Exhibit 2
THIS COMMON STOCK PURCHASE WARRANT AND THE SECURITIES FOR WHICH IT CAN BE
EXERCISED HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE TRANSFERRED IN VIOLATION OF SUCH ACT OR STATE LAW, THE RULES AND
REGULATIONS THEREUNDER OR THE TRANSFER RESTRICTIONS OF THIS WARRANT.
MEDICAL IMAGING CENTERS OF AMERICA, INC.
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT
800,000 Shares, Subject to Adjustment
May 27, 1993
THIS IS TO CERTIFY THAT GENERAL ELECTRIC COMPANY, a New York corporation
acting through GE Medical Systems, or registered assigns, is entitled, at any
one time on and after the Exercise Date and on or prior to the Expiration Date
(as hereinafter defined), to purchase from MEDICAL IMAGING CENTERS OF AMERICA,
INC., a California corporation (the "Company"), 800,000 shares of Common Stock
(as hereinafter defined and subject to adjustment as provided herein), of the
Company at a purchase price of $1.14 per share (subject to adjustment as
provided herein), all on the terms and conditions and pursuant to the provisions
hereinafter set forth. This instrument amends and restates a Common Stock
Purchase Warrant of identical tenor, except only as to an amendment to the
definition of the phrase "Expiration Date."
1. DEFINITIONS
As used in this Warrant, the following terms have the respective meanings
set forth below.
"Additional Shares of Common Stock" shall mean all shares of Common Stock
issued by the Company following the date of this Warrant.
"Appraised Value" shall mean, in respect of any share of Common Stock on
any date herein specified, the fair market value of such share of Common Stock
(determined without giving effect to the discount for (i) a minority interest or
(ii) any lack of liquidity of the Common Stock or to the fact that the Company
may have no class of equity registered under the Exchange Act) as of the last
day of the most recent fiscal month to end within 60 days prior to such date
specified, based on the value of the Company as a whole, as determined by a
member or members of the NASD selected in accordance with the definition below
of "Current Market Price" on the basis of a sale between a willing seller and
buyer, neither acting under any compulsion, divided by the number of Fully
Diluted Outstanding shares of Common Stock.
"Book Value" shall mean, in respect of any share of Common Stock on any
date herein specified, the consolidated book value of the Company applicable to
Common Stock as of the last day of any month immediately preceding such date,
divided by the number of Fully Diluted Outstanding shares of Common Stock as
determined in accordance with GAAP by a firm of independent certified public
accountants of recognized national standing selected by the Company and
reasonably acceptable to the Holder.
"Business Day" shall mean any day that is not a Saturday or Sunday or a day
on which banks are required or permitted to be closed in the States of New York
or California.
"Closing Date" shall mean the date on which the closing occurs in the
Restructuring Agreement.
"Commission" shall mean the Securities and Exchange Commission or any other
federal agency then administering the Securities Act and other federal
securities laws.
"Common Stock" shall mean (except where the context otherwise indicates)
the Common Stock of the Company, and any capital stock into which such Common
Stock may thereafter be changed, and shall also include capital stock of the
Company of any other class (regardless of how denominated) issued to the holders
of shares of Common Stock upon any reclassification thereof which is not
preferred as to dividends or assets over any other class of stock of the Company
and which is not subject to redemption.
"Convertible Securities" shall mean evidences of indebtedness, options,
warrants or other rights to receive shares of stock or other securities which
are convertible into or exchangeable, with or without payment of additional
consideration in cash or property, for Common Stock, either immediately or upon
the occurrence of a specified date or a specified event.
"Current Market Price" shall mean, in respect of any share of Common Stock
on any date herein specified, the highest of (a) the Book Value per share of
Common Stock at such date, and (b) the Appraised Value per share of Common Stock
as at such date, or if there shall then be a public market for the Common Stock,
the highest of (x) the Book Value per share of Common Stock at such date, and
(y) the average of the daily market prices for 30 consecutive Business Days
commencing 45 days before such date. The daily market price for each such day
shall be (i) the last sale price on such day as furnished by the National
Association of Securities Dealers Automated Quotation System ("NASDAQ") or by
the National Quotation Bureau if not reported on NASDAQ, (ii) if neither such
corporation at the time is engaged in the business of reporting such prices, as
furnished by any similar firm then engaged in such business, or (iii) if there
is no such firm, as furnished by any member of the NASD selected mutually by the
Holder and the Company or, if they cannot agree upon such selection, as selected
by two such members of the NASD, one of which shall be selected by the Holder
and one of which shall be selected by the Company, (iv) if the Common Stock is
listed or admitted to trading on a stock exchange in the United States, the last
sale price on such day on the principal stock exchange on which such Common
Stock is then listed or admitted to trading, or (v) if no sale takes place on
such day on any such exchange, the average of the last reported closing bid and
asked prices on such day as officially quoted on any such exchange.
"Current Warrant Price" shall mean, in respect of a share of Common Stock
at any date herein specified, the price at which a share of Common Stock may be
purchased pursuant to this Warrant on such date.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
or any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
"Exercise Date" shall mean the date two (2) years following the Closing
Date; provided, however, that the Exercise Date shall be accelerated to any
earlier date upon which any of the following events occurs: (i) a tender offer
is commenced for all or part of the Company's Common Stock, (ii) the acquisition
or disposition of securities of the Company by a Person or group which would
cause such Person or group holding such securities, alone or together with such
Person's or group's affiliates, to increase their holdings above, or decrease
their holdings below, 25% of the Company's Fully Diluted Outstanding Common
Stock, (iii) the Company sells all or substantially all of its assets, or
(iv) the termination, repayment or prepayment in full of the loan under the
Restructuring Agreement.
"Exercise Period" shall mean the period during which this Warrant is
exercisable pursuant to Section 2.1.
"Expiration Date" shall mean the date five years following the Closing
Date.
"Fully Diluted Outstanding" shall mean, when used with reference to Common
Stock, at any date as of which the number of shares thereof is to be determined,
all shares of Common Stock Outstanding at such date and all shares of Common
Stock issuable in respect of this Warrant and all other options, warrants,
Convertible Securities or other rights to purchase or receive Common Stock
outstanding on such date.
"GAAP" shall mean generally accepted accounting principles in the United
States of America as from time to time in effect.
"GE Medical" shall mean General Electric Company, a New York corporation
acting through GE Medical Systems.
"Holder" shall mean the Person or Persons in whose name the Warrant set
forth herein is registered on the books of the Company maintained for such
purpose. In the event more than one Person is so registered, "Holder" for
purposes of consent, demand or other action allowed or required to be taken
hereunder by the Holder(s) of this Warrant, the word "Holder" shall refer to a
simple majority in interest of such Persons.
"NASD" shall mean the National Association of
Securities Dealers, Inc., or any successor corporation thereto.
"Outstanding" shall mean, when used with reference to Common Stock, at any
date as of which the number of shares thereof is to be determined, all issued
shares of Common Stock, except shares then owned or held exclusively by or for
the account solely of the Company or any wholly-owned subsidiary thereof
(collectively, "Subsidiary-Held Shares"), and shall include all shares issuable
in respect of any certificates representing fractional interests in shares of
Common Stock. Subsidiary-Held Shares shall remain Subsidiary-Held Shares even
if held in pledge as security unless and until such shares are foreclosed upon
and record, beneficial or equitable ownership transferred.
"Person" shall mean any individual, sole proprietorship, partnership, joint
venture, trust, incorporated organization, association, corporation,
institution, public benefit corporation, entity or government (whether federal,
state, county, city, municipal or otherwise, including, without limitation, any
instrumentality, division, agency, body or department thereof).
"Preferred Stock" shall mean any class of the Company's stock having
rights, preferences or privileges senior or prior in right to any other class.
"Restricted Common Stock" shall mean shares of Common Stock which are, or
which upon their issuance on the exercise of this Warrant would be, evidenced by
a certificate bearing the restrictive legend set forth in Section 9.1(a).
