CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of April 10, 2003, is between American
CareSource Corporation, an Indiana corporation (the "Borrower") and Patient
Infosystems, Inc., a Delaware corporation ("PATI").
RECITALS
A. The Borrower has requested that PATI make a loan or series of loans in an
aggregate amount up to $2.5 million on the terms and conditions set forth
herein.
B. PATI has agreed to make such extensions of credit on the terms and
conditions set forth therein.
ACCORDINGLY, the parties hereto hereby agree as follows:
ARTICLE I DEFINITIONS
1.01 Defined Terms.
As used in this Credit Agreement, the following terms shall have the
following meanings:
"Acquisition": the purchase by PATI of the assets of the Borrower as
contemplated by the Asset Purchase Agreement.
"Affiliate": as to the Borrower, (i) any Person which, directly or
indirectly, is in control of, is controlled by, or is under common control
with, the Borrower, including, without limitation, any joint venture of the
Borrower, or (ii) any Person who is a director, officer, shareholder or
partner (a) of the Borrower, (b) of any Subsidiary of the Borrower, or (c)
of any Person described in the preceding clause (i). For purposes of this
definition, "control" of a Person means the power, directly or indirectly,
either to (i) vote 25% or more of the securities having ordinary voting
power for the election of directors of such Person, or (ii) direct or cause
the direction of the management and policies of such Person whether by
contract or otherwise.
"Asset Purchase Agreement": the agreement dated September 23, 2002, as
further amended on April 10, 2003, by and among the Borrower, PATI and
certain of their stockholders providing for the Acquisition.
"Business Day": a day other than a Saturday, Sunday or other day on which
commercial banks in New York are authorized or required by law to close.
"Capital Expenditure": any expenditure by the Borrower in respect of the
purchase or other acquisition of fixed assets.
"Capital Lease": any lease of property, real or personal by the Borrower,
the obligations of which are required in accordance with GAAP to be
capitalized on a balance sheet of the Borrower.
"Capital Stock": any and all shares, interests, participations or other
equivalents (however designated) of capital stock of the Borrower, any and
all equivalent ownership interests in the Borrower (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"Cash Equivalents": as defined in subsection 6.07(c).
"Closing Date": the date on which all the conditions set forth in ARTICLE
IV shall first have been satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to time.
"Collateral": as defined in Section 2.08.
"Commonly Controlled Entity": an entity, whether or not incorporated, which
is under common control with the Borrower within the meaning of Section
4001 of ERISA or is part of a group which includes the Borrower and which
is treated as a single employer under Section 414 of the Code.
"Contractual Obligation": any provision of any security issued by the
Borrower or of any agreement, instrument or other undertaking to which the
Borrower is a party or by which it or any of its property is bound,
including without limitation, any Indebtedness.
"Credit Agreement": this Credit Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
"Default": any of the events specified in Sections 7.01 or 7.02, hereof,
whether or not any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"ERISA": the Employee Retirement Income Security Act of 1974, as amended
from time to time.
"Event of Default": any of the events specified in Sections 7.01 or 7.02,
provided that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"GAAP": generally accepted accounting principles in the United States of
America in effect from time to time.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of, or
pertaining to, government.
"Guarantee Obligation": as to the Borrower, any obligation of the Borrower
guaranteeing or in effect guaranteeing any indebtedness, leases, dividends
or other obligations of any other third Person in any manner, whether
directly or indirectly or otherwise to assure or hold harmless the owner of
any primary obligation against loss in respect thereof.
"Hazardous Materials": those substances deemed hazardous under any
Hazardous Materials Law, including, without limitation, asbestos or any
substance containing asbestos, the group of organic compounds known as
polychlorinated biphenyls, flammable explosives, radioactive materials,
chemicals known to cause cancer or reproductive toxicity, pollutants,
effluents, contaminants, emissions or related materials and any items
included in the definition of hazardous or toxic waste materials or
substances under any Hazardous Materials Law.
"Hazardous Materials Laws": collectively includes any present and future
local, state and Federal law relating to the environment and environmental
conditions, including, without limitation, the Resource Conservation and
Recovery Act of 1976 ("RCRA"), 42 U.S.C. '6901 et seq., the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"),
42 U.S.C. "9601-9657, as amended by the Superfund Amendments and
Reauthorization Act of 1986 ("XXXX"), the Hazardous Materials
Transportation Act, 49 U.S.C. '6901 et seq., the Federal Water Pollution
Control Act, as amended by the Clean Water Act of 1977, 33 U.S.C. "1251 et
seq., the Clean Air Act 42 U.S.C. '741 et seq., the Toxic Substances
Control Act, 15 U.S.C. "2601-2629, and the Safe Drinking Water Act, 42
U.S.C and all the regulations, rules, orders, decrees, ordinances, codes,
authorizations, certificates, permits, licenses and any other legal
requirements now or hereafter promulgated or issued thereunder.
"Indebtedness": of the Borrower at any date, (i) all indebtedness of the
Borrower for borrowed money or for the deferred purchase price of property
or services (other than current trade liabilities incurred in the ordinary
course of business) or which is evidenced by a note, bond, debenture or
similar instrument, (ii) all obligations of the Borrower under Capital
Leases, (iii) all obligations of the Borrower in respect of letters of
credit or acceptances issued or created for or for the account of the
Borrower, (iv) all obligations of the Borrower under currency exchange
contracts or interest rate swap agreements, and (v) all liabilities secured
by any Lien on any property owned by the Borrower even though the Borrower
has not assumed or otherwise become liable for the payment thereof.
"Indemnified Person": as defined in Section 8.07.
"Insolvency": with respect to any Multiemployer Plan, the condition that
such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of insolvency.
"Investment": as defined in subsection 6.07.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement or preferential arrangement of any
kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any Capital Lease having
substantially the same economic effect as any of the foregoing, and the
filing of any financing statement under the Uniform Commercial Code or
comparable law of any jurisdiction in respect of any of the foregoing).
"Loan": the loan which PATI has committed to make pursuant to Section 2.01
of this Credit Agreement.
"Loan Documents": the documents in subsection 4.01 whose delivery is a
condition to the effectiveness of this Credit Agreement and all other
documents executed and delivered in connection herewith or therewith,
including any amendments, supplements or other modifications to any of the
foregoing.
"Material Adverse Effect": a material adverse effect on (i) the business,
operations, property, condition (financial or otherwise) or prospects of
the Borrower, including but not limited to the loss of any significant
customers, (ii) the ability of the Borrower to perform its obligations
under the Loan Documents, or (iii) the validity or enforceability of the
Loan Documents or the rights or remedies of PATI hereunder or thereunder.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Note": the promissory note or series of substantially identical promissory
notes issued pursuant to this Credit Agreement substantially in the form of
Exhibit 2.01.
"Operating Lease": any lease of property, real or personal, which is not a
Capital Lease.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business trust, joint
stock company, limited liability company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of
whatever nature.
"Plan": at a particular time, any employee benefit plan which is covered by
ERISA and in respect of which the Borrower or a Commonly Controlled Entity
is (or, if such plan were terminated at such time, would under Section 4069
of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Reorganization": with respect to any Multiemployer Plan, the condition
that such plan is in reorganization within the meaning of Section 4241 of
ERISA.
"Reportable Event": any of the events set forth in Section 4043(b) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsection .13, .14, .16, .18, .19 or .20 of PBGC Reg. SS2615.
"Requirement of Law": as to any Person, the Certificate of Incorporation
and By-Laws or other organizational or governing documents of such Person,
and any law, treaty, rule or regulation or determination of an arbitrator
or a court or other Governmental Authority, in each case applicable to or
binding upon such Person or any of its property or to which such Person or
any of its material property is subject.
"Responsible Officer": Xxxx Xxxxxx, Xxxxxxx Xxxxx Xx., or the chief
executive officer, the president, the controller, or the chief financial
officer of the Borrower.
"Security Documents": as defined in Section 2.08.
"Subsidiary": as to any Person, a corporation, partnership or other entity
of which more than 50% of the shares of stock, or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity, are at the time
owned, directly or indirectly, through one or more intermediaries, or both,
by such Person.
"UCC": the Uniform Commercial Code as from time to time in effect in the
State of New York.
1.02 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this Credit
Agreement shall have the defined meanings when used in the Notes or any
certificate or other document made or delivered pursuant hereto.
