EXHIBIT 10.33
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND SUCH
SECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED UNLESS SO REGISTERED OR AN
EXEMPTION FROM REGISTRATION UNDER SAID ACT IS AVAILABLE. THIS LEGEND SHALL BE
ENDORSED UPON ANY WARRANT ISSUED IN EXCHANGE FOR THIS WARRANT.
WARRANT AGREEMENT
FOR COMMON STOCK OF
PROXYMED, INC.
Warrant No. 00-___
THIS CERTIFIES that, for value received, ______________, or its
permitted assigns (collectively, the "Holder"), is entitled to purchase from
ProxyMed, Inc., a Florida corporation (the "Company"), at any time, and from
time to time, during the exercise period referred to in Section 1 hereof
___________ fully paid, validly issued and nonassessable shares (the "Warrant
Shares") of common stock of the Company, par value $0.001 (the "Common Stock")
at the exercise price of $1.00 per share, subject to anti-dilution adjustments
as provided herein (the "Warrant Share Price"). Securities issuable upon
exercise of this Warrant and the exercise price payable therefor are subject to
adjustment from time to time as hereinafter set forth. As used herein, the term
"Warrant" shall include any warrant or warrants hereafter issued in consequence
of the exercise of this Warrant in part or transfer of this Warrant in whole or
in part.
1. Exercise; Payment for Ownership Interest.
(a) Upon the terms and subject to the conditions set forth herein, this
Warrant may be exercised in whole or in part by the Holder hereof at any time,
or from time to time, on or after the date hereof and prior to 5 p.m. New York
time on June 28, 2005, but, in any event, no earlier than the date on which the
Company obtains shareholder approval of an increase to the number of authorized
shares of its Common Stock to 75,000,000, by presentation and surrender of this
Warrant to the principal offices of the Company, or at the office of its
Transfer Agent (as hereinafter defined), if any, together with the Purchase Form
annexed hereto, duly executed, and accompanied by payment to the Company of an
amount equal to the Warrant Share Price multiplied by the number of Warrant
Shares as to which this Warrant is then being exercised provided, however, that
in each case, the minimum number of Warrant Shares as to which this Warrant is
being exercised shall not be less than 1,000 Warrant Shares; provided, further,
that in the event of any merger, consolidation or sale of all or substantially
all the assets of the Company resulting in any distribution to the Company's
shareholders, prior to June 28, 2005, the Holder shall have the right to
exercise this Warrant commencing at such time through June 28, 2005 into the
kind and amount of shares of stock and other securities and property (including
cash) receivable by a holder of the number of shares of Common Stock into which
this Warrant might have been exercisable immediately prior thereto. Any transfer
of Warrant Shares obtained by the Holder in exercise of this Warrant is subject
to the requirement that such securities be registered under the Securities Act
of 1933, as amended (the "1933 Act"), and applicable state securities laws or
exempt from registration under such laws. The Holder of this Warrant shall be
deemed to be a shareholder of the Warrant Shares as to which this Warrant is
exercised in accordance herewith effective immediately after the close of
business on the date on which the Holder shall have delivered to the Company
this Warrant in proper form for exercise and payment by certified or official
bank check or wire transfer of the cash purchase price for the number of Warrant
Shares as to which the exercise is being made, or by delivery to the Company of
securities of the Company having a value equal to the cash purchase price for
such number of Warrant Shares determined in good faith by the Board of Directors
of the Company as of the date of delivery, notwithstanding that the stock
transfer books of the Company shall be then closed or that certificates
representing such Warrant Shares shall not then be physically delivered to the
Holder.
Notwithstanding anything to the contrary provided herein or elsewhere,
in the event that the Company does not obtain the requisite shareholder approval
referred to in this Section 1(a) prior to January 1, 2001, then the Company
shall be obligated to redeem this Warrant at the election of the Holder at the
cash purchase price equal to $2.00 per share in accordance with the procedure
set forth in Section 3 below.
(b) All or any portion of the Warrant Share Price may be paid by
surrendering Warrants effected by presentation and surrender of this Warrant to
the Company, or at the office of its Transfer Agent, if any, with a Cashless
Exercise Form annexed hereto duly executed (a "Cashless Exercise"). Such
presentation and surrender shall be deemed a waiver by the Company of the
Holder's obligation to pay all or any portion of the aggregate Warrant Share
Price. Except as provided in Section 3(b) below, in the event of a Cashless
Exercise, the Holder shall exchange its Warrant for that number of shares of
Common Stock determined by multiplying the number of Warrant Shares for which
the Holder desires to exercise this Warrant by a fraction, the numerator of
which shall be the difference between the then current market price per share of
the Common Stock and the Warrant Share Price, and the denominator of which shall
be the then current market price per share of Common Stock. For purposes of any
computation under this Section 1(b), the then current market price per share of
Common Stock at any date shall be deemed to be the average for the ten
consecutive business days immediately prior to the Cashless Exercise of the
daily closing prices of the Common Stock on the principal national securities
exchange on which the Common Stock is admitted to trading or listed, or if not
listed or admitted to trading on any such exchange, the closing prices as
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reported by the Nasdaq National Market or, if applicable, the Nasdaq SmallCap
Market, or if not then included for quotation on the Nasdaq National Market or
the Nasdaq SmallCap Market, the average of the highest reported bid and lowest
reported asked prices as reported by the OTC Bulletin Board or the National
Quotations Bureau, as the case may be, or if not then publicly traded, the fair
market price, not less than book value thereof, of the Common Stock as
determined in good faith by the Board of Directors of the Company.
(c) If this Warrant shall be exercised in part only, the Company shall,
upon surrender of this Warrant for cancellation, execute and deliver a new
Warrant evidencing the rights of the Holder thereof to purchase the balance of
the Warrant Shares purchasable hereunder as to which the Warrant has not been
exercised. If this Warrant is exercised in part, such exercise shall be for a
whole number of Warrant Shares. Upon any exercise and surrender of this Warrant,
the Company (i) will issue and deliver to the Holder a certificate or
certificates in the name of the Holder for the largest whole number of Warrant
Shares to which the Holder shall be entitled and, if this Warrant is exercised
in whole, in lieu of any fractional Warrant Share to which the Holder otherwise
might be entitled, cash in an amount equal to the fair value of such fractional
Warrant Share (determined in such reasonable and equitable manner as the Board
of Directors of the Company shall in good faith determine), and (ii) will
deliver to the Holder such other securities, properties and cash which the
Holder may be entitled to receive upon such exercise, or the proportionate part
thereof if this Warrant is exercised in part, pursuant to the provisions of this
Warrant.
2. Anti-Dilution Provisions. The Warrant Share Price in effect at any
time and the number and kind of securities issuable upon exercise of this
Warrant and the Warrant Share Price shall be subject to adjustment from time to
time upon happening of certain events as follows:
2.1 Reorganization, Reclassification, Consolidation, Merger or Sale. If
any capital reorganization, reclassification or any other change of capital
stock of the Company, or any consolidation or merger of the Company with another
person, or the sale or transfer of all or substantially all of its assets to
another person shall be effected in such a way that holders of shares of Common
Stock shall be entitled to receive stock, securities or assets with respect to
or in exchange for their shares of Common Stock, then, as a condition precedent
to such transaction, provision shall be made by the Company, in accordance with
this Section 2.1, whereby the Holder hereof shall in connection with the
consummation of such transaction have the right to purchase and receive, upon
the basis and upon the terms and conditions specified in this Warrant Agreement
and in addition to or in exchange for, as applicable, the Warrant Shares subject
to this Warrant immediately theretofore purchasable and receivable upon the
exercise of the rights represented hereby, such securities or assets as would
have been issued or payable with respect to or in exchange for the aggregate
Warrant Shares immediately theretofore purchasable and receivable upon the
exercise of the rights
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represented hereby if exercise of the Warrant had occurred immediately prior to
such reorganization, reclassification, consolidation, merger or sale. The
Company will not effect any such consolidation, merger, sale, transfer or lease
unless prior to the consummation thereof the successor entity (if other than the
Company) resulting from such consolidation or merger or the entity purchasing
such assets shall assume by written instrument (i) the obligation to deliver to
the Holder such securities or assets as, in accordance with the foregoing
provisions, the Holder may be entitled to purchase, and (ii) all other
obligations of the Company under this Warrant. The provisions of this Section
2.1 shall similarly apply to successive consolidations, mergers, exchanges,
sales, transfers or leases. In the event that in connection with any such
capital reorganization or reclassification, consolidation, merger, sale or
transfer, additional shares of Common Stock shall be issued in exchange,
conversion, substitution or payment, in whole or in part, for a security of the
Company other than Common Stock, any such issue shall be treated as an issue of
Common Stock covered by the provisions of Section 2.2 hereof.
2.2 Stock Dividends and Securities Distributions. If, at any time or
from time to time after the date of this Warrant, the Company shall distribute
to the holders of shares of Common Stock (i) securities (including rights,
warrants, options or another form of convertible securities), (ii) property,
other than cash, or (iii) cash, without fair payment therefor, then, and in each
such case, the Holder, upon the exercise of this Warrant, shall be entitled to
receive such securities, property and cash which the Holder would hold on the
date of such exercise if, on the date of the distribution, the Holder had been
the holder of record of the shares of Common Stock issued upon such exercise
and, during the period from the date of this Warrant to and including the date
of such exercise, had retained such shares of Common Stock and the securities,
property and cash receivable by the Holder during such period, subject, however,
to the Holder agreeing to any conditions to such distribution as were required
of all other holders of shares of Common Stock in connection with such
distribution. If the securities to be distributed by the Company involve rights,
warrants, options or any other form of convertible securities and the right to
exercise or convert such securities would expire in accordance with its terms
prior to the exercise of this Warrant, then the terms of such securities shall
provide that such exercise or convertibility right shall remain in effect until
thirty (30) days after the date the Holder of this Warrant receives such
securities pursuant to the exercise hereof.
2.3 Other Adjustments. In addition to those adjustments set forth in
Sections 2.1 and 2.2, but without duplication of the adjustments to be made
under such Sections, if the Company:
(i) declares or pays a dividend or makes a distribution on its
Common Stock in shares of its Common Stock;
(ii) subdivides or reclassifies its outstanding shares of Common
Stock into a greater number of shares;
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(iii) combines or reclassifies its outstanding shares of Common
Stock into a smaller number of shares;
(iv) makes a distribution on its Common Stock in shares of its
capital stock other than Common Stock; and/or
(v) issues, by reclassification of its Common Stock, any shares of
its capital stock;
then the number and kind of Warrant Shares purchasable upon exercise of this
Warrant shall be adjusted so that the Holder upon exercise hereof shall be
entitled to receive the kind and number of Warrant Shares or other securities of
the Company that the Holder would have owned or have been entitled to receive
after the happening of any of the events described above had this Warrant been
exercised immediately prior to the happening of such event or any record date
with respect thereto. An adjustment made pursuant to this Section 2.3 shall
become effective immediately after the record date in the case of a dividend or
distribution and shall become effective immediately after the effective date in
the case of a subdivision, combination or issuance. If, as a result of an
adjustment made pursuant to this Section 2.3, the Holder of this Warrant
thereafter surrendered for exercise shall become entitled to receive shares of
two or more classes of capital stock or shares of Common Stock and any other
class of capital stock of the Company, the Board of Directors (whose
determination shall be conclusive and shall be described in a written notice to
all holders of Warrants promptly after such adjustment) shall determine the
allocation of the adjusted Warrant Share Price between or among shares of such
classes of capital stock or shares of Common Stock and such other class of
capital stock.
The adjustment to the number of Warrant Shares purchasable
upon the exercise of this Warrant described in this Section 2.3 shall be made
each time any event listed in paragraphs (i) through (v) of this Section 2.3
occurs.
Simultaneously with all adjustments to the number and/or kind
of securities, property and cash under this Section 2.3 to be issued in
connection with the exercise of this Warrant, the Warrant Share Price will also
be appropriately and proportionately adjusted in the manner determined in good
faith by the Board of Directors of the Company.
In the event that at any time, as a result of an adjustment
made pursuant to this Section 2.3, the Holder of this Warrant thereafter shall
become entitled to receive any shares of the Company, other than Common Stock,
thereafter the number of such other shares so receivable upon exercise of this
Warrant shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to the
Common Stock contained in Sections 2.1 and 2.2 above, as most applicable.
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2.4 Sale of Securities. In the event the Company, at any time after the
date of this Warrant, issues additional Common Stock, convertible preferred
stock, options, warrants, or other securities convertible into or exercisable
for Common Stock other than securities currently outstanding as of the date
hereof or issued upon the conversion or exercise of any securities outstanding
as of the date hereof, or pursuant to the Placement Agency Agreement, dated as
of June 7, 2000, by and between the Company and Commonwealth Associates, L.P.
