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EXHIBIT 4.3
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BIRMAN MANAGED CARE, INC.
AND
AMERICAN STOCK TRANSFER AND TRUST COMPANY
WARRANT AGENT
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WARRANT AGREEMENT
DATED AS OF , 1996
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TABLE OF CONTENTS
PAGE
SECTION 1. Appointment of Warrant Agent.......................................................................... 1
SECTION 2. Form of Warrant Certificates.......................................................................... 1
SECTION 3. Issuance of Warrant Certificates; Countersignature and Registration................................... 1
SECTION 4. Transfer, Split Up, Combination, and Exchange of Warrant Certificates; Mutilated, Destroyed,
Lost, or Stolen Warrant Certificates.................................................................. 2
SECTION 5. Subsequent Issue of Warrant Certificates.............................................................. 2
SECTION 6. Exercise of Warrants; Exercise Price; Expiration Date of Warrants..................................... 2
SECTION 7. Cancellation and Destruction of Warrant Certificates.................................................. 3
SECTION 8. Reservation and Availability of Shares of Common Stock................................................ 4
SECTION 9. Transfer Taxes........................................................................................ 4
SECTION 10. Common Stock Record Date.............................................................................. 4
SECTION 11. Adjustment of Exercise Price, Number of Shares, or Number of Warrants................................. 5
SECTION 12. Notices to Warrantholders............................................................................. 7
SECTION 13. Obtaining of Governmental Approvals................................................................... 8
SECTION 14. Fractional Warrants and Fractional Shares............................................................. 8
SECTION 15. Rights of Action...................................................................................... 8
SECTION 16. Agreement of Warrant Certificate Holders.............................................................. 8
SECTION 17. The Warrant Agent..................................................................................... 9
SECTION 18. Change of Warrant Agent............................................................................... 10
SECTION 19. Maintenance of Office................................................................................. 10
SECTION 20. Issuance of New Warrant Certificates.................................................................. 10
SECTION 21. Notices............................................................................................... 10
SECTION 22. Supplements and Amendments............................................................................ 11
SECTION 23. Successors............................................................................................ 11
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PAGE
SECTION 24. Benefits of this Agreement............................................................................ 11
SECTION 25. California Contract................................................................................... 11
SECTION 26. Counterparts.......................................................................................... 11
SECTION 27. Descriptive Headings.................................................................................. 11
EXHIBIT
Exhibit A..................................................................................... Form of Warrant Certificate
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WARRANT AGREEMENT
THIS AGREEMENT, dated as of___________, 1996 is between Birman Managed
Care, Inc., a Delaware corporation (the "Company"), and American Stock Transfer
and Trust Company, a New York banking corporation (the "Warrant Agent").
WITNESSETH:
WHEREAS, the Company proposes to issue Warrants, as hereinafter
described (the "Warrants"), to purchase up to an aggregate of 1,782,500 of its
Shares of Common Stock, in connection with a public offering of Shares of
Common Stock and Warrants evidencing the right to purchase Shares of Common
Stock; and W.B. McKee Securities, Inc. has agreed to act as the representative
(the "Representative") of certain underwriters (the "Underwriters") in the
offering of the Units and
WHEREAS, to provide for the appointment of a Warrant Agent, to provide
for countersignature of the Warrants by the Warrant Agent, and to establish the
terms and conditions of the Warrants, the Company in and by resolution of its
Board of Directors has duly authorized the execution and delivery of this
Warrant Agreement and the execution, issuance, and delivery of the Warrant
Certificates (as hereinafter defined).
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
SECTION 1. Appointment of Warrant Agent. The Company hereby
appoints the Warrant Agent to act as agent for the Company in accordance with
the terms and conditions hereinafter in this Agreement set forth and the Warrant
Agent hereby accepts such appointment. The Company may from time to time, upon
providing written notice to the Warrant Agent, appoint such additional
substitute Warrant Agents as it may deem necessary or desirable.
SECTION 2. Form of Warrant Certificates. The certificates
evidencing the Warrants (the "Warrant Certificates") and the form of election
to purchase shares of Common Stock (and the form of assignment to be printed on
the reverse thereof) to be delivered pursuant to this Agreement shall be in
registered form only, shall be substantially in the form set forth in Exhibit A
hereto, and may have such letters, numbers, or other marks of identification
or designation and such legends, summaries, or endorsements, printed,
lithographed, or engraved thereon as the Company may deem appropriate and as
are not inconsistent with the provisions of this Warrant Agreement, or as may
be required to comply with any applicable law or any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange or
inter-dealer quotation system on which the Warrant Certificates may from time
to time be listed, or to conform to usage. Each Warrant Certificate shall be
dated as of the date of issuance thereof by the Warrant Agent issuing such
Warrant Certificate, either upon initial issuance or upon transfer or exchange,
and on its face shall entitle the registered holder thereof to purchase one
share of Common Stock for each Warrant evidenced by such Warrant Certificate,
initially at the price per share set forth therein, but the number of such
shares and such price per share shall be subject to adjustments as provided
herein.
The Warrant Certificate shall be exercisable and separately
transferable. Without limitation, any exercise shall comply with the provisions
of subsection 6(b) hereof.
SECTION 3. Issuance of Warrant Certificates; Countersignature and
Registration. No fractional Warrants will be issued to the purchaser of
Warrants, and no such purchaser will be entitled to any cash payment or other
compensation in respect of a fractional Warrant that would otherwise have been
issued, except pursuant to the terms of Subsection 14(a).
