EXHIBIT 4.2
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (this "Agreement") is made and entered
into as of the 4th day of March, 1999 by and between STUART DINNEY (the
"Warrantholder") and HEMACARE CORPORATION, a California corporation (the
"Company").
WHEREAS, the Warrantholder and the Company are parties to that
certain Noncompetition Agreement dated as of December 30, 1998 (the
"Noncompetition Agreement"), pursuant to which Warrantholder is to
receive a warrant to purchase 60,000 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:
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(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. 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
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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.
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 October
23, 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 $0.90 (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:
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(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 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.
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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.
7.1 The applicable "Vesting Date" of the Warrants shall be
the earliest to occur of (i) the following vesting dates:
Number of Shares Vesting Date
---------------- -------------
20,000 April 1, 1999
20,000 July 1, 1999
20,000 October 1, 1999
(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
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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 (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.
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(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.
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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.
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
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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.
(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
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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.
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 Stuart Dinney, 13726 Callington Drive, Wellington, FL
33414.
(b) If to the Company - addressed to it at 4954 Van Nuys
Boulevard, Sherman Oaks, California 91403, Attention: William D.
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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.
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/ Stuart Dinney
___________________________
STUART DINNEY
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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 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
tothe 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: ______________________________