THESE
SECURITIES HAVE NOT 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 SUCH EFFECT, THE SUBSTANCE OF WHICH
SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
WARRANT TO PURCHASE COMMON
STOCK
CARE INVESTMENT TRUST
INC.
This is to certify
that, FOR VALUE RECEIVED, CIT HEALTHCARE LLC or its assigns
registered on the registry books maintained by the Company (“
Holder ”), is entitled to purchase, subject to
the provisions of this Warrant, from Care Investment Trust Inc., a
Maryland corporation (the “ Company ”),
up to four hundred thirty-five thousand (435,000) fully paid,
validly issued and nonassessable shares (the “ Warrant
Shares ”) of the common stock, par value $.001 per
share, of the Company (“ Common Stock ”),
at the Exercise Price (as defined below) at any time or from time
to time during the period commencing on the date this Warrant is
issued to the Holder, through the Warrant Expiration Date (the
“ Exercise Period ”). The number of
Warrant Shares to be received upon the exercise of this Warrant and
the price to be paid for each Warrant Share may be adjusted from
time to time as hereinafter set forth.
1. Definitions . As used herein, the following terms
shall have the following meanings, unless the context shall
otherwise require:
(a) “
Exercise Date ” shall mean the date on which
the Company shall have received both (a) the Notice of
Exercise annexed hereto duly executed by the Holder hereof or his
attorney duly authorized in writing, and (b) if payment is to
be made in cash, cash or an official bank or certified check made
payable to the Company, of an amount in lawful money of the United
States of America equal to the Exercise Price.
(b) “
Exercise Price ” shall mean the purchase price
to be paid upon exercise of this Warrant in accordance with the
terms hereof, which price shall be $17.00 per Warrant Share,
subject to adjustment from time to time pursuant to the provisions
of Section 5 hereof.
(c) “
Warrants ” shall mean this Warrant and any
warrants into which this Warrant may be divided or
exchanged.
(d) “
Warrant Expiration Date ” shall mean 5:00 P.M.
(New York time) on September 30, 2018.
(a) The
purchase rights represented by this Warrant shall be exercisable by
the Holder in whole or in part at any time or from time to time
during the Exercise Period by the surrender of this Warrant and the
Notice of Exercise attached as Annex I hereto duly completed and
executed on behalf of the Holder, together (unless such exercise is
on a cashless basis pursuant to Section 2(b)) with the payment to
the Company, by cash or official bank or certified check, of the
Exercise Price for the Warrant Shares so purchased, at the
principal 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). This 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 (including payment), and
the person entitled to receive the 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 (but no more than
five (5) 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 Warrant
Shares issuable upon such exercise. In the event that this Warrant
is exercised in part, the Company, at its expense, shall,
simultaneously with the delivery described in the immediately
preceding sentence, execute and deliver a new Warrant of like tenor
exercisable for the number of shares for which this Warrant may
then be exercised.
(b) The
Holder may, at its option, exchange this Warrant on a cashless
basis, in whole or in part (a “ Warrant
Exchange ”), for the number of Warrant Shares
determined in accordance with this Section 2(b), by
surrendering this Warrant at the principal 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), accompanied by the Notice
of Exercise attached as Annex I hereto duly completed and executed
on behalf of the Holder indicating the Holder’s intent to
effect such exchange, the number of Warrant Shares underlying such
Warrant to be exchanged and the date of the notice of such intent
to exchange (the “ Notice of Exchange ”).
The Warrant Exchange shall take place on the date set forth in the
Notice of Exchange (the “ Exchange Date
”), which date shall not be prior to the date the Notice of
Exchange was delivered. Certificates for the Warrant Shares
issuable upon such Warrant Exchange and, if applicable, a new
Warrant of like tenor evidencing the balance of the Warrant Shares
remaining subject to this Warrant, shall be issued as of the
Exchange Date and delivered to the Holder as soon as practicable
(but not more than five (5) business days) following the
Exchange Date. In connection with any Warrant Exchange, the Company
shall issue to the Holder such number of fully paid and
nonassessable shares of Common Stock as is computed using the
following formula:
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X = the number
of shares to be issued to the Holder pursuant to the Warrant
Exchange.
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Y = the number
of shares covered by the Warrant which the Holder has elected to
exchange pursuant to this Section 2(b).
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A = the current
market price per share of Common Stock (as defined below) on the
Exchange Date.