"Restructuring Agreement" shall mean that certain Agreement dated May 14,
1993, between the Company and General Electric Company, acting through GE
Medical Systems which provides for restructuring of obligations of the Company
and to which a form of this Warrant is attached as an exhibit.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Subsidiary" shall mean, with respect to any Person, any corporation of
which an aggregate of more than 50% of the outstanding stock having ordinary
voting power to elect a majority of the board of directors of such corporation
(irrespective of whether, at the time, stock of any other class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time, directly or indirectly, owned
legally or beneficially by such Person and/or one or more Subsidiaries of such
Person.
"Subsidiary-Held Shares" shall have the meaning set forth above in the
definition of "Outstanding."
"Transfer" shall mean any disposition of any Warrant or Warrant Stock or of
any interest in either thereof, which would constitute a sale thereof within the
meaning of the Securities Act.
"Transfer Notice" shall have the meaning set forth in Section 9.2.
"Warrants" shall mean this Warrant and all warrants issued upon transfer,
division or combination of, or in substitution for, this Warrant. All Warrants
shall at all times be identical as to terms and conditions and date, except as
to the percentage of Fully Diluted Outstanding Shares of Common Stock for which
they may be exercised. Collectively, all unexercised Warrants shall be
exercisable for the exact same number of shares as this Warrant would be
exercisable in the event any such Transfer or division had not occurred.
Exercise of any warrant(s) shall not trigger any of the adjustments contemplated
by Section 4 of this Warrant.
"Warrant Price" shall mean an amount equal to (i) the number of shares of
Common Stock being purchased upon exercise of this Warrant pursuant to Section
2.1, multiplied by (ii) the Current Warrant Price as of the date of such
exercise.
"Warrant Stock" shall mean the shares of Common Stock purchased by the
holders of the Warrants upon the exercise thereof.
2. EXERCISE OF WARRANT
2.1 Manner of Exercise. From and after the Exercise Date and until 5:00
p.m., California time, on the Expiration Date, the Holder may exercise the
Warrant on Business Days, for all or any part of 800,000 shares (subject to
adjustment as provided hereunder) of Common Stock then purchasable hereunder.
In order to exercise this Warrant, in whole or in part, Holder shall
deliver to the Company at its principal office at 0000 Xxxxxxx Xxxxxx, Xxxxx
000, Xxx Xxxxx, Xxxxxxxxxx 00000 or at the office or agency designated by the
Company pursuant to Section 12, (i) a written notice of Xxxxxx's election to
exercise this Warrant, which notice shall specify the number of shares of Common
Stock to be purchased, (ii) payment of the Warrant Price in the manner specified
below, and (iii) this Warrant. Such notice shall be substantially in the form
of the subscription form appearing at the end of this Warrant as Exhibit A, duly
executed by Holder or its agent or attorney. Upon receipt thereof, the Company
shall, as promptly as practicable, and in any event within five (5) Business
Days thereafter, execute or cause to be executed and deliver or cause to be
delivered to Holder a certificate or certificates representing the aggregate
number of full shares of Outstanding Shares of Common Stock issuable upon such
exercise. The stock certificate or certificates so delivered shall be, to the
extent possible, in such denomination or denominations as such Holder shall
request in the notice and shall be registered in the name of Holder or, subject
to Section 9, such other name as shall be designated in the notice. This
Warrant shall be deemed to have been exercised and such certificate or
certificates shall be deemed to have been issued, and Holder or any other Person
so designated to be named therein shall be deemed to have become a holder of
record of such shares for all purposes, as of the date the notice, together with
the payment as set forth below, and this Warrant are received by the Company as
described above and all taxes required to be paid by Holder, if any, pursuant to
Section 2.2 prior to the issuance of such shares have been paid or agreed to be
paid when finally determined.
Payment of the Warrant Price shall be made at the option of the Holder
by certified or official bank check, or by cancellation of indebtedness, if any,
owed by the Company to such Holder.
2.2 Payment of Taxes. All shares of Common Stock issuable upon the
exercise of this Warrant pursuant to the terms hereof shall be validly issued,
fully paid and nonassessable. The Company shall pay all expenses in connection
with, and all taxes and other governmental charges that may be imposed with
respect to, the issue or delivery thereof, unless such tax or charge is imposed
by law upon Holder, in which case such taxes or charges shall be paid by Xxxxxx.
The Company shall not be required, however, to pay any tax or other charge
imposed in connection with any transfer involved in the issuance of any
certificate for shares of Common Stock issuable upon exercise of this Warrant in
any name other than that of Holder, and in such case the Company shall not be
required to issue or deliver any stock certificate until such tax or other
charge has been paid or it has been established to the satisfaction of the
Company that no such tax or other charge is due.
2.3 Fractional Shares. The Company shall not issue a fractional share of
Common Stock upon exercise of this Warrant. A fractional share otherwise
issuable shall be rounded up to the nearest whole share.
2.4 Continued Validity. A holder of shares of Common Stock issued upon
the exercise of this Warrant (other than a holder who acquires such shares after
the same have been publicly sold pursuant to a Registration Statement under the
Securities Act or sold pursuant to Rule 144 thereunder), shall continue to be
entitled with respect to such shares to all rights to which it would have been
entitled as Holder under Sections 9, 10, 13, and 16 of this Warrant. The
Company shall, at the time of each exercise of this Warrant upon the request of
the holder of the shares of Common Stock issued upon such exercise hereof,
acknowledge in writing, in form reasonably satisfactory to such holder, its
continuing obligation to afford to such holder all such rights and subject to
any burdens; provided, however, that if such holder shall fail to make any such
request, such failure shall not affect the continuing obligation of the Company
to afford to such holder all such rights.
3. TRANSFER, DIVISION AND COMBINATION
3.1 Transfer. This Warrant shall be nontransferable other than to a
division, subsidiary or affiliate of GE Medical except by merger of the Holder
with another entity or otherwise by operation of law. Subject to compliance
with Section 9 following said period of nontransferability, transfer of this
Warrant and all rights hereunder, in whole or in part, shall be registered on
the books of the Company to be maintained for such purpose, upon surrender of
this Warrant at the principal office of the Company referred to in Section 2.1
or the office or agency designated by the Company pursuant to Section 12,
together with a written assignment of this Warrant substantially in the form of
Exhibit B hereto duly executed by Xxxxxx or its agent or attorney and funds
sufficient to pay any transfer taxes payable upon the making of such transfer.
Upon such surrender and, if required, such payment, the Company shall, subject
to Section 9, execute and deliver a new Warrant or Warrants in the name of the
assignee or assignees and in the denomination specified in such instrument of
assignment, and shall issue to the assignor a new Warrant evidencing the portion
of this Warrant not so assigned, and this Warrant shall promptly be cancelled.
A Warrant, if properly assigned in compliance with Section 9, may be exercised
by a new Holder for the purchase of shares of Common Stock without having a new
Warrant issued. If requested by the Company, a new Holder shall acknowledge in
writing, in form reasonably satisfactory to the Company, such Xxxxxx's
continuing obligations under Section 9 of this Warrant.
3.2 Division and Combination. Subject to Section 9, this Warrant may be
divided or combined with other Warrants upon presentation hereof at the
aforesaid office or agency of the Company, together with a written notice
specifying the names and denominations in which new Warrants are to be issued,
signed by Xxxxxx or its agent or attorney. Subject to compliance with Section
3.1 and with Section 9, as to any transfer which may be involved in such
division or combination, the Company shall execute and deliver a new Warrant or
Warrants in exchange for the Warrant or Warrants to be divided or combined in
accordance with such notice.
3.3 Expenses. The Company shall prepare, issue and deliver at its own
expense (other than transfer taxes) the new Warrant or Warrants under this
Section 3.
3.4 Maintenance of Books. The Company shall maintain, at its aforesaid
office or agency, books for the registration, and the registration of transfer,
of this Warrant.