(the "Placement Agency Agreement") in connection with the Private Placement (as
defined in the Placement Agency Agreement), at a purchase price per share of
Common Stock less than (i) in the case of any such issuance effected or agreed
to by the Company prior to June 28, 2001, the Warrant Share Price in effect
immediately prior to such issuance or sale, then the Warrant Share Price shall
be automatically reduced to such lower purchase price and the number of Warrant
Shares shall be increased to a number determined by multiplying the number of
Warrant Shares so purchasable immediately prior to the date of such issuance or
sale by a fraction, the numerator of which shall be the Warrant Share Price in
effect immediately prior to the adjustment required by this Section 2.4 and the
denominator of which shall be the Warrant Share Price in effect immediately
after such adjustment or (ii) if clause (i) is not applicable, (a) the current
market price per share of Common Stock (determined in the manner contemplated by
Section 1(b) above) on the date the Company becomes obligated to make such
issuance, or (b) in the case of any such issuance effected or agreed to by the
Company after June 28, 2001, the Warrant Share Price then effective upon such
issuance or sale, the Warrant Share Price shall be reduced to the price
determined by multiplying the Warrant Share Price in effect immediately prior to
such issuance or sale by a fraction, the numerator of which shall be the sum of
(A) the number of shares of Common Stock outstanding (exclusive of any treasury
shares) immediately prior to such issuance or sale multiplied by the current
market price per share of Common Stock on the date of such issuance or sale
(determined in the manner contemplated by Section 1(b) above), plus (B) the
consideration received by the Company upon such issuance or sale, and the
denominator of which shall be the product of (X) the total number of shares of
Common Stock outstanding (exclusive of any treasury shares) immediately after
such issuance or sale, multiplied by (Y) the current market price per share of
Common Stock on the date of such issuance or sale (determined in the manner
contemplated by Section 1(b) above); and the number of Warrant Shares
purchasable upon the exercise of the Warrants shall be increased to a number
determined by multiplying the number of Shares so purchasable immediately prior
to the date of such issuance or sale by a fraction, the numerator of which shall
be the Warrant Share Price in effect immediately prior to the adjustment
required by this Section 2.4 and the denominator of which shall be the Warrant
Share Price in effect immediately after such adjustment;
provided, however, that no adjustment to the Warrant Share Price or the number
and kind of Warrant Shares shall be made pursuant to this Section 2.4 in the
event (i) the Company grants options to employees, officers, directors or
consultants of the Company pursuant to contracts or plans heretofore approved by
the Board of Directors of the Company, (ii) of the issuance of securities to a
"strategic partner" as determined by the Board of Directors
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of the Company, (iii) of the issuance of securities pursuant to a strategic
acquisition as determined by the Board of Directors of the Company, or (iv) of
the issuance of up to an aggregate of 250,000 shares (as appropriately adjusted
for stock splits, stock dividends, and similar adjustments after the Issuance
Date) of Common Stock (or convertible preferred stock, options, warrants or
other securities convertible into or exercisable for Common Stock) at a purchase
price less than the Warrant Share Price and not otherwise excepted pursuant to
clause (i), (ii) and (iii) above.
(a) For the purpose of making any adjustment in the Warrant Share Price
as provided in this Section 2.4, the consideration received by the Company for
any issue or sale of Common Stock will be computed:
(i) to the extent it consists of cash, as the amount of cash
received by the Company before deduction of any offering
expenses payable by the Company and any underwriting or
similar commissions, compensation, or concessions paid or
allowed by the Company in connection with such issue or sale;
(ii) to the extent it consists of property other than cash, at the
fair market value of that property as determined in good faith
by the Company's Board of Directors (irrespective of the
accounting treatment thereof); and
(iii) if Common Stock is issued or sold together with other stock or
securities (including convertible preferred stock, options,
warrants or securities convertible into or exchangeable for
common stock) or other assets of the Company for a
consideration which covers both, as the portion of the
consideration so received that may be reasonably determined in
good faith by the Company's Board of Directors to be allocable
to such Common Stock; provided, however, that with respect to
such other stock or securities, such consideration as
determined by the Company's Board of Directors shall not be
less than the total consideration received by the Company for
the issuance of such other stock or securities plus the
additional aggregate consideration, if any, to be received by
the Company upon conversion or exchange thereof.
