NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE
EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREUNDER AND IN COMPLIANCE WITH
APPLICABLE STATE SECURITIES OR BLUE SKY LAWS.
CARESIDE, INC.
Common Stock Purchase Warrant
-----------------------------
Warrant No. RC-C-1 Dated: September 13, 2000
Careside, Inc., a Delaware corporation (the "Company"), hereby
certifies that, for value received, RoyCap, Inc., or its registered assigns (the
"Holder"), is entitled, subject to the terms and conditions set forth herein, to
purchase from the Company up to a total of 4,000,000 shares of common stock,
$.01 par value per share (the "Common Stock"), of the Company (each such share,
a "Warrant Share" and all such shares, the "Warrant Shares") in multiples of
twenty (20) shares of Common Stock, subject to the terms and conditions set
forth herein. Unless otherwise specified, capitalized terms used herein are
defined in Exhibit A attached hereto.
---------
1. Registration of Warrant. The Company shall register this
-----------------------
Warrant, upon records to be maintained by the Company for that purpose (the
"Warrant Register") in the name of the record Holder hereof from time to time.
The Company may deem and treat the registered Holder of this Warrant as the
absolute owner hereof for the purpose of any exercise hereof or any distribution
to the Holder, and for all other purposes, and the Company shall not be affected
by notice to the contrary.
2. Registration of Transfers and Exchanges.
---------------------------------------
(a) This Warrant may only be transferred pursuant to an
effective registration statement under the Securities Act, to the Company or
pursuant to an available exemption from or in a transaction not subject to the
registration requirements of the Securities Act. In connection with any transfer
of this Warrant other than pursuant to an effective registration statement or to
the Company, the Company may require the transferor thereof to provide to the
Company an opinion of counsel selected by the transferor, the form and substance
of which opinion shall be reasonably satisfactory to the Company, to the effect
that such transfer does not require registration of such Warrant under the
Securities Act. Xxxxxx agrees to the imprinting, so long as is required by this
Section 2(a), of a legend substantially similar to that first above written on
any New Warrant (as defined below). Any such transferee shall agree in writing
to be bound by the terms of
this Warrant and shall have the rights of Holder under this Warrant. The Company
shall register the transfer of any portion of this Warrant in the Warrant
Register, upon surrender of this Warrant, with the Form of Assignment attached
hereto duly completed and signed, to the Transfer Agent or to the Company at its
address for notice set forth in Section 11. Upon any such registration or
transfer, a new warrant to purchase Common Stock, in substantially the form of
this Warrant (any such new warrant, a "New Warrant"), evidencing the portion of
this Warrant so transferred shall be issued to the transferee and a New Warrant
evidencing the remaining portion of this Warrant not so transferred, if any,
shall be issued to the transferring Holder. The acceptance of the New Warrant by
the transferee thereof shall be deemed the acceptance of such transferee of all
of the rights and obligations of a holder of a Warrant.
(b) This Warrant is exchangeable, upon the surrender hereof by the
Holder to the Company at its address for notice set forth in Section 11 for one
or more New Warrants, evidencing in the aggregate the right to purchase the
number of Warrant Shares which may then be purchased hereunder. Any such New
Warrant will be dated the date of such exchange.
3. Duration, Exercise and Redemption of Warrants.
---------------------------------------------
(a) Company Call Option.
-------------------
(i) Subject to the terms and conditions set forth herein, prior
to 2:30 p.m. (New York City time) on any Trading Day (as defined in Exhibit A)
---------
during the period between the Effective Date (as defined in Exhibit A), and the
---------
Trading Day immediately following the second year anniversary of the Effective
Date (the "Expiration Date"), the Company may deliver written notices to the
Holder (each, a "Call Notice" and the Trading Day a Call Notice is delivered, a
"Delivery Date"), of the Company's election to call, for a price of $.0005 per
Warrant Share, a portion of this Warrant as further described herein; provided
that such price shall be adjusted to reflect any adjustment in the number of
Warrant Shares issuable hereunder, so that the maximum aggregate redemption
price shall continue to be $2,000. Notwithstanding anything to the contrary set
forth in this Warrant: (1) a Call Notice may not apply to a number of Warrant
Shares in excess of 20% of the average trading volume of the Common Stock for
the two (2) Trading Days immediately following the Delivery Date (the "Averaging
Period") provided that, during the Averaging Period, should the Per Share Market
-------------
Value of the Common Stock be lower than a dollar amount designated in the Call
Notice (which shall have been determined by the Board of Directors of the
Company) (the "Threshold Price") on any Trading Day, then that Trading Day shall
not be included in the Averaging Period and the number of Warrant Shares
included in the Call Notice shall be reduced to one-half of the original amount
for such Call Notice; and provided further that at no time shall the Company set
-------------------------
the Threshold Price below $3.00, unless agreed to by the Company and the Holder;
(2) no Call Notice may be delivered until the expiration of the Call Expiration
Time (as defined below) for the immediately preceding Call Notice, and (3) no
Call Notice may be delivered unless the conditions set forth in Section
3(a)(iii) have been either satisfied by the Company or waived by the Holder.
(ii) The portion of this Warrant subject to a Call Notice will be
canceled and of no further effect from and after 5:30 p.m. (New York City time)
on the second
-2-
Trading Day following Delivery Date (the "Call Expiration Time"), unless between
the Delivery Date and the Call Expiration Time the Holder notifies the Company
in writing that it will exercise this Warrant to acquire the number of Warrant
Shares subject to such Call Notice at the Exercise Price per share set forth in
Section 3(c). Such exercise shall be in accordance with Section 3(b)(ii).
(iii) The right of the Company to deliver a Call Notice is
subject to the satisfaction by the Company or waiver by the Holder, at or before
the applicable Call Expiration Time, of each of the following conditions (and,
if after delivery thereof and on the applicable Exercise Date, any of the
following conditions shall cease to be met, such Call Notice, at the option of
the Holder, shall be null and void ab initio):
(a) The Company shall have performed, satisfied and
complied in all material respects with all covenants (including timely delivery
of Warrant Shares in accordance with Section 3(a)), agreements and conditions of
the Transaction Documents (as defined in the Purchase Agreement) to be
performed, satisfied or complied with by the Company at or prior to the
applicable Delivery Date and Call Expiration Time;
(b) The Underlying Shares Registration Statement shall be
effective on the Delivery Date, not subject to any stop order or suspension;
(c) No statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated or endorsed
by any court or governmental authority of competent jurisdiction and in force on
the Delivery Date which prohibits the consummation of any of the transactions
contemplated by the Transaction Documents;
(d) Since the Closing Date (as defined in the Purchase
Agreement), no event or series of events which reasonably would be expected to
have or result in a Material Adverse Effect (as defined in the Purchase
Agreement) and no Change of Control Transaction shall have occurred;
(e) Since the Closing Date, trading in the Common Stock
shall not have been suspended by the Securities and Exchange Commission for a
period in excess of five (5) consecutive Trading Days or ten (10) Trading Days
in the aggregate (which need not be consecutive Trading Days), except for any
suspensions of trading of not more than one Trading Day solely to permit
dissemination of material information regarding the Company;
(f) On the Delivery Date, the Common Stock shall be
trading on the American Stock Exchange, or on the Nasdaq National Market the
Nasdaq Small Cap Market or the New York Stock Exchange or American Stock
Exchange (each, a "Subsequent Market");
(b) Exercise By Xxxxxx.
(i) At any time on and after the Effective Date (and in
the case of an election to purchase which is not in response to a Call Notice,
if earlier, the 90th day after the date of this Warrant), and prior to 5:30 p.m.
(New York City time) on the Expiration Date, the Holder
-3-
shall be entitled to purchase all or a portion of the Warrant Shares which have
not been previously issued and with respect to which this Warrant has not been
previously redeemed or canceled in accordance with the terms hereof; subject to
the restrictions set forth in Section 3(e) below.
(ii) The Holder may purchase Warrant Shares hereunder by delivering
to the Company, at its address for notice set forth in Section 11, a completed
Form of Election to Purchase in the form attached hereto, together with the
payment of the Exercise Price multiplied by the number of Warrant Shares
indicated therein. An "Exercise Date" means the date of the delivery (which may
be made via facsimile) of the Form of Election to Purchase and applicable
Exercise Price.
