Exhibit 4.6
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AMENDMENT NO. 1 TO
WARRANT AGREEMENT
AMENDMENT NO. 1 TO WARRANT AGREEMENT (this "Amendment") dated as of
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November 1, 2001 by and among Concentra Inc., a Delaware corporation formerly
known as Concentra Managed Care, Inc. (the "Company"), and the several persons
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that have executed this Amendment under the heading "Holders" (the "Holders").
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Capitalized terms used in this Amendment which are not otherwise defined herein
shall have the meanings ascribed to them in the Existing Warrant Agreement
referred to below.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and the Holders are parties to a Warrant
Agreement dated as of August 17, 1999 (the "Existing Warrant Agreement");
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WHEREAS, the Company proposes to issue (1) an aggregate 2,266,546
shares of Common Stock (the "New Common Shares") and (2) warrants to acquire an
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aggregate 771,277 shares of Common Stock (the "New Warrants" and, together with
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the New Common Shares, the "New Securities") pursuant to the terms and
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conditions of a Securities Purchase Agreement (the "Securities Purchase
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Agreement") dated as of the date hereof among the Company and the purchasers
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named therein (the "Purchasing Stockholders");
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WHEREAS, under Sections 10 and 12 of the Existing Warrant Agreement,
the Holders, as holders of the Warrants governed thereby (the "Existing
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Warrants"), are entitled to (1) an adjustment in the number of shares of Common
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Stock issuable upon exercise of the Existing Warrants ("Warrant Shares") and (2)
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certain notices, all in connection with the issuance of the New Securities;
WHEREAS, under the Securities Purchase Agreement, it is a condition
to the obligation of each Purchasing Stockholder to purchase New Securities that
this Amendment be executed and delivered by the Company and the registered
holders of two-thirds of the then outstanding Warrant Shares issued or issuable
upon exercise of the Existing Warrants;
WHEREAS, the parties hereto desire to execute and deliver this
Amendment in order to fulfill such condition and render the provisions of
Sections 10 and 12 of the Existing Warrant Agreement inapplicable to the
issuance of the New Securities;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the parties hereto hereby agree as
follows:
SECTION 1. Amendments to Existing Warrant Agreement. The Existing
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Warrant Agreement is amended as follows:
(a) Section 10 of the Existing Warrant Agreement is amended to insert
the following new subsection (p) at the end thereof:
"(p) Exclusion of Certain Transactions
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Notwithstanding anything to the contrary contained in this Section 10,
no adjustment in the number of Warrant Shares issuable upon exercise of
the Warrants shall be made in connection with the issuance of (1) an
aggregate 2,266,546 shares of Common Stock and (2) warrants to acquire
an aggregate 771,277 shares of Common Stock pursuant to the Securities
Purchase Agreement dated as of November 1, 2001 among the Company and
the purchasers named therein."
(b) Section 12 of the Existing Warrant Agreement is amended to insert
the following new paragraph at the end thereof:
"Notwithstanding anything to the contrary contained above, the
provisions of this Section 12 shall not apply to the issuance of (1) an
aggregate 2,266,546 shares of Common Stock and (2) warrants to acquire
an aggregate 771,277 shares of Common Stock pursuant to the Securities
Purchase Agreement dated as of November 1, 2001 among the Company and
the purchasers named therein."
SECTION 2. Miscellaneous.
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(a) THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS
OF THE STATE OF NEW YORK AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF SAID STATE.
(b) This Amendment 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.
(c) This Amendment is limited precisely as written and shall not be
deemed to be a modification, acceptance or waiver of any other term, condition
or provision of the Existing Warrant Agreement.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Amendment No. 1 to Warrant Agreement, all as of the day and year first above
written.
The Company:
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CONCENTRA INC.
By_____________________________________
Name: Xxxxxxx X. Xxxx XX
Title: Executive Vice President,
General Counsel and Secretary
The Holders:
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WCAS CAPITAL PARTNERS III, L.P.
By: WCAS CP III Associates, L.L.C., General Partner
By
Managing Member
XX XXXXXX DIRECT CORPORATE FINANCE
INSTITUTIONAL INVESTORS, LLC
By:_________________________________
Name:
Title:
XX XXXXXX DIRECT CORPORATE FINANCE
PRIVATE INVESTORS, LLC
By:_________________________________
Name:
Title:
CALIFORNIA PUBLIC EMPLOYEES'
RETIREMENT SYSTEM
By:_________________________________
Name:
Title:
CALIFORNIA STATE TEACHERS'
RETIREMENT SYSTEM
By:_________________________________
Name:
Title:
CHASE EQUITY ASSOCIATES, L.P.
