THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ITS
EXERCISE ARE SUBJECT TO THE RESTRICTIONS ON
TRANSFER SET FORTH IN SECTION 5 OF THIS WARRANT
Warrant No. [ ] Number of Shares: [ ]
(subject to adjustment)
Date of Issuance: [ ], 2004
Original Issue Date (as defined in
subsection 2(a)): [ ], 2004
CHINDEX INTERNATIONAL, INC.
COMMON STOCK PURCHASE WARRANT
(Void after [ ], 2009)
Chindex International, Inc., a Delaware corporation (the "Company"), for
value received, hereby certifies that ____________, or its registered assigns
(the "Registered Holder"), is entitled, subject to the terms and conditions set
forth below, to purchase from the Company, at any time or from time to time on
or after the date of issuance and on or before 5:00 p.m. (New York time) on
[ ], 2009, [ ] shares of Common Stock, $0.01 par value per share, of the
Company ("Common Stock"), at a purchase price of $12.00 per share. The shares
purchasable upon exercise of this Warrant, and the purchase price per share,
each as adjusted from time to time pursuant to the provisions of this Warrant,
are hereinafter referred to as the "Warrant Shares" and the "Purchase Price,"
respectively. This Warrant is one of a series of Warrants issued by the Company
in connection with a private placement of Common Stock and of like tenor, except
as to the number of shares of Common Stock subject thereto (collectively, the
"Company Warrants").
1. EXERCISE.
(a) EXERCISE FOR CASH. The Registered Holder may, at its option,
elect to exercise this Warrant, in whole or in part and at any time or from time
to time, by surrendering this Warrant, with the purchase form appended hereto as
EXHIBIT I duly executed by or on behalf of the Registered Holder, at the
principal office of the Company, or at such other office or agency as the
Company may designate, accompanied by payment in full, in lawful money of the
United States, of the Purchase Price payable in respect of the number of Warrant
Shares purchased upon such exercise. A facsimile signature of the Registered
Holder on the purchase form shall be sufficient for purposes of exercising this
Warrant, provided that the Company receives the Registered Holder's original
signature with three (3) business days thereafter.
(b) CASHLESS EXERCISE.
(i) At any time during a period when the Warrant Shares are
not registered pursuant to an effective registration statement filed with the
Securities and Exchange Commission, the Registered Holder may, at its option,
elect to exercise this Warrant, in whole or in part, on a cashless basis, by
surrendering this Warrant, with the purchase form appended hereto as EXHIBIT I
duly executed by or on behalf of the Registered Holder, at the principal office
of the Company, or at such other office or agency as the Company may designate,
by canceling a portion of this Warrant in payment of the Purchase Price payable
in respect of the number of Warrant Shares purchased upon such exercise. In the
event of an exercise pursuant to this subsection 1(b), the number of Warrant
Shares issued to the Registered Holder shall be determined according to the
following formula:
Y(A-B)
X = -------
A
Where: X = the number of Warrant Shares that shall be issued to the
Registered Holder;
Y = the number of Warrant Shares for which this Warrant is
being exercised (which shall include both the number of
Warrant Shares issued to the Registered Holder and the
number of Warrant Shares subject to the portion of the
Warrant being cancelled in payment of the Purchase
Price);
A = the Fair Market Value (as defined below) of one share of
Common Stock; and
B = the Purchase Price then in effect.
(ii) The Fair Market Value per share of Common Stock shall be
determined as follows:
(1) If the Common Stock is listed on a national
securities exchange, the Nasdaq National Market or another nationally recognized
trading system as of the Exercise Date, the Fair Market Value per share of
Common Stock shall be deemed to be the average of the high and low reported sale
prices per share of Common Stock thereon on the trading day immediately
preceding the Exercise Date (PROVIDED that if no such price is reported on such
day, the Fair Market Value per share of Common Stock shall be determined
pursuant to clause (2) below).
(2) If the Common Stock is not listed on a national
securities exchange, the Nasdaq National Market or another nationally recognized
trading system as of the Exercise Date, the Fair Market Value per share of
Common Stock shall be deemed to be the amount most recently determined by the
Board of Directors of the Company (the "Board") to represent the fair market
value per share of the Common Stock (including without limitation a
determination for purposes of granting Common Stock options or issuing Common
Stock under any plan, agreement or arrangement with employees of the Company);
and, upon request of the Registered Holder, the Board (or a representative
thereof) shall, as promptly as reasonably practicable but in any event not later
than 10 days after such request, notify the Registered Holder of the Fair Market
Value per share of Common Stock and furnish the Registered Holder with
reasonable documentation of the Board's determination of such Fair Market Value.
Notwithstanding the foregoing, if the Board has not made such a determination
within the three-month period prior to the Exercise Date, then (A) the Board
shall make, and shall provide or cause to be provided to the Registered Holder
notice of, a determination of the Fair Market Value per share of the Common
Stock within 15 days of a request by the Registered Holder that it do so, and
(B) the exercise of this Warrant pursuant to this subsection 1(b) shall be
delayed until such determination is made and notice thereof is provided to the
Registered Holder.
(c) EXERCISE DATE. Each exercise of this Warrant shall be deemed
to have been effected immediately prior to the close of business on the day on
which this Warrant shall have been surrendered to the Company as provided in
subsection 1(a) or 1(b) above (the "Exercise Date"). At such time, the person or
persons in whose name or names any certificates for Warrant Shares shall be
issuable upon such exercise as provided in subsection 1(d) below shall be deemed
to have become the holder or holders of record of the Warrant Shares represented
by such certificates.
(d) ISSUANCE OF CERTIFICATES. As soon as practicable after the
exercise of this Warrant in whole or in part, and in any event within 10 days
thereafter, the Company, at its expense, will cause to be issued in the name of,
and delivered to, the Registered Holder, or as the Registered Holder (upon
payment by the Registered Holder of any applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of full
Warrant Shares to which the Registered Holder shall be entitled upon such
exercise plus, in lieu of any fractional share to which the Registered Holder
would otherwise be entitled, cash in an amount determined pursuant to Section 3
hereof; and
(ii) in case such exercise is in part only, a new warrant or
warrants (dated the date hereof) of like tenor, calling in the aggregate on the
face or faces thereof for the number of Warrant Shares equal (without giving
effect to any adjustment therein) to the number of such shares called for on the
face of this Warrant minus the number of Warrant Shares for which this Warrant
was so exercised (which, in the case of an exercise pursuant to subsection 1(b),
shall include both the number of Warrant Shares issued to the Registered Holder
pursuant to such partial exercise and the number of Warrant Shares subject to
the portion of the Warrant being cancelled in payment of the Purchase Price).
2. ADJUSTMENTS.
(a) ADJUSTMENTS TO PURCHASE PRICE FOR DILUTING ISSUES.
(i) SPECIAL DEFINITIONS. For purposes of this Section 2, the
following definitions shall apply:
(1) "OPTION" shall mean rights, options or warrants to
subscribe for, purchase or otherwise acquire Common Stock or Convertible
Securities.
(2) "ORIGINAL ISSUE DATE" shall mean the date on which
this Warrant was first issued (or, if this Warrant was issued upon partial
exercise of, or in replacement of, another warrant of like tenor, then the date
on which such original warrant was first issued).
(3) "CONVERTIBLE SECURITIES" shall mean any evidences
of indebtedness, shares or other securities directly or indirectly convertible
into or exchangeable for Common Stock, but excluding Options.
(4) "ADDITIONAL SHARES OF COMMON STOCK" shall mean all
shares of Common Stock issued (or, pursuant to subsection 2(a)(iii) below,
deemed to be issued) by the Company after the Original Issue Date, other than:
(I) shares of Common Stock issued or issuable
upon conversion or exchange of any
Convertible Securities or exercise of any
Options outstanding on the Original Issue
Date;
(II) shares of Common Stock issued or issuable by
reason of a dividend, stock split, split-up
or other distribution on shares of Common
Stock that is covered by subsection 2(b) or
2(c) below; or
(III) shares of Common Stock (or Options with
respect thereto) issued or issuable to
employees or directors of, or consultants
to, the Company or any of its subsidiaries
pursuant to a plan, agreement or arrangement
approved by the Board of Directors of the
Company (the "Board").
(ii) NO ADJUSTMENT OF PURCHASE PRICE. No adjustment to the
Purchase Price shall be made as the result of the issuance of Additional Shares
of Common Stock if the consideration per share (determined pursuant to
subsection 2(a)(v)) for such Additional Share of Common Stock issued or deemed
to be issued by the Company is equal to or greater than the Purchase Price in
effect immediately prior to the issuance or deemed issuance of such Additional
Shares of Common Stock.
(iii) ISSUE OF SECURITIES DEEMED ISSUE OF ADDITIONAL SHARES OF
COMMON STOCK.
(1) If the Company at any time or from time to time
after the Original Issue Date shall issue any Options or Convertible Securities
(excluding Options or Convertible Securities which, upon exercise, conversion or
exchange thereof, would entitle the holder thereof to receive shares of Common
Stock which are specifically excepted from the definition of Additional Shares
of Common Stock by subsection 2(a)(i)(4) above) or shall fix a record date for
the determination of holders of any class of securities entitled to receive any
such Options or Convertible Securities, then the maximum number of shares of
Common Stock (as set forth in the instrument relating thereto without regard to
any provision contained therein for a subsequent adjustment of such number)
issuable upon the exercise of such Options or, in the case of Convertible
Securities and Options therefor, the conversion or exchange of such Convertible
Securities, shall be deemed to be Additional Shares of Common Stock issued as of
the time of such issue or, in case such a record date shall have been fixed, as
of the close of business on such record date.
