Securities included in a Registration
Statement for offering and sale under the securities or blue sky laws of such
states as are requested by the holders of such securities, provided that the
Company shall not be obligated to so qualify or register the Registrable
Securities in any state that would require the Company to execute or file any
general consent to service of process or to qualify as a foreign corporation to
do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder of the Registrable Securities
to be sold pursuant to any Registration Statement and any underwriter or person
deemed to be an underwriter under the Act and each person, if any, who controls
such holder or underwriter or person deemed to be an underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange
Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage,
expense or liability (including all expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which
any of them may become subject under the Act, the Exchange Act or otherwise,
arising from any untrue statement of a material fact contained in a
Registration Statement, any other registration statement filed by the Company
under the Act, any post-effective amendment to such registration
7
<PAGE> 8
statements, or any prospectus included therein required to be filed or
furnished by reason of this Article 7 or caused by 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, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or alleged untrue statement or omission or alleged omission based upon
information furnished or required to be furnished in writing to the Company by
the holder of the Registrable Securities or underwriter expressly for use
therein; which indemnification shall include each person, if any, who controls
any such underwriter within the meaning of the Act and each officer, director,
employee and agent of such underwriter; provided, however, that the Company
shall not be obligated to so indemnify such holder or any such underwriter or
other person referred to above unless such holder or underwriter or other
person, as the case may be, shall at the same time indemnify the Company to the
extent required herein. Each person who may be entitled to indemnification
pursuant to the preceding sentence shall indemnify the Company, its directors,
each officer signing the 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 caused by any untrue statement or
alleged untrue statement of a material fact contained in a Registration
Statement, any registration statement or any prospectus required to be filed or
furnished by reason of this Article 7 or caused by any omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or alleged untrue statement or
omission based upon information furnished in writing to the Company by the
Holder or underwriter expressly for use therein.
(e) Promptly after receipt of notice of the commencement of any action in
respect of which indemnity may be sought against any indemnifying party under
this Section 7.5, the indemnified party will notify the indemnifying party in
writing of the commencement thereof, and the indemnifying party will, subject
to the provisions hereinafter stated, assume the defense of such action
(including the employment of counsel reasonably
8
<PAGE> 9
satisfactory to the indemnified party and the payment of expenses) insofar as
such action relates to an alleged liability in respect of which indemnity may
be sought against the indemnifying party. After notice from the indemnifying
party of its election to assume the defense of such claim or action, the
indemnifying party shall no longer be liable to the indemnified party under
this Section 7.5 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that if, in the written opinion of
counsel to the indemnified party or parties, it is advisable for the
indemnified party or parties to be represented by separate counsel, the
indemnified party or parties shall have the right to employ a single counsel to
represent the indemnified parties who may be subject to liability arising out
of any claim in respect of which indemnity may be sought by the indemnified
parties thereof against the indemnifying party, in which event the reasonable
fees and expenses of such separate counsel shall be borne by the indemnifying
party. Any party against whom indemnification may be sought under this Section
7.5 shall not be liable to indemnify any person that might otherwise be
indemnified pursuant hereto for any settlement of any action effected without
such indemnifying party's consent, which consent shall not be unreasonably
withheld.
(f) If for any reason the indemnification provided for in the preceding
subparagraph is held by a court of competent jurisdiction to be unavailable to
an indemnified party with respect to any loss, claim, damage, liability or
expense referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by the indemnified party as a result of such loss, claim,
damage or liability in such proportion as is appropriate to reflect not only
the relative benefits received by the indemnified party and the indemnifying
party, but also the relative fault of the indemnified party and the
indemnifying party, as well as any other relevant equitable considerations.
(g) Nothing contained in this Agreement shall be construed as requiring
any holder to exercise the
9
<PAGE> 10
Warrant prior to the initial filing of any registration statement or
the effectiveness thereof.
8. Adjustments of Exercise Price and Number of Warrant Shares.
8.1. Computation of Adjusted Price. Except as hereinafter provided, in
case the Company shall at any time after the date hereof issue or sell any
shares of Common Stock (other than the issuances or sales referred to in
Section 8.6 hereof), including shares held in the Company's treasury and shares
of Common Stock issued upon the exercise of any options, rights or warrants to
subscribe for shares of Common Stock (other than the issuances or sales of
Common Stock pursuant to rights to subscribe for such Common Stock distributed
to all the shareholders of the Company and Holders of Warrants pursuant to
Section 8.9 hereof) and shares of Common Stock issued upon the direct or
indirect conversion or exchange of securities for shares of Common Stock, for a
consideration per share less than the Exercise Price in effect immediately
prior to the issuance or sale of such shares or the "Market Price" (as defined
in Section 8.1(iv) hereof) per share of Common Stock or without consideration,
then forthwith upon such issuance or sale, the Exercise Price shall (until
another such issuance or sale) be reduced to the price (calculated to the
nearest full cent) equal to the quotient derived by dividing (A) an amount
equal to the sum of (X) the product of (a) the total number of shares of Common
Stock outstanding immediately prior to such issuance or sale, multiplied by (b)
the lower of (i) the Exercise Price in effect immediately prior to such
issuance or sale or (ii) the "Market Price" (as defined in subsection (vi) of
this Section 8.1 hereof) per share of Common Stock on the date immediately
prior to the issuance or sale of such shares, plus, (Y) the aggregate of the
amount of all consideration, if any, received by the Company upon such issuance
or sale, by (B) the total number of shares of Common Stock outstanding
immediately after such issuance or sale; provided, however, that in no event
shall the Exercise Price be adjusted pursuant to this computation to an amount
in excess of the Exercise Price in effect immediately prior to such
computation, except in the case of a combination of
10
<PAGE> 11
outstanding shares of Common Stock, as provided by Section 8.3 hereof.
For the purposes of any computation to be made in accordance with this
Section 8.1, the following provisions shall be applicable:
(i) In case of the issuance or sale of shares of Common Stock for a
consideration part or all of which shall be cash, the amount of the cash
consideration therefor shall be deemed to be the amount of cash received by the
Company for such shares (or, if shares of Common Stock are offered by the
Company for subscription, the subscription price, or, if such securities shall
be sold to underwriters or dealers for public offering without a subscription
offering, the initial public offering price) before deducting therefrom any
compensation paid or discount allowed in the sale, underwriting or purchase
thereof by underwriters or dealers or others performing similar services, or
any expenses incurred in connection therewith.
(ii) In case of the issuance or sale (otherwise than as a dividend or
other distribution on any stock of the Company) of shares of Common Stock for a
consideration part or all of which shall be other than cash, the amount of the
consideration therefor other than cash shall be deemed to be the value of such
consideration as determined in good faith by the Board of Directors of the
Company.
(iii) Shares of Common Stock issuable by way of dividend or other
distribution on any stock of the Company shall be deemed to have been issued
immediately after the opening of business on the day following the record date
for the determination of shareholders entitled to receive such dividend or
other distribution and shall be deemed to have been issued without
consideration.
(iv) The reclassification of securities of the Company other than
shares of Common Stock into securities including shares of Common Stock shall
be deemed to involve the issuance of such shares of Common Stock for a
consideration other than cash immediately prior to the close of business on the
date
11
<PAGE> 12
fixed for the determination of security holders entitled to receive such
shares, and the value of the consideration allocable to such shares of Common
Stock shall be determined as provided in subsection (ii) of this Section 8.1.
(v) The number of shares of Common Stock at any one time outstanding
shall include the aggregate number of shares issued or issuable upon the
exercise of options, rights, warrants and upon the conversion or exchange of
convertible or exchangeable securities.
(vi) The term "Market Price" at any date shall be deemed to be the last
reported sale price, or, in case no such reported sale takes place on such day,
the average of the last reported sale prices for the last three trading days,
in either case as officially reported by the principal securities exchange on
which the Common Stock is listed or admitted to trading or as reported in the
NASDAQ National Market System, or the NASDAQ Small Cap Market, or, if the
Common Stock is not listed or admitted to trading on any national securities
exchange or quoted on the NASDAQ National Market System or the NASDAQ Small Cap
Market, the closing bid price as furnished by the National Association of
Securities Dealers, Inc. through NASDAQ or similar organization if NASDAQ is no
longer reporting such information, or if the Common Stock is not listed or
admitted to trading on a securities exchange or quoted on NASDAQ, as determined
in good faith by resolution of the Board of Directors of the Company, based on
the best information available to it for the two days immediately preceding
such issuance or sale and the day of such issuance or sale.
8.2. Options, Rights, Warrants and Convertible and Exchangeable
Securities. Except in the case of the Company issuing rights to subscribe for
shares of Common Stock distributed to all the shareholders of the Company and
Holders of Warrants pursuant to Section 8.10 hereof, if the Company shall at
any time after the date hereof issue options, rights or warrants to subscribe
for shares of Common Stock, or issue any securities convertible into or
exchangeable for shares of Common Stock, (i) for a consideration per share less
than (a) the Exercise Price in effect immediately prior to the issuance of such
options, rights or warrants, or such convertible or exchangeable securities, or
(b) the Market Price, or (ii) without consideration, the Exercise Price in
effect immediately prior to the issuance of such options, rights
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<PAGE> 13
or warrants, or such convertible or exchangeable securities, as the case may
be, shall be reduced to a price determined by making a computation in
accordance with the provisions of Section 8.1 hereof, provided that:
(a) The aggregate maximum number of shares of Common Stock, as the case
may be, issuable under all the outstanding options, rights or warrants shall be
deemed to be issued and outstanding at the time all the outstanding options,
rights or warrants were issued, and for a consideration equal to the minimum
purchase price per share provided for in the options, rights or warrants at the
time of issuance, plus the consideration (determined in the same manner as
consideration received on the issue or sale of shares in accordance with the
terms of the Warrants), if any, received by the Company for the options, rights
or warrants, and if no minimum price is provided in the options, rights or
warrants, then the consideration shall be equal to zero; provided, however,
that upon the expiration or other termination of the options, rights or
warrants, if any thereof shall not have been exercised, the number of
shares of Common Stock deemed to be issued and outstanding pursuant to this
subsection (a) (and for the purposes of subsection (v) of Section 8.1 hereof)
shall be reduced by such number of shares as to which options, warrants and/or
rights shall have expired or terminated unexercised, and such number of shares
shall no longer be deemed to be issued and outstanding, and the Exercise Price
then in effect shall forthwith be readjusted and thereafter be the price which
it would have been had adjustment been made on the basis of the issuance only
of shares actually issued or issuable upon the exercise of those options,
rights or warrants as to which the exercise rights shall not have expired or
terminated unexercised.
