EXHIBIT 4.9
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (this "Agreement") is made
and entered into as of the 1st day of November 1996 by and
between JOSEPH T. McDONALD (the "Warrantholder")
and HEMACARE CORPORATION, a California corporation (the
"Company").
WHEREAS, the Warrantholder and the Company are
parties to that certain Consulting Agreement dated as of
November 1, 1996 (the "Consulting Agreement"), pursuant to
which Consultant is to be compensated for his services with
warrants to purchase 20,000 shares of the Common Stock,
without par value ("Common Stock").
NOW, THEREFORE, in consideration of the foregoing,
and for the purpose of defining the terms and provisions of such
warrants, and the respective rights and obligations of the
parties with respect thereto, the Company and the
Warrantholder hereby agree as follows:
Section 1. Form of Warrants; Limitations on Transferability.
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1.1 Form and Registration. A Warrant certificate
in the form as set forth in Exhibit A attached hereto, shall be issued
to the Warrantholder upon the execution and delivery of
this Agreement by the Company and the Warrantholder. The
Warrant certificate shall be executed on behalf of the Company by
its President or by a Vice President, and attested to by its
Secretary or an Assistant Secretary.
A Warrant certificate bearing the signature of an
individual who was at any time the proper officer of the Company
shall bind the Company, notwithstanding that such individual shall
have ceased to hold such office prior to the delivery of such Warrant
certificate or did not hold such office on the date of this Agreement.
The Warrant certificate shall be dated as of the
date of signature thereof by the Company either upon initial issuance
or upon division, exchange, substitution or transfer.
Each Warrant certificate shall be numbered and
shall be registered on the books of the Company when issued.
1.2 Transfer. The Warrants shall be transferable
only on the books of the Company maintained at its principal office
in Sherman Oaks, California, or wherever its principal office may then
be located, upon delivery thereof duly endorsed by the Warrantholder or
by its duly authorized attorney or representative, accompanied by
proper evidence of succession, assignment or authority to transfer.
Upon any registration of a valid and proper transfer, the Company shall
execute and deliver a new Warrant certificate to the person entitled thereto.
1.3 Limitations on Transfer of the Warrants. The
Warrantholder agrees that prior to making any transfer or disposition of
the Warrants or the shares purchasable upon exercise of the Warrants (the
"Shares") or any interest therein, the Warrantholder shall give written
notice to the Company describing briefly the manner in which any such
proposed transfer or disposition is to be made together with an opinion of
counsel, in form and substance satisfactory to the Company, to the effect
that: (i) a registration statement or other notification or post-effective
amendment thereto (hereinafter collectively a "Registration Statement") under
the Securities Act of 1933, as amended (the "Act") is not required with
respect to such transfer or disposition or that such a Registration Statement
has been filed with, and declared effective, if necessary, by, the
Securities and Exchange Commission (the "Commission"), or (ii) all
requirements under any federal, state or foreign securities laws have been
satisfied or fulfilled such as to permit the proposed transfer or
disposition lawfully pursuant to all such laws. Except as provided in
Section 11 hereof, the Company shall not be required to cause the Warrants
or the Shares to be registered under any securities laws. The Company will,
however, respond to reasonable requests from the Warrantholder for
assistance in connection with the perfection or qualification of any
exemption from registration under applicable securities laws; provided that
the Warrantholder pays or reimburses the Company for its costs and
expenses incurred in connection therewith. Unless the context indicates
otherwise, the term "Warrantholder" shall include any transferee or
transferees of the Warrants, and the term "Warrants" shall include any and
all warrants outstanding pursuant to this Agreement, including those
evidenced by a certificate or certificates issued upon division, exchange,
substitution or transfer pursuant to this Agreement.
1.4 Legend on Shares and Warrants. Each certificate for
Warrants or Shares issued upon exercise of the Warrants shall bear the
following legend, unless, at the time of exercise, such Shares or Warrants
are subject to a currently effective Registration Statement under the Act
and, if required, are subject to a currently effective qualification or
registration under any applicable securities laws of any other jurisdiction:
THE SALE, TRANSFER, ASSIGNMENT, PLEDGE OR HYPOTHECATION OF
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE OR FOREIGN
JURISDICTION. THESE SECURITIES MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS SUCH TRANSACTION IS
DULY REGISTERED UNDER THE ACT AND ALL OTHER APPLICABLE
SECURITIES LAWS OR UNLESS SUCH TRANSFER IS EXEMPT FROM THE
REGISTRATION PROVISIONS OF THE ACT AND ALL OTHER APPLICABLE
SECURITIES LAWS. THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER UNDER A
WARRANT AGREEMENT DATED AS OF NOVEMBER 1, 1996, A COPY OF
WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THE ISSUER.