By: Chase Capital Partners,
its General Partner
By:_________________________________
Name:
Title:
CMS CO-INVESTMENT SUBPARTNERSHIP II
By: CMS CO-INVESTMENT SUBPARTNERSHIP,
a Delaware general partnership
By: CMS Co-Investment Partners, L.P., a
Delaware limited partnership
By: CMS/Co-Investment Associates, L.P., a
Delaware limited partnership
By: MSPS/Co-Investment, Inc., a Delaware
corporation
Its:
By: CMS 1997 Investment Partners, L.P., a
Delaware limited partnership
By: CMS 1997, Inc. a Delaware corporation
By:______________________
Its:
By: CMS Co-Investment Partners I-Q, L.P., a
Delaware limited partnership
By: CMS/Co-Investment Associates, L.P., a
Delaware limited partnership
By: MSPS/Co-Investment, Inc., a Delaware
corporation
By:______________________
Its:
By: CMS 1997 Investment Partners, L.P., a
Delaware limited partnership
By: CMS 1997, Inc. a Delaware corporation
By:______________________
Its:
By:_____________________________________
Xxx Xxxxx
By:_____________________________________
Xxxxx Xxxxxxx
CMS DIVERSIFIED PARTNERS, L.P.
By: CMS/DP Associates, L.P, a general partner
By: MSPS/DP, Inc., its general partner
By:____________________________
(Vice) President
By: CMS 1995 Investment Partners, L.P, a general partner
By: CMS 1995, Inc., its general partner
By:____________________________
(Vice) President
DB CAPITAL INVESTORS, L.P.
By: DB Capital Partners, L.P.,
its General Partner
By: DB Capital Partners, Inc.,
its General Partner
By:_____________________________________
Name:
Title:
EURAZEO
By:____________________________________
Name:
Title:
GS PRIVATE EQUITY PARTNERS II, L.P.
By: GS PEP II Advisors, L.L.C.,
its General Partner
By: GSAM Gen-Par, L.L.C.,
its Managing Member
By:_________________________________________
Name:
Title:
GS PRIVATE EQUITY PARTNERS II OFFSHORE, L.P.
By: GS PEP II Offshore Advisors, Inc., its
General Partner
By:_________________________________________
Name:
Title:
GS PRIVATE EQUITY PARTNERS II - DIRECT
INVESTMENT FUND, L.P.
By: GS PEP II Direct Investment Advisors,
L.L.C., its General Partner
By: GSAM Gen-Par, L.L.C., its Managing
Member
By:_________________________________________
Name:
Title:
GS PRIVATE EQUITY PARTNERS III, L.P.
By: GS PEP III Advisors, L.L.C., its
General Partner
By: GSAM Gen-Par, L.L.C., its Managing
Partner
By:__________________________________________
Name:
Title:
GS PRIVATE EQUITY PARTNERS III OFFSHORE, L.P.
By: GS PEP III Offshore Advisors, Inc.,
its General Partner
By:__________________________________________
Name:
Title:
NBK/GS PRIVATE EQUITY PARTNERS, L.P.
By: GS PEP Offshore Advisors (NBK), Inc.
General Partner
By:__________________________________________
Name:
Title:
XXXXXXXX XXXX PRIVATE EQUITY PARTNERS, L.P.
By: HLSP Investment Management, LLC
By: __________________________________
Xxxxx X. Xxxxxxxx
Managing Member
XXXXXXXX XXXX PRIVATE EQUITY FUND, PLC
By: HLSP Investment Management, LLC
By: __________________________________
Xxxxx X. Xxxxxxxx
Managing Member
A.S.F. CO-INVESTMENT PARTNERS, L.P.
By: PAF 10/98, LLC
By: Old Kings I, LLC, as Managing Member
By:_____________________________________
Name:
Title:
NASSAU CAPITAL PARTNERS III L.P.
By:___________________________________
Name:
Title:
NAS PARTNERS LLC
By:___________________________________
Name:
Title:
NEW YORK LIFE CAPITAL PARTNERS, L.P.
By: NYLCAP Manager LLC, its Investment Manager
By:___________________________________________
Name:
Title:
