Exhibit 10.2
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ITS
EXERCISE ARE SUBJECT TO THE RESTRICTIONS ON
TRANSFER SET FORTH IN SECTION 4 OF THIS WARRANT
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Warrant No. [ ] Number of Shares: [ ]
(subject to adjustment)
Date of Issuance: [ ], 2005
Original Issue Date (as defined in
subsection 2(a)): [ ], 2005
CHINDEX INTERNATIONAL, INC.
COMMON STOCK PURCHASE WARRANT
(VOID AFTER [ ], 2010)
Chindex International, Inc., a Delaware corporation (the "Company"), for
value received, hereby certifies that [ ], or its registered assigns (the
"Registered Holder"), is entitled, subject to the terms and conditions set forth
below, to purchase from the Company, at any time or from time to time on or
after the date of issuance and on or before 5:00 p.m. (New York time) on [ ],
2010, [ ] shares of Common Stock, $0.01 par value per share, of the Company
("Common Stock"), at a purchase price of $9.10 per share. The shares purchasable
upon exercise of this Warrant, and the purchase price per share, each as
adjusted from time to time pursuant to the provisions of this Warrant, are
hereinafter referred to as the "Warrant Shares" and the "Purchase Price,"
respectively. This Warrant is one of a series of Warrants issued by the Company
in connection with a private placement of Common Stock and of like tenor, except
as to the number of shares of Common Stock subject thereto (collectively, the
"Company Warrants").
1. EXERCISE.
(a) EXERCISE FOR CASH. The Registered Holder may, at its option,
elect to exercise this Warrant, in whole or in part and at any time or from time
to time after the six-month anniversary of the date hereof, by surrendering this
Warrant, with the purchase form appended hereto as EXHIBIT I duly executed by or
on behalf of the Registered Holder, at the principal office of the Company, or
at such other office or agency as the Company may designate, accompanied by
payment in full, in lawful money of the United States, of the Purchase Price
payable in respect of the number of Warrant Shares purchased upon such exercise.
A facsimile signature of the Registered Holder on the purchase form shall be
sufficient for purposes of exercising this Warrant, provided that the Company
receives the Registered Holder's original signature with three (3) business days
thereafter.
(1) CASHLESS EXERCISE.
(a) At any time during a period when the Warrant Shares are
exercisable hereunder and are not registered pursuant to an effective
registration statement filed with the Securities and Exchange Commission, the
Registered Holder may, at its option, elect to exercise this Warrant, in whole
or in part, on a cashless basis, by surrendering this Warrant, with the purchase
form appended hereto as EXHIBIT I duly executed by or on behalf of the
Registered Holder, at the principal office of the Company, or at such other
office or agency as the Company may designate, by canceling a portion of this
Warrant in payment of the Purchase Price payable in respect of the number of
Warrant Shares purchased upon such exercise. In the event of an exercise
pursuant to this subsection 1(b), the number of Warrant Shares issued to the
Registered Holder shall be determined according to the following formula:
X = Y(A-B)
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A
Where: X = the number of Warrant Shares that shall be issued to
the Registered Holder;
Y = the number of Warrant Shares for which this Warrant
is being exercised (which shall include both the
number of Warrant Shares issued to the Registered
Holder and the number of Warrant Shares subject to
the portion of the Warrant being cancelled in payment
of the Purchase Price);
A = the Fair Market Value (as defined below) of one share
of Common Stock; and
B = the Purchase Price then in effect.
(b) The Fair Market Value per share of Common Stock shall be
determined as follows:
(i) If the Common Stock is listed on a national securities exchange,
the Nasdaq National Market or another nationally recognized trading system
as of the Exercise Date, the Fair Market Value per share of Common Stock
shall be deemed to be the average of the high and low reported sale prices
per share of Common Stock thereon on the trading day immediately preceding
the Exercise Date (PROVIDED that if no such price -------- is reported on
such day, the Fair Market Value per share of Common Stock shall be
determined pursuant to clause (2) below).
(ii) If the Common Stock is not listed on a national securities
exchange, the Nasdaq National Market or another nationally recognized
trading system as of the Exercise Date, the Fair Market Value per share of
Common Stock shall be deemed to be the amount most recently determined by
the Board of Directors of the Company (the "Board") to represent the fair
market value per share of the Common Stock (including without limitation a
determination for purposes of granting Common Stock options or issuing
Common Stock under any plan, agreement or arrangement with employees of
the Company); and, upon request of the Registered Holder, the Board (or a
representative thereof) shall, as promptly as reasonably practicable but
in any event not later than 10 days after such request, notify the
Registered Holder of the Fair Market Value per share of Common Stock and
furnish the Registered Holder with reasonable documentation of the Board's
determination of such Fair Market Value. Notwithstanding the foregoing, if
the Board has not made such a determination within the three-month period
prior to the Exercise Date, then (A) the Board shall make, and shall
provide or cause to be provided to the Registered Holder notice of, a
determination of the Fair Market Value per share of the Common Stock
within 15 days of a request by the Registered Holder that it do so, and
(B) the exercise of this Warrant pursuant to this subsection 1(b) shall be
delayed until such determination is made and notice thereof is provided to
the Registered Holder.
(b) EXERCISE DATE. Each exercise of this Warrant shall be deemed to
have been effected immediately prior to the close of business on the day on
which this Warrant shall have been surrendered to the Company as provided in
subsection 1(a) or 1(b) above (the "Exercise Date"). At such time, the person or
persons in whose name or names any certificates for Warrant Shares shall be
issuable upon such exercise as provided in subsection 1(d) below shall be deemed
to have become the holder or holders of record of the Warrant Shares represented
by such certificates.
(c) ISSUANCE OF CERTIFICATES. As soon as practicable after the
exercise of this Warrant in whole or in part, and in any event within 10 days
thereafter, the Company, at its expense, will cause to be issued in the name of,
and delivered to, the Registered Holder, or as the Registered Holder (upon
payment by the Registered Holder of any applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of full
Warrant Shares to which the Registered Holder shall be entitled upon such
exercise plus, in lieu of any fractional share to which the Registered Holder
would otherwise be entitled, cash in an amount determined pursuant to Section 3
hereof; and
(ii) in case such exercise is in part only, a new warrant or
warrants (dated the date hereof) of like tenor, calling in the aggregate on the
face or faces thereof for the number of Warrant Shares equal (without giving
effect to any adjustment therein) to the number of such shares called for on the
face of this Warrant minus the number of Warrant Shares for which this Warrant
was so exercised (which, in the case of an exercise pursuant to subsection 1(b),
shall include both the number of Warrant Shares issued to the Registered Holder
pursuant to such partial exercise and the number of Warrant Shares subject to
the portion of the Warrant being cancelled in payment of the Purchase Price).
2. ADJUSTMENTS.
(2) ADJUSTMENTS TO PURCHASE PRICE FOR DILUTING ISSUES.
(a) SPECIAL DEFINITIONS. For purposes of this Section 2, the
following definitions shall apply:
(i) "OPTION" shall mean rights, options or warrants to subscribe
for, purchase or otherwise acquire Common Stock or Convertible Securities.
(ii) "ORIGINAL ISSUE DATE" shall mean the date on which this Warrant
was first issued (or, if this Warrant was issued upon partial exercise of,
or in replacement of, another warrant of like tenor, then the date on
which such original warrant was first issued).
(iii) "CONVERTIBLE SECURITIES" shall mean any evidences of
indebtedness, shares or other securities directly or indirectly
convertible into or exchangeable for Common Stock, but excluding Options.
(iv) "ADDITIONAL SHARES OF COMMON STOCK" shall mean all shares of
Common Stock issued (or, pursuant to subsection 2(c)(i) below, deemed to
be issued) by the Company after the Original Issue Date, other than:
shares of Common Stock issued or issuable upon conversion or exchange of
any Convertible Securities or exercise of any Options outstanding on the
Original Issue Date; shares of Common Stock issued or issuable by reason
of a dividend, stock split, split-up or other distribution on shares of
Common Stock that is covered by subsection 2(g) or 2(h) below; or shares
of Common Stock (or Options with respect thereto) issued or issuable to
employees or directors of, or consultants to, the Company or any of its
subsidiaries pursuant to a plan, agreement or arrangement approved by the
Board of Directors of the Company (the "Board").
(b) NO ADJUSTMENT OF PURCHASE PRICE. No adjustment to the Purchase
Price shall be made as the result of the issuance of Additional Shares of Common
Stock if the consideration per share (determined pursuant to subsection 2(e))
for such Additional Share of Common Stock issued or deemed to be issued by the
Company is equal to or greater than the Purchase Price in effect immediately
prior to the issuance or deemed issuance of such Additional Shares of Common
Stock.
(c) ISSUE OF SECURITIES DEEMED ISSUE OF ADDITIONAL SHARES OF COMMON
Stock.
(i) If the Company at any time or from time to time after the
Original Issue Date shall issue any Options or Convertible Securities
(excluding Options or Convertible Securities which, upon exercise,
conversion or exchange thereof, would entitle the holder thereof to
receive shares of Common Stock which are specifically excepted from the
definition of Additional Shares of Common Stock by subsection 2(a)(iv)
above) or shall fix a record date for the determination of holders of any
class of securities entitled to receive any such Options or Convertible
Securities, then the maximum number of shares of Common Stock (as set
forth in the instrument relating thereto without regard to any provision
contained therein for a subsequent adjustment of such number) issuable
upon the exercise of such Options or, in the case of Convertible
Securities and Options therefor, the conversion or exchange of such
Convertible Securities, shall be deemed to be Additional Shares of Common
Stock issued as of the time of such issue or, in case such a record date
shall have been fixed, as of the close of business on such record date.
(ii) If the terms of any Option or Convertible Security, the
issuance of which resulted in an adjustment to the Purchase Price pursuant
to the terms of subsection 2(d) below, are revised (either automatically
pursuant the provisions contained therein or as a result of an amendment
to such terms) to provide for either (1) any increase in the number of
shares of Common Stock issuable upon the exercise, conversion or exchange
of any such Option or Convertible Security or (2) any decrease in the
consideration payable to the Company upon such exercise, conversion or
exchange, then, effective upon such increase or decrease becoming
effective, the Purchase Price computed upon the original issue of such
Option or Convertible Security (or upon the occurrence of a record date
with respect thereto) shall be readjusted to such Purchase Price as would
have obtained had such revised terms been in effect upon the original date
of issuance of such Option or Convertible Security. Notwithstanding the
foregoing, no adjustment pursuant to this clause (ii) shall have the
effect of increasing the Purchase Price to an amount which exceeds the
lower of (A) the Purchase Price on the original adjustment date, or (B)
the Purchase Price that would have resulted from any issuances of
Additional Shares of Common Stock between the original adjustment date and
such readjustment date.
(iii) If the terms of any Option or Convertible Security (excluding
Options or Convertible Securities which, upon exercise, conversion or
exchange thereof, would entitle the holder thereof to receive shares of
Common Stock which are specifically excepted from the definition of
Additional Shares of Common Stock by subsection 2(a)(iv) above), the
issuance of which did not result in an adjustment to the Purchase Price
pursuant to the terms of subsection 2(d) below (either because the
consideration per share (determined pursuant to subsection 2(e)hereof) of
the Additional Shares of Common Stock subject thereto was equal to or
greater than the Purchase Price then in effect, or because such Option or
Convertible Security was issued before the Original Issue Date), are
revised after the Original Issue Date (either automatically pursuant the
provisions contained therein or as a result of an amendment to such terms)
to provide for either (1) any increase in the number of shares of Common
Stock issuable upon the exercise, conversion or exchange of any such
Option or Convertible Security or (2) any decrease in the consideration
payable to the Company upon such exercise, conversion or exchange, then
such Option or Convertible Security, as so amended, and the Additional
Shares of Common Stock subject thereto (determined in the manner provided
in subsection 2(c)(ii) above) shall be deemed to have been issued
effective upon such increase or decrease becoming effective.
(iv) Upon the expiration or termination of any unexercised Option or
unconverted or unexchanged (as applicable) Convertible Security which
resulted (either upon its original issuance or upon a revision of its
terms) in an adjustment to the Purchase Price pursuant to the terms of
subsection 2(d) below, the Purchase Price shall not be readjusted.
(v) No adjustment in the Purchase Price shall be made upon the issue
of shares of Common Stock or Convertible Securities upon the exercise of
Options or the issue of shares of Common Stock upon the conversion or
exchange of Convertible Securities.
(d) ADJUSTMENT OF PURCHASE PRICE UPON ISSUANCE OF ADDITIONAL SHARES
OF COMMON STOCK. In the event the Company shall at any time after the Original
Issue Date issue Additional Shares of Common Stock (including Additional Shares
of Common Stock deemed to be issued pursuant to subsection 2(c)(i)), without
consideration or for a consideration per share less than the Purchase Price in
effect immediately prior to such issue, then the Purchase Price shall be
reduced, concurrently with such issue, to a price (calculated to the nearest
cent) determined by multiplying such Purchase Price by a fraction, (A) the
numerator of which shall be (1) the number of shares of Common Stock outstanding
immediately prior to such issue plus (2) the number of shares of Common Stock
which the aggregate consideration received or to be received by the Company for
the total number of Additional Shares of Common Stock so issued would purchase
at such Purchase Price; and (B) the denominator of which shall be the number of
shares of Common Stock outstanding immediately prior to such issue plus the
number of such Additional Shares of Common Stock so issued; PROVIDED that, (i)
for the purpose of this subsection 2(d), all shares of Common Stock issuable
upon conversion or exchange of Convertible Securities outstanding immediately
prior to such issue shall be deemed to be outstanding, and (ii) the number of
shares of Common Stock deemed issuable upon conversion or exchange of such
outstanding Convertible Securities shall be determined without giving effect to
any adjustments to the conversion or exchange price or conversion or exchange
rate of such Convertible Securities resulting from the issuance of Additional
Shares of Common Stock that is the subject of this calculation.
(e) DETERMINATION OF CONSIDERATION. For purposes of this subsection
2(e), the consideration received by the Company for the issue of any Additional
Shares of Common Stock shall be computed as follows:
(i) CASH AND PROPERTY: Such consideration shall: insofar as it
consists of cash, be computed at the aggregate of cash received by the
Company, excluding amounts paid or payable for accrued interest; insofar
as it consists of property other than cash, be computed at the fair market
value thereof at the time of such issue, as determined in good faith by
the Board; and in the event Additional Shares of Common Stock are issued
together with other shares or securities or other assets of the Company
for consideration which covers both, be the proportion of such
consideration so received, computed as provided herein, as determined in
good faith by the Board.
(ii) OPTIONS AND CONVERTIBLE SECURITIES. The consideration per share
received by the Company for Additional Shares of Common Stock deemed to
have been issued pursuant to subsection 2(c)(i), relating to Options and
Convertible Securities, shall be determined by dividing the total amount,
if any, received or receivable by the Company as consideration for the
issue of such Options or Convertible Securities, plus the minimum
aggregate amount of additional consideration (as set forth in the
instruments relating thereto, without regard to any provision contained
therein for a subsequent adjustment of such consideration) payable to the
Company upon the exercise of such Options or the conversion or exchange of
such Convertible Securities, or in the case of Options for Convertible
Securities, the exercise of such Options for Convertible Securities and
the conversion or exchange of such Convertible Securities, by the maximum
number of shares of Common Stock (as set forth in the instruments relating
thereto, without regard to any provision contained therein for a
subsequent adjustment of such number) issuable upon the exercise of such
Options or the conversion or exchange of such Convertible Securities.
(f) MULTIPLE CLOSING DATES. In the event the Company shall issue on
more than one date Additional Shares of Common Stock which are comprised of
shares of the same series or class of Common Stock, and such issuance dates
occur within a period of no more than 120 days, then, upon the final such
issuance, the Purchase Price shall be readjusted to give effect to all such
issuances as if they occurred on the date of the final such issuance (and
without giving effect to any adjustments as a result of such prior issuances
within such period).
