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EXHIBIT 2.5
THIS WARRANT AND THE SECURITIES ISSUABLE UPON ITS EXERCISE HAVE NOT BEEN
REGISTERED UNDER EITHER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, OFFERED FOR SALE,
TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES UNDER THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS.
QCA HEALTH PLAN, INC.
(AN ARKANSAS CORPORATION)
COMMON STOCK PURCHASE WARRANT
No. 1999-1 November __, 1999
This certifies that, for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, Silavon, Inc., a Delaware
corporation or registered assigns (hereinafter, the "HOLDER"), is entitled to
purchase, subject to the further provisions of this Warrant, 9,009 shares (the
"WARRANT SHARES") of fully paid and nonassessable common stock, par value $.10
per share (the "COMMON STOCK"), of QCA HEALTH PLAN, INC., an Arkansas
corporation (the "COMPANY"). The price per share for which all or any of the
Warrant Shares may be purchased shall be Ten Cents ($.10), or $900.90 in the
aggregate (the "WARRANT PRICE").
Upon exercise of this Warrant, the Holder shall pay, in accordance with
the terms hereof, the Warrant Price for the number of Warrant Shares being
purchased. All Warrant Shares shall be duly authorized, and when issued upon
such exercise, shall be validly issued, fully paid and non-assessable, free and
clear of all liens, security interests, charges and other encumbrances or
restrictions on sale or transfer, except as provided in the Amended and Restated
Shareholders' Agreement among the Company and the stockholders named therein
dated as of November __, 1999, as the same be amended, restated or otherwise
modified from time to time (the "AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT").
1. EXERCISE OF WARRANT
1.1 Warrant Exercise Period. This Warrant is exercisable, in whole or in
part, during the five year period (the "WARRANT EXERCISE PERIOD") commencing
upon the earliest to occur of the following: (i) the closing of the Company's
initial public offering of its equity
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securities; (ii) a "change of control" of the Company; or (iii) November ___,
2004. For purposes hereof, a "change of control" with respect to the Company
shall mean (a) the sale of all or substantially all of the assets of the
Company, (b) a merger, acquisition or other transaction or series of
transactions in which the Company is the surviving corporation that results in
any person (or group of affiliated persons) acquiring beneficial ownership of
more than fifty percent (50%) of the combined voting power of all classes of
stock of the Company, or (c) a merger, consolidation, or reorganization of the
Company with one or more other persons where, the Company is not the surviving
entity.
1.2 Manner of Exercise; Warrant Price. The exercise of this Warrant
shall be effected by the surrender of the Warrant (or any new warrant issued
pursuant to Section 1.3), together with a duly executed copy of the Notice of
Exercise and Certificate attached hereto as Exhibit A, to the Secretary of the
Company at its principal executive office, upon payment to the Company in an
amount equal to the Warrant Price for the number of Warrant Shares being
purchased. Payment of the Warrant Price shall be by (A) cash, wire transfer of
immediately available funds to a bank account specified by the Company, or by
certified or bank cashier's check in lawful money of the United States of
America, or (B) by cancellation by the Holder of indebtedness of the Company to
the Holder, or (C) by a combination of (A) and (B), of the Warrant Price for the
number of Warrant Shares specified in the Notice of Exercise.
1.3 Certificate for Warrant Shares. This Warrant shall be deemed to have
been exercised immediately prior to the close of business on the date of its
surrender for exercise as provided above. As promptly as practicable on or after
such date and in any event within ten (10) days thereafter, the Company at its
expense shall issue and deliver to the Holder a certificate for the number of
Warrant Shares issuable upon such exercise and, unless this Warrant has been
fully exercised or expired, a new Warrant representing the portion of the
Warrant Shares, if any, with respect to which this Warrant shall not then have
been exercised shall also be issued to the Holder within such ten (10) day
period. Each person in whose name any certificate for Warrant Shares is to be
issued shall for all purposes be deemed to have become the holder of record of
such Warrant Shares on the date on which this Warrant was surrendered and
payment of the Warrant Price was made, irrespective of the date of delivery of
such stock certificate.
2. TRANSFERS
2.1 Consent Required. Except as otherwise set forth herein, this Warrant
may not be transferred or assigned in whole or in part without the prior written
consent of the Company; provided, however, that upon prior notice to the
Company, Holder may transfer or assign this Warrant in whole or in part to The
TriZetto Group, Inc., a Delaware corporation, or any of its subsidiaries,
without the consent of the Company.
2.2 Legal Restrictions on Transfers. This Warrant and the Warrant Shares
may not be sold, hypothecated, assigned, pledged, encumbered or otherwise
disposed of, directly
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or indirectly, except in accordance with the provisions of the Securities Act
and the provisions of any applicable state securities laws and the rules and
regulations thereunder.
2.3 Registered Holder. The Holder agrees that until such time as any
permitted transfer of this Warrant is recorded on the books of the Company, the
Company may treat the registered Holder of this Warrant as the absolute owner.
2.4 Assignment. Upon the permitted transfer of all or part of this
Warrant, the Holder shall submit to the Company an Assignment in the form
attached as Exhibit B.
2.5 Amended and Restated Shareholders' Agreement. The Warrant Shares
shall be subject to the Amended and Restated Shareholders' Agreement (the
"SHAREHOLDERS' AGREEMENT") and the Holder agrees to execute a joinder agreement
thereto simultaneously with the exercise hereof.
3. FRACTIONAL SHARES
The Company shall not be required to issue fractions of Warrant Shares
upon exercise of this Warrant or to distribute certificates that evidence
fractional shares nor shall the Company be required to make any cash payments in
lieu thereof upon exercise of this Warrant. If a fractional share shall result
from adjustments in the number of Warrant Shares purchasable hereunder, the
number of Warrant Shares purchasable hereunder shall, on an aggregate basis
taking into account all adjustments hereunder, be rounded up to the next whole
number.
4. CERTAIN ADJUSTMENTS
The provisions of this Section 4 shall apply in the event that any of
the events described in this Section 4 shall occur with respect to the Common
Stock at any time on or after the original issuance date of this Warrant.
4.1 Reclassification, Exchanges or Substitutions. If the Common Stock
issuable upon exercise of this Warrant shall be changed into the same or a
different number of shares of any other class or classes of stock, whether by
reclassification, exchange, substitution, or otherwise, then the Holder
exercising this Warrant shall receive, for the same aggregate Warrant Price paid
upon such exercise, in lieu of the Common Stock which the Holder would have been
entitled to purchase but for such change, a number of shares of such other class
or classes of stock which the Holder would have received if this Warrant had
been exercised immediately prior to such change.
4.2 Reclassification, Reorganizations, Mergers, Consolidation or Sale of
Assets. If at any time there shall be a capital reorganization of the Common
Stock (other than a combination, reclassification, exchange or substitution of
shares provided for elsewhere above) or merger or consolidation of the Company
with or into another corporation, or the sale of all or substantially all of the
Company's properties and assets, in one or a series of related transactions,
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to any other person or group of persons acting in concert then, as a part of
such reorganization, merger, consolidation or sale, lawful provision shall be
made so that the Holder shall thereafter be entitled to receive upon exercise of
this Warrant, the number of Warrant Shares or other securities or property of
the Company, or of the successor corporation resulting from such capital
reorganization, merger, consolidation or sale to which a holder of the Warrant
Shares deliverable upon exercise of this Warrant would have been entitled in
such capital reorganization, merger, or consolidation or sale if this Warrant
had been exercised immediately before that capital reorganization, merger,
consolidation, or sale.
4.3 Split, Subdivision or Combination of Shares. If at any time the
Company shall (i) take a record of the holders of its Common Stock for the
purpose of entitling them to receive a dividend payable in, or other
distribution of additional Common Stock, (ii) subdivide its outstanding shares
of Common Stock into a larger number of shares of Common Stock, or (iii) combine
its outstanding shares of Common Stock into a smaller number of shares of Common
Stock, then the number of shares of Common Stock for which this Warrant is
exercisable immediately after the occurrence of any such event shall be adjusted
to equal the number of shares of Common Stock which a record holder of the same
number of shares of Common Stock for which this Warrant is exercisable
immediately prior to the occurrence of such event would own or be entitled to
receive after the happening of such event. The aggregate Warrant Price of this
warrant following such event shall remain as in effect immediately prior such
event. Any adjustment under this subsection (c) shall become effective when the
dividend, split, subdivision or combination becomes effective.
4.4 Reservation of Stock Issuable Upon Exercise. The Company shall at
all times reserve and keep available out of its authorized but unissued shares
of Common Stock solely for the purpose of effecting the exercise of this Warrant
such number of its shares of Common Stock as shall from time to time be
sufficient to effect the exercise of this Warrant and if at any time the number
of authorized but unissued shares of Common Stock shall not be sufficient to
effect the exercise of this Warrant, in addition to such other remedies as shall
be available to the Holder of this Warrant, the Company will use its best
efforts to take such corporate action as may be necessary to increase its
authorized but unissued shares of Common Stock to such number of shares as shall
be sufficient for such purposes.
5. RIGHTS PRIOR TO EXERCISE OF WARRANT
This Warrant does not entitle the Holder to any of the rights of a
stockholder of the Company, including without limitation, the right to receive
dividends or other distributions, to vote, or to consent or to receive notice as
a stockholder of the Company.
6. SUCCESSORS AND ASSIGNS
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The terms and provisions of this Warrant shall inure to the benefit of,
and be binding upon, the Company and the Holder and their respective successors
and permitted assigns.
7. LEGEND
The Holder acknowledges that this Warrant and the Warrant Shares are
being acquired solely for the Holder's own account and not as a nominee for any
other party, and for investment, and that the Holder will not offer, sell or
otherwise dispose of any shares of the Common Stock to be issued upon exercise
of the Warrant except under circumstances that will not result in a violation of
the Securities Act or any applicable state securities laws or regulations. The
Holder acknowledges that this Warrant is, and each share of Common Stock
issuable upon the exercise hereof will be a restricted security and subject to
the Amended and Restated Shareholders' Agreement. All stock certificates
representing the shares of Common Stock issued upon exercise hereof shall be
stamped or imprinted with a legend as required by the Shareholders' Agreement.
8. LOSS OR MUTILATION OF WARRANT
Upon receipt by the Company of satisfactory evidence of the ownership of
and the loss, theft, destruction, or mutilation of any Warrant, and (i) in the
case of loss, theft, or destruction, upon receipt by the Company of indemnity
satisfactory to it, or (ii) in the case of mutilation, upon receipt of such
Warrant and upon surrender and cancellation of such Warrant, the Company shall
execute and deliver in lieu thereof a new warrant containing the same terms of
this Warrant.
9. NOTICES
All notices, requests, demands and other communications under this
Warrant ("NOTICES") shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom Notice is
to be given, or on third business day following the date of mailing if mailed to
the party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and properly addressed; provided, however, that
Notice of any exercise of this Warrant shall only be effective on the date
actually received by the Company. Notices shall be addressed as follows: if to
the Holder, at his address as shown in the Company records; and if to the
Company, at its principal executive office. Any party may change its address for
purposes of this subsection by giving the other party written notice of the new
address in the manner set forth above.
10. AMENDMENTS
This Warrant and any term hereof may be changed, waived, discharged or
terminated only by an instrument in writing signed by the Company and the
Holder.
11. GOVERNING LAW
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This Warrant and any dispute, disagreement or issue of construction of
interpretation arising hereunder whether relating to its execution, its
validity, the obligations provided herein or performance shall be governed or
interpreted according to the internal laws of the State of Arkansas without
regard to conflicts of law.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
and delivered on its behalf as of the date first above written, by one of its
duly authorized officers.
QCA HEALTH PLAN, INC.
By:
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Name:
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Title:
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EXHIBIT A
PURCHASE FORM
[To be executed only upon exercise of warrant]
The undersigned registered owner of this Warrant irrevocably exercises
this warrant for the purchase of ______ shares of common stock, $.10 par value
(the "COMMON STOCK") of QCA Health Plan, Inc., and herewith makes payment
therefor, all at the price and on the terms and conditions specified in this
Warrant and requests that certificates for the shares of Common Stock hereby
purchased be issued in the name of and delivered to _____________ whose address
is_________________ and, if such shares of Common Stock shall not include all of
the shares of Common Stock issuable as provided in this Warrant, that a new
warrant of like tenor and date for the balance of the shares of Common Stock
issuable hereunder be delivered to the undersigned.
Dated: ______________, 19__
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(Name of Registered Owner)
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(Signature of Registered Owner)
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(Street Address)
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(City) (State) (Zip Code)
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EXHIBIT B
ASSIGNMENT FORM
For value received, the undersigned hereby sells, assigns and transfers
unto __________ [the "Transferee"] [all] [that portion] of the within Warrant
exercisable for __________ shares of Common Stock of QCA Health Plan, Inc. (the
"Warrant"), together with all related right, title and interest therein, and
does hereby irrevocably constitute and appoint __________ attorney-in-fact to
transfer the Warrant, with full power of substitution in the premises.
The undersigned makes no representations or warranties regarding any of
the transactions contemplated by Section 1.1(d)(1) of that certain Stock
Purchase Agreement dated as of November 19, 1999 by and among The TriZetto
Group, Inc. ("TriZetto"), ▇▇▇▇▇▇▇ Corporation ("▇▇▇▇▇▇▇") and the
securityholders of ▇▇▇▇▇▇▇ and that certain Warrant Escrow Agreement dated as of
November 19, 1999 by and among TriZetto, Silavon, Inc., certain securityholders
of ▇▇▇▇▇▇▇, ABS Capital Partners, L.P. and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, a
Professional Corporation (the "Transactions"); it being understood and agreed
that the Transferee shall have no right of offset as to such matters that are
not the subject of representations and warranties.
Dated:
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By:
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