Exhibit 4.5
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THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,AS AMENDED, OR ANY STATE
SECURITIES LAWS AND CANNOT BE OFFERED, SOLD, HYPOTHECATED, TRANSFERRED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF REGISTRATION OR THE AVAILABILITY OF
AN EXEMPTION FROM REGISTRATION UNDER SUCH LAWS AS PROVIDED IN THIS WARRANT
No. of Shares: 500,000 Warrant No. A-2
Original Issue Date: November 13, 1998
WARRANT
To Purchase Shares of Common Stock of
LabOne, Inc.
This certifies that, for value received, USA Managed Care Organization,
("USA MCO") is entitled to purchase from LABONE, INC., a Delaware corporation
(the "Company"), from time to time prior to the Expiration Date in accordance
with the terms and conditions hereof, up to 500,000 shares of Common Stock of
the Company at a Purchase Price per share set forth below. The number of
shares of Common Stock purchasable hereunder and the Purchase Price therefor
are subject to adjustment as hereinafter set forth in Section 6.
1. CERTAIN DEFINITION.
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For all purposes of this Warrant the following terms shall have the
meanings indicated:
(a) "Common Stock" shall mean the Company's presently authorized shares
of Common stock, par value $0.01 per share, and any other securities into
which or for which the Common Stock may be converted or exchanged pursuant to
a plan of recapitalization, reorganization, merger, sales of assets or
otherwise.
(b) "Company" shall mean LABONE, INC., a Delaware corporation, and any
company which shall succeed to, or assume, the obligations of said corporation
hereunder.
(c) "Expiration Date" shall mean 12:01 o'clock a.m. Central Daylight
Time on December 31, 2003, which is twenty (20) calendar quarters plus
forty-five (45) days after the date hereof.
(d) "Lab Revenues" shall mean all revenues received by the Company
during the applicable calendar quarter, pursuant to the Marketing Agreement
between USA MCO and the Company dated October 19, 1998,and Third Party
Administrator Agreement between Fountainhead Administrators, Inc., Atlas
Administrators, Inc., and the Company dated October 19, 1998, ("Agreements").
Revenues paid to the Company from the Agreements may only be counted once in
determining the exercise of Warrants in Section 2 hereof.
(e) "Purchase Price" or "Purchase Price per share" shall mean the
purchase price per Warrant Share (as defined below), which shall equal $15.44,
being the closing sale price or, if no sales were reported, then average of
the closing bid and asked prices of the Common Stock, as reported by the
NASDAQ Stock market, on the last business day prior to the date of the
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Warrant, as such purchase price may thereafter be adjusted from time to time
pursuant to the provisions of Section 6 hereof (rounded to the nearest whole
cent).
(f) "Warrantholder" or "Registered Holder" shall mean USA MCO, or its
registered transferee.
(g) "Warrant" shall mean this Warrant and all Warrants issued in
exchange therefor or replacement thereof.
(h) "Warrant Shares" shall mean the share of Common Stock purchasable by
the Registered Holder upon the exercise of the Warrant pursuant to Section 2
hereof, as adjusted from time to time pursuant to Section 6 hereof.
All terms used in this Warrant which are not defined in Section 1 have
the meanings respectively set forth therefor elsewhere in this Warrant.
2. Exercise of Warrant.
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(a) Subject to the terms and conditions hereof, this Warrant may be
exercised only within sixty (60) days after the end of each applicable
calendar quarter and prior to the Expiration Date as follows:
(i) for each calendar quarter in which the Lab Revenues
reach $500,000 and are less than $1,000,000, this Warrant
may be exercised in respect of 5,000 shares of Common Stock
subject to this Warrant;
(ii) for each calendar quarter in which the Lab Revenues
reach $1,000,000 and are less than $1,500,000, this Warrant
may be exercised in respect of 10,000 shares of Common Stock
subject to this Warrant;
(iii) for each calendar quarter in which the Lab Revenues
reach $1,500,000 and are less than $2,000,000, this Warrant
may be exercised in respect of 15,000 shares of Common Stock
subject to this Warrant;
(iv) for each calendar quarter in which the Lab Revenues
reach $2,000,000 and are less than $2,500,000, this Warrant
may be exercised in respect of 20,000 shares of Common Stock
subject to this Warrant;
(v) for each calendar quarter in which the Lab Revenues
reach $2,500,000 or greater, this Warrant may be exercised in
respect of 25,000 shares of Common Stock subject to this
Warrant;
The foregoing rights to exercise shall be limited to one of the categories
set forth in 2(a)(i)-(v), above, as applicable each calendar quarter.
Anything in this Warrant to the contrary notwithstanding, this Warrant may
not be exercised at any time after a breach of any of the Agreements referred
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to in Section 1 d), unless and until such breach is cured under the
applicable provisions, if any, of such Agreements. Any specific references
or terms about this Warrant contained in any such Agreement shall and is
incorporated into the terms hereof.
(b) In order to exercise this Warrant in whole or in part, the
Registered Holder shall complete the "Notice of Intention to Exercise Warrant"
attached hereto (the "Notice Form"), and deliver this Warrant, the completed
Notice Form and either cash, a cashier's check payable to the order of the
Company or a wire transfer of funds in an amount equal to the then aggregate
Purchase Price of the Warrant Shares being purchased, to the Corporate
Secretary of the Company at the Company's office located at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ (or such other office or agency of the Company
as the Company may designate by written notice in writing to the Registered
Holder). In no event may the Warrantholder exercise the Warrant with respect
to more than 500,000 shares of Common Stock in the aggregate, subject as
provided in this Warrant.
3. Delivery of Stock Certificate, Etc. Upon Exercise.
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As soon as practicable after exercise of this Warrant, the Company shall
cause to be issued and delivered to the Registered Holder (a) a certificate
or certificates representing the aggregate number of shares of Common Stock
specified in said Notice Form, all of which shares shall be duly authorized
and validly issued, fully paid and nonassessable, (b) cash in lieu of any
fractional share based upon the fair market value of a share of Common Stock,
as determined by the Company and (c) any other securities or property
(including cash) to which such Registered Holder is entitled upon such
exercise pursuant to the terms of this Warrant. Each stock certificate
representing shares of Common Stock so issued and delivered shall be
registered in the name of the Registered Holder or, subject to the provision
of Section 4 and 5 hereof, such other name as shall be designated by the
Registered Holder. Such certificate or certificates shall be deemed to have
been issued and the Warrantholder or any other person so designated to be
named therein shall be deemed to have become a holder of record of such
shares of Common Stock only as of the date the certificate representing
such shares is issued by the Company.
4. Ownership and Transfer of Warrant and Warrant Shares.
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(a) Registered Holder. The Company may deem and treat the Registered
Holder of this Warrant as the holder and owner hereof (notwithstanding any
notations of ownership or writing hereon made by anyone other than the
Company) for all purposes, notwithstanding any notice to the contrary, until
presentation of this Warrant for registration of transfer as provided in
this Section 4.
(b) No Transfer. This Warrant may not be sold, transferred, or
assigned by the Registered Holder in whole or in part at any time.
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5. Compliance with Securities Laws.
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(a) Accredited Investor. By acceptance of this Warrant, the
Registered Holder represents and warrants that it is an "accredited
investor" within the meaning of Rule 501(a) of Regulation D promulgated
under the Securities Act of 1933, as amended (the "Securities Act"), the
Registered Holder being a corporation with total assets in excess of
$5,000,000 not formed for the specific purpose of acquiring the Warrant
or the Warrant Shares.
(b) Investment Intent. By Acceptance of this Warrant, the
Registered Holder represents and warrants that it is acquiring this
Warrant and any Warrant Shares for its own account and for the purpose
of investment and not with a view to the sale or distribution thereof.
The Registered Holder understands that this Warrant and the Warrant
Shares that may be issued upon exercise of this Warrant will not have
been registered under the Securities Act or any state securities law
(the Company being under no obligation to effect such registration) and
that this Warrant and the Warrant Shares must be held indefinitely unless
a subsequent disposition thereof is registered under the Securities Act
and applicable state securities laws or is exempt from registration as
provided herein.
(c) Limitation on Transfer. By acceptance of this Warrant, the
Registered Holder represents, covenants, and agrees that it will not sell
or otherwise dispose of this Warrant or of the Warrant Shares in the
absence of (i) registration under the Securities Act and applicable state
securities laws or (ii) an opinion acceptable in form and substance to the
Company from counsel reasonably satisfactory to the Company, or an opinion
of counsel to the Company, to the effect that no registration is required
for such disposition.
(d) Restrictive Legend. Each Warrant shall bear on the face thereof
a legend substantially in the form of the notice set forth on the first page
of this Warrant. Upon exercise of any part of the Warrant and the issuance
of any Warrant Shares, the Company shall instruct its transfer agent to
enter stop transfer orders with respect to such Warrant Shares, and the
certificates representing such Warrant Shares shall have stamped or
imprinted thereon or affixed thereto a legend to the following effect:
The securities represented by this certificate have not
been registered under the Securities Act of 1933 or any state
securities laws and may not be sold, transferred or otherwise
disposed of in the absence of registration under such laws or
an opinion in form and substance acceptable to the Company
from counsel reasonably satisfactory to the Company to the
effect that no such registration is required.
(e) State Securities Laws. This Warrant has been offered to and
accepted by the Registered Holder at its principal executive office in
the State of Texas and has not been offered to the Registered Holder in
any other State.
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6. Adjustments to the Purchase Price and Number of Warrant Shares.
