Exhibit 4.41
THE SECURITIES REPRESENTED BY THIS WARRANT (AND THE SECURITIES ISSUABLE UPON
EXERCISE OF THIS WARRANT) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, OR ANY STATE SECURITIES STATUTE. THE SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD,
MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933 AND
ANY APPLICABLE STATE SECURITIES STATUTE, OR UNLESS AN EXEMPTION FROM
REGISTRATION IS AVAILABLE THEREUNDER.
Shares Issuable Upon Exercise: Up to 10,000 shares of the Class A Common
Stock, $.01 par value, of PHC, Inc.
WARRANT TO PURCHASE 10,000 SHARES OF CLASS A COMMON STOCK
Expires April 15, 2006 (5 years)
THIS CERTIFIES THAT, for value received, Marshall Sterman is entitled to
subscribe for and purchase that number of shares (the "Shares") of the fully
paid and nonassessable Class A Common Stock, $.01 par value, (the "Class A
Common Stock") of PHC, Inc., a Massachusetts corporation (the "Company"), for a
price of $0.25 per Share (the "Warrant Price"), subject to the provisions and
upon the terms and conditions hereinafter set forth. As used herein, the term
"Shares" shall mean the Company's Class A Common Stock, or any stock into or for
which such Class A Common Stock shall have been or may hereafter be converted or
exchanged pursuant to the Articles of Incorporation of the Company as from time
to time amended as provided by law and in such Articles (hereinafter the
"Charter"), and the term "Grant Date" shall mean March 20, 2001.
1. Term. Subject to the provisions of this Warrant, the purchase right
represented by this Warrant is exercisable, in whole or in part, at any time and
from time to time from and after the Grant Date and prior to April 15, 2006.
Notwithstanding anything to the contrary contained herein, neither this
Warrant nor any rights hereunder may be transferred or assigned except to an
Assignee who is an "accredited investor" within the meaning of Regulation D of
the General Rules and Regulations of the Securities Act of 1933.
2 (a). Method of Exercise. The purchase right represented by this Warrant
may be exercised by the holder hereof, in whole or in part and from time to
time, by either, at the election of this holder, (a) the surrender of the
Warrant (with the notice of exercise form attached hereto as Exhibit A-1 duly
executed) at the principal office of the Company and by the payment to the
Company by certified or bank check or by wire transfer, of an amount equal to
the then applicable Warrant Price multiplied by the number of shares then being
purchased or (b) if in connection with a registered public offering of the
Company's securities (provided that such offering includes the shares), the
surrender of this Warrant (with the notice of exercise form attached hereto as
Exhibit A-2 duly executed) at the principal office of the Company together with
notice of arrangements reasonably satisfactory to the Company and any
underwriter, in the case of an underwritten registered public offering, for
payment to the Company either by certified or bank check or by wire transfer of
from the proceeds of the sale of Shares to be sold by the holder in such public
offering of an amount equal to the then applicable Warrant Price per Share
multiplied by the number of Shares then being purchased. The person or persons
in whose name(s) any certificate(s) representing Shares which shall be issuable
upon exercise of this Warrant shall be deemed to have become the holder(s) of
record of, and shall be treated for all purposes as the record holder(s) of, the
shares represented thereby (and such shares shall be deemed to have been issued)
immediately prior to the close of business on the date or dates upon which this
Warrant is exercised and the then applicable Warrant Price paid. In the event of
any exercise of the rights represented by this Warrant, certificates for the
shares of stock so purchased shall be delivered to the holder hereof as soon as
possible and in any event within ten (10) days of receipt of such notice and
payment of the then applicable Warrant Price and, unless this Warrant has been
fully exercised or expired, a new Warrant representing the portion of the
Shares, if any, with respect to which this Warrant shall not then have been
exercised shall also be issued to the holder hereof as soon as possible and in
any event within such ten-day period.
2 (b). In lieu of exercising this Warrant in the manner set forth in
sub-paragraph 2(a) above, this Warrant may be exercised without payment of any
other consideration, commission or remuneration, by presentation and surrender
of this Warrant to the Company, together with a written notice of the Holder of
this Warrant of the intention to effect a cashless exercise ("Notice of Cashless
Exercise, Exhibit A-3"), duly will be computed using the following formula:
X = Y (A-B)/A
where;
X= the number of shares of Common Stock to be issued to the Holder of
this Warrant.
Y= the number of shares of Common Stock for which this Warrant is being
exercised.
A= the Closing Price. The Closing Price means the closing price per share
of the Common Stock on the last business day prior to the date of
receipt of this Warrant and the Notice of Cashless Exercise, on the
principal national securities exchange in the United States on which
the Common Stock is listed or admitted to trading, or if the Common
Stock is not listed or admitted to trading on any such national
securities exchange, the average of the highest reported bid and
lowest reported asked price, on such day, as furnished by the National
Association of Securities Dealers, Inc. ("Nasdaq") through its
automated quotation system or a similar organization of Nasdaq is no
longer reporting such information.
B= the Exercise Price.
For purposes of Rule 144, as promulgated under the Securities Act of 1933,
as amended (the "Act"), and subsection (d) (3) (iii) of such Rule is intended,
that the common Stock issuable upon exercise of this Warrant in a cashless
exercise transaction shall be deemed to have been acquired at the time this
Warrant was issued. Moreover, it is intended, that the holding period for the
Common Stock issuable upon exercise of this Warrant in a cashless exercise
transaction shall be deemed to have commenced on the date this Warrant was
issued. Therefore, shares issued after December 20, 2001 shall not be restricted
or legend bearing certificates.
3. Stock Fully Paid; Reservation of Shares. All shares that may be issued
upon the exercise of the rights represented by this Warrant will upon issuance,
be fully paid and nonassessable, and free from all taxes, liens and charges with
respect to the issue thereof. During the period within which the rights
represented by the Warrant may be exercised, the Company will at all times have
authorized and reserved for the purpose of issuance upon exercise of the
purchase rights evidenced by this Warrant, a sufficient number of shares of
Class A Common Stock to provide for the exercise of the rights represented by
this Warrant.
4. Adjustment of Warrant Price and Number of Shares. The number and kind of
securities purchasable upon the exercise of the Warrant Agreement and the
Warrant Price shall be subject to adjustment from time to time upon the
occurrence of certain events, as follows:
4.1 Reclassification. In case of any reclassification, change or conversion
of the Company's Class A Common Stock (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a result of
a subdivision or combination), the Company, shall execute a new Warrant
Agreement (in form and substance reasonably satisfactory to the Holder)
providing that the Holder of this Warrant Agreement shall have the right to
exercise such new Warrant Agreement and upon such exercise and payment of the
then applicable Warrant Price to receive, in lieu of each Share theretofore
issuable upon exercise of this Warrant Agreement, the kind and amount of shares
of stock, other securities, money and property receivable upon such
reclassification or change by a holder of one share of Class A Common Stock.
Such new Warrant Agreement shall provide for adjustments that shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Section
4.1. The provisions of this Section 4.1 shall similarly apply to successive
reclassifications and changes.
4.2 Subdivision or Combination of Shares. If the Company at any time while
this Warrant remains outstanding and unexpired shall subdivide or combine its
Class A Common Stock, the Warrant Price and the number of Shares issuable upon
exercise hereof shall be equitably adjusted.
4.3 Stock Dividends. If the Company at any time while this Warrant is
outstanding and unexpired shall pay a dividend payable in shares of Class A
Common Stock (except any distribution specifically provided for in the foregoing
Sections 4.1 and 4.2), then the Warrant Price shall be adjusted, from and after
the date of determination of shareholders entitled to receive such dividend or
distribution, to that price determined by multiplying the Warrant Price in
effect immediately prior to such date of determination by a fraction (a) the
numerator of which shall be the total number of shares of Class A Common Stock
outstanding immediately prior to such dividend or distribution, and (b) the
denominator of which shall be the total number of shares of Class A Common Stock
outstanding immediately after such dividend or distribution and the number of
Shares subject to this Warrant shall be appropriately adjusted.
4.4 No Impairment. The Company will not, by amendment of its Charter or
through any reorganization, recapitalization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all the provisions of this Article 4 and in
the taking of all such action as may be necessary or appropriate in order to
protect the rights of the Holder of this Warrant Agreement against impairment.
