EXECUTION COPY
THIS CLASS B
WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”) OR ANY STATE
SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER
APPLICABLE STATE SECURITIES LAWS OR THE ISSUER SHALL HAVE RECEIVED
AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT
REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES ACT AND UNDER
THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS NOT
REQUIRED.
CLASS B WARRANT TO
PURCHASE
SHARES OF COMMON STOCK
OF
ACTIVECARE, INC.
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No.:
W-09-_______________
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Number of shares:
_____________
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Date of
Issuance: September ___, 2009
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FOR VALUE RECEIVED, the undersigned, ActiveCare,
Inc., a Delaware corporation (together with its successors and
assigns, the “ Issuer ”), hereby certifies that
______________________________________ or its registered assigns is
entitled to subscribe for and purchase, during the Term (as
hereinafter defined), up to ________________________________
(________________) shares (subject to adjustment as hereinafter
provided) of the duly authorized, validly issued, fully paid and
non-assessable Common Stock of the Issuer, at an exercise price per
share equal to the Warrant Price then in effect, subject, however,
to the provisions and upon the terms and conditions hereinafter set
forth. Capitalized terms used in this Class B Warrant (the “
Warrant ”) and not otherwise defined herein shall have
the respective meanings specified in Section 9 hereof.
1.
Term . The term of this Warrant shall commence on September
__, 2009 and shall expire at 6:00 p.m., Eastern Time, on September
__, 2014 (such period being the “ Term
”).
2.
Method of Exercise; Payment; Issuance of New Warrant; Transfer
and Exchange .
(a)
Time of Exercise . The purchase rights represented by this
Warrant may be exercised in whole or in part during the
Term.
(b)
Method of Exercise . The Holder hereof may exercise this
Warrant, in whole or in part, by the surrender of this Warrant
(with the exercise form attached hereto duly executed) at the
principal office of the Issuer, and by the payment to the Issuer of
an amount of consideration therefor equal to the Warrant Price in
effect on the date of such exercise multiplied by the number of
shares of Warrant Stock with respect to which this Warrant is then
being exercised, payable at such Holder’s election (i) by
certified or official bank check or by wire transfer to an account
designated by the Issuer, (ii) by “cashless exercise”
in accordance with the provisions of subsection (c) of this Section
2, or (iii) by a combination of the foregoing methods of payment
selected by the Holder of this Warrant.
(c)
Cashless Exercise . Notwithstanding any provisions herein to
the contrary and commencing upon the earlier of six (6) months
following the Original Issue Date and the date the Warrant Stock
becomes eligible for resale pursuant to Rule 144 under the
Securities Act, if (i) the Per Share Market Value of one share of
Common Stock is greater than the Warrant Price (at the date of
calculation as set forth below) and (ii) a registration statement
under the Securities Act providing for the resale of the Warrant
Stock is not then in effect or not effective at any time, in lieu
of exercising this Warrant by payment of cash, the Holder may
exercise this Warrant by a cashless exercise and shall receive the
number of shares of Common Stock equal to an amount (as determined
below) by surrender of this Warrant at the principal office of the
Issuer together with the properly endorsed Notice of Exercise in
which event the Issuer shall issue to the Holder a number of shares
of Common Stock computed using the following formula:
