EXHIBIT 10.1
SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE
This Settlement Agreement and Mutual General Release ("Agreement") is
made and entered into this 2nd day of December, 2002 (the "Effective Date") by
and among SurgiCare, Inc. ("SurgiCare"), ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇") and TLC
Capital Corporation ("TLC"), in consideration of the money, promises, covenants
and mutual releases exchanged herein.
WHEREAS, SurgiCare, Yerden and TLC previously entered into a Stock
Purchase Agreement dated May 16, 2002 (the "SPA"), whereby SurgiCare agreed,
inter alia, to purchase from Yerden and TLC (Yerden and TLC are collectively
referred to herein as "Seller") all of the shares of stock of Aspen Healthcare,
Inc. ("Aspen");
WHEREAS, pursuant to the terms of the SPA, the closing of the sale of
such stock of Aspen was to occur on May 30, 2002;
WHEREAS, as SurgiCare did not meet certain obligations under the SPA,
including its obligation to deliver the purchase price as required by Section
2A(iii) of the SPA, the Closing did not occur on May 30, 2002;
WHEREAS, SurgiCare and Seller amended the SPA on June 14, 2002 (the
"First Amendment") whereby the parties agreed, inter alia: (1) upon a new
closing date of either August 6, 2002 or, at the latest, September 14, 2002, and
(2) that Seller reserved its rights relating to any claims that it had against
SurgiCare for its failure to consummate the transactions set forth in the SPA;
WHEREAS, SurgiCare again failed to meets its obligations to deliver the
purchase price by the new closing dates set forth in the First Amendment; and
WHEREAS, SurgiCare and Seller desire to settle and resolve their
differences, including, but not limited to, all matters pertaining to
SurgiCare's failure to consummate the transactions
mentioned above, as well as any claims that SurgiCare and Seller have or may
have against or with respect to each other, on the terms and conditions set
forth herein.
IT IS THEREFORE AGREED:
1. PAYMENTS BY SURGICARE
In exchange and in consideration for the releases, promises and
covenants of Seller contained herein, SurgiCare agrees as follows:
(a) Seller shall retain all amounts designated by the SPA
and First Amendment as "Non-Refundable", with Seller
having no obligation to return any amounts or items
previously paid or transferred to Seller by SurgiCare
except as provided herein;
(b) Upon the Effective Date, SurgiCare shall pay to
Yerden $24,000 by certified check or wire transfer
payable to ▇▇▇▇▇▇ ▇▇▇▇▇▇, and to TLC $76,000 by
certified check or wire transfer payable to TLC
Capital Corporation;
(c) Upon the Effective Date, SurgiCare will purchase for
$2.24 per share the 75,000 shares of common stock of
SurgiCare previously provided to Yerden. Payment will
be made to Yerden upon the Effective Date by
SurgiCare's delivery by certified checks or wire
transfer to Yerden in the amount of$168,000;
(d) If TLC, within 30 days of the Effective date,
delivers to SurgiCare 16,400 shares of SurgiCare
stock, SurgiCare will, within 5 days of delivery of
such stock, deliver to TLC the amount of $36,736 by
certified check or wire transfer payable to TLC
Capital Corporation;
(e) Upon the Effective Date, SurgiCare agrees to amend
the 32,829 warrants for shares of common stock of
SurgiCare previously provided to Yerden and the
103,957 warrants for shares of common stock of
SurgiCare previously provided to TLC (collectively,
the "Original Warrants") by executing the amendments
attached hereto as Exhibits A and B;
(f) Upon the Effective Date, SurgiCare will provide
Seller a total of 200,000 warrants for shares of
common stock of SurgiCare by executing the warrants
attached hereto as Exhibits C and D, with 48,000 of
said warrants to be delivered to Yerden and 152,000
of said warrants to he delivered to TLC
(collectively, the "Settlement Warrants"); and
(g) The parties acknowledge and agree that any shares of
SurgiCare Common Stock issued to either TLC or Yerden
upon the exercise of any of the
Page 2 of 7
Original Warrants or the Settlement Warrants shall be
subject to the restrictions of Rule 144 promulgated
under the Securities Act of 1933, as amended,
provided, SurgiCare shall have delivered an opinion
of counsel which states that the holding period for
Rule 144 purposes for the issuance of SurgiCare
Common Stock underlying the Original Warrants shall
be deemed to begin on May 16, 2002. SurgiCare hereby
covenants and agrees that if it files a registration
statement with the United States Securities and
Exchange Commission to register the issuance of any
shares or other securities, it shall register, on
behalf of Yerden and TLC, that number of shares of
SurgiCare Common Stock issuable upon exercise of the
Original Warrants and the Settlement Warrants in
accordance with the registration representations,
warranties and covenants set forth in the
Registration Rights Agreements attached as Exhibits E
and F hereto. SurgiCare further expressly
acknowledges and agrees all terms set forth in
Exhibit E and Exhibit F, including all duties,
obligations and covenants therein.
2. MUTUAL RELEASES
(a) SurgiCare, on behalf of itself, its related entities,
parent companies, officers, employees, directors,
shareholders, creditors, agents, representatives,
attorneys, assigns, predecessors and successors
(hereinafter collectively referred to as the
"SurgiCare-Parties"), hereby: (i) release and forever
discharge each of Yerden and TLC, and their
respective related entities, parent companies,
officers, employees, directors, shareholders, agents,
representatives, attorneys, assigns predecessors,
successors, heirs, executors, and administrators
(hereinafter collectively referred to as the
"Seller-Parties"), from any and all demands,
obligations, agreements, promises, representations,
damages, suits, liabilities, causes of action,
remedies, or claims of any type the SurgiCare-Parties
now have, or ever have had, as of the date hereof or
at any time prior to the date hereof, including, but
not limited to, all claims arising (or which could
have arisen) out of the SPA, First Amendment, and all
negotiations and business dealings relating to those
agreements and this Agreement, as well as those
arising under any federal, state or local statute and
all claims or actions arising under the common law of
any state; and (ii) covenant and agree never to
institute directly or indirectly any action of any
type for any demands, obligations, agreements,
promises, representations, damages, suits,
liabilities, causes of action, remedies, or claims of
any type that the SurgiCare-Parties now have, or ever
have had, as of the date hereof or at any time prior
to the date hereof, including, but not limited to,
all claims arising (or which could have arisen) out
of the SPA, First Amendment, and all negotiations and
business dealings relating to those agreements and
this Agreement, as well as those arising under any
federal, state or local statute and all claims or
actions arising under the common law of any state,
against any of the Seller-Parties.
Page 3 of 7
(b) Subject to Section 7 herein, Seller hereby: (i)
releases and forever discharges the SurgiCare-Parties
from any and all demands, obligations, agreements,
promises, representations, damages, suits,
liabilities, causes of action, remedies, or claims of
any type Seller now has, or ever has had, as of the
date hereof or at any time prior to the date hereof,
including, but not limited to, all claims arising (or
which could have arisen) out of the SPA, First
Amendment, and all negotiations and business dealings
relating to those agreements and this Agreement, as
well as those arising under any federal, state or
local statute and all claims or actions arising under
the common law of any state; and (ii) covenants and
agrees never to institute directly or indirectly any
action of any type for any demands, obligations,
agreements, promises, representations, damages,
suits, liabilities, causes of action, remedies, or
claims of any type Seller now has, or ever has had,
as of the date hereof or at any time prior to the
date hereof, including, but not limited to, all
claims arising (or which could have arisen) out of
the SPA, First Amendment, and all negotiations and
business dealings relating to those agreements and
this Agreement, as well as those arising under any
federal, state or local statute and all claims or
actions arising under the common law of any state,
against any of the SurgiCare-Parties.
3. INDEMNIFICATION BY SURGICARE
SurgiCare agrees to unconditionally indemnify and hold each of the
Seller-Parties harmless from and against any claim, loss, damage, demand,
deficiency, expense, liability, suit or judgment (including reasonable
attorney's fees and costs of defense or investigation related thereto) which
arises out of or relates to the SPA, the First Amendment, this Agreement or the
any of the Exhibits to this Agreement, as well as any negotiations and business
dealings relating to those agreements. Without limiting the generality of the
foregoing, SurgiCare explicitly agrees that its obligation to indemnify under
this provision will apply to any claims brought by its former or current
shareholders, officers, board members or executives, by any governmental agency,
or by its creditors or successors, and that SurgiCare will fully defend and
indemnify and hold each Seller-Party harmless from and against any and all
actions or claims (including without limitation any and all expenses, costs or
fees related to defending against such claims and actions, and any and all
penalties and damages relating to any such claims and actions) brought by any of
such parties.
Page 4 of 7
4. NO PRIOR ASSIGNMENT
SurgiCare and Seller each represent and warrant to the other that they
have not assigned any of the demands, obligations, agreements, promises,
representations, damages, suits, liabilities, causes of action, remedies, or
claims of any type described in Section 2 above and have not authorized any
other person or entity to assert any such demands, obligations, agreements,
promises, representations, damages, suits, liabilities, causes of action,
remedies, or claims of any type on their behalf.
5. TERMINATION
SurgiCare and Seller agree that the SPA and First Amendment are
terminated in their entirety and, with the exception of the obligations to one
another hereunder, neither party shall have any further obligations whatsoever
to the other, except as provided under Section 7 herein.
6. AGREEMENT BINDING UPON SUCCESSORS
This Agreement shall be binding upon and inure to the benefit of
SurgiCare and Seller, as well as their respective representatives, predecessors,
successors, creditors and assigns.
7. BREACH BY SURGICARE
In the event that SurgiCare breaches any of its obligations under this
Agreement or any related agreements delivered in connection herewith (including
but not limited to those contained in Section 1 above and in any Exhibits
attached hereto), or if SurgiCare brings any action, suit, claim or
counterclaim of any type against any of the Seller-Parties, the Seller-Parties
shall not be bound by the releases contained herein and may pursue any claims
they have against SurgiCare, including those relating to the SPA and First
Amendment. In any such claims, the Seller-Parties may pursue any and all damages
they may have relating to SurgiCare's breaches of the SPA and First Amendment
and will not be limited to the compromise amounts contained herein.
Page 5 of 7
Specifically, SurgiCare agrees and acknowledges that Sellers' damages resulting
from SurgiCare's breaches of the SPA and First Amendment exceed $1,000,000. This
provision provides for the discontinuance of only Seller's obligations under
Section 2(b) herein upon the events specified in this Section 7, and shall not
be construed to effect the remaining provisions of this Agreement or require
Seller to return any amounts paid to Seller pursuant to this Agreement.
8. FORUM SELECTION AND ATTORNEY'S FEES TO SELLER
Any claim brought by any of the SurgiCare-Parties against any of the
Seller-Parties must be brought in state or federal court in Denver, Colorado,
which shall be the sole and exclusive forum for any and all such disputes.
Moreover, if any of the Seller-Parties are the prevailing party in any such
dispute, they shall be entitled to their attorney's fees and costs.
9. NONDISPARAGEMENT
SurgiCare agrees that they will not communicate in any manner (whether
written, orally, electronically or otherwise) any statements concerning Seller
or Aspen which are disparaging in nature, including but not limited to any
statements indicating that SurgiCare's failure to purchase the stock of Aspen
was due to any actions or condition of Aspen.
10. APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with
the laws of Delaware, without giving effect to any rules, principles or
provisions of choice of law or conflict of laws.
11. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which shall be an original and all of which shall be deemed a completed
instrument.
Page 6 of 7
12. REPRESENTATION BY COUNSEL
Both parties agree and acknowledge that they have consulted with their
respective legal counsel regarding this Agreement and the matters referenced
herein, and that they knowingly and willfully enter into this Agreement and
intend to be bound by same.
13. CAPTIONS
Captions contained in this Agreement are for convenience only, and
shall have no legal or binding effect.
14. ENTIRE AGREEMENT
This Agreement constitutes and contains the entire agreement and
understanding between SurgiCare and Seller concerning the subject matter of this
Agreement, and supersedes all prior negotiations, proposed agreements, and
understandings, if any, between each other.
IN WITNESS WHEREOF, the parties have executed this Settlement Agreement
and Mutual General Release as of the date first written above.
SURGICARE, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Title: CEO
------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
TLC CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. MAY
---------------------------------
Name: ▇▇▇▇▇▇ ▇. May
--------------------------------
Title: Secretary
------------------------------
Page 7 of 7
EXHIBIT A
FIRST AMENDMENT TO WARRANT AGREEMENT
This First Amendment (the "First Amendment") to the Warrant Agreement
(the "Warrant") by SurgiCare, Inc., a Delaware corporation (the "Company"), in
favor of TLC Capital Corporation (the "Holder") is entered into as of the 2nd
day of December, 2002, by and between the Company and the Holder.
WHEREAS, in connection with, and in consideration of the terms and
conditions of, that certain Stock Purchase Agreement entered into by and among
the Company, the Holder and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), dated May 16, 2002, the
Company and the Holder entered into the Warrant pursuant to which the Holder is
entitled to purchase 103,957 "Shares" (as defined in the Warrant); and
WHEREAS, in connection with, and in consideration of the terms and
conditions of, that certain Settlement Agreement entered into by and among the
Company, the Holder and Yerden, dated December 2, 2002 (the "Settlement
Agreement"), the Company and the Holder desire to amend certain terms of the
Warrant.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Exercise of Warrants.
a. Section 1(a) of the Warrant is hereby amended by deleting the
phrase "as promptly as practicable" and inserting the phrase
"within five (5) days" in its place.
b. Section 1(b) of the Warrant is deleted in its entirety and
replaced with the following:
(b) This Warrant may be exercised, as to any shares of Common
Stock pursuant to this Warrant Agreement, at a price of $0.32
per share (the "Exercise Price"). Holder shall have the right
to purchase 103,957 Shares of Common Stock underlying this
Warrant Agreement beginning December 2, 2002. The Warrant
shall expire upon the close of business December 2, 2007.
c. Section 1(c) of the Warrant is hereby amended by inserting the
word "Shares" immediately before the word "determined."
2. Shares Underlying Warrants. Section 4 of the Warrant is hereby amended
by adding the following phrase immediately before the period at the end
of the section, ", with transferability subject to compliance with
applicable securities laws."
3. Disposition of Warrants or Shares. Section 5 of the Warrant is hereby
deleted in its entirety and replaced with the following:
5. Disposition of Warrants of Shares. It shall be a condition to
the transfer of this Warrant that any transferee of this
Warrant deliver to the Company his/its written agreement to
accept and be bound by all of the terms and conditions of this
Warrant Agreement, as amended.
4. Effective Date. This First Amendment shall become effective as of the
day and year first above written (the "Effective Date").
5. Reaffirmation. Except for the amendments set forth herein, the Warrant
shall continue to be in full force and effect in accordance with the
terms and conditions therein, and the Warrant is hereby ratified and
affirmed. After the Effective Date, each reference to the Warrant in
any other instrument or document shall be deemed a reference to the
Warrant as amended hereby, unless the context otherwise requires.
6. No Waiver. Neither the execution, delivery or performance of this First
Amendment shall operate as a waiver of any right, power or remedy
exercisable by any party hereto in accordance with the Warrant.
7. Governing Law. This First Amendment shall be governed by and construed
in accordance with the laws of Delaware, without reference to its
conflict of law principles.
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment or have caused this First Amendment to be duly executed by its duly
authorized representative as of the day and year first written above.
