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EXHIBIT 4.9
THIS WARRANT AND THE SHARES OF COMMON STOCK COVERED HEREBY (COLLECTIVELY, THE
"SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION (THE "BLUE SKY LAWS"). THE SECURITIES WILL BE ACQUIRED FOR
INVESTMENT AND MAY NOT BE OFFERED FOR SALE, HYPOTHECATED, SOLD OR TRANSFERRED,
NOR WILL ANY ASSIGNEE OR TRANSFEREE THEREOF BE RECOGNIZED BY PER-SE
TECHNOLOGIES, INC. (THE "COMPANY") AS HAVING ANY INTEREST IN SUCH SECURITIES, IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE
SECURITIES UNDER THE SECURITIES ACT AND ANY APPLICABLE BLUE SKY LAWS, OR AN
OPINION OF COUNSEL, WHICH OPINION AND COUNSEL SHALL BE SATISFACTORY TO THE
COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED.
PER-SE TECHNOLOGIES, INC.
COMMON STOCK PURCHASE WARRANT
JUNE 25,1999
Warrant No. [ ] No of Shares - [ ]
This certifies that, for value received, [_________________] or its
registered assigns, is entitled, subject to the terms and conditions
hereinafter set forth, at or before 4:00 p.m., Atlanta time, June 25, 2004, but
not thereafter, to purchase up to [_________] shares of the voting common
stock, par value $.01 per share (the "Common Stock"), of PER-SE TECHNOLOGIES,
INC., a Delaware corporation (the "Company"), such number of shares being
subject to adjustment upon the occurrence of the contingencies set forth in
this Warrant. The purchase price payable upon the exercise of this Warrant
shall be $5.3125 per share, said amount being hereinafter referred to as the
"Warrant Price" and being subject to adjustment upon the occurrence of the
contingencies set forth in this Warrant.
The Warrant has been issued pursuant to that certain Settlement
Agreement and Full and Complete Release, dated June 24, 1999, between the
Company, on the one hand and the former stockholders of Medical Management
Services, Inc. (the "MMS Shareholders"), on the other hand (as amended from time
to time, the "Settlement Agreement'), in consideration of the termination of
pending litigation and release of claims, as provided in the Settlement
Agreement.
Upon delivery of this Warrant with the subscription form annexed
hereto, duly executed, together with payment of the Warrant Price for the shares
of Common Stock thereby purchased, at the principal office of the Company, 0000
Xx. Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000-0000, or at such other
address as the Company may designate by notice in writing to the registered
holder hereof (the "Holder"), the Holder
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of this Warrant shall be entitled to receive a certificate or certificates of
the shares of Common Stock so purchased (the "Warrant Shares"). All shares of
Common Stock which may be issued upon the exercise of this Warrant will, upon
issuance of such shares in accordance with the terms hereof, be fully-paid and
non-assessable, and any certificate(s) evidencing such shares of Common Stock
will bear such legend as the Company deems appropriate to comply with applicable
federal and state securities law.
This Warrant is subject to the following terms and conditions:
1. Exercise of Warrant. This Warrant may be exercised in whole
at any time, or in part from time to time, at or prior to 4:00 p.m., Atlanta
time, June 25, 2004, but not thereafter, as to all or any part of the number of
whole shares of Common Stock then subject hereto. Payment of the Warrant Price
may be made by cash, certified or bank cashier's check or wire transfer. In this
case of any partial exercise of this Warrant, the Company shall execute and
deliver a new Warrant of like tenor and date for the balance of the shares of
Common Stock purchasable hereunder to the Holder hereof.
2. Adjustment of Warrant Price and Number of Shares
Purchasable Hereunder. The Warrant Price and the number of shares of Common
Stock purchasable hereunder shall be subject to adjustment from time to time in
accordance with the following provisions:
(a) In the event of any payment of any cash dividend
or distribution of property by the Company otherwise than out
of earned surplus (other than distributions of Common Stock),
to the holders of the Common Stock, the Warrant Price for the
shares of Common Stock then subject to this Warrant shall be
reduced by the per share amount of such dividend or
distribution unless and until the Warrant Price is equal to
the then par value of the Common Stock. For purposes of this
Section 2(a), the per share amount of any distribution of
property shall be the fair market value thereof as determined
by the Board of Directors of the Company in good faith in the
resolutions authorizing any such distribution.