(iii) After the end of the week in which the Company receives one or
more Forms of Election to Purchase and the applicable Exercise Price, the
Company shall promptly (but in no event later than three (3) Trading Days
following the end of such week) issue or cause to be issued and cause to be
delivered to or upon the written order of the Holder and in such name or names
as the Holder may designate, a certificate for the Warrant Shares issuable upon
such exercise, free of restrictive legends except as required by the Purchase
Agreement, provided, that, if in any week the Company shall receive one or more
--------
Forms of Election to Purchase for the purchase of in excess of 30,000 Warrant
Shares, the Company shall issue such certificate no later than the third (3rd)
Trading Day following the date of the delivery of the applicable Form of
Election to Purchase which resulted in the purchase of in excess of 30,000
Warrant Shares.
(A) If the Company fails to deliver to the Holder the
certificate or certificates pursuant to this Section within the time specified
above, the Holder shall be entitled by written notice to the Company at any time
on or before its receipt of such certificate or certificates thereafter, to
rescind such exercise.
(B) In addition to the rights set forth in (A) above, if the
Company fails to deliver to the Holder such certificate or certificates pursuant
to this Section within the time specified above, and if after such time the
Holder purchases (in an open market transaction or otherwise) Common Stock to
deliver in satisfaction of a sale by such Holder of the Warrant Shares which the
Holder anticipated receiving upon such exercise (a "Buy-In"), then the Company
shall (1) pay in cash to the Holder the amount by which (x) the Holder's total
purchase price (including brokerage commissions, if any) for the Common Stock so
purchased exceeds (y) the product of (i) the aggregate number of Warrant Shares
that such Holder anticipated receiving from the exercise at issue multiplied by
(ii) the Per Share Market Value on the Exercise Date and (2) at the option of
the Holder, either rescind the exercise at issue or deliver to the Holder the
number of Warrant Shares that would have been issued had the Company timely
complied with its delivery requirements under this Section. For example, if the
Holder purchases Common Stock having a total purchase price of $11,000 to cover
a Buy-In with respect to an attempted exercise with respect to which the Per
Share Market Value on the Exercise Date was a total of $10,000, the Company
shall be required to pay the Holder $1,000. The Holder shall provide the Company
written notice indicating the amounts payable to the Holder in respect of the
Buy-In.
-4-
(c) Exercise Price.
--------------
The "Exercise Price" applicable to an exercise following a Call Notice
--------------
under Section 3(a) shall equal the lower of (i) $14.00 (subject to equitable
adjustment for stock splits, reverse splits, combinations and other similar
events in accordance with Section 7 hereof) or (ii) 95% of the average Per Share
Market Value of the Common Stock for the two (2) days prior to the Delivery Date
(the "Average Per Share Market Value"). The Exercise Price applicable to an
exercise pursuant to Section 3(b)(i) that is not in response to a Call Notice
shall equal $14.00 (subject to equitable adjustment for stock splits, reverse
splits, combinations and other similar events in accordance with Section 7
hereof).
(d) Certain Exercise Restrictions.
-----------------------------
(i) A Holder may not exercise this Warrant, or any
subdivision of this Warrant or any New Warrant, to the extent such exercise
would, when aggregated with all shares of Common Stock received by the Holder
from all prior exercises of this Warrant and all conversions of Series B
Preferred Stock for which a conversion notice had been given prior to the date
of exercise of this Warrant, result in the Holder together with any affiliate
thereof, having received a total number of shares of Common Stock greater than
1,797,631 shares (which number shall be subject to adjustment for stock splits
and similar events, and which represents 20% of the total number of shares of
Common Stock outstanding as of the original issue date of this Warrant) in
violation of Section 713 of the Listing Standards of the American Stock
Exchange, unless the Company shall have first obtained the approval of the
shareholders of the Company under the rules of the American Stock Exchange or
any other Subsequent Market on which the Common Stock is traded or listed for
trading. If the Holder has delivered to the Company a Form of Election to
Purchase for a number of Warrant Shares that would result in the issuance in
excess of the permitted amount hereunder, the Company shall notify the Holder of
this fact and shall honor the exercise for the maximum portion of this Warrant
permitted to be exercised hereunder and, at the option of the Holder, either
keep the portion of the Warrant tendered for exercise in excess of the permitted
amount hereunder for future exercises or return such excess portion of the
Warrant to the Holder.
(ii) A Holder may not exercise this Warrant to the extent
such exercise would result in the Holder, together with any affiliate thereof,
beneficially owning (as determined in accordance with Section 13(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and the rules
promulgated thereunder) in excess of 9.999% of the then issued and outstanding
shares of Common Stock, including shares issuable upon such exercise and held by
such Holder after application of this Section. Since the Holder will not be
obligated to report to the Company the number of shares of Common Stock it may
hold at the time of an exercise hereunder, unless the exercise at issue would
result in the issuance of shares of Common Stock in excess of 9.999% of the then
outstanding shares of Common Stock, the Holder shall have the authority and
obligation to determine whether the restriction contained in this Section will
limit any particular exercise hereunder and to the extent that the Holder
determines that the limitation contained in this Section applies, the
determination of which portion of this Warrant is exercisable shall be the
responsibility and obligation of the Holder. The Form of Election to Purchase
delivered by the Holder shall certify that the Holder does not own shares of
Common Stock in excess of 9.999% in toto.
-5-
If the Holder has delivered a Form of Election to Purchase for a number of
Warrant Shares that, to the knowledge of the Company, would result in the
issuance in excess of the permitted amount hereunder, the Company shall notify
the Holder of this fact and shall honor the exercise for the maximum portion of
this Warrant permitted to be exercised on such Date of Exercise in accordance
with the periods described herein and, at the option of the Holder, either keep
the portion of the Warrant tendered for exercise in excess of the permitted
amount hereunder for future exercises or return such excess portion of the
Warrant to the Holder. The provisions of this Section may be waived by a Holder
(but only as to itself and not as to any other Holder) upon not less than sixty-
one (61) days prior written notice to the Company.
4. Payment of Taxes. The Company will pay all documentary stamp taxes
----------------
attributable to the issuance of Warrant Shares upon the exercise of this
Warrant; provided, however, that the Company shall not be required to pay any
tax which may be payable in respect of any transfer involved in the registration
of any certificates for Warrant Shares or Warrants in a name other than that of
the Holder. The Holder shall be responsible for all other tax liability that may
arise as a result of holding or transferring this Warrant or receiving Warrant
Shares upon exercise hereof.
5. Replacement of Warrant. If this Warrant is mutilated, lost, stolen
----------------------
or destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation hereof, or in lieu of and substitution
for this Warrant, a New Warrant, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction and indemnity, if
requested, satisfactory to it. Applicants for a New Warrant under such
circumstances shall also comply with such other reasonable regulations and
procedures and pay such other reasonable charges as the Company may prescribe.
6. Reservation of Warrant Shares. The Company covenants that it will
-----------------------------
at all times reserve and keep available out of the aggregate of its authorized
but unissued Common Stock, solely for the purpose of enabling it to issue
Warrant Shares upon exercise of this Warrant as herein provided, the number of
Warrant Shares which are then issuable and deliverable upon the exercise of this
entire Warrant, free from preemptive rights or any other actual contingent
purchase rights of persons other than the Holder (taking into account the
adjustments and restrictions of Section 7). The Company covenants that all
Warrant Shares that shall be so issuable and deliverable shall, upon issuance
and the payment of the applicable Exercise Price in accordance with the terms
hereof, be duly and validly authorized, issued and fully paid and nonassessable.
7. Certain Adjustments.
-------------------
(a) In case of any reclassification of the Common Stock or any
compulsory share exchange pursuant to which the Common Stock is converted into
other securities, cash or property, then the Holder shall have the right
thereafter to exercise this Warrant only into the shares of stock and other
securities and property receivable upon or deemed to be held by holders of
Common Stock following such reclassification or share exchange, and the Holder
shall be entitled upon such exercise to receive such amount of securities or
property equal to the amount of Warrant Shares such Holder would have been
entitled to had such Holder exercised this Warrant immediately prior to such
reclassification or share exchange.
