EXHIBIT 4.5
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON ITS
EXERCISE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR QUALIFIED UNDER APPLICABLE STATE SECURITIES
LAWS AND MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED OR
OTHERWISE DISPOSED OF UNLESS (i) A REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, SHALL HAVE BECOME
EFFECTIVE WITH RESPECT THERETO AND ALL APPLICABLE QUALIFICATIONS
UNDER STATE SECURITIES LAWS SHALL HAVE BEEN OBTAINED WITH RESPECT
THERETO; OR (ii) A WRITTEN OPINION FROM COUNSEL FOR THE HOLDER
REASONABLY SATISFACTORY TO THE ISSUER HAS BEEN OBTAINED STATING
THAT NO SUCH REGISTRATION OR QUALIFICATION IS REQUIRED.
WARRANT TO PURCHASE COMMON SHARES OF
HEMACARE CORPORATION
For good and valuable consideration, the receipt of
which is hereby acknowledged, Hemacare Corporation, a California
corporation (the "Company"), hereby grants to Alan Darlington
("Darlington"), an irrevocable warrant (the "Warrant") to
purchase up to 20,000 fully paid and nonassessable common shares
of the Company (the "Shares"), adjusted as set forth below, at
the Warrant Price, as defined below, at any time beginning on the
date hereof and ending on September 28, 2006, all subject to the
provisions, terms and conditions set forth below.
1. Exercise; Issuance of Certificates; Payment for Shares.
This Warrant may be exercised by the holder hereof, in whole or
in part (but not as to a fractional Share), and on one or more
occasions, by written notice to the Company at its principal
office at 21101 Oxnard Street, Woodland Hills, California 91367
(or such other office or agency of the Company as it may
designate by notice in writing to the holder hereof at the
address of such holder appearing on the books of the Company) at
any time within the period above named and by payment to the
Company by cashier's check or wire transfer of the Warrant Price
for the number of Shares designated by the holder (but not more
than the number of Shares for which this Warrant then remains
unexercised). The Company agrees that the Shares so purchased
will be deemed to have been issued to the holder hereof as the
record owner of such Shares as of the close of business on the
date on which such notice is received and payment made as
aforesaid. Certificates for the Shares so purchased will be
delivered to the holder hereof within a reasonable time, not
exceeding fifteen (15) business days, after this Warrant has been
exercised, and, unless this Warrant has expired, it will continue
in effect with respect to the number of Shares, if any, as to
which it has not then been exercised.
2. Shares to be Fully Paid; Reservation of Shares. The
Company covenants and agrees as follows:
2.1 All Shares issued upon the exercise of this
Warrant will, upon issuance, be fully paid and nonassessable and
free from all taxes, liens and charges with respect to the issue
thereof.
2.2 During the period within which this Warrant may be
exercised, the Company will at all times have authorized and
reserved for the purpose of issuance or transfer upon exercise of
this Warrant a sufficient number of Shares to provide for the
exercise of this Warrant.
2.3 The Company will take all actions necessary to
assure that the Shares issuable upon the exercise of this Warrant
may be so issued without violation of any applicable law or
regulation, or of any requirements of any securities exchange
upon which the shares of the Company may be listed.
2.4 The Company will not take any action that would
result in an adjustment of the Warrant Price if the total number
of Shares issuable after such action upon exercise of this
Warrant, together with all Shares then outstanding and all Shares
then issuable upon exercise of all rights, options or warrants
(other than this Warrant) and upon conversion of all securities
convertible into or exchangeable for shares of common stock of
the Company, would exceed the total number of Shares then
authorized by the Company's Articles of Incorporation.
3. Warrant Price.
3.1 Initial Warrant Price; Subsequent Adjustment of
Price and Number of Purchasable Shares. The Initial Warrant
Price will be $1.20 per Share, and will be adjusted from time to
time as provided below. The Initial Warrant Price or, if such
price has been adjusted, the price per Share as last adjusted
pursuant to the terms hereof is referred to as the "Warrant
Price" herein. Upon each adjustment of the Warrant Price, the
holder of this Warrant will thereafter be entitled to purchase,
at the Warrant Price resulting from such adjustment, the number
of Shares obtained by multiplying the Warrant Price in effect
immediately before such adjustment by the number of Shares
purchasable pursuant to this Warrant immediately before such
adjustment and dividing the product by the Warrant Price
resulting from such adjustment.
3.2 Subdivision or Combination of Shares. If the
Company at any time while this Warrant, or any portion hereof,
remains outstanding and unexpired shall split, subdivide or
combine the securities as to which purchase rights under this
Warrant exist, into a different number of securities of the same
class, the Warrant Price for such securities shall be
proportionately decreased in the case of a split or subdivision
or proportionately increased in the case of a combination.