(b) In case the Company shall at any time subdivide
the outstanding shares of its Common Stock, the Warrant Price
in effect immediately prior to such subdivision shall be
proportionately decreased, and in case the Company shall at
any time combine the outstanding shares of its Common Stock,
the Warrant Price in effect immediately prior to such
combination shall be proportionately increased, effective from
and after the record date of such subdivision or combination,
as the case may be.
(c) Upon any adjustment in the Warrant Price per share
pursuant to Section 2(b) above, the registered holder of this
Warrant shall thereafter be entitled to purchase, at the
adjusted Warrant Price, the number of shares of Common Stock,
calculated to the nearest full share obtained by (X)
multiplying the number of shares of Common Stock purchasable
hereunder
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immediately prior to such adjustment by the Warrant Price in
effect immediately prior to such adjustment, and (Y) dividing
the product thereof by the Warrant Price resulting from such
adjustment. No such adjustment in the number of shares that
may be purchased upon exercise of this Warrant shall be
required in the event of an adjustment in the Warrant Price
per share pursuant to Section 2(a).
(d) In the event of the issuance of additional shares of
Common Stock of the Company as a dividend, from and after the
day which is the record date for the determination of
stockholders entitled to such dividend, the Holder of this
Warrant shall (until another adjustment) be entitled to
purchase the number of shares of Common Stock, calculated to
the nearest full share, obtained by multiplying the number of
shares of Common Stock purchasable hereunder immediately prior
to said record date by the percentage which the number of
additional shares constituting any such dividend is of the
total number of shares of Common Stock outstanding immediately
prior to said record date and adding the result so obtained to
the number of shares of Common Stock purchasable hereunder
immediately prior to said record date. Upon each adjustment
pursuant to this Section 2(d), the Warrant Price in effect
immediately prior to such adjustment shall be reduced to an
amount determined by dividing (X) the product obtained by
multiplying such Warrant Price by the number of shares of
Common Stock purchasable hereunder immediately prior to such
adjustment by (Y) the number of shares of Common Stock
purchasable hereunder immediately following such adjustment.
3. Reorganization, Reclassification, Consolidation of Merger.
If at any time while this Warrant is outstanding there shall be any
reorganization or reclassification of the capital stock of the Company (other
than a subdivision or combination of shares of Common Stock as provided for in
Section 2 above), or any consolidation or merger of the Company with another
corporation, the Holder of this Warrant shall thereafter be entitled to receive,
during the term hereof and upon payment of the Warrant Price, the number of
shares of stock or other securities or property of the Company or of the
successor corporation resulting from such consolidation or merger, as the case
may be, to which a holder of the Common Stock of the Company, deliverable upon
the exercise of this Warrant, would have been entitled upon such reorganization,
reclassification, consolidation or merger if this Warrant had been exercised
immediately prior to such reorganization, reclassification, consolidation or
merger; and in any such case, appropriate adjustment (as determined in good
faith by the Board of Directors of the Company) shall be made in the application
of the provisions herein set forth with respect to the rights and interest
thereafter of the Holder of this Warrant to the end that the provisions set
forth herein (including the adjustment of the Warrant Price and the number of
shares issuable upon the exercise of this Warrant) shall thereafter be
applicable, as near as reasonably may be, in relation to any shares or other
property thereafter deliverable upon the exercise hereof.
4. Notice of Adjustments. Upon any adjustment of the Warrant
Price and any increase or decrease in the number of shares of Common Stock
purchasable upon
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the exercise of this Warrant, then, and in each such case, the Company, within
thirty days thereafter, shall give written notice thereof to the Holder of this
Warrant at the address at such Holder as shown on the books of the Company,
which notice shall state the Warrant Price as adjusted and the increased or
decreased number of shares purchasable upon the exercise of this Warrant,
setting forth in reasonable detail the method of calculation of each.
5. Charges and Expenses. The issuance of certificates for
shares of Common Stock upon any exercise of this Warrant shall be made without
charge to the Holder hereof for any expenses in respect to the issuance of such
certificates, all of which expenses shall be paid by the Company, and such
certificates shall be issued in the name of, or in such name or names as may be
directed by, the Holder of this Warrant; provided, however, that in the event
that certificates for shares of Common Stock are to be issued in a name other
than the name of the Holder of this Warrant, this Warrant when surrendered for
exercise shall be accompanied by an: (a) instrument of transfer in form
satisfactory to the Company, duly executed by the Holder hereof in person or by
an attorney duly authorized in writing; and (b) opinion of counsel, which
opinion and counsel shall be satisfactory to the Company, that such transfer has
been made in compliance with the applicable federal and state securities laws.