Any certificate issued at any time in exchange or substitution
for any certificate bearing such legends (except a new certificate issued
upon completion of a registered distribution as provided above) shall also
bear the above legends unless, in the opinion of the Company=s counsel,
the securities represented thereby need no longer be subject to such
restrictions.
1.5 The Warrantholder hereby represents and warrants that
it (i) is acquiring the Warrants for its own account for investment purposes
only and not with a view to or for sale in connection with a distribution of
the Warrants or the Shares; (ii) has relied on its own business and financial
knowledge and experience in making the decision to invest in the Warrants;
and (iii) has sufficient knowledge and experience in business and financial
matters to enable it to use the information made available to it about the
Company (including the Company=s periodic and other filings with the
Securities and Exchange Commission) to evaluate the merits and risks of an
investment in the Warrants and to make an informed investment decision with
respect thereto.
Section 2. Exchange of Warrant Certificate.
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Any Warrant certificate may be divided, combined or exchanged
for another certificate or certificates entitling the Warrantholder to
purchase a like aggregate number of Shares as the certificate or certificates
surrendered then entitled such Warrantholder to purchase. Any Warrantholder
desiring to divide, combine or exchange a Warrant certificate shall make such
request in writing delivered to the Company, and shall surrender, properly
endorsed, with signatures guaranteed, the certificate evidencing the Warrant
to be so exchanged. Thereupon, the Company shall execute and deliver to the
person entitled thereto a new Warrant certificate as so requested.
Section 3. Term of Warrants; Exercise of Warrants.
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Subject to the terms of this Agreement, the Warrantholder
shall have the right, at any time during the period commencing at 9:00 a.m.,
Pacific time, on the Vesting Date (as defined in Section 7.1 below), and
ending at 5:00 p.m., Pacific time, on October 31, 2001 (unless earlier
terminated in accordance herewith), to purchase from the Company (and the
Company shall issue and sell to such Warrantholder) any or all of the number
of Shares underlying the Warrants, upon surrender to the Company at its
principal office, or upon surrender to any transfer agent designated by the
Company for such purposes, of the certificate evidencing the Warrants to be
exercised, together with the purchase form attached thereto duly filled
in and signed, with signatures guaranteed, and upon payment to the Company
of the per share purchase price of $3.125 (the "Warrant Price"), subject to
adjustment as provided in Section 8, for the number of Shares in respect of
which such Warrant is then exercised, but in no event for less than 500
Shares (unless less than an aggregate of 500 Shares are then purchasable
under all outstanding Warrants held by a Warrantholder). Payment of the
aggregate Warrant Price shall be made in cash or by certified check or bank
draft.
Upon such surrender of the Warrants and payment of
such Warrant Price as aforesaid, the Company shall issue and cause to be
delivered with all reasonable dispatch to or upon the written order of the
Warrantholder and in the name of the Warrantholder a certificate or
certificates for the number of full Shares so purchased upon the exercise of
the Warrant, together with cash, as provided in Section 9 hereof, in respect
of any fractional Shares otherwise issuable upon such surrender. Such
certificate or certificates shall be deemed to have been issued and the
Warrantholder shall be deemed to have become a holder of record of such
securities as of the date of surrender of the Warrants and payment of the
Warrant Price, as aforesaid, notwithstanding that the certificate or
certificates representing such securities shall not actually have been
delivered or that the stock transfer book of the Company shall then be
closed. The Warrants shall be exercisable, at the election of the
Warrantholder, either in full or from time to time in part and, in
the event that a certificate evidencing the Warrants is exercised in
respect of less than all of the Shares specified therein at any time prior
to the termination date, a new certificate evidencing the remaining portion
of the Warrants will be issued by the Company.
Upon the exercise of a Warrant at a time when there is not
in effect under the Act a registration statement relating to the Shares
issuable upon exercise thereof and available for delivery to the
Warrantholder a prospectus meeting the requirements of Section 10(a)(3) of
the Act, the Warrantholder shall represent and warrant in writing to the
Company that the Shares purchased are being acquired for investment and not
with a view to the distribution thereof. No Shares shall be issuable upon
the exercise of any Warrant unless and until any then applicable requirements
of the Securities and Exchange Commission, the California Corporations
Commissioner, or other regulatory agencies having jurisdiction, and of any
exchanges upon which common stock of the Company may be listed, shall have
been complied with in full.
Section 4. Payment of Taxes.
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The Company will pay all United States documentary stamp
taxes, if any, attributable to the initial issuance of the Shares issuable
upon the exercise of the Warrants; provided, however, the Company shall not
be required to pay any foreign documentary stamp taxes or tax which may be
payable in respect of any transfer involved in the issuance or delivery of
any certificates for shares of Common Stock in a name other than that of the
registered holder of Warrants in respect of which such shares are issued, and
in such case neither the Company nor the Warrant Agent shall be required to
issue or deliver any certificate for shares of Common Stock or any Warrant
certificate until the person requesting the same has paid to the Company the
amount of such tax or has established to the Company's satisfaction
that such tax has been paid.
Section 5. Mutilated or Missing Warrants.
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In case the certificate or certificates evidencing the
Warrants shall be mutilated, lost, stolen or destroyed, the Company may at
its discretion, at the request of the Warrantholder, issue and deliver in
exchange and substitution for and upon cancellation of the mutilated
certificate or certificates, or in lieu of and substitution for the
certificate or certificates lost, stolen or destroyed, a new Warrant
certificate or certificates of like tenor and representing an equivalent
right or interest, but only upon receipt of evidence satisfactory to the
Company of such loss, theft or destruction of such Warrant certificate and
a bond of indemnity, if requested, also satisfactory in form and amount
at the applicant's cost. Applicants for such substitute Warrant certificates
shall also comply with such other reasonable regulations and pay such other
reasonable charges as the Company may prescribe.
Section 6. Reservation of Shares.
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There has been reserved, and the Company shall at all times
keep reserved so long as the Warrants remain outstanding, out of its
authorized Common Stock, such number of shares of Common Stock as shall be
subject to purchase under the Warrants. Every transfer agent for the
Common Stock issuable upon the exercise of the Warrants will be irrevocably
authorized and directed at all times to reserve such number of authorized
and unissued shares as shall be requisite for such purpose. The Company
will keep a copy of this Agreement on file with every transfer agent for the
Common Stock issuable upon the exercise of the Warrants. The Company will
supply every such transfer agent with duly executed stock and other
certificates, as appropriate, for such purpose and will provide or otherwise
make available any cash which may be payable as provided in Section 9 hereof.
Section 7. Vesting Date; Early Termination.
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7.1 The "Vesting Date" of the Warrants shall be the
earliest to occur of (i) November 1, 1998, (ii) the sale of all or
substantially all the assets of the Company and (iii) the 15th day prior to
the date fixed as the record date or the date of closing the stock transfer
books of the Company for the determination of the stockholders entitled to
any rights to receive merger consideration or other rights in connection with
any proposed merger or consolidation of the Company with respect to which the
Company would not be the surviving entity.
7.2 Notwithstanding any other provision of this
Agreement to the contrary, the Warrants shall immediately terminate and
shall not be or become exercisable upon the termination of the Consulting
Agreement (other than upon its expiration) at any time prior to November 1,
1998 (other than due to a termination of the Consulting Agreement by the
Warrantholder pursuant to Section 5(e) thereof). The right to exercise the
Warrants shall be suspended upon the giving of a notice by the Company to
he Warrantholder of a material breach of the Consulting Agreement until
either the termination of the Consulting Agreement by the Company pursuant
to Section 5(e) thereof or the cure of the noticed breaches to the
reasonable satisfaction of the Company within the 30-day period specified in
Section 5(e) of the Consulting Agreement, as the case may be.
Section 8. Adjustments.
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The number and kind of securities purchasable upon
the exercise of the Warrants and the Warrant Price shall be subject to
adjustment from time to time upon the happening of certain events, as
follows:
8.1 Adjustments. The number of Shares
purchasable upon the exercise of the Warrants shall be subject to adjustment
as follows:
(a) In case the Company shall (i) pay a
dividend in Common Stock or make a distribution in Common Stock, (ii)
subdivide its outstanding Common Stock, (iii) combine its outstanding Common
Stock into a smaller number of shares of Common Stock, or (iv) issue, by
reclassification of its Common Stock, other securities of the Company, the
number of Shares purchasable upon exercise of the Warrants immediately prior
thereto shall be adjusted so that the Warrantholder shall be entitled to
receive the kind and number of Shares or other securities of the Company
which the Warrantholder would have owned or would have been entitled to
receive immediately after the happening of any of the events described above,
had the Warrants been exercised immediately prior to the happening of such
event or any record date with respect thereto. Any adjustment made pursuant
to this subsection 8.1(a) shall become effective immediately after the
effective date of such event retroactive to the record date, if any, for
such event.