(b) The aggregate maximum number of shares of Common Stock issuable upon
conversion or exchange of any convertible or exchangeable securities shall be
deemed to be issued and outstanding at the time of issuance of such securities,
and for a consideration equal to the consideration (determined in the same
manner as consideration received on the
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<PAGE> 14
issue or sale of shares of Common Stock in accordance with the terms of the
Warrants) received by the Company for such securities, plus the minimum
consideration, if any, receivable by the Company upon the conversion or
exchange thereof; provided, however, that upon the termination of the right to
convert or exchange such convertible or exchangeable securities (whether by
reason of redemption or otherwise), the number of shares deemed to be issued
and outstanding pursuant to this subsection (b) (and for the purpose of
subsection (v) of Section 8.1 hereof) shall be reduced by such number of shares
as to which the conversion or exchange rights shall have expired or terminated
unexercised, and such number of shares shall no longer be deemed to be issued
and outstanding and the Exercise Price then in effect shall forthwith be
readjusted and thereafter be the price which it would have been had adjustment
been made on the basis of the issuance only of the shares actually issued or
issuable upon the conversion or exchange of those convertible or exchangeable
securities as to which the conversion or exchange rights shall not have expired
or terminated unexercised.
(c) If any change shall occur in the price per share provided for in
any of the options, rights or warrants referred to in subsection (a) of
this Section 8.2, or in the price per share at which the securities referred to
in subsection (b) of this Section 8.2 are convertible or exchangeable, the
options, rights or warrants or conversion or exchange rights, as the case may
be, shall be deemed to have expired or terminated on the date when such price
change became effective in respect of shares not theretofore issued pursuant to
the exercise or conversion or exchange thereof, and the Company shall be deemed
to have issued upon such date new options, rights or warrants or convertible or
exchangeable securities at the new price in respect of the number of shares
issuable upon the exercise of such options, rights or warrants or the
conversion or exchange of such convertible or exchangeable securities.
8.3. Subdivision and Combination. In case the Company shall at any time
subdivide or combine the outstanding shares of Common Stock, the Exercise Price
shall forthwith be proportionately decreased in the case of subdivision or
increased in the case of combination.
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<PAGE> 15
8.4. Adjustment in Number of Warrant Shares. Upon each adjustment of the
Exercise Price pursuant to the provisions of this Article 8, the number of
Warrant Shares issuable upon the exercise of the Warrant shall be adjusted to
the nearest full Warrant Share by multiplying a number equal to the Exercise
Price in effect immediately prior to such adjustment by the number of Warrant
Shares issuable upon exercise of the Warrant immediately prior to such
adjustment and dividing the product so obtained by the adjusted Exercise Price.
8.5. Reclassification, Consolidation, Merger, etc. In case of any
reclassification or change of the outstanding shares of Common Stock (other
than a change in par value to no par value, or from no par value to par value,
or as a result of a subdivision or combination), or in the case of any
consolidation of the Company with, or merger of the Company into, another
corporation (other than a consolidation or merger in which the Company is the
surviving corporation and which does not result in any reclassification or
change of the outstanding shares of Common Stock, except a change as a result
of a subdivision or combination of such shares or a change in par value, as
aforesaid), or in the case of a sale or conveyance to another corporation of
the property of the Company as an entirety, the Holders shall thereafter have
the right to purchase the kind and number of shares of stock and other
securities and property receivable upon such reclassification, change,
consolidation, merger, sale or conveyance as if the Holders were the owners of
the Warrant Shares underlying the Warrant at a price equal to the product of
(x) the number of shares of Common Stock issuable upon conversion of the
Warrant Shares and (y) the Exercise Price prior to the record date for such
reclassification, change, consolidation, merger, sale or conveyance as if such
Holders had exercised the Warrant.
8.6. No Adjustment of Exercise Price in Certain Cases. Notwithstanding
anything herein to the contrary, no adjustment of the Exercise Price shall be
made:
(a) Upon the issuance or sale of the Warrant or the Warrant
Shares; or
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<PAGE> 16
(b) Upon (i) the issuance of options pursuant to the Company's
employee stock option plans in effect on the date hereof or the
issuance or sale by the Company of any shares of Common Stock
pursuant to the exercise of any such options, or (ii) the issuance or
sale by the Company of any shares of Common Stock pursuant to the
exercise of any options or warrants previously issued and outstanding
on the date hereof; or
(c) If the amount of said adjustment shall be less than one cent
($0.01) per Share, provided, however, that in such case any adjustment
that would otherwise be required then to be made shall be carried
forward and shall be made at the time of and together with the next
subsequent adjustment which, together with any adjustment so carried
forward, shall amount to at least one cent ($0.01) per Share.
8.7. Redemption of Warrant; Redemption of Warrant Shares.
Notwithstanding anything to the contrary contained in the Warrant or elsewhere,
the Warrant cannot be redeemed by the Company under any circumstances.
8.8. Dividends and Other Distributions with Respect to Outstanding
Securities. In the event that the Company shall at any time prior to the
exercise of the Warrant declare a dividend (other than a dividend consisting
solely of shares of Common Stock or a cash dividend or distribution payable out
of current or retained earnings) or otherwise distribute to its shareholders
any monies, assets, property, rights, evidences of indebtedness, securities
(other than shares of Common Stock), whether issued by the Company or by
another person or entity, or any other thing of value, the Holder of the
Warrant shall thereafter be entitled, in addition to the securities receivable
upon the exercise thereof, to receive, upon the exercise of such Warrant, the
same monies, property, assets, rights, evidences of indebtedness, securities or
any other thing of value that he would have been entitled to receive at the
time of such dividend or distribution. At the time of any such dividend or
distribution, the Company shall make appropriate reserves to
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<PAGE> 17
ensure the timely performance of the provisions of this Subsection 8.8.
8.9. Subscription Rights for Shares of Common Stock or Other Securities.
In the case that the Company or an affiliate of the Company shall at any time
after the date hereof and prior to the exercise of the Warrant issue any rights
to subscribe for shares of Common Stock or any other securities of the Company
or of such affiliate to all the shareholders of the Company, the Holder of the
unexercised Warrant shall be entitled, in addition to the securities receivable
upon the exercise of the Warrant, to receive such rights at the time such
rights are distributed to the other shareholders of the Company.
9. Exchange and Replacement of Warrant Certificates.
The Warrant Certificate is exchangeable without expense, upon the
surrender hereof by the registered Holder at the principal executive office of
the Company, for a new Warrant Certificate of like tenor and date representing
in the aggregate the right to purchase the same number of Warrant Shares in
such denominations as shall be designated by the Holder thereof at the time of
such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of the Warrant Certificate, and, in
case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Warrant, if
mutilated, the Company will make and deliver a new Warrant Certificate of like
tenor, in lieu thereof.
10. Elimination of Fractional Interests.
The Company shall not be required to issue certificates representing
fractions of Warrant Shares upon the exercise of the Warrant, nor shall it be
required to issue scrip or pay cash in lieu of fractional interests, it being
the intent of the parties that all fractional interests shall be eliminated by
rounding any fraction up to the nearest whole number of Warrant Shares.
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<PAGE> 18
11. Reservation and Listing of Securities.
The Company shall at all times reserve and keep available out of its
authorized shares of Common Stock, solely for the purpose of issuance upon the
exercise of the Warrant, such number of shares of Common Stock as shall be
issuable upon such exercise. The Company covenants and agrees that, upon
exercise of the Warrant and payment of the Exercise Price therefor, all shares
of Common Stock issuable upon such exercise shall be duly and validly issued,
fully paid, non-assessable and not subject to the preemptive rights of any
shareholder. As long as the Warrant shall be outstanding, the Company shall
use its best efforts to cause all Warrant Shares to be listed on or quoted by
NASDAQ or listed on such national securities exchanges as the Company's Common
Stock is listed.
12. Notices to Warrant Holder.
Nothing contained in this Agreement shall be construed as conferring upon
the Holder the right to vote or to consent or to receive notice as a
shareholder in respect of any meetings of shareholders for the election of
directors or any other matter, or as having any rights whatsoever as a
shareholder of the Company. If, however, at any time prior to the expiration
of the Warrants and their exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of its shares
of Common Stock for the purpose of entitling them to receive a dividend
or distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained
earnings, as indicated by the accounting treatment of such dividend or
distribution on the books of the Company; or
(b) the Company shall offer to all the holders of its Common
Stock any additional shares of capital stock of the
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<PAGE> 19
Company or securities convertible into or exchangeable for
shares of capital stock of the Company, or any option, right or warrant
to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation or merger) or a sale of
all or substantially all of its property, assets and business as an
entirety shall be proposed;
then, in any one or more of said events, the Company shall give written notice
to the Holder of such event at least fifteen (15) days prior to the date fixed
as a record date or the date of closing the transfer books for the
determination of the shareholders entitled to such dividend, distribution,
convertible or exchangeable securities or subscription rights, options or
warrants, or entitled to vote on such proposed dissolution, liquidation,
winding up or sale. Such notice shall specify such record date or the date of
closing the transfer books, as the case may be. Failure to give such notice or
any defect therein shall not affect the validity of any action taken in
connection with the declaration or payment of any such dividend or
distribution, or the issuance of any convertible or exchangeable securities or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
13. Notices.
All notices, requests, consents and other communications hereunder shall
be in writing and shall be deemed to have been duly made when delivered, or
mailed by registered or certified mail, return receipt requested:
(a) If to the registered Holder of the Warrant, to the address of
such Holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth in Section 3 of
this Agreement or to such other address as the Company may designate by
notice to the Holder.