(b) As used herein and in the Notes, and any certificate or other document made
or delivered pursuant hereto, accounting terms relating to the Borrower not
defined in subsection 1.01 and accounting terms partly defined in
subsection 1.01, to the extent not defined, shall have the respective
meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar import
when used in this Credit Agreement shall refer to this Credit Agreement as
a whole and not to any particular provision of this Credit Agreement, and
Section, Subsection, Schedule and Exhibit references are to this Credit
Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally applicable to
both the singular and plural forms of such terms.
ARTICLE II THE LOAN
2.01 The Loan.
Subject to the terms and conditions hereof, PATI hereby agrees to make a
loan or series of loans to the Borrower in an aggregate amount of up to $2.5
million (the "Loan"). The Loans shall be evidenced by a series of notes each of
which shall be substantially in the form of Exhibit 2.01 (each a "Note" and
collectively the "Notes"). The first Note delivered under this Credit Agreement
shall be for $1.5 million and shall represent (i) a replacement of the prior
note for $500,000 delivered to PATI in connection with loans previously made by
PATI to Borrower and (ii) a new advance by PATI to ACS of $1.0 million. Each
additional loan under this Credit Agreement shall be evidenced by an additional
Note. Subject to the terms and conditions hereof, PATI shall fund or notify
Borrower of its intention not to fund all or any part of any subsequent advances
following the date of this Credit Agreement, within 5 business days of any
request by the Borrower which request shall include a certificate satisfying the
requirements of subsection 4.09 hereof.
Anything to the contrary in this Agreement notwithstanding, the Borrower
agrees that PATI may reduce the amount to be loaned pursuant to this Agreement
in the form of subsequent advances (i.e., following the initial advance of the
$1,000,000 to be made upon execution of this Agreement) by not more than
$250,000 to the extent that PATI determines that it must use available funds for
its operations.
2.02 Repayment of Loan.
Repayment of the Loan shall be in accordance with the terms of the Notes.
2.03 Interest.
Interest on the Loan shall accrue and be payable in accordance with the
terms of the Notes.
2.04 Prepayment.
Prepayment of the Loan may be made in accordance with the terms of the
Notes.
2.05 Additional Consideration.
As additional consideration for the Loan, Borrower shall issue to PATI a
ten-year Warrant in the form of Exhibit 2.05 hereto (the "Warrant") to purchase
for $.01 per share 15,200 shares of common stock of Borrower which is intended
to equal 32.00% of the fully diluted outstanding capital stock of Borrower as of
the Closing Date. The Warrant will be exercisable upon the occurrence of any
Event of Default under this Agreement or the breach or termination of the Asset
Purchase Agreement. The Borrower shall issue to PATI additional Warrants to
purchase up to an aggregate of 3,800 shares of common stock, at the rate of 380
shares per $100,000 advanced, in the same form of Exhibit 2.05 upon additional
advances under this Credit Agreement.
2.06 Sale of Securities by Borrower.
The proceeds of any sale of stock, debt or other securities of the Borrower
shall be applied towards repayment of the Notes, unless PATI agrees with
Borrower to another use in writing.
2.07 Replacement of Notes.
Upon receipt by the Borrower of evidence satisfactory to it of the
ownership of and the loss, theft, destruction or mutilation of the Notes, the
Borrower, at its own expense shall execute and deliver, in lieu thereof, new
Notes, dated and bearing interest from the date to which interest shall have
been paid on such lost, stolen, destroyed or mutilated Notes or dated the date
of such lost, stolen, destroyed or mutilated Notes if no interest shall have
been paid thereon.
2.08 Collateral Security.
The obligations of the Borrower under this Credit Agreement are secured by
a first position perfected security interest in all the assets of the Borrower
(the "Collateral") under the terms of the Security Agreement between the
Borrower and PATI of even date and the UCC-1 financing statements (collectively,
the "Security Documents").
ARTICLE III REPRESENTATIONS AND WARRANTIES
To induce PATI to enter into this Credit Agreement and to make the Loan,
the Borrower hereby represents and warrants to PATI that:
3.01 Asset Purchase Agreement.
All representations and warranties contained in Section 4.2 of the Asset
Purchase Agreement are true and correct as of the Closing Date and as of each
date that a Note is issued and a Loan is funded under this Credit Agreement.
3.02 Corporate Power; Authorization; Enforceable Obligations.
The Borrower has the corporate power and authority to make, deliver and
perform its obligations under each of the Loan Documents, and to borrow
thereunder, and has taken all necessary corporate action to authorize the
borrowings on the terms and conditions of the Loan Documents and to authorize
the execution, delivery and performance of the Loan Documents. No consent or
authorization of, filing with or other act by or in respect of, any Governmental
Authority or any other Person is or will be required in respect of the Borrower
in connection with the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of the Loan Documents. This Credit
Agreement has been, and each Loan Document will be, duly executed and delivered
on behalf of the Borrower. This Credit Agreement constitutes, and each Loan
Document when executed and delivered will constitute legal, valid and binding
obligations of the Borrower enforceable against the Borrower in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
3.03 No Legal Bar.
The execution, delivery and performance of any Loan Document, the
borrowings thereunder and the use of the proceeds thereof will not violate any
Requirement of Law or Contractual Obligation of the Borrower that is a party to
any such document and will not result in, or require, the creation or imposition
of any Lien on any of its or their respective properties or revenues pursuant to
any such Requirement of Law or Contractual Obligation.
ARTICLE IV CONDITIONS
The effectiveness of this Credit Agreement is subject to the satisfaction
on or prior to the Closing Date, and on each date that a Loan is funded and a
Note issued, of the following conditions precedent:
4.01 Loan Documents.
PATI shall have received the following documents executed and delivered by
a Responsible Officer of the Borrower, as appropriate:
(a) this Credit Agreement;
(b) the Note;
(c) the Security Documents;
(d) the Warrant; and
(e) such other documents, agreements, instruments and certificates required to
be executed in connection with the transactions contemplated by this Credit
Agreement.
4.02 Estoppel Letter
PATI shall have received an estoppel letter in form satisfactory to PATI
executed by Xxxx Xxxxxx and Today Financial Corporation.
4.03 Amendment of the Asset Purchase Agreement.
The Borrower and PATI shall have executed an amendment to the original
Asset Purchase Agreement dated as of September 23, 2003 in form and substance
satisfactory to the parties including, among other things, modifications to the
provisions regarding (i) control of the Board of Directors of PATI after
closing, (ii) extension of the repayment of debt to Xxxx Xxxxxx and his
affiliates, (iii) termination of the Asset Purchase Agreement based on the
filing date of the proxy statement of PATI with the Securities and Exchange
Commission and (iv) employment agreements with certain officers of the Borrower.
4.04 Lien in favor of PATI.
PATI shall have a first priority perfected security interest in the
Collateral.
4.05 Corporate Proceedings and Certificates.
PATI shall have received:
(a) a copy of the resolutions, in form and substance satisfactory to PATI, of
the Board of Directors of the Borrower authorizing (i) the execution,
delivery and performance of this Credit Agreement, the Notes and any other
Loan Document, (ii) the issuance of the Warrant; and (iii) the borrowings
contemplated hereunder, certified by the Secretary of the Borrower as of
the Closing Date, which certificate shall state that the resolutions
thereby certified have not been amended, modified, revoked or rescinded and
shall be in form and substance satisfactory to PATI;
(b) true and complete copies of the certificate of incorporation and by-laws of
the Borrower, certified as of the Closing Date as complete and correct
copies thereof by the Secretary of the Borrower, and
(c) a good standing certificate for the Borrower from its jurisdiction of
organization.
4.06 Payment of Fees.
PATI shall have received the fees to be received on the Closing Date
referred to in Section 8.05 of this Credit Agreement.
4.07 Proof of Insurance Coverage.
PATI shall have received a certificate providing proof of adequate property
and liability insurance coverage, consisting of duly issued policies of
insurance or binders on all of the properties and business operations of the
Borrower.
4.08 Resignation of Xxxx Xxxxxx.
Xxxx Xxxxxx shall have resigned his position as President and Chief
Executive Officer of the Borrower and shall have agreed to serve as Executive
Vice President of Account Development of the Borrower (providing, in connection
therewith, a full mutual release with PATI and Borrower, in form and substance
satisfactory to PATI and Borrower of all claims that he may have against either
PATI or Borrower not otherwise excluded by such mutual release).
4.09 Use of Proceeds.
PATI shall have received a certificate from Borrower prior to the Closing
Date and on each date that a Loan is funded and a Note issued under this Credit
Agreement certifying in reasonable detail the use of proceeds for each Loan
advance, which shall be approved in writing and deemed to be satisfactory in all
respects, both in form and substance, to PATI and the collateral agent under the
Note and Stock Purchase Agreement by and between PATI and certain investors of
even date herewith.
