Attached files
| file | filename |
|---|---|
| 8-K - Patient Safety Technologies, Inc | v167522_8k.htm |
| EX-4.2 - Patient Safety Technologies, Inc | v167522_ex4-2.htm |
| EX-10.2 - Patient Safety Technologies, Inc | v167522_ex10-2.htm |
| EX-10.3 - Patient Safety Technologies, Inc | v167522_ex10-3.htm |
| EX-99.1 - Patient Safety Technologies, Inc | v167522_ex99-1.htm |
| EX-10.1 - Patient Safety Technologies, Inc | v167522_ex10-1.htm |
Exhibit
4.1
"THE
SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER ANY STATE SECURITIES LAW,
AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS (A) THERE IS
AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR LAWS COVERING SUCH
SECURITIES, OR (B) THE HOLDER RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF
THE SECURITIES REASONABLY SATISFACTORY TO THE CORPORATION, STATING THAT SUCH
SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT AND ANY FURTHER QUALIFICATION
REQUIREMENTS UNDER APPLICABLE STATE LAW."
Date:
November 19, 2009
WARRANT
TO PURCHASE COMMON STOCK
OF
PATIENT
SAFETY TECHNOLOGIES, INC.
This
certifies that, for value received, CARDINAL HEALTH, INC. (“Holder”) is entitled, subject
to the terms and conditions set forth below, to purchase from PATIENT SAFETY TECHNOLOGIES,
INC., a Delaware corporation (the “Company”), up to 1,250,000
shares of the Company’s Common Stock (the “Warrant Shares”) at an
exercise price of $2.00 per share (the “Exercise
Price”). The number, character and Exercise Price of the
Warrant Shares are subject to adjustment as provided below and all references to
“Warrant Shares” and “Exercise Price” herein shall be deemed to include any such
adjustment or series of adjustments. This Warrant is issued pursuant to Section 1(a) of that
certain Warrant Purchase Agreement between the Company and the original Holder
hereof dated as of November 19, 2009 (the “Purchase Agreement”). The
holder of this Common Stock Warrant is subject to certain restrictions, and
entitled to certain rights, as set forth in the Registration Rights Agreement,
dated on even date herewith (the “Registration Rights
Agreement”). The term “Common Stock Warrant” as used
herein shall mean this Common Stock Warrant and any Common Stock Warrants
delivered in substitution or exchange therefor as provided herein.
This
Common Stock Warrant is subject to the following terms and
conditions:
1. Term of Common Stock
Warrant. Subject to the terms and conditions set forth herein, this
Common Stock Warrant shall be exercisable, in whole or in part (but in no event
for less than the lesser of (i) 25,000 Warrant Shares and (ii) the remaining
Warrant Shares exercisable hereunder), on any business day during the period
(the “Exercise Period”)
commencing on the Closing
Date (as defined in the Purchase Agreement) and ending on the earlier to
occur of (x) the fifth anniversary date of the Closing Date, (y) a merger or
consolidation of the Company with or into any other person or entity, or tender
offer, or the sale of all or substantially all of the Company’s assets and
properties to any other person or entity (collectively, each a “Reorganization),
whereby in each instance the stockholders of the Company receive for each share
of the Company’s Common Stock held by them cash and/or securities with a fair
market value as determined in such transaction in excess of 110% of the Exercise
Price, and (z) the conditions set forth in Section 11 below.
2. Exercise of Common Stock
Warrant.
