Exhibit 10.22
THE SECURITIES REPRESENTED THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A
VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF.
NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE
REGISTRATION THEREOF OR AN OPINION OF COUNSEL IN A FORM
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
WARRANT TO PURCHASE STOCK
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Corporation:
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ALPHA INNOTECH
CORP., a Delaware corporation
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Number of
Shares:
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100,000 subject
to adjustment
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Class of
Stock:
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Common
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Initial Exercise Price:
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The lower of
(a) the closing price of as published in The Wall Street
Journal on the Business Day prior to the Issue Date or (b) the
average of the closing price per share for the 30 calendar days
prior to the Issue Date.
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Issue
Date:
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September 2,
2009
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Expiration
Date:
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December 1,
2015
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THIS WARRANT CERTIFIES THAT AGILITY
CAPITAL, LLC or registered assignee (“Holder”) is
entitled to purchase the number of fully paid and nonassessable
shares (the “Shares”) of Common Stock of ALPHA INNOTECH
CORP. (the “Company”), in the number, at the price, and
for the term specified above. If any amount is outstanding on
December 31, 2009 under the Loan Agreement dated as of
May 7, 2008, as amended (the “Loan Agreement”),
the number of shares that may be acquired under this Warrant shall
automatically increase by 100,000, and the Exercise Price for such
additional Shares shall be equal to the lower of (a) the
closing price as published in The Wall Street Journal on
December 30, 2009 or (b) the average of the closing price
for the 30 calendar days prior to December 31, 2009. If any
amount is outstanding on April 30, 2010 under the Loan
Agreement dated as of May 7, 2008, as amended (the “Loan
Agreement”), the number of shares that may be acquired under
this Warrant shall automatically increase by 100,000, and the
Exercise Price for such additional Shares shall be equal to the
lower of (a) the closing price as published in The Wall
Street Journal on April 29, 2010 or (b) the average
of the closing price for the 30 calendar days prior to
April 30, 2010. If any Event of Default occurs under the Loan
Agreement, then The number of shares that may be acquired under
this Warrant shall automatically increase by 50,000 upon the
occurrence of an Event of Default under the Loan Agreement, and
shall increase by an additional 100,000 Shares on the thirtieth day
thereafter, and an additional 100,000 Shares on each thirtieth day
after that, for so long as any amount is outstanding under the Loan
Agreement and the Event of Default has not been cured or
waived.
ARTICLE 1.
EXERCISE
1.1 Method of Exercise .
Holder may exercise this Warrant by delivering this Warrant and a
duly executed Notice of Exercise in substantially the form attached
as Appendix 1 to the principal office of the Company. Unless
Holder is exercising the conversion right set forth in
Section 1.2, Holder shall also deliver to the Company a check
for the aggregate Warrant Price for the Shares being
purchased.
1.2 Conversion Right . In
lieu of exercising this Warrant as specified in Section 1.1,
Holder may from time to time convert this Warrant, in whole or in
part, into a number of Shares computed using the following
formula:
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Where
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X = The number
of shares of common stock to be issued to the Registered
Holder.
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Y = The number
of shares of common stock purchasable under this Warrant (at the
date of such calculation).
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A = The fair market value of one
share of common stock (at the date of such calculation).
B = The Exercise Price (as adjusted
to the date of such calculation). The fair market value of the
Shares shall be determined pursuant to Section 1.3.
1.3 Fair Market Value . If
the Company’s common stock is traded regularly in a public
market, the fair market value of the Shares shall be the closing
price of the Shares reported for the business day immediately
before Holder delivers its Notice of Exercise to the Company. If
the Company’s common stock is actively traded
over-the-counter, the fair market value shall be deemed to be the
average of the closing bid or sales price (whichever is applicable)
over the 30 day period ending three days before the date of
calculation. If the Company’s common stock is not regularly
traded in a public market, the Board of Directors of the Company
shall determine fair market value in its reasonable good faith
judgment.
1.4 Delivery of Certificate and
New Warrant . Promptly after Holder exercises or converts this
Warrant, the Company shall deliver to Holder certificates for the
Shares acquired and, if this Warrant has not been fully exercised
or converted and has not expired, a new Warrant representing the
Shares not so acquired.
1.5 Replacement of Warrants .
On receipt of evidence reasonably satisfactory to the Company of
the loss, theft, destruction or mutilation of this Warrant and, in
the case of loss, theft or destruction, on delivery of an indemnity
agreement reasonably satisfactory in form and amount to the Company
or, in the case of mutilation, or surrender and cancellation of
this Warrant, the Company at its expense shall execute and deliver,
in lieu of this Warrant, a new warrant of like tenor.
ARTICLE 2. ADJUSTMENTS TO THE
SHARES .
2.1 Stock Dividends, Splits .
If the Company declares or pays a dividend on its Common stock
payable in Common stock, or other securities, subdivides the
outstanding Common stock into a greater amount of Common stock,
then upon exercise of this Warrant, for each Share acquired, Holder
shall receive, without cost to Holder, the total number and kind of
securities to which Holder would have been entitled had Holder
owned the Shares of record as of the date the dividend or
subdivision occurred. If the Company makes any other distribution
with respect to the Shares, then in each case the Company shall
cause Holder upon exercise or conversion of this Warrant to receive
a proportionate share of that distribution as though it were the
holder of the Shares as of the record date fixed for the
determination of stockholders of the Company entitled to receive
that distribution.
2.2 Reclassification, Exchange or
Substitution . Upon any reclassification, exchange,
substitution, or other event that results in a change of the number
and/or class of the securities issuable upon exercise or conversion
of this Warrant, Holder shall be entitled to receive, upon exercise
or conversion of this Warrant, the number and kind of securities
and property that Holder would have received for the Shares if this
Warrant had been exercised immediately before such
reclassification, exchange, substitution, or other event. Upon the
closing of any sale, license, or other disposition of all or
substantially all of the assets (including intellectual property)
of the Company, or any reorganization, consolidation, or merger of
the Company where the holders of the Company’s securities
before the transaction beneficially own less than 50% of the
outstanding voting securities of the surviving entity after the
transaction, the successor entity shall assume the obligations of
this Warrant, and this Warrant thereafter shall be exercisable for
the same securities, cash and property as would be payable for the
Shares issuable upon exercise of the unexercised portion of this
Warrant as if such Shares were outstanding on the record date for
the Acquisition and subsequent closing. The Warrant Price shall be
adjusted accordingly. The Company or its successor shall promptly
issue to Holder a new Warrant for such new securities or other
property. The new Warrant shall provide for adjustments that shall
be as nearly equivalent as may be practicable to the adjustments
provided for in this Article 2. The provisions of this
Section 2.2 shall similarly apply to successive
reclassifications, exchanges, substitutions, or other
events.
2.3 Adjustments for Combinations,
Etc . If the outstanding Shares are combined or consolidated,
by reclassification or otherwise, into a lesser number of shares,
the Warrant Price shall be proportionately increased.
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