Exhibit 4.13
STOCK PURCHASE AGREEMENT
Medix Resources, Inc. ______ __, 2003
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxx
President & CEO
Ladies and Gentlemen:
1. The undersigned (the "Purchaser") hereby agrees to purchase from the
Company (as hereinafter defined) ______ Units, each unit (a "Unit") consisting
of ten shares ("Shares") of the common stock, par value $.001 per share (the
"Common Stock"), of Medix Resources, Inc. ("Medix" or the "Company") and five
Warrants (a "Warrant"). Each Warrant will entitle the Purchaser to purchase one
Share of the Common Stock at a purchase price of $0.30 per Share for a five-year
period commencing on January 1, 2004 and ending on December 31, 2008. The
purchase price per Unit shall be $2.00. Upon execution of this Stock Purchase
Agreement by both parties, the Purchaser will transmit the aggregate purchase
price of $ _________ to the Company and, upon confirmation that such funds have
cleared, the Company will deliver to Purchaser a stock certificate evidencing
the Shares and a certificate (the "Warrant Certificate") evidencing the Warrants
in the form attached hereto as Exhibit A. If the closing or last price of the
Common Stock as reported on the American Stock Exchange or other recognized
exchange or quotation system is $4.00 or above for ten consecutive trading days
after January 1, 2004, the Company, at its option, may, upon thirty (30) days
prior notice to the Holder, re-purchase the Warrants from the Holder, at a
re-purchase price of $.01 per Warrant, if they are not exercised within such
30-day period or prior to the end of the five-year exercise period of the
Warrants, whichever is shorter. The Warrants provide for their mandatory
exercise or cancellation in the event that the Company enters into certain
business combinations.
2. The Purchaser understands and acknowledges that the offering of the
Units is being conducted as a private placement of such securities pursuant to
Rule 506 of Regulation D promulgated under the Securities Act of 1933, as
amended (the "Act"), by the U.S. Securities and Exchange Commission ("SEC"),
based in part upon the representations of Purchaser herein, and the Purchaser
confirms to the Company that the Purchaser is an "accredited investor," as set
forth in the Purchaser Questionnaire for Investors provided to the Company.
3. The Purchaser represents and warrants that (i) the Purchaser's
address for shareholder communication purposes and for compliance with state
securities laws is: ________________ _____________________, and (ii) the
Purchaser has all the power and authority necessary to enter into this Stock
Purchase Agreement and to perform its obligations hereunder, none of which
conflict with any rule, regulation, judgment, or agreement applicable to the
Purchaser.
4. Medix and Cymedix Lynx Corporation ("Cymedix") are each a
corporation duly organized, validly existing and in good standing under the laws
of the State of Colorado. Each
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has all requisite material corporate power and authority to own and operate its
properties and assets and to carry on its business as presently conducted and as
presently proposed to be conducted. Medix has all requisite material corporate
power to execute and deliver this Agreement, to issue and sell the Shares and
Warrants and to carry out the provisions of this Agreement. Medix and Cymedix
are duly qualified and authorized to do business, and are each in good standing
as a foreign corporation in all jurisdictions in which the nature of its
activities and of its properties (both owned and leased) make such qualification
necessary, except for those jurisdictions in which failure to do would not have
a material adverse effect on either of them or its business. All of the issued
and outstanding shares of common stock of Cymedix have been issued to Medix.
5. The authorized capital stock of Medix on the date hereof is
400,000,000 shares of Common Stock and 2,500,000 shares of preferred stock, par
value $1.00 per share ("Preferred Stock"). As of April 11, 2003, Medix had
outstanding 81,017,065 shares of Common Stock, 1 share of 1996 Convertible
Preferred Stock and 75 shares of 1999 Series C Convertible Preferred Stock. As
of that date, approximately 37,320,395 shares were issuable upon the exercise of
outstanding options, warrants or other rights, and the conversion of Preferred
Stock and convertible debt. Substantially all of these shares and the shares
obligated to be issued in the future are freely trading or subject to
registration rights agreements.
6. All material corporate action on the part of Medix and its officers,
directors and stockholders, necessary for the authorization or this Agreement,
the performance of all obligations of Medix hereunder and the authorization,
sale, issuance and delivery of the Shares and Warrants pursuant hereto has been
taken. This Agreement when executed and delivered by both parties, will be a
valid and binding obligation of Medix, enforceable in accordance with its
material terms, except (a) as limited by applicable bankruptcy, insolvency.
reorganization, moratorium or other laws of general application affecting
enforcement of creditors rights generally, and (b) general principles of equity
that restrict the availability of equitable remedies.