4. ADJUSTMENTS
The number of shares of Common Stock for which this Warrant is exercisable,
or the price at which such shares may be purchased upon exercise of this Warrant
shall be subject to adjustment from time to time as set forth in this Section 4.
The Company shall give each Holder notice of any event described below which
requires an adjustment pursuant to this Section 4 at the time of such event.
4.1 Stock Dividends, Subdivisions, Combinations and Reclassifications. If
at any time the Company shall with respect to its Common Stock or Convertible
Securities:
(a) pay a dividend or make distribution of Additional Shares of
Common Stock or Convertible Securities other than convertible indebtedness
or convertible Preferred Stock (in which event such Additional Shares of
Common Stock issuable upon exchange or conversion shall be deemed
distributed),
(b) subdivide its outstanding shares of Common Stock into a larger
number of shares of Common Stock,
(c) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock, or
(d) reclassify its Common Stock (other than a change in par value, or
from par value to no par value) into shares of Common Stock and shares of
any other class of stock; and, if the outstanding shares of Common Stock
shall be changed into a larger or smaller number of shares of Common Stock
as a part of such reclassification, such change shall be deemed a
subdivision or combination, as the case may be, of the Outstanding shares
of Common Stock within the meaning of this Section 4.1.,
then (i) the number of shares of Common Stock for which this Warrant is
exercisable after the occurrence of any such event shall be equal to (A) the
maximum number of shares of Common Stock underlying this Warrant prior to the
occurrence of any such event, multiplied by (B) the number of Fully Diluted
Outstanding shares of Common Stock after any such event, divided by the number
of Fully Diluted Outstanding shares of Common Stock prior to any such event, and
(ii) the Current Warrant Price shall be adjusted to equal the Current Warrant
Price multiplied (A) by the number of shares of Common Stock for which this
Warrant is exercisable immediately prior to the adjustment divided by (B) the
number of shares for which this Warrant is exercisable immediately after such
adjustment. Any increased number of shares of Common Stock subject to this
Warrant resulting from application of the foregoing shall be allocated ratably
among all shares of Common Stock subject to this Warrant prior to each such
event and the shares (including the newly allocated shares) not subject to
clause (i) of Section 2.1 shall remain subject to the conditions precedent to
exercise described in clause (ii) of Section 2.1.
4.2 Other Provisions Applicable to Adjustments under this Section. The
following provisions shall be applicable to the making of adjustments of the
number of shares of Common Stock for which this Warrant is exercisable provided
for in this Section 4:
(a) When Adjustments to Be Made. The adjustments required by this
Section 4 shall be made whenever and as often as any specified event
requiring an adjustment shall occur. For the purpose of any adjustment,
any specified event shall be deemed to have occurred at the close of
business on the date of its occurrence.
(b) When Adjustment Not Required. If the Company shall take a record
of the holders of its Common Stock for the purpose of entitling them to
receive a dividend or distribution or subscription or purchase rights and
shall, thereafter and before the distribution to stockholders thereof,
legally abandon its plan to pay or deliver such dividend, distribution,
subscription or purchase rights, then thereafter no adjustment shall be
required by reason of the taking of such record and any such adjustment
previously made in respect thereof shall be rescinded and annulled.
5. NOTICES TO WARRANT HOLDERS
5.1 Notice of Adjustments. Whenever the number of shares of Common Stock
for which this Warrant is exercisable, or whenever the price at which a share of
such Common Stock may be purchased upon exercise of this Warrant, shall be
adjusted pursuant to Section 4, the Company shall forthwith prepare a
certificate to be executed by the chief financial officer of the Company setting
forth, in reasonable detail, the event requiring the adjustment and the method
by which such adjustment was calculated, specifying the number of shares of
Common Stock for which this Warrant is exercisable, and any change in the
purchase price or prices thereof, after giving effect to such adjustment or
change. The Company shall promptly cause a signed copy of such certificate to
be delivered to each Holder in accordance with Section 16.2. The Company shall
keep at its office or agency designated pursuant to Section 12 copies of all
such certificates and cause the same to be available for inspection at said
office during normal business hours by any Holder or any prospective purchaser
of a Warrant designated by a Holder thereof.
5.2 Notice of Certain Corporate Action. The Holder shall be entitled to
the same rights to receive notice of corporate action as any holder of Common
Stock.
6. NO IMPAIRMENT
The Company shall not by any action including, without limitation, amending
its certificate of incorporation 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 actions as may
be necessary or appropriate to protect the rights of Holder against impairment.
Without limiting the generality of the foregoing, the Company will (a) not
increase the par value, if any, of any shares of Common Stock receivable upon
the exercise of this Warrant above the amount payable therefor upon such
exercise immediately prior to such increase in par value, (b) take all such
action as may be reasonably necessary or appropriate in order that the Company
may validly and legally issue fully paid and nonassessable shares of Common
Stock upon the exercise of this Warrant, and (c) use its best efforts to obtain
all such authorizations, exemptions or consents from any public regulatory body
having jurisdiction thereof as may be necessary to enable the Company to perform
its obligations under this Warrant.
Upon the request of Xxxxxx, the Company will at any time during the period
this Warrant is outstanding acknowledge in writing, in form satisfactory to
Holder, the continuing validity of this Warrant and the obligations of the
Company hereunder.
7. RESERVATION AND AUTHORIZATION OF COMMON STOCK; REGISTRATION WITH OR
APPROVAL OF ANY GOVERNMENTAL AUTHORITY
From and after the Closing Date, the Company shall at all times reserve and
keep available for issuance upon the exercise of Warrants such number of its
authorized but unissued shares of Common Stock as will be sufficient to permit
the exercise in full of all outstanding Warrants. All shares of Common Stock
which shall be so issuable, when issued upon exercise of any Warrant and payment
therefor in accordance with the terms of such Warrant, shall be duly and validly
issued and fully paid and nonassessable, and not subject to preemptive rights.
Before taking any action which would cause an adjustment reducing the
Current Warrant Price below the then par value, if any, of the shares of Common
Stock issuable upon exercise of the Warrants, the Company shall take any
corporate action which may be reasonably necessary in order that the Company may
validly and legally issue fully paid and nonassessable shares of such Common
Stock at such adjusted Current Warrant Price.
Before taking any action which would result in an adjustment in the number
of shares of Common Stock for which this Warrant is exercisable or in the
Current Warrant Price, the Company shall obtain all such authorizations or
exemptions thereof, or consents thereto, as may be reasonably necessary from any
public regulatory body or bodies having jurisdiction thereof.
If any shares of Common Stock required to be reserved for issuance upon
exercise of warrants require registration or qualification with any governmental
authority under any federal or state law (otherwise than as provided in Section
9) before such shares may be so issued, the Company will in good faith and as
expeditiously as possible and at its expense endeavor to cause such shares to be
duly registered or qualified; provided that the provisions of Section 9 shall
govern with respect to Company's obligation to effect the registration of its
securities under the Securities Act.
8. TAKING OF RECORD; STOCK AND WARRANT TRANSFER BOOKS
In the case of all dividends or other distributions by the Company to the
holders of its Common Stock with respect to which any provision of Section 4
refers to the taking of a record of such holders, the Company will in each such
case take such a record and will take such record as of the close of business on
a Business Day. The Company will not at any time, except upon dissolution,
liquidation or winding up of the Company, close its stock transfer books or
Warrant transfer books so as to result in preventing or delaying the exercise or
transfer of any Warrant.
9. RESTRICTIONS ON TRANSFERABILITY
This Warrant shall not be transferable except to a division, subsidiary or
affiliate of GE Medical or by merger of the Holder with another entity or
otherwise by operation of law. Furthermore, this Warrant and the Warrant Stock
shall not be transferred, hypothecated or assigned before satisfaction of the
conditions specified in this Section 9, which conditions are intended to ensure
compliance with the provisions of the Securities Act and state law, with respect
to the Transfer of this Warrant or any Warrant Stock. Holder, by acceptance of
this Warrant, agrees to be bound by the provisions of this Section 9.