6. Registration.
(a) The Company shall prepare and file with the Securities and
Exchange Commission (the "Commission") as soon as practicable after the
date hereof a registration statement (the "Registration Statement") on
Form S-3 or other available form covering resale of the Warrant Shares
by the MMS Shareholders and shall use its reasonable best efforts to
have the Registration Statement declared effective by the Commission as
promptly as practicable thereafter. The Company and each of the MMS
Shareholders will cooperate in the preparation of the Registration
Statement and will furnish each other with all information concerning
themselves, and such other matters as may be reasonably necessary or
advisable for the Registration Statement, filings under the state
securities laws, and any other statement or application made by or on
behalf of the Company or any of the MMS Shareholders to any
governmental body in connection with the Settlement Agreement and the
transactions contemplated thereby. The Company shall provide a
reasonable opportunity for the MMS Shareholders to review a draft of
the Registration Statement, and any amendment or supplement thereto,
and to correct any information with respect to the MMS Shareholders
prior to the time the Registration Statement is filed with the
Commission. The Company agrees to maintain the effectiveness of the
Registration Statement from the date on which the Commission declares
the Registration Statement to be effective through the first to occur
of (i) the first anniversary of the Closing under the Settlement
Agreement and the effectiveness of the respective releases provided
under Section 2.0 of the Settlement Agreement; (ii) the date on which
each of the MMS Shareholders is no longer subject to any restriction on
resale pursuant to Rule 144 promulgated under the
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Securities Act ("Rule 144") applicable to the Warrant Shares; and (iii)
the date on which each of the MMS Shareholders shall have exercised all
of the Warrants and sold all of the Warrant Shares held by such person.
Notwithstanding the preceding sentence, if the Board of Directors of
the Company determines in good faith that it is in the best interests
of the stockholders of the Company not to disclose the existence of
facts surrounding any proposed or pending acquisition, disposition,
strategic alliance, financing transaction, or other pending material
event involving the Company, the Company, by written notice to the MMS
Shareholders, may suspend the rights of the MMS Shareholders to make
sales pursuant to the Registration Statement; provided that such period
of suspension shall not exceed forty-five (45) days during the period
in which the Registration Statement is required to remain effective as
provided herein. In addition to the foregoing, in connection with the
preparation, filing, and effectiveness of the Registration Statement,
the Company will:
(i) Prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in
connection therewith as may be necessary to keep the Registration
Statement effective for such period as may be required hereunder, and
in each case to comply with provisions of the Securities Act with
respect to the disposition of the Warrant Shares during such period in
accordance with the intended methods of distribution by the MMS
Shareholders set forth in the Registration Statement;
(ii) Furnish the MMS Shareholders such number of copies of
the Registration Statement, each amendment and supplement thereto, in
each case including all exhibits, the prospectus included in the
Registration Statement, and such other documents as the MMS
Shareholders may reasonably request in order to facilitate the
disposition of the Warrant Shares by the MMS Shareholders;
(iii) Use its reasonable best efforts to register or qualify
the Warrant Shares under such other securities or blue sky laws of such
jurisdictions within the United States as the MMS Shareholders
reasonably request to keep such registration or qualification in effect
for as long as the Registration Statement is in effect and to do any
and all other acts and things which may be reasonably necessary or
advisable to enable the MMS Shareholders to consummate the disposition
in such jurisdictions of the Warrant Shares then held or owned by the
MMS Shareholders;
(iv) At any time when a prospectus relating to the resale of
Warrant Shares is required to be delivered under the Securities Act, to
notify the MMS Shareholders of the happening of any event as a result
of which the prospectus contained in the Registration Statement
contains an untrue statement of material fact or omits any facts
necessary to make the statements therein not misleading, and promptly
prepare a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of Settlement Shares, such
prospectus will not contain an untrue statement of material fact or
omit to state any fact necessary
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to make the statements therein, in light of the circumstances under
which statements were made, not misleading;
(v) If the Registration Statement has been filed on Form S-3
or any other available form promulgated by the Commission permitting
the incorporation of the Company's Commission reports or other
documents by reference, and if such short form thereafter becomes
unavailable for use by the Company for any reason, the Company shall as
promptly as practicable thereafter take such steps as are necessary to
convert the Registration Statement into a registration statement on
Form S-1 or other available long form, including, but not limited to,
by post-effective amendment, and shall use commercially reasonable
efforts to cause such long-form registration statement to become
effective as promptly as practicable thereafter and to otherwise comply
with the provisions of this Section 6.
