EXHIBIT 4.1
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (this "Agreement") is made and entered into as of
the 4th day of March, 1999 by and between KIBEL GREEN ISSA, INC. (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 September 4, 1998 (the "Consulting Agreement"),
pursuant to which Warrantholder is to receive a warrant to purchase 35,000
shares of the common stock of the Company ("Common Stock"), without par
value (the "Common Stock"), subject to vesting as provided herein.
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.
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
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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. Warrantholder hereby represents
and warrants to the Company that (i) Warrantholder understands that the
offering and sale of the Warrants and the shares purchasable upon exercise
thereof have not been, and will not be, registered under the Act or under any
state securities laws, and are being offered and sold in reliance upon
federal and state exemptions for transactions not involving any public
offering, and that, as such, the Warrants and the shares purchasable upon
exercise thereof will not be freely transferable, that certificates
representing the Securities will bear restrictive legends under applicable
federal and state securities laws as provided below and shall be subject
to stops on transfer. 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 MARCH 4, 1999, 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
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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.
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.
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 applicable Vesting Date (as defined in Section 7.1 below), and ending
at 5:00 p.m., Pacific time, on September 4, 2003 (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 which have vested as provided in Section 7.1 below,
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 $0.31 (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 cashiers or certified check or bank draft. In lieu
of such payment, Warrantholder shall be entitled to receive, without the
payment by the Warrantholder of any additional consideration, shares of
Common Stock equal to the value of this Warrant or any portion hereof by
the surrender of this Warrant or such portion to the company, with the
net issue election notice attached hereto as Exhibit B duly executed, at
the principal office of the Company. Thereupon, the Company shall issue to
the Warrantholder such number of fully paid and nonassessable shares of
Common Stock as is computed using the following formula:
(A-B)
X=Y ------
A
Where: X= the number of shares of Common Stock to be issued to the
Warrant holder.
Y= the number of shares of Common Stock covered by this
Warrant in respect of which the net issue election is
made.
A= the fair market value of one share of Common stock, as
determined below, as at the time the net issue election
is made.
B= the Exercise Price in effect under this Warrant at the time
the net issue election is made.
For purpose of this Section, fair market value of one share of Common Stock
as of a particular date shall mean the closing price of the Company's Common
Stock on the OTC Bulletin Board or other quotation medium or stock exchange
or which the Common Stock is quoted or listed on the day notice of exercise is
provided to the Company as provided above. If the Common Stock is not so
quoted or listed as provided above, then the fair market value of one share
of Common Stock shall be determined by the Board of Directors of the Company
in good faith, which determination shall be conclusive and binding on the
Warrantholder.
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 actuallyhave 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.
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Section 4. Payment of Taxes.
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.
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.
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.
The applicable "Vesting Date" of the Warrants shall be the earliest to
occur of (i) September 4, 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.
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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 (a) the breach by Warrantholder of any provision
of the Noncompetition Agreement, or (b) the termination of Warrantholder's
employment with the company for Cause (as defined below). Cause shall mean
(i) the conviction of a felony in a court of law, (ii) a material breach
of fiduciary duty owed to the Company, or (iii) gross neglect of duties
by the Warrantholder.
Section 8. Adjustments.
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.
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(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
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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.
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 "pink 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.
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;
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(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 Warrant-
holder, 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.
(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 such filing, 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
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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. In addition, the
Company shall have no obligation to register the Shares in the event the
Warrantholder is free to sell such securities under Rule 144 under the Act.
Section 12. Notices.
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
Kibel Green Issa, Inc., 2001 Wilshire Boulevard, Suite 420, Santa Monica, CA
90403-5640, Attention: Steven J. Green, President.
(b) If to the Company - addressed to it at 4954 Van Nuys
Boulevard, Sherman Oaks, California 91403, Attention: William D. Nicely,
Chief Executive Officer, with a copy to Sheppard, Mullin Richter & Hampton,
LLP, 333 South Hope Street, 48th Floor, Los Angeles, California 90071,
Attention: James M. Rene, Esquire.
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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.
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.
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.
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.
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.
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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/ William D. Nicely
________________________
William D. Nicely
Chief Executive Officer
ATTEST:
/s/ JoAnn Stover
____________________________
JoAnn R. Stover, Secretary /s/ Steven J. Green
__________________________
Steven J. Green, President
KIBEL GREEN ISSA, INC.
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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 ______________, A COPY OF
WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THE ISSUER.
WARRANT CERTIFICATE NO. __________
WARRANT TO PURCHASE _______ SHARES OF COMMON STOCK
VOID AFTER 5:00 P.M.,
PACIFIC TIME, ON ___________, 20__
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 _______, 200_, at a per share purchase
price of $_____ (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 ________ Shares of
Common Stock of the Company and are issued under and in accordance with a
Warrant Agreement dated as of ________, 19__, between the Company and
_____________ (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: ___________ HEMACARE CORPORATION
By:
------------------------
William D. Nicely
Chief Executive Officer
ATTEST:
___________________________
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 f
or 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.)
EXHIBIT B
Net Issue Election
HemaCare Corporation
4954 Van Nuys Boulevard
Sherman Oaks, CA 91403
Ladies and Gentlemen:
The undersigned hereby elects under Section __ of the Warrant dated ________
(the "Warrant"), to exercise its right to receive ________ shares of Common
Stock pursuant to the Warrant. The certificate(s) for such shares issuable
upon such net issue election shall be issued in the name of the undersigned
or as otherwise indicated below:
Name for Registration: _________________________________________________
Mailing Address: _________________________________________________
_________________________________________________
Name: _____________________________________
By: _____________________________________
Its: _____________________________________