(a) Cash
Exercise. This Common Stock Warrant may be exercised by the
Holder during the Exercise Period by (i) the surrender of this Common Stock
Warrant to the Company, with the Notice of Exercise annexed hereto duly
completed and executed on behalf of the Holder, at the office of the Company (or
such other office or agency of the Company as it may designate by notice in
writing to the Holder at the address of the Holder appearing on the books of the
Company) and (ii) the delivery of payment to the Company, for the account of the
Company, by cash, wire transfer of immediately available funds to a bank account
specified by the Company, or by certified or bank cashier’s check, in an amount
equal to the Exercise Price multiplied by the number of Warrant Shares for which
this Common Stock Warrant is being exercised as specified in the Notice of
Exercise, such payment to be made in lawful money of the United States of
America. The Company agrees that such Warrant Shares shall be deemed
to be issued to the Holder as the record holder of such Warrant Shares as of the
close of business on the date on which this Common Stock Warrant shall have been
exercised and surrendered and payment made for the Warrant Shares as
aforesaid. A stock certificate or certificates for the Warrant Shares
specified in the Notice of Exercise shall be delivered to the Holder as promptly
as practicable, and in any event within five (5) business days,
thereafter. If this Common Stock Warrant shall have been exercised
only in part and has not otherwise expired, the Company shall, at the time of
delivery of the stock certificate or certificates, deliver to the Holder a new
Common Stock Warrant evidencing the right to purchase the remaining Warrant
Shares, which new Common Stock Warrant shall in all other respects be identical
with this Common Stock Warrant. No adjustments shall be made on
Warrant Shares issuable on the exercise of this Common Stock Warrant for any
cash dividends or distributions paid or payable to holders of record of any
capital stock of the Company (except for Common Stock dividends as provided in
Section 10(c) below) prior to the date as of which the Holder shall be deemed to
be the record holder of such Warrant Shares.
(b) Net Issue
Exercise. In lieu of exercising this Common Stock Warrant
pursuant to Section 2(a)
above, during the Exercise Period, the Holder may elect to convert this Common
Stock Warrant or any portion hereof into Warrant Shares, the aggregate value of
which shares shall be equal to the value of this Common Stock Warrant or portion
thereof being so converted. The conversion right may be exercised by
the Holder by surrender of this Common Stock Warrant to the Company, with a duly
executed Notice of Exercise marked to reflect the Holder’s intention to exercise
the conversion right hereunder, in which event the Company shall issue to the
Holder a number of shares computed using the following formula:
X = Y (A-B)
A
|
|
Where
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X
=
|
the
number of shares to be issued to Holder under this Section 2(b)
upon exercise of the conversion rights under this Section
2(b);
|
2
|
|
Y
=
|
the
number of Warrant Shares otherwise purchasable under this Common Stock
Warrant or, if only a portion of the Common Stock Warrant is exercised,
the number of Warrant Shares with respect to which the Common Stock
Warrant is being exercised (as adjusted to the date of such
calculation);
|
|
|
A
=
|
the
Fair Market Value (determined in the manner provided below) of one share
of the Warrant Shares subject to this Common Stock Warrant as of the date
of exercise of this Common Stock
Warrant;
|
|
|
B
=
|
the
Exercise Price (as adjusted to the date of such
calculation).
|
(c) Fair Market
Value. For purposes of the above calculation, “Fair Market Value” of one
share of Warrant Shares shall be the sum of (i) the average of the closing bid
and asked prices of the Common Stock quoted in the Over-The-Counter Market
Summary or the last reported sale price of the Common Stock or the closing price
quoted on the Nasdaq National Market or any exchange on which the Common Stock
is listed, whichever is applicable, as published in the Western Edition of The
Wall Street Journal (or such other reference reasonably relied upon by the
Company if not so published), for the twenty (20) trading days prior
to the date as of which the fair market value is being determined plus (ii) the
fair market value of (A) any securities (other than Common Stock) receivable
upon exercise of this Common Stock Warrant as a result of an adjustment pursuant
to Section 11 and (B) any other property receivable upon exercise of this Common
Stock Warrant as a result of an adjustment pursuant to Section 11(d) (the
“Adjustment Consideration”); provided, however, that if no Common Stock is then
quoted or listed or the fair market value of the Adjustment Consideration cannot
be determined by applying the procedures set forth in clause (i), the fair
market value of one share of Warrant Shares shall be determined by the Board of
Directors of the Company in good faith within ten (10) days of the date of the
Company’s receipt of Notice of Exercise based upon an arm’s length transaction
between a willing buyer and a willing seller and determined without reference to
any discount for minority interest, restrictions on transfer, disparate voting
rights among classes of capital stock or lack of marketability with respect to
capital stock and such determination (including the basis therefor) shall be
promptly provided to the Holder. Such determination by the Board of
Directors shall be binding on the Holder unless the Holder objects thereto in
writing within ten (10) business days of receipt. In the event the
Company and the Holder cannot agree on the Fair Market Value within ten (10)
business days of the date of the Holder’s objection, the Fair Market Value shall
be determined by a disinterested appraiser (which shall be a national or
regional investment bank or national accounting firm) mutually selected by the
Company and the Holder, the fees and expenses of which shall be paid by the
Company unless such determination results in a Fair Market Value no more
than ten percent (10%) in excess of the Fair Market Value initially
determined by the Board of Directors of the Company, in which case such fees and
expenses shall be borne by the Holder. Any selection of a
disinterested appraiser shall be made in good faith within seven (7) business
days after the end of the last ten (10) business day period referred to above
and any determination of Fair Market Value by a disinterested appraiser shall be
made within thirty (30) days of the date of selection.
3
(d) Delivery of Common
Stock. This Common Stock Warrant shall be deemed to have been
exercised immediately prior to the close of business on the date of its
surrender for exercise as provided above, and the person entitled to receive the
shares of Warrant Shares issuable upon such exercise shall be treated for all
purposes as the holder of record of such shares as of the close of business on
such date. As promptly as practicable on or after such date and in
any event within five (5) business days thereafter, the Company at its expense
shall issue and deliver to the person or persons entitled to receive the same a
certificate or certificates for the number of shares issuable upon such
exercise. In the event that this Common Stock Warrant is exercised in
part, the Company at its expense will execute and deliver with such certificate
or certificates a new Common Stock Warrant of like tenor exercisable for the
number of shares for which this Common Stock Warrant may then be
exercised. Holder’s sole recourse for the Company’s failure to
deliver such certificate(s) hereunder shall be governed by Section 4 under the
Purchase Agreement; provided, however, that any penalties established under such
Section 4 shall be suspended for any period of time during which Holder is
disputing the “Fair Market Value” under Section 2(c) above such that the number
of shares issuable has not yet been determined.
3. No Fractional Shares or
Scrip/Minimum Exercise. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this Common
Stock Warrant. In lieu of any fractional share to which the Holder
would otherwise be entitled, the Company shall make a cash payment equal to the
difference between the Fair Market Value of one share of Warrant Shares and the
Exercise Price multiplied by such fraction (after aggregating all shares
issuable upon exercise thereof).
4. Replacement of Common Stock
Warrant. On receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Common Stock
Warrant and, in the case of loss, theft or destruction, on delivery of an
indemnity agreement and security reasonably satisfactory in form and substance
to the Company or, in the case of mutilation, on surrender and cancellation of
this Common Stock Warrant, the Company at its expense shall execute and deliver,
in lieu of this Common Stock Warrant, a new Common Stock Warrant of like tenor
and amount.
5. Rights of a
Stockholder. Subject to Section 10 of this
Common Stock Warrant, the Holder shall not be entitled to vote or receive
dividends or be deemed the holder of Warrant Shares for any purpose, and nothing
contained herein shall be construed to confer upon the Holder, as such, any of
the rights of a stockholder of the Company or any right to vote for the election
of directors or upon any matter submitted to stockholders at any meeting
thereof, or to give or withhold consent to any corporate action (whether upon
any recapitalization, issuance of stock, reclassification of stock, change of
par value, or change of stock to no par value, consolidation, merger, conveyance
or otherwise) or to receive notice of meetings, or to receive dividends or
subscription rights or otherwise until this Common Stock Warrant shall have been
exercised as provided herein and then only as to the shares for which this
Common Stock Warrant has been so exercised.
6. Transfer of Common Stock
Warrant.
(a) Common Stock Warrant
Register. The Company will maintain a register (the “Common Stock Warrant
Register”) containing the names and addresses of the Holder or
Holders. Any Holder of this Common Stock Warrant or any portion
thereof may change such Holder’s address as shown on the Common Stock Warrant
Register by written notice to the Company requesting such change. Any
notice or written communication required or permitted to be given to the Holder
may be delivered or given by mail to such Holder as shown on the Common Stock
Warrant Register and at the address shown on the Common Stock Warrant
Register. Until this Common Stock Warrant is transferred on the
Common Stock Warrant Register of the Company, the Company may treat the Holder
as shown on the Common Stock Warrant Register as the absolute owner of this
Common Stock Warrant for all purposes, notwithstanding any notice to the
contrary.
4
(b) Common Stock Warrant
Agent. The Company may, by written notice to the Holder,
appoint an agent for the purpose of maintaining the Common Stock Warrant
Register referred to in Section 6(a) above,
issuing the Common Stock Warrant Shares or other securities then issuable upon
the exercise of this Common Stock Warrant, exchanging this Common Stock Warrant,
replacing this Common Stock Warrant or any or all of the foregoing; provided
that such appointment shall not relieve the Company of its obligations
hereunder. Thereafter, any such registration, issuance, exchange or
replacement, as the case may be, shall be made at the office of such
agent.
(c) Transferability and
Nonnegotiability of Common Stock Warrant. This Common Stock
Warrant may not be transferred or assigned in whole or in part without
compliance with all applicable federal and state securities laws by the
transferor and the transferee and compliance with the requirements set forth in
Section 6(d) and
6(e) below. Subject to the provisions of this Common Stock Warrant, title
to this Common Stock Warrant may be transferred by endorsement (by the Holder
executing the Assignment Form annexed hereto) and delivery in the same manner as
a negotiable instrument transferable by endorsement and delivery.
(d) Exchange of Common Stock
Warrant Upon a Transfer. On surrender of this Common Stock
Warrant for exchange, properly endorsed on the Assignment Form and subject to
the provisions of this Common Stock Warrant with respect to compliance with the
Act and applicable state securities laws and with the other limitations on
assignments and transfers contained in this Section 6, the
Company at its expense shall issue to or on the order of the Holder a new Common
Stock Warrant or Common Stock Warrants of like tenor, in the name of the Holder
or as the Holder (on payment by the Holder of any applicable transfer taxes) may
direct, for the number of shares issuable upon exercise hereof at the time of
such surrender.
(e) Compliance with Securities
Laws.
(i) The
Holder of this Common Stock Warrant, by acceptance hereof, acknowledges that
this Common Stock Warrant and the Warrant Shares to be issued upon exercise
hereof are being acquired solely for the Holder’s own account and not as a
nominee for any other party, and for investment, and that the Holder will not
offer, sell or otherwise dispose of this Common Stock Warrant or any Warrant
Shares to be issued upon exercise hereof except under circumstances that will
not result in a violation of the Act or any applicable state securities
laws. Holder hereby represents and warrants that such Holder is and
any transferee hereunder shall be an “accredited investor” as such term is
defined under Regulation D promulgated by the Securities and Exchange
Commission. Any transferee of this Common Stock Warrant shall represent in
writing that it is an “accredited investor” as a condition to such
transfer.
5
(ii) Subject
to the terms of the Purchase Agreement, this Common Stock Warrant and all
Warrant Shares issued upon exercise hereof shall be stamped or imprinted with a
legend in substantially the following form (in addition to any legend required
by state securities laws):
"THE SECURITIES REPRESENTED BY THIS
INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR QUALIFIED UNDER ANY STATE SECURITIES LAW, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS (A) THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT OR LAWS COVERING SUCH SECURITIES, OR (B)
THE HOLDER RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THE SECURITIES
REASONABLY SATISFACTORY TO THE CORPORATION, STATING THAT SUCH SALE, TRANSFER,
ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF SUCH ACT AND ANY FURTHER QUALIFICATION REQUIREMENTS
UNDER APPLICABLE STATE LAW.”
7. Reservation of
Stock. The Company covenants that during the Exercise Period,
the Company will reserve from its authorized and unissued shares a sufficient
number of shares to provide for the issuance of Warrant Shares upon the exercise
of this Common Stock Warrant. The Company further covenants that all
shares issued upon the exercise of rights represented by this Common Stock
Warrant and payment of the Exercise Price, in the amount and otherwise all as
set forth herein, shall be free from all taxes, liens and charges in respect of
the issue thereof (other than taxes in respect of any transfer by Holder
occurring contemporaneously). The Company further covenants that its
issuance of this Common Stock Warrant shall constitute full authority to its
officers who are charged with the duty of executing stock certificates to
execute and issue the necessary certificates for the Warrant Shares upon the
exercise of the purchase rights under this Common Stock Warrant. The
Company will take all such reasonable action as may be necessary to assure that
such Warrant Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the trading market upon
which the Common Stock may be listed.
8. Notices. All
notices required or permitted hereunder to be given shall be in writing and
shall be telecopied or mailed by registered or certified mail, postage prepaid,
or otherwise delivered by hand or by messenger or overnight
courier,
|
If
to the Company:
|
Patient
Safety Technologies, Inc.
|
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43460
Ridge Park Drive, Suite 140
|
|
|
Temecula,
CA 92951
|
|
|
Attention:
Steven H. Kane, President and Chief
Executive
Officer
|
|
|
Facsimile:
951.587.6237
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|
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With
a copy to:
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Reed
Smith LLP
|
|
101
Second Street, 20th
Floor
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|
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San
Francisco, CA 94105
|
|
|
Attn:
Donald C. Reinke
|
|
|
Facsimile:
415.391.8269
|
|
|
If
to any Holder:
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The
address set forth on the Company’s
records.
|
6
9. Amendments. Any term
of this Common Stock Warrant hereunder may be amended, waived or terminated
(either generally or in a particular instance and either retroactively or
prospectively) only with the written consent of the Company, and the
Holder. Any amendment, waiver or termination effected in accordance
with this Section
9 shall be binding upon the Company, the Holder and each transferee of
the Common Stock Warrants (and of any securities into which this Common Stock
Warrant is convertible).
10. Adjustments. The
Exercise Price and the number of shares purchasable hereunder are subject to
adjustment from time to time as follows:
(a) Reclassification,
etc. If the Company, at any time while this Common Stock
Warrant or any portion thereof is exercisable and remains outstanding and
unexpired, by reclassification of securities or otherwise, shall change any of
the securities as to which purchase rights under this Common Stock Warrant exist
into the same or a different number of securities of any other class or classes,
this Common Stock Warrant shall thereafter represent the right to acquire such
number and kind of securities as would have been issuable as the result of such
change with respect to the securities that were subject to the purchase rights
under this Common Stock Warrant immediately prior to such reclassification or
other change and the Exercise Price therefor shall be appropriately adjusted,
all subject to further adjustment as provided in this Section
10.
(b) Split, Subdivision or
Combination of Shares. If the Company, at any time while this
Common Stock Warrant or any portion thereof is exercisable and remains
outstanding and unexpired, shall split, subdivide or combine the outstanding
shares of Warrant Shares into a different number of shares of Warrant Shares,
then (i) in the case of a split or subdivision, the Exercise Price for such
securities shall be proportionately decreased and the Warrant Shares issuable
upon exercise of this Common Stock Warrant shall be proportionately increased,
and (ii) in the case of a combination, the Exercise Price for such Warrant
Shares shall be proportionately increased and the securities issuable upon
exercise of this Common Stock Warrant shall be proportionately
decreased. If the Warrant Shares are convertible into any other stock
or securities of the Company, then if all of the outstanding Warrant Shares
should be converted at any time during the Exercise Period of this
Common Stock Warrant into shares of the Company’s Common Stock or other stock or
securities of the Company then (i) this Common Stock Warrant immediately shall
become exercisable for that number of shares of such stock or securities
(subject to further adjustment as herein provided) which would have been
received if this Common Stock Warrant had been exercised in full and the Warrant
Shares received thereupon had been simultaneously converted immediately prior to
such event, (ii) the Exercise Price hereunder shall be appropriately adjusted
and (iii) all references herein to Warrant Shares shall be automatically deemed
amended to be references to the stock or securities into which the Warrant
Shares was converted.
7
(c) Adjustments for Dividends in
Stock or Other Securities. If, while this Common Stock Warrant
or any portion hereof is exercisable and remains outstanding and unexpired, the
holders of Common Stock (or any shares of stock or securities at the time
receivable upon exercise of this Common Stock Warrant) shall have received, or,
on or after the record date fixed for the determination of eligible
stockholders, shall have become entitled to receive, without payment therefor,
capital stock or any other securities, or any rights or options to subscribe
for, purchase or otherwise acquire any of the foregoing, by way of dividend,
then and in each case, Holder shall be entitled to receive upon exercise of this
Common Stock Warrant, in addition to the number of shares of the security
receivable upon exercise of this Common Stock Warrant, and without payment of
any additional consideration therefor, the amount of such capital stock and
other securities that the Holder would hold on the date of such exercise had it
been the holder of record of such capital stock as of the date on which the
holders of capital stock received or became entitled to receive such capital
stock or other securities.
(d) Merger, Consolidation or
Sale of Assets. If at any time or from time to time there
shall be a capital reorganization of the Common Stock (other than a subdivision,
combination, reclassification or exchange of shares provided for elsewhere in
this Section
10) or a merger or consolidation of the Company with or into any other
person or entity, or the sale of all or substantially all of the Company’s
assets and properties to any other person or entity, then as a part of such
reorganization, merger, consolidation or sale, unless this Common Stock Warrant
has expired in accordance with the terms set forth in Section 1 above, provision
shall be made so that the Holder shall thereafter be entitled to receive upon
the exercise of this Common Stock Warrant, the number of shares of stock or
other securities or property of the Company, or of the successor corporation
resulting from such reorganization, merger, consolidation or sale, to which a
holder of the number of shares of Common Stock issuable upon the exercise of
this Common Stock Warrant would have received if this Common Stock Warrant had
been exercised immediately prior to such reorganization, merger, consolidation
or sale and all references herein to Warrant Shares shall be automatically
deemed amended to be references to the shares of stock or other securities or
property receivable upon exercise of this Common Stock Warrant; provided, that,
as a condition to any merger, consolidation, or sale of substantially all of the
assets of the Company, unless this Common Stock Warrant has expired in
accordance with the terms set forth in Section 1 above, the Company shall
require that the surviving corporation assume in writing the obligations
pursuant to this Common Stock Warrant.
(e) Calculations. All
calculations under this Section 10 shall be made to the nearest cent or the
nearest 1/100th of a share, as the case may be. For purposes of this Section 10,
the number of shares of Common Stock deemed to be issued and outstanding as of a
given date shall be the number of shares of Common Stock (excluding treasury
shares, if any) issued and outstanding.
(f) Notice to
Holder.
(i) Whenever
an adjustment is made pursuant to any provision of this Section 10, the Company
shall promptly mail to the Holder a notice setting forth such adjustment and
setting forth a brief statement of the facts requiring such
adjustment.
8
(ii) If
(A) 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, any compulsory share exchange
whereby the Common Stock is converted into other securities, cash or property or
(B) the Company shall authorize the voluntary or involuntary dissolution,
liquidation or winding up of the affairs of the Company; then, in each case, the
Company shall cause to be mailed to the Holder at its last address as it shall
appear upon the Common Stock Warrant Register, at least twenty (20) calendar
days prior to the applicable effective date, a notice stating 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 or share
exchange; provided that the failure to mail such notice or any defect therein or
in the mailing thereof shall not affect the validity of the corporate action
required to be specified in such notice.
(iii) In
the event the Company intends to declare a dividend in cash or other property on
its Common Stock, the Company shall cause to be mailed to the Holder at its last
address as it shall appear upon the Common Stock Warrant Register, at least
fifteen (15) calendar days prior to the applicable record date, a notice
describing the dividend and providing the record date for such
dividend.
11. Early
Exercise/Termination. If for a sixty (60) consecutive trading day period
the average of the closing bid and asked prices of the Common Stock quoted in
the Over-The-Counter Market Summary or the last reported sale price of the
Common Stock or the closing price quoted on the Nasdaq National Market or any
exchange on which the Common Stock is listed, whichever is applicable, as
published in the Western Edition of The Wall Street Journal (or such other
reference reasonably relied upon by the Company if not so published) is greater
than or equal to Fifty Percent (50%) above the Exercise Price with at least an
average of Fifty Thousand (50,000) shares traded per day (appropriately adjusted
for stock splits, combinations, reclassifications and the like) during such
period (the “Early Termination Event”), then on the tenth business
day following written notice from the Company notifying Holder of the Early
Termination Event, if Holder has not elected to exercise this Warrant for cash
pursuant to Section 2(a) above on or prior to such 10th
business day, then this Warrant shall be deemed automatically exercised on such
10th
business day pursuant to the cashless/net exercise provisions under Section 2(b)
above; provided, however, that until Holder has complied with the Warrant
delivery and any other obligations under Section 2(d), the Company shall have no
obligation to deliver share certificates nor shall any damages begin to accrue
for failure to deliver such certificates until Holder’s compliance under Section
2(d).
12. No
Impairment. The Company will not, by any voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all the provisions of this Common Stock
Warrant and in the taking of all such action as may be necessary or appropriate
in order to protect the rights of the Holder against
impairment.
9
13. Right of First
Refusal. For a period of the earlier to occur of a
Reorganization and one year following the Closing Date (the “RofFR Period”),
Holder has the right of first refusal to purchase Holder’s Pro Rata
Share (as defined below), of any “New Securities” (as defined below) that the
Company may issue during the RofFR Period at a price below Fair Market
Value. Holder’s “Pro Rata
Share” for purposes of this right of first refusal is the ratio of
(a) the number of Warrant Shares exercised or exercisable under Holder’s
Warrants to (b) a number of shares of Common Stock equal to the sum of (1)
the total number of shares of Common Stock then outstanding plus (2) the total
number of shares of Common Stock into which all then-outstanding Common Stock
Equivalents (as defined below) are then convertible. “New
Securities” shall mean any Common Stock or Preferred Stock of the
Company, whether now authorized or not, and rights, options or warrants to
purchase such Common Stock or Preferred Stock, and securities of any type
whatsoever that are, or may become, convertible or exchangeable into such Common
Stock or Preferred Stock; provided, however, that the
term “New Securities” does not include (i) the
issuance of Common Stock or Common Stock Equivalents upon the conversion or
exercise of any securities or rights to acquire securities of the Company or a
Subsidiary outstanding on the Closing Date (including any adjustments provided
thereunder or any issuances that trigger an adjustment to the number of Warrant
Shares hereunder), (ii) the issuance of any Common Stock or Common Stock
Equivalents pursuant to any Company equity incentive plan approved by the
Company’s stockholders and in place as of the Closing Date, (iii) the issuance
of Common Stock or Common Stock Equivalents pursuant to acquisitions of other
entities by the Company by merger, purchase of substantially all of the assets
or other reorganization, (iv) the issuance of Common Stock or Common
Stock Equivalents in connection with strategic transactions or joint ventures
approved by a majority of the disinterested directors of the Company, or (v) the
issuance of Common Stock or Common Stock Equivalents in connection with any
product sale, technology license or acquisition, development
agreement, or marketing agreement. “Common Stock
Equivalents” means any securities of the Company or the Subsidiaries
which would entitle the holder thereof to acquire at any time Common Stock,
including without limitation, any debt, preferred stock, rights, options,
warrants or other instrument that is at any time convertible into or
exchangeable for, or otherwise entitles the holder thereof to receive, Common
Stock. In the event that the Company proposes to undertake an issuance of New
Securities, it shall give to Holder a written notice of its intention to issue
New Securities (the “Notice”),
describing the type of New Securities and the price and the general terms upon
which the Company proposes to issue such New Securities. Holder shall have 15
days from the date such Notice is delivered to agree in writing to purchase
Holder’s Pro Rata Share of such New Securities for the price and upon the
general terms specified in the Notice by giving written notice to the Company
and stating therein the quantity of New Securities to be purchased (not to
exceed Holder’s Pro Rata Share). If Holder fails to so agree in
writing within such fifteen-day period to purchase Holder’s full Pro Rata Share
of an offering of New Securities, then Holder shall forfeit the right hereunder
to purchase that part of its Pro Rata Share of such New Securities that Holder
did not so agree to purchase. In the event that Holder fails to exercise in full
the right of first refusal within such fifteen-day period, then the Company
shall have one hundred twenty days thereafter to sell the balance of the New
Securities on financial terms no less favorable to the investors in question
than as set forth in the Notice without having to again offer the New Securities
to Holder under the provisions of this Section 13.
14. Miscellaneous.
(a) This
Common Stock Warrant and all acts and transactions pursuant hereto and the
rights and obligations of the parties hereto shall be governed, construed and
interpreted in accordance with the laws of the State of Delaware without regard
to the conflict of law provisions thereof and venue shall be established in the
State of Delaware.
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(b) In
the event of a dispute with regard to the interpretation of this Common Stock
Warrant, the prevailing party may collect the cost of attorney’s fees,
litigation expenses or such other expenses as may be incurred in the enforcement
of the prevailing party’s rights hereunder.
(c) This
Common Stock Warrant shall be exercisable as provided for herein, except that in
the event that the expiration date of this Common Stock Warrant shall fall on a
day other than a business day, the expiration date for this Common Stock Warrant
shall be extended to 5:00 p.m. Eastern standard time on the first business day
following such day. For all purposes of this Common Stock Warrant, a
business day shall mean any day, other than a Saturday or a Sunday, upon which
banks are open for business in Delaware.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, PATIENT SAFETY TECHNOLOGIES, INC. has caused this Common Stock
Warrant to be executed as of the date first above written.
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COMPANY:
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PATIENT
SAFETY TECHNOLOGIES INC.
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a
Delaware corporation
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By:
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Steven
H. Kane
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President
and Chief Executive Officer
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AGREED AND
ACCEPTED:
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HOLDER:
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CARDINAL
HEALTH, INC.
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By:
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[Print
Name]
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[Title]
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12
NOTICE
OF EXERCISE
To: PATIENT
SAFETY TECHNOLOGIES, INC.
(1) The
undersigned hereby:
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¨
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elects
to purchase __________ shares of Warrant Shares (as defined in the
attached Common Stock Warrant) of PATIENT SAFETY TECHNOLOGIES, INC.
pursuant to the terms of the attached Common Stock Warrant, and tenders
herewith payment of the purchase price for such shares in full;
or
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¨
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elects
to exercise the conversion right features under Section 2(b) of
the attached Common Stock Warrant with respect to __________ shares of
Warrant Shares of PATIENT SAFETY TECHNOLOGIES, INC. pursuant to the terms
of such Common Stock Warrant.
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(2) Please
issue a certificate or certificates representing said shares of Warrant Shares
in the name of the undersigned:
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(Name)
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(Name)
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(3) Please
issue a new Common Stock Warrant for the unexercised portion of the attached
Common Stock Warrant in the name of the undersigned:
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(Name)
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(Date)
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(Signature)
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ASSIGNMENT
FORM
FOR VALUE
RECEIVED, the undersigned registered owner of this Common Stock Warrant hereby
sells, assigns and transfers unto the Assignee named below all of the rights of
the undersigned under this Common Stock Warrant, with respect to the number of
shares of Warrant Shares (as defined in the this Common Stock Warrant) set forth
below:
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Name of Assignee
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Address
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No. of
Shares
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and does
hereby irrevocably constitute and appoint the Secretary of the Company to make
such transfer on the books of PATIENT SAFETY TECHNOLOGIES, INC. maintained for
such purpose, with full power of substitution in the premises.
The
Assignee represents that it will not offer, sell or otherwise dispose of this
Common Stock Warrant or any shares of stock to be issued upon exercise hereof or
conversion thereof except under circumstances which will not result in a
violation of the Securities Act of 1933, as amended, or any applicable state
securities laws.
Dated:
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Signature
of Holder
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The
undersigned hereby agrees to be bound by the terms of the attached Common Stock
Warrant on this __ day of __________, 20__.
ASSIGNEE:
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[Name]
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By:
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Title:
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