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Exhibit 3.8
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This Warrant and any shares acquired upon exercise of this Warrant have not been
registered under the Securities Act of l933, as amended, or any applicable state
securities laws, and may not be sold or transferred unless such sale or transfer
is in accordance with the registration requirements of such Act and applicable
laws or some other exemption from the registration requirements of such Act and
applicable laws is available with respect thereto.
COMMON STOCK PURCHASE WARRANT
to Purchase 50,000 shares of
Common Stock, par value $.01 per share,
of
AMERIGROUP Corporation
Void after , 2003
Warrant No. ____
1. Issuance. This Warrant is issued to Silicon Valley Bank by AMERIGROUP
Corporation, a Delaware corporation (hereinafter with its successors called the
"Company").
2. Purchase Price; Number of Shares. Subject to the terms and conditions
hereinafter set forth, the registered holder of this Warrant (the "Holder"),
commencing on the date hereof, is entitled upon surrender of this Warrant with
the subscription form annexed hereto duly executed, at the office of the
Company, 0000 Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxxx, XX 00000, or such other office
as the Company shall notify the Holder of in writing, to purchase from the
Company at a price per share (the "Purchase Price") of $0.70, fifty thousand
(50,000) fully paid and nonassessable shares of Common Stock, par value $.01 per
share, of the Company (the "Common Stock"); provided that such Purchase Price
shall be adjusted such that it is equal to the exercise price which would be
applicable to "incentive" stock options granted under the Company's 1994 Stock
Option Plan (or any successor plan) on the respective date or dates this Warrant
is exercised, irrespective of whether any such options are actually granted on
such date or dates; provided, further, that in no event shall the Purchase Price
exceed $1.50 or be less than $0.01. Until such time as this Warrant is exercised
in full or expires, the Purchase Price and the securities issuable upon exercise
of this Warrant are subject to adjustment as herein provided.
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3. Payment of Purchase Price; Net Issue Election. The Purchase Price may
be paid (i) in cash or by check, (ii) if approved by the Board of Directors of
the Company (the "Board"), by the surrender by the Holder to the Company of any
promissory notes or other obligations issued by the Company, with all such notes
and obligations so surrendered being credited against the Purchase Price in an
amount equal to the principal amount thereof plus accrued interest to the date
of surrender, (iii) if approved by the Board, through delivery by the Holder to
the Company of other securities issued by the Company (provided such securities
have been held by Holder for at least 6 months prior to surrender), with such
securities being credited against the Purchase Price in an amount equal to the
fair market value thereof, as determined in accordance with the provisions of
this Section 3, or (iv) if approved by the Board, by any combination of the
foregoing. The Board shall promptly respond in writing to an inquiry by the
Holder as to the fair market value of any securities the Holder may wish to
deliver to the Company pursuant to clause (iii) above.
The Holder may elect to receive, without the payment by the Holder of any
additional consideration, shares of Common Stock equal to the value of this
Warrant or any portion hereof by the surrender of this Warrant or such portion
to the Company, with the net issue election notice annexed hereto duly executed,
at the office of the Company. Thereupon, the Company shall issue to the Holder
such number of fully paid and nonassessable shares of Common Stock as is
computed using the following formula:
X = Y (A-B)
-------
A
where X = the number of shares to be issued to the Holder pursuant to
this second paragraph of Section 3.
Y = the number of shares covered by this Warrant in respect of
which the net issue election is made pursuant to this second
paragraph of Section 3.
A = the fair market value of one share of Common Stock, as
determined in accordance with the provisions of this Section
3.
B = the Purchase Price in effect under this Warrant at the time
the net issue election is made pursuant to this second
paragraph of Section 3.
For purposes of this Section 3, the "fair market value" per share of the
Company's Common Stock shall mean:
(a) If the Company's Common Stock is traded on a national
securities exchange or quoted on a national quotation system, the
closing price of such Common Stock on the last trading day prior to the
date on which the net issue election is made; or
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(b) In all other cases, as determined by the Board in good
faith.
4. Partial Exercise. This Warrant may be exercised in part, and the Holder
shall be entitled to receive a new warrant, which shall be dated as of the date
of this Warrant, covering the number of shares in respect of which this Warrant
shall not have been exercised.
5. Issuance Date. The person or persons in whose name or names any
certificate representing shares of Common Stock is issued hereunder shall be
deemed to have become the holder of record of the shares represented thereby as
at the close of business on the date this Warrant is exercised with respect to
such shares, whether or not the transfer books of the Company shall be closed.
6. Expiration Date. This Warrant shall expire at the close of business on
, 2003, and shall be void thereafter.
7. Reserved Shares; Valid Issuance. The Company covenants that it will at
all times from and after the date hereof reserve and keep available such number
of its authorized shares of Common Stock, free from all preemptive or similar
rights therein, as will be sufficient to permit the exercise of this Warrant in
full. The Company further covenants that such shares as may be issued pursuant
to the exercise of this Warrant will, upon issuance, be duly and validly issued,
fully paid and nonassessable and free from all taxes, liens and charges with
respect to the issuance thereof.
8. Dividends. If after the Original Issue Date (as defined in Section 12
hereof) the Company shall subdivide the Common Stock, by split-up or otherwise,
or combine the Common Stock, or issue additional shares of Common Stock in
payment of a stock dividend on the Common Stock, the number of shares issuable
on the exercise of this Warrant shall forthwith be proportionately increased in
the case of a subdivision or stock dividend, or proportionately decreased in the
case of a combination, and the Purchase Price shall forthwith be proportionately
decreased in the case of a subdivision or stock dividend, or proportionately
increased in the case of a combination.
9. Mergers and Reclassifications. If after the Original Issue Date there
shall be any reclassification, capital reorganization or change of the Common
Stock (other than as a result of a subdivision, combination or stock dividend
provided for in Section 8 hereof), or any consolidation of the Company with, or
merger of the Company into, another corporation or other business organization
(other than a consolidation or merger in which the Company is the continuing
corporation and which does not result in any reclassification or change of the
outstanding Common Stock), or any sale or conveyance to another corporation or
other business organization of all or substantially all of the assets of the
Company, then, as a condition of such reclassification, reorganization, change,
consolidation, merger, sale or conveyance, lawful provisions shall be made, and
duly executed documents evidencing the same from the Company or its successor
shall be delivered to the Holder, so that the Holder shall thereafter have the
right to purchase, at a total price not to exceed that payable upon the exercise
of this Warrant in full, the kind and amount of shares of stock and other
securities and property receivable upon such reclassification, reorganization,
change, consolidation, merger, sale or conveyance by a holder of the number of
shares of Common Stock which might have been purchased by the Holder immediately
prior to such reclassification, reorganization, change, consolidation, merger,
sale or conveyance, and in any such case appropriate provisions shall be made
with respect to the rights and interest of the Holder to the end that the
provisions hereof (including without limitation, provisions for the adjustment
of the Purchase
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Price and the number of shares issuable hereunder) shall thereafter be
applicable in relation to any shares of stock or other securities and property
thereafter deliverable upon exercise hereof.
10. Fractional Shares. In no event shall any fractional share of Common
Stock be issued upon any exercise of this Warrant. If, upon exercise of this
Warrant as an entirety, the Holder would, except as provided in this Section 10,
be entitled to receive a fractional share of Common Stock, then the Company
shall issue the next higher number of full shares of Common Stock, issuing a
full share with respect to such fractional share.
11. Notices of Record Date, Etc. In the event of:
(a) any taking by the Company of a record of the holders of
any class of securities for the purpose of determining the holders thereof
who are entitled to receive any dividend or other distribution, or any
right to subscribe for, purchase or otherwise acquire any shares of stock
of any class or any other securities or property, or to receive any other
right,
(b) any reclassification of the capital stock of the
Company, capital reorganization of the Company, consolidation or merger
involving the Company, or sale or conveyance of all or substantially all
of its assets, or
(c) any voluntary or involuntary dissolution, liquidation
or winding-up of the Company,
then and in each such event the Company will mail or cause to be mailed to the
Holder a notice specifying (i) the date on which any such record is to be taken
for the purpose of such dividend, distribution or right, and stating the amount
and character of such dividend, distribution or right, or (ii) the date on which
any such reclassification, reorganization, consolidation, merger, sale or
conveyance, dissolution, liquidation or winding-up is to take place, and the
time, if any is to be fixed, as of which the holders of record in respect of
such event are to be determined. Such notice shall be mailed at least 20 days
prior to the date specified in such notice on which any such action is to be
taken.
12. Loan and Security Agreement. This Warrant was originally issued by the
Company on ____________, 1998 (the "Original Issue Date") pursuant to a Loan and
Security Agreement, dated _________, 1998, by and between the Company and the
initial Holder hereof.
13. Amendment. The terms of this Warrant may be amended, modified or
waived only with the written consent of the Company and the Holder hereof.
14. Warrant Register; Transfers, Etc.
A. The Company will maintain a register containing the
names and addresses of the registered holder or holders of the Warrant.
The Holder may change its address as shown on the warrant register by
written notice to the Company requesting such change. Any notice or
written communication required or permitted to be given to the Holder may
be given by certified mail or delivered to the Holder at its address as
shown on the warrant register.
B. This Warrant is not transferable except as follows:
Subject to compliance with applicable
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federal and state securities laws, Holder may transfer all or part of this
Warrant to Silicon Valley Bancshares, The Silicon Valley Bank Foundation,
or any of Holder's affiliates, including wholly-owned subsidiaries, at any
time without notice to the Company. Upon any such transfer, the transferee
shall be deemed to be a "Holder" for the purposes of this Warrant. Upon
surrender of this Warrant to the Company, together with the assignment
hereof properly endorsed, for transfer of this Warrant as an entirety by
the Holder, the Company shall issue a new warrant of the same denomination
to the assignee. Upon surrender of this Warrant to the Company, together
with the assignment hereof properly endorsed, by the Holder for transfer
with respect to a portion of the shares of Common Stock purchasable
hereunder, the Company shall issue a new warrant to the assignee, in such
denomination as shall be requested by the Holder hereof, and shall issue
to such Holder a new warrant covering the number of shares in respect of
which this Warrant shall not have been transferred.
C. In case this Warrant shall be mutilated, lost, stolen or
destroyed, the Company shall issue a new warrant of like tenor and
denomination and deliver the same (i) in exchange and substitution for and
upon surrender and cancellation of any mutilated Warrant, or (ii) in lieu
of any Warrant lost, stolen or destroyed, upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft or destruction
of such Warrant (including a reasonably detailed affidavit with respect to
the circumstances of any loss, theft or destruction) and of indemnity
reasonably satisfactory to the Company.
15. No Impairment. The Company will not, by amendment of its Certificate
of Incorporation, as amended, or through any reclassification, capital
reorganization, consolidation, merger, sale or conveyance of assets,
dissolution, liquidation, issue or sale of securities or any other voluntary
action, avoid or seek to avoid the observance or performance of any of the terms
of this Warrant, but will at all times in good faith assist in the carrying out
of all such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holder.
16. Holder's Representations and Warranties. By acceptance of this
Warrant, Holder represents and warrants to the Company as follows:
(a) This Warrant is being acquired for Holder's own account, for
investment and not with a view to, or for resale in connection with, any
distribution or public offering thereof within the meaning of the Act, and
the Holder has no present intention of engaging in any public distribution
thereof pursuant to a registration or exemption.