(g) ADJUSTMENT FOR STOCK SPLITS AND COMBINATIONS. If the Company
shall at any time or from time to time after the Original Issue Date effect a
subdivision of the outstanding Common Stock, the Purchase Price then in effect
immediately before that subdivision shall be proportionately decreased. If the
Company shall at any time or from time to time after the Original Issue Date
combine the outstanding shares of Common Stock, the Purchase Price then in
effect immediately before the combination shall be proportionately increased.
Any adjustment under this paragraph shall become effective at the close of
business on the date the subdivision or combination becomes effective.
(h) ADJUSTMENT FOR CERTAIN DIVIDENDS AND DISTRIBUTIONS. In the event
the Company at any time, or from time to time after the Original Issue Date
shall make or issue, or fix a record date for the determination of holders of
Common Stock entitled to receive, a dividend or other distribution payable in
additional shares of Common Stock, then and in each such event the Purchase
Price then in effect immediately before such event shall be decreased as of the
time of such issuance or, in the event such a record date shall have been fixed,
as of the close of business on such record date, by multiplying the Purchase
Price then in effect by a fraction:
(1) the numerator of which shall be the total number of
shares of Common Stock issued and outstanding immediately prior to the time of
such issuance or the close of business on such record date, and
(2) the denominator of which shall be the total number
of shares of Common Stock issued and outstanding immediately prior to the time
of such issuance or the close of business on such record date plus the number of
shares of Common Stock issuable in payment of such dividend or distribution;
PROVIDED, HOWEVER, that if such record date shall have been fixed and such
dividend is not fully paid or if such distribution is not fully made on the date
fixed therefor, the Purchase Price shall be recomputed accordingly as of the
close of business on such record date and thereafter the Purchase Price shall be
adjusted pursuant to this paragraph as of the time of actual payment of such
dividends or distributions.
(i) ADJUSTMENT IN NUMBER OF WARRANT SHARES. When any adjustment is
required to be made in the Purchase Price pursuant to subsections 2(d), 2(g) or
2(h), the number of Warrant Shares purchasable upon the exercise of this Warrant
shall be changed to the number determined by dividing (i) an amount equal to the
number of shares issuable upon the exercise of this Warrant immediately prior to
such adjustment, multiplied by the Purchase Price in effect immediately prior to
such adjustment, by (ii) the Purchase Price in effect immediately after such
adjustment.
(j) ADJUSTMENTS FOR OTHER DIVIDENDS AND DISTRIBUTIONS. In the event
the Company at any time or from time to time after the Original Issue Date shall
make or issue, or fix a record date for the determination of holders of Common
Stock entitled to receive, a dividend or other distribution payable in
securities of the Company (other than shares of Common Stock) or in cash or
other property (other than regular cash dividends paid out of earnings or earned
surplus, determined in accordance with generally accepted accounting
principles), then and in each such event provision shall be made so that the
Registered Holder shall receive upon exercise hereof, in addition to the number
of shares of Common Stock issuable hereunder, the kind and amount of securities
of the Company, cash or other property which the Registered Holder would have
been entitled to receive had this Warrant been exercised on the date of such
event and had the Registered Holder thereafter, during the period from the date
of such event to and including the Exercise Date, retained any such securities
receivable during such period, giving application to all adjustments called for
during such period under this Section 2 with respect to the rights of the
Registered Holder.
(k) ADJUSTMENT FOR REORGANIZATION. If there shall occur any
reorganization, recapitalization, reclassification, consolidation or merger
involving the Company in which the Common Stock is converted into or exchanged
for securities, cash or other property (other than a transaction covered by
subsections 2(d), 2(g) or 2(h)) (collectively, a "Reorganization"), then,
following such Reorganization, the Registered Holder shall receive upon exercise
hereof the kind and amount of securities, cash or other property which the
Registered Holder would have been entitled to receive pursuant to such
Reorganization if such exercise had taken place immediately prior to such
Reorganization. Notwithstanding the foregoing sentence, if (x) there shall occur
any Reorganization in which the Common Stock is converted into or exchanged for
anything other than solely equity securities, and (y) the common stock of the
acquiring or surviving company is publicly traded, then, as part of such
Reorganization, (i) the Registered Holder shall have the right thereafter to
receive upon the exercise hereof such number of shares of common stock of the
acquiring or surviving company as is determined by multiplying (A) the number of
shares of Common Stock subject to this Warrant immediately prior to such
Reorganization by (B) a fraction, the numerator of which is the Fair Market
Value (as defined below) per share of Common Stock as of the effective date of
such Reorganization, and the denominator of which is the fair market value per
share of common stock of the acquiring or surviving company as of the effective
date of such transaction, as determined in good faith by the Board (using the
principles set forth in subsections 2(l) and (m) to the extent applicable), and
(ii) the exercise price per share of common stock of the acquiring or surviving
company shall be the Purchase Price divided by the fraction referred to in
clause (B) above. In any such case, appropriate adjustment (as determined in
good faith by the Board) shall be made in the application of the provisions set
forth herein with respect to the rights and interests thereafter of the
Registered Holder, to the end that the provisions set forth in this Section 2
(including provisions with respect to changes in and other adjustments of the
Purchase Price) shall thereafter be applicable, as nearly as reasonably may be,
in relation to any securities, cash or other property thereafter deliverable
upon the exercise of this Warrant.
The Fair Market Value per share of Common Stock shall be determined as
follows:
(l) If the Common Stock is listed on a national securities exchange,
The NASDAQ Stock Market, Inc. ("Nasdaq") or another nationally recognized
trading system as of the Exercise Date, the Fair Market Value per share of
Common Stock shall be deemed to be the reported closing price per share of
Common Stock thereon on the trading day immediately preceding the Exercise Date
(PROVIDED that if no such price is reported on such day, the Fair Market Value
per share of Common Stock shall be determined pursuant to clause (ii)).
(m) If the Common Stock is not listed on a national securities
exchange, Nasdaq or another nationally recognized trading system as of the
Exercise Date, the Fair Market Value per share of Common Stock shall be deemed
to be the amount most recently determined by the Board to represent the fair
market value per share of the Common Stock (including without limitation a
determination for purposes of granting Common Stock options or issuing Common
Stock under any plan, agreement or arrangement with employees of the Company);
and, upon request of the Registered Holder, the Board (or a representative
thereof) shall, as promptly as reasonably practicable but in any event not later
than 10 days after such request, notify the Registered Holder of the Fair Market
Value per share of Common Stock and furnish the Registered Holder with
reasonable documentation of the Board's determination of such Fair Market Value.
(n) CERTIFICATE AS TO ADJUSTMENTS. Upon the occurrence of each
adjustment or readjustment of the Purchase Price pursuant to this Section 2, the
Company at its expense shall, as promptly as reasonably practicable but in any
event not later than 10 days thereafter, compute such adjustment or readjustment
in accordance with the terms hereof and furnish to the Registered Holder a
certificate setting forth such adjustment or readjustment (including the kind
and amount of securities, cash or other property for which this Warrant shall be
exercisable and the Purchase Price) and showing in detail the facts upon which
such adjustment or readjustment is based. The Company shall, as promptly as
reasonably practicable after the written request at any time of the Registered
Holder (but in any event not later than 10 days thereafter), furnish or cause to
be furnished to the Registered Holder a certificate setting forth (i) the
Purchase Price then in effect and (ii) the number of shares of Common Stock and
the amount, if any, of other securities, cash or property which then would be
received upon the exercise of this Warrant.
(o) LIMITATION ON ADJUSTMENTS. Notwithstanding anything to the
contrary contained herein, in no event may any adjustment to the Purchase Price
pursuant to the terms of subsection 2(d) result in the adjustment of the
Purchase Price below $7.09, as adjusted for adjustments pursuant to subsection
2(g); provided that, for clarification of the foregoing, the Purchase Price may
be adjusted without limitation based on the provisions of subsection 2(g).
3. FRACTIONAL SHARES. The Company shall not be required upon the exercise
of this Warrant to issue any fractional shares, but shall pay the value thereof
to the Registered Holder in cash on the basis of the Fair Market Value per share
of Common Stock, as determined pursuant to subsection 2(f) above.
4. TRANSFERS, ETC.
(a) Notwithstanding anything to the contrary contained herein, this
Warrant and the Warrant Shares shall not be sold or transferred unless either
(i) they first shall have been registered under the Securities Act of 1933, as
amended (the "Act"), or (ii) such sale or transfer shall be exempt from the
registration requirements of the Act and the Company shall have been furnished
with an opinion of legal counsel, reasonably satisfactory to the Company, to the
effect that such sale or transfer is exempt from the registration requirements
of the Act. Notwithstanding the foregoing, no registration or opinion of counsel
shall be required for (i) a transfer by a Registered Holder which is an entity
to a wholly owned subsidiary of such entity, a transfer by a Registered Holder
which is a partnership to a partner of such partnership or a retired partner of
such partnership or to the estate of any such partner or retired partner, or a
transfer by a Registered Holder which is a limited liability company to a member
of such limited liability company or a retired member or to the estate of any
such member or retired member, PROVIDED that the transferee in each case agrees
in writing to be subject to the terms of this Section 4, or (ii) a transfer made
in accordance with Rule 144 under the Act.
(b) Each certificate representing Warrant Shares shall bear a legend
substantially in the following form:
"The securities represented hereby have not been registered under
the Securities Act of 1933, as amended, or any state securities laws
and neither the securities nor any interest therein may not be
offered, sold, transferred, pledged or otherwise disposed of except
pursuant to an effective registration under such act or an exemption
from registration, which, in the opinion of counsel reasonably
satisfactory to counsel for this corporation, is available."
The foregoing legend shall be removed from the certificates representing
any Warrant Shares, at the request of the holder thereof, at such time as they
become eligible for resale pursuant to Rule 144(k) under the Act or at such time
as the Warrant Shares are sold or transferred in accordance with the
requirements of a registration statement of the Company on Form S-3, or such
other form as may then be in effect.
(c) The Company will maintain a register containing the name and
address of the Registered Holder of this Warrant. The Registered Holder may
change its address as shown on the warrant register by written notice to the
Company requesting such change.
(d) This Warrant and all rights hereunder are transferable, in whole
or in part, upon surrender of this Warrant with a properly executed assignment
(in the form of EXHIBIT II hereto) at the principal office of the Company (or,
if another office or agency has been designated by the Company for such purpose,
then at such other office or agency).
5. NO IMPAIRMENT. The Company will not, by amendment of its charter or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms
and in the taking of all such action as may be necessary or appropriate in order
to protect the rights of the Registered Holder against impairment.
6. NOTICES OF RECORD DATE, ETC. In the event:
(a) the Company shall take a record of the holders of its Common
Stock (or other stock or securities at the time deliverable upon the exercise of
this Warrant) for the purpose of entitling or enabling them to receive any
dividend or other distribution, or to receive any right to subscribe for or
purchase any shares of stock of any class or any other securities, or to receive
any other right; or
(b) of any capital reorganization of the Company, any
reclassification of the Common Stock of the Company, any consolidation or merger
of the Company with or into another corporation, or any transfer of all or
substantially all of the assets of the Company; or
(c) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company, then, and in each such case, the Company will send or
cause to be sent to the Registered Holder a notice specifying, as the case may
be, (i) the record date for such dividend, distribution or right, and the amount
and character of such dividend, distribution or right, or (ii) the effective
date on which such reorganization, reclassification, consolidation, merger,
transfer, dissolution, liquidation or winding-up is to take place, and the time,
if any is to be fixed, as of which the holders of record of Common Stock (or
such other stock or securities at the time deliverable upon the exercise of this
Warrant) shall be entitled to exchange their shares of Common Stock (or such
other stock or securities) for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, transfer,
dissolution, liquidation or winding-up. Such notice shall be sent at least 10
days prior to the record date or effective date for the event specified in such
notice.
7. RESERVATION OF STOCK. The Company will at all times reserve and keep
available, solely for issuance and delivery upon the exercise of this Warrant,
such number of Warrant Shares and other securities, cash and/or property, as
from time to time shall be issuable upon the exercise of this Warrant.
8. EXCHANGE OR REPLACEMENT OF WARRANTS.
(a) Upon the surrender by the Registered Holder, properly endorsed,
to the Company at the principal office of the Company, the Company will issue
and deliver to or upon the order of the Registered Holder, at the Company's
expense, a new Warrant or Warrants of like tenor, in the name of the Registered
Holder or as the Registered Holder (upon payment by the Registered Holder of any
applicable transfer taxes) may direct, calling in the aggregate on the face or
faces thereof for the number of shares of Common Stock (or other securities,
cash and/or property) then issuable upon exercise of this Warrant.
(b) Upon receipt of evidence reasonably satisfactory to the Company
of the loss, theft, destruction or mutilation of this Warrant and (in the case
of loss, theft or destruction) upon delivery of an indemnity agreement (with
surety if reasonably required) in an amount reasonably satisfactory to the
Company, or (in the case of mutilation) upon surrender and cancellation of this
Warrant, the Company will issue, in lieu thereof, a new Warrant of like tenor.
9. NOTICES. All notices and other communications from the Company to the
Registered Holder in connection herewith shall be mailed by certified or
registered mail, postage prepaid, or sent via a reputable nationwide overnight
courier service guaranteeing next business day delivery, to the address last
furnished to the Company in writing by the Registered Holder. All notices and
other communications from the Registered Holder to the Company in connection
herewith shall be mailed by certified or registered mail, postage prepaid, or
sent via a reputable nationwide overnight courier service guaranteeing next
business day delivery, to the Company at its principal office set forth below.
If the Company should at any time change the location of its principal office to
a place other than as set forth below, it shall give prompt written notice to
the Registered Holder and thereafter all references in this Warrant to the
location of its principal office at the particular time shall be as so specified
in such notice. All such notices and communications shall be deemed delivered
one business day after being sent via a reputable international overnight
courier service guaranteeing next business day delivery.
10. NO RIGHTS AS STOCKHOLDER. Until the exercise of this Warrant, the
Registered Holder shall not have or exercise any rights by virtue hereof as a
stockholder of the Company. Notwithstanding the foregoing, in the event (i) the
Company effects a split of the Common Stock by means of a stock dividend and the
Purchase Price of and the number of Warrant Shares are adjusted as of the date
of the distribution of the dividend (rather than as of the record date for such
dividend), and (ii) the Registered Holder exercises this Warrant between the
record date and the distribution date for such stock dividend, the Registered
Holder shall be entitled to receive, on the distribution date, the stock
dividend with respect to the shares of Common Stock acquired upon such exercise,
notwithstanding the fact that such shares were not outstanding as of the close
of business on the record date for such stock dividend.
11. AMENDMENT OR WAIVER. Any term of this Warrant may be amended or waived
(either generally or in a particular instance and either retroactively or
prospectively) with the written consent of the Company and the holders of
Company Warrants representing at least two-thirds of the number of shares of
Common Stock then subject to outstanding Company Warrants. Notwithstanding the
foregoing, (a) this Warrant may be amended and the observance of any term
hereunder may be waived without the written consent of the Registered Holder
only in a manner which applies to all Company Warrants in the same fashion and
(b) the number of Warrant Shares subject to this Warrant and the Purchase Price
of this Warrant may not be amended, and the right to exercise this Warrant may
not be waived, without the written consent of the Registered Holder (it being
agreed that an amendment to or waiver under any of the provisions of Section 2
of this Warrant shall not be considered an amendment of the number of Warrant
Shares or the Purchase Price). The Company shall give prompt written notice to
the Registered Holder of any amendment hereof or waiver hereunder that was
effected without the Registered Holder's written consent. No waivers of any
term, condition or provision of this Warrant, in any one or more instances,
shall be deemed to be, or construed as, a further or continuing waiver of any
such term, condition or provision.
12. SECTION HEADINGS. The section headings in this Warrant are for the
convenience of the parties and in no way alter, modify, amend, limit or restrict
the contractual obligations of the parties.
13. GOVERNING LAW. This Warrant will be governed by and construed in
accordance with the internal laws of the State of New York (without reference to
the conflicts of law provisions thereof).
14. FACSIMILE SIGNATURES. This Warrant may be executed by facsimile
signature.
* * * * * * *
EXECUTED as of the Date of Issuance indicated above.
CHINDEX INTERNATIONAL, INC.
By:________________________________
Name:
Title:
ATTEST:
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