7. To the best of their knowledge, Medix and Cymedix own or possess
sufficient legal rights to any patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses, information and other proprietary rights
and processes necessary for their business as now conducted. without any known
infringement of the rights of others. Except as set forth in the documents filed
with the SEC referred to Section 11 below, there are no outstanding options,
licenses or agreements of any kind relating to the foregoing proprietary rights,
nor are Medix or Cymedix bound by or a party to any options, licenses or
agreements of any kind with respect to the patents, trademarks, service marks,
trade names, copyrights, trade secrets, licenses, information and other
proprietary rights and processes of any other person or entity, other than such
licenses or agreements arising from the ordinary course of the business of Medix
and Cymedix. Except as set forth in the documents referred to above, Medix or
Cymedix has not received any communications alleging that either has violated
or, by conducting its business as presently proposed, would violate any of the
patents, trademarks, service marks, trade names, copyrights or trade secrets or
other proprietary rights of any other person or entity, nor is either aware of
any basis therefore.
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8. Neither Medix nor Cymedix is in material violation or default of any
material term of its articles of incorporation or bylaws or of any provision of
any material mortgage, indenture, contract, agreement, instrument or contract to
which it is party or by which it is bound or of any material judgment, decree,
order, or writ. The execution, delivery, and performance of and compliance with
this Agreement, and the issuance and sale of the Shares and Warrants pursuant to
the terms hereof will not, with or without the passage of time or giving of
notice, result in any such material violation, or be in conflict with or
constitute a material default under any such term or result in the creation of
any material mortgage, pledge, lien, encumbrance or charge upon any of the
properties or assets of either or the suspension, revocation, impairment,
forfeiture or non-renewal of any material permit, license, authorization or
approval applicable to either, its business or operations or any or its assets
or properties.
9. There is no material action, suit, proceeding or investigation
pending or, to the knowledge of Medix or Cymedix, threatened that questions the
validity of this Agreement, or the right of Medix to enter into this Agreement,
or to consummate the transactions contemplated hereby, or which is reasonably
expected to result, either individually or in the aggregate, in any material
adverse change in the assets, condition or affairs of either, financially or
otherwise, or any change in the current equity ownership of either, nor is the
Company aware that there is any basis for any or the foregoing, except as
disclosed in the documents filed with the SEC referred to in Section 11 below.
The Company is not a party or subject to the provisions of any material order,
writ, injunction, judgment or decree of any court or government agency or
instrumentality.
10. Medix shall file a Registration Statement, on Form S-2 or Form S-3,
covering the Shares included in the Units purchased by Purchaser and the shares
of Common Stock issuable upon exercise of the Warrants included in the Units
purchased by Purchaser (the "Warrant Shares") on or before September 30, 2003,
and shall use its reasonable commercial efforts to have such Registration
Statement declared effective as soon as practicable thereafter. The Purchaser
agrees to provide to Medix, on a timely basis, any and all information
reasonably requested by Medix in order for Medix to effect such registration.
The Purchaser also agrees to provide any and all information reasonably
requested by Medix in order for Medix to comply with applicable requirements of
the American Stock Exchange.
11. Purchaser represents and warrants that it is purchasing the Units
Shares (including the Shares, any Warrant Shares and the Warrants) solely for
investment purposes and for its own account only, and not with a view to or for
the resale or distribution thereof, other than in a public offering registered
with the SEC and registered or qualified with applicable state securities law
agencies or in a transaction exempt from such registration requirements.
Purchaser acknowledges that it has been informed that an investment in the
Shares and Warrants involves a high degree of risk and that it has carefully
reviewed the information under the heading "Risk Factors" in the Annual Report
on Form 10-K of Medix for the fiscal year ended December 31, 2002 (the "10-K")
filed with the SEC. Purchaser acknowledges that Purchaser has had the
opportunity to carefully review the 10-K and all Quarterly Reports on Form 10-Q,
if any, filed and Current Reports on Form 8-K filed by Medix with the SEC since
January 1, 2003, as reflected on XXXXX.
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12. Purchaser understands that it is purchasing the Units (including
the Shares, any Warrant Shares and the Warrants) in a transaction or
transactions that will be exempt from registration under the Act and applicable
state securities laws, and that Purchaser may not sell, transfer, pledge, or
otherwise dispose of the Units (including the Shares, any Warrant Shares or the
Warrants), unless such sale is duly registered pursuant to the Act and is duly
registered or qualified under any applicable state securities laws, or Purchaser
shall have delivered to Medix an opinion of counsel reasonably satisfactory to
counsel to Medix, to the effect that such sale, transfer, pledge or other
disposition is exempt from registration under the Act, and from registration or
qualification under applicable state securities laws. The certificates
evidencing the Units (including the Shares, any Warrant Shares and the Warrants)
will have a legend affixed to reflect these restrictions, and stop transfer
instructions will apply.
13. Purchaser further represents and warrants that it is able to bear
the economic risks of this investment and understands that Purchaser could lose
its entire investment in the Units, and that it has carefully reviewed the
material provided by Medix, including the material set forth in Section 11
above, together with the information provided to the Purchaser in the
discussions described below in making its decision to invest. Further, Purchaser
understands and acknowledges that there is no minimum offering amount that the
Company needs to receive before any investment is accepted. Purchaser's
subscription amount will not be kept in escrow, but will be accepted into the
Company's general operating accounts as soon as the subscription amount is
provided to the Company. Purchaser could be the only investor making an
investment in this offering.
14. Purchaser acknowledges that Purchaser has been given the
opportunity to meet with senior officers and other representatives of Medix and
Cymedix and to ask questions of them and to receive answers thereto concerning
the terms and conditions of the investment, and to obtain information which
Medix possesses or can acquire without unreasonable effort or expense that is
necessary to verify the accuracy of the information set forth in the documents
described in Section 11 above. They have discussed current developments in the
business operations of Medix and Cymedix with the Purchaser, and in particular
have informed the Purchaser of the status of current contractual relationships
of Medix and Cymedix, the acute need of Medix for operating funds, and that
Medix's recent audited financial statements have been subject to a "going
concern" exception in the report of Medix's independent public accountants
delivered in connection therewith.
15. Purchaser is aware of its filing obligations under Sections 13(d)
and 16(a) of the Securities Exchange Act of 1934, as amended, if it acquires
beneficial ownership of more than 5% under the first section cited and 10% under
the second section cited, of the outstanding Medix Common Stock, and Purchaser
will comply with such obligations if applicable to its ownership of securities
of Medix.
16. This Stock Purchase Agreement shall be governed by and construed in
accordance with the laws of the State of New York, excluding applicable
principles of conflict of laws. The
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rights and obligations of Purchaser under this Stock Purchase Agreement shall
not be assignable or transferable by the Purchaser without the written consent
of Medix. If any provision of this Purchase Agreement, or the application of
such provision to any person or circumstance, shall be held invalid, the
remainder of this Stock Purchase Agreement or the application of such provision
to other persons or circumstances shall not be affected thereby. Furthermore,
the parties shall negotiate in good faith with respect to an equitable
modification of the provision or application thereof held to be invalid. This
Stock Purchase Agreement may be executed in one or more counterparts, and by
telecopied facsimile of the signature on behalf of a party hereto, all of which
shall constitute one and the same instrument. This Stock Purchase Agreement
constitutes the entire agreement between the parties and supersedes any prior
agreements or understanding with respect thereto and this Stock Purchase
Agreement shall be binding upon and inure to the benefit of the parties hereto,
and their respective heirs, executors and administrators, legal representatives,
successors and permitted assigns. This Stock Purchase Agreement may not be
changed or terminated except by written agreement signed by both parties. It
shall be enforceable by decrees of specific performance (without posting bond or
other security) as well as by other available remedies.
IN WITNESS WHEREOF, the parties hereto have executed this Stock
Purchase Agreement, intending to be bound as provided herein, as of the date
first above written.
PURCHASER: Accepted and Agreed to:
MEDIX RESOURCES, INC.
By:____________________ By:__________________________________
Print Name: Xxxxxx X. Xxxxx, President and CEO
Title, if applicable:
Corporate, LLC, Partnership or
Trust name, if applicable: ___________________________________
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EXHIBIT A - FORM OF WARRANT CERTIFICATE
THIS WARRANT HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT") OR ANY OTHER SECURITIES LAWS AND MAY
NOT BE OFFERED FOR SALE, SOLD, DELIVERED
AFTER SALE, TRANSFERRED, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF (1) AN
EFFECTIVE REGISTRATION STATEMENT COVERING
THIS WARRANT UNDER THE ACT AND ANY OTHER
APPLICABLE SECURITIES LAWS, OR (2) AN
OPINION OF COUNSEL REASONABLY SATISFACTORY
TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
MEDIX RESOURCES, INC.