3.3 Reclassification. If the Company, at any time
while this Warrant, or any portion hereof, remains outstanding
and unexpired, by reclassification of securities or otherwise
shall change any of the securities as to which purchase rights
under this Warrant exist into the same or a different number of
securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of
securities as would have been issuable as the result of such
change with respect to the securities that were subject to the
purchase rights under this Warrant immediately prior to such
reclassification or other change and the Warrant Price therefor
shall be appropriately adjusted.
3.4 Adjustments for Dividends in Stock or Other
Securities or Property. If while this Warrant, or any portion
hereof, remains outstanding and unexpired the holders of the
securities as to which purchase rights under this Warrant exist
at the time shall have received, or, on or after the record date
fixed for the determination of eligible stockholders, shall have
become entitled to receive, without payment therefor, other or
additional stock or other securities or property (other than
cash) of the Company by way of dividend, then and in each case,
this Warrant shall represent the right to acquire, in addition to
the number of shares of the security receivable upon exercise of
this Warrant, and without payment of any additional consideration
therefor, the amount of such other or additional stock or other
securities or property (other than cash) of the Company that such
holder would hold on the date of such exercise had it been the
holder of record of the security receivable upon exercise of this
Warrant on the date hereof and had thereafter, during the period
from the date hereof to and including the date of such exercise,
retained such shares and/or all other additional stock available
by it as aforesaid during such period, giving effect to all
adjustments called for during such period.
3.5 Reorganization, Reclassification, Consolidation,
Merger or Sale. If any capital reorganization or
reclassification of the Shares of the Company, or any
consolidation or merger of the Company with another corporation
or entity, or the sale of all or substantially all of the
Company's assets to another corporation will be effected in such
a way that holders of Shares will be entitled to receive Shares,
securities or assets with respect to or in exchange for Shares,
then, upon exercise of this Warrant, the holder will thereafter
have the right to receive such Shares, securities or assets as
may be issued or payable with respect to or in exchange for a
number of outstanding Shares equal to the number of Shares
immediately theretofore purchasable and receivable upon the
exercise of this Warrant. If a purchase, tender or exchange
offer is made to and accepted by the holders of more than 50% of
the outstanding Shares of the Company, the Company will not
effect any consolidation, merger or sale with the Person, as
defined below, making such offer or with any Affiliate, as
defined below, of such Person, unless, before the consummation of
such consolidation, merger or sale, the holder of this Warrant is
given at least ten (10) business days notice prior to the
scheduled closing date (the "Closing Date") of such transaction
(which notice shall specify the material terms of such
transaction and the proposed Closing Date). In the event the
holder elects to exercise this Warrant or any portion thereof
following such notice and such consolidation, merger or sale is
not consummated within ten (10) days of the proposed Closing Date
(or any subsequent proposed Closing Date), then the Holder may
rescind its exercise of this Warrant by providing written notice
thereof to the Company, the Company shall take all actions
consistent therewith (including without limitation the immediate
return of the Warrant Price paid with respect to such rescinded
exercise) and this Warrant shall continue in full force and
effect. As used in this paragraph, the term "Person" includes an
individual, a partnership, a corporation, a trust, a joint
venture, a limited liability company, an unincorporated
organization and a government or any department or agency
thereof, and an "Affiliate" of a Person means any Person directly
or indirectly controlling, controlled by or under direct or
indirect common control with, such other Person. A Person will
be deemed to control a corporation or other business entity if
such Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of
such corporation, whether through the ownership of voting
securities, by contract or otherwise.
3.6 Notice of Adjustment. Upon any adjustment of the
Warrant Price, the Company will give written notice thereof, by
first-class mail, postage prepaid, addressed to the holder of
this Warrant at the address of such holder as shown on the books
of the Company, which notice will state the Warrant Price
resulting from such adjustment and the increase or decrease, if
any, in the number of Shares purchasable at such price upon the
exercise of this Warrant, setting forth in reasonable detail the
method of calculation and the facts upon which such calculation
is based.
3.7 Other Notices. If at any time:
3.7.1 The Company declares a cash dividend on
its Shares payable at a rate in excess of the rate of the last
cash dividend theretofore paid;
3.7.2 The Company declares a dividend on its
Shares payable in Shares or pays a special dividend or other
distribution (other than regular cash dividends) to the holders
of its Shares;
3.7.3 The shareholders of the Company approve
any capital reorganization from or reclassification of the Shares
of the Company, or any consolidation or merger of the Company
with, or sale of all or substantially all of its assets to,
another corporation or other entity; or
3.7.4 There is a voluntary or involuntary
dissolution, liquidation or winding up of the Company;
Then the Company will give, by first-class mail,
postage prepaid, addressed to the holder of this Warrant at the
address of such holder as shown on the books of the Company,
(i) at least twenty (20) days' prior written notice of the date
on which the books of the Company will close or a record will be
taken for such dividend or distribution or for determining rights
to vote in respect of any such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding
up, and (ii) in the case of such reorganization,
reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, at least twenty (20) days' prior
written notice of the date when the same will take place. Any
notice required by clause (i) will also specify, in the case of
any such dividend or distribution, the date on which the holders
of Shares will be entitled thereto, and any notice required by
(ii) will also specify the anticipated date on which the holders
of Shares will be entitled to exchange their Shares for
securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up, as the case may be.