The Warrant Certificates shall be executed on behalf of the Company by
its President or any Vice President, by facsimile signature and have affixed
thereto a facsimile of the Company's seal which shall be attested
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by the Secretary or an Assistant Secretary of the Company by facsimile
signature. The Warrant Certificates shall be manually countersigned by the
Warrant Agent (or by any successor as a Warrant Agent hereunder) and shall not
be valid for any purpose unless so countersigned. In case any officer of the
Company who shall have signed any Warrant Certificate shall cease to be such
officer of the Company before countersignature by a Warrant Agent and issuance
and delivery thereof, such Warrant Certificate, nevertheless, may be
countersigned by the Warrant Agent, and issued and delivered with the same
force and effect as though the person who signed such Warrant Certificate had
not ceased to be such officer of the Company; and any Warrant Certificate may
be signed on behalf of the Company by any person who, at the actual date of the
execution of such Warrant Certificate, shall be a proper officer of the Company
to sign such Warrant Certificate, although at the date of the execution of this
Warrant Agreement any such person was not such an officer. Upon
countersignature by the Warrant Agent and delivery, the Warrant Certificate
shall be valid and binding upon the Company, and the holder thereof shall be
entitled to all the benefits of this Agreement.
The Warrant Agent will keep or cause to be kept at its principal
corporate trust office in New York, New York, or elsewhere, books for
registration and registration of transfer of the Warrant Certificates issued
hereunder. Such books shall show the names and addresses of the respective
holders of the Warrant Certificates, the number of Warrants evidenced on its
face by each of the Warrant Certificates, and the date of each of the Warrant
Certificates.
SECTION 4. Transfer, Split Up, Combination and Exchange of Warrant
Certificates; Mutilated, Destroyed, Lost, or Stolen Warrant Certificates.
Subject to the provisions of Section 14 hereof, any Warrant Certificate, with
or without other Warrant Certificates, may be transferred, split up, combined,
or exchanged for another Warrant Certificate or Warrant Certificates
representing in the aggregate a like number of Warrants. Subject to any
restriction on transferability that may appear on a Warrant Certificate in
accordance with the terms hereof, any registered holder desiring to register
the transfer of, or to split up, combine, or exchange, any Warrant Certificate
or Warrant Certificates shall make such request in writing delivered to the
Warrant Agent and shall surrender such Warrant Certificate or Warrant
Certificates to the Warrant Agent at its offices maintained for that purpose in
New York, New York or elsewhere. Thereupon the Warrant Agent shall countersign
and deliver to the person entitled thereto a Warrant Certificate or Warrant
Certificates, as the case may be, as soon as required. The Company may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer, split up, combination, or exchange of
Warrant Certificates.
Upon receipt by the Company and the Warrant Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction, or mutilation
of a Warrant Certificate, and, in case of loss, theft, or destruction, of
indemnity or security reasonably satisfactory to them, and reimbursement to the
Company and the Warrant Agent of all reasonable expenses incidental thereto,
and upon surrender and cancellation of the Warrant Certificate if mutilated,
the Company will direct the Warrant Agent to make a new Warrant Certificate of
like tenor for the same number of Warrants and deliver such new Warrant
Certificate to the registered owner in lieu of the Warrant Certificate so lost,
stolen, destroyed or mutilated.
SECTION 5. Subsequent Issue of Warrant Certificates. Subsequent to
their original issuance, no Warrant Certificates shall be issued except (a)
Warrant Certificates issued upon any transfer, combination, split up, or
exchange of Warrants pursuant to Section 4 hereof, (b) Warrant Certificates
issued in replacement of mutilated, destroyed, lost, or stolen Warrant
Certificates pursuant to Section 4 hereof, (c) Warrant Certificates issued
pursuant to Section 6 hereof upon the partial exercise of any Warrant
Certificate to evidence the unexercised portion of such Warrant Certificate, and
(c) Warrant Certificates issued pursuant to Subsection 11(g) or Section 20
hereof.
SECTION 6. Exercise of Warrants; Exercise Price; Expiration Date of
Warrants.
(a) Each Warrant may be exercised on any business day
through the close of business on the date three years after the date of the
Prospectus (the "Prospectus Date") that is a part of the Registration Statement
relating to the Warrants; provided, however, that this termination date shall be
subject to the redemption provisions of Subsection 6(f) hereof (such date, as it
may be changed, is herein called the "Expiration Date"). Each Warrant not
exercised on or before the close of business on the Expiration Date shall
automatically become void at 5:00 P.M., New York City Time
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(which time shall be deemed the "close of business" for purposes of this
Agreement, the Warrants and the Warrant Certificates), on the Expiration Date;
each holder thereof shall thereafter have no further rights with respect
thereto and the Company and the Warrant Agent shall thereafter have no further
obligations with respect thereto.
(b) Subject to the provisions of this Agreement, including
Sections 11, 13 and 14, the holder of each Warrant shall have the right to
purchase from the Company (and the Company shall issue and sell to such
holder(s) of a Warrant) one fully paid and non-assessable Share at the exercise
price per share set forth in the form of Warrant Certificate included herein,
as such price may be adjusted in accordance with the provisions hereof (such
price, as so adjusted, being herein called the "Exercise Price"), upon
surrender to the Warrant Agent, at its offices maintained for that purpose in
New York, New York, or elsewhere, of the Warrant Certificate evidencing such
Warrant, with the form of election to purchase on the reverse thereof duly
completed and signed, and upon payment of the Exercise Price. Payment of the
Exercise Price and any amounts described in Subsection 6(c) shall be: (i) in
cash in United States dollars; or (ii) by certified or official bank check
payable in United States dollars to the order of the Company.