Furthermore, Holder, by acceptance of this Warrant and by acceptance and
delivery of the Subscription Form in the form of Exhibit A hereto, represents
and warrants to the Company for its reliance in connection with issuing this
Warrant and the Warrant Stock, respectively, that (i) Holder is acquiring the
Warrant, and if applicable, the Warrant Stock for Holder's own account for
investment and not for sale or other disposition thereof; (ii) Holder
understands that such securities are not registered under the Securities Act and
must be held indefinitely unless subsequently registered under the Securities
Act or unless an exemption from such registration is available; (iii) Holder, by
reason of its business and financial experience has the capacity to protect its
own interests in connection with purchase and transfer of such securities and is
able to bear the economic risk thereof; and (iv) the Company has made available
to Holder all documents and information regarding an investment in such
securities requested by or on behalf of Holder, including but not limited to all
publicly available information on file with the Commission.
9.1 Restrictive Legend.
(a) Except as otherwise provided in this Section 9, each certificate
for Warrant Stock initially issued upon the exercise of this Warrant, and
each certificate for Warrant Stock issued to any subsequent transferee of
any such certificate, shall be stamped or otherwise imprinted with a legend
in substantially the following form:
The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
are subject to the conditions specified in a certain Common
Stock Purchase Warrant dated as of May 27, 1993, originally
issued by Medical Imaging Centers of America, Inc. No transfer
of the shares represented by this certificate shall be valid or
effective until such conditions and any requirements of state
law have been fulfilled. A copy of the form of said Warrant is
on file with the Secretary of Medical Imaging Centers of
America, Inc. The holder of this certificate, by acceptance of
this certificate, agrees to be bound by the provisions of such
Warrant.
b) Except as otherwise provided in this Section 9, each Warrant
shall be stamped or otherwise imprinted with a legend in
substantially the following form:
This Warrant and its underlying securities have not been
registered under the Securities Act of 1933, as amended, and
may not be transferred in violation of such Act or state law,
the rules and regulations thereunder or the provisions of this
Warrant.
9.2 Notice of Proposed Transfers; Requests for Registration. Prior to
any Transfer or attempted Transfer of any Warrants or any shares of Warrant
Stock, the holder of such Warrants or Warrant Stock shall give ten days prior
written notice (a "Transfer Notice") to the Company of such holder's intention
to effect such Transfer, describing the manner and circumstances of the proposed
Transfer, and shall obtain and deliver to the Company an opinion in form and
substance reasonably satisfactory to the Company (addressed to the Company and
upon which the Company may rely) from counsel to such holder who shall be
reasonably satisfactory to the Company, that the proposed Transfer of such
Warrants or such Warrant Stock may be effected without registration under the
Securities Act and any applicable state securities law(s). After receipt of the
Transfer Notice and opinion, the Company shall, within five days thereof, so
notify the holder of such Warrants or Warrant Stock and such holder shall
thereupon be entitled to Transfer such Warrants or such Warrant Stock, in
accordance with the terms of the Transfer Notice. Each certificate, if any,
evidencing such shares of Warrant Stock issued upon such Transfer shall bear the
restrictive legend set forth in Section 9.1(a), and each Warrant issued upon
such Transfer shall bear the restrictive legend set forth in Section 9.1(b),
unless in the opinion of such counsel such legend is not required in order to
ensure compliance with the Securities Act and any applicable state securities
law(s). The holder of the Warrants or the Warrant Stock, as the case may be,
giving the Transfer Notice shall not be entitled to transfer and shall not
transfer such Warrants or such Warrant Stock until (i) the Company receives a
written statement of investment intent and sophistication from the proposed
Transferee in substance substantially similar to the final sentence of the first
paragraph of Section 9 and (ii) such holder receives notice from the Company
under this Section 9.2.
The Holders of Warrants and Warrant Stock shall have the right to
request registration of such Warrant Stock pursuant to Sections 9.3 and 9.4.
9.3 Required Registration. The rights ("Required Registration") of
holders of Warrants and/or Warrant Stock under this Section 9.3 shall become
effective only on and after the date 90 days prior to the Exercise Date and
shall expire on the Expiration Date. After receipt of a written request from
the holders of Warrants and/or Warrant Stock representing at least an aggregate
of fifty percent (50%) of the total of (i) all shares of Warrant Stock then
subject to issuance upon exercise of all Warrants and (ii) all shares of Warrant
Stock then Outstanding having an aggregate Current Market Price in excess of
$400,000, requesting that the Company effect the registration of Warrant Stock
issuable upon the exercise of such holder's Warrants or of any of such holder's
Warrant Stock under the Securities Act and specifying the intended method or
methods of disposition thereof, the Company shall promptly notify all holders of
Warrants and Warrant Stock in writing of the receipt of such request and each
such holder, in lieu of exercising its rights under Section 9.4, may elect (by
written notice specifying the intended method or methods of disposition of
Warrant Stock sent to the Company within ten Business Days from the date of such
xxxxxx's receipt of the aforementioned Company's notice) to have such holder's
shares of Warrant Stock included in such registration thereof pursuant to this
Section 9.3. Thereupon the Company shall, as expeditiously as is possible, use
its best efforts to effect the registration under the Securities Act of all
shares of Warrant Stock which the Company has been so requested to register by
such holders for sale, all to the extent required to permit the disposition (in
accordance with the intended method or methods thereof, as aforesaid) of the
Warrant Stock so registered; provided, however, that the Company shall not be
required to effect more than one registration of any Warrant Stock pursuant to
this Section 9.3. No holder of any other warrant, Convertible Securities or
other right to purchase shares of Common Stock shall receive or be entitled to
receive registration rights that are more favorable than the registration rights
available to the Holder pursuant to the terms of this Section 9.
(a) Suspension of Registration.
If the Company has been requested to effect a Required
Registration, whether or not a Registration Statement with respect
thereto has been filed or has become effective, and furnishes to the
Holder requesting such registration a copy of a resolution of the
Board of Directors of the Company certified by the Secretary of the
Company stating that in the good faith judgment of the Board of
Directors it would be seriously detrimental to the Company and its
stockholders for such Registration Statement (i) to be filed on or
before the date such filing would otherwise be required hereunder,
(ii) to become effective, or (iii) to remain effective as long as
such Registration Statement would otherwise be required to remain
effective, the Company shall have the right to defer such filing or
effectiveness or to suspend such effectiveness for a period of not
more than 120 days; provided that during such time the Company may
not file a Registration Statement for securities to be issued and
sold for its own account or that of anyone other than the Holder or
Holders requesting such Required Registration; and provided,
further, that if effectiveness of a Registration Statement is
suspended pursuant to this provision, the period of such suspension
shall be added to the end of the period that such Registration
Statement would otherwise be required to be effective hereunder so
that the aggregate number of days that such Registration Statement
is required to remain effective hereunder shall remain unchanged.
(b) Hold-Back Agreements.
(i) Restrictions on Public Sale By Holder of Registrable
Securities. Each Holder whose registrable securities are covered by
a Registration Statement filed pursuant to this Warrant agrees, if
requested by the managing underwriters in an underwritten offering,
not to effect any public sale or distribution of securities of the
Company of the same class as the securities included in such
Registration Statement, including a sale pursuant to Rule 144 under
the Securities Act (except as part of such underwritten
registration), during the 10-day period prior to, and during the
90-day period beginning on, the closing date of each underwritten
offering made pursuant to such Registration Statement, to the extent
timely notified in writing by the Company or the managing
underwriters; provided, however, that the holders of the Registrable
Securities will not be subject to the hold-back restrictions of this
Section if the Company and the other holders of the Company's equity
securities have not complied with the provisions of subsection (b)
below.
The foregoing provisions shall not apply to any Holder if such
Holder is prevented by applicable statute or regulation from
entering any such agreement; provided, however, that any such Holder
shall undertake, in its request to participate in any such
underwritten offering, not to effect any public sale of such
applicable class of registrable securities unless it has provided 45
days prior written notice of such sale or distribution to the
underwriter or underwriters.
(ii) Restrictions on Sale of Equity Securities by the Company
and Others. The Company agrees (1) not to effect any public or
private offer, sale or distribution of its equity securities,
including a sale pursuant to Regulation D under the Securities Act,
(i) during the 10-day period prior to, and during the 90-day period
beginning with, the effectiveness of a Registration Statement filed
under this Warrant to the extent timely notified in writing by a
holder of registrable securities or the managing underwriters
(except as part of such registration, if permitted, or pursuant to
registrations on Forms S-4 or S-8 or any successor form to such
Forms or the issuance of Common Stock pursuant to warrants or
employee stock options outstanding on the date hereof) and (2) to
use its best efforts to cause each holder of its privately placed
equity securities purchased from the Company at any time on or after
the date of this Agreement to agree not to effect any public sale or
distribution of any such securities during such period, including a
sale pursuant to Rule 144 under the Securities Act (except as part
of such registration, if permitted).
9.4 Incidental Registration. The rights of holders of Warrants and/or
Warrant Stock under this Section 9.4 shall become effective only on and after
the Exercise Date and shall expire on the Expiration Date. If the Company at
any time proposes to file on its behalf and/or on behalf of any of its security
holders ("the demanding security holders") a Registration Statement under the
Securities Act on any form (other than a Registration Statement required under
section 9.3 or a Registration Statement on Form S-4 or S-8 or any successor form
for securities to be offered in a transaction of the type referred to in Rule
145 under the Securities Act or to employees of the Company pursuant to any
employee benefit plan or to existing holders of the Company's debt or equity
securities in any exchange or rights offering, respectively) for the general
registration of securities to be sold for cash with respect to its Common Stock
or any other class of equity security (as defined in Section 3(a)(11) of the
Exchange Act) of the Company, it will give written notice to all holders of
Warrants or Warrant Stock at least 30 days before the initial filing with the
Commission of such Registration Statement, which notice shall set forth the
intended method of disposition of the securities proposed to be registered by
the Company. The notice shall offer to include in such filing the aggregate
number of shares of Warrant Stock, and the number of shares of Common Stock for
which this Warrant is exercisable, as such holders may request. Nothing herein
shall preclude the Company from discontinuing the registration of its securities
being effected on its behalf or on behalf of the demanding security holders at
any time prior to the effective date of the registration relating thereto.
Each holder of any such Warrants or any such Warrant Stock desiring
to have Warrant Stock registered under this Section 9.4 shall advise the Company
in writing within 30 days after the date of receipt of such offer from the
Company, setting forth the amount of such Warrant Stock for which registration
is requested. The Company shall thereupon include in such filing the number of
shares of Warrant Stock for which registration is so requested, subject to the
next sentence, and shall use its best efforts to effect registration under the
Securities Act of such shares. If the managing underwriter of a proposed public
offering shall advise the Company in writing that, in its opinion, the
distribution of the shares of Common Stock into which the Warrants are
exercisable and the Warrant Stock requested to be included in the registration
concurrently with the securities being registered by the Company or such
demanding security holder would materially and adversely affect the distribution
of such securities by the Company or such demanding security holder, then all
demanding security holders (other than any selling security holder who requested
such registration and the Company (unless such Registration Statement was filed
at the request of a demanding security holder)) shall reduce the amount of
securities each intended to distribute through such offering on a pro rata
basis. Except as otherwise provided in Section 9.6, all expenses of such
registration shall be borne by the Company.
9.5 Registration Procedures. If the Company is required by the
provisions of this Section 9 to use its best efforts to effect the registration
of any of its securities under the Securities Act, the Company will, as
expeditiously as possible:
(a) prepare and file with the Commission a Registration Statement
with respect to such securities and use its best efforts to cause such
Registration Statement to become and remain effective for a period of time
required for the disposition of such securities by the holders thereof;
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such Registration
Statement effective and to comply with the provisions of the Securities
Act with respect to the sale or other disposition of all securities
covered by such Registration Statement until the earlier of such time as
all of such securities have been disposed of in a public offering or the
expiration of 180 days;
(c) furnish to any selling security holders such number of copies
of a summary prospectus or other prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and
such other documents, as such selling security holders may reasonably
request;
(d) use its best efforts to register or qualify the securities
covered by such Registration Statement under such other securities or blue
sky laws of such jurisdictions within the United States and Puerto Rico as
each Holder of such securities shall reasonably request in light of such
Holder's intended plan of distribution (provided, however, the Company
shall not be obligated to qualify as a foreign corporation to do business
under the laws of any jurisdiction in which it is not then qualified or to
file any general consent to service of process or subject itself to
taxation in any such jurisdiction), and do such other reasonable acts and
things as may be required of it to enable such holder to consummate the
disposition in such jurisdiction of the securities covered by such
Registration Statement;
(e) if requested by a majority (in amount of underlying and
outstanding shares ) of the Holders of Warrants or Warrant Stock being
included in such registration, use its best efforts to obtain from either
a nationally recognized underwriter or investment banker or an underwriter
or investment banker reasonably acceptable to such Holders a firm
commitment (pursuant to an underwriting agreement in customary form) to
underwrite the public offering of the securities covered by such
Registration Statement;
(f) furnish, at the request of any holder requesting registration
of Warrant Stock pursuant to Section 9.3, on the date that such shares of
Warrant Stock are delivered to the underwriters for sale pursuant to such
registration or, if such Warrant Stock is not being sold through
underwriters, on the date that the Registration Statement with respect to
such shares of Warrant Stock becomes effective, (1) a copy of an opinion,
dated such date, of the independent counsel representing the Company for
the purposes of such registration, addressed to the underwriters, if any,
and to the holders making such request, stating that such Registration
Statement has become effective under the Securities Act and that (i) to
the best knowledge of such counsel, no stop order suspending the
effectiveness thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the Securities
Act, (ii) the Registration Statement, the related prospectus, and each
amendment or supplement thereto, comply as to form in all material
respects with the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder (except that such
counsel need express no opinion as to financial statements and data
contained therein), (iii) the descriptions in the Registration Statement
or the prospectus, or any amendment or supplement thereto, of all legal
matters and contracts and other legal documents or instruments are
accurate and fairly present the information required to be shown, and (iv)
such counsel does not know of any legal or governmental proceedings,
pending or contemplated, required to be described in the Registration
Statement or prospectus, or any amendment or supplement thereto, which are
not described as required, nor of any contracts or documents or
instruments of a character required to be described in the Registration
Statement or prospectus, or any amendment or supplement thereto, or to be
filed as exhibits to the Registration Statement which are not described
and filed or incorporated by reference as required; such counsel shall
also confirm that nothing has come to his attention to lead him to believe
that either the Registration Statement or the prospectus, or any amendment
or supplement thereto (other than financial material and data as to which
such counsel need make no statement) contains any untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which made, not misleading; and (2) a letter dated such
date, from the independent certified public accountants of the Company,
addressed to the underwriters, if any, and to the holder making such
request and, if such accountants refuse to deliver such letter to such
holder, then to the Company stating that they are independent certified
public accountants within the meaning of the Securities Act and that, in
the opinion of such accountants, the financial statements and other
financial data of the Company included in the Registration Statement or
the prospectus, or any amendment or supplement thereto, comply as to form
in all material respects with the applicable accounting requirements of
the Securities Act. Such opinion of counsel shall additionally cover such
other legal matters with respect to the registration in respect of which
such opinion is being given as the holders holding a majority of the
Warrant Stock so registered may reasonably request. Such letter from the
independent certified public accountants shall additionally cover such
other financial matters (including information as to the period ending not
more than five Business Days prior to the date of such letter) with
respect to the registration in respect of which such letter is being given
as the holders holding a majority of the Warrant Stock being so registered
may reasonably request;
(g) enter into customary agreements (including an underwriting
agreement in customary form) and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of the
securities covered by Registration Statement; and
(h) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, but not later than 18
months after the effective date of the Registration Statement, an earnings
statement covering the period of at least 12 months beginning with the
first full month after the effective date of such Registration Statement,
which earnings statements shall satisfy the provisions of Section 11(a) of
the Securities Act.
(i) notify each selling Holder of such registrable securities, at
any time when a prospectus relating thereto is required to be delivered
under the Securities Act, of the occurrence of an event requiring the
preparation of a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of the securities covered by the
Registration Statement, such prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading and promptly make available to each selling Holder any such
supplement or amendment.
It shall be a condition precedent to the obligation of the Company
to take any action pursuant to this Section 9 in respect of the securities which
are to be registered at the request of any holder of Warrants or Warrant Stock
that such holder shall furnish to the Company such information regarding the
securities held by such holder and the intended method of disposition thereof as
the Company shall reasonably request and as shall be required in connection with
the action taken by the Company.
Each selling Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in
Section 9.5(i) hereof, such selling Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement
covering the securities covered by the Registration Statement until such selling
Holder's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 9.5(i) hereof, and, if so directed by the Company such
selling Holder will deliver to the Company all copies, other than permanent file
copies then in such selling Holder's possession, of the most recent prospectus
covering the securities covered by Registration Statement at the time of receipt
of such notice. If the Company shall give such notice, the Company shall extend
the period during which such Registration Statement shall be maintained
effective by the number of days during the period from and including the date of
the giving of notice pursuant to Section 9.5(i) hereof to the date when the
Company shall make available to the selling Holders of the securities covered by
such Registration Statement a prospectus supplemented or amended to conform with
the requirements of Section 9.5(i) hereof.
9.6 Expenses; Limitations on Registration. All expenses incurred in
complying with Section 9, including, without limitation, all registration and
filing fees (including all expenses incident to filing with the NASD, printing
expenses, fees and disbursements of counsel for the Company, the reasonable fees
and expenses of one counsel for the selling security holders (selected by those
holding a majority of the shares being registered), expenses of any special
audits incident to or required by any such registration and expenses of
complying with the securities or blue sky laws of any jurisdictions pursuant to
Section 9.5(d), shall be paid by the Company, except that
(a) all such expenses in connection with any amendment or supplement
to the Registration Statement or prospectus filed more than 180 days after
the effective date of such Registration Statement because any holder of
Warrant Stock has not effected the disposition of the securities requested
to be registered shall be paid by such holder; and
(b) the Company shall not be liable for any fees, discounts or
commissions to any underwriter or any fees or disbursements of counsel for
any underwriter in respect of the securities sold by such holder of
Warrant Stock.
9.7 Indemnification.
(a) In the event of any registration of any of the Warrant Stock
under the Securities Act pursuant to this Section 9, the Company shall
indemnify and hold harmless the holder of such Warrant Stock, such
holder's directors and officers, and each other Person (including each
underwriter) who participated in the offering of such Warrant Stock and
each other Person, if any, who controls such holder or such participating
Person within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such holder or
any such director or officer or participating Person or controlling Person
may become subject under the Securities Act or any other statute or at
common law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any alleged
untrue statement of any material fact contained, on the effective date
thereof, in any Registration Statement under which such securities were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereto, or
(ii) any alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
and shall reimburse such Holder or such director, officer or participating
Person or controlling Person for any legal or any other expenses
reasonably incurred by such holder or such director, officer or
participating Person or controlling Person in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any alleged untrue statement or alleged
omission made in such Registration Statement, preliminary prospectus,
prospectus or amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by such holder
specifically for use therein or (in the case of any registration pursuant
to Section 9.3) so furnished for such purposes by any underwriter. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such holder or such director,
officer or participating Person or controlling Person, and shall survive
the transfer of such securities by such holder.
(b) Each holder of any Warrant Stock, by acceptance thereof, agrees
to indemnify and hold harmless the Company, its directors and officers and
each other Person, if any, who controls the Company within the meaning of
the Securities Act against any losses, claims, damages or liabilities,
joint or several, to which the Company or any such director or officer or
any such Person may become subject under the Securities Act or any other
statute or at common law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
information in writing provided to the Company by such Holder of such
Warrant Stock contained, on the effective date thereof, in any
Registration Statement under which securities were registered under the
Securities Act at the request of such holder, any preliminary prospectus
or final prospectus contained therein, or any amendment or supplement
thereto; provided, however, that such Holder's obligation under this
Section 9.7(b) to indemnify and hold harmless the Company shall in no
event exceed the damage attributable solely to the inclusion of such
written information in such Registration Statement, preliminary
prospectus, final prospectus, or amendment or supplement suffered by the
Person or Persons whose claims gave rise to such losses, claims, damages
or liabilities.
The Company shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in the distribution, to the same
extent as provided above with respect to information furnished in
writing by persons specifically for inclusion in any prospectus or
Registration Statement.
(c) If the indemnification provided for in this Section 9 from the
indemnifying party is unavailable to an indemnified party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred
to herein, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities
or expenses in such proportion as is appropriate to reflect the relative
fault of the indemnifying party and indemnified parties in connection with
the actions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The
relative fault of such indemnifying party and indemnified parties shall be
determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such action. The
amount paid or payable by a party under this Section 9 as a result of the
losses, claims, damages, liabilities and expenses referred to above shall
be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 9.7(c) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
Notwithstanding any other provisions of this Warrant, the Company
shall not be liable in any case to the extent that any loss, claim, damage,
liability or expense arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission in any Registration
Statement or prospectus, if such untrue statement or alleged untrue statement,
omission or alleged omission is corrected in an amendment or supplement to the
Registration Statement and the Holder thereafter fails to deliver such
Registration Statement or prospectus as so amended or supplemented prior to or
concurrently with the sale of the securities covered by such Registration
Statement to the person asserting such loss, claim, damage, liability or expense
after the Company had furnished such Holder with a sufficient number of copies
of the same.
9.8 Termination of Restrictions. Notwithstanding the foregoing
provisions of Section 9, the restrictions imposed by this Section upon the
transferability after the Exercise Date of the Warrants and the Warrant Stock
and the legend requirements of Section 9.1 shall terminate as to any particular
Warrant or share of Warrant Stock (i) when and so long as such security shall
have been effectively registered under the Securities Act and disposed of
pursuant thereto or (ii) when the Company shall have received an opinion of
counsel reasonably satisfactory to it that such legend is not required in order
to ensure compliance with the Securities Act. Whenever after the Exercise Date
the restrictions imposed by Section 9 shall terminate as to this Warrant, as
hereinabove provided, the Holder hereof shall be entitled to receive from the
Company, at the expense of the Company, a new Warrant bearing the following
legend in place of the restrictive legend set forth hereon:
"THE RESTRICTIONS ON TRANSFERABILITY OF THE WITHIN WARRANT
CONTAINED IN SECTION 9 HEREOF TERMINATED ON ,
, AND ARE OF NO FURTHER FORCE AND EFFECT."
All Warrants thereafter issued upon registration of transfer, division or
combination of, or in substitution for, any Warrant or Warrants entitled to bear
such legend shall have a similar legend endorsed thereon. Whenever the
restrictions imposed by this Section shall terminate as to any share of Warrant
Stock, as hereinabove provided, the holder thereof shall be entitled to receive
from the Company, at the Company's expense, a new certificate representing such
Warrant Stock not bearing the restrictive legend set forth in Section 9.1(a).
9.9 Listing on Securities Exchange. If and so long as the Company shall
list any shares of Common Stock on NASDAQ or any securities exchange, it will,
at its expense, list thereon, maintain and, when necessary, increase such
listing of, all shares of Common Stock issued or, to the extent permissible
under the applicable NASDAQ or securities exchange rules, issuable upon the
exercise of this Warrant so long as any shares of Common Stock shall be so
listed during any such Exercise Period.
9.10 Certain Limitations on Registration Rights. Notwithstanding the
other provisions of Section 9:
(i) the Company shall not be obligated to register the Warrant
Stock of any Holder if (x) in the opinion of counsel to the Company
reasonably satisfactory to the Holder and its counsel (or, if the
Holder has engaged an investment banking firm, to such investment
banking firm and its counsel), the sale or other disposition of such
Holder's Warrant Stock, in the manner proposed by such Holder (or by
such investment banking firm), may be effected without registering
such Warrant Stock under the Securities Act, and (y) the failure of
the Company to register such Warrant Stock will not result in a
reduction in the net proceeds to be received by such Holder in
connection with such sale or other disposition; and
(ii) the Company shall not be obligated to register the Warrant
Stock of any Holder pursuant to Section 9.3, if the Company has had
a registration statement, under which such Holder had a right to
have its Warrant Stock included pursuant to Sections 9.3 or 9.4,
declared effective within one year prior to the date of the request
pursuant to Section 9.3; provided, however, that if any Holder
elected to have shares of its Warrant Stock included under such
registration statement but some or all of such shares were excluded
pursuant to the penultimate sentence of Sections 9.3 or 9.4, then
such one-year period shall be reduced to six months.
9.11 Selection of Managing Underwriters. The managing underwriter or
underwriters for any offering of Warrant Stock to be registered pursuant to
Section 9.3 shall be selected by the Company and shall be reasonably acceptable
to the Holders of a majority of the shares being so registered (other than any
shares being registered pursuant to Section 9.4).
10. SUPPLYING INFORMATION
The Company shall cooperate with each Holder of a Warrant and each holder
of Warrant Stock in supplying such information as may be reasonably necessary
for such Holder to complete and file any information reporting forms presently
or hereafter required by the Commission as a condition to the availability of an
exemption from the Securities Act for the sale of any Warrant or Restricted
Common Stock.
11. LOSS OR MUTILATION
Upon receipt by the Company from any Holder of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or
mutilation of this Warrant and indemnity reasonably satisfactory to it (it being
understood that the written agreement of GE Medical shall be sufficient
indemnity) and in case of mutilation upon surrender and cancellation hereof, the
Company will execute and deliver in lieu hereof a new Warrant of like tenor to
such Holder; provided, in the case of mutilation, no indemnity shall be required
if this Warrant in identifiable form is surrendered to the Company for
cancellation.
12. OFFICE OF THE COMPANY
As long as any of the Warrants remain outstanding, the Company shall
maintain an office or agency (which may be the principal executive offices of
the Company) where the Warrants may be presented for exercise, registration of
transfer, division or combination as provided in this warrant. The Company
shall notify Holder in writing prior to any change of the address of the office
at which the Warrants may be presented.
13. FINANCIAL AND BUSINESS INFORMATION
13.1 Information. Except during any period when the Company is a Public
Company (as hereinafter defined), it will deliver to each Holder, as soon as
practicable after the end of each month, and in any event within 30 days
thereafter, and after the end of each quarter and in any event within 45 days
thereafter, one copy of an unaudited consolidated balance sheet, statement of
income and statement of cash flow of the Company and its Subsidiaries for such
period setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal years. Such financial statements
shall be prepared by the Company in accordance with GAAP and shall be
accompanied by the certification of the Company's chief executive officer or
chief financial officer that such financial statements are complete and correct
and present fairly the consolidated financial position, results of operations
and cash flow of the Company and its Subsidiaries as at the end of such period
and for such year-to-date period, as the case may be.
For purposes of this Section 13, the term "Public Company" shall
mean a company (i) that is subject to the reporting requirements of Section
15(d) of the Exchange Act, or (ii) any of whose securities are registered
pursuant to Section 12(b) or 12(g) of the Exchange Act.
13.2 Annual Information. Except during any period when the Company is a
Public Company, it will deliver to each Holder as soon as practicable after the
end of each fiscal year of the Company, and in any event within 90 days
thereafter, one copy of:
(i) an audited consolidated balance sheet of the Company and
its Subsidiaries as at the end of such year, and
(ii) audited consolidated statements of income and retained
earnings and cash flow of the Company and its Subsidiaries for such
year;
setting forth in each case in comparative form the figures for the corresponding
periods in the previous fiscal year; all prepared in accordance with GAAP, and
which audited financial statements shall be accompanied by (i) an opinion
thereon of the independent certified public accountants regularly retained by
the Company, or any other firm of independent certified public accountants of
recognized national standing selected by the Company and (ii) a report of such
independent certified public accountants confirming, or describing the agreed
upon procedures applied to the Company's schedules computing, any adjustment,
made pursuant to Section 4 during such year. Such report shall include a
description of any errors determined by the accountants in the Company's
schedules.
13.3 Filings. The Company will file on or before the required date all
required regular or periodic reports (pursuant to the Exchange Act) with the
Commission and will deliver to Holder promptly upon their becoming available one
copy of each report, notice or proxy statement sent by the Company to its
stockholders generally, and of each regular or periodic report (pursuant to the
Exchange Act) and any Registration Statement, prospectus or written
communication (other than transmittal letters) pursuant to the Securities Act,
filed by the Company with (i) the Commission or (ii) any securities exchange on
which shares of Common Stock are listed (provided, however, that the Company may
request filing extensions pursuant to Rule 12b-25 under the Securities and
Exchange Act of 1934, as amended).
14. APPRAISAL
The determination of the Appraised Value per share of Common Stock shall
be made by an investment banking firm of nationally recognized standing selected
by the Company and acceptable to the Holder. If the investment banking firm
selected by the Company is not acceptable to the Holder and the Company and the
Holder cannot agree on a mutually acceptable investment banking firm, then the
Holder and the Company shall each choose one such investment banking firm and
the respective chosen firms shall agree on another investment banking firm which
shall make the determination. The Company shall retain, at its sole cost, such
investment banking firm as may be necessary for the determination of Appraised
Value1 required by the terms of this Warrant.
15. LIMITATION OF LIABILITY
No provision hereof, in the absence of affirmative action by the Holder to
purchase shares of Common Stock, and no enumeration herein of the rights or
privileges of Holder hereof, shall give rise to any liability of such Holder for
the purchase price of any Common Stock or as a stockholder of the Company,
whether such liability is asserted by the Company or by creditors of the
Company.
16. MISCELLANEOUS
16.1 Nonwaiver and Expenses. No course of dealing or any delay or
failure to exercise any right hereunder on the part of the Company shall operate
as a waiver of such right or otherwise prejudice the Company's rights, powers or
remedies. No course of dealing or any delay or failure to exercise any right
hereunder on the part of the Holder shall operate as a waiver of such right or
otherwise prejudice the Holder's rights, powers or remedies. If the Company
fails to make, when due, any payments provided for hereunder, or fails to comply
with any other provision of this Warrant, the Company shall pay to the Holder
such amounts as shall be sufficient to cover any costs and expenses including,
but not limited to, reasonable attorneys' fees, including those of appellate
proceedings, incurred by the Holder in collecting any amounts due pursuant
hereto or in otherwise enforcing any of its rights, powers or remedies
hereunder.
16.2 Notice Generally. Any notice, demand, request, consent, approval,
declaration, delivery or other communication hereunder to be made pursuant to
the provisions of this Warrant shall be sufficiently given or made if in writing
and either delivered (i) in person with receipt acknowledged, (ii) by facsimile
transmission, with receipt electronically confirmed during normal business hours
of recipient, and that is confirmed by sending, no later than one (1) Business
Day following such transmission, a copy of such facsimile, by registered or
certified mail, return receipt requested, postage prepaid, or (iii) by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
(a) If to any Holder or holder of Warrant Stock, at its last known
address or facsimile transmission number appearing on the books of the
Company maintained for such purpose.
