Exhibit 10.18
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: 50,000 Warrant No. _______
Original Issue Date: May 14, 1999
WARRANT
To Purchase Shares of Common Stock of
LABONE, INC.
This certifies that, for value received, STC TECHNOLOGIES,
INC. ("STC") is entitled to purchase from LABONE, INC., a Delaware corporation,
from time to time prior to the Expiration Date in accordance with the terms and
conditions hereof, up to 50,000 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 Definitions. 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 $ .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, sale
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 July 13, 2001, which is eight (8) calendar quarters plus sixty
(60) days after the date hereof.
(d) "Purchase Price" or "Purchase Price per share" shall mean
the purchase price per Warrant Share (as defined below), which shall equal $.01.
(e) "Warrantholder" or "Registered Holder" shall mean STC, or
its registered transferee.
(f) "Warrant" shall mean this Warrant and all Warrants issued
in exchange therefor or replacement thereof.
(g) "Warrant Shares" shall mean the shares of Common Stock
purchasable by the Registered Holder upon the exercise of this 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.
(a) Subject to the terms and conditions hereof, this Warrant
may be exercised only on or after the date which is one year from the Original
Issue Date of this Warrant, and prior to the Expiration Date.
(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 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 notice in writing to the Registered Holder) either
(i) this Warrant, the Notice Form completed to reflect an exercise for cash 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, or
(ii) this Warrant, the Notice Form completed to reflect a cashless exercise
without any payment of cash, cashier's check or wire-transferred funds, in
which case the Company shall issue to the Registered Holder a number of
shares of Common Stock computed using the following formula:
X = Y(A-B)
------
A
Where:
X = the number of shares of Common Stock to be issued.
Y = the number of Warrant Shares exercised by Warrantholder.
A = the fair market value of one share of Common Stock.
B = Purchase Price per share.
As used in this section, the fair market value of the Common
Stock shall mean, with respect to each share of Common Stock,
the average of the closing prices of the Company's Common
stock sold on all securities exchanges on which the Common
Stock may at the time be listed (including, for this purpose,
the NASDAQ National Market), or, if at any time the Common
Stock is not so listed,
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the average of the representative bid and asked prices quoted in the
NASDAQ system as of 4:00 p.m., New York City time, or, if at any time
the Common Stock is not quoted in the NASDAQ System, the average of the
highest bid and lowest asked price in the domestic over-the-counter
market as reported by the National Quotation Bureau, Incorporated, or
any similar successor organization, in each such case on the day on
which the Notice of Exercise is received or if no sales of the Common
Stock have occurred on date, on the next preceding date on which there
were such sales. If at any time the Common Stock is not listed on any
securities exchange or quoted in the NASDAQ System or the
over-the-counter market, the fair market value of the Common Stock
shall be the highest price per share which the Company could obtain
from a willing buyer (who is not a current employee or director) for a
share of Common Stock sold by the Company, from authorized but unissued
shares, as determined in good faith by the Board of Directors of the
Company.
In no event may the Warrantholder exercise the Warrant with respect to more than
50,000 shares of Common Stock in the aggregate, subject to adjustment as
provided in this Warrant.
3. Delivery of Stock Certificate, Etc. Upon Exercise. As soon as
practicable after exercise of this Warrant and, in any event, within ten (10)
days after each such exercise, 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 provisions of Sections 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.
(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) Transfer. This Warrant and all rights hereunder are
transferable in whole or in part upon the surrender of this Warrant with a
properly executed assignment at the principal office of the Company; provided,
however, that this Warrant and Warrantholder's rights thereunder are in all
respects subject to all provisions of Section 5, including but not limited to
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the requirement in Section 5(c).
(c) Exchange of Warrant Upon a Transfer. On surrender of this
Warrant for exchange, together with a properly endorsed Assignment, and subject
to the provisions of this Warrant including all provisions of Section 5,
including but not limited to the requirement in Section 5(c), the Company at its
expense shall issue to or on the order of the Registered Holder a new warrant or
warrants of like tenor, in the name of the Registered Holder or as the Holder
(on payment by the Holder of any applicable transfer taxes) may direct, for the
number of shares of Common Stock issuable upon exercise hereof.
5. Compliance with Securities Laws.
(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
of 1933, as amended (the "Securities Act") or any state securities laws (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
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reasonably satisfactory to the Company to the effect that no such
registration is required.
However, if the Company receives 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 any stop transfer order or legends
may be removed without violation of applicable law, then the Company shall
instruct its transfer agent to remove any such stop transfer order and such
legends.
(e) State Securities Laws. This Warrant has been offered to
and accepted by the Registered Holder at its principal executive office in the
Commonwealth of Pennsylvania and has not been offered to the Registered Holder
in any other State.
6. Adjustments to the Purchase Price and Number of Warrant Shares.
(a) Subdivision of Stock, etc. In the event of a stock
dividend or other distribution payable in Common Stock or other securities
convertible into or exchangeable for shares of 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 Warrantholder, upon the exercise hereof as provided in Section 2 at any time
after the consummation of such reorganization or recapitalization,
consolidation, merger or sale 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 the securities and property
(including cash) to which the Warrant 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
(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
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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 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 date 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 Warrantholder 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. Liquidating Dividends. If the Company pays a dividend or makes a
distribution on the Common Stock payable otherwise then in cash out of earnings
or earned surplus (determined in accordance with generally accepted accounting
principles) except for a stock dividend payable in shares of Common Stock (a
"Liquidating Dividend"), then the Company will pay or distribute to the
Registered Holder of this Warrant, upon the exercise hereof, in addition to the
Warrant Shares purchased upon such exercise, the Liquidating Dividend which
would have been paid to such Registered Holder if he had been the owner of
record of such Warrant Shares immediately prior to the date on which a record is
taken for such Liquidating Dividend or, if no record is taken, the date as of
which the record holders of Common Stock entitled to such dividends or
distribution are to be determined.
9. Reservation of Warrant Shares. During the term of this Warrant, the
Company shall at all times reserve and keep available from its authorized but
unissued or treasury shares such number of shares of its Common Stock as shall
be issuable upon exercise of the Warrant.
10. Notices. Any notice or other document required or permitted to be
given or delivered to the Registered Holder shall be delivered at, or sent by
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.
11. No Rights as Stockholder. This Warrant shall not entitle the
Registered Holder to any voting or other rights as a stockholder of the Company.
12. Replacement of Warrant. 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,
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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.
13. Law Governing. 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).
14. Miscellaneous. 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 affect 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:
W. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
Its Chairman of the Board, President,
and Chief Executive Officer
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NOTICE OF INTENTION TO EXERCISE WARRANT ____
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, if "Cash Exercise" is checked below, 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 such 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
---- ------- ------
Check one of the following:
_____ Cash Exercise
_____ Cashless Exercise
STC TECHNOLOGIES, INC.
Date: By:
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(Signature)
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(Print Name)
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(Title)