-6-
(b) In case of the closing of any (1) merger or consolidation of
the Company with or into another Person, or (2) sale by the Company of more than
one-half of the assets of the Company (on a book value basis) in one or a series
of related transactions, or (3) tender or other offer or exchange (whether by
the Company or another Person) pursuant to which holders of Common Stock are
permitted to tender or exchange their shares for other securities, stock, cash
or property of the Company or another Person; then the Holder shall have the
right thereafter to (A) exercise this Warrant for the shares of stock and other
securities, cash and property receivable upon or deemed to be held by holders of
Common Stock following such merger, consolidation or sale, and the Holder shall
be entitled upon exercise of this Warrant to receive such amount of securities,
cash and property as the Common Stock for which this Warrant could have been
exercised immediately prior to such merger, consolidation or sales would have
been entitled, or (B) in the event of an exchange or tender offer or other
transaction contemplated by clause (3) of this Section, tender or exchange this
Warrant for such securities, stock, cash and other property receivable upon or
deemed to be held by holders of Common Stock that have tendered or exchanged
their shares of Common Stock following such tender or exchange, and the Holder
shall be entitled upon exercise of this Warrant to receive such amount of
securities, cash and property as the shares of Common Stock for which this
Warrant could have been exercised immediately prior to such tender or exchange
would have been entitled. The terms of any such merger, sale, consolidation,
tender or exchange shall include such terms as continue to give the Holder the
right to receive the securities, cash and property set forth in this Section
upon any conversion or redemption following such event. This provision shall
similarly apply to successive such events.
(c) All calculations under this Section 7 shall be made to the
nearest cent or the nearest 1/100th of a share, as the case may be.
(d) If (i) the Company shall declare a dividend (or any other
distribution) on its Common Stock; or (ii) the Company shall declare a special
nonrecurring cash dividend on or a redemption of its Common Stock; or (iii) the
Company shall authorize the granting to all holders of the Common Stock rights
or warrants to subscribe for or purchase any shares of capital stock of any
class or of any rights; or (iv) the approval of any stockholders of the Company
shall be required in connection with any reclassification of the Common Stock,
any consolidation or merger to which the Company is a party, any sale or
transfer of all or substantially all of the assets of the Company, or any
compulsory share exchange whereby the Common Stock is converted into other
securities, cash or property; or (v) the Company shall authorize the voluntary
dissolution, liquidation or winding up of the affairs of the Company, then the
Company shall cause to be mailed to each Holder at their last addresses as they
shall appear upon the Warrant Register, at least thirty (30) calendar days prior
to the applicable record or effective date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution, redemption, rights or warrants, or if a record is not to
be taken, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distributions, redemption, rights or warrants are to
be determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer or share exchange is expected to become effective or
close, and the date as of which it is expected that holders of Common Stock of
record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation
or winding up, provided, that the failure to mail such notice
--------
-7-
or any defect therein or in the mailing thereof shall not affect the validity of
the corporate action to be specified in such notice.
8. Payment of Exercise Price. The Holder shall pay the Exercise Price for
-------------------------
Warrant Shares purchased hereunder by delivery of immediately available funds
unless otherwise agreed by the Company.
9. Fractional Shares. The Company shall not be required to issue or
-----------------
cause to be issued fractional Warrant Shares on the exercise of this Warrant.
The number of full Warrant Shares which shall be issuable upon the exercise of
this Warrant shall be computed on the basis of the aggregate number of Warrant
Shares purchasable on exercise of this Warrant so presented. If any fraction of
a Warrant Share would, except for the provisions of this Section, be issuable on
the exercise of this Warrant, the Company shall pay an amount in cash equal to
the Exercise Price multiplied by such fraction.
10. Notices. Any and all notices or other communications or deliveries
-------
hereunder shall be in writing and shall be deemed given and effective on the
earliest of (i) the date of transmission, if such notice or communication is
delivered via facsimile at the facsimile telephone number specified in this
Section prior to 8:00 p.m. (New York City time) on a business day, (ii) the
business day after the date of transmission, if such notice or communication is
delivered via facsimile at the facsimile telephone number specified in this
Section later than 8:00 p.m (New York City time) on any date and earlier than
11:59 p.m. (New York City time) on such date, (iii) the business day following
the date of mailing, if sent by nationally recognized overnight courier service,
or (iv) if sent other than by the methods set forth in (i)-(iii) of this
section, upon actual receipt by the party to whom such notice is required to be
given. The addresses for such communications shall be: (i) if to the Company,
to 0000 Xxxxxxx Xxxxxxx, Xxxxxx Xxxx, XX 00000, Attention: Chief Financial
Officer, or to Facsimile No. (000) 000-0000, or (ii) if to the Holder, to the
Holder at the address or facsimile number appearing on the Warrant Register or
such other address or facsimile number as the Holder may provide to the Company
in accordance with this Section.
