Exhibit 4(x)
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (this "Agreement"), dated as of October __, 1997, by
and between MEDCROSS, INC., a Florida corporation (the "Company"), and WINTER
HARBOR, L.L.C., a Delaware limited liability company (the "Investor").
R E C I T A L S:
WHEREAS, concurrently with the execution and delivery of this Agreement,
the Company is issuing and selling to the Investor Series A Warrants, Series B
Warrants and Series C Warrants of the Company (being referred to herein as the
"Warrants"), such Warrants initially entitling the holders thereof to purchase
shares of Common Stock of the Company (the "Common Stock"), subject to
adjustment as hereinafter provided (the Common Stock and, pursuant to Article 7
hereof, such other securities as may be issuable upon exercise of the Warrants
being referred to herein as the "Warrant Shares"); and
WHEREAS, the Company wishes to define the terms and provisions of the
Warrants and the respective rights and obligations thereunder of the Company and
the holders of the Warrants (the "Warrantholders");
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
agreements herein set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Certain Definitions. As used in this Agreement, the following
terms have the meanings specified below:
"Amended Articles" means the Amended and Restated Articles of Incorporation
of the Company as amended to include the Articles of Amendment setting forth the
rights, preferences and privileges of the Series M Preferred Stock.
"Board of Directors" means the Board of Directors of the Company.
"Business Day" means any day other than Saturday, Sunday or any other day
on which banking institutions in the City of New York, New York are
permitted or required to close.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"GAAP" means generally accepted accounting principles set forth in opinions
and pronouncements of the Accounting Principles Board of the American Institute
of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board or in such other statements by such other
entity as may be approved by a significant segment of the accounting profession,
in each case as the same are applicable to the circumstances as of the date of
the determination.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity.
"SEC" means the Securities and Exchange Commission or any successor
thereto.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Securities Purchase Agreement" means that certain Securities Purchase
Agreement by and between the Company and the Investor, dated as of September 30,
1997.
"Series M Preferred Stock" means the Series M Participating Convertible
Preferred Stock issued to the Investor.
ARTICLE 2
ISSUANCE, FORM AND EXECUTION OF WARRANT CERTIFICATES
SECTION 2.1 Issuance of Warrants. The Warrants shall be originally issued
by the Company in connection with the issuance of Series M Preferred Stock
pursuant to the Securities Purchase Agreement. The Warrants shall be evidenced
by Warrant Certificates, and each Warrant Certificate shall represent the right,
subject to the provisions contained herein and therein, to purchase from the
Company (and the Company shall issue and sell to the registered holder of such
Warrants) the number of shares of Common Stock (as may be adjusted pursuant to
Article 7 hereof) issuable to the Warrantholder upon exercise of such Warrants,
at the price specified herein and therein.
SECTION 2.2 Form of Warrant Certificates. The certificates evidencing the
Warrants (the "Warrant Certificates") shall be in registered form only and shall
be substantially in the form set forth in Exhibits X-0, X-0 and A-3 attached
hereto, shall be dated the date on which signed by the Company and may have such
letters,
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numbers or other marks of identification or designation printed, lithographed,
engraved or otherwise affixed thereon as the Company may deem appropriate and as
are not inconsistent with the provisions of this Agreement or the Securities
Purchase Agreement, or as may be required to comply with any law or with any
rule or regulation made pursuant thereto.
SECTION 2.3 Execution of Warrant Certificates. Warrant Certificates shall
be executed on behalf of the Company by the president, any vice president or the
treasurer of the Company and signed by the secretary or any assistant secretary
of the Company and have affixed thereon the seal of the Company. Each such
signature and seal may be manual or facsimile.
In case any officer of the Company who shall have signed any of the Warrant
Certificates shall cease to be such officer before countersignature and delivery
by the Company, such Warrant Certificates, nevertheless, may be countersigned,
issued and delivered with the same force and effect as though such person had
not ceased to be such officer; and any Warrant Certificate may be signed on
behalf of the Company by any person who, at the actual date of the execution of
such Warrant Certificate, shall be a proper officer of the Company to sign such
Warrant Certificate, although at the date of the execution of this Agreement
such person was not such an officer of the Company. Upon countersignature on
behalf of the Company and delivery, the Warrant Certificate shall be valid and
binding upon the Company, and the Warrantholder thereof shall be entitled to all
of the benefits of this Agreement.
ARTICLE 3
REGISTRATION
SECTION 3.1 Registration. The Company shall number and register the
Warrant Certificates in a register (the "Warrant Register") maintained at 00000
Xxxxx Xxxxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxx 00000 (the "Office") as they
are issued by the Company (or such other location as the Company may establish
after giving notice thereof to the Warrantholders). The Company shall keep
copies of this Agreement available for inspection by the Warrantholders during
normal business hours at the Office.
ARTICLE 4
TRANSFER, EXCHANGE OR REPLACEMENT OF WARRANT CERTIFICATES
SECTION 4.1 Registration of Transfers. The Company shall from time to time
register the transfer of any outstanding Warrant Certificate on the Warrant
Register maintained at the Office, upon surrender thereof accompanied by a
written instrument or
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instruments of transfer in form reasonably satisfactory to the Company, duly
endorsed by the registered holder thereof or by such Warrantholder's appointed
legal representative or attorney-in-fact, or accompanied by proper evidence of
succession, assignment or authority to transfer. In all cases of transfer by an
attorney, the original power of attorney, duly approved, or an official copy
thereof, duly certified, shall be deposited and remain with the Company. Upon
any such registration or transfer in such name or names as may be directed in
writing by the Warrantholder, the Company shall execute and deliver (or cause to
be delivered) a new Warrant Certificate(s) without charge to such Warrantholder,
or to the Person or Persons entitled to receive the same, and the surrendered
Warrant Certificate shall be canceled by the Company.
SECTION 4.2 Exchanges of Warrant Certificates. Each Warrant Certificate
may be exchanged at the option of the Warrantholder without charge to such
Warrantholder when surrendered to the Company at the Office properly endorsed in
the manner described in Section 4.1 hereof for another Warrant Certificate(s) of
like tenor and representing in the aggregate a like number of shares of Common
Stock, as may be adjusted pursuant to Article 7 hereof. Thereupon, the Company
shall execute and deliver to the Person(s) entitled thereto a new Warrant
Certificate(s) as so requested. Warrant Certificates surrendered for exchange
shall be canceled by the Company.
SECTION 4.3 Mutilated or Missing Warrant Certificates. In the event that
any Warrant Certificate shall be mutilated, lost, stolen or destroyed, the
Company shall execute and deliver in exchange and substitution for and upon
cancellation of the mutilated Warrant Certificate, or in lieu of and
substitution for the Warrant Certificate lost, stolen or destroyed, a new
Warrant Certificate of like tenor and representing Warrants for a like amount of
Warrant Shares, but only, in case of a lost, stolen or destroyed Warrant
Certificate, upon receipt of evidence satisfactory to the Company of such loss,
theft or destruction and the absence of actual notice to the Company that such
Warrant Certificate has been acquired by a bona fide purchaser or holder in due
course. Every substitute Warrant Certificate executed and delivered pursuant to
this Section 4.3 in lieu of any lost, stolen or destroyed Warrant Certificate
shall constitute an additional contractual obligation of the Company, whether or
not the lost, stolen or destroyed Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to the benefits of (but shall be
subject to all the limitations of rights set forth in) this Agreement equally
and proportionately with any and all other Warrant Certificates duly executed
and delivered hereunder. The provisions of this Section 4.3 are exclusive with
respect to the replacement of mutilated, lost, stolen or destroyed Warrant
Certificates.
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ARTICLE 5
EXERCISE OF WARRANTS; EXERCISE PRICE; EXERCISE PERIOD
SECTION 5.1 Exercise of Warrants. Subject to the provisions of this
Agreement, each Warrantholder shall have the right to purchase from the Company
the number of shares of Common Stock that the Warrantholder may at the time be
entitled to purchase on exercise of the Warrants and payment of the Exercise
Price (as defined below) for such Warrant Shares.
SECTION 5.2 Mechanics of Exercise.
(a) Subject to the provisions of this Agreement, Warrants may be
exercised by the Warrantholder in whole or in part upon surrender at the Office
to the Company of the Warrant Certificate(s) evidencing the Warrants, together
with the form of election to purchase (the "Election to Purchase"), in the form
set forth as Exhibit B hereto, duly completed and signed by such Warrantholder
or by such Warrantholder's appointed legal representative or attorney-in-fact
and upon payment in full of the Exercise Price for each Warrant exercised.
Payment of the aggregate Exercise Price shall be made by certified or official
bank check payable to the order of the Company.
(b) Upon due exercise of the Warrants and surrender of the Warrant
Certificate, duly completed and signed, and payment of the Exercise Price as
aforesaid, the Company shall cause to be issued to or upon the written order of
the Warrantholder and in such name or names as the Warrantholder may designate
in the Election to Purchase, the Warrant Shares so purchased. If all of the
items referred to in the first sentence of the preceding paragraph are received
by the Company at or prior to 1:00 p.m., Delaware time, on a Business Day, the
exercise of the Warrants to which such items relate will be effective on such
Business Day. If all of such items are received after 1:00 p.m., Delaware time,
on a Business Day, the exercise of the Warrants to which such items relate will
be effective on the next Business Day.
(c) The number and kind of Warrant Shares for which Warrants may be
exercised shall be subject to adjustment from time to time as set forth in
Article 7 hereof.
(d) The Warrants shall be exercisable as provided herein at the
election of the Warrantholder in whole or in part. In the event that the holder
of a Warrant Certificate shall exercise Warrants with respect to fewer than all
the Warrant Shares evidenced thereby, a new Warrant Certificate(s) evidencing
the remaining unexercised Warrant Shares shall be issued to such Warrantholder,
and the Company is hereby irrevocably authorized to execute and deliver the
required new Warrant Certificate(s)
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pursuant to provisions of Article 2 and Article 3 of this Agreement.
(e) All Warrant Certificates surrendered upon exercise of Warrants
shall be canceled and disposed of by the Company.
SECTION 5.3 Exercise Price. The price at which each of the Series A
Warrants, the Series B Warrants, and the Series C Warrants shall be exercisable
in exchange for Warrant Shares shall be the price as set forth below (as such
price may be adjusted pursuant to Article 7 hereof) (being referred to herein as
the "Exercise Price"):
(a) $2.75 per Warrant Share for Series A Warrants;
(b) $4.00 per Warrant Share for Series B Warrants; and
(c) $4.69 per Warrant Share for Series C Warrants.
SECTION 5.4 Exercise Period. The right to exercise the Series A Warrants
shall terminate on the date which is thirty months from the date of issuance of
the Series A Warrants, and the right to exercise the Series B Warrants and the
Series C Warrants shall terminate on the date which is five years from the date
of issuance of the Series B Warrants or Series C Warrants, respectively (each
such respective date in the case of the Series A Warrants, Series B Warrants and
Series C Warrants being referred to herein as the "Expiration Date"). A
Warrantholder may exercise any Warrant from the date of issuance up to and
including the applicable Expiration Date. The Company shall record the
applicable Expiration Date of each Warrant in the Warrant Register.
SECTION 5.5 Cashless Exercise.
(a) At any time prior to the Expiration Date of any Warrants, the
Warrantholder may, at its option, exchange such Warrants, in whole or in part (a
"Warrant Exchange"), into the number of fully paid and non-assessable Warrant
Shares determined in accordance with this Section 5.5, by surrendering the
Warrant Certificate relating to such Warrants at the Office, accompanied by a
notice stating such Warrantholder's intent to effect such exchange, the number
of Warrant Shares to be exchanged and the date on which the Warrantholder
requests that such Warrant Exchange occur (the "Notice of Exchange"). The
Warrant Exchange shall take place on the date specified in the Notice of
Exchange, or, if later, the date the Notice of Exchange is received by the
Company (the "Exchange Date"). Certificates for the Warrant Shares issuable upon
such Warrant Exchange and, if applicable, a new Warrant Certificate of like
tenor evidencing the balance of the Warrant Shares remaining subject to the
Warrantholder's Warrant Certificate, shall be issued as of the Exchange Date and
delivered to the Warrantholder within three days following the Exchange Date.
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In connection with any Warrant Exchange, the Warrantholder's Warrant Certificate
shall represent the right to subscribe for and acquire the number of Warrant
Shares (rounded to the next highest integer) equal to (A) the number of Warrant
Shares specified by the Warrantholder in its Notice of Exchange (the "Total
Share Number") less (B) the number of Warrant Shares equal to the quotient
obtained by dividing (i) the product of the Total Share Number and the existing
Exercise Price per Warrant Share by (ii) the Market Price (as hereafter defined)
of a share of Common Stock.
(b) As used in this Section 5.5, the phrase "Market Price" at any date
shall be deemed to be the last reported sale price, or, in case no such reported
sale takes place on such day, the average of the last reported sale prices for
the last three trading days, in either case as officially reported by the
principal securities exchange on which the Common Stock is listed or admitted to
trading or by the Nasdaq Stock Market, National Market ("Nasdaq"), or, if the
Common Stock is not listed or admitted to trading on any national securities
exchange or quoted by Nasdaq, the average closing bid price as furnished by the
National Association of Securities Dealers, Inc. ("NASD") through Nasdaq or
similar organization if Nasdaq is no longer reporting such information, or if
the Common Stock is not quoted on Nasdaq, as determined in good faith by
resolution of the Board of Directors of the Company, based on the best
information available to it for the two days immediately preceding such issuance
or sale and the day of such issuance or sale.
ARTICLE 6
RESERVATION OF WARRANT SHARES
SECTION 6.1 Reservation. The Company shall at all times keep reserved,
free from preemptive rights, out of its authorized Common Stock, or other
securities of the Company issuable upon the exercise of the Warrants, a number
of shares of Common Stock, or such other securities, sufficient to provide for
the exercise of the right of purchase represented by all outstanding and
unexpired Warrants.
SECTION 6.2 Covenant. The Company covenants that any Warrant Shares will,
upon issuance, be validly issued and upon payment of the exercise price
therefor, fully paid and free from all taxes payable by the Company, liens,
charges and security interests (except any liens, charges or security interests
created or suffered to be created by any of the Warrantholders), and will not be
subject to any restrictions on voting or transfer thereof that are created by
the Company, except for such restrictions on transfer under the Securities Act
or applicable state securities laws.
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ARTICLE 7
ADJUSTMENTS AFFECTING THE EXERCISE OF WARRANTS
SECTION 7.1 Special Definitions. For purposes of this Article 7, the
following definitions shall apply:
(a) "Additional Shares of Common Stock" shall mean all shares of
Common Stock issued (or, pursuant to Section 7.2 below, deemed to be issued) by
the Company after the Original Issue Date, other than shares of Common Stock
issued or issuable:
(i) upon conversion of shares of the Company's Class B
Preferred Stock, Class C Preferred Stock, Series D Preferred Stock or Series M
Preferred Stock outstanding on the Original Issue Date;
(ii) upon the exercise of Warrants issued under the Securities
Purchase Agreement;
(iii) as a dividend or distribution on the Company's Class B
Preferred Stock, Class C Preferred Stock, Series D Preferred Stock, Series M
Preferred Stock or Warrants;
(iv) in connection with an acquisition or other transaction by
the Company, in either case approved by the Investor, unless the Company agrees
to include such issuance in the definition of Additional Shares of Common Stock
in connection with obtaining the approval of the Investor to such acquisition or
other transaction;
(v) by reason of a dividend, stock split, split-up or other
distribution on shares of Common Stock excluded from the definition of
Additional Shares of Common Stock by the foregoing clauses (i), (ii), (iii), and
(iv) or this clause (v); or
(vi) upon the exercise of options excluded from the definition
of "Option" in Section 7.1(c).
(b) "Convertible Securities" shall mean any evidences of indebtedness,
shares or other securities directly or indirectly convertible into or
exchangeable for Common Stock.
(c) "Option" shall mean rights, options or warrants to subscribe for,
purchase or otherwise acquire Common Stock or Convertible Securities, excluding
(i) options granted to employees or issued to consultants of the Company or
warrants which, in each such case, are outstanding as of the date of this
Agreement, (ii) any Warrants issued under this Agreement or as a direct result
of the issuance of Series M Preferred Stock pursuant to the Securities
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Purchase Agreement, or (iii) options granted to employees or consultants
pursuant to stock option plans adopted by the Board of Directors and approved by
the Compensation Committee of the Board of Directors and by the Investor after
the date hereof.
(d) "Original Issue Date" shall mean the date on which a Warrant was
first issued.
SECTION 7.2 Issue of Securities Deemed Issue of Additional Shares of
Common Stock. If the Company at any time or from time to time after the Original
Issue Date shall issue any Options or Convertible Securities or shall fix a
record date for the determination of holders of any class of securities entitled
to receive any such Options or Convertible Securities, then the maximum number
of shares of Common Stock (as set forth in the instrument relating thereto
without regard to any provision contained therein for a subsequent adjustment of
such number) issuable upon the exercise of such Options or, in the case of
Convertible Securities and Options therefor, the conversion or exchange of such
Convertible Securities and the exercise of such Options therefor, shall be
deemed to be Additional Shares of Common Stock issued as of the time of such
issuance or, in case such a record date shall have been fixed, as of the close
of business on such record date, provided that Additional Shares of Common Stock
shall not be deemed to have been issued unless the consideration per share
(determined pursuant to Section 7.4 hereof) of such Additional Shares of Common
Stock would be less than the applicable Exercise Price in effect on the date of
and immediately prior to such issuance, or such record date, as the case may be,
and provided further that in any such case in which Additional Shares of Common
Stock are deemed to be issued:
(a) No further adjustment in the Exercise Price shall be made upon the
subsequent issuance of Convertible Securities or shares of Common Stock upon the
exercise of such Options or conversion or exchange of such Convertible
Securities;
(b) If such Options or Convertible Securities by their terms provide,
with the passage of time or otherwise, for any increase in the consideration
payable to the Company, or decrease in the number of shares of Common Stock
issuable, upon the exercise, conversion or exchange thereof, the Exercise Price
computed upon the original issuance thereof (or upon the occurrence of a record
date with respect thereto), and any subsequent adjustments based thereon, shall,
upon any such increase or decrease becoming effective, be recomputed to reflect
such increase or decrease insofar as it affects such Options or the rights of
conversion or exchange under such Convertible Securities;
(c) No readjustment pursuant to clause (b) above shall have the effect
of increasing the Exercise Price to an amount which exceeds the Exercise Price
on the original adjustment date; and
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(d) In the event of any change in the number of shares of Common
Stock issuable upon the exercise, conversion or exchange of any Option or
Convertible Security, including, but not limited to, a change resulting from the
anti-dilution provisions thereof, the Exercise Price then in effect shall
forthwith be readjusted to such Exercise Price as would have obtained had the
adjustment which was made upon the issuance of such Option or Convertible
Security not exercised or converted prior to such change been made upon the
basis of such change, but no further adjustment shall be made for the actual
issuance of Common Stock upon the exercise or conversion of any such Option or
Convertible Security.
SECTION 7.3 Adjustments of Exercise Price Upon Issuance of Additional
Shares of Common Stock. In the event the Company shall at any time after the
Original Issue Date issue Additional Shares of Common Stock (including
Additional Shares of Common Stock deemed to be issued pursuant to Section 7.2,
but excluding shares issued as a dividend or distribution as provided in Section
7.6 or upon a stock split or combination as provided in Section 7.5), without
consideration or for a consideration per share (determined pursuant to Section
7.4 hereof) less than the applicable Exercise Price in effect on the date of and
immediately prior to such issuance, then and in such event, such Exercise Price
shall be reduced, concurrently with such issuance, to such lower price per share
at which such Additional Shares of Common Stock are being issued (or deemed
issued).
SECTION 7.4. Determination of Consideration. For purposes of this Section
7.4, the consideration received by the Company for the issuance of any
Additional Shares of Common Stock shall be computed as follows:
(a) Cash and Property. Such consideration shall:
(i) insofar as it consists of cash, be computed at the
aggregate of cash received by the Company, excluding amounts paid or payable for
accrued interest or accrued dividends;
(ii) insofar as it consists of property other than cash, be
computed at the fair market value thereof at the time of such issuance, as
determined in good faith by the Board of Directors; and
(iii) in the event Additional Shares of Common Stock are issued
together with other shares of securities or other assets of the Company for
consideration which covers both, be the proportion of such consideration so
received, computed as provided in clauses (i) and (ii) above, as determined in
good faith by the Board of Directors.
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(b) Options and Convertible Securities. The consideration per share
received by the Company for Additional Shares of Common Stock deemed to have
been issued pursuant to Section 7.2, relating to Options and Convertible
Securities, shall be determined by dividing:
(i) the total amount, if any, received or receivable by the
Company as consideration for the issuance of such Options or Convertible
Securities, plus the minimum aggregate amount of additional consideration (as
set forth in the instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such consideration) payable to
the Company upon the exercise of such Options or the conversion or exchange of
such Convertible Securities, or in the case of Options for Convertible
Securities, the exercise of such Options for Convertible Securities and the
conversion or exchange of such Convertible Securities, by
(ii) the maximum number of shares of Common Stock (as set forth
in the instruments relating thereto, without regard to any provision contained
therein for a subsequent adjustment of such number) issuable upon the exercise
of such Options or the conversion or exchange of such Convertible Securities.
SECTION 7.5. Adjustment for Stock Splits and Combinations. If the Company
shall at any time or from time to time after the Original Issue Date for the
Warrants effect a subdivision of the outstanding Common Stock, the Exercise
Price of each Warrant then in effect immediately before that subdivision shall
be proportionately decreased and the number of shares of Common Stock issuable
upon exercise of such Warrant shall be proportionately increased. If the Company
shall at any time or from time to time after the Original Issue Date for the
Warrants combine the outstanding shares of Common Stock, the Exercise Price of
each Warrant then in effect immediately before the combination shall be
proportionately increased and the number of shares of Common Stock issuable upon
exercise of such Warrant shall be proportionately decreased. Any adjustment
under this Section 7.5 shall become effective at the close of business on the
date the subdivision or combination becomes effective.
SECTION 7.6. Adjustment for Certain Dividends and Distributions. In the
event the Company at any time or from time to time after the Original Issue Date
for the Warrants shall make or issue, or fix a record date for the determination
of holders of Common Stock entitled to receive, a dividend or other distribution
payable in additional shares of Common Stock, then and in each such event the
Exercise Price for the Warrants then in effect shall be decreased as of the time
of such issuance or, in the event such a record date shall have been fixed, as
of the close of business on
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such record date, by multiplying the Exercise Price for the Warrants then in
effect by a fraction:
(a) the numerator of which shall be the total number of shares of
Common Stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date, and
(b) the denominator of which shall be the total number of shares of
Common Stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date plus the number of shares
of Common Stock issuable in payment of such dividend or distribution; provided,
however, if such record date shall have been fixed and such dividend is not
fully paid or if such distribution is not fully made on the date fixed therefor,
the Exercise Price for the Warrants shall be recomputed accordingly as of the
close of business on such record date and thereafter the Exercise Price for the
Warrants shall be adjusted pursuant to this paragraph as of the time of actual
payment of such dividends or distributions.
SECTION 7.7 Adjustments for Other Dividends and Distributions. In the
event the Company at any time or from time to time after the Original Issue Date
for the Warrants shall make or issue, or fix a record date for the determination
of holders of Common Stock entitled to receive, a dividend or other distribution
payable in securities of the Company other than shares of Common Stock, then and
in each such event provision shall be made so that the holders of the Warrants
shall receive upon exercise thereof in addition to the number of shares of
Common Stock receivable thereupon, the amount of securities of the Company that
they would have received had their Warrants been exercised on the date of such
event and had thereafter, during the period from the date of such event to and
including the conversion date, retained such securities receivable by them as
aforesaid during such period giving application to all adjustments called for
during such period, under this paragraph with respect to the rights of the
holders of the Warrants.
SECTION 7.8 Adjustment for Reclassification, Exchange, or Substitution.
If the Common Stock issuable upon the exercise of the Warrants shall be changed
into the same or a different number of shares of any class or classes of stock,
whether by capital reorganization, reclassification or otherwise (other than a
subdivision or combination of shares or stock dividend provided for above, or a
reorganization, merger, consolidation, or sale of assets provided for below),
then and in each such event the holder of the Warrants shall have the right
thereafter to convert each such share of Common Stock issuable upon the exercise
of the Warrants into the kind and amount of shares of stock and other securities
and property receivable upon such reorganization, reclassification, or other
change, by holders of the number of
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shares of Common Stock for which such Warrants might have been exercised
immediately prior to such reorganization, reclassification, or change, all
subject to further adjustment as provided herein.
SECTION 7.9 Adjustment for Merger or Reorganization. In case of any
consolidation or merger of the Company with or into another Company, each
Warrant shall thereafter be exercisable for the kind and amount of shares of
stock or other securities or property to which a holder of the number of shares
of Common Stock of the Company deliverable upon exercise of such Warrant would
have been entitled upon such consolidation or merger; and, in such case,
appropriate adjustment (as determined in good faith by the Board of Directors)
shall be made in the application of the provisions in this Article 7 set forth
with respect to the rights and interest thereafter of the holders of the
Warrants, to the end that the provisions set forth in this Article 7 (including
provisions with respect to changes in and other adjustments of the Exercise
Price) shall thereafter be applicable, as nearly as reasonably may be, in
relation to any shares of stock or other property thereafter deliverable upon
the exercise of the Warrants.
SECTION 7.10 Adjustment of Exercise price for Series B Warrants and Series
C Warrants. In addition to any other adjustment to the Exercise Price provided
hereunder, in the event that, as of the time of exercise of any of the Series B
Warrants or Series C Warrants, the average closing bid price of the Common Stock
for the five trading days immediately preceding the date of such exercise (the
"Average Bid Price") is less than the Exercise Price then in effect for the
Series B Warrants or the Series C Warrants, or both, as the case may be, then
such Exercise Price shall be decreased to equal the Average Bid Price; provided,
however, that notwithstanding the foregoing, if the Average Bid Price is less
than $2.75, the Exercise Price for the Series B Warrants, or the Series C
Warrants, or both, as the case may be, shall be deemed to be equal to $2.75. Any
adjustment under this Section 7.10 shall become effective immediately.
SECTION 7.11 Notice of Adjustment to Exercise Price. Whenever the Exercise
Price is required to be adjusted as provided in this Article 7, the Company
shall forthwith compute the adjusted Exercise Price and shall prepare a
certificate setting forth such adjusted Exercise Price and showing in reasonable
detail the facts upon which such adjustment is based. Whenever the Exercise
Price is adjusted, the Company shall promptly mail, or cause to be mailed, to
the Warrantholders a statement setting forth the adjustment and the reasons for
such adjustment.
SECTION 7.12 Form of Warrant Certificate. Irrespective of any adjustments
in the Exercise Price or the kind of Warrant Shares purchasable upon the
exercise of the Warrants, Warrant
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Certificates evidencing such Warrants theretofore or thereafter issued may
continue to express the same number and kind of Warrant Shares as are stated in
the Warrant Certificates initially issuable pursuant to this Agreement.
SECTION 7.13 No Impairment. Without limiting the generality of the
foregoing, the Company shall take all such action as may be necessary or
appropriate in order that the Warrant Shares to be issued upon the exercise of
the Warrants from time to time outstanding will, when issued, be fully paid and
non-assessable. In addition, without limiting the generality of Section 6.1, the
Company shall take all such action as shall be necessary so that, after any
adjustment to the Exercise Price required hereunder, the total number of shares
of Common Stock or other capital stock of the Company then authorized by the
Amended Articles and available for the purpose of issuance upon such exercise
shall exceed the total number of shares of Common Stock issuable upon the
exercise of all of the outstanding Warrants. The Company will not, by amendment
of its Articles of Incorporation or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms to be observed or performed hereunder by the Company, but will
at all times in good faith assist in the carrying out of all the provisions of
this Section 7 and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Warrantholders against
impairment.
ARTICLE 8
NOTICES TO WARRANTHOLDERS
SECTION 8.1 Notices to Warrantholders
(a) Notices to holders of Warrants shall be mailed to such holders at
the addresses of such holders as they appear in the Warrant Register. Any such
notice shall be sufficiently given if sent by first-class certified or
registered mail, postage prepaid, facsimile or overnight courier.
(b) In the event (i) of any consolidation or merger or binding
exchange of interests to which the Company is a party and for which approval of
the Investor or any holders of equity interests of the Company is required, or
of the conveyance or sale of all or substantially all of the assets of the
Company, or of any change of the Common Stock or other securities issuable upon
exercise of the Warrants; or (ii) the Company shall make any distribution in
respect of the Common Stock; or (iii) of the voluntary or involuntary
dissolution, liquidation or winding up of the Company; then the Company shall
send to each Warrantholder at least thirty days prior to the applicable date
hereinafter
- 14 -
specified, a written notice stating (A) the date for the determination of the
holders of Common Stock (or other securities issuable upon the exercise of the
Warrants) entitled to receive any such distribution, (B) the initial expiration
date set forth in any offer for exchange of interests, or (C) the date on which
any such consolidation, merger, exchange of interests, conveyance, transfer,
reclassification, dissolution, liquidation or winding up is expected to become
effective or consummated, and the date as of which it is expected that holders
of record of Common Stock (or other securities issuable upon the exercise of the
Warrants) shall be entitled to exchange such Common Stock for securities or
other property, if any, deliverable upon such reclassification, consolidation,
merger, exchange of interests, conveyance, transfer, dissolution, liquidation or
winding up.
SECTION 8.2 Notices to Company. Any notice or demand authorized by this
Agreement to be given to or on the Company shall be delivered in person or by
facsimile transmission, by courier guaranteeing overnight delivery or mailed by
first-class United States certified or registered mail, postage prepaid, to the
Company as follows:
Medcross, Inc.
00000 Xxxxx Xxxxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxxx, President
Telecopier: 000-000-0000
with copy to:
Xxxxx X. Xxxxx, Esq.
00 X. Xxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Telecopier: (000) 000-0000
SECTION 8.3 Receipt of Notice. Any notice hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered, sent by
overnight courier or sent by United States mail, or by telex or facsimile
transmission, and will be deemed received (a) if sent by certified or registered
mail, return receipt requested, when actually received, (b) if sent by overnight
courier, when actually received, (c) if sent by telex or facsimile transmission,
on the date sent provided confirmatory notice is sent by overnight courier or by
first-class mail, postage prepaid, and (d) if delivered by hand, on the date of
receipt.
- 15 -
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 Arbitration
(a) To the fullest extent not prohibited by law, any controversy,
claim or dispute arising out of or relating to this Agreement, including the
determination of the scope or applicability of this Agreement to arbitrate,
shall be settled by final and binding arbitration in accordance with the rules
then in effect of the American Arbitration Association ("AAA"), as modified or
supplemented under this section, and subject to the Federal Arbitration Act, 9
U.S.C. (S)(S)1-16. The decision of the arbitrators shall be final and binding;
provided, however, that where a remedy for breach is prescribed hereunder or
limitations on remedies are prescribed, the arbitrators shall be bound by such
restrictions, and judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof.
(b) If any series of claims arising out of the same or related
transactions shall involve claims which are arbitrable under the preceding
paragraph and claims which are not, the arbitrable claims shall first be finally
determined before suit may be instituted upon the others and the parties will
take such action as may be necessary to toll any statutes of limitations, or
defenses based upon the passage of time, that are applicable to such non-
arbitrable claims during the period in which the arbitrable claims are being
determined.
(c) In the event of any controversy, claim or dispute that is subject
to arbitration under this Section 9.1, any party thereto may commence
arbitration hereunder by delivering notice to the other party or parties
thereto. Within five business days of delivery of a list of qualified potential
arbitrators from AAA, such parties shall attempt to agree on one arbitrator;
provided that if such parties cannot agree on one arbitrator within such time
period, each party to the controversy, claim or dispute shall within five
business days thereafter appoint one arbitrator, and the two arbitrators so
appointed shall within five business days of their appointment mutually agree
upon and appoint one additional arbitrator (or, if such arbitrators cannot agree
on an additional arbitrator, the additional arbitrator shall be appointed by the
AAA as provided under its rules); provided that persons eligible to be selected
as arbitrators shall be limited to attorneys at law who (i) are on the AAA's
Large, Complex Case Panel, (ii) have practiced law for at least fifteen years as
an attorney specializing in either general commercial litigation or general
corporate and commercial matters and (iii) are experienced in matters involving
the telecommunications industry.
- 16 -
(d) The arbitration hearing shall commence no later than thirty
business days after the completion of the selection of the arbitrators or at
such other time as the parties shall reasonably agree. Consistent with the
intent of the parties hereto that the arbitration be conducted as expeditiously
as possible, the parties agree that (i) discovery shall be limited to the
production of such documents and the taking of such depositions as the
arbitrator(s) determine are reasonably necessary to the resolution of the
controversy, claim or dispute and (ii) the arbitrator(s) shall limit the
presentation of evidence by each side in such arbitration to not more than ten
full days (or the equivalent thereof) or such shorter period as the
arbitrator(s) shall determine to be necessary in order to resolve the
controversy, claim or dispute. The arbitrator(s) shall be instructed to render a
decision within thirty calendar days of the close of the arbitration hearing. If
arbitration has not been completed within one hundred and twenty days of the
commencement of such arbitration hearing, any party to the arbitration may
initiate litigation upon ten days written notice to the other party(ies);
provided, however, that if one party has requested the other to participate in
an arbitration and the other has failed to participate, the requesting party may
initiate litigation before the expiration of such one hundred twenty-day period;
and provided, further, that if any party to the arbitration fails to meet any of
the time limits set forth in this Section 9.1 or set by the arbitrators in the
arbitration, any other party may provide ten days written notice of its intent
to institute litigation with respect to the controversy, claim or dispute
without the need to continue or complete the arbitration and without awaiting
the expiration of such one hundred twenty-day period. The parties hereto further
agree that if any of the rules of the AAA are contrary to or conflict with any
of the time periods provided for hereunder, or with any other aspect of the
matters set forth in this Section 9.1, that such rules shall be modified in all
respects necessary to accord with the provisions of this Section 9.1 (and the
arbitrators shall be so instructed by the parties).
(e) The arbitrators shall base their decision on the terms of this
Agreement and the law of the State of Delaware, regardless of the law that might
be applicable under conflicts of law principles, and shall render their decision
in writing and include in such decision a statement of the findings of fact and
conclusions of law upon which the decision is based. Each party agrees to
cooperate fully with the arbitrator(s) to resolve any controversy, claim or
dispute. The arbitrator(s) shall not be empowered to award punitive damages or
damages in excess of actual damages. The venue for all arbitration proceedings
shall be Washington, D.C.
SECTION 9.2 Payment of Taxes. The Company covenants and agrees that it
will pay when due and payable all documentary, stamp and other taxes
attributable to the issuance or delivery of the
- 17 -
Warrant Certificates or of the Warrant Shares purchasable upon the exercise of
Warrants; provided, however, the Company shall not be required to pay any tax or
taxes that may be payable in respect of any transfer involving the issue of any
Warrant Certificate(s) or any certificate(s) for Warrant Shares in a name other
than that of the Warrantholder of such exercised Warrant Certificate(s).
SECTION 9.3 Amendment.
(a) The Company may modify this Agreement and the terms of the
Warrants only with the consent of the Warrantholders representing at least a
majority of the Warrant Shares for the purpose of adding any provision to or
changing in any manner or eliminating any of the provisions of this Agreement or
modifying in any manner the rights of the holders of the outstanding Warrants;
provided, however, that no such modification that (i) materially and adversely
affects the exercise rights of the holders of the Warrants, or (ii) reduces the
percentage required for modification, may be made without the consent of the
holder of all outstanding Warrants.
(b) Any such modification or amendment will be conclusive and binding
on all present and future holders of Warrant Certificates whether or not they
have consented to such modification or amendment or waiver and whether or not
notation of such modification or amendment is made upon such Warrant
Certificates. Any instrument given by or on behalf of any holder of a Warrant
Certificate in connection with any consent to any modification or amendment will
be conclusive and binding on all subsequent holders of such Warrant Certificate.
SECTION 9.4 Termination. This Agreement shall terminate on or upon (a)
the repurchase by the Company of all Warrants, (b) the fifteenth day following
the date on which all of the Warrant Shares have been issued upon the exercise
of all Warrants issued pursuant hereto, or (c) upon expiration of the Exercise
Period applicable to the Series B Warrants and the Series C Warrants.
SECTION 9.5 Reports to Warrantholders. The Company will cause to be
delivered, by first-class mail, postage prepaid, facsimile or overnight courier,
to each Warrantholder at such Warrantholder's address appearing on the Warrant
Register, a copy of any reports delivered by the Company to any of the holders
of Series M Preferred Stock or to holders of the Common Stock.
SECTION 9.6 GOVERNING LAW. THE LAWS OF THE STATE OF DELAWARE SHALL GOVERN
THIS AGREEMENT AND THE WARRANT CERTIFICATES WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
SECTION 9.7 Benefits of this Agreement. Nothing in this Agreement shall
be construed to give to any Person other than the Company, the Warrantholders
and the holders of Warrant Shares any
- 18 -
legal or equitable right, remedy or claim under this Agreement; this Agreement
shall be for the sole and exclusive benefit of the Company, the Warrantholders
and the holders of Warrant Shares.
SECTION 9.8 Counterparts. This Agreement may be executed in any number of
counterparts, and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
SECTION 9.9 Severability of Provisions. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 9.10 Headings. The headings of the sections of this Agreement are
inserted for convenience only and shall not constitute a part of this Agreement.
SECTION 9.11 Access to Company Records. So long as Warrants remain
outstanding, the Investor shall be entitled to review the financial and
corporate books and records of the Company and to meet with the executive
officers and independent accountants of the Company for purposes reasonably
related to the Investor's ownership of the Warrants, which review and/or
meetings shall take place at reasonable times during the normal business hours
of the Company and in such a manner as to not unduly interfere with the conduct
of the Company's business.
- 19 -
IN WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement
to be duly executed, as of the date first above written.
MEDCROSS, INC.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
WINTER HARBOR, L.L.C.
By: First Media, L.P., its General Manager/Member
By: First Media Corporation, its sole
General Partner
By:
Name:
------------------------------------
Title:
-----------------------------------
- 20 -
EXHIBIT A-1
Medcross, Inc.
Common Stock Purchase Warrant
Number ____
Series A Warrant Certificate Evidencing Right to Purchase
______ Shares of Common Stock
This is to certify that WINTER HARBOR, L.L.C., a Delaware limited liability
company, or assigns, is entitled to purchase at any time or from time to time up
to the above-referenced number of shares of Common Stock ("Common Stock"), of
Medcross, Inc., a Florida corporation (the "Company"), for the Exercise Price
for the Series A Warrants specified in the Warrant Agreement, dated as of
October __, 1997, among the Company and Winter Harbor, L.L.C. (the "Warrant
Agreement"), pursuant to which this Warrant Certificate is issued. All rights of
the holder of this Warrant Certificate are subject to the terms and provisions
of the Warrant Agreement, copies of which are available for inspection the
Company's office located at 00000 Xxxxx Xxxxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxx 00000 (the "Office"). The Expiration Date (as defined in the Warrant
Agreement) of the right to purchase Common Stock pursuant to this Certificate is
March 31, 2000.
NEITHER THE WARRANTS REPRESENTED BY THIS CERTIFICATE NOR THE SHARES OF
COMMON STOCK THAT MAY BE PURCHASED UPON EXERCISE HEREOF HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY APPLICABLE STATE LAW.
SUCH WARRANTS AND SHARES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR
PLEDGED WITHOUT (1) REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND ANY APPLICABLE STATE LAW, OR (2) AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE.
Subject to the provisions of the Act, applicable state laws and such
Warrant Agreement, this Warrant Certificate and all rights hereunder are
transferable, in whole or in part, at the Office by the holder hereof in person
or by a duly authorized attorney, upon surrender of this Warrant Certificate,
together with the assignment hereof duly endorsed. Until transfer of this
Warrant Certificate on the books of the Company, the Company may treat the
registered holder hereof as the owner hereof for all purposes.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
executed on this ___ day of October, 1997 in Draper, Utah by its proper
corporate officers thereunto duly authorized.
MEDCROSS, INC.
a Florida corporation
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
Attest:
--------------------------------
Name:
----------------------------------
Title:
---------------------------------
- 2 -
Exhibit A-2
Medcross, Inc.
Common Stock Purchase Warrant
Number ____
Series B Warrant Certificate Evidencing Right to Purchase
______ Shares of Common Stock
This is to certify that WINTER HARBOR, L.L.C., a Delaware limited liability
company, or assigns, is entitled to purchase at any time or from time to time up
to the above-referenced number of shares of Common Stock ("Common Stock"), of
Medcross, Inc., a Florida corporation (the "Company"), for the Exercise Price
for the Series B Warrants specified in the Warrant Agreement, dated as of
October __, 1997, among the Company and Winter Harbor, L.L.C. (the "Warrant
Agreement"), pursuant to which this Warrant Certificate is issued. All rights of
the holder of this Warrant Certificate are subject to the terms and provisions
of the Warrant Agreement, copies of which are available for inspection the
Company's office located at 00000 Xxxxx Xxxxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxx 00000 (the "Office"). The Expiration Date (as defined in the Warrant
Agreement) of the right to purchase Common Stock pursuant to this Certificate is
September 30, 2002.
NEITHER THE WARRANTS REPRESENTED BY THIS CERTIFICATE NOR THE SHARES OF
COMMON STOCK THAT MAY BE PURCHASED UPON EXERCISE HEREOF HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY APPLICABLE STATE LAW.
SUCH WARRANTS AND SHARES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR
PLEDGED WITHOUT (1) REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND ANY APPLICABLE STATE LAW, OR (2) AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE.
Subject to the provisions of the Act, applicable state laws and such
Warrant Agreement, this Warrant Certificate and all rights hereunder are
transferable, in whole or in part, at the Office by the holder hereof in person
or by a duly authorized attorney, upon surrender of this Warrant Certificate,
together with the assignment hereof duly endorsed. Until transfer of this
Warrant Certificate on the books of the Company, the Company may treat the
registered holder hereof as the owner hereof for all purposes.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
executed on this ___ day of October, 1997 in Draper, Utah by its proper
corporate officers thereunto duly authorized.
MEDCROSS, INC.
a Florida corporation
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Attest:
---------------------------------
Name:
-----------------------------------
Title:
----------------------------------
- 2 -
Exhibit A-3
Medcross, Inc.
Common Stock Purchase Warrant
Number ____
Series C Warrant Certificate Evidencing Right to Purchase
______ Shares of Common Stock
This is to certify that WINTER HARBOR, L.L.C., a Delaware limited liability
company, or assigns, is entitled to purchase at any time or from time to time up
to the above-referenced number of shares of Common Stock ("Common Stock"), of
Medcross, Inc., a Florida corporation (the "Company"), for the Exercise Price
for the Series C Warrants specified in the Warrant Agreement, dated as of
October __, 1997, among the Company and Winter Harbor, L.L.C. (the "Warrant
Agreement"), pursuant to which this Warrant Certificate is issued. All rights of
the holder of this Warrant Certificate are subject to the terms and provisions
of the Warrant Agreement, copies of which are available for inspection the
Company's office located at 00000 Xxxxx Xxxxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxx 00000 (the "Office"). The Expiration Date (as defined in the Warrant
Agreement) of the right to purchase Common Stock pursuant to this Certificate is
September 30, 2002.
NEITHER THE WARRANTS REPRESENTED BY THIS CERTIFICATE NOR THE SHARES OF
COMMON STOCK THAT MAY BE PURCHASED UPON EXERCISE HEREOF HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY APPLICABLE STATE LAW.
SUCH WARRANTS AND SHARES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR
PLEDGED WITHOUT (1) REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND ANY APPLICABLE STATE LAW, OR (2) AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE.
Subject to the provisions of the Act, applicable state laws and such
Warrant Agreement, this Warrant Certificate and all rights hereunder are
transferable, in whole or in part, at the Office by the holder hereof in person
or by a duly authorized attorney, upon surrender of this Warrant Certificate,
together with the assignment hereof duly endorsed. Until transfer of this
Warrant Certificate on the books of the Company, the Company may treat the
registered holder hereof as the owner hereof for all purposes.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
executed on this ___ day of October, 1997 in Draper, Utah by its proper
corporate officers thereunto duly authorized.
MEDCROSS, INC.
a Florida corporation
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Attest:
---------------------------------
Name:
-----------------------------------
Title:
----------------------------------
- 2 -
EXHIBIT B
Election to Purchase
(To be executed by the registered holder if
such holder desires to exercise any Warrant Certificate)
The undersigned, the registered holder of the attached Warrant Certificate,
hereby irrevocably elects to exercise Warrants represented by such Warrant
Certificate and acquire an aggregate of ______________ shares of Common Stock of
Medcross, Inc., a Florida corporation, and herewith tenders payment for such
Common Stock in the amount of $__________ (by certified check or official bank
check) in accordance with the terms hereof. The undersigned requests that the
aforementioned Common Stock be registered in the name of _______________, whose
address is ________________________ _________________________.
Dated:___________________
Name of registered holder of Warrant Certificate:
--------------------------------------------------------------------------------
(please print)
Address of registered holder:
---------------------------------------------------
Signature:
------------------------------
(Note: the signature to the foregoing Election must correspond to the name as
written upon the face of the Warrant Certificate in every particular, without
alteration or any change whatsoever.)