(b) No adjustment in the number of Shares
purchasable pursuant to the Warrants shall be required unless such adjustment
would require an increase or decrease of at least one percent in the number
of Shares then purchasable upon the exercise of the Warrants; provided, however,
that any adjustments which by reason of this subsection 8.1(b) are not
required to be made immediately shall be carried forward and taken into
account in any subsequent adjustment.
(c) Whenever the number of shares of Common
Stock purchasable upon the exercise of a Warrant is adjusted as herein
provided, the Warrant Price payable upon exercise of the Warrant shall be
adjusted by multiplying such Warrant Price by a fraction, the numerator of
which shall be the number of shares of Common Stock purchasable upon
the exercise of such Warrant immediately prior to such adjustment, and the
denominator of which shall be the number of Shares of Common Stock so
purchasable immediately thereafter.
(d) Whenever the number of Shares purchasable upon
the exercise of the Warrants is adjusted as herein provided, the Company
shall cause to be promptly mailed to the Warrantholder by certified or
registered mail, return receipt requested, postage prepaid, notice of such
adjustment and a certificate of the chief financial officer of the Company
setting forth the number of Shares purchasable upon the exercise of the
Warrants after such adjustment, a brief statement of the facts requiring such
adjustment and the computation by which such adjustment was made.
(e) For the purpose of this subsection 8.1,
the term "Common Stock" shall mean the class of stock designated as the
Common Stock of the Company at the date of this Agreement. In the event that
at any time, as a result of an adjustment made pursuant to this Section 8,
the Warrantholder shall become entitled to purchase any securities of the
Company other than Common Stock, (i) if the Warrantholder's right to purchase
is on any other basis than that available to all holders of the Company's
Common Stock, the Company shall obtain an opinion of an independent
investment banking firm valuing such other securities and (ii) thereafter the
number of such other securities so purchasable upon exercise of the Warrants
shall be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the Shares
contained in this Section 8.
8.2 No Adjustment for Dividends. Except as
provided in subsection 8.1, no adjustment in respect of any dividends or
distributions out of earnings shall be made during the term of the Warrants
or upon the exercise of the Warrants. Subject to any requirements of
California corporate laws and regulations, applicable federal and state
securities laws and regulations and any securities exchanges or over-the-
counter markets upon which the Common Stock is listed or qualified for
trading enacted or adopted after the date of this Agreement, the record date
for the payment of any dividend or distribution out of earnings made while
any of the Warrants are outstanding shall be not less than thirty (30)
days after the public announcement of the declaration of such dividend or
distribution.
8.3 Preservation of Purchase Rights upon Merger
or Consolidation. In case of any consolidation of the Company with or merger
of the Company into another corporation or in case of any sale or conveyance
to another corporation of the property, assets or business of the Company as
an entirety or substantially as an entirety, the Company or such successor or
purchasing corporation, as the case may be, shall execute with the
Warrantholder an agreement that the Warrantholder shall have the right
thereafter upon payment of the Warrant Price in effect immediately prior to
such action to purchase, upon exercise of the Warrants, the kind and amount
of shares and other securities and property which it would have owned or have
been entitled to receive after the happening of such consolidation, merger,
sale or conveyance had the Warrants been exercised immediately prior to such
action. In the event of a triangular merger in which the Company is the
surviving corporation, the right to purchase Shares under the Warrants shall
terminate on the date of such merger and thereupon the Warrants shall become
null and void, but only if the controlling corporation shall agree to
substitute for the Warrants its warrant which entitles the holder thereof to
purchase upon its exercise the kind and amount of shares and other securities
and property which it would have owned or been entitled to receive had the
Warrants been exercised immediately prior to such merger. Any such agreements
referred to in this subsection 8.3 shall provide for adjustments, which shall
be as nearly equivalent as may be practicable to the adjustments provided for
in Section 8 hereof. The provisions of this subsection 8.3 shall similarly
apply to successive consolidations, mergers, sales or conveyances.
8.4 Independent Public Accountants. The
Company may retain a firm of independent public accountants of recognized
national standing (which may be any such firm regularly employed by the
Company) to make any computation required under this Section 8, and a
certificate signed by such firm shall be presumptive evidence of the
correctness of any computation made under this Section 8.
8.5 Statement on Warrant Certificates.
Irrespective of any adjustments in the number of securities issuable upon
exercise of Warrants, Warrant certificates theretofore or thereafter issued
may continue to express the same number of securities as are stated in the
similar Warrant certificates initially issuable pursuant to this Agreement.
