Exhibit 4.11
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WARRANT AGREEMENT
AMONG
CONCENTRA INC.
and
the parties named herein
Dated as of November 1, 2001
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TABLE OF CONTENTS
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Page
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SECTION 1. Warrant Certificates...............................................1
SECTION 2. Execution of Warrant Certificates..................................1
SECTION 3. Registration.......................................................2
SECTION 4. Registration of Transfers and Exchanges............................2
SECTION 5. Warrants; Exercise of Warrants.....................................3
SECTION 6. Payment of Taxes...................................................6
SECTION 7. Mutilated or Missing Warrant Certificates..........................6
SECTION 8. Reservation of Warrant Shares......................................6
SECTION 9. Obtaining Stock Exchange Listings..................................7
SECTION 10. Adjustment of Number of Warrant Shares Issuable....................7
SECTION 11. Fractional Interests..............................................15
SECTION 12. Notices to Warrant Holders........................................15
SECTION 13. Notices to Company and Warrant Holder.............................17
SECTION 14. Supplements and Amendments........................................17
SECTION 15. Successors........................................................17
SECTION 16. Termination.......................................................18
SECTION 17. Governing Law.....................................................18
SECTION 18. Benefits of This Agreement........................................18
SECTION 19. Counterparts......................................................18
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WARRANT AGREEMENT (the "Warrant Agreement" or this "Agreement")
dated as of November 1, 2001 (the "Issue Date") among Concentra Inc., a Delaware
corporation (the "Company"), and the other parties hereto (together with their
successors and assigns, the "Holders").
W I T N E S S E T H:
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WHEREAS, the Company proposes to issue Warrants, as hereinafter
described (the "Warrants"), to purchase an aggregate 771,277 shares of Common
Stock (the "Common Stock") of the Company (the Common Stock issuable on exercise
of the Warrants being referred to herein as the "Warrant Shares"), under and
pursuant to a Securities Purchase Agreement dated as of the date hereof among
the Company and the Holders (the "Securities Purchase Agreement").
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
SECTION 1. Warrant Certificates . The certificates evidencing the
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Warrants (the "Warrant Certificates") to be delivered pursuant to the Securities
Purchase Agreement and this Agreement shall be in registered form only and shall
be substantially in the form set forth in Exhibit A attached hereto.
SECTION 2. Execution of Warrant Certificates . Warrant Certificates
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shall be signed on behalf of the Company by its Chairman of the Board or its
Chief Executive Officer or its President or its Chief Operating Officer or its
Chief Financial Officer or a Vice President and by its Secretary or an Assistant
Secretary under its corporate seal. Each such signature upon the Warrant
Certificates may be in the form of a facsimile signature of the present or any
future Chairman of the Board, Chief Executive Officer, President, Chief
Operating Officer, Chief Financial Officer, Vice President, Secretary or
Assistant Secretary and may be imprinted or otherwise reproduced on the Warrant
Certificates and for that purpose the Company may adopt and use the facsimile
signature of any person who shall have been Chairman of the Board, Chief
Executive Officer, President, Chief Operating Officer, Chief Financial Officer,
Vice President, Secretary or Assistant Secretary, notwithstanding the fact that
at the time the Warrant Certificates shall be delivered or disposed of he shall
have ceased to hold such office. The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Warrant Certificates.
In case any officer of the Company who shall have signed any of the
Warrant Certificates shall cease to be such officer before the Warrant
Certificates so signed shall have been disposed of by the Company, such Warrant
Certificates nevertheless may be delivered or disposed of as though such person
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
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sign such Warrant Certificate, although at the date of the execution of this
Warrant Agreement any such person was not such an officer.
SECTION 3. Registration . The Company shall number and register the
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Warrant Certificates in a register as they are issued. The Company may deem and
treat the registered Holder(s) of the Warrant Certificates as the absolute
owner(s) thereof (notwithstanding any notation of ownership or other writing
thereon made by anyone), for all purposes, and shall not be affected by any
notice to the contrary. The Company shall act as the registrar for the Warrants.
(a) Registration of Transfers and Exchanges . The Company shall from
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time to time register the transfer of any outstanding Warrant Certificates in a
Warrant register to be maintained by the Company upon surrender thereof
accompanied by the Assignment Form on the reverse of the Warrant Certificate,
duly executed by the registered Holder or Holders thereof or by the duly
appointed legal representative thereof or by a duly authorized attorney together
with such legal opinions, certificates or other information required by such
Assignment Form. Upon any such registration of transfer, a new Warrant
Certificate shall be issued to the transferee(s) and the surrendered Warrant
Certificate shall be canceled and disposed of by the Company.
(b) The Holders agree that each Warrant Certificate and any
certificate representing the Warrant Shares will bear the following legend (the
"Private Placement Legend"):
"THIS SECURITY (OR ITS PREDECESSOR) (AND, IF SUCH SECURITY EVIDENCES
A WARRANT, THE WARRANT SHARES ISSUABLE PURSUANT THERETO) HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT
AS SET FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL
INTEREST HEREIN, THE HOLDER:
(1) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES,
(B) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (C) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY) OR (D) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION, AND
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(2) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND."
(c) The Holders agree that each Warrant Certificate issued during
the period such Warrants are subject to the restrictions in the Stockholders
Agreement of the Company dated as of August 17, 1999 (as amended, the
"Stockholders Agreement") shall bear the following legend (the "Stockholders
Agreement Legend"):
"THE SECURITY REPRESENTED BY THIS CERTIFICATE IS ALSO SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFERABILITY CONTAINED IN THE STOCKHOLDERS AGREEMENT
DATED AS OF AUGUST 17, 1999, AS AMENDED, A COPY OF WHICH IS ON FILE AT THE
COMPANY'S PRINCIPAL EXECUTIVE OFFICES."
