EXHIBIT 4(k)
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EXHIBIT B
TO SUBSCRIPTION AGREEMENT
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE ON EXERCISE OF
THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY OTHER
SECURITIES LAWS (THE "ACTS"). NEITHER THIS WARRANT NOR THE SHARES OF COMMON
STOCK PURCHASABLE HEREUNDER MAY BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THIS WARRANT OR
COMMON STOCK PURCHASABLE HEREUNDER, AS APPLICABLE, UNDER THE ACTS, OR (B) AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION THAT REGISTRATION
IS NOT REQUIRED UNDER SUCH ACTS.
INTEGRATED MEDICAL RESOURCES, INC.
WARRANT
Issue Date: July 15, 1998
1. BASIC TERMS. This Warrant (as it may be amended from time
to time, the "Warrant") certifies that, for value received, the registered
holder specified below or its registered assigns ("Holder"), is the owner of
warrants of Integrated Medical Resources, Inc., a Kansas corporation (the
"Corporation"), and is entitled, subject to the terms and conditions of this
Warrant, including adjustments as provided herein, to purchase Twenty Thousand
(20,000) shares of Common Stock, par value $.001 per share (the "Common Stock"),
of the Corporation from the Corporation at the price per share shown below (the
"Exercise Price").
Holder: ProFutures Special Equities Fund, L.P.
Exercise Price per share: Four Dollars and Five Cents ($4.05)
Except as specifically provided otherwise, all references in this Warrant
to the Exercise Price and the number of shares of Common Stock purchasable
hereunder shall be to the Exercise Price and number of shares after any
adjustments are made thereto pursuant to this Warrant.
2. CORPORATION'S REPRESENTATIONS/COVENANTS. The Corporation
represents and covenants that the shares of Common Stock issuable upon the
exercise of this Warrant shall at delivery be fully paid and non-assessable and
free from taxes, liens, encumbrances and charges with respect to their purchase.
The Corporation shall take any necessary actions to assure that the par value
per share of the Common Stock is at all times equal to or less than the then
current Exercise Price per share of Common Stock issuable pursuant to this
Warrant. The Corporation shall at all times
reserve and hold available sufficient shares of Common Stock to satisfy all
conversion and purchase rights of outstanding convertible securities, options
and warrants of the Corporation, including this Warrant.
3. METHOD OF EXERCISE; FRACTIONAL SHARES. This Warrant is
exercisable at the option of the Holder in whole at any time or in part from
time to time by surrendering this Warrant, on any business day during the period
(the "Exercise Period") beginning on the issue date of this Warrant specified
above and ending at 5:00 p.m. (Lenexa, Kansas time) five (5) years after the
issue date. To exercise this Warrant, the Holder shall surrender this Warrant at
the principal office of the Corporation or that of the duly authorized and
acting transfer agent for its Common Stock, together with the executed exercise
form (substantially in the form of that attached hereto) and together with
payment for the Common Stock purchased under this Warrant. The principal office
of the Corporation is located at the address specified on the signature page of
this Warrant; provided, however, that the Corporation may change its principal
office upon notice to the Holder. At the option of the Holder payment shall be
made either in cash (by wire) or by certified or bank cashier's check payable to
the order of the Corporation. The Corporation shall, immediately upon receipt of
such notice, issue and deliver to or upon the order of such Holder a certificate
or certificates for the number of shares of Common Stock to which such Holder
shall be entitled and such certificate or certificates shall not bear any
restrictive legend; provided (A) the Common Stock evidenced thereby are sold
pursuant to an effective registration statement under the Act, (B) the holder
provides the Corporation with an opinion of counsel reasonably acceptable to the
Corporation to the effect that a public sale of such shares may be made without
registration under the Act, or (C) such holder provides the Corporation with
reasonable assurance that such shares can be sold free of any limitations
imposed by Rule 144, promulgated under the Act. The Corporation shall cause such
issuance and delivery to be effected within three (3) business days and shall
transmit the certificates by messenger or overnight delivery service to reach
the address designated by such holder within five (5) business days after the
receipt of such notice. This Warrant is not exercisable with respect to a
fraction of a share of Common Stock. In lieu of issuing a fraction of a share
remaining after exercise of this Warrant as to all full shares covered by this
Warrant, the Corporation shall either at its option (a) pay for the fractional
share cash equal to the same fraction at the fair market price for such share;
or (b) issue scrip for the fraction in the registered or bearer form which shall
entitle the Holder to receive a certificate for a full share of Common Stock on
surrender of scrip aggregating a full share. As compensation to the Holder when
the Corporation has failed with respect to such Holder to comply with the
Corporation's obligations hereunder, and not as a penalty, the Corporation shall
pay to such holder liquidated damages of $500 per day until the certificates are
delivered as instructed. Such damages shall be paid to the Holder by cashier's
check or wire transfer in immediately available funds to such account as shall
be designated in writing by the Holder at the end of each month in which such
amounts have accrued. Holder shall be entitled to an injunction or injunctions
to prevent or cure breaches of the provisions of hereof and to enforce
specifically the terms and provisions hereof, this being in addition to any
other remedy to which Holder may be entitled by law or equity.