4.10 No Default.
There shall be no default under this Credit Agreement, under any Note,
under any Loan Document or under any other agreement, obligation or commitment
between the Borrower and PATI.
4.11 No Material Adverse Change.
There shall have been no material adverse change in the business, prospects
or financial condition of the Borrower.
4.12 President or Chief Executive Officer.
Any new President or Chief Executive Officer hired by, retained for or
elected by Borrower shall be acceptable to PATI.
4.13 Non-Competition Agreement.
Xxxx Xxxxxx shall have executed a Non-Competition Agreement in the form
attached hereto as Exhibit 4.14.
ARTICLE V AFFIRMATIVE COVENANTS
5.01 Payment of Note.
The Borrower will punctually pay or cause to be paid the principal of and
interest on the Notes at the times and places and in the manner specified in the
Notes.
5.02 Other Information.
The Borrower shall furnish to PATI promptly, such additional financial and
other information and copies of such documents and instruments as PATI may from
time to time request.
5.03 Payment of Obligations.
The Borrower shall pay, discharge or otherwise satisfy at or before
maturity or before they become delinquent, as the case may be, all of its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith, including by appropriate
proceedings, and reserves, in conformity with GAAP with respect thereto, have
been provided on the books of the Borrower.
5.04 Conduct of Business and Maintenance of Existence.
The Borrower shall preserve, renew and keep in full force and effect its
corporate existence and take all reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct of its
business; and comply with all Contractual Obligations and Requirements of Law
except to the extent that failure to comply therewith could not, individually or
in the aggregate, have a Material Adverse Effect.
5.05 Maintenance of Property; Insurance.
The Borrower shall keep all material property useful and necessary in its
business in good working order and condition; maintain with financially sound
and reputable insurance companies insurance on all its property in such amounts
and against such risks (but including in any event environmental and product
liability) as are usually insured against in the same general area by companies
engaged in the same or a similar business; furnish to PATI on an annual basis,
and at least thirty days prior to the expiration of any policy of insurance, a
certificate demonstrating the existence of such insurance; and upon written
request, full information as to details of the insurance carried.
5.06 Inspection of Property; Books and Records; Discussions; Audits.
The Borrower shall keep proper books of records and accounts in which full,
true and correct entries in conformity with GAAP and all Requirements of Law
shall be made in all material respects of all dealings and transactions in
relation to its business and activities; permit representatives of PATI to visit
and inspect any of its properties and examine and make abstracts from any of its
books and records at any reasonable time and as often as may reasonably be
required, including, without limitation, any such visit, inspection or
examination by PATI in connection with any audit conducted by PATI, and at which
a representative of PATI may be present, of the books and records of the
Borrower from time to time at PATI's discretion, and to discuss the business,
operations, properties and financial and other condition of the Borrower with
officers and employees of the Borrower and with its independent certified public
accountants.
5.07 Notices.
The Borrower shall promptly give notice to PATI of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual Obligation of the
Borrower, or (ii) litigation, investigation or proceeding which may exist
at any time between the Borrower and any Governmental Authority of which
Borrower is aware, which in either case, if not cured or if adversely
determined, as the case may be, would have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower in which the amount
involved is $50,000 or more and which is not covered by insurance or in
which injunctive or similar relief is sought which, if granted, could have
a Material Adverse Effect; and
(d) the following events, as soon as possible and in any event within 30 days
after the Borrower knows or has reason to know thereof: (i) the occurrence
or expected occurrence of any Reportable Event with respect to any Plan, or
any withdrawal from, or the termination, Reorganization or Insolvency of
any Multiemployer Plan, or (ii) the institution of proceedings or the
taking of any other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the withdrawal
from, or the terminating, Reorganization or Insolvency of, any Plan.
Each notice pursuant to this subsection shall be accompanied by a statement
of a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower proposes to take with respect
thereto.
5.08 Environmental Laws.
The Borrower shall:
(a) comply with, and ensure compliance by all tenants and subtenants of any
real property owned or leased by the Borrower, if any, with, all applicable
Hazardous Materials Laws except to the extent that failure to do so would
not be reasonably expected to have a Material Adverse Effect;
(b) obtain and comply with and maintain, and ensure that all such tenants and
subtenants obtain and comply with and maintain, any and all licenses,
approvals, notifications, registrations or permits required by applicable
Hazardous Materials Laws except to the extent that failure to do so would
not be reasonably expected to have a Material Adverse Effect; and
(c) conduct and complete all investigations, studies, sampling and testing, and
all remedial, removal and other actions required under Hazardous Materials
Laws and promptly comply with all lawful orders and directives of all
Governmental Authorities regarding Hazardous Materials Laws except to the
extent that the same are being contested in good faith by appropriate
proceedings and the pendency of such proceedings would not be reasonably
expected to have a Material Adverse Effect.
5.09 Financial Statements.
The Borrower shall furnish to PATI:
(a) by May 5, 2003, a copy of the audited financial statements of the Borrower
as of the end of fiscal year 2002;
(b) as soon as available, but in any event not later than 15 days after the end
of each quarterly period of each fiscal year of the Borrower, the unaudited
balance sheets of the Borrower as of the end of such quarter and the
related unaudited statements of operations, membership interests and cash
flows of the Borrower for such quarter and the portion of the fiscal year
through the end of such quarter, setting forth in each case in comparative
form the figures for the previous year, reviewed by independent auditors
and certified by the Borrower's Chief Executive Officer and Chief Financial
Officer as being fairly stated in all material respects when considered in
relation to the most recent audited financial statements of the Borrower;
(c) as soon as available, but in any event not later than 10 days after the end
of each month, the unaudited statement of operations and cash flows of the
Borrower for such month and the portion of the fiscal year through the end
of such month, setting forth in each case in comparative form the figures
for the previous year and the budget amounts, certified by the Borrower's
Chief Executive Officer and Chief Financial Officer as being fairly stated
in all material respects when considered in relation to the most recent
audited financial statements of the Borrower; and
(d) such other reports as may be reasonably requested by PATI.
All such financial statements are to be prepared and presented on a
consolidated and consolidating basis, where applicable, complete and correct in
all material respects and are to be prepared in reasonable detail and in
accordance with GAAP applied consistently throughout the periods reflected
therein and with prior periods.
5.10 Further Assurances.
The Borrower shall execute any and all further documents, and take all
further action which PATI may request in order to effectuate the transactions
contemplated by the Loan Documents. Without limiting the generality of the
foregoing, such further documents and actions shall include the execution of
agreements and instruments, and filing Uniform Commercial Code financing
statements, in order to effectuate the transactions contemplated by this Credit
Agreement and in order to grant, preserve, protect and perfect the validity and
priority of the security interests created or intended to be created by the Loan
Documents.
ARTICLE VI NEGATIVE COVENANTS
6.01 Limitation on Indebtedness.
The Borrower shall not create, incur, assume, or suffer to exist any
Indebtedness except:
(a) the Loan; or
(b) other Indebtedness existing on the Closing Date as described on Schedule
6.01.
6.02 Limitation on Guarantee Obligations.
The Borrower shall not create, incur, assume, or suffer to exist any
Guarantee Obligations, except (i) those in existence on the Closing Date as
listed on Schedule 6.02, (ii) in connection with the endorsement of negotiable
instruments for deposit or collection in the ordinary course of the business,
and (iii) other Guarantee Obligations in an aggregate amount not exceeding
$50,000.
6.03 Limitation on Liens.
The Borrower shall not create, incur, assume or suffer to exist any Lien
upon any of its property, assets or revenues, whether now owned or hereafter
acquired, except for:
(a) Liens in favor of PATI;
(b) Liens for taxes not yet due or which are being contested in good faith by
appropriate proceedings, provided that adequate reserves with respect to
taxes which are being contested are maintained on the books of the
Borrower, in conformity with GAAP;
(c) carriers', warehousemen's, construction liens, repairmen's or other like
Liens arising in the ordinary course of business which are not overdue for
a period of more than 90 days or which are being contested in good faith by
appropriate proceedings;
(d) pledges or deposits in connection with workers' compensation, unemployment
insurance and other social security legislation for Borrower's employees;
(e) deposits to secure the performance of bids, trade contracts (other than for
borrowed money), leases, statutory obligations and other obligations of a
like nature incurred in the ordinary course of business; and
(f) easements, rights-of-way, restrictions and other similar encumbrances
which, in the aggregate, are not substantial in amount and which do not in
any case materially detract from the value of the property subject thereto
or materially interfere with the ordinary conduct of the business of the
Borrower.
