Exhibit 4.3
THIS WARRANT, AND THE SHARES OF COMMON STOCK ISSUABLE BY THE COMPANY UPON THE
EXERCISE OF THIS WARRANT, MAY NOT BE ASSIGNED, SOLD, TRANSFERRED, OFFERED,
CONVEYED, PLEDGED, HYPOTHECATED OR OTHERWISE ENCUMBERED OR DISPOSED OF WITHOUT
COMPLIANCE WITH THE TERMS AND CONDITIONS SET FORTH HEREIN AND IN THE COMPANY'S
AMENDED AND RESTATED ARTICLES OF INCORPORATION (A COPY OF WHICH IS ON FILE WITH
THE SECRETARY OF THE COMPANY).
No. ______
WARRANT
To Purchase ____ Shares of Common Stock, par value $.01 per share, of
PENNSYLVANIA PHYSICIAN HEALTHCARE PLAN, INC.
Exercisable between January 1 and December 31, 20002
THIS IS TO CERTIFY THAT, for value received, _______________ or registered
assigns (the "Holder") is entitled to purchase from PENNSYLVANIA PHYSICIAN
HEALTHCARE PLAN, INC., a Pennsylvania corporation (the "Company"), at any time
on or after January 1, 2002 up until 5:00 p.m., Harrisburg, Pennsylvania time
(the "Expiration Time") on December 31, 2002 (the "Expiration Date") at the
principal office of the Company presently located at 000 Xxxx Xxxx Xxxxx,
Xxxxxxxxxx, XX 00000 (the "Principal Office"), at a price of $20.00 per share
(the "Exercise Price") the number of shares stated above of Common Stock, par
value $.01 per share (the "Common Stock"), of the Company, all subject to
adjustment and upon the terms and conditions as hereinafter provided. If not
exercised previously, the Holder's rights under this Warrant (the "Warrant")
will become void at the Expiration Time on the Expiration Date.
This Warrant is one of a series of warrants (the "Warrants") of the same
form, representing the right to purchase shares of Common Stock and having the
same terms as this Warrant, entitling the Holders thereof initially to purchase
up to an aggregate of 250,000 shares of Common Stock.
This Warrant is part of a unit (each, a "Unit," and collectively, the
"Units") issued by the Company in a public offering of such Units. Each Unit
consists of one share of Common Stock and one Warrant. This Warrant and the Unit
including this Warrant
have been registered with the United States Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Securities Act") (SEC
Registration No. 333-____).
ARTICLE I
EXERCISE OF WARRANTS
1.1 Method of Exercise. To exercise this Warrant, the Holder shall deliver
to the Company, at the Principal Office of the Company, (a) this Warrant, (b) a
written notice, in substantially the form of the Subscription Notice attached
hereto, of such Holder's election to exercise this Warrant, which notice shall
specify the denominations of the share certificate or certificates desired, and
(c) payment of the Exercise Price with respect to such shares. Such payment may
be made, at the option of the Holder, by certified or bank cashier's check or
wire transfer of immediately available funds to an account specified by the
Company.
This Warrant may only be exercised in full, and not in part, for the
aggregate number of shares of Common Stock issuable upon the exercise of this
Warrant.
As promptly as practicable after receipt of the items referred to above,
the Company shall execute and deliver, or cause to be executed and delivered, in
accordance with such notice, a certificate or certificates representing the
aggregate number of shares of Common Stock issuable upon exercise of this
Warrant. The share certificate or certificates so delivered shall be in such
denominations as may be specified in such notice or, if such notice shall not
specify denominations, shall be in the amount of the number of shares of Common
Stock issuable upon the exercise of this Warrant, and shall be issued in the
name of the Holder.
1.2 Shares to be Fully Paid and Non-Assessable. All shares of Common Stock
issued upon the exercise of this Warrant shall be validly issued, fully paid and
non-assessable and free from all preemptive rights of any shareholder, and from
all taxes, liens and charges with respect to the issue thereof (other than
transfer taxes).
1.3 No Fractional Shares to be Issued. The Company shall not issue
fractional shares of Common Stock upon exercise of this Warrant.
1.4 Share Legend. Each certificate for shares of Common Stock issued upon
exercise of this Warrant shall bear the following legend:
"The shares represented by this certificate may not be voluntarily
transferred for value except to a transferee who, after the transfer,
will, under the terms of the issuer's Articles of Incorporation,
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be entitled to vote the shares. For this purpose, "voluntarily transfer
for value" does not include gifts or transfers by operation of law."
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend shall also bear such legend unless, in the
opinion of the Company's counsel, the securities represented thereby are no
longer subject to the restrictions on transfer referred to therein.
1.5 Reservation; Authorization. The Company has reserved and will keep
available for issuance upon exercise of the Warrants the total number of shares
of Common Stock deliverable upon exercise of all Warrants from time to time
outstanding.