14. Supplements and Amendments.
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<PAGE> 20
The Company and Commonwealth may from time to time supplement or amend
this Agreement without the approval of any Holder of the Warrant and/or
securities underlying the Warrant in order to cure any ambiguity, to correct or
supplement any provision contained herein which may be defective or
inconsistent with any provisions herein, or to make any other provisions in
regard to matters or questions arising hereunder which the Company and
Commonwealth may deem necessary or desirable and which the Company and the
Underwriter deem not to adversely affect the interests of the Holder of the
Warrant.
15. Successors.
All the covenants and provisions of this Agreement by or for the benefit
of the Company and the Holder inure to the benefit of their respective
successors and assigns hereunder.
16. Termination.
This Agreement shall terminate at the close of business on October 31,
1997. Notwithstanding the foregoing, this Agreement will terminate on any
earlier date when the Warrant has been exercised and all securities underlying
the Warrant have been resold to the public; provided, however, that the
provisions of Section 7 shall survive such termination until the close of
business on October 31, 1997 with respect to any outstanding Registrable
Securities.
17. Governing Law.
This Agreement and the Warrant Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of New York and for
all purposes shall be construed in accordance with the laws of said State.
18. Jurisdiction; Consent to Service of Process.
(a) The Company hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any New York State court
or Federal court of the United States of America sitting in the Borough of
Manhattan,
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<PAGE> 21
City of New York, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment hereon. The Company and
Commonwealth, by their acceptance of this Agreement, hereby irrevocably and
unconditionally agree that all claims in respect of any such action or
proceeding may be heard and determined in such New York State court or, to the
extent permitted by law, in such Federal court. Each such party also agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any right that
the Holder may otherwise have to bring any action or proceeding relating to
this Agreement against the Company or its properties in the courts of any
jurisdiction.
(b) The Company hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any New York State or Federal
court. The Company and Commonwealth, by their acceptance of this Agreement,
hereby irrevocably waive, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(c) The Company and Commonwealth, by their acceptance hereof, irrevocably
consent to service of process in the manner provided for notices in Section 13.
Nothing in this Agreement will affect the right of any party to this Agreement
to serve process in any other manner permitted by law.
19. Benefits of This Agreement.
Nothing in this Agreement shall be construed to give to any person or
corporation other than the Company and Commonwealth and any other registered
Holder of the Warrant or any securities underlying the Warrant any legal or
equitable right, remedy or claim under this Agreement; and this Agreement shall
be for the sole and exclusive benefit of the Company and Commonwealth and any
such other Holder.
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<PAGE> 22
20. Counterparts.
This Agreement may be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be an original, and such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
[SEAL] ACCUMED INTERNATIONAL, INC.
By:__________________________________
Name: Peter P. Gombrich
Title: Chief Executive Officer
Attest:
_______________________
Kenneth D. Miller
President of the
Cytopathology Division
COMMONWEALTH ASSOCIATES
By: Commonwealth Associates Management
Company, Inc., General Partner
By:________________________________
Name:
Title:
EXHIBIT "A"
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<PAGE> 23
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE UPON
EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND MAY NOT BE OFFERED OR SOLD EXCEPT (I) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, (II) TO THE EXTENT APPLICABLE,
PURSUANT TO RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT
RELATING TO THE DISPOSITION OF SECURITIES), OR (III) UPON THE DELIVERY BY THE
HOLDER TO THE COMPANY OF AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO
COUNSEL FOR THE ISSUER, STATING THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH
ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE AT ANY TIME FROM DECEMBER 29, 1995 UNTIL
5:00 P.M., NEW YORK TIME, OCTOBER 31, 1997
______ Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that _______________ ("________"), or
registered assigns, is the registered holder of Warrants to purchase, at any
time from December 29, 1995, until 5:00 P.M. New York City time on October 31,
1997 ("Expiration Date"), up to ______ fully-paid and non-assessable shares
(the "Shares") of Common Stock, par value $0.01 per share ("Common Stock"), of
AccuMed International, Inc., a Delaware corporation (the "Company"), at the
initial exercise price, subject to adjustment in certain events (the "Exercise
Price"), of $2.125 per share, upon surrender of this Warrant Certificate and
payment of the Exercise Price at an office or agency of the Company, but
subject to the conditions set forth herein and in the Warrant Agreement dated
as of December 29, 1995, by and between the Company and Commonwealth Associates
(the "Warrant Agreement"). Payment of the Exercise Price may be made in cash,
or by check payable to the order of the Company, or any combination of cash or
check.
No Warrant may be exercised after 5:00 P.M., New York City time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, shall thereafter be void.
<PAGE> 24
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of
this instrument and is hereby referred to in a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Company and the holders (the words "holders" or "holder" meaning the registered
holders or registered holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain events,
the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like
number of Warrants shall be issued to the transferee(s) in exchange for this
Warrant Certificate, subject to the limitations provided herein and in
the Warrant Agreement, without any charge except for any tax, or other
governmental charge imposed in connection therewith.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
<PAGE> 25
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed under its corporate seal.
Dated: December 29, 1995 ACCUMED INTERNATIONAL, INC.
[SEAL] By:___________________________
Name: Peter P. Gombrich
Title: Chief Executive Officer
Attest:
________________________________________
Kenneth D. Miller
President of the Cytopathology Division
<PAGE> 1
EXHIBIT 4.11
WARRANT AGREEMENT dated as of March 14 ,1996 by and between AccuMed
International, Inc., a Delaware corporation (the "Company"), and the person
listed on the signature page hereof ("Purchaser").
W I T N E S S E T H:
WHEREAS, the Company proposes to issue to Purchaser a warrant (the
"Warrant") to purchase shares (the "Warrant Shares") of the Company's Common
Stock, par value $.01 per share (the "Common Stock"); and
WHEREAS, the Warrant issued pursuant to this Agreement is being issued by
the Company to Purchaser as part of a purchase of Units consisting of (i) a
promissory note of RADCO, Ventures, Inc. ("RADCO") , (ii) common stock of RADCO
and (iii) warrants of the Company.
NOW, THEREFORE, in consideration of the premises, the agreements herein
set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Grant. On the terms and subject to the conditions set forth herein, and
unless this agreement is terminated prior to exercise in accordance with Section
16 hereof, Purchaser is hereby granted the right to purchase, at any time from
March 14, 1996 until 5:00 P.M., New York time, on March 14, 1999 (the "Warrant
Exercise Term"), up to Warrant Shares at an exercise price per
share (subject to adjustment as provided in Article 8 hereof) equal to $3.42.
2. Warrant Certificate. The warrant certificate (the "Warrant
Certificate") delivered and to be delivered pursuant to this Agreement shall be
in the form set forth in Exhibit A attached hereto and made a part hereof, with
such appropriate insertions, omissions, substitutions and other variations as
required or permitted by this Agreement.
3. Exercise of Warrant. The Warrant is exercisable with respect to some
or all of the Warrant Shares (but not as to any fractional shares) by payment
of the applicable Exercise Price per share on the date of exercise in cash or
by check to the order of the Company, or any combination of cash or check. Upon
surrender of the Warrant Certificate with the annexed Form of Election to
Purchase duly executed, together with payment of the Exercise Price (as
hereinafter defined) for the Warrant Shares purchased, at the Company's
principal offices (currently located at 920 N. Franklin Street, Suite 402,
Chicago, Illinois 60610) Purchaser (or other registered holder of the Warrant
Certificate) (the "Holder") shall be entitled to receive a certificate or
certificates for the Warrant Shares so purchased. The purchase rights
represented by each Warrant Certificate are exercisable at the option of the
Holder, in whole or in part (but not as to fractional Warrant Shares).
<PAGE> 2
In the case of the purchase of less than all the Warrant Shares
purchasable under any Warrant Certificate, the Company shall cancel said
Warrant Certificate upon the surrender thereof and shall execute and deliver a
new Warrant Certificate of like tenor for the balance of the Warrant Shares
purchasable thereunder.
4. Issuance of Certificates.
Upon the exercise of the Warrants, the issuance of certificates for the
Warrant Shares purchased shall be made forthwith (and in any event within five
business days thereafter) without charge to the Holder thereof including,
without limitation, any tax which may be payable in respect of the issuance
thereof, and such certificates shall (subject to the provisions of Article 5
hereof) be issued in the name of, or in such names as may be directed by, the
Holder thereof; provided, however, that 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 any such certificates in a name other than that of the
Holder and the Company shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
The Warrant Certificate and the certificates representing the Warrant
Shares shall be executed on behalf of the Company by the manual or facsimile
signature of the present or any future Chairman or Vice Chairman of the Board
of Directors or President or Vice President of the Company under its corporate
seal reproduced thereon, attested to by the manual or facsimile signature of
the present or any future Secretary or Assistant Secretary of the Company. The
Warrant Certificate and certificates representing the Warrant Shares shall be
dated the date of execution by the Company upon initial issuance, division,
exchange, substitution or transfer.
Upon exercise, in part or in whole, of the Warrants, certificates
representing the Warrant Shares shall bear a legend substantially similar to
the following:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), and may not be offered or sold except (i) pursuant to an
effective registration statement under the Act, (ii) to the extent
applicable, pursuant to Rule 144 under the Act (or any similar rule
under such Act relating to the disposition of securities), or (iii)
upon the delivery by the holder to the Company of an opinion of
counsel, reasonably satisfactory to counsel to the issuer,
stating that an exemption from registration under such Act is
available."