4. PROTECTION AGAINST DILUTION. The number of shares of Common
Stock purchasable under this Warrant, and the Exercise Price, shall be adjusted
as set forth below. If at any time or from time to time after the date of this
Warrant, the Corporation:
(a) takes a record of the holders of its
outstanding shares of Common Stock for the purposes of entitling them to receive
a dividend payable in, or other distribution of, Common Stock,
(b) subdivides its outstanding shares of Common
Stock into a larger number of shares of Common Stock; or
(c) combines its outstanding shares of Common
Stock into a smaller number of shares of Common Stock;
then, and in each such case, the Exercise Price shall be adjusted to that price
determined by multiplying the Exercise Price in effect immediately prior to such
event by a fraction (A) the numerator of which is the total number of
outstanding shares of Common Stock immediately prior to such event and (B) the
denominator of which is the total number of outstanding shares of Common Stock
immediately after such event. Upon each adjustment in the Exercise Price under
this Warrant such number of shares of Common Stock purchasable under this
Warrant shall be adjusted by multiplying the number of shares of Common Stock by
a fraction, the numerator of which is the Exercise Price immediately prior to
such adjustment and the denominator of which is the Exercise Price in effect
upon such adjustment.
5. ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC.
(a) During the Exercise Period, the Corporation shall, prior to
consummation of a consolidation with or merger into another corporation, or
conveyance of all or substantially all of its assets to any other corporation or
corporations, whether affiliated or unaffiliated (any such corporation being
included within the meaning of the term "successor corporation"), or agreement
to so consolidate, merge or convey assets, require the successor corporation to
assume, by written instrument delivered to the Holder, the obligation to issue
and deliver to such Holder such shares of stock, securities or property as the
Holder shall be entitled to purchase or receive in accordance with the
provisions of paragraph 5(b) hereof.
(b) In the case of any capital reorganization or reclassification of the
Common Stock of the Corporation (or any other corporation the stock or other
securities of which are at the time receivable on the exercise of this Warrant)
during the Exercise Period or in case, during the Exercise Period, the
Corporation (or any such other corporation) shall consolidate with or merge into
another corporation or convey all or substantially all its assets to another
corporation, the Holder, upon exercise, at any time after the consummation of
such reorganization, consolidation, merger or conveyance, shall be entitled to
receive, in lieu of the Common Stock of the Corporation (or such other
corporation), the proportionate share of all stock, securities or other property
issued, paid or delivered for or on all of the Common Stock of the Corporation
(or such other corporation) as is allocable to the shares of Common Stock then
called for by this Warrant as if the Holder had exercised the Warrant
immediately prior thereto, all subject to further adjustment as provided in
paragraph 4 of this Warrant.
