EXHIBIT 10.28
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND SUCH
SECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED UNLESS SO REGISTERED OR AN
EXEMPTION FROM REGISTRATION UNDER SAID ACT IS AVAILABLE. THIS LEGEND SHALL BE
ENDORSED UPON ANY WARRANT ISSUED IN EXCHANGE FOR THIS WARRANT.
WARRANT AGREEMENT
FOR COMMON STOCK OF
PROXYMED, INC.
Warrant No. 00-09
THIS CERTIFIES that, for value received, Commonwealth Associates, L.P.,
or its permitted assigns (collectively, the "Holder"), is entitled to purchase
from ProxyMed, Inc., a Florida corporation (the "Company"), at any time, and
from time to time, during the exercise period referred to in Section 1 hereof
1,000,000 fully paid, validly issued and nonassessable shares (the "Warrant
Shares") of common stock of the Company, par value $0.001 (the "Common Stock")
at the exercise price of $1.00 per share, subject to anti-dilution adjustments
as provided herein (the "Warrant Share Price"). As used herein, the term
"Conversion Price" shall mean an amount equal to $1.00 per share. Securities
issuable upon exercise of this Warrant and the exercise price payable therefor
are subject to adjustment from time to time as hereinafter set forth. As used
herein, the term "Warrant" shall include any warrant or warrants hereafter
issued in consequence of the exercise of this Warrant in part or transfer of
this Warrant in whole or in part.
1. Exercise; Payment for Ownership Interest.
(a) Upon the terms and subject to the conditions set forth herein, this
Warrant may be exercised in whole or in part by the Holder hereof at any time,
or from time to time, on or after the date hereof and prior to 5 p.m. New York
time on June 7, 2005, by presentation and surrender of this Warrant to the
principal offices of the Company, or at the office of its Transfer Agent (as
hereinafter defined), if any, together with the Purchase Form annexed hereto,
duly executed, and accompanied by payment to the Company of an amount equal to
the Warrant Share Price multiplied by the number of Warrant Shares as to which
this Warrant is then being exercised; provided, however, that in each case, the
minimum number of Warrant Shares as to which this Warrant is being
exercised shall not be less than 1,000 Warrant Shares; provided, further, that
in the event of any merger, consolidation or sale of all or substantially all
the assets of the Company resulting in any distribution to the Company's
stockholders, prior to June 7, 2005, the Holder shall have the right to exercise
this Warrant commencing at such time through June 7, 2005 into the kind and
amount of shares of stock and other securities and property (including cash)
receivable by a holder of the number of shares of Common Stock into which this
Warrant might have been exercisable immediately prior thereto. Any transfer of
Warrant Shares obtained by the Holder in exercise of this Warrant is subject to
the requirement that such securities be registered under the Securities Act of
1933, as amended (the "1933 Act"), and applicable state securities laws or
exempt from registration under such laws. The Holder of this Warrant shall be
deemed to be a shareholder of the Warrant Shares as to which this Warrant is
exercised in accordance herewith effective immediately after the close of
business on the date on which the Holder shall have delivered to the Company
this Warrant in proper form for exercise and payment by certified or official
bank check or wire transfer of the cash purchase price for the number of Warrant
Shares as to which the exercise is being made, or by delivery to the Company of
securities of the Company having a value equal to the cash purchase price for
such number of Warrant Shares determined as of the date of delivery,
notwithstanding that the stock transfer books of the Company shall be then
closed or that certificates representing such Warrant Shares shall not then be
physically delivered to the Holder.
(b) All or any portion of the Warrant Share Price may be paid by
surrendering Warrants effected by presentation and surrender of this Warrant to
the Company, or at the office of its Transfer Agent, if any, with a Cashless
Exercise Form annexed hereto duly executed (a "Cashless Exercise"). Such
presentation and surrender shall be deemed a waiver by the Company of the
Holder's obligation to pay all or any portion of the aggregate Warrant Share
Price. Except as provided in Section 3(b) below, in the event of a Cashless
Exercise, the Holder shall exchange its Warrant for that number of shares of
Common Stock determined by multiplying the number of Warrant Shares for which
the Holder desires to exercise this Warrant by a fraction, the numerator of
which shall be the difference between the then current market price per share of
the Common Stock and the Warrant Share Price, and the denominator of which shall
be the then current market price per share of Common Stock. For purposes of any
computation under this Section 1(b), the then current market price per share of
Common Stock at any date shall be deemed to be the average for the ten
consecutive business days immediately prior to the Cashless Exercise of the
daily closing prices of the Common Stock on the principal national securities
exchange on which the Common Stock is admitted to trading or listed, or if not
listed or admitted to trading on any such exchange, the closing prices as
reported by the Nasdaq National Market or, if applicable, the Nasdaq SmallCap
Market, or if not then included for quotation on the Nasdaq National Market or
the Nasdaq SmallCap Market, the average of the highest reported bid and lowest
reported asked prices as reported by the OTC Bulletin Board or the National
Quotations Bureau, as the case may be, or if not then publicly traded, the fair
market price, not less than book value
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thereof, of the Common Stock as determined in good faith by the Board of
Directors of the Company.
(c) If this Warrant shall be exercised in part only, the Company shall,
upon surrender of this Warrant for cancellation, execute and deliver a new
Warrant evidencing the rights of the Holder thereof to purchase the balance of
the Warrant Shares purchasable hereunder as to which the Warrant has not been
exercised. If this Warrant is exercised in part, such exercise shall be for a
whole number of Warrant Shares. Upon any exercise and surrender of this Warrant,
the Company (i) will issue and deliver to the Holder a certificate or
certificates in the name of the Holder for the largest whole number of Warrant
Shares to which the Holder shall be entitled and, if this Warrant is exercised
in whole, in lieu of any fractional Warrant Share to which the Holder otherwise
might be entitled, cash in an amount equal to the fair value of such fractional
Warrant Share (determined in such reasonable and equitable manner as the Board
of Directors of the Company shall in good faith determine), and (ii) will
deliver to the Holder such other securities, properties and cash which the
Holder may be entitled to receive upon such exercise, or the proportionate part
thereof if this Warrant is exercised in part, pursuant to the provisions of this
Warrant.
2. Anti-Dilution Provisions. The Warrant Share Price in effect at any
time and the number and kind of securities issuable upon exercise of this
Warrant and the Warrant Share Price shall be subject to adjustment from time to
time upon happening of certain events as follows:
2.1 Reorganization, Reclassification, Consolidation, Merger or Sale. If
any capital reorganization, reclassification or any other change of capital
stock of the Company, or any consolidation or merger of the Company with another
person, or the sale or transfer of all or substantially all of its assets to
another person shall be effected in such a way that holders of shares of Common
Stock shall be entitled to receive stock, securities or assets with respect to
or in exchange for their shares of Common Stock, then, as a condition precedent
to such transaction, provision shall be made by the Company, in accordance with
this Section 2.1, whereby the Holder hereof shall thereafter have the right to
purchase and receive, upon the basis and upon the terms and conditions specified
in this Warrant Agreement and in addition to or in exchange for, as applicable,
the Warrant Shares subject to this Warrant immediately theretofore purchasable
and receivable upon the exercise of the rights represented hereby, such
securities or assets as would have been issued or payable with respect to or in
exchange for the aggregate Warrant Shares immediately theretofore purchasable
and receivable upon the exercise of the rights represented hereby if exercise of
the Warrant had occurred immediately prior to such reorganization,
reclassification, consolidation, merger or sale. The Company will not effect any
such consolidation, merger, sale, transfer or lease unless prior to the
consummation thereof the successor entity (if other than the Company) resulting
from such consolidation or merger or the entity purchasing such assets shall
assume by written instrument (i) the obligation to deliver to the Holder such
securities or assets as, in
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accordance with the foregoing provisions, the Holder may be entitled to
purchase, and (ii) all other obligations of the Company under this Warrant. The
provisions of this Section 2.1 shall similarly apply to successive
consolidations, mergers, exchanges, sales, transfers or leases. In the event
that in connection with any such capital reorganization or reclassification,
consolidation, merger, sale or transfer, additional shares of Common Stock shall
be issued in exchange, conversion, substitution or payment, in whole or in part,
for a security of the Company other than Common Stock, any such issue shall be
treated as an issue of Common Stock covered by the provisions of Section 2.2
hereof.
2.2 Stock Dividends and Securities Distributions. If, at any time or
from time to time after the date of this Warrant, the Company shall distribute
to the holders of shares of Common Stock (i) securities (including rights,
warrants, options or another form of convertible securities), (ii) property,
other than cash, or (iii) cash, without fair payment therefor, then, and in each
such case, the Holder, upon the exercise of this Warrant, shall be entitled to
receive such securities, property and cash which the Holder would hold on the
date of such exercise if, on the date of the distribution, the Holder had been
the holder of record of the shares of Common Stock issued upon such exercise
and, during the period from the date of this Warrant to and including the date
of such exercise, had retained such shares of Common Stock and the securities,
property and cash receivable by the Holder during such period, subject, however,
to the Holder agreeing to any conditions to such distribution as were required
of all other holders of shares of Common Stock in connection with such
distribution. If the securities to be distributed by the Company involve rights,
warrants, options or any other form of convertible securities and the right to
exercise or convert such securities would expire in accordance with its terms
prior to the exercise of this Warrant, then the terms of such securities shall
provide that such exercise or convertibility right shall remain in effect until
thirty (30) days after the date the Holder of this Warrant receives such
securities pursuant to the exercise hereof.
2.3 Other Adjustments. In addition to those adjustments set forth in
Sections 2.1 and 2.2, but without duplication of the adjustments to be made
under such Sections, if the Company:
(i) declares or pays a dividend or makes a distribution on its
Common Stock in shares of its Common Stock;
(ii) subdivides or reclassifies its outstanding shares of Common
Stock into a greater number of shares;
(iii) combines or reclassifies its outstanding shares of Common
Stock into a smaller number of shares;
(iv) makes a distribution on its Common Stock in shares of its
capital stock other than Common Stock; and/or
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(v) issues, by reclassification of its Common Stock, any shares of
its capital stock;
then the number and kind of Warrant Shares purchasable upon exercise of this
Warrant shall be adjusted so that the Holder upon exercise hereof shall be
entitled to receive the kind and number of Warrant Shares or other securities of
the Company that the Holder would have owned or have been entitled to receive
after the happening of any of the events described above had this Warrant been
exercised immediately prior to the happening of such event or any record date
with respect thereto. An adjustment made pursuant to this Section 2.3 shall
become effective immediately after the record date in the case of a dividend or
distribution and shall become effective immediately after the effective date in
the case of a subdivision, combination or issuance. If, as a result of an
adjustment made pursuant to this Section 2.3, the Holder of this Warrant
thereafter surrendered for exercise shall become entitled to receive shares of
two or more classes of capital stock or shares of Common Stock and any other
class of capital stock of the Company, the Board of Directors (whose
determination shall be conclusive and shall be described in a written notice to
all holders of Warrants promptly after such adjustment) shall determine the
allocation of the adjusted Warrant Share Price between or among shares of such
classes of capital stock or shares of Common Stock and such other class of
capital stock.
The adjustment to the number of Warrant Shares purchasable upon the
exercise of this Warrant described in this Section 2.3 shall be made each time
any event listed in paragraphs (i) through (v) of this Section 2.3 occurs.
Simultaneously with all adjustments to the number and/or kind of
securities, property and cash under this Section 2.3 to be issued in connection
with the exercise of this Warrant, the Warrant Share Price will also be
appropriately and proportionately adjusted.
In the event that at any time, as a result of an adjustment made
pursuant to this Section 2.3, the Holder of this Warrant thereafter shall become
entitled to receive any shares of the Company, other than Common Stock,
thereafter the number of such other shares so receivable upon exercise of this
Warrant shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to the
Common Stock contained in Sections 2.1 and 2.2 above and Section 2.4 below.
2.4 Sale of Securities. In the event the Company, at any time after the
date of this Warrant, issues additional Common Stock, convertible preferred
stock, options, warrants, or other securities convertible into or exercisable
for Common Stock other than securities currently outstanding as of the date
hereof or issued upon the conversion or exercise of any securities outstanding
as of the date hereof, at a purchase price less than (i) in the case of any such
issuance effected or agreed to by the Company prior to June 7, 2001, the Warrant
Share Price in effect immediately prior to such issuance or sale, then
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the Warrant Share Price shall be automatically reduced to such lower purchase
price and the number of Warrant Shares shall be increased to a number determined
by multiplying the number of Warrant Shares so purchasable immediately prior to
the date of such issuance or sale by a fraction, the numerator of which shall be
the Warrant Share Price in effect immediately prior to the adjustment required
by this Section 2.4 and the denominator of which shall be the Warrant Share
Price in effect immediately after such adjustment or (ii) the current market
price per share of Common Stock (determined in the manner contemplated by
Section 1(b) above) on the date the Company becomes obligated to make such
issuance, or in the case of any such issuance effected or agreed to by the
Company after June 7, 2001, the Warrant Share Price then effective upon such
issuance or sale, the Warrant Share Price shall be reduced to the price
determined by multiplying the Warrant Share Price in effect immediately prior to
such issuance or sale by a fraction, the numerator of which shall be the sum of
(A) the number of shares of Common Stock outstanding (exclusive of any treasury
shares) immediately prior to such issuance or sale multiplied by the current
market price per share of Common Stock on the date of such issuance or sale
(determined in the manner contemplated by Section 1(b) above), plus (B) the
consideration received by the Company upon such issuance or sale, and the
denominator of which shall be the product of (X) the total number of shares of
Common Stock outstanding (exclusive of any treasury shares) immediately after
such issuance or, multiplied by (Y) the current market price per share of Common
Stock on the date of such issuance or sale (determined in the manner
contemplated by Section 1(b) above); and the number of Warrant Shares
purchasable upon the exercise of the Warrants shall be increased to a number
determined by multiplying the number of Shares so purchasable immediately prior
to the date of such issuance or sale by a fraction, the numerator of which shall
be the Warrant Share Price in effect immediately prior to the adjustment
required by this Section 2.4 and the denominator of which shall be the Warrant
Share Price in effect immediately after such adjustment;
provided, however, that no adjustment to the Warrant Share Price or the number
and kind of Warrant Shares shall be made pursuant to this Section 2.4 in the
event (i) the Company grants options to employees, officers, directors or
consultants of the Company pursuant to contracts or plans heretofore approved by
the Board of Directors of the Company, (ii) of the issuance of securities to a
"strategic partner" as determined by the Board of Directors of the Company,
(iii) of the issuance of securities pursuant to a strategic acquisition as
determined by the Board of Directors of the Company, or (iv) of the issuance of
up to an aggregate of 250,000 shares (as appropriately adjusted for stock
splits, stock dividends, and similar adjustments after the Issuance Date) of
Common Stock (or convertible preferred stock, options, warrants or other
securities convertible into or exercisable for Common Stock) at a purchase price
less than the Warrant Share Price and not otherwise excepted pursuant to clause
(i), (ii) and (iii) above.
(a) For the purpose of making any adjustment in the Warrant Share Price
as provided in this Section 2.4, the consideration received by the Company for
any issue or sale of Common Stock will be computed:
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(i) to the extent it consists of cash, as the amount of cash
received by the Company before deduction of any offering
expenses payable by the Company and any underwriting or
similar commissions, compensation, or concessions paid or
allowed by the Company in connection with such issue or sale;
(ii) to the extent it consists of property other than cash, at the
fair market value of that property as determined in good faith
by the Company's Board of Directors (irrespective of the
accounting treatment thereof); and
(iii) if Common Stock is issued or sold together with other stock or
securities (including convertible preferred stock, options,
warrants or securities convertible into or exchangeable for
common stock) or other assets of the Company for a
consideration which covers both, as the portion of the
consideration so received that may be reasonably determined in
good faith by the Company's Board of Directors to be allocable
to such Common Stock; provided, however, that with respect to
such other stock or securities, such consideration as
determined by the Company's Board of Directors shall not be
less than the total consideration received by the Company for
the issuance of such other stock or securities plus the
additional aggregate consideration, if any, to be received by
the Company upon conversion or exchange thereof.
(b) If the Company (i) issues, grants or sells any rights or options to
subscribe for, purchase, or otherwise acquire shares of Common Stock, or (ii)
issues or sells any security convertible into shares of Common Stock, then, in
each case, the price per share of Common Stock issuable on the exercise of the
rights or options or the conversion of the securities will be determined by
dividing (x) the total amount, if any, received or receivable by the Company as
consideration for the granting or sale of the rights or options or the issue or
sale of the convertible securities, plus the minimum aggregate amount of
additional consideration payable to the Company on exercise or conversion of the
securities, by (y) the maximum number of shares of Common Stock issuable on the
exercise of conversion. Such granting or issue or sale will be considered to be
an issue or sale for cash of the maximum number of shares of Common Stock
issuable on exercise or conversion at the price per share determined under this
Section 2.4, and the Warrant Share Price will be adjusted as above provided to
reflect (on the basis of that determination) the issue or sale. No further
adjustment of the Warrant Share Price will be made as a result of the actual
issuance of shares of Common Stock on the
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exercise of any such rights or options or the conversion of any such convertible
securities.
(c) Upon the redemption or repurchase of any such securities or the
expiration or termination of the right to convert into, exchange for, or
exercise with respect to, Common Stock, the Warrant Share Price will be
readjusted to such price as would have been obtained had the adjustment made
upon their issuance been made upon the basis of the issuance of only the number
of such securities as were actually converted into, exchanged for, or exercised
with respect to, Common Stock. If the purchase price or conversion or exchange
rate provided for in any such security changes at any time, then, upon such
change becoming effective, the Warrant Share Price then in effect will be
readjusted to such price as would have been obtained had the adjustment made
upon the issuance of such securities been made upon the basis of (i) the
issuance of only the number of shares of Common Stock theretofore actually
delivered upon the conversion, exchange or exercise of such securities, and the
total consideration received therefor, and (ii) the granting or issuance, at the
time of such change, of any such securities then still outstanding for the
consideration, if any, received by the Company therefor and to be received on
the basis of such changed price or rate.
2.5 Other Action Affecting Warrant Shares. If the Company takes any
action affecting its shares of Common Stock after the date hereof, that would be
covered by Sections 2.1, 2.2 or 2.3 but for the manner in which such action is
taken or structured, which would in any way diminish the value of this Warrant,
then the Warrant Share Price shall be adjusted in such manner as the Board of
Directors of the Company shall in good faith determine to be equitable under the
circumstances.
2.6 Notice of Adjustments. Upon the occurrence of each adjustment or
readjustment of the Warrant Share Price pursuant to this Section 2, the Company
at its expense will promptly compute such adjustment or readjustment in
accordance with the terms of this Warrant and prepare a certificate setting
forth such adjustment or readjustment, including a statement of the adjusted
Warrant Share Price or adjusted number of shares of Common Stock, if any,
issuable upon exercise of each Warrant, describing the transaction giving rise
to such adjustments and showing in detail the facts upon which such adjustment
or readjustment is based. The Company will forthwith mail, by first class mail,
postage prepaid, a copy of each such certificate to the Holder of this Warrant
at the address of such Holder as shown on the books of the Company, and to its
Transfer Agent.
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2.7 Other Notices. If at any time:
(a) the Company shall (i) offer for subscription pro rata to the
holders of shares of the Common Stock any additional equity in the Company or
other rights; (ii) pay a dividend in additional shares of the Common Stock or
distribute securities or other property to the holders of shares of the Common
Stock (including, without limitation, evidences of indebtedness and equity and
debt securities); or (iii) issue securities convertible into, or rights or
warrants to purchase, securities of the Company;
(b) there shall be any capital reorganization or reclassification or
consolidation or merger of the Company with, or sale, transfer or lease of all
or substantially all of its assets to, another entity; or
(c) there shall be a voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then, in any one or more of said cases, the Company shall give, by first class
mail, postage prepaid, to the Holder of this Warrant at the address of such
Holder as shown on the books of the Company, (a) at least 15 days' prior written
notice of the date on which the books of the Company shall close or a record
shall be taken for such subscription rights, dividend, distribution or issuance,
and (b) in the case of any such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation or winding up, at least 15 days' prior
written notice of the date when the same shall take place if no stockholder vote
is required and at least 15 days' prior written notice of the record date for
stockholders entitled to vote upon such matter if a stockholder vote is
required. Such notice in accordance with the foregoing clause (a) shall also
specify, in the case of any such subscription rights, the date on which the
holders of shares of Common Stock shall be entitled to exercise their rights
with respect thereto, and such notice in accordance with the foregoing clause
(b) shall also specify the date on which the holders of shares of Common Stock
shall be entitled to exchange their shares of Common Stock for securities or
other property deliverable upon such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up, as the case
may be. Failure to give the notice referred to herein shall not affect the
validity or legality of the action which should have been the subject of the
notice.
2.8 No adjustment in the Warrant Share Price shall be required unless
such adjustment would require an increase or decrease of at least one cent
($0.01) in such price; provided, however, that any adjustments which by reason
of this Section 2.8 are not required to be made shall be carried forward and
taken into account in any subsequent adjustment required to be made hereunder.
All calculations under this Section 2 shall be made to the nearest cent or to
the nearest one-hundredth of a share, as the case may be.
3. No Voting Rights. This Warrant shall not be deemed to confer upon
the Holder any right to vote or to consent to or receive notice as a stockholder
of the Company, as
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such, in respect of any matters whatsoever, or any other rights or liabilities
as a stockholder, prior to the exercise hereof.
4. Warrants Transferable. This Warrant and all rights hereunder are
transferable, in whole or in part, at the principal offices of the Company by
the Holder hereof, upon surrender of this Warrant properly endorsed; provided,
however, that in each case the minimum number of Warrant Shares being
transferred by the Holder shall not be less than 1,000 Warrant Shares; provided,
further, that without the prior written consent of the Company, this Warrant and
all rights hereunder may be transferred only (i) to an affiliate of the initial
Holder hereof or successor in interest to any such person in a transaction
exempt from registration under the 1933 Act; or (ii) pursuant to the
registration of this Warrant or the Warrant Shares under the 1933 Act or
subsequent to one year from the date hereof pursuant to an available exemption
from such registration.
5. Warrants Exchangeable; Assignment; Loss, Theft, Destruction, Etc.
This Warrant is exchangeable, without expense, upon surrender hereof by the
Holder hereof at the principal offices of the Company, or at the office of its
Transfer Agent, if any, for new Warrants of like tenor representing in the
aggregate the right to subscribe for and purchase the Warrant Shares which may
be subscribed for and purchased hereunder, each such new Warrant to represent
the right to subscribe for and purchase such Warrant Shares as shall be
designated by such Holder hereof at the time of such surrender. Upon surrender
of this Warrant to the Company at its principal office, or at the office of its
Transfer Agent, if any, with an instrument of assignment duly executed and funds
sufficient to pay any transfer tax, the Company shall, without charge, execute
and deliver a new Warrant in the name of the assignee named in such instrument
of assignment and this Warrant shall promptly be cancelled. This Warrant may be
divided or combined with other warrants which carry the same rights upon
presentation hereof at the principal office of the Company, or at the office of
its Transfer Agent, if any, together with a written notice specifying the names
and denominations in which new Warrants are to be issued and signed by the
Holder hereof. The term "Warrant" as used herein includes any Warrants into
which this Warrant may be divided or exchanged. Upon receipt of evidence
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction, upon
delivery of a bond or indemnity satisfactory to the Company, or, in the case of
any such mutilation, upon surrender or cancellation of this Warrant, the Company
will issue to the Holder hereof a new Warrant of like tenor, in lieu of this
Warrant, representing the right to subscribe for and purchase the Warrant Shares
which may be subscribed for and purchased hereunder. Any such new Warrant
executed and delivered shall constitute an additional contractual obligation of
the Company, whether or not this Warrant so lost, stolen, destroyed, or
mutilated shall be at any time enforceable by anyone.
6. Legends; Investment Representations. Any certificate evidencing the
securities issued upon exercise of this Warrant shall bear a legend in
substantially the following form:
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
AND SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED UNLESS SO
REGISTERED OR AN EXEMPTION FROM REGISTRATION UNDER SAID ACT IS
AVAILABLE.
7. Modifications and Waivers. The terms of the Warrants may be amended,
modified or waived only by the written agreement of the Company and the Holder.
8. Miscellaneous. The Company shall pay all expenses and other charges
payable in connection with the preparation, issuance and delivery of this
Warrant and all substitute Warrants. The Holder shall pay all taxes (other than
any issuance taxes, including, without limitation, documentary stamp taxes,
transfer taxes and other governmental charges, which shall be paid by the
Company) in connection with such issuance and delivery of the Warrants and the
Warrant Shares.
The Company shall maintain, at the office or agency of the Company
maintained by the Company, books for the registration and transfer of the
Warrant.
9. Reservation of Warrant Shares. The Company will at all times reserve
and keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued Common Stock or its authorized and issued Common Stock
held in its treasury, solely for the purpose of enabling it to satisfy any
obligation to issue Warrant Shares upon exercise of this Warrant, the maximum
number of shares of Common Stock which may then be deliverable upon the exercise
of this Warrant.
The Company or, if appointed, the Transfer Agent for the Common Stock
(the "Transfer Agent") and every subsequent transfer agent for any shares of the
Company's capital stock issuable upon the exercise of any of the rights of
purchase aforesaid will be irrevocably authorized and directed at all times to
reserve such number of authorized shares as shall be required for such purpose.
The Company will keep a copy of this Warrant on file with the Transfer Agent and
with every subsequent transfer agent for any shares of the Company's capital
stock issuable upon the exercise of the rights of purchase represented by this
Warrant. The Company will furnish such Transfer Agent a copy of all notices of
adjustments and certificates related thereto transmitted to the Holder pursuant
to Section 2.6 hereof.
The Company covenants that all Warrant Shares which may be issued upon
exercise of this Warrant will, upon issue, be fully paid, nonassessable, free of
preemptive rights and free from all taxes, liens, charges and security interests
with respect to the issue thereof.
10. Registration. The Holder shall be entitled to unlimited "piggyback"
registration rights (subject to standard and customary underwriters' holdback
requests) from the date
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hereof with respect to the Warrant Shares and in addition to any other
registration rights that the Holder and the Company may agree to subsequent to
the date hereof.
11. Descriptive Headings and Governing Law. The descriptive headings of
the several paragraphs of this Warrant are inserted for convenience only and do
not constitute a part of this Warrant. This Warrant shall be construed and
enforced in accordance with the laws of the State of New York, and the rights of
the parties shall be governed by, the law of such State.
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IN WITNESS WHEREOF, this Warrant Agreement has been executed as of the
15th day of June, 2000.
PROXYMED, INC.
By:
----------------------------------------
Name:
Title:
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PURCHASE FORM
Dated:__________, ____
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing _____ Warrant Shares and hereby makes
payment of $_____________ in payment of the exercise price thereof.
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14
CASHLESS EXERCISE
Dated:__________, ____
The undersigned irrevocably elects to exercise the within Warrant for
Warrant Shares and hereby makes payment pursuant to the Cashless Exercise
provision of the within Warrant, and directs that the payment of the Warrant
Share Price be made by cancellation as of the date of exercise of a portion of
the within Warrant in accordance with the terms and provisions of Section 1(b)
of the within Warrant.
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15
Annex B
All capitalized terms used, and not defined herein, shall have the
meanings ascribed to such terms in the Subscription Agreement.
Each Subscriber hereby represents that during the period commencing on
the date hereof and ending on the first anniversary of the initial Closing (the
"Lock-Up Period"), such Subscriber will not, directly or indirectly (including,
without limitation, through the entering into of a cash-settled derivative
instrument), offer for sale, sell, contract for sale, assign, transfer, pledge
or otherwise dispose of any of the Conversion Shares and Warrant Shares acquired
by such Subscriber pursuant to the Subscription Agreement during the Lock-Up
Period. Each Subscriber further agrees that Lock-Up Period may, at the
discretion of Commonwealth be extended for up to an additional twelve months.
Commonwealth may, in its sole discretion release the undersigned from the
Lock-Up Period or any extensions thereto prior to the end of the Lock-Up Period.
In order to enforce this covenant, the Company will impose stop-transfer
instructions with respect to all securities of the Company that are currently
held by the undersigned or that are acquired by the undersigned during the
Lock-Up Period, until the end of the Lock-Up Period.
Notwithstanding the foregoing, if any such Subscriber is an individual,
he or she may transfer any securities of the Company either during his or her
lifetime or on death by will or intestacy to his or her immediate family or to a
custodian, trustee (including a trustee of a voting trust), executor or other
fiduciary for the account of his or her immediate family, a trust, the
beneficiaries of which are exclusively the undersigned and/or a member or
members of his or her immediate family, or a charitable remainder trust;
provided that such transferee agrees to be bound by the provisions of this
lock-up agreement. For the purposes of this paragraph, "immediate family" shall
mean spouse, lineal descendant, father, mother, brother or sister of the
transferor, or lineal descendant of brother or sister of the transferor.