ARTICLE II
TRANSFER, EXCHANGE AND REPLACEMENT OF WARRANTS
2.1 Ownership of Warrant. The Company may deem and treat the person in
whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing made hereon by any
person) for all purposes and shall not be affected by any notice to the
contrary, until presentation of this Warrant for registration of transfer as
provided in this Article II.
2.2 Transfer and Exchange. This Warrant is exchangeable for a new Warrant
of like tenor and date representing the right to purchase the aggregate number
of shares of Common Stock purchasable hereunder upon surrender by the Holder
hereof to the Company at its Principal Office. This Warrant is not detachable
from the Unit of which this Warrant is a part. This Warrant and all rights
hereunder are transferrable in whole, but not in part, upon the books of the
Company by the Holder hereof in person or by duly authorized attorney, only upon
a permitted transfer of the Unit of which this Warrant is a part. Upon such a
transfer, a new Warrant of the same tenor and date as this Warrant, registered
in the name of the transferee, shall be issued and delivered by the Company upon
surrender of this Warrant duly endorsed at the Principal Office of the Company.
Notwithstanding the foregoing, this Warrant and the Unit of which this Warrant
is a part (A) may not be transferred by the holder hereof at any time prior to
January 1, 2000, except for transfers made by operation of law, and (B)
thereafter may only be transferred to the following persons and/or entities: (i)
any health professional licensed in Pennsylvania or elsewhere; (ii) any retired,
but formerly licensed, health professional; (iii) any professional corporation
(or other legally constituted professional practice group) of health
professionals; (iv) any individual retirement account or other retirement plan
established by a person eligible to be a transferee or in which such person is a
participant; (v) any employee or former employee of the Company; and (vi)
persons registered under Section 15 of the Securities Exchange Act of 1934, as
amended, who are making a market in the Common Stock of the Company
(collectively, an "Eligible Holder"). As used
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herein, the term "health professional" shall include, without limitation,
physicians, podiatrists, dentists, oral surgeons, optometrists, pharmacists,
chiropractors, nurses, nurse practitioners, physical or occupational therapists
and physicians' assistants or other similar licensed professional persons.
2.3 Loss, Theft, Destruction or Mutilation of Warrants. Upon receipt of
evidence satisfactory of the Company of the loss, theft, destruction or
mutilation of this Warrant and, in the case of any such loss, theft or
destruction, upon receipt of indemnity or security reasonably satisfactory to
the Company or, in the case of any such mutilation, upon surrender and
cancellation of this Warrant, the Company will issue and deliver, in lieu of
such lost, stolen, destroyed or mutilated Warrant, a new Warrant of like tenor
and representing the right to purchase the same aggregate number of shares of
Common Stock as provided for in this Warrant. This Warrant shall be promptly
canceled by the Company upon the surrender hereof in connection with any
exchange, transfer or replacement.
2.4 Expenses of Delivery of Warrants. The Company shall pay all expenses,
taxes (other than transfer taxes) and other charges payable in connection with
the preparation, issuance and delivery of Warrants and shares of Common Stock
issued upon exercise of this Warrant.
ARTICLE III
ANTI-DILUTION PROVISIONS
In the event that the Company shall, at any time prior to the Expiration
Date and the Expiration Time of this Warrant and prior to the exercise thereof:
(i) declare or pay to the Holders of the Common Stock a dividend payable in any
kind of shares of stock of the Company; or (ii) change or divide or otherwise
reclassify its Common Stock into the same or a different number of shares with
or without par value, or into shares of any class or classes; or (iii)
consolidate, merge with any other corporation or other entity or engage in any
other corporate reorganization where the Company is the surviving entity; or
(iv) make any distribution of its assets to Holders of its Common Stock in
partial liquidation or by way of return of capital, then, upon the subsequent
exercise of this Warrant, the Holder thereof shall receive for the Exercise
Price, in addition to or in substitution for the shares of Common Stock to which
the Holder would otherwise be entitled upon such exercise, such additional
shares of stock of the Company, or such reclassified shares of stock of the
Company, or such shares of the securities or property of the Company, or such
assets of the Company which the Holder would have been entitled to receive had
such Holder exercised this Warrant immediately prior to the happening of any of
the foregoing events. Any plan or agreement devised or executed in connection
with any of the foregoing events shall explicitly provide for the aforesaid
rights of the Holder of this Warrant and of all other Warrants of similar tenor.
Within a reasonable time prior to or subsequent to the occurrence of any of the
foregoing events, the Company shall notify the registered Holder hereof and all
Holders of Warrants of similar tenor, with respect
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to their rights in connection therewith, so as to ensure the Holders hereof an
opportunity to exercise those rights in a timely manner. In connection with that
notice, the Company shall send a detailed written explanation of the relevant
events, transactions and resulting capital adjustments to the Holders of the
Warrants. If no Holder gives the Company written objection to such adjustments
within ten (10) days after such Holder's receipt of such explanation, no
Warrantholder (including the Holder hereof) may thereafter object to such
adjustments. Notwithstanding the foregoing, upon the occurrence of any of the
foregoing events, the Board of Directors of the Company shall have the right to
accelerate the Warrants whereupon they shall become immediately exercisable.
In the event that the Company shall, at any time prior to January 1, 2002,
propose to (i) consolidate or merge with any other corporation or entity or
engage in any other corporate reorganization, where the Company is not the
surviving entity, (ii) transfer its property as an entirety or substantially as
an entirety to any other corporation or entity or (iii) make a distribution of
its assets in complete liquidation, the Company shall send written notice of
such event to the Holder of this Warrant at the address set forth on the books
of the Company, whereupon, unless otherwise provided in the plan with respect to
any of the foregoing events, this Warrant shall become immediately exercisable
by the Holder hereof for a period of thirty (30) days from the date such notice
is sent. In the event that this Warrant is not exercised on or prior to the
expiration of such thirty (30) day period, this Warrant shall immediately
terminate and become null and void.
Notwithstanding anything herein to the contrary, if the Company issues a
new Warrant certificate in replacement of this Warrant certificate upon the
transfer of this Warrant, in replacement of a loss, theft, destruction or
mutilation of this Warrant or for any other reason, the new Warrant certificate,
at the Company's option, may reflect any adjustments theretofore made pursuant
to this Article III.
ARTICLE IV
MISCELLANEOUS
4.1 Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall, unless otherwise
expressly required, be deemed to have been duly given, made and received only
when delivered (personally, by courier service such as Federal Express, or by
other messenger) or when deposited in the United States mails, registered or
certified mail, postage prepaid, return receipt requested, addressed as set
forth herein. In the case of the Company, such notices, requests, demands and
other communications shall be addressed to:
T. Xxxxx Xxxxxxx
Treasurer and Chief Financial Officer
Pennsylvania Physician Healthcare Plan, Inc.
000 Xxxx Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
In the case of the Holder, such notices, requests, demands and communications
shall be addressed to his or her address as shown on the books maintained by the
Company, unless the Holder shall notify the Company that notices and
communications should be sent to a different address, in which case such notices
and communications shall be sent to the address specified by the Holder
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4.2 Amendments. The provisions of this Warrant may not be amended, modified
or waived without the written consent of the Company and the Warrantholders,
voting as a single class, holding 66 2/3% of the then-outstanding Warrants
(exclusive of Warrants then owned by the Company).
Any such amendment or modification effected pursuant to this Section shall
be binding upon all Warrantholders, upon each future Warrantholder and upon the
Company. In the event of any such amendment, modification or waiver, the Company
shall give prompt notice thereof to all Warrantholders, and, if appropriate,
notation thereof shall be made on all Warrants thereafter surrendered for
registration of transfer or exchange.
4.3 Covenants to Bind Successor and Assigns. All covenants, stipulations,
promises and agreements contained in this Warrant by or on behalf of the Company
shall bind its successors and assigns, whether so expressed or not.
4.4 No Rights as Shareholder. This Warrant shall not entitle the Holder to
any rights as a shareholder of the Company, either at law or in equity, unless
and until the Holder exercises the right to purchase Common Stock strictly in
accordance with the terms hereof.
4.5 No Impairment. The Company will (a) take all such action as may be
necessary or appropriate in order that the Company may validly and legally issue
fully paid and non-assessable shares of Common Stock upon the exercise of this
Warrant, and (b) use its best efforts to obtain all such authorizations,
exemptions or consents from any public regulatory body having jurisdiction
thereof as may be necessary to enable the Company to perform its obligations
under this Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed on
___________________, 1999.
PENNSYLVANIA PHYSICIAN HEALTHCARE
PLAN, INC.
By:
-------------------------------------
Xxxxxxx X. Xxxxxx, President
and Chief Executive Officer
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SUBSCRIPTION NOTICE
(To be executed for exercise of the Warrant)
To: PENNSYLVANIA PHYSICIAN HEALTHCARE PLAN, INC.
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the attached Warrant No. ______ for, and to purchase thereunder,
the full number of shares of Common Stock issuable upon the exercise of such
Warrant, as provided for therein, and tenders herewith payment of the Exercise
Price in full in the form of certified or bank cashier's check or wire transfer
in the amount of $_____________.
The undersigned, intending that the Company will rely thereon, certifies
that (i) he or she has received and reviewed all information requested by him or
her from the Company prior to and in connection with his or her decision to
exercise this Warrant and purchase the shares of Common Stock to be issued upon
such exercise and (ii) he or she is an "Eligible Holder", as such term is
defined in Section 2.2 of the Warrant.
The undersigned requests that certificates representing such number of
shares be issued in the following denominations: ______________________________
Dated: _________________ _________________________________________
Note: The above signature must correspond
exactly with the name on the face of the
attached Warrant.