However, the Company may, at any time in its sole discretion (which shall be
conclusive), make any change in the form of Warrant certificate that it may
deem appropriate and that does not affect the substance thereof; and any
Warrant certificate thereafter issued, whether upon registration of transfer
of, or in exchange or substitution for, an outstanding Warrant certificate,
may be in the form so changed.
Section 9. Fractional Interests.
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The Company shall not be required to issue fractional Shares
on the exercise of the Warrants. If any fraction of a Share would, except
for the provisions of this Section 9, be issuable on the exercise of the
Warrants (or specified portion thereof), the Company shall pay an amount in
cash equal to the then Current Market Price multiplied by such fraction. For
purposes of this Agreement, the term "Current Market Price" shall mean (i) if
the Common Stock is traded in the over-the-counter market and not in the
Nasdaq National Market System nor on any national securities exchange, the
average of the per share closing bid prices of the Common Stock on the 30
consecutive trading days immediately preceding the date in question, as
reported by Nasdaq or an equivalent generally accepted reporting service, or
(ii) if the Common Stock is traded in the Nasdaq National Market System or on
a national securities exchange, the average for the 30 consecutive trading
days immediately preceding the date in question of the daily per share
closing prices of the Common Stock in the Nasdaq National Market System or on
the principal stock exchange on which it is listed, as the case may be. For
purposes of clause (i) above, if trading in the Common Stock is not reported
by Nasdaq, the bid price referred to in said clause shall be the lowest bid
price as reported in the Apink sheets@ published by National Quotation Bureau,
Incorporated. The closing price referred to in clause (ii) above shall be
the last reported sale price or, in case no such reported sale takes place on
such day, the average of the reported closing bid and asked prices, in either
case in the Nasdaq National Market System or on the national securities
exchange on which the Common Stock is then listed.
Section 10. No Rights as Shareholder; Notices to Warrantholder.
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Nothing contained in this Agreement or in the Warrants shall
be construed as conferring upon the Warrantholder any rights as a stockholder
of the Company, including the right to vote, receive dividends, consent or
receive notices as a stockholder in respect of any meeting of stockholders for
the election of directors of the Company or any other matter. If, however,
at any time following the Vesting Date and prior to the expiration of the
Warrants and prior to their exercise, any one or more of the following events
shall occur:
(a) any action which would require an
adjustment pursuant to Section 8.1 or 8.3;
(b) the Company shall make a declaration for
the payment of any other dividend or the making of any other distribution
upon the Common Stock;
(c) the Company shall make an offer to the
holders of Common Stock for the subscription or purchase by them any share of
any class or any other rights;
(d) the capital reorganization of the Company
or the reclassification of the capital stock of the Company; or
(e) the consolidation or merger of the Company
with or into another entity, the sale of all or substantially all of the
assets of the Company or the voluntary or involuntary dissolution, liquidation
or winding up of the Company; then the Company shall give notice in writing
of such event to the Warrantholder, as provided in Section 12 hereof, at
least 20 days prior to the date fixed as a record date or the date of closing
the transfer books for the determination of the stockholders entitled to any
relevant dividend, distribution, subscription rights or other rights or for
the determination of stockholders entitled to vote on such proposed dissolution,
liquidation or winding up. Such notice shall specify such record date or the
date of closing the transfer books, as the case may be. Failure to mail or
receive such notice or any defect therein shall not affect the validity
of any action taken with respect thereto.
Section 11. Registration Rights.
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(a) Whenever the Company proposes to file with
the Commission a Registration Statement (other than a registration statement
on Form S-4 or S-8 or any corresponding future forms, or any other form for
a limited purpose which excludes registration of the Shares, or any
registration statement covering only securities proposed to be issued in
exchange for securities or assets of another corporation) in connection with
the registration of its Common Stock, the Company shall, at least fifteen
(15) days prior to each suchfiling, give written notice of such proposed
filing to the Warrantholder and each holder of the Shares, and shall use its
reasonable efforts to include in such filing any proposed disposition
of the Shares (issued or issuable upon the exercise of Warrants which are
then vested in accordance with Section 7, herein) upon receipt by the Company
of a written request therefor, given within ten (10) days after such notice
is given by the Company, setting forth the facts with respect to such
proposed disposition and all other information with respect to such person
necessary to be included in such Registration Statement; provided that the
Company shall have the right to postpone or withdraw any registration of its
Common Stock (and the corresponding registration effected pursuant to this
Section 11) without obligation to the Warrantholder or any holder of the
Shares.
(b) Notwithstanding the foregoing, the Company
shall not be required to include any Shares in an underwritten public
offering unless the Warrantholder or holder of the Shares accepts the terms
of the underwriting as agreed upon between the Company and the underwriter(s)
selected by it, and then only in such quantity as will not, in the opinion of
the managing underwriter(s), jeopardize or be detrimental to the success
of the offering (including price) by the Company. In the event that the
managing underwriter(s)advise the Company in writing that the inclusion of
all or any portion of the Shares in the offering would jeopardize or be
detrimental to the success of the offering, the number of the Shares to be
included in the offering shall be reduced to the number of Shares, if any,
that the managing underwriter(s) believe may be sold without causing such
adverse effect. In the event that the managing underwriter(s) advise the
Company in writing that the inclusion of a portion of such Shares in
the offering would not jeopardize or be detrimental to the success of the
offering, and such portion is less than the amount requested for inclusion by
all persons having registration rights in respect of the offering, then the
amount to be included shall be prorated among the requesting Warrantholder,
requesting holders of the Shares and other security holders of the Company
possessing similar registration rights in accordance with their relative
holdings, it being agreed to by the Company that no person who does not
possess such registration rights shall be allowed to participate in the
offering to the exclusion of any Shares requested to be included by any
holder of the Warrants or the Shares, and such Shares shall be
offered and sold on the same terms and conditions as the shares of Common
Stock, if any, being offered by the Company in such offering. In the event
that any of the Shares are registered in connection with the registration of
an underwritten public offering but are not included in such underwritten
public offering, those Shares which are excluded from the offering shall be
withheld from the market by the Warrantholder or the holder(s) of such Shares
for a period, not to exceed 120 days, which the managing underwriter(s)
reasonably determine is necessary in order to effect the underwritten public
offering. The Company shall use its best efforts to keep effective any
Registration Statement covering any of the Shares not subject to or included
in an underwritten public offering for a period of 90 days after the later
of the effective date of such Registration Statement or the date, if any,
that the underwriter(s) specify to be the date upon which such Shares
may first be distributed.
(c) All fees, disbursements and out-of-pocket
expenses (other than brokerage or underwriting fees and commissions and legal
fees of counsel to the Warrantholder or any holder of the Shares, if any) in
connection with the filing of any Registration Statement under this Section
11 and in complying with applicable securities and Blue Sky laws shall be
borne by the Company; provided, however, that all underwriting discounts and
selling commissions applicable to the Shares covered by registrations effected
pursuant to this Section 11 shall not be borne by the Company but shall be
borne by the Warrantholder and each holder of the Shares benefited thereby.
Notwithstanding the foregoing, the Company shall not be required to register
the Shares or perfect any exemption for the offering and sale of the Shares
under (i) the securities laws of any foreign jurisdiction or (ii) the
securities laws of any State, territory or possession of the United States in
the event that registration or the perfection of an exemption under the law
of any such State, territory or possession would, in the opinion of the
Company, result in the imposition of unreasonable restrictions on the Company
or its shareholders, officers, directors or employees. The Company at its
expense will supply the Warrantholder and any holder of the Shares with
copies of such Registration Statement and the prospectus included therein and
other related documents in such quantities as may be reasonably requested by
the Warrantholder or holder of the Shares.
Section 12. Notices.
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Any notice pursuant to this Agreement by the
Company or by a Warrantholder or a holder of Shares shall be in writing and
shall be deemed to have been duly given if delivered or mailed by certified
mail, return receipt requested:
(a) If to the Warrantholder or a holder of Shares
- - addressed to Joseph . McDonald, 7660 Fay Avenue, #H232, La Jolla, California
92037.
(b) If to the Company - addressed to it at
4954 Van Nuys Boulevard, Sherman Oaks, California 91403, Attention: Hal I.
Lieberman, President and Chief Executive Officer, with a copy to Sanders,
Barnet, Goldman, Simons & Mosk, A Professional Corporation, 1901 Avenue of
the Stars, Suite 850, Los Angeles, California 90067-6078, Attention: Gordon
R. Kanofsky, Esq.
Each party may from time to time change the address to which notices to it
are to be delivered or mailed hereunder by notice in accordance herewith to
the other party.
Section 13. Successors.
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All the covenants and provisions of this Agreement by or for the
benefit of the Company, the Warrantholder or the holders of Shares shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 14. Survival of Representations and Warranties.
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All statements contained in any schedule, exhibit, certificate
or other instrument delivered by or on behalf of the parties hereto, or in
connection with the transactions contemplated by this Agreement, shall be
deemed to be representations and warranties hereunder. Notwithstanding any
investigations made by or on behalf of the parties to this Agreement, all
representations, warranties and agreements made by the parties to this
Agreement or pursuant hereto shall survive.
Section 15. Applicable Law.
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This Agreement shall be deemed to be a contract made under the
laws of the State of California and for all purposes shall be construed in
accordance with the laws of said State. This Agreement has been executed and
delivered by the parties in the State of California.
Section 16. Benefits of this Agreement.
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Nothing in this Agreement shall be construed to give to any
person or corporation other than the Company, the Warrantholder and the holders
of Shares any legal or equitable right, remedy or claim under this Agreement.
This Agreement shall be for the sole and exclusive benefit of the Company,
the Warrantholder and the holders of Shares.
Section 17. Entire Agreement; Amendments.
-----------------------------
This Agreement sets forth the entire understanding of the
parties with respect to the subject matter hereof, supersedes any and all
prior agreements with respect to the subject matter hereof, and may be
modified only by a written instrument duly executed by each party affected by
any such modification.
Section 18. Descriptive Headings.
---------------------
The descriptive headings of the several Sections of this
Agreement are inserted for convenience only and shall not control or affect
the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed, all as of the day and year first above written.
HEMACARE CORPORATION
(CORPORATE SEAL)
By: /s/ Hal I. Lieberman
--------------------------------
Hal I. Lieberman, President and
Chief Executive Officer
ATTEST:
/s/ JoAnn R. Stover
- ----------------------------
JoAnn R. Stover, Secretary
/s/ Joseph T. McDonald
------------------------------
JOSEPH T. McDONALD
EXHIBIT A
THE SALE, TRANSFER, ASSIGNMENT, PLEDGE OR
HYPOTHECATION OF THE SECURITIES REPRESENTED
BY THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE
OR FOREIGN JURISDICTION. THESE SECURITIES MAY
NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED UNLESS SUCH TRANSACTION IS DULY
REGISTERED UNDER THE ACT AND ALL OTHER
APPLICABLE SECURITIES LAWS OR UNLESS SUCH
TRANSFER IS EXEMPT FROM THE REGISTRATION
PROVISIONS OF THE ACT AND ALL OTHER
APPLICABLE SECURITIES LAWS.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO RESTRICTIONS ON TRANSFER UNDER
A WARRANT AGREEMENT DATED AS OF NOVEMBER 1,
1996, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL
OFFICE OF THE ISSUER.
WARRANT CERTIFICATE NO. McDonald 96-1
WARRANT TO PURCHASE 20,000 SHARES OF COMMON STOCK
VOID AFTER 5:00 P.M.,
PACIFIC TIME, ON OCTOBER 31, 2001
HEMACARE CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF CALIFORNIA
This certifies that, for value received, ______________________
or permitted assigns (the "Holder"), is entitled to purchase from HEMACARE
CORPORATION, a California corporation (the "Company"), at any time before
5:00 p.m., Pacific Time, on October 31, 2001, at a per share purchase price
of $3.125 (the "Warrant Price"), the number of shares of Common Stock,
without par value, of the Company set forth above (the "Shares"). The
number of Shares purchasable upon exercise of this Warrant and the
Warrant Price are subject to adjustment from time to time as set forth in
the Warrant Agreement referred to below.
This Warrant may be exercised in whole or in part by presentation of
this certificate with the Purchase Form attached hereto duly executed (with
a signature guarantee as provided on such Purchase Form) and simultaneous
payment of the Warrant Price (subject to adjustment) at the principal office
of the Company or at the office of any stock transfer agent designated by
the Company for such purposes. Payment of such price shall be made at the
option of the Holder in cash or by certified check or bank draft,
all as provided in the Warrant Agreement.
This Warrant is part of a duly authorized issue of Common Stock
Purchase Warrants with rights to purchase an aggregate of up to 20,000 Shares
of Common Stock of the Company and are issued under and in accordance with a
Warrant Agreement dated as of November 1, 1996, between the Company and
Joseph T. McDonald (the "Warrant Agreement") and are subject to the terms and
provisions contained in the Warrant Agreement, to all of which the Holder of
this Warrant certificate by acceptance hereof consents. A copy of the
Warrant Agreement may be obtained for inspection by the Holder hereof upon
written request to the Company. The Warrant Agreement provides for the early
termination of this Warrant upon the occurrence of certain events.
Upon any partial exercise of this Warrants, there shall be
countersigned and issued to the Holder a new Warrant certificate in respect
of the Shares as to which this Warrant has not been exercised. This
Warrant certificate may be exchanged at the principal office of the Company,
or at the office of any stock transfer agent designated by the Company for
such purposes, by surrender of this Warrant certificate properly endorsed
(with a signature guarantee) either separately or in combination with one or
more other Warrants for one or more new Warrants to purchase the same
aggregate number of Shares evidenced by the Warrant or Warrants exchanged.
No fractional Shares will be issued upon the exercise of this Warrant, but
the Company shall pay the cash value of any fractional share otherwise
issuable upon the exercise of this Warrant. This Warrant is transferable at
the principal office of the Company, or at the office of any stock transfer
agent designated by the Company for such purposes, in the manner and subject
to the limitations set forth in the Warrant Agreement.
The Holder hereof may be treated by the Company and all other persons
dealing with this Warrant certificate as the absolute owner hereof for all
purposes and as the person entitled to exercise the rights represented hereby,
any notice to the contrary notwithstanding, and until such transfer is entered
on such books, the Company may treat the Holder hereof as the owner for all
purposes.
This Warrant certificate does not entitle the Holder hereof to any of
the rights of a shareholder of the Company.
Dated as of: November 1, 1996 HEMACARE CORPORATION
By: /s/ Hal I. Lieberman
--------------------------
Hal I. Lieberman,
President and
Chief Executive Officer
ATTEST:
/s/ JoAnn R. Stover
- --------------------------
JoAnn R. Stover, Secretary
HEMACARE CORPORATION
PURCHASE FORM
Mailing Address:
HemaCare Corporation
4954 Van Nuys Boulevard
Sherman Oaks, California 91403
The undersigned hereby irrevocably elects to exercise the
right of purchase represented by the within Warrant for, and to purchase
thereunder, Shares of Common Stock provided for therein, and requests that
certificates for such Shares be issued in the name of:
- --------------------------------------------------------------------------
(Please Print or Type Name, Address and Social Security Number)
- --------------------------------------------------------------------------
and, if said number of Shares shall not be all the Shares purchasable
hereunder, that a new Warrant certificate for the balance of the Shares
purchasable under the within Warrant certificate be registered in the name of
the undersigned Holder or his Assignee as below indicated and delivered to
the address stated below.
I hereby make the following representations and warranties
with respect to the Shares I am hereby acquiring: (i) I am purchasing the
Shares for my own account, for investment purposes only and not with a
view to or for sale in connection with the distribution of such Shares; (ii)
I have relied on my own business and financial knowledge and experience in
making the decision to invest in the Shares; (iii) I have sufficient
knowledge and experience in business and financial matters to enable me to
use the information made available to me about the Company (including the
Company's periodic and other filings with the Securities and Exchange
Commission) to evaluate the merits and risks of an investment in the Shares
and to make an informed investment decision with respect thereto; and (iv)
I have no reason to anticipate any change in circumstances, financial or
otherwise, that necessitate or require any sale or distribution of the
Shares.
Dated: _______________________
Name of Holder or Assignee: ________________________
(Please Print)
Address: __________________________________________
__________________________________________
Signature: _________________________________________
Note: The above signature must correspond with the name as it appears upon
the face of the within Warrant certificate in every particular, without
alteration or enlargement or any change whatever, unless this Warrant has
been assigned
Signature Guaranteed:
________________________________________
(Signature must be guaranteed by a bank or trust company having an office or
correspondent in the United States or by a member firm of a registered
securities exchange or the National Association of Securities Dealers, Inc.
The guarantor of signature must be a participant in the Medallion Stamp
Program.)
ASSIGNMENT
(To be signed only upon assignment of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
_______________________________________________________________________
(Name and Address of Assignee Must Be Printed or Typewritten)
the within Warrant, hereby irrevocably constituting and
appointing ______________________________ Attorney to transfer said Warrant
on the books of the Company, with full power of substitution in the premises.
Dated: ___________________ _______________________________________
Signature of Registered Holder
The signature on this assignment must
correspond with the name as it appears upon
the face of the within Warrant certificate in
every particular, without alteration or
enlargement or any change whatever.
Signature Guaranteed:
_________________________________________
(Signature must be guaranteed by a bank or trust company having an office or
correspondent in the United States or by a member firm of a registered
securities exchange or the National Association of Securities Dealers, Inc.
The guarantor of signature must be a participant in the Medallion Stamp
Program.)