4. Listing. If any Shares required to be reserved for the
purpose of issue upon the exercise of this Warrant require
registration with or approval of any governmental authority under
any federal or state law (other than the filing of a Registration
Statement under the Securities Act of 1933, as then in effect
(the "Securities Act"), or any similar federal or state law then
in effect), or listing on any securities exchange, before such
Shares may be issued upon such exercise, the Company will, at its
expense and as expeditiously as possible, use its best efforts to
cause such Shares to be duly registered or approved or listed on
the relevant securities exchange, as the case may be.
5. Closing of Books. The Company will at no time close
its transfer books against the transfer of this Warrant or of any
Shares issued or issuable upon the exercise of this Warrant in
any manner which interferes with the timely exercise of this
Warrant.
6. Definition of Shares. As used in this Warrant the term
"Shares" includes the Company's authorized common stock as
constituted on the date hereof and also includes any shares of
any class of stock or other equity securities of the Company
thereafter authorized which will not be limited in respect of the
rights of the holders thereof to participate in dividends or in
the distribution of assets upon the voluntary or involuntary
liquidation, dissolution or winding up of the Company; provided
that, except as provided in paragraph 3.5, the Shares purchasable
pursuant to this Warrant will include only Shares designated as
"common shares" of the Company or, in the case of any
reclassification of the outstanding Shares, the Shares,
securities or assets provided for in paragraph 3.5.
7. No Voting Rights. Neither Darlington nor any other
person legally entitled to exercise this Warrant shall be
entitled to any of the rights or privileges of a shareholder of
the Company in respect of any Shares issuable upon any exercise
of this Warrant unless and until a certificate or certificates
representing such Shares shall have been actually issued and
delivered. No Shares shall be issued and delivered upon the
exercise of this Warrant unless and until there shall have been
full compliance with all applicable requirements of the
Securities Act of 1933, as amended (whether by registration or
satisfaction of an exemption therefrom), all applicable listing
requirements of a national securities exchange on which shares of
the same class are listed and any other requirements of law or of
any regulatory bodies having jurisdiction over such issuance and
delivery.
8. Warrant Not Transferable. This Warrant and all other
rights and privileges granted hereby shall not be transferred,
either voluntarily or by operation of law, otherwise than by will
or the laws of descent and distribution or pursuant to a
Qualified Domestic Relations Order. Upon any attempt to so
transfer or otherwise dispose of this Warrant or any other right
or privileges granted hereby contrary to the provisions hereof,
this Warrant and all rights and privileges contained herein shall
immediately become null and void and of no further force or
effect.
9. Descriptive Headings and Governing Law. The
descriptive headings of the several Articles and paragraphs of
this Warrant are inserted for convenience only and do not
constitute a part of this Warrant. This Warrant is being
delivered and is intended to be performed in the State of
California and will be construed and enforced in accordance with,
and the rights of the parties will be governed by, the law of
such State.
10. Tax Withholding. The Company shall have the right to
require Darlington or any other person legally entitled to
exercise this Warrant to pay the Company any federal, state, or
local taxes of any kind required by law to be withheld with
respect to the exercise of this Warrant or the sale of the Shares
issued hereunder or to take such other action as may be necessary
in the opinion of the Company to satisfy all obligations for the
payment of such taxes.
11. Legend. All certificates representing Shares shall
bear the following legend:
THE SHARES OF COMMON STOCK EVIDENCED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE
TRANSFERRED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF
UNLESS (i) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED, SHALL HAVE BECOME EFFECTIVE WITH RESPECT
THERETO AND ALL APPLICABLE QUALIFICATIONS UNDER STATE SECURITIES
LAWS SHALL HAVE BEEN OBTAINED WITH RESPECT THERETO; OR (ii) A
WRITTEN OPINION FROM COUNSEL FOR THE HOLDER REASONABLY
SATISFACTORY TO THE ISSUER HAS BEEN OBTAINED STATING THAT NO SUCH
REGISTRATION OR QUALIFICATION IS REQUIRED.
IN WITNESS WHEREOF, the Company has caused this Warrant to
be signed and attested by its duly authorized officers, as of
1/15/03.
HEMACARE CORPORATION
By: /s/ Judi Irving
-----------------------------
Authorized Representative