(d) Subject to the foregoing provisions, Warrant Certificates may be
exchanged at the option of the Holder(s) thereof, when surrendered to the
Company at its office for another Warrant Certificate or other Warrant
Certificates of like tenor and representing in the aggregate a like number of
Warrants. Upon any sale or transfer of any Warrant Certificate or Warrant Shares
pursuant to an effective registration statement under the Securities Act or
satisfying the condition set forth in clause (1)(B) of the above Private
Placement Legend, the Company shall permit the Holder thereof to exchange such
Warrant Certificate or such Warrant Shares for another Warrant Certificate or
certificate evidencing Warrant Shares, as applicable, that does not bear the
Private Placement Legend set forth above. At any time after the time that the
Warrants are not subject to the restrictions on transfer set forth in the
Stockholders Agreement, the Company shall permit the Holder thereof to exchange
such Warrant Certificate for another Warrant Certificate that does not bear the
Stockholders Agreement Legend. Warrant Certificates surrendered for exchange
shall be canceled and disposed of by the Company.
(e) Each Holder of a Warrant Certificate, by accepting the same,
consents and agrees with the Company and with each subsequent holder of such
Warrant Certificate that, prior to due presentment of such Warrant Certificate
for registration of transfer, the Company may treat the person in whose name the
Warrant Certificate is registered as the owner thereof for all purposes and as
the person entitled to exercise the rights granted under the Warrants, and
neither the Company nor any agent thereof shall be affected by any notice to the
contrary.
SECTION 4. Warrants; Exercise of Warrants. Subject to the terms of
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this Agreement, each Holder shall have the right, which may be exercised at any
time prior to 5:00 p.m., New York City time on November 1, 2011, to receive from
the Company the number of fully paid and nonassessable Warrant Shares and any
other capital stock of the Company issuable upon exercise of the Warrant as
provided for in Section 10(a) ("Additional Warrant Shares") which the Holder may
at the time be entitled to receive on exercise of such Warrants and payment of
the Exercise Price then in effect for such Warrant Shares. Each Warrant not
exercised prior to 5:00 p.m., New York City time, on November 1, 2011 shall
become void and
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all rights thereunder and all rights in respect thereof under this Agreement
shall cease as of such time.
A Warrant may be exercised upon surrender to the Company at its
office designated for such purpose (the address of which is set forth in Section
13 hereof) of the Warrant Certificate or Certificates evidencing the Warrants to
be exercised with the form of election to purchase on the reverse thereof duly
filled in and signed, which signature shall be guaranteed by a bank or trust
company having an office or correspondent in the United States or a broker or
dealer which is a member of a registered securities exchange or the National
Association of Securities Dealers, Inc., and upon payment to the Company of the
exercise price (the "Exercise Price") which is set forth in the form of Warrant
Certificate attached hereto as Exhibit A as adjusted as herein provided, for the
number of Warrant Shares and Additional Warrant Shares, if any, in respect of
which such Warrants are then exercised. Payment of the aggregate Exercise Price
shall be made in cash or by certified or official bank check to the order of the
Company. In lieu of exercising a Warrant by paying in full the Exercise Price
plus transfer taxes (if applicable pursuant to Section 6), if any, the Holder
may, from time to time, convert a Warrant, in whole or in part, into a number of
shares of Common Stock determined by dividing (a) the aggregate current market
price of the number of shares of Common Stock represented by the Warrants
converted, minus the aggregate Exercise Price for such shares of Common Stock,
minus transfer taxes, if any, by (b) the current market price of one share of
Common Stock (a "Cash-Less Exercise"). The current market price shall be
determined pursuant to Section 10(f).
Subject to the provisions of Section 6 hereof, upon such surrender
of Warrant Certificates and payment of the Exercise Price (if such exercise is
not a Cash-Less Exercise) the Company shall issue and cause to be delivered with
all reasonable dispatch (and in any event within five business days after such
receipt) to or upon the written order of the Holder and, subject to Section 4,
in such name or names as the Holder may designate, a certificate or certificates
for the number of full Warrant Shares and Additional Warrant Shares, if any,
issuable upon the exercise of such Warrants together with cash as provided in
Section 11; provided, however, that if any consolidation, merger or lease or
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sale of assets is proposed to be effected by the Company as described in
subsection (k) of Section 10 hereof, or a tender offer or an exchange offer for
shares of Common Stock of the Company shall be made, upon such surrender of
Warrant Certificates and payment of the Exercise Price as aforesaid (if such
exercise is not a Cash-Less Exercise), the Company shall, as soon as possible,
but in any event not later than two business days thereafter, issue and cause to
be delivered the full number of Warrant Shares and Additional Warrant Shares, if
any, issuable upon the exercise of such Warrants in the manner described in this
sentence together with cash, if any, as provided in Section 11. Such certificate
or certificates shall be deemed to have been issued and any person so designated
to be named therein shall be deemed to have become a holder of record of such
Warrant Shares and Additional Warrant Shares, if any, as of the date of the
surrender of such Warrant Certificates and payment of the Exercise Price (if
such exercise is not a Cash-Less Exercise).
Prior to the exercise of the Warrants, except as may be specifically
provided for herein, (i) no Holder of a Warrant Certificate, as such, shall be
entitled to any of the rights of a
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holder of Common Stock of the Company, including, without limitation, the right
to vote at or to receive any notice of any meetings of stockholders; (ii) the
consent of any such Holder shall not be required with respect to any action or
proceeding of the Company; (iii) except as provided in Section 10(i), no such
Holder, by reason of the ownership or possession of a Warrant or the Warrant
Certificate representing the same, shall have any right to receive any cash
dividends, stock dividends, allotments or rights or other distributions paid,
allotted or distributed or distributable to the stockholders of the Company
prior to, or for which the relevant record date preceded, the date of the
exercise of such Warrant; and (iv) no such Holder shall have any right not
expressly conferred by the Warrant or Warrant Certificate held by such Holder.
The Warrants shall be exercisable, at the election of the Holders
thereof, either in full or from time to time in part and, in the event that a
Warrant Certificate is exercised in respect of fewer than all of the Warrant
Shares issuable on such exercise at any time prior to the date of expiration of
the Warrants, a new Warrant Certificate evidencing the remaining Warrant or
Warrants will be issued and delivered pursuant to the provisions of this Section
and of Section 2 hereof.
All Warrant Certificates surrendered upon exercise of Warrants shall
be canceled and disposed of by the Company. The Company shall keep copies of
this Agreement and any notices given or received hereunder available for
inspection by the Holders during normal business hours at its office.