6.04 Limitation on Operating Leases.
Create, incur, assume or suffer to exist the obligation to make payments
under Operating Leases during the course of any fiscal year, in an aggregate
amount in excess of $100,000 during the prior fiscal year.
6.05 Limitations on Fundamental Changes.
Other than as provided in the Asset Purchase Agreement, the Borrower shall
not form, invest in or make a loan to any subsidiary, change its corporate
structure, enter into any merger, consolidation or amalgamation, or liquidate,
wind up or dissolve itself (or suffer any liquidation or dissolution), or
convey, sell, lease, assign, transfer or otherwise dispose of, all or
substantially all of its property, business or assets without the prior written
consent of PATI which consent shall not be unreasonably withheld.
6.06 Limitation on Dividends; Stock Repurchases.
The Borrower shall not declare or pay any dividend (other than dividends
payable solely in common stock of the Borrower) on, or make any payment on
account of, or set apart assets for a sinking or other analogous fund for, the
purchase, redemption, defeasance, retirement or other acquisition of, any shares
of any class of Capital Stock of the Borrower whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Borrower.
6.07 Limitation on Investments, Loans and Advances.
The Borrower shall not make any advance, loan, extension of credit or
capital contribution to, or purchase any stock, bonds, notes, debentures or
other securities of or any assets constituting a business unit of, or make any
other investment in, any Person (an "Investment"), except:
(a) the investment in PATI as contemplated by the Asset Purchase Agreement;
(b) extensions of trade credit in the ordinary course of business;
(c) investments in (i) securities issued or directly and fully guaranteed or
insured by the United States Government or any agency or instrumentality
thereof having maturities of not more than 180 days from the date of
acquisition, (ii) time deposits and certificates of deposit having
maturities of not more than 180 days from the date of acquisition of any
domestic commercial bank the long-term debt of which is rated at least A-2
or the equivalent thereof by Standard & Poor's Corporation or P-2 or the
equivalent thereof by Xxxxx'x Investors Service, Inc., (iii) repurchase
obligations with a term of not more than seven days for underlying
securities of the types described in clauses (i) and (ii) entered into with
any bank meeting the qualifications specified in clause (ii) above, (iv)
commercial paper rated at least A-2 or the equivalent thereof by Standard &
Poor's Corporation or P-2 or the equivalent thereof by Xxxxx'x Investors
Service, Inc. and in either case maturing within 180 days after the date of
acquisition and (v) securities issued by any municipality in the United
States rated at least A-2 or the equivalent thereof by Standard & Poor's
Corporation or P-2 or the equivalent thereof by Xxxxx'x Investors Service,
Inc. and in either case maturing within 270 days after the date of
acquisition ("Cash Equivalents"); and
(d) investments arising as a result of the compromise or settlement of accounts
in the ordinary course of business as generally conducted over a period of
time.
6.08 Registration of Shares.
The Borrower shall not register any shares of its Capital Stock, including
shares held by existing shareholders, under any federal or state securities
laws, except as provided herein and upon the prior written consent of PATI.
6.09 Transactions with Affiliates.
The Borrower shall not enter into any transaction, including, without
limitation, any purchase, sale, lease or exchange of property or the rendering
of any service, with any Affiliate, unless such transaction is approved in
advance by PATI, and pursuant to the reasonable requirements of the Borrower's
business, is in good faith and is upon fair and reasonable terms no less
favorable to the Borrower than it would obtain in a comparable arm's length
transaction with a Person not an Affiliate.
6.10 Sale and Leaseback.
The Borrower shall not enter into any arrangement with any Person providing
for the leasing by the Borrower of real or personal property which has been or
is to be sold or transferred by the Borrower to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of the Borrower.
6.11 Accounting Policies and Procedures.
The Borrower shall not permit any material change in the accounting
policies or procedures of the Borrower or any of its subsidiaries, other than as
required by GAAP, without the prior written consent of PATI.
6.12 Issuance of Securities.
The Borrower shall not authorize or issue, or sell, or enter into any
agreements, options or commitments with respect to any securities of the
Borrower, including but not limited to common stock, or securities convertible
into common stock, without the prior written approval of PATI.
ARTICLE VII EVENTS OF DEFAULT
7.01 Bankruptcy, etc.
The Loan (with accrued interest thereon) and all other amounts owing under
this Credit Agreement and the Notes shall immediately become due and payable
without the need for any notice or other action by PATI if any of the following
events shall occur:
(a) Borrower shall commence any case, proceeding or other action (i) under any
existing or future law of any jurisdiction, domestic or foreign, relating
to bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (ii) seeking
appointment of a receiver, trustee, custodian or other similar official for
it or for all or any substantial part of its assets, or the Borrower shall
make a general assignment for the benefit of its creditors; or
(b) there shall be commenced against the Borrower any case, proceeding or other
action of a nature referred to in subsection 7.01(a)(i) or 7.01(a)(ii)
above which (i) results in the entry of an order for relief or any such
adjudication or appointment, or (ii) remains undismissed, undischarged or
unbonded for a period of 60 days; or
(c) there shall be commenced against the Borrower any case, proceeding or other
action seeking issuance of a warrant of attachment, execution, distraint or
similar process against all or any substantial part of its assets which
results in the entry of an order for any such relief which shall not have
been vacated, discharged, or stayed or bonded pending appeal within 60 days
from the entry thereof; or
(d) the Borrower shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in
subsections (a), (b) or (c) above.
7.02 Other Events.
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay (i) any principal of the Notes when due in
accordance with the terms thereof, or (ii) interest on the Notes or any fee
or other amount payable hereunder within 5 Business Days following notice
given in accordance herewith when due in accordance with the terms thereof
or hereof; or
(b) any representation or warranty made or deemed made by the Borrower herein
or in any other Loan Document or which is contained in any certificate,
document or financial or other statement furnished at any time under or in
connection with this Credit Agreement or other Loan Document shall prove to
have been incorrect and the subject of that breach of representation or
warranty has a Material Adverse Effect on or as of the date made or deemed
made; or
(c) the Borrower shall default in the observance or performance of any other
agreement contained in this Credit Agreement or any other Loan Documents
(other than as provided in paragraphs (a) through (c) of this Section), and
such default shall remain unremedied for a period of 5 Business Days
following notice given in accordance herewith; or
(d) (i) any Person shall engage in any "prohibited transaction" (as defined in
Section 406 of ERISA or Section 4975 of the Code) involving any Plan, or
(ii) any other event or condition shall occur or exist, with respect to a
Plan; and in each case in clauses (i) and (ii) above, such event or
condition, together with all other such events or conditions, if any,
could, in the reasonable judgment of PATI, subject the Borrower to any tax,
penalty or other liabilities that in the aggregate could reasonably be
expected to have a Material Adverse Effect; or
(e) one or more judgments or decrees shall be entered against any Borrower
involving in the aggregate a liability (not paid or fully covered by
insurance) of $50,000 or more and (i) all such judgments or decrees shall
not have been vacated, discharged, stayed or bonded pending appeal within
60 days from the entry thereof or (ii) the judgment creditors with respect
to such judgments or their successors or assigns shall have commenced
enforcement proceedings, which enforcement proceedings shall have remained
unstayed for 10 consecutive days;
(f) the security interests created by any such Document shall cease for any
reason or the Borrower shall make any assertion to such effect, unless
caused by the action of PATI, to be enforceable and of the same effect and
priority purported to be created thereby;
(g) any representation or warranty of the Borrower in the Asset Purchase
Agreement was incorrect or incomplete in any material respect, as of the
execution date of the Asset Purchase Agreement or will be incorrect or
incomplete, in any material respect, as of the closing date of the Asset
Purchase Agreement;
(h) the Borrower or any stockholder of Borrower shall fail to perform timely,
in all material respects, the covenants and obligations that it or any of
them, is required to perform under the Asset Purchase Agreement and PATI
does not waive such failure in writing, it being agreed that with respect
to any such failure that is capable of being cured, may be cured by
Borrower or any such stockholder, within 5 Business Days of written notice
provided by PATI in accordance with this Agreement;
(i) the termination of the Asset Purchase Agreement;
(j) PATI shall have made a good faith determination in writing to Borrower and
after diligent inquiry that facts and circumstances exist or that the
Borrower has become subject to circumstances, that would place at material
risk the value of the Collateral; or
(k) receipt by the Borrower of a notice of termination of any client or
provider representing more than 10% of collections during any of the
trailing six consecutive months and such notice of termination has not been
rescinded prior to the effective date of termination, it being agreed that
Pinnacol Assurance is such a client, the loss of which would be
specifically covered hereby.
then, and in any such event, PATI may by notice of default to the Borrower,
declare the Loan (with accrued interest thereon) and all other amounts owing
under this Credit Agreement and the Notes to be due and payable forthwith,
whereupon the same shall immediately become due and payable.
