Exhibit 10.5
NEITHER THIS SECURITY NOR THE SECURITIES INTO
WHICH THIS SECURITY IS 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 THE
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, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY
ACCEPTABLE TO THE COMPANY.
COMMON STOCK PURCHASE
WARRANT
To
Purchase
Shares of Common Stock of Clarient, Inc.
THIS COMMON STOCK PURCHASE WARRANT
CERTIFIES that, for value received, Safeguard Delaware, Inc.,
a Delaware corporation (the “ Holder ”), is
entitled, upon the terms and subject to the limitations on exercise
and the conditions hereinafter set forth, at any time on or after
[DATE OF ISSUANCE] (the “ Initial Exercise Date
”) and on or prior to the close of business on [FIVE YEAR
ANNIVERSARY OF DATE OF ISSUANCE] (the “ Termination
Date ”) but not thereafter, to subscribe for and purchase
from Clarient, Inc., a corporation incorporated in the State
of Delaware (the “ Company ”), up to ) shares
(the “ Warrant Shares ”) of Common Stock, par
value $0.01 per share, of the Company (the “ Common
Stock ”). The purchase price of one share of Common
Stock (the “ Exercise Price ”) under this
Warrant shall be
$ ,
and the Exercise Price and the number of Warrant Shares for which
the Warrant is exercisable shall be subject to adjustment as
provided herein, provided however that in no event shall the
Exercise Price be reduced below the par value of the Common
Stock. This Warrant has been issued in connection with that
certain Second Amended and Restated Senior Subordinated Revolving
Credit Agreement by and between the Company and the Holder dated as
of February 27, 2009 (the “ Credit Facility
”).
1.
Title to
Warrant . Prior to the
Termination Date and subject to compliance with applicable laws and
Section 7 of this Warrant, this Warrant and all rights
hereunder are transferable, in whole or in part, at the office or
agency of the Company by the Holder in person or by duly authorized
attorney and upon surrender of this Warrant together with the
Assignment Form annexed hereto properly endorsed.
The transferee shall sign an investment letter in form and
substance reasonably satisfactory to the Company.
2.
Authorization
of Shares . The Company covenants
that all Warrant Shares which may be issued upon the exercise of
the purchase rights represented by this Warrant will, upon exercise
of the purchase rights represented by this Warrant, be duly
authorized, validly issued, fully paid and nonassessable and free
from all taxes, liens and charges in respect of the issue thereof
(other than taxes in respect of any transfer occurring
contemporaneously with such issue).
3.
Exercise of
Warrant .
(a)
Exercise of the
purchase rights represented by this Warrant may be made at any time
or times on or after the Initial Exercise Date and on or before the
Termination Date by delivering the Notice of Exercise
Form annexed hereto duly completed and executed (which
delivery may be by facsimile), 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 registered Holder at the address of such
Holder appearing on the books of the Company) and upon full payment
of the Exercise Price of the shares thereby purchased by wire
transfer or cashier’s check drawn on a United States bank or
by means of a cashless exercise pursuant to Section 3(d), the
Holder shall be entitled to receive a certificate for the number of
Warrant Shares so purchased. Certificates for shares
purchased hereunder shall be delivered to the address specified by
the Holder in the Notice of Exercise within three (3) business
days from the delivery to the Company of the Notice of Exercise
Form, surrender of this Warrant and payment of the aggregate
Exercise Price as set forth above (“ Warrant Share Delivery Date ”). In lieu of
delivering physical certificates for the shares purchased
hereunder, provided the Company’s transfer agent is
participating in the Depository Trust Company (“
DTC ”) Fast Automated
Securities Transfer program, and so long as the resale of the
shares underlying this Warrant is covered by an effective
registration statement or the legend upon the certificates for the
shares may be removed in accordance with applicable securities
laws, upon request of the Holder, the Company shall use
commercially reasonable efforts to cause its transfer agent
electronically to transmit such shares by crediting the account of
the Holder’s prime broker with DTC through its Deposit
Withdrawal Agent Commission system (provided that the same time
limitations herein as for stock certificates shall apply and that
the Company may in all events satisfy its obligations to deliver
certificates by delivery of physical stock certificates).
This Warrant shall be deemed to have been exercised on the date the
Exercise Price is received by the Company. The Warrant Shares
shall be deemed to have been issued, and Holder or any other person
so designated to be named therein shall be deemed to have become a
holder of record of such shares for all purposes, as of the date
the Warrant has been exercised by payment to the Company of the
Exercise Price.
(b)
In addition to
any other rights available to the holder, if the Company fails to
deliver or cause its transfer agent to deliver or transmit (in the
manner contemplated by clause (a) above) to the Holder a
certificate or certificates representing the Shares pursuant to an
exercise on or before the Warrant Share Delivery Date, and if after
such date the holder is required by its broker to purchase (in an
open market transaction or otherwise) shares of Common Stock to
deliver in satisfaction of a sale by the holder of the Shares which
the Holder anticipated receiving upon such exercise (a
“ Buy-In
”), then
the Company shall promptly honor its obligation to deliver to the
Holder
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such Warrant Shares and pay
in cash to the holder the amount by which (x) the
holder’s total purchase price (including brokerage
commissions, if any) for the shares of Common Stock so purchased
exceeds (y) the amount obtained by multiplying (A) the
number of Shares that the Company was required to deliver to the
holder in connection with the exercise at issue times (B) the
closing price per share on date of exercise. The holder shall
provide the Company written notice indicating the amounts payable
to the Holder in respect of the Buy-In, together with applicable
confirmations and other evidence reasonably requested by the
Company. Nothing herein shall limit a Holder’s right to
pursue any other remedies available to it hereunder, at law or in
equity including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the
Company’s failure to timely deliver certificates representing
shares of Common Stock upon exercise of the Warrant as required
pursuant to the terms hereof.
(c)
Notwithstanding
anything to the contrary set forth herein, upon partial exercise of
this Warrant in accordance with the terms hereof, the Holder shall
not be required to physically surrender this Warrant to the Company
unless such Holder is purchasing the full amount of Warrant Shares
then represented by this Warrant. The Holder and the Company
shall maintain records showing the number of Warrant Shares so
purchased hereunder and the dates of such purchases or shall use
such other method, reasonably satisfactory to the Holder and the
Company, so as not to require physical surrender of this Warrant
upon each such exercise. The requirement of physical
surrender upon full exercise shall be satisfied by the Holder
mailing, postage prepaid, or arranging for delivery by commercial
courier this Warrant to the Company’s notice
address.
(d)
This Warrant may
also be exercised at such time by means of a “cashless
exercise” in which the Holder shall be entitled to receive a
certificate for the number of Warrant Shares equal to the quotient
obtained by dividing ((A-B) (X)) by (A), where:
(A)
= the last reported sale price of
the Common Stock on the business day immediately preceding the date
of such election or, if not reported, the fair market value of such
Common Stock as reasonably determined by the Company’s Board
of Directors;
(B)
= the Exercise Price, as adjusted;
and (X) = the number of Warrant Shares with respect to which
this Warrant is being exercised.
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4.
No Fractional
Shares or Scrip . No fractional shares
or scrip representing fractional shares shall be issued upon the
exercise of this Warrant. As to any fraction of a share which
Holder would otherwise be entitled to purchase upon such exercise,
the Company shall pay a cash adjustment in respect of such final
fraction in an amount equal to such fraction multiplied by the
Exercise Price.
5.
Charges, Taxes
and Expenses . Issuance of
certificates for Warrant Shares shall be made without charge to the
Holder for any issue or transfer tax or other incidental expense in
respect of the issuance of such certificate, all of which taxes and
expenses shall be paid by the Company, and such certificates shall
be issued in the name of the Holder or in such name or names as may
be directed by the Holder; provided, however, that in the event
certificates for Warrant Shares are to be issued in a name other
than the name of the Holder, this Warrant when surrendered for
exercise shall be accompanied by the Assignment Form attached
hereto duly executed by the Holder; and the Company may require, as
a condition thereto, the payment of a sum sufficient to reimburse
it for any transfer tax incidental thereto, compliance with the
provisions of Section 7 and an investment letter from the
transferee in form and substance reasonably satisfactory to the
Company.
6.
Closing of
Books . The Company will not
close its stockholder books or records in any manner which prevents
the timely exercise of this Warrant, pursuant to the terms
hereof.
7.
Transfer,
Division and Combination .
(a)
Subject to
compliance with any applicable securities laws and the conditions
set forth in Sections 1 and 7 hereof, this Warrant and all rights
hereunder are transferable, in whole or in part, upon surrender of
this Warrant at the principal office of the Company, together with
a written assignment of this Warrant substantially in the form
attached hereto duly executed by the Holder or its agent or
attorney and funds sufficient to pay any transfer taxes payable
upon the making of such transfer. Upon such surrender and, if
required, such payment, the Company shall execute and deliver a new
Warrant or Warrants in the name of the assignee or assignees and in
the denomination or denominations specified in such instrument of
assignment, and shall issue to the assignor a new Warrant
evidencing the portion of this Warrant not so assigned, and this
Warrant shall promptly be cancelled. A Warrant, if properly
assigned, may be exercised by a new holder for the purchase of
Warrant Shares without having a new Warrant issued.
(b)
This Warrant may
be divided or combined with other Warrants upon presentation hereof
at the aforesaid office of the Company, together with a written
notice specifying the names and denominations in which new Warrants
are to be issued, signed by the Holder or its agent or
attorney. Subject to compliance with Section 7(a), as to
any transfer which may be involved in such division or combination,
the Company shall execute and deliver a new Warrant or Warrants in
exchange for the Warrant or Warrants to be divided or combined in
accordance with such notice.
(c)
The Company shall
prepare, issue and deliver at its own expense (other than transfer
taxes) the new Warrant or Warrants under this
Section 7.
(d)
The Company
agrees to maintain, at its aforesaid office, books for the
registration and the registration of transfer of the
Warrants. This Warrant may not be transferred or sold except
pursuant to an effective registration statement under the
Securities Act of pursuant to an available exemption from, or in a
transaction not subject to, the registration requirements of the
Securities Act and in accordance with applicable state securities
laws. If, at the time of the surrender
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of this Warrant in
connection with any transfer of this Warrant, the transfer of this
Warrant shall not be registered pursuant to an effective
registration statement under the Securities Act of 1933, as amended
(the “Securities Act”) and under applicable state
securities or blue sky laws, the Company may require, as a
condition of allowing such transfer (i) that the Holder or
transferee of this Warrant, as the case may be, furnish to the
Company a written opinion of counsel (which opinion shall be in
form, substance and scope customary for opinions of counsel in
comparable transactions) to the effect that such transfer may be
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