Notwithstanding anything contained herein to the contrary, no
Warrant shall be exercisable by any Regulated Warrantholder and no Warrant
Shares shall be issued to any Regulated Warrantholder if, after giving effect to
such exercise, issuance or action, such Regulated Warrantholder would own more
than 4.99% of any class of voting securities of the Company (other than any
class of voting securities which is (or is made prior to any such exercise,
issuance or action) convertible into a class of non-voting securities which are
otherwise identical to the voting securities and convertible into such voting
securities on terms reasonably acceptable to such Regulated Warrantholder) or
more than 24.99% of the total equity of the Company or more than 24.99% of the
total value of all capital stock and subordinated debt of the Company (in each
case determined by assuming such Regulated Warrantholder (but no other holder)
has exercised, converted or exchanged all of its options, warrants and other
convertible or exchangeable securities). For purposes of this paragraph,
"Regulated Warrantholder" shall mean any Holder that (i) is subject to the
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provisions of Regulation Y of the Board of Governors of the Federal Reserve
System, 12 C.F.R. Part 225 (or any successor to such Regulation), (ii) holds
Warrants or shares of Common Stock and (iii) has provided written notice of the
Company of its status as a "Regulated Stockholder" hereunder.
SECTION 5. Payment of Taxes. The Company will pay all documentary
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stamp taxes attributable to the initial issuance of Warrant Shares and
Additional Warrant Shares, if any, upon the exercise of Warrants; provided,
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however, that the Company shall not be required to pay any tax or taxes which
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may be payable in respect of any transfer involved in the issue of any Warrant
Certificates or any certificates for Warrant Shares or Additional Warrant
Shares, if any, in a name other than that of the registered Holder of a Warrant
Certificate surrendered for
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registration of transfer or upon the exercise of a Warrant, and the Company
shall not be required to issue or deliver such Warrant Certificates unless or
until the person or persons requesting the issuance thereof shall have paid to
the Company the amount of such tax or shall have established to the reasonable
satisfaction of the Company that such tax has been paid.
SECTION 6. Mutilated or Missing Warrant Certificates. In case any
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of the Warrant Certificates shall be mutilated, lost, stolen or destroyed, the
Company may in its discretion issue, in exchange and substitution for and upon
cancellation of the mutilated Warrant Certificate, or in lieu of and
substitution for the Warrant Certificate lost, stolen or destroyed, a new
Warrant Certificate of like tenor and representing an equivalent number of
Warrants, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction of such Warrant Certificate and
indemnity, if requested, also reasonably satisfactory to it. Applicants for such
substitute Warrant Certificates shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Company may prescribe.
SECTION 7. Reservation of Warrant Shares. The Company will at all
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times reserve and keep available, free from preemptive rights, out of the
aggregate of its authorized but unissued Common Stock or other capital stock of
the class with respect to Additional Warrant Shares, if any, or its authorized
and issued Common Stock or other capital stock of the class with respect to
Additional Warrant Shares, if any, held in its treasury, for the purpose of
enabling it to satisfy any obligation to issue Warrant Shares and Additional
Warrant Shares, if any, upon exercise of Warrants, the maximum number of shares
of Common Stock and other capital stock with respect to Additional Warrant
Shares, if any, which may then be deliverable upon the exercise of all
outstanding Warrants.
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 Agreement 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 the Warrants. The Company will furnish such Transfer Agent a copy
of all notices of adjustments and certificates related thereto, transmitted to
each Holder pursuant to Section 12 hereof.
Before taking any action which would cause an adjustment pursuant to
Section 10 hereof to reduce the Exercise Price below the then par value (if any)
of the Warrant Shares, the Company will take any corporate action which may, in
the opinion of its counsel (which may be counsel employed by the Company), be
necessary in order that the Company may validly and legally issue fully paid and
nonassessable Warrant Shares at the Exercise Price as so adjusted.
The Company represents and warrants that the initial Warrant Shares
issuable upon conversion of Warrants have been duly authorized and covenants
that all Warrant Shares and Additional Warrant Shares, if any, which may be
issued upon exercise of Warrants will, upon issue, be fully paid, nonassessable,
free of preemptive rights (other than as set forth in the
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Stockholders Agreement) and, subject to Section 6, free from all taxes, liens,
charges and security interests with respect to the issue thereof.
SECTION 8. Obtaining Stock Exchange Listings. The Company will from
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time to time take all action which may be necessary so that the Warrant Shares
and the Additional Warrant Shares, if any, immediately upon their issuance upon
the exercise of Warrants, will be listed on the principal securities exchanges
and markets within the United States of America, if any, on which other shares
of Common Stock or the Additional Warrant Shares, if any, as the case may be,
are then listed.
SECTION 9. Adjustment of Number of Warrant Shares Issuable. The
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number of Warrant Shares issuable upon the exercise of each Warrant are subject
to adjustment from time to time upon the occurrence of the events enumerated in
this Section 10. For purposes of this Section 10, "Common Stock" means shares
now or hereafter authorized of any class of common stock of the Company and any
other stock of the Company, however designated, that has the right (subject to
any prior rights of any class or series of preferred stock) to participate in
any distribution of the assets or earnings of the Company without limit as to
per share amount.
(a) Adjustment for Change in Capital Stock.
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If the Company:
(1) pays a dividend or makes a distribution on its Common Stock in shares
of its Common Stock;
(2) subdivides its outstanding shares of Common Stock into a greater
number of shares;
(3) combines its outstanding shares of Common Stock into a smaller number
of shares;
(4) makes a distribution on its Common Stock in shares of its capital
stock other than Common Stock; or
(5) issues by reclassification of its Common Stock any shares of its
capital stock; then the number and kind of shares of its capital stock issuable
upon exercise of any Warrant in effect immediately prior to such action shall be
proportionately adjusted so that the Holder of any Warrant thereafter exercised
may receive the aggregate number and kind of shares of capital stock of the
Company which he or she would have owned immediately following such action if
such Warrant had been exercised immediately prior to such action.
The adjustment shall become effective immediately after the record
date in the case of a dividend or distribution and immediately after the
effective date in the case of a subdivision, combination or reclassification.