(b) Holder understands that the Warrant and the Shares have not
been registered under the Act by reason of their issuance in a transaction
exempt from the registration and prospectus delivery requirements of the
Act pursuant to Section 4(2) thereof, and that they must be held by Holder
indefinitely, and the Holder must therefore bear the economic risk of such
investment indefinitely, unless a subsequent disposition thereof is
registered under the Act or is exempted from such registration. The Holder
further understands that the Shares have not been qualified under the
California Securities Law of 1968 (the "California Law") by reason of
their issuance in a transaction exempt from the qualification requirements
of the California Law pursuant to Section 25102(f) thereof, which
exemption depends upon, among other things, the bona fide nature of the
Holder's investment intent expressed above.
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(c) The Holder has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
the purchase of this Warrant and the Shares purchasable pursuant to the
terms of this Warrant and of protecting its interests in connection
therewith.
(d) The Holder is able to bear the economic risk of the purchase
of the Shares pursuant to the terms of this Warrant.
17. Governing Law. The provisions and terms of this Warrant shall be
governed by and construed in accordance with the internal laws of the State of
Delaware.
18. Successors and Assigns. This Warrant shall be binding upon the
Company's successors and assigns and shall inure to the benefit of the Holder's
successors, legal representatives and permitted assigns.
19. Business Days. If the last or appointed day for the taking of any
action required or the expiration of any right granted herein shall be a
Saturday or Sunday or a legal holiday in Virginia Beach, Virginia, then such
action may be taken or right may be exercised on the next succeeding day which
is not a Saturday or Sunday or such a legal holiday.
20. Notices. All notices required to be delivered by the Company to Holder
shall be made as follows:
Silicon Valley Bank
Treasury Department
0000 Xxxxxx Xxxxx
XX XX 000
Xxxxx Xxxxx, XX 00000
Dated:_______________, 1998 AMERIGROUP CORPORATION
(Corporate Seal) By: _________________________________
Name: Xxxxxxx Xxxxxxx
Title: Secretary
Attest:
___________________________
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[FORM OF SUBSCRIPTION]
(TO BE SIGNED ONLY ON EXERCISE OF WARRANT)
To: AMERIGROUP Corporation Date:_________________________
The undersigned hereby irrevocably elects to exercise this Warrant for,
and to purchase and subscribe for, __________ shares of Common Stock of
AMERIGROUP Corporation covered by this Warrant. The undersigned herewith makes
payment of $___________ thereof. The certificate(s) for such shares shall be
issued in the name of the undersigned or as otherwise indicated below:
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Signature (must conform to name of Holder as
specified on the face of the Warrant)
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Name for Registration
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Mailing Address
Fed Tax ID # __________________
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[FORM OF ASSIGNMENT]
(TO BE SIGNED ONLY ON TRANSFER OF WARRANT)
For value received the undersigned hereby sells,
assigns and transfers unto ______________________________________
________________________________________________________________________________
Please print or typewrite name and address of Assignee and include Fed Tax ID #
of Assignee
________________________________________________________________________________
the within Warrant, and does hereby irrevocably constitute and appoint
_______________________ its attorney to transfer the within Warrant on the books
of the within named Company with full power of substitution on the premises.
Dated:_______________________
______________________________
(Signature must conform to name of holder as
specified on the face of the Warrant)
Signed in the Presence of:
______________________________
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[FORM OF NET ISSUE ELECTION]
(TO BE SIGNED ONLY ON NET ISSUE EXERCISE OF THE WARRANT)
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise this Warrant with respect to ____________ shares of Common
Stock of AMERIGROUP Corporation pursuant to the net issuance provisions set
forth in Section 3 of this Warrant, and requests that the certificates for the
number of shares of Common Stock issuable pursuant to said Section 3 after
application of the net issuance formula to such _________ shares be issued in
the name of, and delivered to __________, federal taxpayer identification number
____________, whose address is _______________.
Dated:
(Signature must conform to name of holder
as specified on the face of the Warrant)
(Address)