SURGICARE, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Title: CEO
--------------------------
HOLDER:
TLC CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. MAY
---------------------------------
Title: Secretary
------------------------------
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EXHIBIT B
FIRST AMENDMENT TO WARRANT AGREEMENT
This First Amendment (the "First Amendment") to the Warrant Agreement
(the "Warrant") by SurgiCare, Inc., a Delaware corporation (the "Company"), in
favor of ▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Holder") is entered into as of the 2nd day of
December, 2002, by and between the Company and the Holder.
WHEREAS, in connection with, and in consideration of the terms and
conditions of, that certain Stock Purchase Agreement entered into by and among
the Company, the Holder and TLC Capital Corporation ("TLC"), dated May 16, 2002,
the Company and the Holder entered into the Warrant pursuant to which the Holder
is entitled to purchase 32,829 "Shares" (as defined in the Warrant); and
WHEREAS, in connection with, and in consideration of the terms and
conditions of, that certain Settlement Agreement entered into by and among the
Company, the Holder and TLC, dated December 2, 2002 (the "Settlement
Agreement"), the Company and the Holder desire to amend certain terms of the
Warrant.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Exercise of Warrants.
a. Section 1(a) of the Warrant is hereby amended by deleting the
phrase "as promptly as practicable" and inserting the phrase
"within five (5) days" in its place.
b. Section 1(b) of the Warrant is deleted in its entirety and
replaced with the following:
(b) This Warrant may be exercised, as to any shares of Common
Stock pursuant to this Warrant Agreement, at a price of $0.32
per share (the "Exercise Price"). Holder shall have the right
to purchase 32,829 Shares of Common Stock underlying this
Warrant Agreement beginning December 2, 2002. The Warrant
shall expire upon the close of business December 2, 2007.
c. Section 1(c) of the Warrant is hereby amended by inserting the
word "Shares" immediately before the word "determined."
2. Shares Underlying Warrants. Section 4 of the Warrant is hereby amended
by adding the following phrase immediately before the period at the end
of the section, ", with transferability subject to compliance with
applicable securities laws."
3. Disposition of Warrants or Shares. Section 5 of the Warrant is hereby
deleted in its entirety and replaced with the following:
5. Disposition of Warrants of Shares. It shall be a condition to
the transfer of this Warrant that any transferee of this
Warrant deliver to the Company his/its written agreement to
accept and be bound by all of the terms and conditions of this
Warrant Agreement, as amended.
4. Effective Date. This First Amendment shall become effective as of the
day and year first above written (the "Effective Date").
5. Reaffirmation. Except for the amendments set forth herein, the Warrant
shall continue to be in full force and effect in accordance with the
terms and conditions therein, and the Warrant is hereby ratified and
affirmed. After the Effective Date, each reference to the Warrant in
any other instrument or document shall be deemed a reference to the
Warrant as amended hereby, unless the context otherwise requires.
6. No Waiver. Neither the execution, delivery or performance of this First
Amendment shall operate as a waiver of any right, power or remedy
exercisable by any party hereto in accordance with the Warrant.
7. Governing Law. This First Amendment shall be governed by and construed
in accordance with the laws of Delaware, without reference to its
conflict of law principles.
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment or have caused this First Amendment to be duly executed by its duly
authorized representative as of the day and year first written above.
SURGICARE, TNC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Title: CEO
--------------------------
HOLDER:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Address: 603 5. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-2-
EXHIBIT C
WARRANT AGREEMENT
WARRANT TO PURCHASE 152,000 SHARES OF COMMON STOCK
SURGICARE, INC.
(a Delaware corporation)
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Not Exercisable Except
upon Conditions Herein Specified
SURGICARE, INC., a Delaware corporation ("Company"), hereby certifies
that TLC CAPITAL CORPORATION, its registered successors and permitted assigns
registered on the books of the Company maintained for such purposes, as the
registered holder hereof ("Holder"), for value received in connection with that
certain Settlement Agreement by and between the Company, Holder and ▇▇▇▇▇▇
▇▇▇▇▇▇, dated December 2, 2002 (the "Settlement Agreement"), is entitled to
purchase from the Company the number of fully paid and non-assessable shares of
Common Stock of the Company, $.005 par value ("Shares" or "Common Stock"),
stated above at the purchase price per Share set forth in Section 1(b) below
(the number of Shares and Exercise Price being subject to adjustment as
hereinafter provided) upon the terms and conditions herein provided.
1. Exercise of Warrants.
(a) Subject to subsection (b) of this Section 1, upon
presentation and surrender of this Warrant Agreement, with the attached Purchase
Form duly executed, at the principal office of the Company, or at such other
place as the Company may designate by written notice to the Holder hereof,
together with a certified or bank cashier's check payable to the order of the
Company in the amount of the Exercise Price times the number of Shares being
purchased (or in the case of exercise pursuant to Section 1 (c)(i) or (ii), as
set forth in such sections), the. Company shall deliver to the Holder hereof
within five (5) days, certificates representing the Shares being purchased. This
Warrant may be exercised in whole or in part; and, in case of exercise hereof in
part only, the Company, upon surrender hereof, will deliver to the Holder a new
Warrant Agreement or Warrant Agreements of like tenor entitling the Holder to
purchase the number of Shares as to which this Warrant has not been exercised at
the same Exercise Price as determined by this Warrant Agreement.
(b) This Warrant may be exercised, as to any shares of Common
Stock pursuant to this Warrant Agreement, at a price of $0.32 per share (the
"Exercise Price"). Holder shall have right to purchase 152,000 shares of Common
Stock underlying this Warrant Agreement beginning December 2, 2002. The Warrant
shall expire upon the close of business December 2, 2007.
(c) The Exercise Price shall be payable at the time of
exercise. The Exercise Price may be paid in cash (by cashiers' check) or by: (i)
surrender of shares of Common Stock of the Company already owned by the Holder,
or (ii) by converting this Warrant Agreement into Shares as provided in this
Section 1 (c)(ii), each election to be effected by surrender of this
Warrant Agreement to the Company, together with the Net Issuance Exercise Notice
in the form attached hereto indicating such election, in which case the Company
shall issue to the Holder the number of Shares determined as follows:
X = Y (A-B) Where: X = the number of Shares to be issued
-------
A Y = the number of Shares as to which
the Warrant Agreement is being
exercised
A = the Fair Market Value (as defined
below) of one Share
B = Exercise Price
For purposes of the above calculations, the Fair Market Value of a
Share shall be determined as of the time of exercise to be equal to the average
of the closing bid and asked prices of the Common Stock as quoted in the
Over-the Counter Market Summary or the last reported sale price of the Common
Stock quoted on the American Stock Exchange or the closing price on any exchange
on which the Common Stock is then listed.
2. Exchange of Warrant.
At any time prior to the exercise hereof, upon presentation
and surrender to the Company, this Warrant may be exchanged, alone or with other
Warrants of like tenor registered in the name of the Holder, for another Warrant
or other Warrants of like tenor in the name of such Holder exercisable for the
same aggregate number of Shares as the Warrant or Warrants surrendered.
3. Rights and Oblations of Warrant Holder.
(a) The Holder of this Warrant Agreement shall not, by virtue
hereof, be entitled to any rights of a stockholder in the Company, either at law
or in equity; provided, however, that in the event that any certificate
representing the Shares is issued to the Holder hereof upon exercise of this
Warrant, such Holder shall, for all purposes, be deemed to have become the
holder of record of such Shares on the date on which this Warrant Agreement,
together with a duly executed Purchase Form, was surrendered and payment of the
Exercise Price was made, irrespective of the date of delivery of such Share
certificate. The rights of the Holder of this Warrant are limited to those
expressed herein and the Holder of this Warrant, by its acceptance hereof,
consents to and agrees to be bound by and to comply with all the provisions of
this Warrant Agreement, including, without limitation, all the obligations
imposed upon the Holder hereof by Sections 2 and 5 hereof. In addition, the
Holder of this Warrant Agreement, by accepting the same, agrees that the Company
may deem and treat the person in whose name this Warrant Agreement is registered
on the books of the Company maintained for such purposes as the absolute, true
and lawful owner for all purposes whatsoever, notwithstanding any notation of
ownership or other writing thereon, and the Company shall not be affected by any
notice to the contrary.
(b) No Holder of this Warrant Agreement shall be entitled to
vote or receive dividends or to be deemed the holder of Shares for any purpose,
nor shall anything contained in
2
this Warrant Agreement be construed to confer upon any Holder of this Warrant
Agreement any of the rights of a stockholder of the Company or any right to
vote, give or withhold consent to any action by the Company, whether upon any
recapitalization, issue of stock, reclassification of stock, consolidation,
merger, conveyance or otherwise, receive notice of meetings or other action
affecting stockholders (except for notices provided for herein), receive
dividends, subscription rights, or otherwise, until this Warrant shall have been
exercised and the Shares purchasable upon the exercise thereof shall have become
deliverable as provided herein; provided, however, that any such exercise on any
date when the stock transfer books of the Company shall be closed shall
constitute the person in whose name the certificate for those Shares are to be
issued as the record holder thereof for all purposes at the opening of business
on the next succeeding day on which such stock transfer books are open, and the
Warrant surrendered shall not be deemed to have been exercised, in whole or in
part as the case may be, until the next succeeding day on which stock transfer
books are open for the purpose of determining entitlement to dividends on the
Company's common stock.
4. Shares Underlying Warrants.
The Company covenants and agrees that all Shares delivered
upon exercise of this Warrant shall, upon delivery of payment therefor, be duly
and validly authorized and issued, fully paid and non-assessable and free and
clear of all taxes, liens and charges of any kind whatsoever, with
transferability subject to compliance with applicable securities laws.
5. Disposition of Warrants or Shares.
It shall be a condition to the transfer of this Warrant that
any transferee of this Warrant deliver to the Company his/its written agreement
to accept and be bound by all of the terms and conditions of this Warrant
Agreement.
6. Adjustments.
The number of Shares purchasable upon the exercise of each
Warrant is subject to adjustment from time to time upon the occurrence of any of
the events enumerated below:
(a) If at any time after the date of this Warrant and so long
as this Warrant is outstanding, there is a stock split, stock dividend,
subdivision, or similar distribution with respect to the Common Stock, or a
combination of the Common Stock, then, in such event, the Exercise Price shall
be adjusted in accordance with (b) below.
(b) Immediately upon the effective date of any event requiring
adjustment pursuant to (a), the Company shall adjust the Exercise Price then in
effect (to the nearest whole cent) as follows:
(i) in the event such adjustment is caused by a
forward stock split, stock dividend, subdivision, or other
similar distribution of shares of Common Stock, the Exercise
Price in effect, immediately prior to the effective date of
such event shall be decreased to an amount which shall bear
the same relation to the Exercise Price in effect immediately
prior to such event as the total number of shares of Common
Stock outstanding immediately prior to such event bears to the
3
total number of shares of Common Stock outstanding immediately
after such event;
(ii) in the event such adjustment is caused by a
combination of shares of Common Stock, the Exercise Price in
effect immediately prior to the close of business on the
effective date of such event shall be increased to an amount
which shall bear the same relation to the Exercise Price in
effect immediately prior to such event as the total number of
shares of Common Stock outstanding immediately prior to such
event bears to the total number of shares of Common Stock
outstanding immediately after such event.
(c) Upon each adjustment of the Exercise Price pursuant to (b)
above, the Warrant outstanding prior to such adjustment in the Exercise Price
shall thereafter evidence the right to purchase, at the adjusted Exercise Price,
that number of shares of Common Stock (calculated to the nearest hundredth)
obtained by (i) multiplying the number of shares of Common Stock issuable upon
exercise of the Warrant prior to adjustment of the number of shares of Common
Stock by the Exercise Price in effect prior to adjustment of the Exercise Price
and (ii) dividing the product so obtained by the Exercise Price in effect after
such adjustment of the exercise price.
(d) In case the Company (i) consolidates with or merges into
any other entity and is not the continuing or surviving entity of such
consolidation or merger, or (ii) permits any other entity to consolidate with or
merge into the Company and the Company is the continuing or surviving Company
but, in connection with such consolidation or merger, the Common Stock is
changed into or exchanged for common stock or other securities of any other
entity or cash or any other assets, or (iii) transfers all or substantially all
of its properties and assets to any other entity, or (iv) effects a
reorganization or reclassification of the equity of the Company in such a way
that holders of Common Stock shall be entitled to receive stock, securities,
cash or assets with respect to or in exchange for Common Stock, then, and in
each such case, proper provision shall be made so that, upon the exercise of
this Warrant at any time after the consummation of such consolidation, merger,
transfer, reorganization or reclassification, the Holder shall be entitled to
receive (at the aggregate Exercise Price in effect for Common Stock issuable
upon such exercise of this Warrant immediately prior to such consummation), in
lieu of Common Stock issuable upon such exercise of this Warrant prior to such
consummation, the stock and other securities, cash and assets to which such
Holder would have been entitled upon such consummation if such Holder had so
exercised this Warrant immediately prior thereto.
7. Loss or Destruction.
Upon receipt of evidence satisfactory to the Company of the
loss, theft, destruction or mutilation of this Warrant Agreement and, in the
case of any such loss, theft or destruction, upon delivery of an indemnity
agreement or bond satisfactory in form, substance and amount to the Company or,
in the case of any such mutilation, upon surrender and cancellation of this
Warrant Agreement, the Company will execute and deliver, in lieu thereof, a new
Warrant Agreement of like tenor.
8. Survival.
4
The various rights and obligations of the Holder hereof as set
forth herein shall survive the exercise of the Warrants represented hereby and
the surrender of this Warrant Agreement
9. Notices.
Whenever any notice, payment of any purchase price, or other
communication is required to be given or delivered under the terms of this
Warrant, it shall be in writing and delivered by hand delivery or United States
registered or certified mail, return receipt requested, postage prepaid (or
similar delivery if outside of the United States), and will be deemed to have
been given or delivered on the date such notice, purchase price or other
communication is so delivered or posted, as the case may be; and, if to the
Company, it will be addressed to the address specified on the cover page hereof,
and if to the Holder, it will be addressed to the address appearing on the
signature page hereto.
SURGICARE, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Title: CEO
------------------------------
HOLDER
TLC CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. MAY
---------------------------------
Name: ▇▇▇▇▇▇ ▇. May
--------------------------------
Title: Secretary
------------------------------
5
PURCHASE FORM
(To be signed only upon exercise of Warrant)
To SurgiCare, Inc.:
The undersigned, the holder of the enclosed Warrant, hereby irrevocably
elects to exercise the purchase right represented by such Warrant for, and to
purchase thereunder, ________________ (*) shares of Common Stock of SurgiCare,
Inc. and herewith makes payment of $______________________ therefor, and
requests that the certificate or certificates for such shares be issued in the
name of and delivered to the undersigned.
Dated:
-----------------------------
------------------------------------------
(Signature must conform in all respects to
name of holder as specified on the face of
the enclosed Warrant)
------------------------------------------
------------------------------------------
(Address)
------------------------------------------
(SSN#)
----------
(*) Insert here the number of shares called for on the face of the Warrant
without making any adjustment for additional Common Stock or any other
stock or other securities or property or cash which, pursuant to the
adjustment provisions of the Warrant Agreement pursuant to which the
Warrant was granted, may be delivered upon exercise.
6
NOTICE OF NET ISSUANCE EXERCISE
To: :
---------------------------
The undersigned hereby irrevocably elects to convert the attached
Warrant Agreement into such number of shares of Common Stock of
SurgiCare, Inc., a Delaware corporation (the "Company"), as is
determined pursuant to Section 1 (c)(ii) of the attached Warrant
Agreement. The undersigned requests that certificates of such net
issuance shares be delivered to the address of the undersigned stated
below.
Dated:
Name of Holder of Warrant:
-----------------------------------------------------
(please print)
Address:
----------------------------------------------------------------------
Signature:
--------------------------------------------------------------------
7
EXHIBIT D
WARRANT AGREEMENT
WARRANT TO PURCHASE 48,000 SHARES OF COMMON STOCK
SURGICARE, INC.
(a Delaware corporation)
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Not Exercisable Except
upon Conditions Herein Specified
SURGICARE, INC., a Delaware corporation ("Company"), hereby certifies
that ▇▇▇▇▇▇ ▇▇▇▇▇▇, his registered successors and permitted assigns registered
on the books of the Company maintained for such purposes, as the registered
holder hereof ("Holder"), for value received in connection with that certain
Settlement Agreement by and between the Company, Holder and TLC Capital
Corporation dated December 2, 2002 (the "Settlement Agreement"), is entitled to
purchase from the Company the number of fully paid and non-assessable shares of
Common Stock of the Company, $.005 par value ("Shares" or "Common Stock"),
stated above at the purchase price per Share set forth in Section 1(b) below
(the number of Shares and Exercise Price being subject to adjustment as
hereinafter provided) upon the terms and conditions herein provided.
1. Exercise of Warrants.
(a) Subject to subsection (b) of this Section 1, upon
presentation and surrender of this Warrant Agreement, with the attached Purchase
Form duly executed, at the principal office of the Company, or at such other
place as the Company may designate by written notice to the Holder hereof,
together with a certified or bank cashier's check payable to the order of the
Company in the amount of the Exercise Price times the number of Shares being
purchased (or in the case of exercise pursuant to Section 1(c)(i) or (ii), as
set forth in such sections), the Company shall deliver to the Holder hereof,
within five (5) days, certificates representing the Shares being purchased. This
Warrant may be exercised in whole or in part; and, in case of exercise hereof in
part only, the Company, upon surrender hereof, will deliver to the Holder a new
Warrant Agreement or Warrant Agreements of like tenor entitling the Holder to
purchase the number of Shares as to which this Warrant has not been exercised at
the same Exercise Price as determined by this Warrant Agreement.
(b) This Warrant may be exercised, as to any shares of Common
Stock pursuant to this Warrant Agreement, at a price of $0.32 per share (the
"Exercise Price"). Holder shall have right to purchase 48,000 shares of Common
Stock underlying this Warrant Agreement beginning December 2, 2002. The Warrant
shall expire upon the close of business December 2, 2007.
(c) The Exercise Price shall be payable at the time of
exercise. The Exercise Price may be paid in cash (by cashiers' check) or by: (i)
surrender of shares of Common Stock of the Company already owned by the Holder,
or (ii) by converting this Warrant Agreement into Shares as provided in this
Section 1(c)(ii), each election to be effected by surrender of this
Warrant Agreement to the Company, together with the Net Issuance Exercise Notice
in the form attached hereto indicating such election, in which case the Company
shall issue to the Holder the number of Shares determined as follows:
X = Y (A-B) Where: X = the number of Shares to be issued
-------
A Y = the number of Shares as to which
the Warrant Agreement is being
exercised
A = the Fair Market Value (as defined
below) of one Share
B = Exercise Price
For purposes of the above calculations, the Fair Market Value of a
Share shall be determined as of the time of exercise to be equal to the average
of the closing bid and asked prices of the Common Stock as quoted in the
Over-the-Counter Market Summary or the last reported sale price of the Common
Stock quoted on the American Stock Exchange or the closing price on any exchange
on which the Common Stock is then listed.
2. Exchange of Warrant.
At any time prior to the exercise hereof, upon presentation
and surrender to the Company, this Warrant may be exchanged, alone or with other
Warrants of like tenor registered in the name of the Holder, for another Warrant
or other Warrants of like tenor in the name of such Holder exercisable for the
same aggregate number of Shares as the Warrant or Warrants surrendered.
3. Rights and Oblations of Warrant Holder.
(a) The Holder of this Warrant Agreement shall not, by virtue
hereof, be entitled to any rights of a stockholder in the Company, either at law
or in equity; provided, however, that in the event that any certificate
representing the Shares is issued to the Holder hereof upon exercise of this
Warrant, such Holder shall, for all purposes, be deemed to have become the
holder of record of such Shares on the date on which this Warrant Agreement,
together with a duly executed Purchase Form, was surrendered and payment of the
Exercise Price was made, irrespective of the date of delivery of such Share
certificate. The rights of the Holder of this Warrant are limited to those
expressed herein and the Holder of this Warrant, by his acceptance hereof,
consents to and agrees to be bound by and to comply with all the provisions of
this Warrant Agreement, including, without limitation, all the obligations
imposed upon the Holder hereof by Sections 2 and 5 hereof. In addition, the
Holder of this Warrant Agreement, by accepting the same, agrees that the Company
may deem and treat the person in whose name this Warrant Agreement is registered
on the books of the Company maintained for such purposes as the absolute, true
and lawful owner for all purposes whatsoever, notwithstanding any notation of
ownership or other writing thereon, and the Company shall not be affected by any
notice to the contrary.
(b) No Holder of this Warrant Agreement shall be entitled to
vote or receive dividends or to be deemed the holder of Shares for any purpose,
nor shall anything contained in
2
this Warrant Agreement be construed to confer upon any Holder of this Warrant
Agreement any of the rights of a stockholder of the Company or any right to
vote, give or withhold consent to any action by the Company, whether upon any
recapitalization, issue of stock, reclassification of stock, consolidation,
merger, conveyance or otherwise, receive notice of meetings or other action
affecting stockholders (except for notices provided for herein), receive
dividends, subscription rights, or otherwise, until this Warrant shall have been
exercised and the Shares purchasable upon the exercise thereof shall have become
deliverable as provided herein; provided, however, that any such exercise on any
date when the stock transfer books of the Company shall be closed shall
constitute the person in whose name the certificate for those Shares are to be
issued as the record holder thereof for all purposes at the opening of business
on the next succeeding day on which such stock transfer books are open, and the
Warrant surrendered shall not be deemed to have been exercised, in whole or in
part as the case may be, until the next succeeding day on which stock transfer
books are open for the purpose of determining entitlement to dividends on the
Company's common stock.
4. Shares Underlying Warrants.
The Company covenants and agrees that all Shares delivered
upon exercise of this Warrant shall, upon delivery of payment therefor, be duly
and validly authorized and issued, fully paid and non-assessable and free and
clear of all taxes, liens and charges of any kind whatsoever, with
transferability subject to compliance with applicable securities laws.
5. Disposition of Warrants or Shares.
It shall be a condition to the transfer of this Warrant that
any transferee of this Warrant deliver to the Company his/its written agreement
to accept and be bound by all of the terms and conditions of this Warrant
Agreement.
6. Adjustments.
The number of Shares purchasable upon the exercise of each
Warrant is subject to adjustment from time to time upon the occurrence of any of
the events enumerated below:
(a) If at any time after the date of this Warrant and so long
as this Warrant is outstanding, there is a stock split, stock dividend,
subdivision, or similar distribution with respect to the Common Stock, or a
combination of the Common Stock, then, in such event, the Exercise Price shall
be adjusted in accordance with (b) below.
(b) Immediately upon the effective date of any event requiring
adjustment pursuant to (a), the Company shall adjust the Exercise Price then in
effect (to the nearest whole cent) as follows:
(i) in the event such adjustment is caused by a
forward stock split, stock dividend, subdivision, or other
similar distribution of shares of Common Stock, the Exercise
Price in effect, immediately prior to the effective date of
such event shall be decreased to an amount which shall bear
the same relation to the Exercise Price in effect immediately
prior to such event as the total number of shares of Common
Stock outstanding immediately prior to such event bears to the
3
total number of shares of Common Stock outstanding immediately
after such event;
(ii) in the event such adjustment is caused by a
combination of shares of Common Stock, the Exercise Price in
effect immediately prior to the close of business on the
effective date of such event shall be increased to an amount
which shall bear the same relation to the Exercise Price in
effect immediately prior to such event as the total number of
shares of Common Stock outstanding immediately prior to such
event bears to the total number of shares of Common Stock
outstanding immediately after such event.
(c) Upon each adjustment of the Exercise Price pursuant to (b)
above, the Warrant outstanding prior to such adjustment in the Exercise Price
shall thereafter evidence the right to purchase, at the adjusted Exercise Price,
that number of shares of Common Stock (calculated to the nearest hundredth)
obtained by (i) multiplying the number of shares of Common Stock issuable upon
exercise of the Warrant prior to adjustment of the number of shares of Common
Stock by the Exercise Price in effect prior to adjustment of the Exercise Price
and (ii) dividing the product so obtained by the Exercise Price in effect after
such adjustment of the exercise price.
(d) In case the Company (i) consolidates with or merges into
any other entity and is not the continuing or surviving entity of such
consolidation or merger, or (ii) permits any other entity to consolidate with or
merge into the Company and the Company is the continuing or surviving Company
but, in connection with such consolidation or merger, the Common Stock is
changed into or exchanged for common stock or other securities of any other
entity or cash or any other assets, or (iii) transfers all or substantially all
of its properties and assets to any other entity, or (iv) effects a
reorganization or reclassification of the equity of the Company in such a way
that holders of Common Stock shall be entitled to receive stock, securities,
cash or assets with respect to or in exchange for Common Stock, then, and in
each such case, proper provision shall be made so that, upon the exercise of
this Warrant at any time after the consummation of such consolidation, merger,
transfer, reorganization or reclassification, the Holder shall be entitled to
receive (at the aggregate Exercise Price in effect for Common Stock issuable
upon such exercise of this Warrant immediately prior to such consummation), in
lieu of Common Stock issuable upon such exercise of this Warrant prior to such
consummation, the stock and other securities, cash and assets to which such
Holder would have been entitled upon such consummation if such Holder had so
exercised this Warrant immediately prior thereto.
7. Loss or Destruction.
Upon receipt of evidence satisfactory to the Company of the
loss, theft, destruction or mutilation of this Warrant Agreement and, in the
case of any such loss, theft or destruction, upon delivery of an indemnity
agreement or bond satisfactory in form, substance and amount to the Company or,
in the case of any such mutilation, upon surrender and cancellation of this
Warrant Agreement, the Company will execute and deliver, in lieu there of a new
Warrant Agreement of like tenor.
8. Survival.
4
The various rights arid obligations of the Holder hereof as
set forth herein shall survive the exercise of the Warrants represented hereby
and the surrender of this Warrant Agreement.
9. Notices.
Whenever any notice, payment of any purchase price, or other
communication is required to be given or delivered under the terms of this
Warrant, it shall be in writing and delivered by hand delivery or United States
registered or certified mail, return receipt requested, postage prepaid (or
similar delivery if outside of the United States), and will be deemed to have
been given or delivered on the date such notice, purchase price or other
communication is so delivered or posted, as the case may be; and, if to the
Company, it will be addressed to the address specified on the cover page hereof,
and if to the Holder, it will be addressed to the address appearing on the
signature page hereto,
SURGICARE, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Title: CEO
-----------------------------------
HOLDER:
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Address: 603 5. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
5
PURCHASE FORM
(To be signed only upon exercise of Warrant)
To SurgiCare, Inc.:
The undersigned, the holder of the enclosed Warrant, hereby irrevocably
elects to exercise the purchase right represented by such Warrant for, and to
purchase thereunder, _________(*) shares of Common Stock of SurgiCare, Inc. and
herewith makes payment of $______________________ therefor, and requests that
the certificate or certificates for such shares be issued in the name of and
delivered to the undersigned.
Dated:
----------------------------
-----------------------------------------
(Signature must conform in all respects
to name of holder as specified on the
face of the enclosed Warrant)
-----------------------------------------
-----------------------------------------
(Address)
-----------------------------------------
(SSN#)
----------
(*) Insert here the number of shares called for on the face of the Warrant
without making any adjustment for additional Common Stock or any other
stock or other securities or property or cash which, pursuant to the
adjustment provisions of the Warrant Agreement pursuant to which the
Warrant was granted, may be delivered upon exercise.
6
NOTICE OF NET ISSUANCE EXERCISE
To: :
-------------------------------
The undersigned hereby irrevocably elects to convert the attached
Warrant Agreement into such number of shares of Common Stock of
SurgiCare, Inc., a Delaware corporation (the "Company"), as is
determined pursuant to Section 1(c)(ii) of the attached Warrant
Agreement. The undersigned requests that certificates of such net
issuance shares be delivered to the address of the undersigned stated
below.
Dated:
-------------
Name of Holder of Warrant:
------------------------------------------------------
(please print)
Address:
------------------------------------------------------------------------
Signature:
----------------------------------------------------------------------
7
EXHIBIT E
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement"), dated as of
December 2, 2002, is by and between SURGICARE, INC., a Delaware corporation
("Company"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("Holder").
WITNESSETH:
WHEREAS, Holder was issued a warrant to purchase 48,000 shares of
common stock dated the date hereof and a First Amendment to a warrant to
purchase 32,829 shares of common stock (the 48,000 shares of common stock and
32,829 shares of common stock are collectively referred to as "Shares"); and
WHEREAS, the Company desires to grant to Holder certain registration
rights with respect to the Shares.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
ARTICLE ONE
Registration Rights Agreement
SECTION 1.1 Registration Rights Available. Subject to the terms of this
Agreement, the Company agrees to provide Holder with unlimited rights to
register on a "piggy-back" basis all of the Shares upon any registration
statement filed by the Company with the SEC. Such rights are referred to herein
as "Registration Rights." With respect to the Shares described hereby, such
Shares would include other securities issued or issuable at any time or from
time to time in respect of the Shares upon a stock split, stock dividend,
recapitalization or other similar event involving the Company (collectively, the
"Securities").
SECTION 1.2 Piggy-back Registration, With respect to Holder's
Registration Rights, the parties agree as follows:
(a) Pursuant to Section 1.1, the Company will (i) promptly give to
Holder written notice of any registration statement relating to the Company
securities; and (ii) include in such registration (and related qualification
under blue sky laws or other compliance), all the Securities specified in
Holder's written request or requests, mailed in accordance with Section 3.8
herein within 30 days after the date of such written notice from the Company.
SECTION 1.3 Registration Procedure. With respect to each Registration
Right, the following provisions shall apply:
(a) Holder shall be obligated to furnish to the Company such
information regarding the Securities and the proposed manner of distribution of
the Securities as the Company may request in writing and as shall be required in
connection with any registration, qualification or compliance referred to herein
and shall otherwise cooperate with the Company in connection with such
registration, qualification or compliance.
(b) With a view to making available the benefits of certain rules and
regulations of the SEC which may at any time permit the sale of Restricted
Securities (as defined in Rule 144 under the Securities Act) to the public
without registration, the Company agrees to use its best lawful efforts to:
(i) Make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at all
times during which the Company is subject to the reporting requirements
of the Securities Exchange Act of 1934, as amended ("Exchange Act");
(ii) File with the SEC in a timely manner all reports and
other documents required of the Company under the Securities Act and
the Exchange Act (at all times during which the Company is subject to
such reporting requirements); and
(iii) So long as Holder owns any Restricted Securities, to
furnish to Holder forthwith upon request a written statement by the
Company as to its compliance with the reporting requirements of said
Rule 144 and with regard to the Securities Act and the Exchange Act (at
all times during which the Company is subject to such reporting
requirements), a copy of the most recent annual or quarterly report of
the Company, and such other reports and documents of the Company and
other information in the possession of or reasonably obtainable by the
Company as Holder may reasonably request in availing Holder of any rule
or regulation of the Commission allowing Holder to sell any such
securities without registration.
(c) The Company agrees that it will furnish to Holder such number of
prospectuses, offering circulars or other documents incident to any
registration, qualification or compliance referred to herein as provided or, if
not otherwise provided, as Holder from time to time may reasonably request.
(d) All expenses (except for legal fees for Holder's attorney and any
sales commission paid by Holder) of any registrations permitted pursuant to this
Agreement and of all other offerings by the Company (including, but not limited
to, the expenses of any qualifications under the blue-sky or other state
securities laws and compliance with governmental requirements of preparing and
filing any post-effective amendments required for the lawful distribution of the
Securities to the public in connection with such registration, of supplying
prospectuses, offering circulars or other documents) will be paid by the
Company.
(e) In connection with the preparation and filing of a registration
statement under the Securities Act pursuant to this Agreement, the Company will
give Holder, and Holder's counsel and accountants, the opportunity to
participate in the preparation of such registration statement, each prospectus
included therein or filed with the Commission, and each amendment thereof or
supplement thereto.
ARTICLE TWO
Indemnification
SECTION 2.1 Indemnification by the Company. In the event of any
registration of the Securities of the Company under the Securities Act, the
Company agrees to indemnify and hold harmless Holder and each other person who
participates as an underwriter in the offering or sale of such securities
against any and all claims, demands, losses, costs, expenses, obligations,
liabilities, joint or several, damages, recoveries and deficiencies, including
interest, penalties and attorneys' fees (collectively, "Claims"), to which
Holder or underwriter may become subject under the Securities
2
Act or otherwise, insofar as such Claims (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based on any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which Holder's Securities were registered under
the Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
the Company will reimburse Holder and each such underwriter for any legal or any
other expenses reasonably incurred by them in connection with investigating or
defending any such Claim (or action or proceeding in respect thereof); provided
that the Company shall not be liable in any such case to the extent that any
such Claim (or action or proceeding in respect thereof) or expense arises out of
or is based on an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance on and in conformity with written information furnished to the Company
through an instrument duly executed by Holder specifically stating that it is
for use in the preparation thereof. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of Holder or any
such underwriter and shall survive the transfer of the Securities by Holder.
SECTION 2.2 Indemnification by Holder. The Company may require, as a
condition to including the Securities in any registration statement filed
pursuant to this Agreement, that the Company shall have received an undertaking
satisfactory to it from Holder, to indemnify and hold harmless (in the same
manner and to the same extent as set forth in Section 2.1) the Company, each
director of the Company, each officer of the Company and each other person, if
any, who controls the Company, within the meaning of the Securities Act, with
respect to any statement or alleged statement in or omission or alleged omission
from such registration statement, any preliminary prospectus contained therein,
or any amendment or supplement thereto, if such statement or alleged statement
or omission or alleged omission was made in reliance on and in conformity with
written information furnished to the Company through an instrument duly executed
by Holder specifically stating that it is for use in the preparation of such
registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement. Notwithstanding the foregoing, the maximum
liability hereunder which any holder shall be required to suffer shall be
limited to the net proceeds to such Holder from the Shares sold by such Holder
in the offering. Such indemnity shall remain in full force and effect,
regardless of any investigation made by or on behalf of the Company or any such
director, officer or controlling person and shall survive the transfer of the
Securities by Holder.
SECTION 2.3 Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a Claim referred to in this Article Two, such indemnified party will,
if a claim in respect thereof is to be made against an indemnifying party, give
written notice to the latter of the commencement of such action, provided that
the failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under this Article Two, except
to the extent that the indemnifying party is actually prejudiced by such failure
to give notice. In case any such action is brought against an indemnifying
party, unless in such indemnified party's reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist in respect
of such Claim, the indemnifying party shall be entitled to participate in and to
assume the defense thereof, jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the consent of the indemnified party, consent to entry of
any judgment or enter
3
into any settlement that does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect of such Claim.
ARTICLE THREE
Miscellaneous
SECTION 3.1 Consent to Amendments. Except as otherwise expressly
provided herein, the provisions of this Agreement may be amended or waived only
by the written agreement of the Company and Holder and shall be effective only
to the extent specifically set forth in such writing.
SECTION 3.2 Term of the Agreement. This Agreement shall terminate with
respect to Holder one year from the date hereof.
SECTION 3.3 Successors and Assigns. Except as otherwise expressly
provided herein, all covenants and agreements contained in this Agreement by or
on behalf of any of the parties hereto are transferable and will bind and inure
to the benefit of the respective successors and assigns of the parties hereto,
but only if so expressed in writing.
SECTION 3.4 Severability. Whenever possible, each provision of this
Agreement will be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
SECTION 3.5 Delays or Omissions. No failure to exercise or delay in the
exercise of any right, power or remedy accruing to Holder on any breach or
default of the Company under this Agreement shall impair any such right, power
or remedy nor shall it be construed to be a waiver of any such breach or
default.
SECTION 3.6 Remedies Cumulative. All remedies under this Agreement, or
by law or otherwise afforded to any party hereto shall be cumulative and not
alternative.
SECTION 3.7 Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement. Unless clearly denoted otherwise, any reference to Articles or
Sections contained herein shall be to the Articles or Sections of this
Agreement.
SECTION 3.8 Notices. Any notices required or permitted to be sent
hereunder shall be delivered personally or mailed, certified mail, return
receipt requested, to the following addresses, and shall be deemed to have been
received on the day of personal delivery or within three business days after
deposit in the mail, postage prepaid:
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If to the Company, to:
Surgicare, Inc.
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▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
If to Holder, to:
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SECTION 3.9 Governing Law. The validity, meaning and effect of this
Agreement shall be determined in accordance with the laws of the State of Texas
applicable to contracts made and to be performed in that state.
SECTION 3.10 Final Agreement. This Agreement, together with those
documents expressly referred to herein, constitutes the final agreement of the
parties concerning the matters referred to herein, and supersedes all prior
agreements and understandings.
SECTION 3.11 Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which when so executed and delivered
shall be deemed an original, and such counterparts together shall constitute one
instrument.
The parties hereto have executed this Agreement as of the date first
set forth above.
COMPANY:
SURGICARE, INC.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇, President
HOLDER:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Printed Name ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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EXHIBIT F
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement"), dated as of
December 2, 2002, is by and between SURGICARE, INC., a Delaware corporation
("Company"), and TLC Capital Corporation ("Holder").
WITNESSETH:
WHEREAS, Holder was issued a warrant to purchase 152,000 shares of
common stock dated the date hereof and a First Amendment to a warrant to
purchase 103,957 shares of common stock (the 152,000 shares of common stock and
103,957 shares of common stock are collectively referred to as "Shares"); and
WHEREAS, the Company desires to grant to Holder certain registration
rights with respect to the Shares.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
ARTICLE ONE
Registration Rights Agreement
SECTION 1.1 Registration Rights Available. Subject to the terms of this
Agreement, the Company agrees to provide Holder with unlimited rights to
register on a "piggy-back" basis all of the Shares upon any registration
statement filed by the Company with the SEC. Such rights are referred to herein
as "Registration Rights." With respect to the Shares described hereby, such
Shares would include other securities issued or issuable at any time or from
time to time in respect of the Shares upon a stock split, stock dividend,
recapitalization or other similar event involving the Company (collectively, the
"Securities").
SECTION 1.2 Piggy-back Registration. With respect to Holder's
Registration Rights, the parties agree as follows:
(a) Pursuant to Section 1.1, the Company will (i) promptly give to
Holder written notice of any registration statement relating to the Company
securities; and (ii) include in such registration (and related qualification
under blue sky laws or other compliance), all the Securities specified in
Holder's written request or requests, mailed in accordance with Section 3.8
herein within 30 days after the date of such written notice from the Company.
SECTION 1.3 Registration Procedure. With respect to each Registration
Right, the following provisions shall apply:
(a) Holder shall be obligated to furnish to the Company such
information regarding the Securities and the proposed manner of distribution of
the Securities as the Company may request in writing and as shall be required in
connection with any registration, qualification or compliance referred to herein
and shall otherwise cooperate with the Company in connection with such
registration, qualification or compliance.
(b) With a view to making available the benefits of certain rules and
regulations of the SEC which may at any time permit the sale of Restricted
Securities (as defined in Rule 144 under the Securities Act) to the public
without registration, the Company agrees to use its best lawful efforts to:
(i) Make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at all
times during which the Company is subject to the reporting requirements
of the Securities Exchange Act of 1934, as amended ("Exchange Act");
(ii) File with the SEC in a timely manner all reports and
other documents required of the Company under the Securities Act and
the Exchange Act (at all times during which the Company is subject to
such reporting requirements); and
(iii) So long as Holder owns any Restricted Securities, to
furnish to Holder forthwith upon request a written statement by the
Company as to its compliance with the reporting requirements of said
Rule 144 and with regard to the Securities Act and the Exchange Act (at
all times during which the Company is subject to such reporting
requirements), a copy of the most recent annual or quarterly report of
the Company, and such other reports and documents of the Company and
other information in the possession of or reasonably obtainable by the
Company as Holder may reasonably request in availing Holder of any rule
or regulation of the Commission allowing Holder to sell any such
securities without registration.
(c) The Company agrees that it will furnish to Holder such number of
prospectuses, offering circulars or other documents incident to any
registration, qualification or compliance referred to herein as provided or, if
not otherwise provided, as Holder from time to time may reasonably request.
(d) All expenses (except for legal fees for Holder's attorney and any
sales commission paid by Holder) of any registrations permitted pursuant to this
Agreement and of all other offerings by the Company (including, but not limited
to, the expenses of any qualifications under the blue-sky or other state
securities laws and compliance with governmental requirements of preparing and
filing any post-effective amendments required for the lawful distribution of the
Securities to the public in connection with such registration, of supplying
prospectuses, offering circulars or other documents) will be paid by the
Company.
(e) In connection with the preparation and filing of a registration
statement under the Securities Act pursuant to this Agreement, the Company will
give Holder, and Holder's counsel and accountants, the opportunity to
participate in the preparation of such registration statement, each prospectus
included therein or filed with the Commission, and each amendment thereof or
supplement thereto.
ARTICLE TWO
Indemnification
SECTION 2.1 Indemnification by the Company. In the event of any
registration of the Securities of the Company under the Securities Act, the
Company agrees to indemnify and hold harmless Holder and each other person who
participates as an underwriter in the offering or sale of such securities
against any and all claims, demands, losses, costs, expenses, obligations,
liabilities, joint or several, damages, recoveries and deficiencies, including
interest, penalties and attorneys' fees (collectively, "Claims"), to which
Holder or underwriter may become subject under the Securities
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Act or otherwise, insofar as such Claims (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based on any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which Holder's Securities were registered under
the Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
the Company will reimburse Holder and each such underwriter for any legal or any
other expenses reasonably incurred by them in connection with investigating or
defending any such Claim (or action or proceeding in respect thereof); provided
that the Company shall not be liable in any such case to the extent that any
such Claim (or action or proceeding in respect thereof) or expense arises out of
or is based on an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance on and in conformity with written information furnished to the Company
through an instrument duly executed by Holder specifically stating that it is
for use in the preparation thereof. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of Holder or any
such underwriter and shall survive the transfer of the Securities by Holder.
SECTION 2.2 Indemnification by Holder. The Company may require, as a
condition to including the Securities in any registration statement filed
pursuant to this Agreement, that the Company shall have received an undertaking
satisfactory to it from Holder, to indemnify and hold harmless (in the same
manner and to the same extent as set forth in Section 2.1) the Company, each
director of the Company, each officer of the Company and each other person, if
any, who controls the Company, within the meaning of the Securities Act, with
respect to any statement or alleged statement in or omission or alleged omission
from such registration statement, any preliminary prospects contained therein,
or any amendment or supplement thereto, if such statement or alleged statement
or omission or alleged omission was made in reliance on and in conformity with
written information furnished to the Company through an instrument duly executed
by Holder specifically stating that it is for use in the preparation of such
registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement. Notwithstanding the foregoing, the maximum
liability hereunder which any holder shall be required to suffer shall be
limited to the net proceeds to such Holder from the Shares sold by such Holder
in the offering. Such indemnity shall remain in full force and effect,
regardless of any investigation made by or on behalf of the Company or any such
director, officer or controlling person and shall survive the transfer of the
Securities by Holder.
SECTION 2.3 Notices of Claims. etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a Claim referred to in this Article Two, such indemnified party will,
if a claim in respect thereof is to be made against an indemnifying party, give
written notice to the latter of the commencement of such action, provided that
the failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under this Article Two, except
to the extent that the indemnifying party is actually prejudiced by such failure
to give notice. In case any such action is brought against an indemnifying
party, unless in such indemnified party's reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist in respect
of such Claim, the indemnifying party shall be entitled to participate in and to
assume the defense thereof, jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the consent of the indemnified party, consent to entry of
any judgment or enter
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into any settlement that does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect of such Claim.
ARTICLE THREE
Miscellaneous
SECTION 3.1 Consent to Amendments. Except as otherwise expressly
provided herein, the provisions of this Agreement may be amended or waived only
by the written agreement of the Company and Holder and shall be effective only
to the extent specifically set forth in such writing.
SECTION 3.2 Term of the Agreement. This Agreement shall terminate with
respect to Holder one year from the date hereof
SECTION 3.3 Successors and Assigns. Except as otherwise expressly
provided herein, all covenants and agreements contained in this Agreement by or
on behalf of any of the parties hereto are transferable and will bind and inure
to the benefit of the respective successors and assigns of the parties hereto,
but only if so expressed in writing.
SECTION 3.4 Severability. Whenever possible, each provision of this
Agreement will be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
SECTION 3.5 Delays or Omissions. No failure to exercise or delay in the
exercise of any right, power or remedy accruing to holder on any breach or
default of the Company under this Agreement shall impair any such right, power
or remedy nor shall it be construed to be a waiver of any such breach or
default.
SECTION 3.6 Remedies Cumulative. All remedies under this Agreement, or
by law or otherwise afforded to any party hereto shall be cumulative and not
alternative.
SECTION 3.7 Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement. Unless clearly denoted otherwise, any reference to Articles or
Sections contained herein shall be to the Articles or Sections of this
Agreement.
SECTION 3.8 Notices. Any notices required or permitted to be sent
hereunder shall be delivered personally or mailed, certified mail, return
receipt requested, to the following addresses, and shall be deemed to have been
received on the day of personal delivery or within three business days after
deposit in the mail, postage prepaid:
4
If to the Company, to:
Surgicare, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
If to Holder, to:
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SECTION 3.9 Governing Law. The validity, meaning and effect of this
Agreement shall be determined in accordance with the laws of the State of Texas
applicable to contracts made and to be performed in that state.
SECTION 3.10 Final Agreement. This Agreement, together with those
documents expressly referred to herein, constitutes the final agreement of the
parties concerning the matters referred to herein, and supersedes all prior
agreements and understandings.
SECTION 3.11 Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which when so executed and delivered
shall be deemed an original, and such counterparts together shall constitute one
instrument.
The parties hereto have executed this Agreement as of the date first
set forth above.
COMPANY:
SURGICARE, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇, President
HOLDER:
/s/ ▇▇▇▇▇▇ ▇. MAY
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Printed Name ▇▇▇▇▇▇ ▇. May
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