If, after an adjustment, a Holder of a Warrant upon exercise of it
may receive shares of two or more classes of capital stock of the Company, the
exercise privilege of each
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class of capital stock shall thereafter be subject to adjustment on terms
comparable to those applicable to Common Stock in this Section.
Such adjustment shall be made successively whenever any event listed
above shall occur.
(b) Adjustment for Rights Issue.
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If the Company distributes any rights, options or warrants to all
holders of its Common Stock entitling them for a period expiring within 45 days
after the record date mentioned below to purchase shares of Common Stock or
securities directly or indirectly convertible into or exchangeable for Common
Stock (or options or rights with respect to such securities) at a price per
share less than the current market price per share on that record date, the
number of Warrant Shares issuable upon exercise of one Warrant shall be adjusted
in accordance with the formula:
N' = N x (O + A)
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(O + (A x P))
-
M
where:
N' = the adjusted number of Warrant Shares issuable upon exercise of
one Warrant.
N = the current number of Warrant Shares issuable upon exercise of one
Warrant.
O = the number of shares of Common Stock outstanding on the record date.
A = the number of additional shares of Common Stock offered pursuant to
such rights issuance.
P = the offering price per share of the additional shares.
M = the current market price per share of Common Stock on the record
date.
The adjustment shall be made successively whenever any such rights,
options or warrants are issued and shall become effective immediately after the
record date for the determination of stockholders entitled to receive the
rights, options or warrants. If at the end of the period during which such
rights, options or warrants are exercisable, not all rights, options or warrants
shall have been exercised, the number of Warrant Shares issuable upon exercise
of the Warrants shall be immediately readjusted to what it would have been if
the shares represented by "A" in the above formula had been the number of shares
actually issued.
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(c) Adjustment for Other Distributions.
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If the Company distributes to all holders of its Common Stock any of
its assets (including but not limited to cash), debt securities, or any rights
or warrants to purchase debt securities, assets or other securities of the
Company, the number of Warrant Shares issuable upon exercise of one Warrant
shall be adjusted in accordance with the formula:
N' = N x M
---
M-F
where:
N' = the adjusted number of Warrant Shares issuable upon exercise of
one Warrant.
N = the current number of Warrant Shares issuable upon exercise of
one Warrant.
M = the current market price per share of Common Stock on the
record date mentioned below.
F = the fair market value on the record date of the assets,
securities, rights or warrants applicable to one share of
Common Stock. The Board of Directors shall determine the fair
market value in good faith.
The adjustment shall be made successively whenever any such
distribution is made and shall become effective immediately after the record
date for the determination of stockholders entitled to receive the distribution.
No adjustment shall be made pursuant to this subsection (c) if the
fair market value on the applicable record date of the assets, securities,
rights or warrants applicable to one share of Common Stock is equal to or
greater than the current market price per share of Common Stock on such record
date.
This subsection does not apply to rights, options or warrants
referred to in subsection (b) of this Section 10.
(d) Adjustment for Common Stock Issue.
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If the Company issues shares of Common Stock for a consideration per
share less than the current market price per share on the date the Company fixes
the offering price of such additional shares, the number of Warrant Shares
issuable upon exercise of one Warrant shall be adjusted in accordance with the
formula:
N' = N x A
---
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O + P
-
M
where:
N' = the adjusted number of Warrant Shares issuable upon exercise of one
Warrant.
N = the then current number of Warrant Shares issuable upon exercise of
one Warrant.
O = the number of shares outstanding immediately prior to the issuance
of such additional shares.
P = the aggregate consideration received for the issuance of such
additional shares.
M = the current market price per share on the date of sale of such
additional shares.
A = the number of shares outstanding immediately after the issuance of
such additional shares.
The adjustment shall be made successively whenever any such issuance
is made, and shall become effective immediately after such issuance.
This subsection (d) does not apply to:
(1) any of the transactions described in subsections (b) and (c) of this
Section 10,
(2) the exercise of Warrants, or the conversion or exchange of other
securities convertible or exchangeable for Common Stock,
(3) Common Stock issued upon the exercise of warrants and stock options
outstanding on the Issue Date, or
(4) Common Stock issued in a bona fide public offering pursuant to a firm
commitment underwriting.
(e) Adjustment for Convertible Securities Issue.
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If the Company issues any securities convertible into or
exchangeable for Common Stock (other than securities issued in transactions
described in subsections (b) and (c) of this Section 10) for a consideration per
share of Common Stock initially deliverable upon conversion or exchange of such
securities less than the current market price per share on the date of issuance
of such securities, the number of Warrant Shares issuable upon exercise of one
Warrant shall be adjusted in accordance with this formula:
N' = N x O + D
-----
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O + P
-
M
where:
N' = the adjusted number of Warrant Shares issuable upon exercise of
one Warrant.
N = the then current number of Warrant Shares issuable upon exercise of
one Warrant.
O = the number of shares outstanding immediately prior to the issuance
of such securities.
P = the aggregate consideration received for the issuance of such
securities.
M = the current market price per share on the date of sale of such
securities.
D = the maximum number of shares deliverable upon conversion or in
exchange for such securities at the initial conversion or exchange
rate.
The adjustment shall be made successively whenever any such issuance
is made, and shall become effective immediately after such issuance.
If all of the Common Stock deliverable upon conversion or exchange
of such securities have not been issued when such securities are no longer
outstanding, then the number of Warrant Shares issuable upon exercise of one
Warrant shall promptly be readjusted to the number of Warrant Shares issuable
upon exercise of one Warrant which would then be in effect had the adjustment
upon the issuance of such securities been made on the basis of the actual number
of shares of Common Stock issued upon conversion or exchange of such securities.
This subsection (e) does not apply to convertible securities issued
in a bona fide public offering pursuant to a firm commitment underwriting.
(f) Current Market Price.
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In Sections 5 and 11 and in subsections (b), (c), (d) and (e) of
this Section 10 the current market price per share of Common Stock on any date
is the average of the Quoted Prices of the Common Stock for 30 consecutive
trading days commencing 45 trading days before the date in question. The "Quoted
Price" of the Common Stock is the last reported sales price of the Common Stock
as reported by NASDAQ, National Market System, or if the Common Stock is listed
on a securities exchange, the last reported sales price of the Common Stock on
such exchange which shall be for consolidated trading if applicable to such
exchange, or if neither so reported or listed, the last reported bid price of
the Common Stock. In the absence of such quotations, the Board of Directors of
the Company shall determine the current market price (i) based on the most
recently completed arm's-length transaction between the Company and a person
other than an Affiliate of the Company and the closing of which occurs on such
date or
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shall have occurred within the three months preceding such date or (ii) if no
such transaction shall have occurred on such date or within such three-month
period, the value of the security determined in good faith by (A) the Board of
Directors of the Company, which determination shall be described in a Board
resolution or (B) by an independent nationally recognized investment banking
firm or appraisal firm.
(g) Consideration Received.
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For purposes of any computation respecting consideration received
pursuant to subsections (d) and (e) of this Section 10, the following shall
apply:
(1) in the case of the issuance of shares of Common Stock for cash, the
consideration shall be the amount of such cash, provided that in no case
shall any deduction be made for any commissions, discounts or other
expenses incurred by the Company for any underwriting of the issue or
otherwise in connection therewith;
(2) in the case of the issuance of shares of Common Stock for a
consideration in whole or in part other than cash, the consideration other
than cash shall be deemed to be the fair market value thereof as
determined in good faith by the Board of Directors (irrespective of the
accounting treatment thereof), whose determination shall be conclusive,
absent manifest error, and described in a Board resolution;
(3) in the case of the issuance of securities convertible into or
exchangeable for shares, the aggregate consideration received therefor
shall be deemed to be the consideration received by the Company for the
issuance of such securities plus the additional minimum consideration, if
any, to be received by the Company upon the conversion or exchange thereof
(the consideration in each case to be determined in the same manner as
provided in clauses (1) and (2) of this subsection).
(h) When De Minimis Adjustment May Be Deferred.
------------------------------------------
No adjustment in the number of Warrant Shares issuable upon exercise
of one Warrant need be made unless the adjustment would require an increase or
decrease of at least 1% in the number of Warrant Shares issuable upon exercise
of one Warrant. Any adjustments that are not made shall be carried forward and
taken into account in any subsequent adjustment.
All calculations under this Section shall be made to the nearest
1/100th of a share.
(i) When No Adjustment Required.
---------------------------
No adjustment need be made for a transaction referred to in Section
10(a), (b), (c), (d) or (e), if Holders are to participate (without being
required to exercise their Warrants) in the transaction on a basis and with
notice that the Board of Directors of the Company determines to be fair and
appropriate in light of the basis and notice on which Holders of Common Stock
participate in the transaction.
12
No adjustment need be made for rights to purchase Common Stock
pursuant to a Company plan for reinvestment of dividends or interest.
No adjustment need be made for a change in the par value or no par
value of the Common Stock.
To the extent the Warrants become convertible into cash, no
adjustment need be made thereafter as to the cash. Interest will not accrue on
the cash.
(j) Notice of Adjustment.
--------------------
Whenever the number of Warrant Shares issuable upon exercise of one
Warrant is adjusted, the Company shall provide the notices required by Section
12 hereof.
(k) Reorganization of Company.
--------------------------
If the Company consolidates or merges with or into, or transfers or
leases all or substantially all its assets to, any person, upon consummation of
such transaction the Warrants shall automatically become exercisable for the
kind and amount of securities, cash or other assets which the Holder of a
Warrant would have owned immediately after the consolidation, merger, transfer
or lease if the Holder had exercised the Warrant immediately before the
effective date of the transaction. Concurrently with the consummation of such
transaction, the corporation formed by or surviving any such consolidation or
merger if other than the Company, or the person to which such sale or conveyance
shall have been made, shall enter into a supplemental Warrant Agreement so
providing and further providing for adjustments which shall be as nearly
equivalent as may be practical to the adjustments provided for in this Section.
The successor company shall mail to Holders a notice describing the supplemental
Warrant Agreement as soon as reasonably practicable after the execution of any
such supplemental Warrant Agreement.
If the issuer of securities deliverable upon exercise of Warrants
under the supplemental Warrant Agreement is an affiliate of the formed,
surviving, transferee or lessee corporation, that issuer shall join in the
supplemental Warrant Agreement.
If this subsection (k) applies, subsections (a), (b), (c), (d) and
(e) of this Section 10 do not apply.
(l) Company Determination Final.
---------------------------
Any determination that the Company or the Board of Directors must
make pursuant to subsection (a), (b), (c), (d), (e), (f), (g), (h) or (i) of
this Section 10 which is made in good faith shall be conclusive absent manifest
error.
13
(m) When Issuance or Payment May Be Deferred.
----------------------------------------
In any case in which this Section 10 shall require that an
adjustment in the number of Warrant Shares issuable upon exercise of one Warrant
be made effective as of a record date for a specified event, the Company may
elect to defer until the occurrence of such event (i) issuing to the Holder of
any Warrant exercised after such record date the Warrant Shares and other
capital stock of the Company, if any, issuable upon such exercise over and above
the Warrant Shares and other capital stock of the Company, if any, issuable upon
such exercise on the basis of the current number of Warrant Shares issuable upon
exercise of one Warrant and (ii) paying to such Holder any amount in cash in
lieu of a fractional share pursuant to Section 11; provided, however, that the
--------- -------
Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument
evidencing such Holder's right to receive such additional Warrant Shares, other
capital stock and cash upon the occurrence of the event requiring such
adjustment.
(n) Adjustment in Exercise Price.
----------------------------
Upon each adjustment of the number of Warrant Shares pursuant to
this Section 10, the Exercise Price for each Warrant outstanding prior to the
making of the adjustment in the number of Warrant Shares shall thereafter be
adjusted to the Exercise Price (calculated to the nearest hundredth of one cent)
obtained from the following formula:
E'= E x N
--
N'
where:
E' = the adjusted Exercise Price.
E = the Exercise Price prior to adjustment.
N' = the adjusted number of Warrant Shares issuable upon exercise of a
Warrant.
N = the number or Warrant Shares previously issuable upon exercise of a
Warrant prior to adjustment.
(o) Form of Warrants.
-----------------
Irrespective of any adjustments in the number or kind of shares
purchasable upon the exercise of the Warrants, Warrants theretofore or
thereafter issued may continue to express the same price and number and kind of
shares as are stated in the Warrants initially issuable pursuant to this
Agreement.
SECTION 10. Fractional Interests. Any one Warrant may be exercised
--------------------
only in full and not in part. The Company shall not be required to issue
fractional Warrant Shares on the exercise of Warrants. If more than one Warrant
shall be presented for exercise at the same time by the same Holder, the number
of full Warrant Shares which shall be issuable upon the exercise
14
thereof shall be computed on the basis of the aggregate number of Warrant Shares
purchasable on exercise of the Warrants so requested to be exercised. If any
fraction of a Warrant Share would, except for the provisions of this Section 11,
be issuable on the exercise of any Warrants (or specified portion thereof), the
Company shall pay an amount in cash equal to the product of (i) such fraction of
a Warrant Share and (ii) the difference between the current market price of a
share of Common Stock and the Exercise Price.
SECTION 11. Notices to Warrant Holders. Upon any adjustment of the
--------------------------
Exercise Price or the number of Warrant Shares issuable upon exercise of one
Warrant pursuant to Section 10, the Company shall promptly thereafter (i) cause
to be filed with the Company a certificate which includes the report of a firm
of independent public accountants of recognized standing selected by the Board
of Directors of the Company (who may be the regular auditors of the Company)
setting forth the Exercise Price and the number of Warrant Shares issuable upon
exercise of one Warrant after such adjustment and setting forth in reasonable
detail the method of calculation and the facts upon which such calculations are
based, which certificate shall be conclusive evidence of the correctness of the
matters set forth therein absent manifest error, and (ii) cause to be given to
each of the registered Holders of the Warrant Certificates at his or her address
appearing on the Warrant register written notice of such adjustments 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 case:
(a) of any consolidation or merger to which the Company is a party and for
which approval of any shareholders of the Company is required, or of the
conveyance or transfer of the properties and assets of the Company
substantially as an entirety, or of any reclassification or change 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 a tender
offer or exchange offer for shares of Common Stock; or
(b) of the voluntary or involuntary dissolution, liquidation or winding up
of the Company; or
(c) the Company proposes to take any action which would require an
adjustment of the number of Warrant Shares issuable upon exercise of one
Warrant pursuant to Section 10;
then the Company shall cause to be given to each of the registered Holders of
the Warrant Certificates at his or her address appearing on the Warrant
register, at least 20 days (or 10 days in any case specified in clauses (a) or
(b) above) prior to the applicable record date hereafter specified, or promptly
in the case of events for which there is no record date, 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,
options, warrants or distribution are to be determined, or (ii) the initial
expiration date set forth in any tender offer or exchange offer for shares of
Common Stock, or (iii) the date on which any such consolidation, merger,
conveyance,
15
transfer, dissolution, liquidation or winding up is expected to become effective
or consummated, and the date as of which it is expected that holders of record
of shares of Common Stock shall be entitled to exchange such shares 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,
option, warrant, consolidation, merger, conveyance, transfer, dissolution,
liquidation or winding up, or the vote upon any action.
Nothing contained in this Agreement or in any of the Warrant
Certificates shall be construed as conferring upon the Holders thereof the right
to vote or to consent or to receive notice as shareholders in respect of the
meetings of shareholders or the election of Directors of the Company or any
other matter, or any rights whatsoever as shareholders of the Company.
SECTION 12. Notices to Company and Warrant Holder. Any notice or
-------------------------------------
demand authorized by this Agreement to be given or made by the registered Holder
of any Warrant Certificate to or on the Company shall be sufficiently given or
made when and if deposited in the mail, first class or registered, postage
prepaid, addressed to the office of the Company expressly designated by the
Company at its office for purposes of this Agreement (until the Holders are
otherwise notified in accordance with this Section by the Company), as follows:
Concentra Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice pursuant to this Agreement to be given by the Company to
the registered Holder(s) of any Warrant Certificate shall be sufficiently given
when and if deposited in the mail, first class or registered, postage prepaid,
addressed (until the Company is otherwise notified in accordance with this
Section by such Holder) to such Holder at the address appearing on the Warrant
register of the Company.
SECTION 13. Supplements and Amendments. The Company 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 or to correct or
supplement any provision contained herein which may be defective or inconsistent
with any other provision herein, or to make any other provisions in regard to
matters or questions arising hereunder which the Company may deem necessary or
desirable and which shall not in any way adversely affect the interests of the
Holders of Warrant Certificates or discriminate against any Holder of Warrant
Certificates. Any amendment or supplement to this Agreement that has an adverse
effect on the interests of Holders shall require the written consent of
registered Holders of two-thirds of the then outstanding Warrant Shares issued
or issuable upon exercise of the Warrants (excluding Warrant Shares held by the
Company or any of its Affiliates). The consent of each Holder of a Warrant
affected shall be required for any amendment pursuant to which the number of
Warrant Shares
16
purchasable upon exercise of Warrants would be decreased or the Exercise Price
increased (other than in accordance with Section 10 or 11 hereof).
SECTION 14. Successors. All the covenants and provisions of this
----------
Agreement by or for the benefit of the Company shall bind and inure to the
benefit of its respective successors and assigns hereunder.
SECTION 15. Termination. This Agreement (except for the
-----------
restrictions on transfer of Warrant Shares specified in Section 4) shall
terminate at 5:00 p.m., New York City time on November 1, 2011.
SECTION 16. Governing Law. 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 CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF SAID STATE.
SECTION 17. Benefits of This Agreement. Nothing in this Agreement
--------------------------
shall be construed to give to any person or corporation other than the Company
and the registered Holders of the Warrant Certificates or Warrant Shares 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 and the
registered Holders of the Warrant Certificates and the Warrant Shares.
SECTION 18. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Warrant
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
CONCENTRA INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇
Title: Executive Vice President,
General Counsel and Secretary
17
WELSH, CARSON, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
VIII, L.P.
By: WCAS VIII Associates, L.L.C.,
General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. Rather
-----------------------------------------
Managing Member
WCAS HEALTHCARE PARTNERS, L.P.