(b) Exchange Act Reports. From and after the date hereof, and for so
long as is necessary in order to permit the MMS Shareholders to sell the Warrant
Shares pursuant to Rule 144 and to maintain the availability to the Company of
Form S-3 or other available short-form registration statement permitting the
incorporation of the Company's Commission reports or other documents by
reference, the Company will file on a timely basis all reports and other
documents required to be filed by it pursuant to the Securities Act, and the
Exchange Act, including Section 13 or 15(d) thereof; and to furnish to any MMS
Shareholder, so long as such MMS Shareholder owns any Warrant Shares, forthwith
upon request (i) a written statement by the Company that it has complied with
reporting requirements of Rule 144, the Securities Act, and the Exchange Act, or
that it qualifies as a registrant whose securities may be issued or resold
pursuant to Form S-3 (or any other available short-form registration statement),
(ii) a copy of the most recent annual or quarterly report of the Company and
such other reports and documents so filed by the Company (including all
exhibits), and (iii) such other information as may be reasonably requested in
availing any MMS Shareholder of any rule or regulation of the Commission which
permits the selling of any such securities of the Company without registration
or pursuant to Form S-3 or other available short-form registration statement.
7. Miscellaneous.
(a) The Company covenants that it will at all times reserve and keep
available, solely for the purpose of issuance upon the exercise hereof, a
sufficient number of shares of Common Stock to permit the exercise hereof in
full.
(b) The terms of this Warrant shall be binding upon and shall inure to
the benefit of any successors or assigns of the Company and of the Holder hereof
and of the Common Stock issued or issuable upon the exercise hereof.
(c) No Holder of this Warrant, as such, shall be entitled under this
Warrant to vote or receive dividends or be deemed to be a stockholder of the
Company for any purpose.
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(d) This Warrant and all rights hereunder are not transferable by the
Holder hereof without the prior written consent of the Company, which consent
shall not be unreasonably withheld and which consent may be conditioned upon
delivery to the Company of an opinion of counsel, which opinion and counsel are
satisfactory to the Company, that such transfer will be made in compliance with
applicable federal and state securities laws. The Company may deem and treat the
Holder of this Warrant at any time as the absolute owner hereof for all purposes
and shall not be affected by any notice to the contrary.
(e) By acceptance of this Warrant the Holder represents and warrants to
the Company that such Holder is an "accredited investor" within the meaning of
Regulation D under the Securities Act and that the Holder is acquiring this
Warrant and will acquire any shares of Common Stock issued upon the exercise of
this Warrant for the Holder's own account with the intent of holding such
warrant or shares of Common Stock for investment and without the intent of
participating directly or indirectly in a distribution of the same. Any
certificates for Common Stock issued upon the exercise of this Warrant shall
bear a legend similar to the legend appearing on the first page of this Warrant.
(f) This Warrant shall be construed in accordance with and governed by
the laws of the State of Georgia without regard to conflicts of law principles.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officers.
Dated: June 25, 1999
PER-SE TECHNOLOGIES, INC.
ATTEST:
By: By:
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Name: Name:
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Its: Its:
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SUBSCRIPTION FORM
(To be Executed by the Registered Holder to
Exercise the Rights to Purchase Common
Stock evidenced by the foregoing Warrant)
TO: PER-SE TECHNOLOGIES, INC.
The undersigned hereby exercises the right to purchase __________
shares of Common Stock covered by the attached Warrant in accordance with the
terms and conditions thereof, and herewith makes payment of the Warrant Price of
such shares in full.
The undersigned represents and warrants to you that the undersigned is
an "accredited investor" within the meaning of Regulation D under the Securities
Act of 1933, as amended and that the undersigned is acquiring such shares for
the undersigned's own account with the intent of holding such shares for
investment and without the intent of participating directly or indirectly in a
distribution of such shares.
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By:
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Address
Dated:
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ASSIGNMENT
(To be Executed by the Registered Holder to
effect a Transfer of the foregoing Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, and assigns and transfers unto
_______________________________________________________________________________
_______________________________________________________________________________
the foregoing Warrant and the rights represented thereto to purchase shares of
Common Stock of PER-SE TECHNOLOGIES, INC., in accordance with the terms and
conditions thereof, and does hereby irrevocably constitute and appoint
__________________ Attorney to transfer the said Warrant on the books of the
Company, with full power of substitution. The assignment intended hereby shall
not be effective without the written consent thereto of Per-Se Technologies,
Inc.
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By:
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Address
Dated
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In the presence of:
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