(c) Upon receipt of a Warrant Certificate, with the form of
election to purchase duly executed, accompanied by payment of the Exercise
Price for the shares of Common Stock to be purchased and an amount (if required
by Section 9 hereof) equal to any applicable transfer tax, the Warrant Agent
shall thereupon promptly (i) requisition from any transfer agent for the shares
of Common Stock certificates evidencing ownership of the number of shares of
Common Stock to be purchased, (ii) when appropriate, requisition from the
Company the amount of cash to be paid in lieu of issuance of fractional shares
of Common Stock or Warrants, and (iii) promptly after receipt of such
certificates cause the same to be delivered to or upon the order of the
registered holder of such Warrant Certificate, registered in such name or names
as may be designated by such holder, and, when appropriate after receipt
promptly deliver such cash to or upon the order of the registered holder of
such Warrant Certificate.
(d) In case the registered holder of any Warrant
Certificate shall exercise fewer than all of the Warrants evidenced thereby, a
new Warrant Certificate evidencing Warrants equivalent to the Warrants
remaining unexercised shall be issued by the Warrant Agent to the registered
holder of such Warrant Certificate or to his or her duly authorized assignee,
subject to the provisions of Section 14 hereof.
(e) The Warrant Agent shall account promptly to the Company
with respect to Warrants exercised and concurrently deliver to the Company all
monies or checks for the purchase of shares of Common Stock.
(f) The Company may redeem all of the Warrants at $0.01 per
Warrant, commencing ninety days from the Prospectus Date on not less than 30
days prior written notice; provided, that the Closing Price (as defined in
Section 6(g) below) per share of Common Stock for 20 consecutive trading days,
ending not more than 15 calendar days prior to the date of the redemption
notice, averages in excess of $____ (subject to adjustment for any stock splits
or dividends or recapitalizations). Such notice shall contain a certification
by the Company that the above condition to redeem has been satisfied. Notice of
redemption shall be mailed by the Warrant Agent to all registered holders of
Warrant Certificates on a date designated by the Company, but in no event shall
such designated date be earlier than the fifth business day after the date on
which the Warrant Agent received notice of redemption from the Company. The
notice of redemption also shall be given by publishing it at least once in The
Wall Street Journal (national edition).
(g) As used in this Agreement, the term "Closing Price" of
the shares of Common Stock or Warrants for a day or days shall mean (a) if the
shares of Common Stock or Warrants are listed or admitted for trading on a
national securities exchange, the last reported sales price as reported in The
Wall Street Journal (or similar publication), or, in case no such reported
sale takes place on such day or days, the reported highest closing bid price,
in either case on the principal national securities exchange on which the
shares of Common Stock or Warrants are listed or admitted for trading or (b) if
the shares of Common Stock or Warrants are not listed or admitted for trading
on a national securities exchange, (i) the last closing bid price of the shares
of Common Stock or Warrants on the National Association of Securities Dealers'
Automated Quotations System ("NASDAQ")
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National Market System or Small-Cap Market, or (ii) if the shares of Common
Stock or Warrants are not quoted on the NASDAQ National Market System or
Small-Cap Market, the highest closing bid price of the shares of Common Stock
or Warrants in the over-the-counter market, as reported by a generally accepted
reporting service.
SECTION 7. Cancellation and Destruction of Warrant Certificates. All
Warrant Certificates surrendered for the purpose of exercise, conversion,
exchange, substitution, or registration of transfer shall, if surrendered to
the Company or to any of its agents, be delivered to the Warrant Agent for
cancellation or in canceled form, or if surrendered to the Warrant Agent shall
be canceled by it. The Company shall deliver to the Warrant Agent for
cancellation and retirement and the Warrant Agent shall so cancel and retire,
any other Warrant Certificate purchased or acquired by the Company otherwise
than upon the exercise thereof. The Warrant Agent shall deliver all canceled
Warrant Certificates to the Company, or shall, at the written request of the
Company, destroy such canceled Warrant Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
SECTION 8. Reservation and Availability of Shares of Common Stock.
The Company will at all times reserve and keep available, free from preemptive
rights, out of the aggregate of its authorized but unissued shares of Common
Stock, for the purpose of enabling it to satisfy any obligation to issue shares
of Common Stock upon exercise or conversion of Warrants, the full number of
shares of Common Stock deliverable upon the exercise or conversion of all
outstanding Warrants.
Before taking any action which would cause an adjustment pursuant to
Section 11 reducing the Exercise Price, the Company will take any corporate
action which may, in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and non-assessable shares of
Common Stock at the Exercise Price as so adjusted.
The Company covenants that all shares of Common Stock which may be
issued upon exercise of Warrants will upon issue be fully paid and
non-assessable and free from all taxes, liens, charges and security interests
with respect to the issue thereof.
The Warrant Agent is hereby authorized to requisition from time to time
from any transfer agent for the shares of Common Stock, and any subsequent
transfer agent of any of the Company's securities issuable upon the exercise of
the Warrants, share certificates required to honor outstanding Warrants. The
Company hereby authorizes and instructs its present and any future transfer
agent to comply with all such requests. The Company will supply such transfer
agent with duly executed share certificates for such purpose and will itself
provide or otherwise make available any cash which may be payable as provided in
Section 14.
If and for so long as the outstanding shares of Common Stock may be
listed on any securities exchange or inter-dealer quotation system in the
United States, the Company shall use its best efforts to cause all shares
reserved for issuance or conversion upon the exercise or conversion of Warrants
to be listed on each such exchange or quotation system upon official notice of
issuance upon such exercise or conversion.
SECTION 9. Transfer Taxes. The Company further covenants and agrees
that it will pay when due and payable any and all federal and state transfer
taxes and charges which may be payable in respect of the issuance or delivery of
the Warrant Certificates or of any shares of Common Stock upon the exercise or
conversion of Warrants. The Company shall not, however, be required to pay any
transfer tax which may be payable in respect of any transfer involved in the
transfer or delivery of Warrant Certificates or the issuance or conversion or
delivery of certificates for shares of Common Stock in a name other than that of
the registered holder of the Warrant Certificate evidencing Warrants surrendered
for exercise or to issue or deliver any certificates for shares of Common Stock
upon the exercise or conversion of any Warrants until any such tax shall have
been paid (any such tax being payable by the holder of such Warrant Certificate
at the time of surrender) or until it has been established to the Company's
satisfaction that no such tax is due.
SECTION 10. Common Stock Record Date. Each person in whose name any
certificate for shares of Common Stock is issued upon the exercise of Warrants
shall for all purposes be deemed to have become the
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holder of record of the shares of Common Stock represented thereby on, and such
certificate shall be dated, the date upon which the Warrant Certificate
evidencing such Warrants was duly surrendered and payment of the Exercise Price
(and any applicable transfer taxes) was made. Prior to the exercise of the
Warrants evidenced thereby, the holder of a Warrant Certificate shall not be
entitled to any rights of a shareholder of the Company with respect to shares
for which the Warrants shall be exercisable, including, without limitation, the
rights to vote, to receive dividends or other distributions (except as
expressly set forth herein), or to exercise any preemptive rights, and shall
not be entitled to receive any notice of any proceedings of the Company, except
as expressly provided herein.
SECTION 11. Adjustment of Exercise Price, Number of Shares, or
Number of Warrants. The Exercise Price, the number and kind of securities
purchasable upon the exercise of each Warrant, and the number of Warrants
outstanding shall be subject to adjustment from time to time upon the happening
of the events enumerated in this Section 11.
(a) In case the Company shall at any time after the
date of this Agreement (i) pay a dividend in shares of Common Stock or other
stock of the Company or make a distribution in shares of Common Stock or such
other stock to holders of all its outstanding shares of Common Stock, (ii)
subdivide the outstanding shares of Common Stock, (iii) combine the outstanding
shares of Common Stock into a smaller number of shares of Common Stock, or (iv)
issue by reclassification of its shares of Common Stock other securities of the
Company (including any such reclassification in connection with a consolidation
or merger in which the Company is the continuing corporation), the number and
kind of shares purchasable upon exercise of each Warrant outstanding
immediately prior thereto shall be adjusted so that the holder of each Warrant
shall be entitled to receive at the same aggregate Warrant Exercise Price the
kind and number of shares of Common Stock or other securities of the Company
which the holder would have owned or have been entitled to receive after the
happening of any of the events described above had such Warrant been exercised
in full immediately prior to the earlier of the happening of such event or any
record date with respect thereto. In the event of any adjustment of the total
number of shares of Common Stock purchasable upon the exercise of the then
outstanding Warrants pursuant to this Subsection 11(a), the Exercise Price
shall be adjusted to be the amount resulting from dividing the number of shares
of Common Stock (including fractional shares of Common Stock) covered by such
Warrant immediately after such adjustment into the total amount payable upon
exercise of such Warrant in full immediately prior to such adjustment. An
adjustment made pursuant to this Subsection 11(a) shall become effective
immediately after the effective date of such event retroactive to the record
date, if any, for such event. Such adjustment shall be made successively
whenever any event listed above shall occur.
(b) In case the Company shall distribute to all
holders of its shares of Common Stock (including any such distribution made in
connection with a consolidation or merger in which the Company is the surviving
corporation) evidences of its indebtedness or assets (other than cash dividends
and distributions payable out of retained earnings in accordance with Delaware
law and dividends or distributions payable in shares of stock described in
Subsection 11(a) above) or rights, options, or warrants or exchangeable or
convertible securities containing the right to subscribe for or purchase shares
of Common Stock, then the Exercise Price shall be adjusted by multiplying the
Exercise Price in effect immediately prior to the record date for the
determination of shareholders entitled to receive such distribution by a
fraction, of which the numerator shall be the current Market Price per share of
Common Stock (as defined in Subsection 11(c) below) on such record date, less
the fair market value (as determined by the Board of Directors of the Company,
whose determination shall be conclusive and described in a statement filed with
the Warrant Agent) of the portion of the evidences of indebtedness or assets so
to be distributed or of such rights, options or warrants applicable to one
share of Common Stock and of which the denominator shall be such current Market
Price per share of Common Stock. Such adjustment shall be made whenever any
such distribution is made, and shall become effective on the date of
distribution retroactive to the record date for the determination of
shareholders entitled to receive such distribution.
(c) For the purpose of any computation under
Subsection 11(b), the current Market Price per share of Common Stock at any
date shall be deemed to be the average daily Closing Prices of the shares of
Common Stock for the 20 consecutive trading days commencing 25 trading days
before the day in question.
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(d) No adjustment will be made until the cumulative
adjustments in the exercise price per share amount to $0.25 or more.