7.03 Waivers of Presentment, etc.
Except as expressly provided above in this Section, presentment, demand,
protest and all other notices of any kind are hereby expressly waived.
ARTICLE VIII MISCELLANEOUS
8.01 Amendments and Waivers.
No provision of this Credit Agreement, the Notes or the Loan Documents, may
be waived, modified or amended without the prior written agreement of PATI. No
such waiver, modification or amendment shall extend to or affect any obligation
not expressly waived, modified or amended.
8.02 Notices.
All notices, requests and demands to or upon the respective parties hereto
to be effective shall be in writing and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when delivered by hand,
or, in the case of telecopy notice, when transmitted by the sender to the
telecopy numbers indicated below, or, in the case of a nationally recognized
courier service, one Business Day after delivery to such courier service,
addressed as follows in the case of the Borrower and PATI or to such other
address as may be hereafter notified by the respective parties hereto:
The Borrower: American CareSource Corporation
0000 Xxxxxxx Xxxxx; Xxxxx 000
Xxxxxx, XX 00000
Telecopy Number: 000-000-0000
Attn: Xxxxxxx Xxxxx Xx., General Counsel
PATI: Patient Infosystems, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopy Number: 000-000-0000
Attention: Xxxx Xxxxxx, Vice President
8.03 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of PATI, any
right, remedy, power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
8.04 Survival of Representations and Warranties.
All representations and warranties made hereunder or under any other Loan
Document and in any document, certificate or statement delivered pursuant hereto
or in connection herewith shall survive the execution and delivery of this
Credit Agreement and the Notes.
8.05 Payment of Expenses and Taxes.
The Borrower agrees (i) to pay or reimburse PATI for all its reasonable and
direct out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or
modification to, this Credit Agreement, the Notes, and the other Loan Documents
and any other related documents prepared in connection herewith or therewith,
and the consummation and administration of the loan contemplated hereby and
thereby, provided that any legal fees of PATI shall be limited to the reasonable
fees and disbursements of counsel to PATI, (ii) to pay or reimburse PATI for all
its reasonable and direct costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Credit Agreement, the
Notes, the other Loan Documents and any such other documents, and (iii) to pay,
indemnify, and hold PATI harmless from, any and all recording and filing fees
and any and all liabilities with respect to, or resulting from any delay in
paying, stamp, excise and other taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Credit Agreement, the Notes, the other Loan Documents and
any such other documents. The agreements in this subsection shall survive
repayment of the Notes and all other amounts payable hereunder.
8.06 Assignment(s) of the Notes.
PATI, and any other Person that becomes a party to this Credit Agreement by
way of an assignment as contemplated by this Section, may at any time assign all
or a portion of its rights under the Credit Agreement and the Notes (or any
notes subsequently issued under this Credit Agreement) to one or more persons;
provided, however, that at no time shall there be more than ten holders of such
notes. In the event of such an assignment, the Borrower shall, upon request of
any holder, exchange any note then outstanding for a new note payable to such
assignee and, in the case of a partial assignment, issue a new note payable to
the assigning holder. If an assignment is made to more than one person, the
Borrower shall, upon the written request of PATI, enter into an amendment to
this Credit Agreement and the other Loan Documents to reflect the existence of
multiple noteholders including, without limitation, provisions regarding (i) the
appointment of a collateral or other agent, (ii) the respective rights of
noteholders with respect to payments under the notes, and (iii) the process for
approval of any amendments or waiver to the Credit Agreement and the Notes.
8.07 Indemnification.
The Borrower will defend, indemnify, and hold harmless PATI, its
subsidiaries, shareholders, employees, agents, attorneys, officers, and
directors (each an "Indemnified Person"), from and against any and all claims,
demands, penalties, causes of action, fines, liabilities, settlements, damages,
costs, or expenses of whatever kind or nature, known or unknown, foreseen or
unforeseen, contingent or otherwise (including, without limitation, counsel and
consultant fees and expenses, investigation and laboratory fees and expenses,
court costs, and litigation expenses) arising out of, or in any way related to
the Collateral or the Loan including violation or alleged violation of any
Hazardous Materials Laws by the Borrower. The Borrower shall not, without the
prior written consent of any Indemnified Person, effect any settlement of any
pending or threatened proceeding, claim or action against such Indemnified
Person, in respect of which such Indemnified Person or its parent, subsidiaries,
affiliates, employees, agents, officers or directors is a party or would be
entitled to seek indemnification hereunder, unless such settlement includes an
unconditional release of such Indemnified Person and its parent, subsidiaries,
affiliates, employees, agents, attorneys, officers or directors from all
liability on claims that are the subject matter of such claim, action or other
proceeding and is otherwise acceptable to such Indemnified Person and its
counsel, in their sole discretion. Provided, that the Borrower shall have no
obligation hereunder to an Indemnified Person with respect to indemnified
liabilities arising from the gross negligence or willful misconduct of such
Indemnified Person. The agreements in this subsection shall survive repayment of
the Notes and all other amounts payable hereunder.
8.08 Counterparts.
This Credit Agreement may be executed by one or more of the parties to this
Credit Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
8.09 Severability.
Any provision of this Credit Agreement which 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, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
8.10 Integration.
This Credit Agreement and the other Loan Documents represent the agreement
of the Borrower and PATI with respect to the subject matter hereof, and there
are no promises, undertakings, representations or warranties by PATI relative to
the subject matter hereof not expressly set forth or referred to herein or in
the other Loan Documents.
8.11 GOVERNING LAW.
THE LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THE
LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO CONFLICTS OF
LAWS RULES THEREOF.
8.12 Submission to Jurisdiction; Waivers.
The Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding
relating to the Loan Documents, or for recognition and enforcement of
any judgment in respect thereof, to the non-exclusive general
jurisdiction of the Courts of the State of New York, the courts of the
United States of America located in the State of New York, and
appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in this Credit Agreement or at such
other address of which PATI shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right
to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may
have to claim or recover in any legal action or proceeding referred to
in this subsection any punitive damages.
8.13 WAIVERS OF JURY TRIAL.
THE BORROWER AND PATI HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THE LOAN DOCUMENTS AND FOR
ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
American CareSource Corporation
By: /s/Xxxxxx Xxxxxx
-----------------------------
Name: Xxxxxx Xxxxxx
Title: President
Patient Infosystems, Inc.
By: /s/Xxxxx Xxxxxxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxxxxxx
Title: President
Exhibit 2.01
NOTE
DUE September 30, 2003
No. ____________ $____________
American CareSource Corporation, a corporation duly formed under the laws
of the State of Indiana, (the "Borrower"), for value received, hereby promises
to pay to Patient Infosystems, Inc. or registered assigns ("PATI") the principal
sum of _______________ Dollars ($____________), together with interest, in the
manner provided herein. This Note (this "Note") was issued as a series of Notes
pursuant to that certain Credit Agreement dated April __, 2003 between the
Borrower and PATI (the "Credit Agreement"), and is entitled to the benefits of
the Credit Agreement. As of the date of each Note, Borrower shall be deemed to
represent that each representation made in the Loan Documents is true as of such
date. Except as to those terms otherwise defined in this Note, all capitalized
terms used in this Note shall have the respective meanings ascribed to them in
the Credit Agreement.
1. Payments.
All principal amounts then outstanding and unpaid under this Note shall be
paid in full on September 30, 2003, or contemporaneously with the closing of the
Asset Purchase Agreement as amended.
2. Interest.
Interest shall accrue on the Prime Rate plus 3% per annum, computed on the
basis of a 360-day year counting the actual number of days elapsed. The Prime
Rate means the prime rate as published from time to time by the Wall Street
Journal. Interest shall be payable monthly in arrears on the tenth day of each
month following the execution of this Note.
3. Default.
In case an Event of Default shall occur as defined in the Credit Agreement
and be continuing, the entire unpaid principal of this Note may become due and
payable in the manner and with the effect provided in the Credit Agreement. The
Borrower further agrees to pay PATI's fees and expenses as provided for in the
Credit Agreement.
4. Prepayment.
This Note may be prepaid, in whole or in part, at any time, without premium
or penalty upon the written consent of PATI.
5. Miscellaneous.
(a) The Borrower will pay to PATI, in immediately available funds to such
account as PATI may specify in writing, all amounts payable to PATI in
respect of the principal, interest or other amounts due under this
Note, without any presentation of this Note. Each such payment, when
paid, shall be applied first to the fees and charges due under this
Note, second to the payment of interest accrued and unpaid on this
Note, and third to the payment of the principal hereof. All payments
hereunder shall be made at PATI's principal offices. All calculations
and applications of amounts due on any date, whether by acceleration
or otherwise, will be made by PATI, and the Borrower agrees that all
such calculations and applications will be conclusive and binding
absent manifest error.
(b) This Note is secured by the Collateral and other assets, property
rights and interests as described in the Credit Agreement.
(c) The Borrower and all sureties, endorsers and guarantors of this Note,
to the extent not prohibited by applicable law or regulation, hereby
waive as to this debt or any renewal, modification, extension or
refinancing thereof: (a) demand, presentment, notice of non-payment,
protest, notice of protest, notice of dishonor, all other notice, suit
against any party, diligence in collection of this Note, the release
of any party primarily or secondarily liable thereon or any collateral
pledged as security, and all other requirements necessary to hold
Borrower liable hereunder; and (b) agree and consent to any one or
more extensions or postponements of time of payment of this Note or
any other indulgences with respect hereto, without notice thereof to
any of them, and without release of liability as to Borrower or any of
them.
(d) This Note has been issued and is to be performed in the State of New
York and shall be governed by and construed and enforced in accordance
with the laws of the State of New York without regard to principles of
conflicts of laws. If any provision hereof is in conflict with any
statute or rule of law of the State of New York or any other state, or
is otherwise unenforceable for any reason whatsoever, then such
provision shall be deemed separable from and shall not invalidate any
other provision of this Note.
(e) THE BORROWER WAIVES ANY AND ALL RIGHTS THAT IT MAY NOW OR HEREAFTER
HAVE UNDER THE LAWS OF THE UNITED STATES OF AMERICA OR ANY STATE, TO A
TRIAL BY JURY OF ANY AND ALL ISSUES ARISING EITHER DIRECTLY OR
INDIRECTLY IN ANY ACTION OR PROCEEDING BETWEEN THE BORROWER AND PATI
OR ITS SUCCESSORS AND ASSIGNS, OUT OF OR IN ANY WAY CONNECTED WITH
THIS NOTE AND THE OTHER LOAN DOCUMENTS. IT IS INTENDED THAT SAID
WAIVER SHALL APPLY TO ANY AND ALL DEFENSES, RIGHTS, AND/OR
COUNTERCLAIMS IN ANY ACTION OR PROCEEDINGS. THIS SECTION IS A MATERIAL
INDUCEMENT TO PATI TO ENTER INTO THE TRANSACTIONS CONTEMPLATED BY THE
CREDIT AGREEMENT.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed
and delivered.
DATED: _____________, 2003 BORROWER:
AMERICAN CARESOURCE CORPORATION
By: Exhibit do not sign
EXHIBIT 2.05
Void after 5:00 p.m. New York Time on Xxxxx 0, 0000
Xxxxxxx to Purchase 15,200 Shares of Common Stock
WARRANT TO PURCHASE COMMON STOCK
OF
AMERICAN CARESOURCE CORPORATION
This is to certify that, FOR VALUE RECEIVED, Patient Infosystems, Inc., or
assigns ("Holder"), is entitled to purchase, subject to the provisions of this
Warrant, from American CareSource Corporation, an Indiana corporation (the
"Company"), that number of fully paid, validly issued and nonassessable shares
of Common Stock, no par value per share, of the Company ("Common Stock") which
provides the Holder beneficial ownership of 15,200 shares of Common Stock, being
initially 32.00% of the fully diluted ownership of the Company as of the
Closing, at a price of $0.01 per share at any time or from time to time during
the period from April 10, 2003 to April 9, 2013, but not later than 5:00 p.m.
New York City Time on April 9, 2013 unless this Warrant expires sooner in
accordance with Section (a)(3) hereunder. Warrants to purchase additional shares
of Common Stock in the form identical hereto may be issued by the Company in the
event the Holder loans greater than $1.5 million in the aggregate to the Company
as set forth in the Credit Agreement by and among the Company and Holder. In
addition, the number of shares to be received upon exercise of this Warrant and
the price to be paid for each share of Common Stock may be adjusted from time to
time as hereinafter set forth. The shares of Common Stock deliverable upon such
exercise, and as adjusted from time to time, are hereinafter sometimes referred
to as "Warrant Shares" and the exercise price of a share of Common Stock in
effect at any time and as adjusted from time to time is hereinafter sometimes
referred to as the "Exercise Price."
(a) EXERCISE OF WARRANT
(1) This Warrant may be exercised only upon (i) an event of default under
the Credit Agreement by and between the Holder and the Company of even
date herewith, (ii) the termination of the Asset Purchase Agreement by
and between the Holder and the Company, dated as of September 23,
2002, as further amended on April 10, 2003 (the "Asset Purchase
Agreement") or (iii) upon repayment of all loans provided under the
Credit Agreement by and between the Holder and ACS if such repayment
occurs prior to the termination of the Asset Purchase Agreement. This
Warrant, when exercisable, may be exercised in whole or in part at any
time or from time to time on or after April 10, 2003 and until April
9, 2013 (the "Exercise Period"), unless this Warrant expires sooner in
accordance with Section (a)(3) hereunder and provided that (i) if
either such day is a day on which banking institutions in the State of
New York are authorized by law to close, then on the next succeeding
day which shall not be such a day, and (ii) other than as contemplated
by the Asset Purchase Agreement, in the event of any merger,
consolidation or sale of substantially all the assets of the Company
as an entirety, resulting in any distribution to the Company's
stockholders, prior to April 9, 2013, the Holder shall have the right
to exercise this Warrant commencing at such time through April 9, 2013
(unless this Warrant expires sooner in accordance with Section (a)(3)
hereunder) 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. This Warrant, when
exercisable, may be exercised by presentation and surrender hereof to
the Company at its principal office, or at the office of its stock
transfer agent, if any, with the Purchase Form annexed hereto duly
executed and accompanied by payment of the Exercise Price for the
number of Warrant Shares specified in such form. As soon as
practicable after each such exercise of the warrants, but not later
than seven (7) days from the date of such exercise, the Company shall
issue and deliver to the Holder a certificate or certificates for the
Warrant Shares issuable upon such exercise, registered in the name of
the Holder or its designee. If this Warrant should 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 thereunder. Upon receipt by the Company of this Warrant at
its office, or by the stock transfer agent of the Company at its
office, in proper form for exercise, the Holder shall be deemed to be
the holder of record of the shares of Common Stock issuable upon such
exercise, notwithstanding that the stock transfer books of the Company
shall then be closed or that certificates representing such shares of
Common Stock shall not then be physically delivered to the Holder.
(2) At any time during the Exercise Period, the Holder may, at its option,
exchange this Warrant, in whole or in part (a "Warrant Exchange"),
into the number of Warrant Shares determined in accordance with this
Section (a)(2), by surrendering this Warrant at the principal office
of the Company or at the office of its stock transfer agent,
accompanied by a notice stating such Holder's intent to effect such
exchange, the number of Warrant Shares to be exchanged and the date on
which the Holder 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 shares issuable upon such Warrant Exchange and,
if applicable, a new warrant of like tenor evidencing the balance of
the shares remaining subject to this Warrant, shall be issued as of
the Exchange Date and delivered to the Holder within seven (7) days
following the Exchange Date. In connection with any Warrant Exchange,
this Warrant shall represent the right to subscribe for and acquire
the number of Warrant Shares (rounded to the next highest integer)
equal to (i) the number of Warrant Shares specified by the Holder in
its Notice of Exchange (the "Total Number") less (ii) the number of
Warrant Shares equal to the quotient obtained by dividing (A) the
product of the Total Number and the existing Exercise Price by (B) the
current market value of a share of Common Stock. Current market value
shall have the meaning set forth in Section (c) below, except that for
purposes hereof, the date of exercise, as used in such Section (c),
shall mean the Exchange Date.
(3) Upon the completion of the closing as contemplated under the Asset
Purchase Agreement, this Warrant shall immediately expire.
(b) RESERVATION OF SHARES. The Company shall at all times reserve for issuance
and/or delivery upon exercise of this Warrant such number of shares of its
Common Stock as shall be required for issuance and delivery upon exercise
of the Warrants.
(c) FRACTIONAL SHARES. No fractional shares or scrip representing fractional
shares shall be issued upon the exercise of this Warrant. With respect to
any fraction of a share called for upon any exercise hereof, the Company
shall pay to the Holder an amount in cash equal to such fraction multiplied
by the current market value of a share, determined as follows:
(1) If the Common Stock is listed on a national securities exchange or
admitted to unlisted trading privileges on such exchange or listed for
trading on the Nasdaq National Market, the current market value shall
be the last reported sale price of the Common Stock on such exchange
or market on the last business day prior to the date of exercise of
this Warrant or if no such sale is made on such day, the average
closing bid and asked prices for such day on such exchange or market;
or
(2) If the Common Stock is not so listed or admitted to unlisted trading
privileges, but is traded on the Nasdaq SmallCap Market, the current
market value shall be the average of the closing bid and asked prices
for such day on such market and if the Common Stock is not so traded,
the current market value shall be the mean of the last reported bid
and asked prices reported by the National Quotation Bureau, Inc. on
the last business day prior to the date of the exercise of this
Warrant; or
(3) If the Common Stock is not so listed or admitted to unlisted trading
privileges and bid and asked prices are not so reported, the current
market value shall be an amount not less than book value thereof as at
the end of the most recent fiscal year of the Company ending prior to
the date of the exercise of the Warrant, determined in such reasonable
manner as may be prescribed by the Board of Directors of the Company.
(d) EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT. This Warrant is
exchangeable, without expense, at the option of the Holder, upon
presentation and surrender hereof to the Company or at the office of its
stock transfer agent, if any, for other warrants of different denominations
entitling the holder thereof to purchase in the aggregate the same number
of shares of Common Stock purchasable hereunder. Upon surrender of this
Warrant to the Company at its principal office or at the office of its
stock transfer agent, if any, with the Assignment Form annexed hereto 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 or assignees named in such instrument of assignment and this
Warrant shall promptly be canceled. 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 it stock 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 by the Company
of evidence satisfactory to it of the loss, theft, destruction or
mutilation of this Warrant, and (in the case of loss, theft or destruction)
of reasonably satisfactory indemnification, and upon surrender and
cancellation of this Warrant, if mutilated, the Company will execute and
deliver a new Warrant of like tenor and date. Any such new Warrant executed
and delivered shall constitute an additional contractual obligation on the
part of the Company, whether or not this Warrant so lost, stolen, destroyed
or mutilated shall be at any time enforceable by anyone.
(e) RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be entitled
to any rights of a shareholder in the Company, either at law or equity, and
the rights of the Holder are limited to those expressed in the Warrant and
are not enforceable against the Company except to the extent set forth
herein.
(f) ANTI-DILUTION PROVISIONS. The Exercise Price in effect at any time and the
number and kind of securities purchasable upon the exercise of the Warrants
shall be subject to adjustment from time to time upon the happening of
certain events as follows:
(1) In case the Company shall (i) declare a dividend or make a
distribution on its outstanding shares of Common Stock in shares of
Common Stock, (ii) subdivide or reclassify its outstanding shares of
Common Stock into a greater number of shares, or (iii) combine or
reclassify its outstanding shares of Common Stock into a smaller
number of shares, the Exercise Price in effect at the time of the
record date for such dividend or distribution or of the effective date
of such subdivision, combination or reclassification shall be adjusted
so that it shall equal the price determined by multiplying the
Exercise Price by a fraction, the denominator of which shall be the
number of shares of Common Stock outstanding after giving effect to
such action, and the numerator of which shall be the number of shares
of Common Stock outstanding immediately prior to such action. Such
adjustment shall be made successively whenever any event listed above
shall occur.
(2) In case the Company shall fix a record date for the issuance of rights
or warrants to all holders of its Common Stock entitling them to
subscribe for or purchase shares of Common Stock (or securities
convertible into Common Stock) at a price (the "Subscription Price")
(or having a conversion price per share) less than the Exercise Price
on such record date, the Exercise Price shall be adjusted to equal the
Subscription Price. Such adjustment shall be made successively
whenever such rights or warrants are issued and shall become effective
immediately after the record date for the determination of
shareholders entitled to receive such rights or warrants; and to the
extent that shares of Common Stock are not delivered (or securities
convertible into Common Stock are not delivered) after the expiration
of such rights or warrants the Exercise Price shall be readjusted to
the Exercise Price which would then be in effect had the adjustments
made upon the issuance of such rights or warrants been made upon the
basis of delivery of only the number of shares of Common Stock (or
securities convertible into Common Stock) actually delivered.
(3) In case the Company shall issue shares of its Common Stock for a
consideration per share (the "Offering Price") less than the Exercise
Price, the Exercise Price shall be adjusted immediately thereafter so
that it shall equal the Offering Price. Such adjustment shall be made
successively whenever such an issuance is made.
(4) In case the Company shall issue any securities convertible into or
exchangeable for its Common Stock for a consideration per share of
Common Stock (the "Conversion Price") initially deliverable upon
conversion or exchange of such securities less than the Exercise
Price, the Exercise Price shall be adjusted immediately thereafter so
that it shall equal the Conversion Price. Such adjustment shall be
made successively whenever such an issuance is made.
(5) Whenever the Exercise Price payable upon exercise of each Warrant is
adjusted pursuant to Subsections (1), (2), (3) and (4) above, the
number of Warrant Shares purchasable upon exercise of this Warrant
shall simultaneously be adjusted by multiplying the number of Warrant
Shares initially issuable upon exercise of this Warrant by the
Exercise Price in effect on the date hereof and dividing the product
so obtained by the Exercise Price, as adjusted.
(6) For purposes of any computation respecting consideration received, the
following shall apply:
(A) in the case of the issuance of shares of Common Stock for cash,
the consideration shall be the amount of such cash, provided that
in no case shall any deduction be made for any commissions,
discounts or other expenses incurred by the Company for any
underwriting of the issue or otherwise in connection therewith;
(B) in the case of the issuance of shares of Common Stock for a
consideration in whole or in part other than cash, the
consideration other than cash shall be deemed to be the fair
market value thereof as determined in good faith by the Board of
Directors of the Company (irrespective of the accounting
treatment thereof), whose determination shall be conclusive; and
(C) in the case of the issuance of securities convertible into or
exchangeable for shares of Common Stock, the aggregate
consideration received therefor shall be deemed to be the
consideration received by the Company for the issuance of such
securities plus the additional minimum consideration, if any, to
be received by the Company upon the conversion or exchange
thereof, the consideration in each case to be determined in the
same manner as provided in clauses (A) and (B) of this Subsection
(6).
(7) No adjustment in the Exercise Price shall be required unless such
adjustment would require an increase or decrease of at least $0.0001
in such price; provided, however, that any adjustments which by reason
of this Subsection (7) 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 (f) shall be
made to the nearest cent or to the nearest one-hundredth of a share,
as the case may be. Anything in this Section (f) to the contrary
notwithstanding, the Company shall be entitled, but shall not be
required, to make such changes in the Exercise Price, in addition to
those required by this Section (f), as it shall determine, in its sole
discretion, to be advisable in order that any dividend or distribution
in shares of Common Stock or any subdivision, reclassification or
combination of Common Stock, hereafter made by the Company shall not
result in any Federal income tax liability to the holders of Common
Stock or securities convertible into Common Stock (including
Warrants).
(8) Whenever the Exercise Price is adjusted, as herein provided, the
Company shall promptly but no later than 10 days after any request for
such an adjustment by the Holder, cause a notice setting forth the
adjusted Exercise Price and adjusted number of Shares issuable upon
exercise of each Warrant, and, if requested, information describing
the transactions giving rise to such adjustments, to be mailed to the
Holders at their last addresses appearing in the Warrant register, and
shall cause a certified copy thereof to be mailed to its transfer
agent, if any. In the event the Company does not provide the Holder
with such notice and information within 10 days of a request by the
Holder, then notwithstanding the provisions of this Section (f), the
Exercise Price shall be immediately adjusted to equal the lowest
Offering Price, Subscription Price or Conversion Price, as applicable,
since the date of this Warrant, and the number of shares issuable upon
exercise of this Warrant shall be adjusted accordingly. The Company
may retain a firm of independent certified public accountants selected
by the Board of Directors (who may be the regular accountants employed
by the Company) to make any computation required by this Section (f),
and a certificate signed by such firm shall be conclusive evidence of
the correctness of such adjustment.