6. NOTICE OF ADJUSTMENT. On the happening of an event
requiring an adjustment of the Exercise Price or the shares purchasable under
this Warrant, the Corporation shall immediately give written notice to the
Holder stating the adjusted Exercise Price and the adjusted number and kind of
securities or other property purchasable under this Warrant resulting from the
event and setting forth in reasonable detail the method of calculation and the
facts upon which the calculation is based.
7. DISSOLUTION; LIQUIDATION. In case the voluntary or
involuntary dissolution, liquidation or winding up of the Corporation (other
than in connection with a reorganization, consolidation, merger, or other
transaction covered by paragraph 5 above) is at any time proposed, the
Corporation shall give at least thirty days prior written notice to the Holder.
Such notice shall contain: (a) the date on which the transaction is to take
place; (b) the record date (which shall be at least thirty (30) days after the
giving of the notice) as of which holders of Common Stock will be entitled to
receive distributions as a result of the transaction; (c) a brief description of
the transaction, (d) a brief description of the distributions to be made to
holders of Common Stock as a result of the transaction; and (e) an estimate of
the fair value of the distributions. On the date of the transaction, if it
actually occurs, this Warrant and all rights under this Warrant shall terminate.
8. Rights of Holder. The Corporation shall deliver to the Holder all notices and
other information provided to its holders of shares of Common Stock or other
securities which may be issuable hereunder concurrently with the delivery of
such information to the holders. This Warrant does not entitle the Holder to any
voting rights or, except for the foregoing notice provisions, any other rights
as a shareholder of the Corporation. No dividends are
payable or will accrue on this Warrant or the Shares purchasable under this
Warrant until, and except to the extent that, this Warrant is exercised. Upon
the surrender of this Warrant and payment of the Exercise Price as provided
above, the person or entity entitled to receive the shares of Common Stock
issuable upon such exercise shall be treated for all purposes as the record
holder of such shares as of the close of business on the date of the surrender
of this Warrant for exercise as provided above. Upon the exercise of this
Warrant, the Holder shall have all of the rights of a shareholder in the
Corporation.
9. EXCHANGE FOR OTHER DENOMINATIONS. This Warrant is
exchangeable, on its surrender by the Holder to the Corporation, for a new
Warrant of like tenor and date representing in the aggregate the right to
purchase the balance of the number of shares purchasable under this Warrant in
denominations and subject to restrictions on transfer contained herein, in the
names designated by the Holder at the time of surrender.
10. SUBSTITUTION. Upon receipt by the Corporation of evidence
satisfactory (in the exercise of reasonable discretion) to it of the ownership
of and the loss, theft or destruction or mutilation of the Warrant, and (in the
case or loss, theft or destruction) of indemnity satisfactory (in the exercise
of reasonable discretion) to it, and (in the case of mutilation) upon the
surrender and cancellation thereof, the Corporation will issue and deliver, in
lieu thereof, a new Warrant of like tenor.
11. RESTRICTIONS ON TRANSFER. Neither this Warrant nor the
shares of Common Stock issuable on exercise of this Warrant have been registered
under the Securities Act or any other securities laws (the "Acts"). Neither this
Warrant nor the shares of Common Stock purchasable hereunder may be sold,
transferred, pledged or hypothecated in the absence of (a) an effective
registration statement for this Warrant or Common Stock purchasable hereunder,
as applicable, under the Acts, or (b) an opinion of counsel reasonably
satisfactory to the Corporation that registration is not required under such
Acts. In addition, this Warrant may be transferred or assigned only if such
transferee or assignee shall be an "accredited investor",as that term is defined
in Rule 501 of Regulation D, promulgated under the Securities Act, and such
transfer or assignment is made expressly subject to the terms and conditions of
this Warrant. If the Holder seeks an opinion as to transfer without registration
from Holder's counsel, the Corporation shall provide such factual information to
Holder's counsel as Holder's counsel reasonably request for the purpose of
rendering such opinion. Each certificate evidencing shares of Common Stock
purchased hereunder will bear a legend describing the restrictions on transfer
contained in this paragraph unless, in the opinion of counsel reasonably
acceptable to the Corporation, the shares need no longer to be subject to the
transfer restrictions.