(b) If to the Company at
Medical Imaging Centers of America, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
(000) 000-0000
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval declaration, delivery or other communication hereunder shall
be deemed to have been duly given or served on the date on which personally
delivered, with receipt acknowledged or sent by facsimile with receipt
electronically confirmed during normal business hours of recipient, or three (3)
Business Days after the same shall have been deposited in the United States
mail. Failure or delay in delivering copies of any notice, demand, request,
approval, declaration, delivery or other communication to the person designated
above to receive a copy shall in no way adversely affect the effectiveness of
such notice, demand, request, approval, declaration, delivery or other
communication.
16.3 Indemnification. In addition to the indemnities provided in Section
9.7 (as to the subject matter of which the indemnifications, including
limitations, therein, shall control), the Company agrees to indemnify and hold
harmless the Holder, its officers, directors, employees, agents, and attorneys
from and against any liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, attorneys' fees, expenses and
disbursements of any kind which may be imposed upon, incurred by or asserted
against Holder relating to or arising out of (i) Holder's exercise of this
Warrant and/or ownership of any shares of Warrant Stock issued in consequence
thereof, or (ii) any litigation to which the Holder is made a party in its
capacity as a stockholder or warrant holder of the Company; provided, however,
that the Company will not be liable hereunder to the extent that any
liabilities, obligation, losses, damages, penalties, actions, judgments, suits,
claims, costs, attorneys' fees, expenses or disbursements are found in a final
nonappealable judgment by a court to have resulted from either (i) the Holder's
gross negligence or willful misconduct, or (ii) actions or omissions taken or
not taken by the Holder in any capacity other than as a stockholder or warrant
holder of the Company.
16.4 Remedies. Each holder of Warrant and Warrant Stock, in addition to
being entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under Section 9
of this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of Section 9 of this Warrant and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
16.5 Successors and Assigns. Subject to the provisions of Sections 3.1
and 9, this Warrant and the rights evidenced hereby shall inure to the benefit
of and be binding upon the successors of the Company and the successors and
assigns of Xxxxxx. The provisions of this Warrant are intended to be for the
benefit of all Holders from time to time of this Warrant, and shall be
enforceable by any such Holder.
16.6 Amendment. This Warrant and all other Warrants may be modified or
amended or the provisions hereof waived with the written consent of the Company
and the Holder, provided that no such Warrant may be modified or amended to
reduce the number of shares of Common Stock for which such Warrant is
exercisable or to increase the price at which such shares may be purchased upon
exercise of such Warrant (before giving effect to any adjustment as provided
therein) without the prior written consent of the Holder thereof.
16.7 Severability. Wherever possible, each provision of this Warrant
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Warrant.
16.8 Headings. The headings used in this Warrant are for the convenience
of reference only and shall not, for any purpose, be deemed a part of this
Warrant.
16.9 Governing Law; Service of Process. In all respects, including all
matters of construction, validity and performance, this Agreement and the
obligations arising hereunder shall be governed by, and construed and enforced
in accordance with, the laws of the state of the Company's incorporation
applicable to contracts made and performed in such state, without regard to the
principles thereof regarding conflict of laws, and any applicable laws of the
United States of America. Service of process on the Company or Holder in any
action arising out of or relating to this Agreement shall be effective if mailed
to such party in accordance with the procedures and requirements set forth in
Section 16.2.
16.10 MUTUAL WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION
WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED
BY AN EXPERIENCED AND EXPERT PERSON AND THE COMPANY AND HOLDER HEREOF WISH
APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE
COMPANY AND HOLDER HEREOF DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE
APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE
BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE COMPANY AND HOLDER
HEREOF WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION.
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed and its corporate seal to be impressed hereon and attested by its
Secretary or an Assistant Secretary.
MEDICAL IMAGING CENTERS OF AMERICA, INC.
By:
Name:
Title:
Attest:
Name:
Title:
EXHIBIT A
SUBSCRIPTION FORM
[To be executed only upon exercise of Warrant)
The undersigned registered owner of the attached Warrant irrevocably
exercises such Warrant for the purchase of Shares of Common Stock of
Medical Imaging Centers of America, Inc. and herewith makes payment therefor,
all at the price and on the terms and conditions specified in such Warrant and
requests that certificates for the shares of Common Stock hereby purchased (and
any securities or other property issuable upon such exercise) 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 such 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.
Name of Registered Owner)
(Signature of Registered Owner)
(Street Address)
(City) (State) (Zip Code)
NOTICE: The signature on this subscription must correspond
with the name as written upon the face of the attached Warrant
in every particular, without alteration or enlargement or any
change whatsoever.
EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned registered owner of the attached Warrant
hereby sells, assigns and transfers unto the Assignee named below all of the
rights of the undersigned under such Warrant, with respect to the number of
shares of Common Stock set forth below:
Name and Address of Assignee No. of Shares of
Common Stock
and does hereby irrevocably constitute and appoint
attorney-in-fact to register such transfer on the books of
Medical Imaging Centers of America, Inc. maintained for the purpose, with full
power of substitution in the premises.
Dated: Print Name:
Signature:
Witness:
NOTICE: The signature on this assignment must correspond with the name as
written upon the face of the attached Warrant in every particular,
without alteration or enlargement or any change whatsoever.
MEDICAL IMAGING CENTERS OF AMERICA, INC.
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT
May 27, 1993
TABLE OF CONTENTS
Page
1. DEFINITIONS................................. 1
2. EXERCISE OF WARRANT......................... 5
2.1 Manner of Exercise.................... 5
2.2 Payment of Taxes...................... 6
2.3 Fractional Shares..................... 7
2.4 Continued Validity.................... 7
3. TRANSFER, DIVISION AND COMBINATION.......... 7
3.1 Transfer.............................. 7
3.2 Division and Combination.............. 8
3.3 Expenses.............................. 8
3.4 Maintenance of Books.................. 8
4. ADJUSTMENTS................................. 8
4.1 Stock Dividends, Subdivisions,
Combinations and Reclassifications.... 8
4.2 Other Provisions Applicable to
Adjustments under this Section........ 9
5. NOTICES TO WARRANT HOLDERS.................. 10
5.1 Notice of Adjustments................. 10
5.2 Notice of Certain Corporate Action.... 10
6. NO IMPAIRMENT............................... 10
7. RESERVATION AND AUTHORIZATION OF COMMON
STOCK; REGISTRATION WITH OR APPROVAL OF
ANY GOVERNMENTAL AUTHORITY.................. 11
8. TAKING OF RECORD; STOCK AND WARRANT
TRANSFER BOOKS.............................. 11
9. RESTRICTIONS ON TRANSFERABILITY............. 12
9.1 Restrictive Legend.................... 12
9.2 Notice of Proposed Transfers;
Requests for Registration............ 13
9.3 Required Registration................. 14
9.4 Incidental Registration............... 16
9.5 Registration Procedures............... 17
9.6 Expenses; Limitations on Registration. 21
9.7 Indemnification....................... 22
9.8 Termination of Restrictions........... 24
9.9 Listing on Securities Exchange........ 25
9.10 Certain Limitations on Registration
Rights................................ 25
9.11 Selection of Managing Underwriters.... 26
Page
10. SUPPLYING INFORMATION....................... 26
11. LOSS OR MUTILATION.......................... 26
12. OFFICE OF THE COMPANY....................... 26
13. FINANCIAL AND BUSINESS INFORMATION.......... 27
13.1 Information............................ 27
13.2 Annual Information..................... 27
13.3 Filings................................ 28
14. APPRAISAL................................... 28
15. LIMITATION OF LIABILITY..................... 28
16. MISCELLANEOUS............................... 28
16.1 Nonwaiver and Expenses................ 28
16.2 Notice Generally...................... 29
16.3 Indemnification....................... 30
16.4 Remedies.............................. 30
16.5 Successors and Assigns................ 30
16.6 Amendment............................. 30
16.7 Severability.......................... 31
16.8 Headings.............................. 31
16.9 Governing Law; Service of Process..... 31
16.10 Mutual Waiver of Jury Trial........... 31