4.5 Notices of Record Date. In the event of any taking by the Company of a
record of its shareholders for the purpose of determining shareholders who are
entitled to receive payment of any dividend or other distribution, or for the
purpose of determining shareholders who are entitled to vote in connection with
any proposed merger or consolidation of the Company with or into any other
corporation, or any proposed sale, lease or conveyance of all or substantially
all of the assets of the Company, or any proposed liquidation, dissolution or
winding up of the Company, the Company shall mail to the holder of this Warrant,
at least fifteen (15) days prior to the date specified therein, a notice
specifying the date on which any such record is to be taken for the purpose of
such dividend, distribution or vote, and the amount and character of such
dividend, distribution or vote.
5. Notice of Adjustments. Whenever the Warrant Price or number of Shares
shall be adjusted pursuant to the provisions hereof, the Company shall within
thirty (30) days of such adjustments deliver a certificate signed by its chief
financial officer to the registered holder(s) hereof setting forth in reasonable
detail, the event requiring the adjustment, the amount of the adjustment, the
method by which such adjustment was calculated, and the Warrant Price after
giving effect to such adjustment.
6. Fractional Shares. No fractional Shares will be issued in connection
with any exercise hereunder, but in lieu of such fractional shares the Company
shall make a cash payment therefor upon the basis of the Warrant Price then in
effect.
7. Compliance with Securities Act, Disposition of Shares.
7.1 Compliance with Securities Act. The holder of this Warrant, by
acceptance hereof, reconfirms the representations made by the Purchaser in a
letter agreement with the Company as of the date hereof (the "Letter Agreement")
and agrees to the placement of a restrictive transfer legend on this Warrant and
the certificates representing the shares.
7.2 Disposition of Warrants and Shares. With respect to any offer, sale or
other disposition of this Warrant or any Shares acquired pursuant to the
exercise of this Warrant prior to registration of this Warrant or such Shares,
the holder hereof and each subsequent holder of this Warrant agrees to give
written notice to the Company prior thereto, describing briefly the manner
thereof, together with a written opinion of such holder's counsel, if reasonably
requested by the Company (and, in such case, such counsel and opinion must be
reasonably acceptable to the Company), to the effect that such offer, sale or
other disposition my be effected without registration or qualification (under
the Securities Act of 1933 (the "Act") as then in effect or any federal or state
law then in effect) and indicating whether or not under the Act certificates for
this Warrant or such Shares to be sold or otherwise disposed of require any
restrictive legend as to applicable restrictions on transferability in order to
insure compliance with the Act. Each certificate representing this Warrant or
the Shares thus transferred (except a transfer pursuant to Rule 144) shall bear
a legend as to the applicable restrictions on transferability in order to ensure
compliance with the Act, unless in the aforesaid opinion of counsel for the
holder,, such legend is not required in order to ensure compliance with the Act.
The Company may issue stop transfer instructions to its transfer agent in
connection with the foregoing restrictions.
8. Rights as Shareholders. No holder of the Warrant, as such, shall be
entitled to vote or receive dividends or be deemed the holder of Shares or any
other securities of the Company which may at any time be issuable on the
exercise thereof for any purpose, nor shall anything contained herein, be
construed to confer upon the holder of this Warrant, as such any of the rights
of a shareholder of the Company or any right to vote for the election of
directors or upon any matter submitted to shareholders at any meeting thereof,
or to receive notice of meetings (except as otherwise provided in Section 4.5 of
this warrant), or to receive dividends or subscription rights or otherwise until
this Warrant shall have been exercised and the Shares purchasable upon the
exercise hereof shall have become deliverable, as provided herein.
9. Representations and Warranties. This Warrant is issued and delivered on
the basis of the following:
9.1 Authorization and Delivery. This Warrant has been duly authorized and
executed by the Company and when delivered will be valid and binding obligation
of the Company enforceable in accordance with its terms; and
9.2 Shares. The Shares have been duly authorized and reserved for issuance
by the Company and when issued and paid for in accordance with the terms hereof,
will be validly issued, fully paid and nonassessable.
10. Modification and Waiver. This Warrant and any provision hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
11. Notices. Any notice, request or other document required or permitted to
be given or delivered to the holder hereof or the Company shall be delivered in
the manner set forth in the Letter Agreement.
12. Binding Effect of Successors. This Warrant shall be binding upon any
corporation succeeding the Company by merger of consolidation, and all of the
obligations of the Company relating to the Shares issuable upon the exercise of
this Warrant shall be as set forth in the Letter Agreement, the Company's
Charter and the Company's by-laws (each as amended from time to time) and shall
survive the exercise and termination of this Warrant and all of the covenants
and agreements herein and in such other documents and instruments of the Company
shall inure to the benefit of the successors and assigns of the holder hereof.
The Company will, at the time of the exercise of this Warrant, in whole or in
part, upon request of the holder hereof but at the Company's expense,
acknowledge in writing its continuing obligation to the holder hereof in respect
of any rights (including without limitation, any right to registration of the
Shares) to which the holder hereof shall continue to be entitled after such
exercise in accordance with this Warrant; provided that the failure of the
holder hereof to make any such request shall not affect the continuing
obligation of the Company to the holder hereof in respect of such rights.
13. Lost Warrants or Stock Certificates. The Company covenants to the
holder hereof that upon receipt of evidence reasonable satisfactory to the
Company of the loss, theft, destruction, or mutilation of this Warrant or any
stock certificates and, in the case of any such loss, theft or destruction, upon
receipt of an indemnity reasonable satisfactory to the Company, or in the case
of any such mutilation upon surrender and cancellation of such Warrant or stock
certificate, the Company will make and deliver a new Warrant or stock
certificate, or like tenor, in lieu of the lost, stolen, destroyed or mutilated
Warrant or stock certificate.
14. Descriptive Headings. The descriptive headings of the several
paragraphs of this Warrant are inserted for convenience only and do not
constitute a part of this Warrant.
15. Governing Law. This Warrant shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the Commonwealth of Massachusetts.
PHC, INC.
By: /s/ Bruce A. Shear
President
Date: April 15, 2001
Exhibit A-1
Notice of Exercise
To:
1. The undersigned hereby elects to purchase ______ Shares of PHC, Inc.
pursuant to the terms of the attached Warrant, and tenders herewith payment of
the purchase price of such Shares in full.
2. Please issue a certificate or certificates representing the Shares
deliverable upon the exercise set forth in paragraph 1 in the name of the
undersigned or, subject to compliance with the restrictions on transfer set
forth in Section 7 of the Warrant, in such other name or names as are specified
below:
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(Name)
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(Address)
3. The undersigned represents that the aforesaid shares are being acquired
for the account of the undersigned for investment and not with a view to, or for
resale in connection with, the distribution thereof and that the undersigned has
not present intention of distributing or reselling such shares.
- -------------------------------
Signature
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Date
Exhibit A-2
Notice of Exercise
To:
1. Contingent upon and effective immediately prior to the closing (the
"Closing") of the Company's public offering contemplated by the Registration
Statement of Form S ______, filed ______, ______ the undersigned hereby elects
to purchase Shares of the Company (or such lesser number of Shares as may be
sold on behalf of the undersigned at the Closing) pursuant to the terms of the
attached Warrant.
2. Please deliver to the custodian for the selling shareholders a
certificate representing the Shares being so purchased.
3. The undersigned has instructed the custodian for the selling
shareholders to deliver to the Company $ ______ of, if less, the net proceeds
due the undersigned from the sales of Shares in the aforesaid public offering.
If such net proceeds are less than the purchase price for such Shares, the
undersigned agrees to deliver the difference to the Company prior to the
Closing.
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Signature
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Date
warrants.dot
Exhibit A-3
Notice of Cashless Exercise
To: Pioneer Behavioral Health, Inc.
200 Lake Street
Suite 200
Peabody, MA 01960
The undersigned hereby exercises his, her, or its rights to a cashless
exercise of shares of Common Stock, par value $0.01 per share ("the Common
Stock"), of Pioneer Behavioral Health Inc., a Massachusetts Corporation (the
"Company"), covered by the within Warrant in accordance with the provisions of
sub-paragraph 1(b) of the within Warrant and requests that certificates for the
securities constituting _______ shares of Common Stock be issued in the name of,
and delivered to:
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(Print Name, Address, Social Security or Tax ID Number)
and, if such number of shares of Common Stock shall not constitute all such
shares of Common Stock covered by the within Warrant, that a new Warrant for the
balance of the shares of Common Stock covered by the within Warrant shall be
registered in the name of, and delivered to, the undersigned at the address
stated below.
_____________ Name: ______________________
Address: _______________________ ______________________________
________________________ (Signature)