(e) No adjustment in the Exercise Price shall be required
unless such adjustment would require an increase or decrease of at least
one-half of one percent (1/2%) or more of the Exercise Price; provided,
however, that any adjustments which by reason of this Subsection 11(e) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section 11 shall be made to
the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(f) Unless the Company shall have exercised its election as
provided in Subsection 6(f), upon each adjustment of the Exercise Price as a
result of the calculations made in Subsection 11(b), each Warrant outstanding
prior to the making of the adjustment in the Exercise Price shall thereafter
evidence the right to purchase, at the adjusted Exercise Price, that number of
shares of Common Stock (calculated to the nearest hundredth) obtained by (i)
multiplying the number of shares of Common Stock purchasable upon exercise of a
Warrant prior to adjustment of the number of shares of Common Stock by the
Exercise Price in effect prior to adjustment of the Exercise Price and (ii)
dividing the product so obtained by the Exercise Price in effect after such
adjustment of the Exercise Price.
(g) The Company may elect on or after the date of any
adjustment of the Exercise Price to adjust the number of Warrants, in
substitution for any adjustment in the number of shares of Common Stock
purchasable upon the exercise of a Warrant as provided in Subsection 11(e). Each
of the Warrants outstanding after such adjustment of the number of Warrants
shall be exercisable for one share of Common Stock. Each Warrant held of record
prior to such adjustment of the number of Warrants shall become that number of
Warrants (calculated to the nearest hundredth) obtained by dividing the Exercise
Price in effect prior to adjustment of the Exercise Price by the Exercise Price
in effect after adjustment of the Exercise Price. The Company shall send to each
holder of record of Warrant Certificates an announcement of its election to
adjust the number of Warrants, indicating the record date for the readjustment,
and, if known at the time, the amount of the adjustment to be made. This record
date may be the date on which the Exercise Price is adjusted or any day
thereafter, but shall be at least ten days later than the date such announcement
is sent to each holder of record of Warrant Certificates. Upon each adjustment
of the number of Warrants pursuant to this Subsection 11(g), the Company shall,
as promptly as practicable, cause to be distributed to holders of record of
Warrant Certificates on such record date Warrant Certificates evidencing,
subject to Section 14, the additional Warrants to which such holders shall be
entitled as a result of such adjustment, or at the option of the Company, shall
cause to be distributed to such holders of record in substitution and
replacement for the Warrant Certificates held by such holders prior to the date
of adjustment and upon surrender thereof if required by the Company, new Warrant
Certificates evidencing all the Warrants to which such holders shall be entitled
after such adjustment. Warrant Certificates so to be distributed shall be
issued, executed, and countersigned in the manner specified in Section 3 (but
shall bear, at the option of the Company, the adjusted Exercise Price) and shall
be registered in the names of the holders of record of Warrant Certificates on
the record date specified in the announcement sent to each holder of Warrant
Certificates.
(h) In case of any capital reorganization of the Company,
or of any reclassification of the shares of Common Stock (other than a
reclassification of the shares of Common Stock referred to in Subsection
11(a)), or in case of the consolidation of the Company with, or the merger of
the Company with, or the merger of the Company into, any other corporation or
entity (other than a reclassification of the shares of Common Stock referred to
in Subsection 11(a) or a consolidation or merger which does not result in any
reclassification or change of the outstanding shares of Common Stock) or of the
sale of the properties and assets of the Company as, or substantially as, an
entirety to any other corporation or entity, each Warrant shall after such
capital reorganization, reclassification of shares of Common Stock,
consolidation, merger, or sale be exercisable, upon the terms and conditions
specified in this Agreement, for the number of shares or other securities,
assets, or cash to which a holder of the number of shares of Common Stock
purchasable (at the time of such capital reorganization, reclassification of
shares of Common Stock, consolidation, merger, or sale) upon exercise of such
Warrant would have been entitled upon such capital reorganization,
reclassification of shares of Common Stock, consolidation, merger, or sale; and
in any such case, if necessary, the provisions set forth in this Section 11
with respect to the rights and interests thereafter of the holders of the
Warrants shall be appropriately adjusted so as to
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be applicable, as nearly as shall be reasonable, to any shares or other
securities, assets, or cash thereafter deliverable on the exercise of the
Warrants. The subdivision or combination of shares of Common Stock at any time
outstanding into a greater or lesser number of shares shall not be deemed to be
a reclassification of the shares of Common Stock for the purposes of this
Subsection 11(h) and shall be dealt with as provided in Subsection 11(a) above.
The Company shall not effect any such consolidation, merger, or sale unless
prior to or simultaneously with the consummation thereof the successor
corporation or entity (if other than the Company) resulting from such a
consolidation or merger or the corporation or entity purchasing such assets or
another appropriate corporation or entity shall assume, by written instrument
executed and delivered to, and in a form acceptable to, the Warrant Agent,the
obligation to deliver to the holder of each Warrant such shares, securities,
assets or cash as, in accordance with the foregoing provisions, such holders
may be entitled to purchase, as well as the other obligations of the Company
under this Warrant Agreement.
(i) In the event that at any time, as a result of an
adjustment made pursuant to this Section 11, the holders of Warrants shall
become entitled to purchase any shares or securities of the Company other than
the shares of Common Stock, thereafter the number of such other shares or
securities so purchasable upon exercise of each Warrant and the Exercise Price
for such shares or securities shall be subject to adjustment from time to time
in a manner and on such terms as nearly equivalent as practicable to the
provisions with respect to shares of Common Stock contained in Subsections
11(a) through 11(h), inclusive, above, and the provisions of Sections 6, 8, 9,
10 and 14, inclusive, with respect to shares of Common Stock shall apply on
like terms to any such other shares or securities.