(b) If the Company (i) issues, grants or sells any rights or options to
subscribe for, purchase, or otherwise acquire shares of Common Stock, or (ii)
issues or sells any security convertible into shares of Common Stock, then, in
each case, the price per share of Common Stock issuable on the exercise of the
rights or options or the conversion of the securities will be determined by
dividing (x) the total amount, if any,
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received or receivable by the Company as consideration for the granting or sale
of the rights or options or the issue or sale of the convertible securities,
plus the minimum aggregate amount of additional consideration payable to the
Company on exercise or conversion of the securities, by (y) the maximum number
of shares of Common Stock issuable on the exercise of conversion. Such granting
or issue or sale will be considered to be an issue or sale for cash of the
maximum number of shares of Common Stock issuable on exercise or conversion at
the price per share determined under this Section 2.4, and the Warrant Share
Price will be adjusted as above provided to reflect (on the basis of that
determination) the issue or sale. No further adjustment of the Warrant Share
Price will be made as a result of the actual issuance of shares of Common Stock
on the exercise of any such rights or options or the conversion of any such
convertible securities.
(c) Upon the redemption or repurchase of any such securities or the
expiration or termination of the right to convert into, exchange for, or
exercise with respect to, Common Stock, the Warrant Share Price will be
readjusted to such price as would have been obtained had the adjustment made
upon their issuance been made upon the basis of the issuance of only the number
of such securities as were actually converted into, exchanged for, or exercised
with respect to, Common Stock. If the purchase price or conversion or exchange
rate provided for in any such security changes at any time, then, upon such
change becoming effective, the Warrant Share Price then in effect will be
readjusted to such price as would have been obtained had the adjustment made
upon the issuance of such securities been made upon the basis of (i) the
issuance of only the number of shares of Common Stock theretofore actually
delivered upon the conversion, exchange or exercise of such securities, and the
total consideration received therefor, and (ii) the granting or issuance, at the
time of such change, of any such securities then still outstanding for the
consideration, if any, received by the Company therefor and to be received on
the basis of such changed price or rate.
2.5 Other Action Affecting Warrant Shares. If the Company takes any
action affecting its shares of Common Stock after the date hereof, that would be
covered by Sections 2.1, 2.2 or 2.3 but for the manner in which such action is
taken or structured, which would in any way diminish the value of this Warrant,
then the Warrant Share Price shall be adjusted in such manner as the Board of
Directors of the Company shall in good faith determine to be equitable under the
circumstances.
2.6 Notice of Adjustments. Upon the occurrence of each adjustment or
readjustment of the Warrant Share Price pursuant to this Section 2, the Company
at its expense will promptly compute such adjustment or readjustment in
accordance with the terms of this Warrant and prepare a certificate setting
forth such adjustment or readjustment, including a statement of the adjusted
Warrant Share Price or adjusted number of shares of Common Stock, if any,
issuable upon exercise of each Warrant, describing the transaction giving rise
to such adjustments and showing in detail the facts upon which such adjustment
or readjustment is based. The Company will forthwith mail,
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by first class mail, postage prepaid, a copy of each such certificate to the
Holder of this Warrant at the address of such Holder as shown on the books of
the Company, and to its Transfer Agent.
2.7 Other Notices. If at any time:
(a) the Company shall (i) offer for subscription pro rata to the
holders of shares of the Common Stock any additional equity in the Company or
other rights; (ii) pay a dividend in additional shares of the Common Stock or
distribute securities or other property to the holders of shares of the Common
Stock (including, without limitation, evidences of indebtedness and equity and
debt securities); or (iii) issue securities convertible into, or rights or
warrants to purchase, securities of the Company;
(b) there shall be any capital reorganization or reclassification or
consolidation or merger of the Company with, or sale, transfer or lease of all
or substantially all of its assets to, another entity; or
(c) there shall be a voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then, in any one or more of said cases, the Company shall give, by first class
mail, postage prepaid, to the Holder of this Warrant at the address of such
Holder as shown on the books of the Company, (a) at least 15 days' prior written
notice of the date on which the books of the Company shall close or a record
shall be taken for such subscription rights, dividend, distribution or issuance,
and (b) in the case of any such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation or winding up, at least 15 days' prior
written notice of the date when the same shall take place if no stockholder vote
is required and at least 15 days' prior written notice of the record date for
stockholders entitled to vote upon such matter if a stockholder vote is
required. Such notice in accordance with the foregoing clause (a) shall also
specify, in the case of any such subscription rights, the date on which the
holders of shares of Common Stock shall be entitled to exercise their rights
with respect thereto, and such notice in accordance with the foregoing clause
(b) shall also specify the date on which the holders of shares of Common Stock
shall be entitled to exchange their shares of Common Stock for securities or
other property deliverable upon such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up, as the case
may be. Failure to give the notice referred to herein shall not affect the
validity or legality of the action which should have been the subject of the
notice.
2.8 Adjustment Calculations. No adjustment in the Warrant Share Price
shall be required unless such adjustment would require an increase or decrease
of at least one cent ($0.01) in such price; provided, however, that any
adjustments which by reason of this Section 2.8 are not required to be made
shall be carried forward and taken into account in any subsequent adjustment
required to be made hereunder. All calculations
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under this Section 2 shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be.
3. Redemption.
(a) On not less than 30 days' prior written notice (the "Redemption
Notice") to the Holders of the Warrants being redeemed, the Warrants outstanding
on the Redemption Date (as defined below) may be redeemed, at the option of the
Company, at a redemption price of $0.01 per Warrant (the "Redemption Price"),
provided (i) the market price of the Common Stock shall exceed 300% of the then
current Warrant Share Price (the "Target Price") for the 20 consecutive trading
days ending on the fifth trading day prior to the date of the Redemption Notice
(the "Target Period"), subject to adjustment as set forth in Section 2 hereof,
(ii) a registration statement permitting the resale of all the Warrant Shares
filed under the 1933 Act has been declared effective and remains effective from
the date of the Redemption Notice through and including the date fixed for
redemption of the Warrants (the "Redemption Date"), and (iii) the Holders are
not subject to any lock-up agreements or similar restrictions with respect to
the sale or transfer of the Warrants or Warrant Shares.
(b) The Company shall have the option, and, upon written request of
Commonwealth Associates, L.P. ("Commonwealth Associates") and a committee of the
Holders of the Warrants designated by Commonwealth Associates whose members hold
in the aggregate not less then 20% of the Warrants (the "Warrantholders
Committee"), shall be obligated to redeem the Warrants at the Redemption Price,
on not less than 10 days' written notice in the event that at any time prior to
March 15, 2001, the market price of the Common Stock (as determined in
accordance with Section 1(b) hereof) shall equal or exceed the Target Price,
subject to adjustment as set forth in Section 2 hereof, for the Target Period
and the Company does not have an effective registration statement permitting the
resale of all the Warrant Shares or such Warrant Shares are not free of any
lock-ups, agreements or similar restrictions; provided, however, in such event,
the Warrant Share Price, solely for purposes of the cashless exercise purposes
shall be reduced to a price equal to 10% of the Target Price, and all such
cashless exercises shall be effected assuming that the current market price
equals the Target Price. Notwithstanding anything herein to the contrary,
nothing set forth in this Section 3 shall require the Company to effect the
redemption of this Warrant prior to January 1, 2001.
(c) If the conditions set forth in Section 3(a) or (b) are met, and the
Company desires to exercise its right to redeem the Warrants, it shall mail a
Redemption Notice to each of the Holders of the Warrants to be redeemed, first
class, postage prepaid, not later than the thirtieth day before the date fixed
for redemption, at their last address as shall appear on the records maintained
pursuant to Section 6(b). Any notice mailed in the manner provided herein shall
be conclusively presumed to have been duly given whether or not the Holder
receives such notice.
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(d) The Redemption Notice shall specify (i) the redemption price, (ii)
the Redemption Date, (iii) the place where the Warrant Certificates shall be
delivered and the redemption price paid, and (iv) that the right to exercise the
Warrant shall terminate at 5:00 P.M. (New York time) on the business day
immediately preceding the Redemption Date. No failure to match such notice nor
any defect therein or in the mailing thereof shall affect the validity of the
proceedings for such redemption except as to a Holder (a) to whom notice was not
mailed or (b) whose notice was defective. An affidavit of the Warrant Agent or
of the Secretary or an Assistant Secretary of the Company that notice of
redemption has been mailed shall, in the absence of fraud, be prima facie
evidence of the facts stated herein.