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<PAGE> 3
5. Restriction on Transfer of Warrants and Warrant Shares.
Purchaser, by his acceptance thereof, covenants and agrees that the
Warrant is being acquired as an investment and not with a view to the
distribution thereof.
6. Price.
6.1. Initial and Adjusted Exercise Price. The initial
exercise price of the Warrant shall be equal to the closing bid price of the
Common Stock as reported by The Nasdaq Stock Market as of the date hereof. The
adjusted exercise price shall be the price which shall result from time to time
from any and all adjustments of the initial exercise price in accordance with
the provisions of Article 8 hereof.
6.2. Exercise Price. The term "Exercise Price" herein shall mean
the initial exercise price or the adjusted exercise price, depending upon the
context.
7. Registration Rights.
7.1. Registration Under the Securities Act of 1933. The
Warrant and the Warrant Shares have not been registered for purposes of public
distribution under the Act.
7.2. Registrable Securities. As used herein the term
"Registrable Security" means the Warrant Shares and any shares of Common Stock
issued upon any stock split, dividend or stock dividend in respect of the
Warrant Shares; provided, however, that with respect to any particular
Registrable Security, such security shall cease to be a Registrable Security
when, as of the date of determination, (i) it has been effectively registered
under the Act and disposed of pursuant thereto, (ii) registration under the Act
is no longer required for subsequent public distribution of such security, or
(iii) it has ceased to be outstanding. The term "Registrable Securities" means
any and/or all of the securities falling within the foregoing definition of a
"Registrable Security." In the event of any merger, reorganization,
consolidation, recapitalization or other change in corporate structure
affecting the Common Stock, such adjustment shall be made in the definition of
"Registrable Security" as is appropriate in order to prevent any dilution or
enlargement of the rights granted pursuant to this Article 7.
7.3. Piggyback Registration. If, at any time during the four (4)
years following the date of this Agreement, the Company proposes to prepare and
file any new registration statement or post-effective amendments
thereto covering equity or debt securities of the Company, or any such
securities of the Company held by its shareholders (in any such case, other
than in connection with a merger, acquisition or pursuant to Form S-8 or
successor form) (for purposes of this Article 7, collectively, a "Company
Registration Statement"), it will give written notice (the "Notice") of its
intention to do so by registered mail, at least thirty (30) business days prior
to the filing of each such Company Registration Statement, to all holders of
the Registrable Securities. Upon the written request of such a
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<PAGE> 4
holder (a "Requesting Holder"), made within twenty (20) business days after
receipt of the Notice, that the Company include any of the Requesting Holder's
Registrable Securities in the proposed Company Registration Statement, the
Company shall, as to each such Requesting Holder, use its best efforts to
effect the registration under the Act of the Registrable Securities which it
has been so requested to register ("Piggyback Registration"), at the Company's
sole cost and expense and at no cost or expense to the Requesting Holders
(except as to underwriting discounts and commissions and costs of individual
Requesting Holders' counsel and professional advisors).
Notwithstanding the provisions of this Section 7.3, the Company shall have
the right at any time after it shall have given written notice pursuant to this
Section 7.3 (irrespective of whether any written request for inclusion of such
securities shall have already been made) to elect not to file any such proposed
Company Registration Statement, or to withdraw the same after the filing but
prior to the effective date thereof.
7.4 Covenants of the Company With Respect to Registration. The
Company covenants and agrees as follows:
(a) The Company shall pay all costs, fees and expenses in
connection with all Registration Statements filed pursuant to Section 7.3
hereof including, without limitation, the Company's legal and accounting fees,
printing expenses, and blue sky fees and expenses, except for any underwriting
discounts or commissions with respect to the Registrable Securities and except
for fees of counsel and other professional advisors of a holder or group of
holders.
(b) The Company will take all necessary action which may be
required in qualifying or registering the Registrable Securities included
in a Registration Statement for offering and sale under the securities or blue
sky laws of such states as are requested by the holders of such securities,
provided that the Company shall not be obligated to so qualify or register the
Registrable Securities in any state that would require the Company to execute
or file any general consent to service of process or to qualify as a foreign
corporation to do business under the laws of any such jurisdiction.
(c) The Company shall indemnify any holder of the Registrable
Securities to be sold pursuant to any Registration Statement and any
underwriter or person deemed to be an underwriter under the Act and each
person, if any, who controls such holder or underwriter or person deemed to be
an underwriter within the meaning of Section 15 of the Act or Section 20(a) of
the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all
loss, claim, damage, expense or liability (including all expenses reasonably
incurred in investigating, preparing or defending against any claim whatsoever)
to which any of them may become subject under the Act, the Exchange Act or
otherwise, arising from any untrue statement of a material fact contained in a
Registration Statement, any other registration statement filed by the Company
under the Act, any post-effective amendment to such registration statements, or
any prospectus included therein required to be filed or furnished by reason of
this Article 7 or caused by any omission or
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<PAGE> 5
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or alleged untrue statement or omission or alleged omission
based upon information furnished or required to be furnished in writing to
the Company by the holder of the Registrable Securities or underwriter
expressly for use therein; which indemnification shall include each person, if
any, who controls any such underwriter within the meaning of the Act and each
officer, director, employee and agent of such underwriter; provided, however,
that the Company shall not be obligated to so indemnify such holder or any such
underwriter or other person referred to above unless such holder or underwriter
or other person, as the case may be, shall at the same time indemnify the
Company to the extent required herein. Each person who may be entitled to
indemnification pursuant to the preceding sentence shall indemnify the Company,
its directors, each officer signing the 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 caused by any
untrue statement or alleged untrue statement of a material fact contained in a
Registration Statement, any registration statement or any prospectus required
to be filed or furnished by reason of this Article 7 or caused by any omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or alleged untrue
statement or omission based upon information furnished in writing to the
Company by the Holder or underwriter expressly for use therein.
(d) Promptly after receipt of notice of the commencement of any action in
respect of which indemnity may be sought against any indemnifying party under
this Section 7.4, the indemnified party will notify the indemnifying party in
writing of the commencement thereof, and the indemnifying party will, subject
to the provisions hereinafter stated, assume the defense of such action
(including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of expenses) insofar as such action relates to an alleged
liability in respect of which indemnity may be sought against the indemnifying
party. After notice from the indemnifying party of its election to assume the
defense of such claim or action, the indemnifying party shall no longer be
liable to the indemnified party under this Section 7.4 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, that if, in the written opinion of counsel to the indemnified party or
parties, it is advisable for the indemnified party or parties to be represented
by separate counsel, the indemnified party or parties shall have the right to
employ a single counsel to represent the indemnified parties who may be subject
to liability arising out of any claim in respect of which indemnity may be
sought by the indemnified parties thereof against the indemnifying party, in
which event the reasonable fees and expenses of such separate counsel shall be
borne by the indemnifying party. Any party against whom indemnification may be
sought under this Section 7.4 shall not be liable to indemnify any person that
might otherwise be indemnified pursuant hereto for any settlement of any action
5
<PAGE> 6
effected without such indemnifying party's consent, which consent shall
not be unreasonably withheld.
(e) If for any reason the indemnification provided for in the
preceding subparagraph is held by a court of competent jurisdiction to be
unavailable to an indemnified party with respect to any loss, claim, damage,
liability or expense referred to therein, then the indemnifying party, in lieu
of indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by the indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect not
only the relative benefits received by the indemnified party and the
indemnifying party, but also the relative fault of the indemnified party and
the indemnifying party, as well as any other relevant equitable considerations.
(f) Nothing contained in this Agreement shall be construed as
requiring any holder to exercise the Warrant prior to the initial filing
of any registration statement or the effectiveness thereof.
8. Adjustments of Exercise Price and Number of Warrant Shares.
8.1 Adjustment in Number of Warrant Shares. Upon each adjustment of the
Exercise Price pursuant to the provisions of this Article 8, the number of
Warrant Shares issuable upon the exercise of the Warrant shall be adjusted to
the nearest full Warrant Share by multiplying a number equal to the Exercise
Price in effect immediately prior to such adjustment by the number of Warrant
Shares issuable upon exercise of the Warrant immediately prior to such
adjustment and dividing the product so obtained by the adjusted Exercise Price.
8.2 Subdivision and Combination. In case the Company shall at any time
subdivide or combine the outstanding shares of Common Stock, the Exercise Price
shall forthwith be proportionately decreased in the case of subdivision or
increased in the case of combination.
8.3 Reclassification, Consolidation, Merger, etc. In case of any
reclassification or change of the outstanding shares of Common Stock (other
than a change in par value to no par value, or from no par value to par value,
or as a result of a subdivision or combination), or in the case of any
consolidation of the Company with, or merger of the Company into, another
corporation (other than a consolidation or merger in which the Company is the
surviving corporation and which does not result in any reclassification or
change of the outstanding shares of Common Stock, except a change as a result
of a subdivision or combination of such shares or a change in par value, as
aforesaid), or in the case of a sale or conveyance to another corporation of
the property of the Company as an entirety, the Holders shall thereafter have
the right to purchase the kind and number of shares of stock and other
securities and property receivable upon such reclassification, change,
consolidation, merger, sale or conveyance as if the Holders were the owners of
the Warrant Shares underlying the Warrant at a price equal to the product of
(x) the number of shares of Common Stock issuable upon conversion of the
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<PAGE> 7
Warrant Shares and (y) the Exercise Price prior to the record date for
such reclassification, change, consolidation, merger, sale or conveyance as if
such Holders had exercised the Warrant.
8.4 Redemption of Warrant; Redemption of Warrant Shares.
Notwithstanding anything to the contrary contained in the Warrant or
elsewhere, the Warrant cannot be redeemed by the Company under any
circumstances.
8.5 Dividends and Other Distributions with Respect to
Outstanding Securities. In the event that the Company shall at any time prior to
the exercise of the Warrant declare a dividend (other than a dividend
consisting solely of shares of Common Stock or a cash dividend or distribution
payable out of current or retained earnings) or otherwise distribute to its
shareholders any monies, assets, property, rights, evidences of indebtedness,
securities (other than shares of Common Stock), whether issued by the Company
or by another person or entity, or any other thing of value, the Holder of the
Warrant shall thereafter be entitled, in addition to the securities receivable
upon the exercise thereof, to receive, upon the exercise of such Warrant, the
same monies, property, assets, rights, evidences of indebtedness, securities or
any other thing of value that he would have been entitled to receive at the
time of such dividend or distribution. At the time of any such dividend or
distribution, the Company shall make appropriate reserves to ensure the timely
performance of the provisions of this Subsection 8.5.
8.6 Subscription Rights for Shares of Common Stock or Other
Securities. In the case that the Company or an affiliate of the Company shall
at any time after the date hereof and prior to the exercise of the Warrant
issue any rights to subscribe for shares of Common Stock or any other
securities of the Company or of such affiliate to all the shareholders of the
Company, the Holder of the unexercised Warrant shall be entitled, in addition
to the securities receivable upon the exercise of the Warrant, to receive such
rights at the time such rights are distributed to the other shareholders of the
Company.
9. Exchange and Replacement of Warrant Certificates.
The Warrant Certificate is exchangeable without expense, upon the
surrender hereof by the registered Holder at the principal executive office of
the Company, for a new Warrant Certificate of like tenor and date representing
in the aggregate the right to purchase the same number of Warrant Shares in
such denominations as shall be designated by the Holder thereof at the time of
such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of the Warrant Certificate, and, in
case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Warrant, if
mutilated, the Company will make and deliver a new Warrant Certificate of like
tenor, in lieu thereof.
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<PAGE> 8
10. Elimination of Fractional Interests.
The Company shall not be required to issue certificates representing
fractions of Warrant Shares upon the exercise of the Warrant, nor shall it be
required to issue scrip or pay cash in lieu of fractional interests, it being
the intent of the parties that all fractional interests shall be eliminated by
rounding any fraction up to the nearest whole number of Warrant Shares.
11. Reservation and Listing of Securities.
The Company shall at all times reserve and keep available out of its
authorized shares of Common Stock, solely for the purpose of issuance upon the
exercise of the Warrant, such number of shares of Common Stock as shall be
issuable upon such exercise. The Company covenants and agrees that, upon
exercise of the Warrant and payment of the Exercise Price therefor, all shares
of Common Stock issuable upon such exercise shall be duly and validly issued,
fully paid, non-assessable and not subject to the preemptive rights of any
shareholder. As long as the Warrant shall be outstanding, the Company shall
use its best efforts to cause all Warrant Shares to be listed on or quoted by
NASDAQ or listed on such national securities exchanges as the Company's Common
Stock is listed.
12. Notices to Warrant Holder.
Nothing contained in this Agreement shall be construed as conferring
upon the Holder the right to vote or to consent or to receive notice as a
shareholder in respect of any meetings of shareholders for the election of
directors or any other matter, or as having any rights whatsoever as a
shareholder of the Company. If, however, at any time prior to the
expiration of the Warrants and their exercise, any of the following events
shall occur:
(a) the Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained earnings, as
indicated by the accounting treatment of such dividend or distribution on
the books of the Company; or
(b) the Company shall offer to all the holders of its Common Stock any
additional shares of capital stock of the Company or securities convertible
into or exchangeable for shares of capital stock of the Company, or any
option, right or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety shall
be proposed;
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<PAGE> 9
then, in any one or more of said events, the Company shall give written
notice to the Holder of such event at least fifteen (15) days prior to the date
fixed as a record date or the date of closing the transfer books for the
determination of the shareholders entitled to such dividend, distribution,
convertible or exchangeable securities or subscription rights, options or
warrants, or entitled to vote on such proposed dissolution, liquidation,
winding up or sale. Such notice shall specify such record date or the date of
closing the transfer books, as the case may be. Failure to give such notice or
any defect therein shall not affect the validity of any action taken in
connection with the declaration or payment of any such dividend or
distribution,, or the issuance of any convertible or exchangeable securities or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
13. Notices.
All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been
duly made when delivered, or mailed by registered or certified mail, return
receipt requested:
(a) If to the registered Holder of the Warrant, to the address of
such Holder as shown on the books of the Company; or
(b) if to the Company, to the address set forth in Section 3
of this Agreement or to such other address as the Company may designate by
notice to the Holder.
14. Supplements and Amendments.
The Company and Purchaser may from time to time supplement or
amend this Agreement without the approval of any Holder of the warrant
and/or securities underlying the Warrant in order to cure any ambiguity, to
correct or supplement any provision contained herein which may be defective or
inconsistent with any provisions herein, or to make any other provisions in
regard to matters or questions arising here under which the Company and
Purchaser may deem necessary or desirable and which the Company and Purchaser
not to adversely affect the interests of the Holder of the Warrant.
15. Successors.
All the covenants and provisions of this Agreement by or for the
benefit of the Company and the Holder inure to the benefit of their respective
successors and assigns hereunder.
16. Termination
This Agreement shall terminate at the close of business on March
14, 1999. Notwithstanding the foregoing, this Agreement will terminate on any
earlier date when the Warrant has been exercised and all securities underlying
the Warrant have been resold to the public.
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<PAGE> 10
17. Governing Law.
This Agreement and the Warrant Certificate issued hereunder shall
be deemed to be a contract made under the laws of the State of Illinois
and for all purposes shall be construed in accordance with the laws of said
State.
18. Benefits of This Agreement.
Nothing in this Agreement shall be construed to give to any
person or corporation other than the Company and Purchaser and any other
registered Holder of the Warrant or any securities underlying the Warrant any
legal or equitable right, remedy or claim under this Agreement; and this
Agreement shall be for the sole and exclusive benefit of the Company and
Purchaser and any such other Holder.
19. Counterparts.
This Agreement may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be an
original, and such counterparts shall together constitute but one and the same
instrument.
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<PAGE> 11
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
ACCUMED INTERNATIONAL, INC.
By: /s/ Peter P. Gombrich
------------------------------
Name: Peter P. Gombrich
Title: Chief Executive Officer
Attest:
/s/ Mark L. Santor
- ----------------------------
Mark L. Santor
Secretary
---------------------------
Purchaser
<PAGE> 12
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE
UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT") , AND MAY NOT BE OFFERED OR SOLD EXCEPT (i)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, (ii) TO THE
EXTENT APPLICABLE, PURSUANT TO RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE
UNDER SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) UPON THE
DELIVERY BY THE HOLDER TO THE COMPANY OF AN OPINION OF COUNSEL, REASONABLY
SATISFACTORY TO COUNSEL FOR THE ISSUER, STATING THAT AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE AT ANY TIME FROM March 14,1996 UNTIL
5:00 P.M., NEW YORK TIME, March 14,1999
Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that Purchaser, or registered
assigns ("Holder") , is the registered holder of Warrants to purchase, at any
time from March 14, 1996 until 5:00 P.M. New York City time on March 14, 1999
("Expiration Date"), up to _______ fully-paid and non-assessable share(s) (the
"Shares") of Common Stock, no par value ("Common Stock"), of AccuMed
International, Inc., a Delaware corporation (the "Company"), at the initial
exercise price, subject to adjustment in certain events (the "Exercise Price"),
of $3.42 per share, upon surrender of this Warrant Certificate and payment of
the Exercise Price at an office or agency of the Company, but subject to the
conditions set forth herein and in the Warrant Agreement dated as of March 14,
1996, by and between the Company and Holder or its representative (the "Warrant
Agreement"). Payment of the Exercise Price may be made in cash, or by check
payable to the order of the Company, or any combination of cash or check.
No Warrant may be exercised after 5:00 P.M., New York City time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of
this instrument and is hereby referred to in a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Company and the holders (the words "holders" or "holder" meaning the registered
holders or registered holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events, the Exercisable Price and the type and/or number of the Company's
securities issuable thereupon may, subject to certain conditions, be adjusted.
In such event, the Company will, at the request of the holder, issue a new
Warrant Certificate evidencing the adjustment in the Exercise Price and the
number and/or type of securities issuable upon the exercise of the Warrants;
<PAGE> 13
provided, however, that the failure of the Company to issue such new
Warrant Certificates shall not in any way change, alter, or otherwise impair,
the rights of the holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate
or Warrant Certificates of like tenor and evidencing in the aggregate a like
number of Warrants shall be issued to the transferee(s) in exchange for this
Warrant Certificate, subject to the limitations provided herein and in the
Warrant Agreement, without any charge except for any tax, or other governmental
charge imposed in connection therewith.
Upon the exercise of less than all of the warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated: March 14, 1996 ACCUMED INTERNATIONAL, INC.
By: /s/ Peter P. Gombrich
----------------------------
Name: Peter P. Gombrich
Title: Chief Executive Officer
Attest:
/s/ Mark L. Santor
- ------------------
Mark L. Santor
Secretary
<PAGE> 1
Exhibit 4.12
WARRANT AGREEMENT dated as of March 14,1996 by and between AccuMed
International, Inc., a Delaware corporation (the "Company"), and the person
listed on the signature page hereof ("Purchaser").
WITNESSETH:
WHEREAS, the Company proposes to issue to Purchaser a warrant (the
"Warrant") to purchase shares (the "Warrant Shares") of the Company's Common
Stock, par value $.01 per share (the "Common Stock"); and
WHEREAS, the Warrant issued pursuant to this Agreement is being issued by
the Company to Purchaser as part of a purchase of Units consisting of (i) a
promissory note of RADCO Ventures, Inc. ("RADCO"), (ii) common stock of RADCO
and (iii) warrants of the Company.
NOW, THEREFORE, in consideration of the premises, the agreements herein
set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Grant. On the terms and subject to the conditions set forth herein,
and unless this agreement is terminated prior to exercise in accordance with
Section 16 hereof, Purchaser is hereby granted the right to purchase, at any
time from March 14,1996 until 5:00 P.M., New York time, on March 14, 1999 (the
"Warrant Exercise Term"), up to Warrant Shares at an
exercise price per share (subject to adjustment as provided in Article 8
hereof) equal to $3.87.
2. Warrant Certificate. The warrant certificate (the "Warrant
Certificate") delivered and to be delivered pursuant to this Agreement shall be
in the form set forth in Exhibit A attached hereto and made a part hereof, with
such appropriate insertions, omissions, substitutions and other variations as
required or permitted by this Agreement.
3. Exercise of Warrant. The Warrant is exercisable with respect to some
or all of the Warrant Shares (but not as to any fractional shares) by payment
of the applicable Exercise Price per share on the date of exercise in cash or
by check to the order of the Company, or any combination of cash or check.
Upon surrender of the Warrant Certificate with the annexed Form of Election to
Purchase duly executed, together with payment of the Exercise Price (as
hereinafter defined) for the Warrant Shares purchased, at the Company's
principal offices (currently located at 920 N. Franklin Street, Suite 402,
Chicago, Illinois 60610) Purchaser (or other registered holder of the Warrant
Certificate) (the "Holder") shall be entitled to receive a certificate or
certificates for the Warrant Shares so purchased. The purchase rights
represented by each Warrant Certificate are exercisable at the option of the
Holder, in whole or in part (but not as to fractional Warrant Shares).
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<PAGE> 2
In the case of the purchase of less than all the Warrant Shares
purchasable under any Warrant Certificate, the Company shall cancel said
Warrant Certificate upon the surrender thereof and shall execute and deliver a
new Warrant Certificate of like tenor for the balance of the Warrant Shares
purchasable thereunder;
4. Issuance of Certificates.
Upon the exercise of the Warrants, the issuance of certificates
for the Warrant Shares purchased shall be made forthwith (and in any
event within five business days thereafter) without charge to the Holder
thereof including, without limitation, any tax which may be payable in respect
of the issuance thereof, and such certificates shall (subject to the provisions
of Article 5 hereof) be issued in the name of, or in such names as may be
directed by, the Holder thereof; provided, however, that 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 any such certificates in a name other
than that of the Holder and the Company shall not be required to issue or
deliver such certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been
paid.
The Warrant Certificate and the certificates representing the
Warrant Shares shall be executed on behalf of the Company by the
manual or facsimile signature of the present or any future Chairman or Vice
Chairman of the Board of Directors or President or Vice President of the
Company under its corporate seal reproduced thereon, attested to by the manual
or facsimile signature of the present or any future Secretary or Assistant
Secretary of the Company. The Warrant Certificate and certificates
representing the Warrant Shares shall be dated the date of execution by the
Company upon initial issuance, division, exchange, substitution or transfer.
Upon exercise, in part or in whole, of the Warrants, certificates
representing the Warrant Shares shall bear a legend substantially similar to
the following:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), and may not be offered or sold except (i) pursuant to an
effective registration statement under the Act, (ii) to the extent
applicable, pursuant to Rule 144 under the Act (or any similar rule
under such Act relating to the disposition of securities), or (iii)
upon the delivery by the holder to the Company of an opinion of
counsel, reasonably satisfactory to counsel to the issuer,
stating that an exemption from registration under such Act is
available."
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<PAGE> 3
5. Restriction on Transfer of Warrants and Warrant Shares.
Purchaser, by his acceptance thereof, covenants and agrees that the
Warrant being acquired as an investment and not with a view to the distribution
thereof.
6. Price.
6.1. Initial and Adjusted Exercise Price. The initial
exercise price of the Warrant shall be equal to the closing bid price of the
Common Stock as reported by The Nasdaq Stock Market as of the date hereof. The
adjusted exercise price shall be the price which shall result from time to time
from any and all adjustments of the initial exercise price in accordance with
the provisions of Article 8 hereof.
6.2. Exercise Price. The term "Exercise Price" herein shall
mean the initial exercise price or the adjusted exercise price, depending upon
the context.
7. Registration Price.
7.1. Registration Under the Securities Act of 1933. The
Warrant and the Warrant Shares have not been registered for purposes of
public distribution under the Act.
7.2. Registrable Securities. As used herein the term
"Registrable Security" means the Warrant Shares and any shares of
Common Stock issued upon any stock split, dividend or stock dividend in respect
of the Warrant Shares; provided, however, that with respect to any particular
Registrable Security, such security shall cease to be a Registrable Security
when, as of the date of determination, (i) it has been effectively registered
under the Act and disposed of pursuant thereto, (ii) registration under the Act
is no longer required for subsequent public distribution of such security, or
(iii) it has ceased to be outstanding. The term "Registrable Securities" means
any and/or all of the securities falling within the foregoing definition of a
"Registrable Security." In the event of any merger, reorganization,
consolidation, recapitalization or other change in corporate structure
affecting the Common Stock, such adjustment shall be made in the definition of
"Registrable Security" as is appropriate in order to prevent any dilution or
enlargement of the rights granted pursuant to this Article 7.
7.3. Piggyback Registration. If, at any time during the four
(4) years following the date of this Agreement, the Company proposes to
prepare and file any new registration statement or post-effective amendments
thereto covering equity or debt securities of the Company, or any such
securities of the Company held its shareholders (in any such case, other than
in connection with a merger, acquisition or pursuant to Form S-8 or successor
form) (for purposes of this Article 7, collectively, a "Company Registration
Statement"), it will give written notice (the "Notice") of its intention to do
so by registered mail, or at least thirty (30) business days prior to the
filing of each such Company Registration Statement, to all holders of the
Registrable Securities. Upon the written request of such a
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<PAGE> 4
holder (a "Requesting Holder"), made within twenty (20) business days
after receipt of the Notice, that the Company include any of the Requesting
Holder's, Registrable Securities in the proposed Company Registration Statement,
the Company shall, as to each such Requesting Holder, use its best efforts to
effect the registration under the Act of the Registrable Securities which it
has been so requested to register ("Piggyback Registration"), at the Company's
sole cost and expense and at no cost or expense to the Requesting Holders
(except as to underwriting discounts and commissions and costs of individual
Requesting Holders' counsel and professional advisors)
Notwithstanding the provisions of this Section 7.3, the Company shall
have the right at any time after it shall have given written notice
pursuant to this Section 7.3 (irrespective of whether any written request for
inclusion of such securities shall have already been made) to elect not to file
any such proposed Company Registration Statement, or to withdraw the same after
the filing but prior to the effective date thereof.
7.4 Covenant of the Company With Respect to Registration. The Company
covenants and agrees as follows:
(a) The Company shall pay all costs, fees and expenses in connection
with all Registration Statements filed pursuant to Section 7.3 hereof
including, without limitation, the Company's legal and accounting fees,
printing expenses, and blue sky fees and expenses, except for any underwriting
discounts or commissions with respect to the Registrable Securities and except
for fees of counsel and other professional advisors of a holder or group of
holders.
(b) The Company will take all necessary action which may be required in
qualifying or registering the Registrable Securities included in a Registration
Statement for offering and sale under the securities or blue sky laws of such
states as are requested by the holders of such securities, provided that the
Company shall not be obligated to so qualify or register the Registrable
Securities in any state that would require the Company to execute or file any
general consent to service of process or to qualify as a foreign corporation to
do business under the laws of any such jurisdiction.
(c) The Company shall indemnify any holder of the Registrable Securities
to be sold pursuant to any Registration Statement and any underwriter or person
deemed to be an underwriter under the Act and each person, if any, who controls
such holder or underwriter or person deemed to be an underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange
Act of 1934, as amended ("Exchange Act"), against all
loss, claim, damage, expense or liability (including all expenses reasonably
incurred in investigating, preparing or defending against any claim whatsoever)
to which any of them may become subject under the Act, the Exchange Act or
otherwise, arising from any untrue statement of a material fact contained in a
Registration Statement, any other registration statement filed by the Company
under the Act, any post-effective amendment to such registration statements, or
any prospectus included therein required to be filed or furnished by reason by
this Article 7 or caused by any omission or
4
<PAGE> 5
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or alleged untrue statement or omission or alleged omission
based upon information furnished or required to be furnished in writing to the
Company by the holder of the Registrable Securities or underwriter expressly
for use therein; which indemnification shall include each person, if any, who
controls any such underwriter within the meaning of the Act and each officer,
director, employee and agent of such underwriter; provided, however, that the
Company shall not be obligated to so indemnify such holder or any such
underwriter or other person referred to above unless such holder or underwriter
or other person, as the case may be, shall at the same time indemnify the
Company to the extent required herein. Each person who may be entitled to
indemnification pursuant to the preceding sentence shall indemnify the Company,
its directors, each officer signing the 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 caused by any
untrue statement or alleged untrue statement of a material fact contained in a
Registration Statement, any registration statement or any prospectus required
to be filed or furnished by reason of this Article 7 or caused by any omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or alleged untrue
statement or omission based upon information furnished in writing to the
Company by the Holder or underwriter expressly for use therein.
(d) Promptly after receipt of notice of the commencement of any action
in respect of which indemnity may be sought against any indemnifying party
under this Section 7.4, the indemnified party will notify the indemnifying
party in writing of the commencement thereof, and the indemnifying party will,
subject to the provisions hereinafter stated, assume the defense of such action
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of expenses) insofar as such action relates to an alleged
liability in respect of which indemnity may be sought against the indemnifying
party. After notice from the indemnifying party of its election to assume the
defense of such claim or action, the indemnifying party shall no longer be
liable to the indemnified party under this Section 7.4 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, that if, in the written opinion of counsel to the indemnified party or
parties, it is advisable for the indemnified party or parties to be represented
by separate counsel, the indemnified party or parties shall have the right to
employ a single counsel to represent the indemnified parties who may be subject
to liability arising out of any claim in respect of which indemnity may be
sought by the indemnified parties thereof against the indemnifying party, in
which event the reasonable fees and expenses of such separate counsel shall be
borne by the indemnifying party. Any party against whom indemnification may be
sought under this Section 7.4 shall not be liable to indemnify any person that
might otherwise be indemnified pursuant hereto for any settlement of any
action
5
<PAGE> 6
effected without such indemnifying party's consent, which consent shall
not be unreasonably withheld.
(e) If for any reason the indemnification provided for in the preceding
subparagraph is held by a court of competent jurisdiction to be unavailable to
an indemnified party with respect to any loss, claim, damage, liability or
expense referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by the indemnified party as a result of such loss, claim,
damage or liability in such proportion as is appropriate to reflect not only
the relative benefits received by the indemnified party and the indemnifying
party, but also the relative fault of the indemnified party and the
indemnifying party, as well as any other relevant equitable considerations.
(f) Nothing contained in this Agreement shall be construed as requiring
any holder to exercise the Warrant prior to the initial filing of any
registration statement or the effectiveness thereof.
8. Adjustment of Exercise Price and Number of Warrant Shares.
8.1 Adjustment in Number of Warrant Shares. Upon each adjustment of
the Exercise Price pursuant to the provisions of this Article 8, the
number of Warrant Shares issuable upon the exercise of the Warrant shall be
adjusted to the nearest full Warrant Share by multiplying a number equal to the
Exercise Price in effect immediately prior to such adjustment by the number of
Warrant Shares issuable upon exercise of the Warrant immediately prior to such
adjustment and dividing the product so obtained by the adjusted Exercise Price.
8.2 Subdivision and Combination. In case the Company shall at any time
subdivide or combine the outstanding shares of Common Stock, the Exercise Price
shall forthwith be proportionately decreased in the case of subdivision or
increased in the case of combination
8.3 Reclassification, Consolidation Merger, etc. In case of any
reclassification or change of the outstanding shares of Common Stock (other
than a change in par value to no par value, or from no par value to par value,
or as a result of a subdivision or combination), or in the case of any
consolidation of the Company with, or merger of the Company into, another
corporation (other than a consolidation or merger in which the Company is the
surviving corporation and which does not result in any reclassification or
change of the outstanding shares of Common Stock, except a change as a result
of a subdivision or combination of such shares or a change in par value, as
aforesaid), or in the case of a sale or conveyance to another corporation of
the property of the Company as an entirety, the Holders shall thereafter have
the right to purchase the kind and number of shares of stock and other
securities and property receivable upon such reclassification, change,
consolidation, merger, sale or conveyance as if the Holders were the owners of
the Warrant Shares underlying the Warrant at a price equal to the product of
(x) the number of shares of Common Stock issuable upon conversion of the
6
<PAGE> 7
Warrant Shares and (y) the Exercise Price prior to the record date for
such reclassification, change, consolidation, merger, sale or conveyance as if
such Holders had exercised the Warrant.
8.4 Redemption of Warrant; Redemption of Warrant Shares. Notwithstanding
anything to the contrary contained in the Warrant or elsewhere, the Warrant
cannot be redeemed by the Company under any circumstances.
8.5 Dividends and Other Distributions with Respect to Outstanding
Securities. In the event that the Company shall at any time prior to the
exercise of the Warrant declare a dividend (other than a dividend consisting
solely of shares of Common Stock or a cash dividend or distribution payable out
of current or retained earnings) or otherwise distribute to its shareholders
any monies, assets, property, rights, evidences of indebtedness, securities
(other than shares of Common Stock), whether issued by the Company or by
another person or entity, or any other thing of value, the Holder of the
Warrant shall thereafter be entitled, in addition to the securities receivable
upon the exercise thereof, to receive, upon the exercise of such Warrant, the
same monies, property, assets, rights, evidences of indebtedness, securities or
any other thing of value that he would have been entitled to receive at the
time of such dividend or distribution. At the time of any such dividend or
distribution, the Company shall make appropriate reserves to ensure the timely
performance of the provisions of this Subsection 8.5.
8.6 Subscription Rights for Shares of Common Stock or Other
Securities. In the case that the Company or an affiliate of the Company shall
at any time after the date hereof and prior to the exercise of the Warrant
issue any rights to subscribe for shares of Common Stock or any other
securities of the Company or of such affiliate to all the shareholders of the
Company, the Holder of the unexercised Warrant shall be entitled, in addition
to the securities receivable upon the exercise of the Warrant, to receive such
rights at the time such rights are distributed to the other shareholders of the
Company.
9. Exchange and Replacement of Warrant Certificates.
The Warrant Certificate is exchangeable without expense, upon the
surrender hereof by the registered Holder at the principal executive office of
the Company, for a new Warrant Certificate of like tenor and date representing
in the aggregate the right to purchase the same number of Warrant Shares in
such denominations as shall be designated by the Holder thereof at the time of
such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of the Warrant Certificate, and,
in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Warrant, if
mutilated, the Company will make and deliver a new Warrant Certificate of like
tenor, in lieu thereof.
7
<PAGE> 8
10. Elimination of Fractional Interests.
The Company shall not be required to issue certificates
representing fractions of Warrant Shares upon the exercise of the Warrant, nor
shall it be required to issue scrip or pay cash in lieu of fractional
interests, it being the intent of the parties that all fractional interests
shall be eliminated by rounding any fraction up to the nearest whole number of
Warrant Shares.
11. Reservation and Listing of Securities.
The Company shall at all times reserve and keep available out of its
authorized shares of Common Stock, solely for the purpose of issuance upon the
exercise of the Warrant, such number of shares of Common Stock as shall be
issuable upon such exercise. The Company covenants and agrees that, upon
exercise of the Warrant and payment of the Exercise Price therefor, all shares
of Common Stock issuable upon such exercise shall be duly and validly issued,
fully paid, non-assessable and not subject to the preemptive rights of any
shareholder. As long as the Warrant shall be outstanding, the Company shall
use its best efforts to cause all Warrant Shares to be listed on or quoted by
NASDAQ or listed on such national securities exchanges as the Company's Common
Stock is listed.
12. Notices to Warrant Holder.
Nothing contained in this Agreement shall be construed as conferring upon
the Holder the right to vote or to consent or to receive notice as a
shareholder in respect of any meetings of shareholders for the election of
directors or any other matter, or as having any rights whatsoever as a
shareholder of the Company. If, however, at any time prior to the expiration
of the Warrants and their exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of its
shares of Common Stock for the purpose of entitling them to receive a
dividend or distribution payable otherwise than in cash, or a cash
dividend or distribution payable otherwise than out of current or
retained earnings, as indicated by the accounting treatment of such
dividend or distribution on the books of the Company; or.
(b) the Company shall offer to all the holders of its Common
Stock any additional shares of capital stock of the Company or
securities convertible into or exchangeable for shares of capital
stock of the Company, or any option, right or warrant to subscribe
therefor; or
(c) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation or merger) or a sale
of all or substantially all of its property, assets and business as
an entirety shall be proposed;
8
<PAGE> 9
then, in any one or more of said events, the Company shall give written
notice to the Holder of such event at least fifteen (15) days prior to the date
fixed as a record date or the date of closing the transfer books for the
determination of the shareholders entitled to such dividend, distribution,
convertible or exchangeable securities or subscription rights, options or
warrants, or entitled to vote on such proposed dissolution, liquidation,
winding up or sale. Such notice shall specify such record date or the date of
closing the transfer books, as the case may be. Failure to give such notice or
any defect therein shall not affect the validity of any action taken in
connection with the declaration or payment of any such dividend or
distribution, or the issuance of any convertible or exchangeable securities or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
13. Notices.
All notices, requests, consents and other communications hereunder
shall be in writing and shall be deemed to have been duly made when delivered,
or mailed by registered or certified mail, return receipt requested:
(a) if to the registered Holder of the Warrant, to the address
of such Holder as shown on the books of the Company; or
(b) if to the Company, to the address set forth in Section 3
of this Agreement or to such other address as the Company may
designate by notice to the Holder.
14. Supplements and Amendments.
The Company and Purchaser may from time to time supplement or amend
this Agreement without the approval of any Holder of the Warrant and/or
securities underlying the warrant in order to cure any ambiguity, to correct or
supplement any provision contained herein which may be defective or
inconsistent with any provisions herein, or to make any other provisions in
regard to matters or questions arising hereunder which the Company and
Purchaser may deem necessary or desirable and which the Company and Purchaser
not to adversely affect the interests of the Holder of the Warrant.
15. Successors.
All the covenants and provisions of this Agreement by or for the
benefit of the Company and the Holder inure to the benefit of their respective
successors and assigns hereunder.
16. Termination.
This Agreement shall terminate at the close of business on March
14, 1999. Notwithstanding the foregoing, this Agreement will terminate on any
earlier date when the Warrant has been exercised and all securities underlying
the Warrant have been resold to the public.
9
<PAGE> 10
17. Governing Law.
This Agreement and the Warrant Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of Illinois and for
all purposes shall be construed in accordance with the laws of said State.
18. Benefits of This Agreement.
Nothing in this Agreement shall be construed to give to any person
or corporation other than the Company and Purchaser and any other registered
Holder of the Warrant or any securities underlying the Warrant any legal or
equitable right, remedy or claim under this Agreement; and this Agreement shall
be for the sole and exclusive benefit of the Company and Purchaser and any such
other Holder.:
19. Counterparts,
This Agreement may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be an original
and such counterparts shall together constitute but one and the same instrument.
10
<PAGE> 11
IN WITNESS, WHEREOF, the parties hereto have caused this Agreement
to be duly executed, as of the day and year first above written.
ACCUMED INTERNATIONAL, INC.
By: /s/ Peter P. Gombrich
------------------------
Name: Peter P. Gombrich
Title: Chief Executive Officer
Attest:
/s/ Mark L. Santor
- --------------------
Mark L. Santor
Secretary
--------------------
Purchaser
<PAGE> 12
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE
UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND MAY NOT BE OFFERED OR SOLD EXCEPT (i)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, (ii) TO THE
EXTENT APPLICABLE, PURSUANT TO RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE
UNDER SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES), I OR (iii) UPON THE
DELIVERY BY THE HOLDER TO THE COMPANY OF AN OPINION OF COUNSEL, REASONABLY
SATISFACTORY TO COUNSEL FOR THE ISSUER, STATING THAT AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE AT ANY TIME FROM March 14,1996 UNTIL
5:00 P.M., NEW YORK TIME, March 14,1999
Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that Purchaser, or registered
assigns ("Holder"), is the registered holder of Warrants to purchase, at any
time from March 14, 1996 until 5:00 P.M. New York City time on March 14, 1999
("Expiration Date"), up to _______ fully-paid and non-assessable share(s) (the
"Shares") of Common Stock, no par value ("Common Stock"), of AccuMed
International, Inc., a Delaware corporation (the "Company"), at the initial
exercise price, subject to adjustment in certain events (the "Exercise Price"),
of $3.87 per share, upon surrender of this Warrant Certificate and payment of
the Exercise Price at an office or agency of the Company, but subject to the
conditions set forth herein and in the Warrant Agreement dated as of March 14,
1996, by and between the Company and Holder or its representative (the "Warrant
Agreement"). Payment of the Exercise Price may be made in cash, or by check
payable to the order of the Company, or any combination of cash or check.
No Warrant may be exercised after 5:00 P.M., New York City time,
on the Expiration Date, at which time all Warrants evidenced hereby, unless
exercised prior thereto, shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a
duly authorized issue of Warrants issued pursuant to the Warrant Agreement,
which Warrant Agreement is hereby incorporated by reference in and made a part
of this instrument and is hereby referred to in a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Company and the holders (the words "holders" or "holder" meaning the
registered holders or registered holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events, the Exercise Price and the type and/or number of the Company's
securities issuable thereupon may, subject to certain conditions, be adjusted.
In such event, the Company will, at the request of the holder, issue a new
Warrant Certificate evidencing the adjustment in the Exercise Price and the
number and/or type of securities issuable upon the exercise of the
Warrants;
<PAGE> 13
provided, however, that the failure of the Company to issue such new Warrant
Certificates shall not in any way change, alter, or otherwise impair, the
rights of the holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like
number of Warrants shall be issued to the transferee(s) in exchange for this
Warrant Certificate, subject to the limitations provided herein and in the
Warrant Agreement, without any charge except for any tax, or other governmental
charge imposed in connection therewith.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as
the absolute owner(s) of this Warrant Certificate (notwithstanding any notation
of ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate
to be duly executed under its corporate seal.
Dated: March 14, 1996 ACCUMED INTERNATIONAL, INC.
By: /s/ Peter P. Gombrich
-------------------------
Name: Peter P. Gombrich
Title: Chief Executive Officer
Attest:
/s/ Mark L. Santor
- ----------------------
Mark L. Santor
Secretary
<PAGE> 1
EXHIBIT 5.1
May 29, 1996
AccuMed International, Inc.
920 N. Franklin Street, Ste. 402
Chicago, IL 60610
Gentlemen:
You have requested our opinion as counsel for AccuMed International,
Inc., a Delaware corporation (formerly Alamar Biosciences, Inc., a
California corporation, the "Company"), in connection with the
registration under the Securities Act of 1933, as amended (the
"Securities Act"), and the Rules and Regulations promulgated
thereunder, of an aggregate of 8,161,779 shares of which (i) 5,603,525
shares (the "Shares") of the Company's Common Stock, par value $0.01
per share (the "Common Stock"), are presently outstanding, and (ii)
2,558,254 shares of Common Stock are underlying Common Stock Purchase
Warrants or stock options (collectively, the "Warrant Shares") pursuant
to a Registration Statement on Form S-3 (the "Registration Statement").
This opinion is rendered pursuant to Item 601(b)(5)(i) of Regulation
S-B promulgated under the Act.
For purposes of this opinion, we have examined the Registration
Statement filed with the Securities and Exchange Commission on or about the
date hereof, including the prospectus which is a part thereof (the
"Prospectus") and the exhibits thereto. We have also been furnished with and
have examined originals or copies, certified or otherwise identified to our
satisfaction, of all such records of the Company, agreements and other
instruments, certificates of officers and representatives of the Company,
certificates of public officials and other documents as we have deemed it
necessary to require as a basis for the opinions hereafter expressed. As to
questions of fact material to such opinions, we have, where relevant facts
were not independently established, relied upon certifications by principal
officers of the Company. We have made such further legal and factual
examination
<PAGE> 2
AccuMed International, Inc.
May 29, 1996
Page 1
and investigation as we deem necessary for purposes of rendering the
following opinions.
In our examination we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the correctness of facts set
forth in certificates, the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents
submitted to us as certified or photostatic copies, and the
authenticity of the originals of such copies. We have also assumed
that such documents have each been duly authorized, properly executed
and delivered by each of the parties thereto other than the Company.
We are members of the bar of the State of California. Our opinions
below are limited to the laws of the State of California, the General
Corporation Law of the State of Delaware and the federal securities
laws of the United States.
Based on the foregoing, it is our opinion that all of (i) the Shares,
when sold and delivered in the manner described in the Prospectus, and
(ii) the Warrant Shares, when issued and delivered against payment in
full of the respective Warrant exercise prices in accordance with the
terms of the respective Warrants and warrant agreements governing such
Warrants, and when sold and delivered in the manner described in the
Prospectus, will be legally and validly issued, fully paid and
nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and consent to the use of our name under the
caption "Legal Matters" in the Prospectus.
Very truly yours,
\s\ GRAHAM & JAMES LLP
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Form S-3 (to be filed
with the Commission on or about May 22, 1996) of our report, which includes an
explanatory paragraph related to substantial doubt about the ability of
AccuMed, Inc. to continue as a going concern, dated September 29, 1995, on our
audit of the balance sheet of AccuMed, Inc. as of December 31, 1994, and for
the period from February 7, 1994 (inception) through December 31, 1994,
appearing in the registration statement on form S-4 (SEC File No. 33-99680) of
Alamar Biosciences, Inc. filed with the Securities and Exchange Commission
pursuant to the Securities Act of 1933 as incorporated by reference in the
Current Report on Form 8-K dated December 29, 1995. We also consent to the
reference to our firm under the caption "Experts."
/S/ Coopers & Lybrand L.L.P.
Sacramento, CA
May 22, 1996
<PAGE> 2
EXHIBIT 23.2
continued
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Form S-3 (to be filed with
the Commission on or about May 22, 1996) of our report , which includes an
explanatory paragraph related to substantial doubt about the ability of Alamar
Biosciences, Inc. to continue as a going concern, dated November 19, 1995, on
our audits of the financial statements of Alamar Biosciences, Inc. as of
September 30, 1995 and 1994, and for the years ended September 30, 1995, 1994
and 1993, which report is included in the Annual Report on Form 10-KSB for the
year ended September 30, 1995. We also consent to the reference to our firm
under the caption "Experts."
/S/ Coopers & Lybrand L.L.P.
Sacramento, CA
May 22, 1996
<PAGE> 3
EXHIBIT 23.2
continued
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Form S-3 (to be filed with
the Commission on or about May 22, 1996) of our report dated September 14,
1995, on our audit of the balance sheet of Sensititre/Alamar, the Microbiology
Division of AccuMed, Inc., as of December 31,1994, and the net sales, cost of
sales and selling expenses for the eight months ended December 31, 1994, and
the years ended April 30, 1994 and 1993, appearing in the registration
statement on form S-4 (SEC File No. 33-99680) of Alamar Biosciences, Inc. filed
with the Securities and Exchange Commission pursuant to the Securities Act of
1933 as incorporated by reference in the Current Report on Form 8-K dated
December 29, 1995. We also consent to the reference to our firm under the
caption "Experts."
/S/ Coopers & Lybrand L.L.P.
Sacramento, CA
May 22, 1996
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Form S-3 (to be filed
with the Securities and Exchange Commission on or about May 22, 1996) of our
report dated December 8, 1995, on our audit of the balance sheets of AccuMed
International Limited as of December 31 1994, April 30, 1994 and 1993, and
related statements of operations and cashflows for the eight months ended
December 31, 1994, and the years ended April 30, 1994 and 1993, appearing in
the registration statement on Form S-4 (SEC File No. 33-99680) of Alamar
Biosciences, Inc. filed with the Securities and Exchange Commission pursuant to
the Securities Act of 1933 as incorporated by reference in the current Report
on Form 8-K dated December 29, 1995.
S/ Coopers & Lybrand
Croydon
United Kingdom
May 22, 1996
<PAGE> 1
EXHIBIT 23.4
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
AccuMed International, Inc.
We consent to incorporation by reference in the registration statement (No.
33-____) on Form S-3 of AccuMed International, Inc. of our report dated April 5,
1996, relating to the consolidated balance sheet of AccuMed International, Inc.
and subsidiaries as of December 31, 1995 and the related consolidated
statements of operations, stockholders' equity and cash flows for the three
months ended December 31, 1995, which report appears in the December 31, 1995
transition report on Form 10-KSB of AccuMed International, Inc.
KPMG Peat Marwick LLP
Chicago, Illinois
May 22, 1996