(j) In any case in which this Section 11 shall
require that an adjustment in the Exercise Price be made effective as of a
record date for a specified event, the Company may elect to defer until the
occurrence of such event issuing to the holder of any Warrant exercised after
such record date the shares of Common Stock, if any, issuable upon such exercise
over and above the shares of Common Stock, if any, issuable upon such exercise
on the basis of the Exercise Price in effect prior to such adjustment; provided,
however, that the Warrant Agent shall deliver as soon as practicable to such
holder a due bill or other appropriate instrument, provided by the Company and
in a form acceptable to the Warrant Agent, evidencing such holder's right to
receive such additional shares of Common Stock upon the occurrence of the event
requiring such adjustment.
SECTION 12. Notices to Warrantholders. Upon any adjustment of the
Exercise Price pursuant to Section 11, the Company within 20 days thereafter
shall (i) cause to be filed with the Warrant Agent a certificate of a firm of
independent public accountants of recognized standing (who may be the regular
auditors of the Company) selected by the Board of Directors of the Company
setting forth the Exercise Price after such adjustment and setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based and setting forth the number of Warrants to be issued
under Subsection 11(g) hereof, or the number of shares of Common Stock (or
portion thereof) purchasable upon exercise of a Warrant after such adjustment
in the Exercise Price, which certificate shall be conclusive evidence of the
correctness of the matters set forth therein, and (ii) cause to be given to
each of the holders of record of Warrant Certificates at their respective
addresses appearing on the Warrant register written notice of such adjustment
by first-class mail, postage prepaid. Where appropriate, such notice may be
given in advance and included as a part of the notice required to be mailed
under the other provisions of this Section 12.
In the event of any of the following:
(a) the Company shall authorize the issuance to its
holders of rights or warrants to subscribe for or purchase shares of Common
Stock or of any other subscription rights or warrants; or
(b) the Company shall authorize the distribution to
all holders of shares of Common Stock of evidences of its indebtedness or
assets (other than cash dividends not exceeding $1.00 per share of Common Stock
payable during any 12-month period or distributions or dividends payable in
shares of Common Stock); or
(c) any consolidation or merger to which the
Company is a party and for which
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approval of any shareholders of the Company is required, or of the conveyance
or transfer of the properties and assets of the Company as, or substantially
as, an entirety, or of any reclassification or change of outstanding shares of
Common Stock issuable upon exercise of the Warrants (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); or
(d) the voluntary or involuntary dissolution, liquidation,
or winding up of the Company; or
(e) the Company proposes to take any action (other than
actions of the character described in Subsection 11(a) except as required under
Subsection 12(c) above) which would require an adjustment of the Exercise Price
pursuant to Section 11;
then the Company shall cause to be filed with the Warrant Agent and shall cause
to be given to each of the holders of record of the Warrant Certificates at
their respective addresses appearing on the Warrant register, at least 20 days
(or ten days in any case specified in clause (a) or (b) above) prior to the
applicable record date hereinafter specified, by first-class mail, postage
prepaid, a written notice stating (i) the date as of which the holders of
record of shares of Common Stock to be entitled to receive any such rights,
warrants, or distribution are to be determined, or (ii) the date on which any
such consolidation, merger, conveyance, transfer, dissolution, liquidation, or
winding up is expected to become effective, and the date as of which it is
expected that holders of record of shares of Common Stock shall be entitled to
exchange their shares of Common Stock for securities or other property, if any,
deliverable upon such reclassification, consolidation, merger, conveyance,
transfer, dissolution, liquidation, or winding up. The failure to give the
notice required by this Section 12 or any defect therein shall not affect the
legality or validity of any distribution, right, warrant, consolidation,
merger, conveyance, transfer, dissolution, liquidation, or winding up, or the
vote upon any such action.
SECTION 13. Obtaining of Governmental Approvals. The Company will
use its reasonable efforts to take such action which may be necessary from time
to time to obtain and keep effective any and all permits, consents, and
approvals of governmental agencies and authorities and to make all filings
under federal and state securities laws which may be or become requisite in
connection with the issuance, sale, transfer and delivery of the Warrant
Certificates, the exercise of the Warrants, and the issuance, sale, transfer
and delivery of the shares of Common Stock issuable upon exercise of the
Warrants.
The Company will give written notice of the issuance of shares of
Common Stock pursuant to the exercise of Warrants, at such times and in such
detail as may be required, to each stock exchange and inter-dealer quotation
system on which the shares of Common Stock are listed.
Notwithstanding any other provision of this Agreement or of the
Warrants to the contrary, (1) the Warrants shall not be exercisable by the
holder of any Warrant Certificate resident in a jurisdiction under the
securities or blue sky laws of which the shares of Common Stock issuable upon
exercise of such Warrant Certificate are not registered or qualified or exempt
from registration or qualification or in which a current prospectus meeting the
requirements of the laws of such jurisdiction cannot be lawfully delivered by
or on behalf of the Company, and (2) the Warrants shall not be exercisable by
the holder of any Warrant Certificate if the shares of Common Stock issuable
upon exercise of such Warrant Certificate are not the subject of a current
registration statement filed with and declared effective by the Securities and
Exchange Commission or exempt from such registration.
SECTION 14. Fractional Warrants and Fractional Shares
(a) The Company shall not be required to issue
fractions of Warrants or to distribute Warrant Certificates which evidence
fractional Warrants. In lieu of such fractional Warrants, there shall be paid
to the registered holders of Warrant Certificates with regard to which such
fractional Warrants would otherwise be issuable an amount in cash in United
States dollars equal to the same fraction of the current market value of a
whole Warrant. For purposes of this Subsection 14(a), the current market value
of a Warrant shall be the Closing Price of the Warrant for the trading day
immediately prior to the date on which such fractional Warrant would have been
otherwise issuable.
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(b) The Company shall not be required to issue fractions of
shares of Common Stock upon exercise of the Warrants or to distribute share
certificates which evidence fractional shares of Common Stock. In lieu of
fractional shares of Common Stock, there shall be paid to the registered
holders of Warrant Certificates at the time such Warrants are exercised as
herein provided an amount in cash in United States dollars equal to the same
fraction of the current market value of a share of Common Stock. For purposes
of this Subsection 14(b), the current market value of a share of Common Stock
shall be the Closing Price of a share of Common Stock for the trading day
immediately prior to the date of such exercise.
(c) The holder of a Warrant, by the acceptance of the
Warrant, expressly waives the holder's right to receive any fractional Warrant
or any fractional share of Common Stock upon exercise of a Warrant.
SECTION 15. Rights of Action. All rights of action in respect of
this Agreement are vested in the respective registered holders of the Warrant
Certificates; and any registered holder of any Warrant Certificate, without the
consent of the Warrant Agent or of the holder of any other Warrant Certificate,
may, in such holder's own behalf and for such holder's own benefit, enforce,
and may institute and maintain any suit, action, or proceeding against the
Company to enforce, or otherwise act in respect of, such holder's right to
exercise the Warrants evidenced by such Warrant Certificate in the manner
provided in such Warrant Certificate and in this Agreement.
SECTION 16. Agreement of Warrant Certificate Holders. Every holder
of a Warrant Certificate by accepting the same consents and agrees with the
Company and the Warrant Agent and with every other holder of a Warrant
Certificate that:
(a) transfer of the Warrant Certificates shall be
registered on the Warrant register only if surrendered at the principal
corporate trust office or agency of the Warrant Agent as set forth in Section 4
hereof, duly endorsed or accompanied by a proper instrument of transfer; and
(b) prior to due presentment for registration of transfer,
the Company and the Warrant Agent may deem and treat the person in whose name
the Warrant Certificate is registered as the absolute owner thereof and of the
Warrants evidenced thereby (notwithstanding any notations of ownership or
writing on the Warrant Certificates made by anyone other than the Company or
the Warrant Agent) for all purposes whatsoever, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary.
SECTION 17. The Warrant Agent. The Warrant Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Warrants, by their
acceptance thereof, shall be bound:
(a) The statements contained herein and in the Warrant
Certificates shall be taken as statements of the Company and the Warrant Agent
assumes no responsibility for the correctness of any of the same except such as
describe the Warrant Agent or action taken or to be taken by it. The Warrant
Agent assumes no responsibility with respect to the distribution of the Warrant
Certificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any
failure of the Company to comply with any of the covenants contained in this
Agreement or in the Warrant Certificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Warrant Agent
shall incur no liability or responsibility to the Company or to any holder of
any Warrant Certificate in respect of any action taken in accordance with the
opinion or the advice of such counsel, provided the Warrant Agent shall have
exercised reasonable care in the selection and continued employment of such
counsel.
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(d) The Warrant Agent shall incur no liability or
responsibility to the Company or to any holder of any Warrant Certificate for
any action taken in reliance on any notice, resolution, waiver, consent, order,
certificate, or other paper, document, or instrument believed by it to be
genuine and to have been signed, sent, or presented by the proper party or
parties.
(e) The Company agrees to pay to the Warrant Agent
compensation, in such amounts as previously agreed upon, for the services
rendered by the Warrant Agent in the performance of this Agreement, to
reimburse the Warrant Agent for all expenses, taxes and governmental charges
and other charges of any kind and nature incurred by the Warrant Agent in the
performance of this Agreement, and to indemnify the Warrant Agent and hold it
harmless against any and all liabilities, including judgments, expenses, and
counsel fees, for anything done or omitted by the Warrant Agent in the
performance of this Agreement except as a result of the Warrant Agent's
negligence or bad faith.
(f) Except as otherwise provided by law, the Warrant Agent
and any shareholder, director, officer, or employee of the Warrant Agent may
buy, sell, or deal in any of the Warrants or other securities of the Company or
become pecuniarily interested in any transaction in which the Company may be
interested, or contract with or lend money to or otherwise act as fully and
freely as though it were not a Warrant Agent under this Agreement. Nothing
herein shall preclude the Warrant Agent from acting in any other capacity for
the Company or for any other legal entity.
(g) The Warrant Agent shall act hereunder solely as agent
for the Company, and its duties shall be determined solely by the provisions
hereof. The Warrant Agent shall not be liable for anything which it may do or
refrain from doing in connection with this Agreement except for its own
negligence or bad faith; provided, however, the Warrant Agent shall have no
liability hereunder for failing to take any action which it is not specifically
directed to take by the terms of this Agreement.
(h) The Warrant Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties hereunder
from the President or any Vice President or the Treasurer or Chief Financial
Officer of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and it shall not be liable for any
action taken or suffered to be taken by it in good faith in accordance with
instructions of any such officer.
SECTION 18. Change of Warrant Agent. The Warrant Agent may resign
or be discharged from its duties under this Agreement by giving to the Company
notice in writing, and by giving notice in writing by first class mail, postage
prepaid, to the registered holders of Warrant Certificates at their respective
addresses appearing in the Warrant register, specifying a date when such
resignation shall take effect, which notice shall be sent at least 30 days
prior to the date so specified. The Company may remove the Warrant Agent or any
successor warrant agent upon 30 days' notice in writing, mailed to the Warrant
Agent or any successor warrant agent and to each transfer agent of the shares
of Common Stock by registered or certified mail, and to the registered holders
of Warrant Certificates at their respective addresses appearing in the Warrant
register. If the Warrant Agent shall resign or shall otherwise become incapable
of acting, the Company shall appoint a successor to the Warrant Agent. If the
Company shall fail to make such appointment within a period of 30 days after
it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Warrant Agent or by the registered holder of a
Warrant Certificate, then the registered holder of any Warrant Certificate may
apply to any court of competent jurisdiction for the appointment of a successor
to the Warrant Agent. Pending appointment of a successor to the Warrant Agent,
either by the Company or by such a court, the duties of the Warrant Agent shall
be carried out by the Company. Any warrant agent that is to be the successor of
the Warrant Agent or any of its successors, whether appointed by the Company or
by such a court, shall be a bank or trust company in good standing,
incorporated under the laws of the State of New York or of the United States of
America, and having its principal office in New York, New York, or elsewhere,
and having at the time of its appointment as warrant agent a combined capital
and surplus of at least Ten Million Dollars ($10,000,000.00). After appointment,
any successor warrant agent shall be vested with the same powers, rights,
duties, and responsibilities as if it had been originally named as Warrant
Agent without further act or deed; but the former Warrant Agent shall deliver
and transfer to the successor warrant
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agent any property at the time held by it hereunder and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Failure to
give any notice provided for in this Section 18, however, or any defect therein,
shall not affect the legality or validity of the resignation or removal of the
Warrant Agent or the appointment of the successor warrant agent, as the case may
be.
SECTION 19. MAINTENANCE OF OFFICE. As long as any of the Warrant
Certificates remain unexercised or unconverted, the Company will maintain an
office or agency in New York where the Warrant Certificates may be presented
for registration, transfer, exchange, or exercise pursuant to the terms of this
Agreement, and where notices and demands to or upon the Company in respect of
the Warrants, Warrant Certificates, or this Agreement may be served. The
principal corporate trust office of the Warrant Agent in the City of New York
shall be the office or agency for such purposes, which at the date hereof is:
American Stock Transfer & Trust Company
40 Wall Street
New York, New York 10005
Attention: Michael Karfunkel, President
SECTION 20. ISSUANCE OF NEW WARRANT CERTIFICATES. Notwithstanding any of
the provisions of this Agreement or of the Warrants or Warrant Certificates to
the contrary, the Company may, at its option, issue new Warrant Certificates
evidencing Warrants in such form as may be approved by its Board of Directors to
reflect any adjustment or change in the Exercise Price and the number or kind or
class of shares of stock or other securities or property purchasable under the
several Warrant Certificates made in accordance with the provisions of this
Agreement.
SECTION 21. NOTICES. Notices or demands authorized by this Agreement to
be given or made by the Warrant Agent or by the holder of any Warrant
Certificate to or on the Company shall be sufficiently given or made if sent
by first class mail, postage prepaid, addressed (until another address is
filed in writing with the Warrant Agent) as follows:
Birman Managed Care, Inc.
502 Gould Drive
Cookeville, Tennessee 38506
Attention: David N. Birman, M.D.
Subject to the provisions of Section 18, any notice or demand authorized by this
Agreement to be given or made by the Company or by the holder of any Warrant
Certificate to or on the Warrant Agent shall be sufficiently given or made,
except as otherwise provided in this Agreement with respect to a particular
Section or Subsection, if sent by first class mail, postage prepaid, addressed
(until another address is filed in writing with the Company) as follows:
American Stock Transfer & Trust Company
40 Wall Street
New York, New York 10005
Attention: Michael Karfunkel, President
Notice or demands authorized by this Agreement to be given or made by the
Company or the Warrant Agent to the holder of any Warrant Certificate shall be
sufficiently given or made if sent by first class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the Warrant
register and published at least once in THE WALL STREET JOURNAL (national
edition).
SECTION 22. SUPPLEMENTS AND AMENDMENTS. The Company and the Warrant Agent
may from time to time supplement or amend this Agreement without the approval of
any holders of Warrant Certificates in order to cure any ambiguity, to correct
or supplement any provision contained herein which may be defective or
inconsistent with any provisions herein, or to make any other provisions in
regard to matters or questions arising
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hereunder which the Company and the Warrant Agent may deem necessary or
desirable and which shall not adversely affect the interests of the holders of
Warrant Certificates. Other than as provided in the preceding sentence, no
supplement or amendment to this Agreement shall be made without the affirmative
vote or written consent of each of the Company, the Warrant Agent and the
holders of a majority of the Warrants then outstanding.
SECTION 23. Successors. All of the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
SECTION 24. Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any person or entity other than the Company, the
Warrant Agent, and the registered holders of the Warrant Certificates any legal
or equitable right, remedy, or claim under this Agreement, but this Agreement
shall be for the sole and exclusive benefit of the Company, the Warrant Agent,
and the registered holders of the Warrant Certificates.
SECTION 25. New York Contract. This Agreement and each Warrant
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of New York and for all purposes shall be governed by and
construed in accordance with the laws of such state applicable to contracts to
be made by residents of and to be performed entirely within such state.
SECTION 26. Counterparts. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
SECTION 27. Descriptive Headings. Descriptive headings of the several
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
fully executed and attested, all as of the day and year first above written.
The Company:
BIRMAN MANAGED CARE, INC.,
a Delaware Corporation
By:
--------------------------------
ATTEST: David N. Birman, M.D., President
- -----------------------------------
Robert D. Arkin, Secretary
The Warrant Agent:
AMERICAN STOCK TRANSFER AND TRUST
COMPANY
By:
--------------------------------
Michael Karfunkel, President
ATTEST:
- -----------------------------------
Secretary
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