By: WCAS HC Partners, General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. Rather
-----------------------------------------
General Partner
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
D. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇ ▇. Rather
By: /s/ ▇▇▇▇▇▇▇▇ ▇. Rather
-----------------------------------------
▇▇▇▇▇▇▇▇ ▇. Rather, Individually and
as Attorney-in-Fact
WCAS MANAGEMENT CORP.
By:___________________________________
Name:
Title:
▇.▇. ▇▇▇▇▇▇ DIRECT CORPORATE FINANCE
INSTITUTIONAL INVESTORS LLC
By:___________________________________
Name:
Title:
▇.▇. ▇▇▇▇▇▇ DIRECT CORPORATE FINANCE
PRIVATE INVESTORS LLC
By:___________________________________
Name:
Title:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ FUND, L.P.
By:___________________________________
Name:
Title:
CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT
SYSTEM
By:_____________________________________
Name:
Title:
CMS PEP XIV CO-INVESTMENT SUBPARTNERSHIP
By:___________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Authorized Representative
EURAZEO
By:___________________________________
Name:
Title:
DB CAPITAL INVESTORS, L.P.
By: DB Capital Partners, L.P.,
its General Partner
By: DB Capital Partners, Inc.,
its General Partner
By:________________________________
Name:
Title:
18
GS PRIVATE EQUITY PARTNERS II, L.P.
By: GS PEP II Advisors, L.L.C., its General Partner
By: GSAM Gen-Par, L.L.C., its Managing Member
By:__________________________________________________________
Name:
Title:
GS PRIVATE EQUITY PARTNERS II OFFSHORE, L.P.
By: GS PEP II Offshore Advisors, Inc., its General
Partner
By:__________________________________________________________
Name:
Title:
GS PRIVATE EQUITY PARTNERS II - DIRECT INVESTMENT FUND, L.P.
By: GS PEP II Direct Investment Advisors, L.L.C., its
General Partner
By: GSAM Gen-Par, L.L.C., its Managing Member
By:__________________________________________________________
Name:
Title:
19
GS PRIVATE EQUITY PARTNERS III, L.P.
By: GS PEP III Advisors, L.L.C., its General Partner
By: GSAM Gen-Par, L.L.C., its Managing Partner
By:_____________________________________________________
Name:
Title:
GS PRIVATE EQUITY PARTNERS III OFFSHORE, L.P.
By: GS PEP III Offshore Advisors, Inc., its General
Partner
By:_____________________________________________________
Name:
Title:
NBK/GS PRIVATE EQUITY PARTNERS, L.P.
By: GS PEP Offshore Advisors (NBK), Inc. General
Partner
By:_____________________________________________________
Name:
Title:
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ PRIVATE EQUITY PARTNERS,
L.P.
By: HLSP Investment Management, LLC,
its General Partner
By: ___________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Managing Member
▇▇▇▇▇▇▇▇ ▇▇▇▇ PRIVATE EQUITY FUND, PLC
By: ___________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Director
By: ___________________________________________
▇▇▇▇▇▇ ▇▇▇▇, Director
21
NASSAU CAPITAL PARTNERS IV L.P.
By:_____________________________________
Name:
Title:
NAS PARTNERS LLC
By:_____________________________________
Name:
Title:
A.S.F. CO-INVESTMENT PARTNERS, L.P.
By: PAF 10/98, LLC
By: Old Kings I, LLC, as Managing Member
By:_________________________________________
Name:
Title:
NEW YORK LIFE CAPITAL PARTNERS, L.P.
By: NYLCAP Manager LLC, its Investment Manager
By:___________________________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & CO., LLC
on behalf of FFT PARTNERS II, L.P.
and as its General Partner
By:___________________________________________
Name:
Title:
22
EXHIBIT A
[Form of Warrant Certificate]
[Face]
"THIS SECURITY (OR ITS PREDECESSOR)(AND THE WARRANT SHARES ISSUABLE
PURSUANT THERETO) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT AS SET FORTH IN THE NEXT SENTENCE. BY
ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES,
(B) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (C) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY) OR (D) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION, AND
(2) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THE WARRANTS REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFERABILITY CONTAINED IN THE STOCKHOLDERS AGREEMENT
DATED AS OF AUGUST 17, 1999, AS AMENDED, A COPY OF WHICH IS ON FILE AT THE
COMPANY'S PRINCIPAL EXECUTIVE OFFICES.
EXERCISABLE ON OR BEFORE 5:00 P.M. NEW YORK CITY TIME ON NOVEMBER 1, 2011.
No. ____ Warrants
Warrant Certificate
Concentra Inc.
This Warrant Certificate certifies that _____________, or registered
assigns, is the registered holder of [_________] Warrants expiring November 1,
2011 (the "Warrants") to purchase Common Stock, $.01 par value (the "Common
Stock"), of Concentra Inc., a Delaware corporation (the "Company"). Each Warrant
entitles the holder upon exercise to receive from the Company on or before 5:00
p.m. New York City Time on November 1, 2011, one fully paid and nonassessable
share of Common Stock (a "Warrant Share") at the exercise price (the "Exercise
Price") of $.01 for each Warrant Share payable in lawful money of the United
States of America upon surrender of this Warrant Certificate and payment of the
Exercise Price at the office of the Company designated for such purpose, but
only subject to the conditions set forth herein and in the Warrant Agreement
referred to on the reverse hereof. In lieu of exercising this Warrant by paying
in full the Exercise Price plus transfer taxes (if applicable pursuant to
Section 6 of the Warrant Agreement), if any, the Warrant holder may, from time
to time, convert this Warrant, in whole or in part, into a number of Warrant
Shares determined by dividing (a) the aggregate current market price of the
number of shares of Common Stock represented by the Warrants converted, minus
the aggregate Exercise Price for such shares of Common Stock, minus transfer
taxes, if any, by (b) the current market price of one share of Common Stock. The
current market price shall be determined pursuant to Section 10(f) of the
Warrant Agreement.
The number of Warrant Shares and Additional Warrant Shares, if any,
issuable upon exercise of the Warrants is subject to adjustment upon the
occurrence of certain events set forth in the Warrant Agreement.