(9) In the event that at any time, as a result of an adjustment made
pursuant to Subsection (1) above, 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 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 Subsections (1) to (8), inclusive above.
(10) Irrespective of any adjustments in the Exercise Price or the number or
kind of shares purchasable upon exercise of this Warrant, Warrants
theretofore or thereafter issued may continue to express the same
price and number and kind of shares as are stated in the similar
Warrants initially issuable pursuant to this Agreement.
(g) OFFICER'S CERTIFICATE. Whenever the Exercise Price shall be adjusted as
required by the provisions of the foregoing Section, the Company shall
forthwith file in the custody of its Secretary or an Assistant Secretary at
its principal office and with its stock transfer agent, if any, an
officer's certificate showing the adjusted Exercise Price determined as
herein provided, setting forth in reasonable detail the facts requiring
such adjustment, including a statement of the number of additional shares
of Common Stock, if any, and such other facts as shall be necessary to show
the reason for and the manner of computing such adjustment. Each such
officer's certificate shall be made available at all reasonable times for
inspection by the holder or any holder of a Warrant executed and delivered
pursuant to Section (a) and the Company shall, forthwith after each such
adjustment, mail a copy by certified mail of such certificate to the Holder
or any such holder.
(h) NOTICES TO WARRANT HOLDERS. So long as this Warrant shall be outstanding,
(i) if the Company shall pay any dividend or make any distribution upon the
Common Stock or (ii) if the Company shall offer to the holders of Common
Stock for subscription or purchase by them any share of any class or any
other rights or (iii) if any capital reorganization of the Company,
reclassification of the capital stock of the Company, consolidation or
merger of the Company with or into another corporation, sale, lease or
transfer of all or substantially all of the property and assets of the
Company to another corporation, or voluntary or involuntary dissolution,
liquidation or winding up of the Company shall be effected, then in any
such case, the Company shall cause to be mailed by certified mail to the
Holder, at least fifteen days prior the date specified in (x) or (y) below,
as the case may be, a notice containing a brief description of the proposed
action and stating the date on which (x) a record is to be taken for the
purpose of such dividend, distribution or rights, or (y) such
reclassification, reorganization, consolidation, merger, conveyance, lease,
dissolution, liquidation or winding up is to take place and the date, if
any is to be fixed, as of which the holders of Common Stock or other
securities shall receive cash or other property deliverable upon such
reclassification, reorganization, consolidation, merger, conveyance,
dissolution, liquidation or winding up.
(i) RECLASSIFICATION, REORGANIZATION OR MERGER. In case of any
reclassification, capital reorganization or other change of outstanding
shares of Common Stock of the Company, or in the case of any consolidation
or merger of the Company with or into another corporation (other than a
merger with a subsidiary in which merger the Company is the continuing
corporation and which does not result in any reclassification, capital
reorganization or other change of outstanding shares of Common Stock of the
class issuable upon exercise of this Warrant) or in the case of any sale,
lease or conveyance to another corporation of the property of the Company
as an entirety, the Company shall, as a condition precedent to such
transaction, cause effective provisions to be made so that the Holder shall
have the right thereafter by exercising this Warrant at any time prior to
the expiration of the Warrant, to purchase the kind and amount of shares of
stock and other securities and property receivable upon such
reclassification, capital reorganization and other change, consolidation,
merger, sale or conveyance by a holder of the number of shares of Common
Stock which might have been purchased upon exercise of this Warrant
immediately prior to such reclassification, change, consolidation, merger,
sale or conveyance. Any such provision shall include provision for
adjustments which shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Warrant. The foregoing provisions of
this Section (i) shall similarly apply to successive reclassifications,
capital reorganizations and changes of shares of Common Stock and to
successive consolidations, mergers, sales or conveyances. In the event that
in connection with any such capital reorganization or reclassification,
consolidation, merger, sale or conveyance, additional shares of Common
Stock shall be issued in exchange, conversion, substitution or payment, in
whole or in part, for 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 Subsection (1) of Section (f) hereof.
(j) REGISTRATION UNDER THE SECURITIES ACT OF 1933.
(1) The Company shall advise the Holder of this Warrant or of the Warrant
Shares or any then holder of Warrants or Warrant Shares (such persons
being collectively referred to herein as "holders") by written notice
at least four weeks prior to the filing of any new registration
statement or post-effective amendment thereto ("Registration
Statement") under the Securities Act of 1933 (the "Act") covering
securities of the Company and will for a period of five years, from
the date of this Warrant upon the request of any such holder, include
in any such registration statement or post-effective amendment such
information as may be required to permit a public offering of the
Warrant Shares. The Company shall supply prospectuses and other
documents as the Holder may request in order to facilitate the public
sale or other disposition of the Warrants or Warrant Shares, qualify
the Warrants and the Warrant Shares for sale in such states as any
such holder designates and do any and all other acts and things which
may be necessary or desirable to enable such Holders to consummate the
public sale or other disposition of the Warrants or Warrant Shares,
and furnish indemnification in the manner as set forth in Subsection
(2)(C) of this Section (j). Such holders shall furnish information and
indemnification as set forth in Subsection(2)(C) of this Section (j),
except that the maximum amount which may be recovered from the Holder
shall be limited to the amount of proceeds received by the Holder from
the sale of the Warrant Shares.
(2) The following provision of this Section (j) shall also be applicable:
(A) Following the effective date of such Registration Statement, the
Company shall upon the request of any owner of Warrants and/or
Warrant Shares forthwith supply such a number of prospectuses
meeting the requirements of the Act, as shall be requested by
such owner to permit such holder to make a public offering of all
Warrant Shares from time to time offered or sold to such holder,
provided that such holder shall from time to time furnish the
Company with such appropriate information (relating to the
intentions of such holder) in connection therewith as the Company
shall request in writing. The Company shall also use its best
efforts to qualify the Warrant Shares for sale in such states as
such holder shall reasonably designate.
(B) The Company shall bear the entire cost and expense of any
registration of securities initiated by it under Subsection (1)
of this Section (j) notwithstanding that Warrants Shares subject
to this Warrant may be included in any such registration.
(C) The Company shall indemnify and hold harmless each such holder
and each underwriter, within the meaning of the Act, who may
purchase from or sell for any such holder any Warrants and/or
Warrant Shares from and against any and all losses, claims,
damages and liabilities caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement or any prospectus included therein required to be filed
or furnished by reason of this Section (j) or caused by any
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or
alleged untrue statement or omission or alleged omission based
upon information furnished or required to be furnished in writing
to the Company by such holder or underwriter expressly for use
therein, which indemnification shall include each person, if any,
who controls any such underwriter within the meaning of such Act,
provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in
said registration statement, said preliminary prospectus, said
final prospectus or said amendment or supplement in reliance upon
and in conformity with written information furnished by such
Holder or any other Holder, specifically for use in the
preparation thereof.
(D) Neither the giving of any notice by any holder nor making of any
request for prospectus shall impose upon such holder or owner
making such request any obligation to sell any Warrant Share, or
exercise any Warrants.
The Company's agreements with respect to Warrants in this Section (j) shall
continue in effect regardless of the exercise and surrender of this Warrant.
AMERICAN CARESOURCE CORPORATION
By:
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Xxxxxx Xxxxxx, President
[SEAL]
Dated As Of: , 2003
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Attest:
---------------------------------------------------------------
Secretary
PURCHASE FORM
Dated __________, 20___
The undersigned hereby irrevocably elects to exercise the within Warrant to
the extent of purchasing ____ shares of Common Stock and hereby makes payment of
______ in payment of the actual price thereof.
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INSTRUCTIONS FOR REGISTRATION OF STOCK
Name ___________________________
(Please typewrite or print in block letters)
Address: _________________________
Signature _________________________
ASSIGNMENT FORM
FOR VALUE RECEIVED, ______________ hereby sells, assigns and transfers unto
Name ________________________
(Please typewrite or print in block letters)
Address _______________________
the right to purchase Common Stock represented by this Warrant to the
extent of _____ shares as to which such right is exercisable and does hereby
irrevocably constitute and appoint ________ as attorney, to transfer the same on
the books of the Company with full power of substitution in the premises.
Date __________, 20___
Signature ____________
