EXHIBIT 4.9
UNIT WARRANT
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
(THE "ACT) OR UNDER ANY STATE SECURITIES LAW AND MAY NOT BE SOLD, TRANSFERRED OR
ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT
THERETO UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAW, OR UNTIL THE
COMPANY RECEIVES AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED.
GoHealth.MD. Inc., a Delaware corporation, (the "Company") hereby
grants to ____________________ (the "Holder") the right, privilege and option to
purchase ____ shares of its common stock, $0.001 par value, ("Common Stock") at
the purchase price of $2.50 per share (the "Exercise Price"), in the manner and
subject to the conditions hereinafter provided (the "Warrant").
1. Time of Exercise of Warrant. This Warrant may be exercised during
the period commencing on the date this Warrant is issued and ending on the
earlier of; (i) September 30, 2003, or (ii) the date Warrant is redeemed by the
Company pursuant to the terms of Paragraph 7, herein.
2. Method of Exercise. The Warrant shall be exercised in whole at any
time or in part from time to time, by delivery of the Subscription Form attached
hereto duly executed along with this Warrant directed to the Company at its
principal place of business accompanied by a check payable to the Company in
payment of the Exercise Price rounded to the nearest $.01, for the number of
whole shares specified, together with appropriate endorsements or transfer
documents and a check for payment of any transfer or similar tax, if required.
Upon clearance of the checks, the Company shall make prompt delivery of a
certificate evidencing the number of whole shares to which the Holder may be
entitled, and pay to the Holder cash in an amount equal to the fair value
(determined in such reasonable manner as the Board of Directors of the Company
shall determine) of any fractional share; provided that if any law or regulation
requires the Company to take any action with respect to the shares specified in
such notice before the issuance thereof, then the date of delivery of such
shares shall be extended for the period necessary to take such action. In case
of the purchase of less than all the shares purchasable under this Warrant, the
Company shall cancel this Warrant upon surrender hereof and shall execute and
deliver a new Warrant of like tenor and date for the balance of the shares
purchasable hereunder. The Company agrees at all times to reserve or hold
available a sufficient number of shares of Common Stock to cover the number of
shares issuable upon the exercise of this and all other Warrants of like tenor
then outstanding.
3. Rights as Stockholder. The Holder shall have no rights as a
stockholder of the Company with respect to any shares of Common Stock subject to
this Warrant prior to his exercise of the Warrant.
4. Adjustment of Purchase Price and Number of Shares. The number and
kind of securities purchasable upon the exercise of this Warrant and the
exercise price shall be subject to adjustment from time to time, as provided in
Schedule A attached hereto.
5. Investment Representation.
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(a) Holder represents and warrants to the Company that Xxxxxx
is acquiring this Warrant and the Shares issuable upon exercise of the Warrant
("Warrant Shares") for Holder's own account for the purpose of investment and
not with a view toward resale or other distribution thereof in violation of the
Securities Act of 1933. Holder acknowledges that the effect of the
representations and warranties is that the economic risk of the investment in
the Warrant and Warrant Shares must be borne by the Holder for an indefinite
period of time. This representation and warranty shall be deemed to be a
continuing representation and warranty and shall be in full force and effect
upon such exercise of the Warrant granted hereby.
(b) In order to enable the Company to comply with the
Securities Act of 1933 (the "Securities Act") and relevant state law, the
Company may require the Holder as a condition of the exercising of the Warrant
granted hereunder, to give written assurance satisfactory to the Company that
the shares subject to the Warrant are being acquired for its own account, for
investment only, with no view to the distribution of same, and that any
subsequent resale of any such shares either shall be made pursuant to a
registration statement under the Securities Act which shall become effective and
be current with regard to the shares being sold, or shall be pursuant to an
exemption from registration under the Securities Act. If the shares of Common
Stock purchased pursuant to the exercise of this Warrant are not subject to an
effective registration statement under the Securities Act, the certificate(s)
evidencing shares of Common stock purchased upon exercise of this Warrant shall
bear the following restrictive legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR UNDER ANY STATE SECURITIES LAW
AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT WITH RESPECT THERETO UNDER THE ACT AND ANY APPLICABLE
STATE SECURITIES LAW, OR UNTIL THE COMPANY RECEIVES AN OPINION OF COUNSEL,
SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED.
6. Exercisability. The Warrant shall be exercisable only by Xxxxxx
during his lifetime or by his assigns, heirs, executors or administrators, as
the case may be. Any assignment hereof shall be in compliance with applicable
securities laws.
7. Redemption of Warrant. If the Company completes an initial public
offering ("IPO") of its Common Stock, then beginning twelve (12) months after
the IPO, the Company may call the Warrant for redemption at $.01 for every share
of Common Stock purchasable upon exercise hereof at the time of such redemption;
provided, that at any time prior to expiration upon not less than thirty (30)
days prior written notice if the closing bid quotation of the Common Stock
exceeds 150% of the price per share of Common Stock as set forth in the IPO for
each of the 10 consecutive trading days during a period ending on the third day
prior to the date on which notice of redemption is given. On and after the date
of redemption the Holder shall have only the right to receive $.01 per share of
Common Stock purchasable upon exercise hereof at the time of such redemption.
8. Loss, Destruction, etc. of Warrant. Upon receipt of evidence
satisfactory to the Company, of the loss, theft, destruction or mutilation of
this Warrant, and of indemnity reasonably satisfactory to the Company, if lost,
stolen, or destroyed, and upon reimbursement to the Company of all reasonable
expenses incidental thereto, and upon surrender and cancellation of this
Warrant, if mutilated, the Company shall execute, and deliver to the Holder a
new Warrant of like date, tenor and denomination.
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9. Governing Law. This Warrant and any dispute, disagreement, or issue
of construction or interpretation arising hereunder whether relating to its
execution, its validity, the obligations provided herein or performance shall be
governed or interpreted according to the laws of the State of Delaware.
10. Issuance of Shares. The Company covenants and agrees that all
shares of Common Stock which may be delivered upon the exercise of this Warrant
will, upon delivery, be duly paid and non- assessable and shall be free from all
taxes, liens and charges with respect to the purchase thereof hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Warrant to be
executed on the 1st day of October, 1999.
GoHealth.MD, Inc.
/s/ Xxxxxxx X. Xxxxxx
---------------------------
Xxxxxxx X. Xxxxxx, President
(Seal)
ATTEST
/s/ Xxxxxxx X. Xxxxx
-------------------------------
Secretary or Assistant Secretary
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SCHEDULE A
Adjustment of Purchase Price and Number of Shares
1. Adjustment. The number and kind of securities purchasable upon the
exercise of this Warrant and the exercise price shall be subject to adjustment
from time to time upon the happening of certain events as follows:
(a) Reclassification, Consolidation or Merger. At any time
while this Warrant remains outstanding and unexpired, in case of (i) any
reclassification or change of outstanding securities issuable upon exercise of
this Warrant (other than a change in par value, or from par value to no par
value per share, or from no par value per share to par value or as a result of a
subdivision or combination of outstanding securities issuable upon the exercise
of this Warrant), (ii) any consolidation or merger of the Company with or into
another corporation (other than a merger with another corporation in which the
Company is a continuing corporation and which does not result in any
reclassification or change, other than a change in par value, or from par value
to no par value per share, or from no par value per share to par value, or as a
result of a subdivision or combination of outstanding securities issuable upon
the exercise of this Warrant), or (iii) any sale or transfer to another
corporation of the property of the Company as an entirety or substantially as an
entirety, the Company, or such successor or purchasing corporation, as the case
may be, shall without payment of any additional consideration therefor, execute
a new Warrant providing that the holder of this Warrant shall have the right to
exercise such new Warrant (upon terms not less favorable to the holder than
those then applicable to this Warrant) and to receive upon such exercise, in
lieu of each share of Common Stock theretofore issuable upon exercise of this
Warrant, the kind and amount of shares of stock, other securities, money or
property receivable upon such reclassification, change, consolidation, merger,
sale or transfer. Such new Warrant shall provide for adjustments which shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Section 1 of Schedule A. The provisions of this subsection 1(a) shall
similarly apply to successive reclassifications, changes, consolidations,
mergers, sales and transfers.
(b) Subdivision or Combination of Shares. If the Company at
any time while this Warrant remains outstanding and unexpired, shall subdivide
or combine its Common Stock, the Exercise Price shall be proportionately
reduced, in case of subdivision of such shares, as of the effective date of such
subdivision, or, if the Company shall take a record of holders of its Common
Stock for the purpose of so subdividing, as of such record date, whichever is
earlier, or shall be proportionately increased, in the case of combination of
such shares, as of the effective date of such combination, or, if the Company
shall take a record of holders of its Common Stock for the purpose of so
combining, as of such record date, whichever is earlier.
(c) Stock Dividends. If the Company at any time while this
Option is outstanding and unexpired shall pay a dividend in shares of, or make
other distribution of shares of, its Common Stock, then the Exercise Price shall
be adjusted, as of the date the Company shall take a record of the holders of
its Capital Stock for the purpose of receiving such dividend or other
distribution (or if no such record is taken, as at the date of such payment or
other distribution), to that price determined by multiplying the exercise price
in effect immediately prior to such payment or other distribution by a fraction
(a) the numerator of which shall be the total number of shares of Common Stock
outstanding immediately prior to such dividend or distribution, and (b) the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately after such dividend or distribution. The provisions of
this
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subsection 1(c) shall not apply under any of the circumstances for which an
adjustment is provided in subsection 1(a) or 1(b).
(d) Liquidating Dividends, Etc. If the Company at any time
while this Warrant is outstanding and unexpired makes a distribution of its
assets to the holders of its Common Stock as a dividend in liquidation or by way
of return of capital or other than as a dividend payable out of earnings or
surplus legally available for dividends under applicable law or any distribution
to such holders made in respect of the sale of all or substantially all of the
Company's assets (other than under the circumstances provided for in the
foregoing subsections (a) through (c)), the holder of this Option shall be
entitled to receive upon the exercise hereof, in addition to the shares of
Common Stock receivable upon such exercise, and without payment of any
consideration other than the exercise price, an amount in cash equal to the
value of such distribution per share of Common Stock multiplied by the number of
shares of Common Stock which, on the record date for such distribution, are
issuable upon exercise of this Warrant (with no further adjustment being made
following any event which causes a subsequent adjustment in the number of shares
of Common Stock issuable upon the exercise hereof), and an appropriate provision
therefor should be made a part of any such distribution. The value of a
distribution which is paid in other than cash shall be determined in good faith
by the Board of Directors.
2. Notice of Adjustments. Whenever any of the exercise price or the
number of shares of Common Stock purchasable under the terms of this Warrant at
that exercise price shall be adjusted pursuant to Section 1 hereof, the Company
shall promptly make a certificate signed by its President or a Vice President
and by its Treasurer or Assistant Treasurer or its Secretary or Assistant
Secretary, setting forth in reasonable detail the event requiring the
adjustment, the amount of the adjustment, the method by which such adjustment
was calculated (including a description of the basis on which the Company's
Board of Directors made any determination hereunder), and the exercise price and
number of shares of Common Stock purchasable at that exercise price after giving
effect to such adjustment, and shall promptly cause copies of such certificate
to be mailed (by first class and postage prepaid ) to the registered holder of
this Warrant.
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SUBSCRIPTION
The undersigned, ______________________, pursuant to the provisions of
the foregoing Warrant, hereby agrees to subscribe for the purchase of
______________ shares of Common Stock of GoHealth. MD, Inc. covered by said
Warrant, and makes payment therefor in full at the price per share provided by
said Warrant.
Dated:_____________ Signature:_________________
Address:__________________
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ASSIGNMENT
FOR VALUE RECEIVED ______________ hereby sells, assigns and transfers
unto ____ ____________ the foregoing Warrant and all rights evidenced thereby,
and does irrevocably constitute and appoint __________________________,
attorney, to transfer said Warrant on the books of GoHealth.MD, Inc.
Dated:______________ Signature:_________________
Address:___________________
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PARTIAL ASSIGNMENT
FOR VALUE RECEIVED _____________________ hereby assigns and transfers
unto _________________ the right to purchase _________shares of Common Stock of
GoHealth.MD, Inc. by the foregoing Warrant, and a proportionate Part of said
Warrant and the rights evidenced hereby, and does irrevocably constitute and
appoint __________________, attorney, to transfer that part of said Warrant on
the books of GoHealth.MD, Inc.
Dated:______________ Signature:_________________
Address:__________________
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