(e) Any right to exercise a Warrant shall terminate at 5:00 P.M. (New
York time) on the business day immediately preceding the Redemption Date. On and
after the Redemption Date, Holders of the Warrants shall have no further rights
except to receive, upon surrender of the Warrant, the Redemption Price.
(f) From and after the Redemption Date, the Company shall, at the place
specified in the Redemption Notice, upon presentation and surrender to the
Company by or on behalf of the Holder thereof of one or more Warrant
Certificates evidencing Warrants to be redeemed, deliver or cause to be
delivered to or upon the written order of such Holder a sum in cash equal to the
Redemption Price of each such Warrant. From and after the Redemption Date and
upon the deposit or setting aside by the Company of a sum sufficient to redeem
all the Warrants called for redemption, such Warrants shall expire and become
void and all rights hereunder and under the Warrant Certificates, except the
right to receive payment of the Redemption Price, shall cease.
4. No Voting Rights. Except as otherwise provided herein, this Warrant
shall not be deemed to confer upon the Holder any right to vote or to consent to
or receive notice as a stockholder of the Company, as such, in respect of any
matters whatsoever, or any other rights or liabilities as a stockholder, prior
to the exercise hereof.
5. Warrants Transferable. This Warrant and all rights hereunder are
transferable, in whole or in part, at the principal offices of the Company by
the Holder hereof, upon surrender of this Warrant properly endorsed provided,
however, that in each case the minimum number of Warrant Shares being
transferred by the Holder shall not be less than 1,000 Warrant Shares; provided,
further, that without the prior written consent of the Company, this Warrant and
all rights hereunder may be transferred only (i) to an affiliate of the initial
Holder hereof or successor in interest to any such person in a transaction
exempt from registration under the 1933 Act; or (ii) pursuant to the
registration of this Warrant or the Warrant Shares under the 1933 Act or
subsequent to one year from the date hereof pursuant to an available exemption
from such registration.
6. Warrants Exchangeable; Assignment; Loss, Theft, Destruction, Etc.
This Warrant is exchangeable, without expense, upon surrender hereof by the
Holder hereof at the principal offices of the Company, or at the office of its
Transfer Agent, if any, for new
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Warrants of like tenor representing in the aggregate the right to subscribe for
and purchase the Warrant Shares which may be subscribed for and purchased
hereunder, each such new Warrant to represent the right to subscribe for and
purchase such Warrant Shares as shall be designated by such Holder hereof at the
time of such surrender. Upon surrender of this Warrant to the Company at its
principal office, or at the office of its Transfer Agent, if any, with an
instrument of assignment duly executed and funds sufficient to pay any transfer
tax, the Company shall, without charge, execute and deliver a new Warrant in the
name of the assignee named in such instrument of assignment and this Warrant
shall promptly be cancelled. This Warrant may be divided or combined with other
warrants which carry the same rights upon presentation hereof at the principal
office of the Company, or at the office of its Transfer Agent, if any, together
with a written notice specifying the names and denominations in which new
Warrants are to be issued and signed by the Holder hereof. The term "Warrant" as
used herein includes any Warrants into which this Warrant may be divided or
exchanged. Upon receipt of evidence satisfactory to the Company of the loss,
theft, destruction or mutilation of this Warrant and, in the case of any such
loss, theft or destruction, upon delivery of indemnity satisfactory to the
Company, or, in the case of any such mutilation, upon surrender or cancellation
of this Warrant, the Company will issue to the Holder hereof a new Warrant of
like tenor, in lieu of this Warrant, representing the right to subscribe for and
purchase the Warrant Shares which may be subscribed for and purchased hereunder.
Any such new Warrant executed and delivered shall constitute an additional
contractual obligation of the Company, whether or not this Warrant so lost,
stolen, destroyed, or mutilated shall be at any time enforceable by anyone.
7. Legends; Investment Representations. Any certificate evidencing the
securities issued upon exercise of this Warrant shall bear a legend in
substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
AND SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED UNLESS SO
REGISTERED OR AN EXEMPTION FROM REGISTRATION UNDER SAID ACT IS
AVAILABLE.
Upon the registration, under the 1933 Act, of the securities issued upon
exercise of the Warrant such legend shall be removed from the certificate
evidencing such securities.
8. Modifications and Waivers. The Holder of this Warrant acknowledges
and agrees that the terms of this Warrant may be amended, modified or waived
only by the written agreement of the Company, Commonwealth Associates and the
Warrantholders Committee; provided, however, that no such amendment,
modification or waiver which would decrease the number of Warrant Shares
purchasable upon the exercise of any Warrant, or increase the Warrant Share
Price therefor (other than as a result of the waiver or modification of any
anti-dilution provisions) may be made without the approval of the
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holders of at least 50% of the outstanding Warrants. In connection with the
foregoing, the Company is entitled to rely upon and assume the accuracy and
completeness of the certificate supplied by the Warrantholders Committee and the
Company shall not be liable to the Holder of this Warrant for any action taken
or omitted to be taken in accordance with and reliance on such certificate.
9. Miscellaneous. The Company shall pay all expenses and other charges
payable in connection with the preparation, issuance and delivery of this
Warrant and all substitute Warrants. The Holder shall pay all taxes (other than
any issuance taxes, including, without limitation, documentary stamp taxes,
transfer taxes and other governmental charges, which shall be paid by the
Company) in connection with such issuance and delivery of this Warrant and the
Warrant Shares. In addition, the Holder shall pay all taxes in connection with
any sale, assignment or other transfer of this Warrant.
The Company shall maintain, at the office or agency of the Company
maintained by the Company, books for the registration and transfer of the
Warrant.
10. Reservation of Warrant Shares. The Company will at all times
reserve and keep available, free from preemptive rights, out of the aggregate of
its authorized but unissued Common Stock or its authorized and issued Common
Stock held in its treasury, solely for the purpose of enabling it to satisfy any
obligation to issue Warrant Shares upon exercise of this Warrant, the maximum
number of shares of Common Stock which may then be deliverable upon the exercise
of this Warrant (subject to, in the case of a deficiency in the number of such
authorized shares, the approval of the Company's shareholders with respect to
the increase in the number of authorized shares of Common Stock from 50,000,000
to 100,000,000).
The Company or, if appointed, the Transfer Agent for the Common Stock
(the "Transfer Agent") and every subsequent transfer agent for any shares of the
Company's capital stock issuable upon the exercise of any of the rights of
purchase aforesaid will be irrevocably authorized and directed at all times to
reserve such number of authorized shares as shall be required for such purpose.
The Company will keep a copy of this Warrant on file with the Transfer Agent and
with every subsequent transfer agent for any shares of the Company's capital
stock issuable upon the exercise of the rights of purchase represented by this
Warrant. The Company will furnish such Transfer Agent a copy of all notices of
adjustments and certificates related thereto transmitted to the Holder pursuant
to Section 2.6 hereof.
The Company covenants that all Warrant Shares which may be issued upon
exercise of this Warrant will, upon issue, be fully paid, nonassessable, free of
preemptive rights and free from all taxes, liens, charges and security interests
with respect to the issue thereof.
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11. Registration. The Company agrees to register the Warrant Shares for
resale under the 1933 Act on the terms and subject to the conditions set forth
in the Subscription Agreement between the Company and each of the investors
party thereto.
12. Descriptive Headings and Governing Law. The descriptive headings of
the several paragraphs of this Warrant are inserted for convenience only and do
not constitute a part of this Warrant. This Warrant shall be construed and
enforced in accordance with the laws of the State of New York, and the rights of
the parties shall be governed by, the law of such State.
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IN WITNESS WHEREOF, this Warrant Agreement has been executed as of the
28th day of June, 2000.
PROXYMED, INC.
By:
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Name:
Title:
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PURCHASE FORM
Dated:__________, ____
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing _____ Warrant Shares and hereby makes
payment of $_____________ in payment of the exercise price thereof.
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CASHLESS EXERCISE
Dated:__________, ____
The undersigned irrevocably elects to exercise the within Warrant for
___ Warrant Shares and hereby makes payment pursuant to the Cashless Exercise
provision of the within Warrant, and directs that the payment of the Warrant
Share Price be made by cancellation as of the date of exercise of a portion of
the within Warrant in accordance with the terms and provisions of Section 1(b)
of the within Warrant.
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