11. Warrant Agent. The Company shall serve as warrant agent under this
-------------
Warrant. Upon thirty (30) days' notice to the Holder, the Company may appoint a
new warrant agent. Any corporation into which the Company or any new warrant
agent may be merged or any corporation resulting from any consolidation to which
the Company or any new warrant agent shall be a party or any corporation to
which the Company or any new warrant agent transfers substantially all of its
corporate trust or shareholders services business shall be a successor warrant
agent under this Warrant without any further act. Any such successor warrant
agent shall promptly cause notice of its succession as warrant agent to be
mailed (by first class mail, postage prepaid) to the Holder at the Holder's last
address as shown on the Warrant Register.
12. Miscellaneous.
-------------
(a) This Warrant shall be binding on and inure to the benefit of the
parties hereto and their respective successors and assigns. This Warrant may be
amended only in writing signed by the Company and the Holder and their
successors and assigns.
-8-
(b) Subject to Section 12(a), above, nothing in this Warrant shall be
construed to give to any person or corporation other than the Company and the
Holder any legal or equitable right, remedy or cause under this Warrant. This
Warrant shall inure to the sole and exclusive benefit of the Company and the
Holder.
(c) The corporate laws of the State of Delaware shall govern all
issues concerning the relative rights of the Company and its stockholders. All
other questions concerning the construction, validity, enforcement and
interpretation of this Warrant shall be governed by and construed and enforced
in accordance with the internal laws of the State of Delaware, without regard to
the principles of conflicts of law thereof. The Company and the Holder hereby
irrevocably submit to the exclusive jurisdiction of the state and federal courts
sitting in the county of Los Angeles, State of California, for the adjudication
of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and
agrees not to assert in any suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of any such court, or that such suit,
action or proceeding is improper. Each of the Company and the Holder hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by receiving a copy thereof sent
to the Company at the address in effect for notices to it under this instrument
and agrees that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be deemed to limit in
any way any right to serve process in any manner permitted by law.
(d) The headings herein are for convenience only, do not constitute a
part of this Warrant and shall not be deemed to limit or affect any of the
provisions hereof.
(e) In case any one or more of the provisions of this Warrant shall
be invalid or unenforceable in any respect, the validity and enforceability of
the remaining terms and provisions of this Warrant shall not in any way be
affected or impaired thereby and the parties will attempt in good faith to agree
upon a valid and enforceable provision which shall be a commercially reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.
[REMAINDER OF XXXX INTENTIONALLY LEFT BLANK,
SIGNATURE PAGE FOLLOWS]
-9-
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed by its authorized officer as of the date first indicated above.
CARESIDE, INC.
By:_________________________
Name:
Title:
-10-
FORM OF ELECTION TO PURCHASE
(To be executed by the Holder to exercise the right to purchase shares of Common
Stock under the foregoing Warrant)
To Careside, Inc.:
In accordance with the Warrant enclosed with this Form of Election to
Purchase, the undersigned hereby irrevocably elects to purchase _____________
shares of common stock, $.01 par value per share, of Careside, Inc. (the "Common
Stock") and , if such Holder is not utilizing the cashless exercise provisions
set forth in this Warrant, encloses herewith $________ in cash by wire transfer,
or by certified or official bank check or checks, which sum represents the
aggregate Exercise Price (as defined in the Warrant) for the number of shares of
Common Stock to which this Form of Election to Purchase relates, together with
any applicable taxes payable by the undersigned pursuant to the Warrant.
The undersigned requests that certificates for the shares of Common
Stock issuable upon this exercise be issued in the name of
PLEASE INSERT SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER
________________________________________________________________________________
________________________________________________________________________________
(Please print name and address)
By signing this Election To Purchase, the undersigned holder
represents to the Company that it is not an owner, and will not by this exercise
become the owner, of in excess of 9.999% of the outstanding shares of Common
Stock of Careside Inc. (determined from the total outstanding number of shares
of Common Stock most recently publicly reported by Careside, Inc.)
If the number of shares of Common Stock issuable upon this exercise
shall not be all of the shares of Common Stock which the undersigned is entitled
to purchase in accordance with the enclosed Warrant, the undersigned requests
that a New Warrant (as defined in the Warrant) evidencing the right to purchase
the shares of Common Stock not issuable pursuant to the exercise evidenced
hereby be issued in the name of and delivered to:
________________________________________________________________________________
(Please print name and address)
________________________________________________________________________________
________________________________________________________________________________
Dated: _____, _____ Name of Holder:
(Print) ________________________________________________________________________
(By:) ________________________________________________________________________
(Name:)
(Title:)
(Signature must conform in all respects to
name of holder as specified on the face of the
Warrant)
FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ________________________________ the right represented by the
within Warrant to purchase ____________ shares of Common Stock of Careside,
Inc. to which the within Warrant relates and appoints ________________ attorney
to transfer said right on the books of Careside, Inc. with full power of
substitution in the premises.
Dated:
_______________, __________
______________________________________
(Signature must conform in all
respects to name of holder as
specified on the face of the
Warrant)
______________________________________
Address of Transferee
______________________________________
______________________________________
In the presence of:
______________________________________
EXHIBIT A
---------
1. "Business Day" means any day except Saturday, Sunday and any day
which shall be a federal legal holiday or a day on which banking institutions in
the State of New York and the State of California are authorized or required by
law or other governmental action to close.
2. "Change of Control Transaction" means the occurrence of any of
(i) an acquisition after the date hereof by an individual or legal entity or
"group" (as described in Rule 13d-5(b)(1) promulgated under the Exchange Act) of
effective control (whether through legal or beneficial ownership of capital
stock of the Company, by contract or otherwise) of in excess of 33% of the
voting securities of the Company, (ii) a replacement at one time or over time of
more than one-half of the members of the Company's board of directors which is
not approved by a majority of those individuals who are members of the board of
directors on the date hereof (or by those individuals who are serving as members
of the board of directors on any date whose nomination to the board of directors
was approved by a majority of the members of the board of directors who are
members on the date hereof), (iii) the merger or consolidation of the Company
with or into another entity that is not wholly-owned by the Company upon the
completion of which the stockholders of the Company immediately before such
merger or consolidation own or control less than 2/3 of the voting securities of
the surviving entity, (iv) sale of 50% or more of the assets of the Company in
one or a series of related transactions, or (v) the execution by the Company of
an agreement to which the Company is a party or by which it is bound, providing
for any of the events set forth above in (i), (ii), (iii) or (iv).
3. "Commission" means the Securities and Exchange Commission.
4. "Effective Date" means the date the Underlying Shares
Registration Statement is declared effective by the Commission and notice of
such effectiveness is delivered to Holder.
5. "Per Share Market Value" means on any particular date (a) the
closing price per share of Common Stock on such date on the American Stock
Exchange or on such Subsequent Market on which the shares of Common Stock are
then listed or quoted, or if there is no such price on such date, then the
closing price on the American Stock Exchange or on such Subsequent Market on the
date nearest preceding such date, or (b) if the shares of Common Stock are not
then listed or quoted on the American Stock Exchange or a Subsequent Market, the
closing bid price for a share of Common Stock in the over-the-counter market, as
reported by the National Quotation Bureau Incorporated or similar organization
or agency succeeding to its functions of reporting prices) at the close of
business on such date, or (c) if the shares of Common Stock are not then
reported by the National Quotation Bureau Incorporated (or similar organization
or agency succeeding to its functions of reporting prices), then the average of
the "Pink Sheet" quotes for the relevant conversion period, as determined in
good faith by the Holder, or (d) if the shares of Common Stock are not then
publicly traded, the fair market value of a share of Common Stock as determined
by an Appraiser selected in good faith by the Holders of a majority in interest
of the Warrants then outstanding.
6. "Purchase Agreement" means the Securities Purchase Agreement
dated as of the date hereof, to which the Company and the original Holder hereof
are parties.
7. "Trading Day" means (a) a day on which the shares of Common Stock
are traded on the American Stock Exchange or on such Subsequent Market on which
the shares of Common Stock are then listed or quoted, or (b) if the shares of
Common Stock are not listed on the American Stock Exchange or a Subsequent
Market, a day on which the shares of Common Stock are traded in the over-the-
counter market, as reported by the OTC Bulletin Board, or (c) if the shares of
Common Stock are not quoted on the OTC Bulletin Board, a day on which the shares
of Common Stock are quoted in the over-the-counter market as reported by the
National Quotation Bureau Incorporated (or any similar organization or agency
succeeding its functions of reporting prices); provided, however, that in the
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event that the shares of Common Stock are not listed or quoted as set forth in
(a), (b) and (c) hereof, then Trading Day shall mean a Business Day.
8. "Underlying Shares Registration Statement" shall have the meaning
set forth in the Purchase Agreement.