No Warrant may be exercised after 5:00 p.m., New York City Time on
November 1, 2011, and to the extent not exercised by such time such Warrants
shall become void.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, Concentra Inc. has caused this Warrant
Certificate to be signed by the appropriate officers, each by a facsimile of his
signature, and has caused a facsimile of its corporate seal to be affixed
hereunto or imprinted hereon.
Dated:
CONCENTRA INC.
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
[Form of Warrant Certificate]
[Reverse]
The Warrants evidenced by this Warrant Certificate are part of a
duly authorized issue of Warrants expiring November 1, 2011, entitling the
holder on exercise to receive shares of Common Stock, $.01 par value, of the
Company (the "Common Stock"), and are issued or to be issued pursuant to a
Warrant Agreement dated as of November 1, 2001 (the "Warrant Agreement"), duly
executed and delivered by the Company, which Warrant Agreement is hereby
incorporated by reference in and made a part of this instrument and is hereby
referred to for a description of the rights, limitation of rights, obligations,
duties and immunities thereunder of the Company and the holders (the words
"holders" or "holder" meaning the registered holders or registered holder) of
the Warrants. A copy of the Warrant Agreement may be obtained by the holder
hereof upon written request to the Company.
Subject to the terms of the Warrant Agreement, Warrants may be
exercised at any time and from time to time until 5:00 p.m., New York City time,
on November 1, 2011. The holder of Warrants evidenced by this Warrant
Certificate may exercise them by surrendering this Warrant Certificate, with the
form of election to purchase set forth hereon properly completed and executed,
together with payment of the Exercise Price in cash at the office of the Company
designated for such purpose. In lieu of exercising this Warrant by paying in
full the Exercise Price plus transfer taxes (if applicable pursuant to Section 6
of the Warrant Agreement), if any, the Warrant holder may, from time to time,
convert this Warrant, in whole or in part, into a number of shares of Common
Stock determined by dividing (a) the aggregate current market price of the
number of Warrant Shares represented by the Warrants converted, minus the
aggregate Exercise Price for such shares of Common Stock, minus transfer taxes,
if any, by (b) the current market price of one share of Common Stock. The
current market price shall be determined pursuant to Section 10(f) of the
Warrant Agreement. In the event that upon any exercise of Warrants evidenced
hereby the number of Warrants exercised shall be less than the total number of
Warrants evidenced hereby, there shall be issued to the holder hereof or his
assignee a new Warrant Certificate evidencing the number of Warrants not
exercised.
The Warrant Agreement provides that upon the occurrence of certain
events the number of Warrant Shares issuable upon exercise of one Warrant set
forth on the face hereof and the Exercise Price of a Warrant may, subject to
certain conditions, be adjusted. No fractions of a share of Common Stock will be
issued upon the exercise of any Warrant, but the Company will pay the cash value
thereof determined as provided in the Warrant Agreement.
The holders of the Warrants are entitled to certain registration
rights with respect to the Common Stock purchasable upon exercise thereof. Said
registration rights are set forth in a Registration Rights Agreement dated as of
August 17, 1999 among the Company and the Holders, as amended.
Warrant Certificates, when surrendered at the office of the Company
by the registered holder thereof in person or by legal representative or
attorney duly authorized in writing, may be exchanged, in the manner and subject
to the limitations provided in the Warrant
Agreement, but without payment of any service charge, for another Warrant
Certificate or Warrant Certificates of like tenor evidencing in the aggregate a
like number of Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Company a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company may deem and treat the registered holder(s) thereof as
the absolute owner(s) of this Warrant Certificate (notwithstanding any notation
of ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, of any distribution to the holder(s) hereof, and for all other
purposes, and the Company shall not be affected by any notice to the contrary.
Neither the Warrants nor this Warrant Certificate entities any holder hereof to
any rights of a stockholder of the Company.
ASSIGNMENT FORM
If you the Holder want to assign this Warrant, fill in the
form below and have your signature guaranteed:
I or we assign and transfer this Warrant to:
________________________________________________________________
________________________________________________________________
________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ,
agent to transfer this Warrant on the books of the Company. The agent may
substitute another to act for him.
Date: Signed:
(Signed exactly as your name appears on the
other side of this Warrant)
Signature Guarantee: ____________________________
The undersigned confirms that this Warrant is being transferred:
[Check One]
---------
(1) __ to the Company or a subsidiary thereof;
(2) __ pursuant to the exemption from registration provided by Rule 144
under the Securities Act;
(3) __ pursuant to another available exemption from the registration
requirements of the Securities Act; or
(4) __ pursuant to an effective registration statement under the Securities
Act.
Unless one of the boxes is checked, the Company will refuse to register any of
the Warrants evidenced by this certificate in the name of any person other than
the registered holder thereof; provided that if box (3) is checked, the Company
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may require, prior to registering any such transfer of the Notes, in its sole
discretion, such legal opinions, certifications and other information as the
Company may reasonably request to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
If none of the foregoing boxes is checked, the Company shall not be obligated to
register this Warrant in the name of any person other than the holder hereof
unless and until the conditions to any such transfer of registration set forth
herein shall have been satisfied.
Date: Signed:
(Signed exactly as your name appears on the
other side of this Warrant)
Signature Guarantee:
[Form of Election to Purchase]
(To Be Executed Upon Exercise Of Warrant)
The undersigned hereby irrevocably elects to exercise the
Warrant, represented by this Warrant Certificate, to ____ receive shares of
Common Stock and herewith (check item)
(i) tenders payment for such shares to the order of
Concentra Inc. in the amount of $____ in accordance with the
terms hereof; or
(ii) converts this Warrant, in whole or in part, into a
number of shares of Common Stock determined by dividing (a)
the aggregate current market price of the number of shares of
Common Stock represented by this Warrant, minus the aggregate
Exercise Price for such shares of Common Stock, minus transfer
taxes, if any, by (b) the current market price of one share of
Common Stock.
The undersigned requests that a certificate for such shares be
registered in the name of __________, whose address is ________ , and that such
shares be delivered to ___________, whose address is ___________.
If said number of shares is less than all of the shares of
Common Stock purchasable hereunder, the undersigned requests that a new Warrant
Certificate representing the remaining balance of such shares be registered in
the name of ______________,whose address is __________________, and that such
Warrant Certificate be delivered to, whose address is ________________________.
Signature:
Date:
Signature Guaranteed: