EXHIBIT 10.8
Warrant Certificate No.
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THE SECURITIES REPRESENTED HEREBY
(AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF) HAVE BEEN
ISSUED PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”). THE HOLDER HEREOF, BY
PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF THE COMPANY
THAT SUCH SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED UNLESS THE SECURITIES ARE REGISTERED UNDER THE
SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT IS AVAILABLE.
Effective Date: [_____],
2009 Void After: [____], 2014
WAFERGEN BIO-SYSTEMS,
INC.
WARRANT TO PURCHASE COMMON
STOCK
WaferGen Bio-systems, Inc.
, a Nevada corporation (the “
Company ”), for value received on [______], 2009, (the
“ Effective Date ”), hereby issues to Spencer
Trask Ventures, Inc., a Delaware corporation (the
“ Holder ”) this Warrant (the “
Warrant ”) to purchase, [______] shares of the
Company’s common stock, par value $0.001 per share (the
“ Common Stock ”), at the Exercise Price (as
defined below), as adjusted from time to time as provided herein,
on or before [______], 2014 (the “ Expiration Date
”), all subject to the following terms and
conditions. The Warrant Shares (as defined below) issued
upon exercise of this Warrant shall be subject to the provisions of
the Company’s Amended and Restated Articles of Incorporation,
a copy of which will be furnished to the holder hereof upon written
request and without charge. Unless otherwise defined in this
Warrant, terms appearing in initial capitalized form shall have the
meaning ascribed to them in that certain Selling Agent Agreement
between the Company and the purchaser signatory thereto entered
into in connection with a private placement of the Company’s
securities and pursuant to which this Warrant was issued (the
“ Selling Agent Agreement ”).
As used in this Warrant, (i) “ Business
Day ” means any day other than Saturday, Sunday or any
other day on which commercial banks in the City of New York, New
York, are authorized or required by law or executive order to
close; (ii) “ Exercise Price ” means
$2.00 per whole share of Common Stock, subject to adjustment
as provided herein; (iii) “ Warrant Shares ”
means the shares of Common Stock issuable upon exercise of the
Warrant, including any securities issued or issuable with respect
thereto or into which or for which such shares may be exchanged, or
converted, pursuant to any stock dividend, stock split, stock
combination, recapitalization, reclassification, reorganization or
other similar event; (iv) “ Trading Day ” means
any day on which the Common Stock is traded on the primary national
or regional stock exchange on which the Common Stock is listed, or
if not so listed, the OTC Bulletin Board, if quoted
thereon, is open for the transaction of business; and (v)
“ Affiliate ” means any person that, directly or
indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, a person, as such
terms are used and construed in Rule 144 promulgated under the
Securities Act of 1933, as amended (the “ Securities
Act ”).
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DURATION AND
EXERCISE OF WARRANT
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(a)
Exercise Period . The Holder may exercise this
Warrant at any time and from time to time, in whole or in part, on
any Business Day on or before 5:00 P.M., Eastern Time, on the
Expiration Date, at which time this Warrant shall become void and
of no value, and all rights hereunder shall thereupon
cease.
(i) While
this Warrant remains outstanding and exercisable in accordance with
Section 1(a), the Holder may exercise this Warrant, in whole or in
part, as follows:
(A) By
presentation and surrender of this Warrant to the Company at its
principal offices or at such other office or agency as the Company
may specify in writing to the Holder, with a duly executed copy of
the Notice of Exercise attached as Exhibit A ;
and
(B) Payment
of the then-applicable Exercise Price per share multiplied by the
number of Warrant Shares being purchased upon exercise of the
Warrant (such amount, the “ Aggregate Exercise Price
”) made in the form of cash, or by certified check, bank
draft or money order payable in lawful money of the United States
of America or in the form of a Cashless Exercise (as defined
below) to the extent permitted in Section 1(b)(ii)
below.
(ii) While
this Warrant remains outstanding and exercisable in accordance with
Section 1(a), the Holder may, in its sole discretion, exercise all
or any part of the Warrant in a “cashless” or
“net-issue” exercise (a “ Cashless
Exercise ”) by delivering to the Company (1) the Notice
of Exercise and (2) the original Warrant, pursuant to which the
Holder shall surrender the right to receive upon exercise of this
Warrant, a number of Warrant Shares having a fair market value (as
determined below) equal to the Aggregate Exercise Price, in which
case, the number of Warrant Shares to be issued to the Holder upon
such exercise shall be calculated using the following
formula:
with: X
= the
number of Warrant Shares to be issued to the Holder
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the number of
Warrant Shares with respect to which the Warrant is being
exercised
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the fair market
value per share of Common Stock on the date of exercise of the
Warrant
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B
= the
then-current Exercise Price of the Warrant
Solely for the purposes of this paragraph,
“fair market value” per share of Common Stock shall
mean (A) the average of the closing sales prices, as quoted on the
primary national or regional stock exchange on which the Common
Stock is listed, or, if not listed, the OTC Bulletin Board if
quoted thereon, on the twenty (20) Trading Days immediately
preceding the date on which the Notice of Exercise is deemed to
have been sent to the Company, or (B) if the Common Stock is not
publicly traded as set forth above, as reasonably and in good faith
determined by the Board of Directors of the Company as of the date
which the Notice of Exercise is deemed to have been sent to the
Company.
(iii) Upon
the exercise of this Warrant in compliance with the provisions of
this Section 1(b), the Company shall promptly issue and cause to be
delivered to the Holder a certificate for the total number of
Warrant Shares for which this Warrant is being
exercised. Each exercise of this Warrant shall be
effective immediately prior to the close of business on the date
(the “ Date of Exercise ”) on which the
conditions set forth in Section 1(b) have been satisfied. On or
before the second Business Day following the date on which the
Company has received each of the Notice of Exercise and the
Aggregate Exercise Price (or notice of a Cashless Exercise in
accordance with Section 1(b)(ii)) (the “ Exercise Delivery
Documents ”), the Company shall transmit an
acknowledgment of receipt of the Exercise Delivery Documents to the
Company’s transfer agent (the “ Transfer Agent
”). On or before the fifth Business Day following the date on
which the Company has received all of the Exercise Delivery
Documents (the “ Share Delivery Date ”), the
Company shall (X) provided that the Transfer Agent is participating
in The Depository Trust Company (“ DTC ”) Fast
Automated Securities Transfer Program and either (A) there is an
effective Registration Statement permitting the resale of the
Warrant Shares by the Holder or (B) the shares are eligible for
resale without volume or manner-of-sale limitations pursuant to
Rule 144, upon the request of the Holder credit such aggregate
number of shares of Common Stock to which the Holder is entitled
pursuant to such exercise to the Holder’s or its
designee’s balance account with DTC through its Deposit
Withdrawal Agent Commission system, or (Y) if the Transfer Agent is
not participating in the DTC Fast Automated Securities Transfer
Program, issue and dispatch by overnight courier to the address as
specified in the Notice of Exercise, a certificate, registered in
the Company’s share register in the name of the Holder or its
designee, for the number of shares of Common Stock to which the
Holder is entitled pursuant to such exercise. Upon
delivery of the Exercise Delivery Documents, the Holder shall be
deemed for all corporate purposes to have become the holder of
record of the Warrant Shares with respect to which this Warrant has
been exercised, irrespective of the date of delivery of the
certificates evidencing such Warrant Shares. If the number of
Warrant Shares represented by this Warrant is greater than the
actual number of Warrant Shares being acquired upon such
an exercise, then the Company shall as soon as
practicable and in no event later than five (5) Business Days after
any exercise, and at its own expense, issue a new Warrant of like
tenor representing the right to purchase the number of Warrant
Shares purchasable immediately prior to such exercise under this
Warrant, less the number of Warrant Shares with respect to which
this Warrant is exercised.
(iv) If
the Company shall fail for any reason or for no reason to issue to
the Holder, within five (5) Business Days of receipt of the
Exercise Delivery Documents, a certificate for the number of shares
of Common Stock to which the Holder is entitled and register such
shares of Common Stock on the Company’s share register or to
credit the Holder’s balance account with DTC for such number
of shares of Common Stock to which the Holder is entitled upon the
Holder’s exercise of this Warrant, and if on or after such
Business Day the Holder purchases (in an open market transaction or
otherwise) shares of Common Stock to deliver in satisfaction of a
sale by the Holder of shares of Common Stock issuable upon
such exercise that the Holder anticipated receiving from the
Company (a “ Buy-In ”), then the Company shall,
within five (5) Business Days after the Holder’s request and
in the Holder’s discretion, either (i) pay cash to the Holder
in an amount equal to the Holder’s total purchase price
(including brokerage commissions, if any) for the shares of Common
Stock so purchased (the “ Buy-In Price ”), at
which point the Company’s obligation to deliver such
certificate (and to issue such shares of Common Stock) shall
terminate, or (ii) promptly honor its obligation to deliver to the
Holder a certificate or certificates representing such shares of
Common Stock and pay cash to the Holder in an amount equal to the
excess (if any) of the Buy-In Price over the product of (A) such
number of shares of Common Stock, times (B) the closing bid price
on the date of exercise.
(c)
Partial Exercise . This Warrant shall be
exercisable, either in its entirety or, from time to time, for part
only of the number of Warrant Shares referenced by this Warrant. If
this Warrant is exercised in part, the Company shall issue, at its
expense, a new Warrant, in substantially the form of this Warrant,
referencing such reduced number of Warrant Shares that remain
subject to this Warrant.
(d)
Disputes . In the case of a dispute as to the
determination of the Exercise Price or the arithmetic calculation
of the Warrant Shares, the Company shall promptly issue to the
Holder the number of Warrant Shares that are not disputed and
resolve such dispute in accordance with Section 15.
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ISSUANCE OF
WARRANT SHARES
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(a) The
Company covenants that all Warrant Shares will, upon issuance in
accordance with the terms of this Warrant, be (i) duly authorized,
fully paid and non-assessable, and (ii) free from all liens,
charges and security interests, with the exception of claims
arising through the acts or omissions of the Holder and except as
arising from applicable federal and state securities
laws.
(b) The
Company shall register this Warrant upon records to be maintained
by the Company for that purpose in the name of the record holder of
such Warrant from time to time. The Company may deem and treat the
registered Holder of this Warrant as the absolute owner thereof for
the purpose of any exercise thereof, any distribution to the Holder
thereof and for all other purposes.
(c) The
Company will not, by amendment of its articles of incorporation or
by-laws or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed
hereunder by the Company, but will at all times in good faith
assist in the carrying out of all the provisions of this Warrant
and in the taking of all action necessary or appropriate in order
to protect the rights of the Holder to exercise this Warrant, or
against impairment of such rights.
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ADJUSTMENTS OF
EXERCISE PRICE, NUMBER AND TYPE OF WARRANT SHARES
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(a) The
Exercise Price and the number of shares purchasable upon the
exercise of this Warrant shall be subject to adjustment from time
to time upon the occurrence of certain events described in this
Section 3(a); provided , that notwithstanding the provisions
of this Section 3(a), the Company shall not be required to make any
adjustment if and to the extent that such adjustment would require
the Company to issue a number of shares of Common Stock in excess
of its authorized but unissued shares of Common Stock, less all
shares of Common Stock that have been reserved for issuance upon
the conversion of all outstanding securities convertible into
shares of Common Stock and the exercise of all outstanding options,
warrants and other rights exercisable for shares of Common
Stock. If the Company does not have the requisite number
of authorized but unissued shares of Common Stock to make any
adjustment, the Company shall use its commercially reasonable
efforts to obtain the necessary shareholder consent to increase the
authorized number of shares of Common Stock to make such an
adjustment pursuant to this Section 3(a).
(i)
Subdivision or Combination of Stock . If the
Company at any time after the date of issuance of this Warrant
subdivides (by any stock split, stock dividend, recapitalization or
otherwise) its outstanding shares of Common Stock into a greater
number of shares, the Exercise Price in effect immediately prior to
such subdivision shall be proportionately reduced and the number of
Warrant Shares shall be proportionately increased. If
the Company at any time after the date of issuance of this Warrant
combines (by combination, reverse stock split or otherwise) its
outstanding shares of Common Stock into a smaller number of
shares, the Exercise Price in effect immediately prior to such
combination will be proportionately increased and the number of
Warrant Shares shall be proportionately decreased. Any
adjustment under this Section 3(a)(i) shall become effective at the
close of business on the date the subdivision or combination
becomes effective. The Exercise Price and the Warrant
Shares, as so adjusted, shall be readjusted in the same manner upon
the happening of any successive event or events described in this
Section 3(a)(i).
(ii)
Distribution of Assets . If the Company shall
declare or make any dividend or other distribution of its assets
(or rights to acquire its assets) to holders of Common Stock, by
way of return of capital or otherwise (including, without
limitation, any distribution of cash, stock or other
securities, property or options by way of a dividend, spinoff,
reclassification, corporate rearrangement or other similar
transaction) (a “ Distribution ”), at any time
after the issuance of this Warrant, then, in each such case the
Exercise Price and the number of Warrant Shares in effect
immediately prior to the close of business on the record date fixed
for the determination of holders of Common Stock entitled to
receive the Distribution shall be adjusted proportionately, and the
Holder hereof shall, upon the exercise of this Warrant, be entitled
to receive, in addition to the number of shares of Common Stock
receivable thereupon, and without payment of any additional
consideration therefor, the amount of assets that such Holder would
hold on the date of such exercise had such Holder been the holder
of record of such Common Stock as of such record
date. The Exercise Price and the Warrant Shares, as so
adjusted, shall be readjusted in the same manner upon the happening
of anysuccessive event or events described in this Section 3(a)(ii)
.
(iii)
Reorganization, Reclassification, Consolidation, Merger or
Sale . If any recapitalization, reclassification or
reorganization of the capital stock of the Company, or any
consolidation or merger of the Company with another corporation, or
the sale of all or substantially all of its assets or other
transaction shall be effected in such a way that holders of Common
Stock shall be entitled to receive stock, securities or other
assets or property (an “ Organic Change ”),
then, as a condition of such Organic Change, lawful and adequate
provisions shall be made by the Company whereby upon any subsequent
exercise of this Warrant, the Holder hereof shall thereafter have
the right to purchase and receive (in lieu of the shares of Common
Stock of the Company immediately theretofore purchasable and
receivable upon the exe
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