12. TRANSFER. Except as otherwise provided in this Warrant,
this Warrant is transferable only on the books of the Corporation by the Holder
in person or by attorney, on surrender of this Warrant, properly endorsed.
13. RECOGNITION OF HOLDER. Prior to due presentment for
registration of transfer of this Warrant, the Corporation shall treat the Holder
as the person exclusively entitled to receive notices and otherwise to exercise
rights under this Warrant. All notices required or permitted to be given to the
Holder shall be in writing and shall be given by first class mail, postage
prepaid, addressed to the Holder at the address of the Holder appearing in the
records of the Corporation.
14. PAYMENT OF TAXES. The Corporation shall pay all taxes and
other governmental charges, other than applicable income taxes and transfer
taxes, if any, which shall be payable by Holder, that may be imposed with
respect to the issuance of shares of Common Stock pursuant to the exercise of
this Warrant.
15. HEADINGS. The headings in this Warrant are for purposes of
convenience in reference only, shall not be deemed to constitute a part of this
Warrant and shall not affect the meaning or construction of any of the
provisions of this Warrant.
16. GOVERNING LAW. This Warrant shall be governed by and
construed and enforced in accordance with the internal laws of the State of
Kansas without regard to such state's principles of conflict of laws.
The Corporation and the Holder each (i) hereby irrevocably
submits to the jurisdiction of the United States District Court and other courts
of the United States sitting in the State of Texas for the purposes of any suit,
action or proceeding arising out of or relating to this Warrant and (ii) hereby
waives, and agrees not to assert in any such suit, action or proceeding, any
claim that it is not personally subject to the jurisdiction of such court, that
the suit, action or proceeding is brought in an inconvenient forum or that the
venue of the suit, action or proceeding is improper. The Corporation and the
Holder each consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such party at the address in effect for
notices to it under this Warrant and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing in this
paragraph shall affect or limit any right to serve process in any other manner
permitted by law.
17. MISCELLANEOUS. This Warrant may not be changed, waived,
discharged or terminated except by an instrument in writing signed by the
Corporation and the Holder. This Warrant shall inure to the benefit of and shall
be binding upon the successors and assigns of the Corporation and the Holder.
INTEGRATED MEDICAL
RESOURCES, INC., a Kansas corporation
By:/s/ E. Stanley Kardatzke, M.D.
Authorized Officer
Printed Name:E. Stanley Kardatzke, M.D.
Title:Chairman and Chief Executive Officer
11320 West 79th Street
Lenexa, KS 66214
INTEGRATED MEDICAL RESOURCES, INC.
Form of Transfer
(To be executed by the Holder to transfer the Warrant)
For value received the undersigned registered holder of the attached Warrant
hereby sells, assigns, and transfers the Warrant to the Assignee(s) named below:
Name of
Assignee:______________________________________________
Address:_______________________________________________
_______________________________________________________
signee's Taxpayer ID No.:______________________________
Number of shares subject to transferred Warrant:_______
The undersigned registered holder further irrevocably appoints
_________________________________ as its attorney-in-fact (with full power of
substitution) to transfer this Warrant as aforesaid on the books of the
Corporation.
Date:______________________________ __________________________________________
Signature
INTEGRATED MEDICAL RESOURCES, INC.
Exercise Form
(To be executed by the Holder to purchase
Common Stock pursuant to the Warrant)
The undersigned holder of the attached Warrant hereby: (1) irrevocably
elects to exercise purchase rights represented by such Warrant for, and to
purchase, ___________ shares of Common Stock of Integrated Medical Resources,
Inc., a Kansas corporation, pursuant to the Warrant and encloses payment of
$___________________________ therefor (in cash, by wire, or by certified or bank
cashier's check); (2) requests that a certificate for the shares be issued in
the name of the undersigned; and (3) if such number of shares is not all of the
shares purchasable under this Warrant, that a new Warrant of like tenor for the
balance of the remaining shares purchasable under this Warrant be issued under
the terms and conditions of the Warrant.
Date:______________________________ __________________________________________
Signature