WARRANT TO PURCHASE COMMON STOCK
[ISSUE DATE] Warrant No. ___
For value received, MEDIX RESOURCES, INC., a Colorado corporation (the
"Company"), hereby certifies that [_____________________] or its registered
transferees, successors or assigns (each person or entity holding of record all
or part of this Warrant being referred to as a "Holder"), is the registered
holder of warrants (the "Warrants") to subscribe for and purchase
[__________________] ([######]) shares (as adjusted pursuant to Section 3
hereof, the "Warrant Shares") of the fully paid and nonassessable common stock,
par value $.001 per share, of the Company (the "Common Stock"), at a purchase
price per share initially equal to thirty cents ($0.30) (the "Warrant Price") at
any time on or after January 1, 2004 (the "Commencement Date") and prior to 5:00
P.M., Eastern Time, on December 31, 2008 (the "Expiration Date"), subject to the
provisions and upon the terms and conditions hereinafter set forth.
Notwithstanding the foregoing, if the closing or last price of the Common Stock
as reported on the American Stock Exchange or other recognized exchange or
quotation system is $4.00 or above for ten consecutive trading days after the
Commencement Date, the Company, at its option, may upon thirty (30) days prior
notice to the Holder, re-purchase the Warrants from the Holder, at a re-purchase
price of $.01 per Warrant, if they are not exercised within such 30-day period
or prior to the end of the five-year exercise period of the Warrants, whichever
is shorter. As used in this Warrant, the term "Business Day" means any day other
than a Saturday or Sunday on which commercial banks located in New York, New
York are open for the general transaction of business.
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Section 1. EXERCISE.
(a) Method of Exercise; Payment; Issuance of New Warrant.
(i) Subject to the provisions hereof, the Holder may exercise
this Warrant, in whole or in part and from time to time, by the surrender of
this Warrant (with the Notice of Exercise attached hereto as APPENDIX A duly
executed) at the principal office of the Company, or such other office or agency
of the Company as it may reasonably designate by written notice to the Holder,
during normal business hours on any Business Day, and the payment by the Holder
by cash, certified check payable to the Company or wire transfer of immediately
available funds to an account designated to the exercising Holder by the Company
of an amount equal to the then applicable Warrant Price multiplied by the number
of Warrant Shares then being purchased. On the date on which the Holder shall
have satisfied in full the Holder's obligations set forth herein regarding an
exercise of this Warrant (provided such date is prior to the Expiration Date),
the Holder (or such other person or persons as directed by the Holder) shall be
treated for all purposes as the holder of record of such Warrant Shares as of
the close of business on such date.
(ii) In the event of any exercise of the rights represented by
this Warrant, certificates for the whole number of shares of Common Stock so
purchased shall be delivered to the Holder (or such other person or persons as
directed by the Holder) as promptly as is reasonably practicable after such
exercise at the Company's expense, and, unless this Warrant has been fully
exercised, a new Warrant representing the whole number of Warrant Shares, if
any, with respect to which this Warrant shall not then have been exercised shall
also be issued to the Holder as soon as reasonably practicable thereafter.
Section 2. RESERVATION OF SHARES; STOCK FULLY PAID. The
Company shall keep reserved a sufficient number of shares of the
authorized and unissued shares of Common Stock, to provide for the
exercise of the rights of purchase represented by this Warrant in
compliance with its terms. All Warrant Shares issued upon exercise of
this Warrant shall be, at the time of delivery of the certificates for
such Warrant Shares upon payment in full of the Exercise Price therefor
in accordance with the terms of this Warrant, duly authorized, validly
issued, fully paid and non-assessable shares of Common Stock of the
Company.
Section 3. ADJUSTMENTS AND DISTRIBUTIONS. The number and kind
of securities purchasable upon the exercise of this Warrant and the
Warrant Price shall be subject to adjustment from time to time upon the
occurrence of certain events, as follows:
(a) If the Company shall at any time or from time to time while this
Warrant is outstanding, pay a dividend or make a distribution on its Common
Stock in shares of Common
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Stock, subdivide its outstanding shares of Common Stock into a greater number of
shares or combine its outstanding shares of Common Stock into a smaller number
of shares, then the number of Warrant Shares purchasable upon exercise of this
Warrant and the Warrant Price in effect immediately prior to the date upon which
such change shall become effective shall be proportionally adjusted by the
Company so that the Holder thereafter exercising this Warrant shall be entitled
to receive the number of shares of Common Stock or other capital stock which the
Holder would have received if this Warrant had been exercised immediately prior
to such event (taking into account such event) upon payment of a Warrant Price
that has been proportionally adjusted to reflect such event. Such adjustments
shall be made successively whenever any event listed above shall occur.
(b) If any recapitalization, reclassification or reorganization of the
capital stock of the Company (other than a change in par value or a subdivision
or combination as provided for in Section 3(a) above) shall be effected in such
a manner (including, without limitation, in connection with a consolidation or
merger in which the Company is the continuing corporation), that holders of
Common Stock shall be entitled to receive stock, securities, or other assets or
property (a "Reorganization"), then, as a condition of such Reorganization,
lawful and adequate provisions shall be made by the Company whereby the Holder
hereof shall thereafter have the right to purchase and receive (in lieu of the
shares of the Common Stock of the Company immediately theretofore purchasable
and receivable upon the exercise of the rights represented hereby) such shares
of stock, securities or other assets or property as may be issued or payable
with respect to or in exchange for a number of outstanding shares of such Common
Stock equal to the number of shares of such Common Stock immediately theretofore
purchasable and receivable upon the exercise of the rights represented hereby.
In the event of any Reorganization, appropriate provision shall be made by the
Company with respect to the rights and interests of the Holder of this Warrant
to the end that the provisions hereof (including, without limitation, provisions
for adjustments of the Warrant Price and of the number of Warrant Shares) shall
thereafter be applicable, in relation to any shares of stock, securities or
assets thereafter deliverable upon the exercise hereof. The provisions of this
Section 3(b) shall similarly apply to successive Reorganizations.
(c) An adjustment pursuant to this Section 3 shall become effective
immediately after the payment date in the case of each dividend or distribution
and immediately after the effective date of each other event which requires an
adjustment.
(d) In the event that, as a result of an adjustment made pursuant to
this Section 3, the Holder shall become entitled to receive any shares of
capital stock of the Company other than shares of Common Stock, the number of
such other shares so receivable upon exercise of this Warrant shall be subject
thereafter to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Warrant Shares
contained in this Warrant.
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Section 4. MANDATORY EXERCISE. So long as this Warrant shall
be outstanding, if the Company proposes to enter into a Mandatory
Exercise Transaction (as hereinafter defined), then in any such case,
the Company shall cause to be mailed by certified mail to the Holder,
at least ten (10) days prior to the date such proposed Mandatory
Exercise Transaction is to be effectuated, a notice containing (i) a
brief description of the proposed Mandatory Exercise Transaction; and
(ii) the date upon which such proposed Mandatory Exercise Transaction
is to take place. The failure to give such notice, however, shall not
affect the validity of any proposed Mandatory Exercise Transaction for
which the notice was required to be given but shall relieve the Holder
of its obligation to exercise the Warrant pursuant to this provision.
During the period beginning on the date of Holder's receipt of such
notice and ending on the date which is two (2) days prior to the date
upon which such proposed Mandatory Exercise Transaction is to take
place, as set forth in the notice (the "Mandatory Exercise Period"),
Holder must exercise its right, in accordance with all applicable
conditions of exercise set forth in this Warrant, to purchase Warrant
Shares which Holder is entitled to purchase hereunder, and if Holder
fails to so exercise such right within the Mandatory Exercise Period
(unless the Company has failed to give the notice required hereunder),
all Warrant Shares for which Holder has not exercised its right to
receive hereunder shall expire. For purposes hereof, a "Mandatory
Exercise Transaction" shall mean any of the following:
(a) any merger or consolidation of the Company with or into any
corporation or other entity that is not a wholly-owned subsidiary of the
Company, other than a merger in which the Company or a wholly-owned subsidiary
of the Company is the surviving entity; or
(b) any sale or disposition of all or substantially all of the assets
of the Company to a person or entity other than a wholly-owned subsidiary of the
Company.
Section 5. TRANSFER TAXES. The Company will pay any
documentary stamp taxes attributable to the initial issuance of Warrant
Shares issuable upon the exercise of the Warrant; provided, however,
that the Company shall not be required to pay any tax or taxes which
may be payable in respect of any transfer involved in the issuance or
delivery of any certificates for Warrant Shares in a name other than
that of the registered holder of this Warrant in respect of which such
shares are issued, and in such case, the Company shall not be required
to issue or deliver any certificate for Warrant Shares or any Warrant
until the person requesting the same has paid to the Company the amount
of such tax or has established to the Company's reasonable satisfaction
that such tax has been paid.
Section 6. MUTILATED OR MISSING WARRANTS. In case this Warrant
shall be mutilated, lost, stolen, or destroyed, the Company shall issue
in exchange and substitution of and upon cancellation of the mutilated
Warrant, or in lieu of and substitution for the Warrant lost, stolen or
destroyed, a new Warrant of like tenor and
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for the purchase of a like number of Warrant Shares, but only upon
receipt of evidence reasonably satisfactory to the Company of such
loss, theft or destruction of the Warrant, and with respect to a lost,
stolen or destroyed Warrant, reasonable indemnity or bond with respect
thereto, if requested by the Company.
Section 7. FRACTIONAL SHARES. No fractional shares of Common
Stock shall be issued in connection with any exercise hereunder, and in
lieu of any such fractional shares the Company shall make a cash
payment therefor to the Holder (or such other person or persons as
directed by the Holder) based on the fair market value of a share of
Common Stock on the date of exercise of this Warrant.
Section 8. COMPLIANCE WITH SECURITIES ACT AND LEGENDS. The
Holder, by acceptance hereof, agrees that this Warrant and the shares
of Common Stock to be issued upon exercise hereof, are being acquired
for investment and that such Holder will not offer, sell or otherwise
dispose of this Warrant, or any Warrant Shares except under
circumstances which will not result in a violation of the Securities
Act of 1933, as amended, or the rules and regulations promulgated
thereunder, as amended (the "ACT"), or any state's securities laws.
Upon exercise of this Warrant, the Holder shall confirm in writing, by
executing the form attached as SCHEDULE 1 to EXHIBIT A hereto, that the
Warrant Shares so purchased are being acquired for investment and not
with a view toward distribution or resale. All Warrant Shares (unless
registered under the Act) shall be stamped or imprinted with a legend
as follows:
THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT") OR ANY OTHER SECURITIES LAWS AND MAY
NOT BE OFFERED FOR SALE, SOLD, DELIVERED
AFTER SALE, TRANSFERRED, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF (1) AN
EFFECTIVE REGISTRATION STATEMENT COVERING
THESE SECURITIES UNDER THE ACT AND ANY OTHER
APPLICABLE SECURITIES LAWS, OR (2) AN
OPINION OF COUNSEL REASONABLY SATISFACTORY
TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
Section 9. RIGHTS AS STOCKHOLDERS; INFORMATION. Except as
expressly provided in this Warrant, no Holder, as such, shall be
entitled to vote or receive dividends or be deemed the holder of Common
Stock or any other securities of the Company which may at any time be
issuable on the exercise hereof for any purpose, nor shall anything
contained herein be construed to confer upon the Holder, as such, any
of the rights of a stockholder of the Company or any right to vote for
the election of the directors or upon any matter submitted to
stockholders at any meeting thereof, or to receive notice of meetings,
or to receive dividends or subscription rights or
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otherwise, until this Warrant shall have been exercised and the Warrant
Shares purchasable upon the exercise hereof shall have become
deliverable, as provided herein.
Section 10. MODIFICATION AND WAIVER. This Warrant and any
provision hereof may be changed, waived, discharged or terminated only
by an instrument in writing signed by the Company and the then current
Holder, and such change, waiver, discharge or termination shall be
binding on all future Holders.
Section 11. NOTICES. Unless otherwise specifically provided
herein, all communications under this Warrant shall be in writing and
shall be deemed to have been duly given (a) on the date personally
delivered to the party to whom notice is to be given, (b) on the day of
transmission if sent by facsimile transmission to a number provided to
a party specifically for such purposes and the sending party receives
confirmation of the completion of such transmission, (c) on the
Business Day after delivery to Federal Express or similar overnight
courier which utilizes a written form of receipt, or (d) on the fifth
day after mailing, if mailed to the party to whom notice is to be
given, by first class mail, registered or certified, postage prepaid,
and properly addressed, return receipt requested, to each such Holder
at its address as shown on the books of the Company or to the Company
at the address indicated therefor on the signature page of this
Warrant. Any party hereto may change its address for purposes of this
Section 11 by giving the other party written notice of the new address
in the manner set forth herein.
Section 12. DESCRIPTIVE HEADINGS. The descriptive headings
contained in this Warrant are inserted for convenience only and do not
constitute a part of this Warrant.
Section 13. GOVERNING LAW. The validity, interpretation and
performance of this Warrant shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to
contracts made and to be performed entirely within such State,
regardless of the law that might be applied under principles of
conflicts of law. The Company and, by accepting this Warrant, the
Holder, each irrevocably submits to the exclusive jurisdiction of the
courts of the State of New York located in New York City and the United
States District Court for the Southern District of New York for the
purpose of any suit, action, proceeding or judgment relating to or
arising out of this Warrant and the transactions contemplated hereby.
Service of process in connection with any such suit, action or
proceeding may be served on each party hereto anywhere in the world by
the same methods as are specified for the giving of notices under this
Warrant. The Company and, by accepting this Warrant, the Holder, each
irrevocably consents to the jurisdiction of any such court in any such
suit, action or proceeding and to the laying of venue in such court.
The Company and, by accepting this Warrant, the Holder, each
irrevocably waives any objection to the laying of venue of any such
suit, action or proceeding brought in such courts and irrevocably
waives
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any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum.
Section 14. ASSIGNMENT. A Holder may transfer its rights
hereunder, in whole or in part, to any other person provided that
written notice is given to the Company of any such transfer and such
transfer is in accordance with applicable law. Upon receipt by the
Company of notice by a Holder of a transfer of any portion of this
Warrant, the Company shall promptly deliver to each transferee a
Warrant in the form hereof exercisable for the number of Warrant Shares
the right of which to purchase has been transferred. In addition to,
and not in limitation of, the foregoing, but subject to applicable law,
a Holder that is a corporation, a partnership or a limited liability
company, may distribute any portion of a warrant to its respective
shareholders, partners or members.
Section 15. ACCEPTANCE. Receipt of this Warrant by the Holder
hereof shall constitute acceptance of and agreement to the foregoing
terms and conditions.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed on its behalf by one of its officers thereunto duly authorized.
MEDIX RESOURCES, INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
Dated:
-------------------
Address: 000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx
00000
12
APPENDIX A
----------
NOTICE OF EXERCISE
To: MEDIX RESOURCES, INC.
1. The undersigned hereby irrevocably elects to purchase [_____] shares of
Common Stock of Medix Resources, Inc. pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price of such shares in
full, by cash, certified check or wire transfer.
2. Please issue a certificate or certificates representing said shares in the
name of the undersigned or in such other name or names as are specified below:
------------------------------
(Name)
------------------------------
(Address)
(Signature)
------------------------------
(Date)
------------------
3. Please issue a new Warrant of equivalent form and tenor for the unexercised
portion of the attached Warrant in the name of the undersigned or in such other
name as is specified below:
------------------------------------------------
Date:
-------------------------------------------
(Warrantholder)
---------------------------------
Name: (Print)
-----------------------------------
By:
---------------------------------------------
13
SCHEDULE 1
----------
INVESTMENT REPRESENTATION STATEMENT
Purchaser: _______________________________
Company: Medix Resources, Inc.
Security: Common Stock
Amount: _______________________________
Date: _______________________________
In connection with the purchase of the above-listed securities (the
"Securities"), the undersigned (the "Purchaser") represents to the Company as
follows:
(a) The Purchaser is aware of the Company's business affairs and financial
condition, and has acquired sufficient information about the Company to reach an
informed and knowledgeable decision to acquire the Securities. The Purchaser is
purchasing the Securities for its own account for investment purposes only and
not with a view to, or for the resale in connection with, any "distribution"
thereof for purposes of the Securities Act of 1933, as amended (the "Act").
(b) The Purchaser understands that the Securities have not been registered under
the Act in reliance upon a specific exemption therefrom, which exemption depends
upon, among other things, the bona fide nature of the Purchaser's investment
intent as expressed herein. In this connection, the Purchaser understands that,
in the view of the Securities and Exchange Commission ("SEC"), the statutory
basis for such exemption may be unavailable if the Purchaser's representation
was predicated solely upon a present intention to hold these Securities for the
minimum capital gains period specified under applicable tax laws, for a deferred
sale, for or until an increase or decrease in the market price of the
Securities, or for a period of one year or any other fixed period in the future.
(c) The Purchaser further understands that the Securities must be held
indefinitely unless subsequently registered under the Act or unless an exemption
from registration is otherwise available. In addition, the Purchaser understands
that the certificate evidencing the Securities will be imprinted with the legend
referred to in the Warrant under which the Securities are being purchased.
(d) The Purchaser is aware of the provisions of Rule 144 and 144A, promulgated
under the Act, which, in substance, permit limited public resale of "restricted
securities" acquired, directly or indirectly, from the issuer thereof (or from
an affiliate of such issuer), in a non-public offering subject to the
satisfaction of certain conditions, if applicable, including, among other
things: the availability of certain public information about the Company, the
resale occurring not less than
14
one (1) year after the party has purchased and paid for the securities to be
sold; the sale being made through a broker in an unsolicited "broker's
transaction" or in transactions directly with a market maker (as said term is
defined under the Securities Exchange Act of 1934, as amended) and the amount of
securities being sold during any three-month period not exceeding the specified
limitations stated therein.
(e) The Purchaser further understands that at the time it wishes to sell the
Securities there may be no public market upon which to make such a sale, and
that, even if such a public market then exists, the Company may not be
satisfying the current public information requirements of Rule 144 and 144A, and
that, in such event, the Purchaser may be precluded from selling the Securities
under Rule 144 and 144A even if the one-year minimum holding period had been
satisfied.
(f) The Purchaser further understands that in the event all of the requirements
of Rule 144 and 144A are not satisfied, registration under the Act, compliance
with Regulation A, or some other registration exemption will be required; and
that, notwithstanding the fact that Rule 144 is not exclusive, the Staff of the
SEC has expressed its opinion that persons proposing to sell private placement
securities other than in a registered offering and otherwise than pursuant to
Rule 144 will have a substantial burden or proof in establishing that an
exemption from registration is available for such offers or sales, and that such
persons and their respective brokers who participate in such transactions do so
at their own risk.
Purchaser:___________________]
15
PURCHASER QUESTIONNAIRE
FOR INVESTORS IN
MEDIX RESOURCES, INC.
1. Full name and mailing address of potential Purchaser:
Tel. no.: ____________________
State of address given above will be the state of domicile for state blue sky
law purposes.
2. The potential Purchaser is an Accredited Investor for securities law purposes
as that term is defined in Rule 501 issued by the Securities and Exchange
Commission. Attached hereto as Exhibit A is a list of the categories that
qualify a potential investor as an Accredited Investor. Which items apply to
Purchaser? __________
The above is acknowledged as accurate and correct by the Purchaser.
By: ________________________
Print Name:
Position:
Date Executed: __________
16
EXHIBIT A
ACCREDITED INVESTOR DEFINITION
"ACCREDITED INVESTOR" shall mean any person who comes within any of the
following categories, or who the issuer reasonably believes comes within any of
the following categories, at the time of the sale of the securities to that
person:
(1) Any bank as defined in section 3(a)(2) of the Act, or any savings
and loan association or other institution as defined in section 3(a)(5)(A) of
the Act whether acting in its individual or fiduciary capacity; any broker or
dealer registered pursuant to section 15 of the Securities Exchange Act of 1934;
any insurance company as defined in section 2(13) of the Act; any investment
company registered under the Investment Company Act of 1940 or a business
development company as defined in section 2(a)(48) of that Act; Small Business
Investment Company licensed by the U.S. Small Business Administration under
section 301(c) or (d) of the Small Business Investment Act of 1958; any plan
established and maintained by a state, its political subdivisions, or any agency
or instrumentality of a state or its political subdivisions for the benefit of
its employees, if such plan has total assets in excess of $5,000,000; employee
benefit plan within the meaning of the Employee Retirement Income Security Act
of 1974 if the investment decision is made by a plan fiduciary, as defined in
section 3(21) of such Act, which is either a bank, savings and loan association,
insurance company, or registered investment adviser, or if the employee benefit
plan has total assets in excess of $5,000,000 or, if a self-directed plan, with
investment decisions made solely by persons that are accredited investors;
(2) Any private business development company as defined in section
202(a)(22) of the Investment Advisers Act of 1940;
(3) Any organization described in section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the securities
offered, with total assets in excess of $5,000,000;
(4) Any director, executive officer, or general partner of the issuer
of the securities being offered or sold, or any director, executive officer, or
general partner of a general partner of that issuer;
(5) Any natural person whose individual net worth, or joint net worth
with that person's spouse, at the time of his purchase exceeds $1,000,000;
(6) Any natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income with that person's
spouse in excess of $300,000 in each of those years and has a reasonable
expectation of reaching the same income level in the current year;
17
(7) Any trust, with total assets in excess of $5,000,000, not formed
for the specific purpose of acquiring the securities offered, whose purchase is
directed by a sophisticated person as described in Rule 506(b)(2)(ii); and
(8) Any entity in which all of the equity owners are accredited
investors.
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