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(a) Subdivision of Stock, etc. In the event of a stock dividend
or other distribution payable in Common Stock, or any stock split or
subdivision of Common Stock into a greater number of shares, the number
of Warrant Shares subject to the Warrant immediately prior to such event
shall be proportionately increased and the Purchase Price in effect
immediately prior to such event shall be proportionately reduced, and in
the event that the outstanding shares of Common Stock of the Company shall
be combined into a smaller number of shares, the number of Warrant Shares
subject to the Warrant immediately prior to such combination shall be
proportionately reduced and the Purchase Price in effect immediately prior
to such combination shall be proportionately increased.
(b) Reorganization, Consolidation, Merger, etc. In the event that
the Company shall (a) effect a reorganization or recapitalization pursuant
to which all of the outstanding shares of Common Stock are converted into
or exchanged for other securities or property (including cash), (b)
consolidate with or merge into any other person, or (c) transfer all or
substantially all of its properties or assets to any other person in such
a way that holders of Common Stock shall be entitled to receive securities
or property (including cash) with respect to or in exchange for Common
Stock; then in each such case, the Warrant holder, upon the exercise hereof
as provided in Section 2 at any time after the consummation of such
reorganization or recapitalization, consolidation, merger or sales of assets,
as the case may be, shall be entitled to receive (and the Company shall be
required to deliver) in lieu of the Warrant Shares issuable upon such
exercise prior to such and other securities and property (including cash)
to which such holder would have been entitled upon such consummation, if
such Warrantholder had so exercised this Warrant immediately prior thereto.
The above provision shall apply to successive reorganizations,
recapitalizations, consolidations, mergers or transfers described therein.
7. Notice of Record Date, etc. In the event of
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(a) any taking by the Company of a record of the holders of Common
Stock for the purpose of determining the holders thereof who are entitled
to receive any dividend (excluding any cash dividend payable out of
earnings or earned surplus of the Company), or any right to subscribe
for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right, or
(b) any transfer of all or substantially all of the assets of the
Company to or consolidation or merger of the Company with or into any
other person, or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then and in each event the Company shall cause to be mailed to the
Warrantholder a notice containing a brief description of the proposed
action and stating the date on which either a record is to be taken for
the purpose of such dividend, distribution or rights, or the date upon
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which such transfer, consolidation, merger, dissolution, liquidation or
winding-up is to take place and the time, if any is to be fixed, as of
which the holders of Common Stock or other securities shall receive cash
or other property deliverable upon such transfer, consolidation, merger,
dissolution, liquidation or winding-up. Such notice shall also state
that the action in question or the record is subject to the effectiveness
of a registration statement under the Securities Act or a favorable vote
of stockholders, if either is required. Such notice shall be mailed to
the Warrant holder at least ten (10) days prior to the date specified in
such notice on which any such action is to be taken or the record date,
whichever is earlier.
8. Reservation of Warrant Shares.
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During the term of this Warrant, the Company shall at all times reserve
and keep available from its authorized but unissued and treasury shares
such number of shares of its Common Stack as shall be issuable upon
exercise of the Warrant.
9. Notices.
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Any notice or other document required or permitted to be given or
delivered to the Registered Holder shall be delivered at, or sent
certified or registered mail to the Registered Holder at the last
address shown on the books of the Company maintained for the registry
and transfer of the Warrants.
10. No Rights as Stockholder.
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This Warrant shall not entitle the Registered Holder to any voting or
other rights as a stockholder of the Company.
11. Replacement of Warrant.
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Upon receipt of evidence reasonably satisfactory to the Company of the
loss, theft, destruction or mutilation of this Warrant and, in the case
of such loss, theft or destruction, upon delivery of an indemnity bond
reasonably satisfactory in form and amount to the Company or, in the case
of any such mutilation, upon surrender and cancellation of such Warrant,
the Company at its expense will execute and deliver, in lieu thereof, a
new Warrant of like tenor.
12. Law Governing.
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This Warrant shall be governed by, and construed and enforced in
accordance with, the laws of the State of Delaware (excluding the
choice of law provisions thereof).
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13. Miscellaneous.
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This Warrant and any provision hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by
the party (or any predecessor in interest thereof) against which
enforcement of the same is sought. The headings in this Warrant are
for purposes of reference only and shall not effect the meaning or
construction of any of the provisions hereof.
IN WITNESS WHEREOF, this Warrant is executed effective as of the
day and year first above written.
LABONE, INC.
By:
/s/ W. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
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W. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
Its Chairman of the Board, President,
and Chief Executive Officer
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NOTICE OF INTENTION TO EXERCISE WARRANT
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The undersigned hereby notifies LabOne, Inc. that he has elected
to exercise its right under the within Warrant to purchase
shares of Common Stock, and has effected a wire transfer to LabOne, Inc.
or enclosed herewith cash or a cashier's check payable to LabOne, Inc. in
the total amount of $ in payment of the Purchase Price for
shares. The certificate(s) representing the shares of Common Stock being
purchased should be delivered in the denominations and to the persons
described below:
No. of
Name Address Shares
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Date: By:
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(Signature)
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(Print Name)
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(Title)
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