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B = the
Exercise Price in effect under the Warrant on the Exchange Date (as
adjusted to the date of such calculation).
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For the purpose of
any computation under Subsections (b) above, the current
market price per share of Common Stock on the Exchange Date shall
be determined as follows:
(i) If
the Common Stock is listed on or quoted for trading on the American
Stock Exchange, the New York Stock Exchange, the Nasdaq Global
Market, the Nasdaq Global Select Market, or the Nasdaq Capital
Market, the current market value shall be the last reported sale
price of the Common Stock on such exchange on such trading day or
if no such sale is made on such day, the average closing bid and
asked prices for such day on such exchange;
(ii) If
the Common Stock is not so listed or quoted for trading, but is
traded or quoted for trading on the OTC Bulletin Board or in the
pink sheets, the current market value shall be the mean of the
average of the last reported bid and asked prices reported by the
National Quotation Bureau, Inc. for such trading day (or if no such
prices are available on such date, the most recent date preceding
such date when such prices were reported); or
(iii) If
the Common Stock is not so listed or admitted to unlisted trading
privileges and bid and asked prices are not so reported, the
current market value shall be an amount, not less than book value
thereof as at the end of the most recent fiscal year of the Company
ending prior to such business day, determined in such reasonable
manner as may be prescribed by the Board of Directors of the
Company.
3. Reservation of Shares; Payment of Taxes; Etc
.
(a) The
Company has issued this Warrant under the Manager Equity Plan
adopted by the Company on June 21, 2007. The Company covenants
that it will reserve a sufficient number of shares of Common Stock
to satisfy its obligation to issue Common Stock upon the exercise
of this Warrant pursuant to the terms hereof. The Company covenants
that all shares of Common Stock which shall be issuable upon
exercise of the Warrants and payment of the Exercise Price shall,
at the time of delivery, be duly and validly issued, fully paid,
nonassessable and free from all taxes, liens and charges with
respect to the issue thereof (other than those which the Company
shall promptly pay or discharge).
(b) The
Company will use reasonable efforts to obtain appropriate approvals
or registrations under state “blue sky” securities laws
with respect to the issuance of the Warrant and the Warrant Shares;
provided , however , that the Company shall not be
obligated to file any general consent to service of process or
qualify as a foreign corporation in any jurisdiction. With respect
to any such state securities laws, however, Warrants may not be
exercised by, or shares
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of Common Stock
issued to, any Registered Holder in any state in which such
exercise would be unlawful.
(c) The
Company shall pay all documentary, stamp or similar taxes and other
governmental charges that may be imposed with respect to the
issuance of any Warrants or any Warrant Shares; provided ,
however , that if the Warrant Shares are to be delivered in
a name other than the name of the Holder of the Warrant being
exercised, then no such delivery shall be made unless the person
requesting the same has paid to the Company the amount of transfer
taxes or charges incident thereto, if any.
4. Exchange, Transfer, Assignment or Loss of Warrant
.
(a) This
Warrant is exchangeable, without expense, at the option of the
Holder, upon presentation and surrender hereof to the Company or at
the office of its stock transfer agent, if any, for other warrants
of different denominations entitling the holder thereof to purchase
in the aggregate the same number of shares of Common Stock
purchasable hereunder. Subject to compliance with the conditions
set forth herein and upon surrender of this Warrant to the Company
at its principal office with the form of Assignment annexed hereto
as Annex II duly executed by the Holder (which Assignment Form
shall include a representation by the Holder to the Company that
the representations and warranties set forth in Section 8 are
true and correct as of the date of such exercise as if they had
been made on such date with respect to the Warrant Shares issuable
upon such exercise) and funds sufficient to pay any transfer tax
delivered by the Holder, the Company shall, without charge, subject
to the Holder’s compliance with the restrictive legend set
forth on the front page of this Warrant, execute and deliver a new
Warrant in the name of the assignee named in such instrument of
assignment and this Warrant shall promptly be cancelled. This
Warrant may be divided or combined with other warrants that carry
the same rights upon presentation hereof at the principal office of
the Company or at the office of its stock transfer agent, if any,
together with a written notice specifying the denominations in
which new warrants are to be issued to the Holder and signed by the
Holder hereof. Upon receipt by the Company of evidence satisfactory
to it of the loss, theft, destruction or mutilation of this
Warrant, and (in the case of loss, theft or destruction) of
reasonably satisfactory indemnification, and upon surrender and
cancellation of this
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