(2) If the terms of any Option or Convertible
Security, the issuance of which resulted in an adjustment to the Purchase Price
pursuant to the terms of subsection 2(a)(iv) below, are revised (either
automatically pursuant the provisions contained therein or as a result of an
amendment to such terms) to provide for either (1) any increase in the number of
shares of Common Stock issuable upon the exercise, conversion or exchange of any
such Option or Convertible Security or (2) any decrease in the consideration
payable to the Company upon such exercise, conversion or exchange, then,
effective upon such increase or decrease becoming effective, the Purchase Price
computed upon the original issue of such Option or Convertible Security (or upon
the occurrence of a record date with respect thereto) shall be readjusted to
such Purchase Price as would have obtained had such revised terms been in effect
upon the original date of issuance of such Option or Convertible Security.
Notwithstanding the foregoing, no adjustment pursuant to this clause (B) shall
have the effect of increasing the Purchase Price to an amount which exceeds the
lower of (i) the Purchase Price on the original adjustment date, or (ii) the
Purchase Price that would have resulted from any issuances of Additional Shares
of Common Stock between the original adjustment date and such readjustment date.
(3) If the terms of any Option or Convertible Security
(excluding Options or Convertible Securities which, upon exercise, conversion or
exchange thereof, would entitle the holder thereof to receive shares of Common
Stock which are specifically excepted from the definition of Additional Shares
of Common Stock by subsection 2(a)(i)(4) above), the issuance of which did not
result in an adjustment to the Purchase Price pursuant to the terms of
subsection 2(a)(iv) below (either because the consideration per share
(determined pursuant to subsection 2(a)(v) hereof) of the Additional Shares of
Common Stock subject thereto was equal to or greater than the Purchase Price
then in effect, or because such Option or Convertible Security was issued before
the Original Issue Date), are revised after the Original Issue Date (either
automatically pursuant the provisions contained therein or as a result of an
amendment to such terms) to provide for either (1) any increase in the number of
shares of Common Stock issuable upon the exercise, conversion or exchange of any
such Option or Convertible Security or (2) any decrease in the consideration
payable to the Company upon such exercise, conversion or exchange, then such
Option or Convertible Security, as so amended, and the Additional Shares of
Common Stock subject thereto (determined in the manner provided in subsection
2(a)(iii)(1) above) shall be deemed to have been issued effective upon such
increase or decrease becoming effective.
(4) Upon the expiration or termination of any
unexercised Option or unconverted or unexchanged (as applicable) Convertible
Security which resulted (either upon its original issuance or upon a revision of
its terms) in an adjustment to the Purchase Price pursuant to the terms of
subsection 2(a)(iv) below, the Purchase Price shall not be readjusted.
(5) No adjustment in the Purchase Price shall be made
upon the issue of shares of Common Stock or Convertible Securities upon the
exercise of Options or the issue of shares of Common Stock upon the conversion
or exchange of Convertible Securities.
(iv) ADJUSTMENT OF PURCHASE PRICE UPON ISSUANCE OF ADDITIONAL
SHARES OF COMMON STOCK. In the event the Company shall at any time after the
Original Issue Date issue Additional Shares of Common Stock (including
Additional Shares of Common Stock deemed to be issued pursuant to subsection
2(a)(iii)), without consideration or for a consideration per share less than the
Purchase Price in effect immediately prior to such issue, then the Purchase
Price shall be reduced, concurrently with such issue, to a price (calculated to
the nearest cent) determined by multiplying such Purchase Price by a fraction,
(A) the numerator of which shall be (1) the number of shares of Common Stock
outstanding immediately prior to such issue plus (2) the number of shares of
Common Stock which the aggregate consideration received or to be received by the
Company for the total number of Additional Shares of Common Stock so issued
would purchase at such Purchase Price; and (B) the denominator of which shall be
the number of shares of Common Stock outstanding immediately prior to such issue
plus the number of such Additional Shares of Common Stock so issued; PROVIDED
that, (i) for the purpose of this subsection 2(a)(iv), all shares of Common
Stock issuable upon conversion or exchange of Convertible Securities outstanding
immediately prior to such issue shall be deemed to be outstanding, and (ii) the
number of shares of Common Stock deemed issuable upon conversion or exchange of
such outstanding Convertible Securities shall be determined without giving
effect to any adjustments to the conversion or exchange price or conversion or
exchange rate of such Convertible Securities resulting from the issuance of
Additional Shares of Common Stock that is the subject of this calculation.
(v) DETERMINATION OF CONSIDERATION. For purposes of this
subsection 2(a), the consideration received by the Company for the issue of any
Additional Shares of Common Stock shall be computed as follows:
(1) CASH AND PROPERTY: Such consideration shall:
(I) insofar as it consists of cash, be computed
at the aggregate of cash received by the
Company, excluding amounts paid or payable
for accrued interest;
(II) insofar as it consists of property other
than cash, be computed at the fair market
value thereof at the time of such issue, as
determined in good faith by the Board; and
(III) in the event Additional Shares of Common
Stock are issued together with other shares
or securities or other assets of the Company
for consideration which covers both, be the
proportion of such consideration so
received, computed as provided in clauses
(I) and (II) above, as determined in good
faith by the Board.
(2) OPTIONS AND CONVERTIBLE SECURITIES. The
consideration per share received by the Company for Additional Shares of Common
Stock deemed to have been issued pursuant to subsection 2(a)(iii), relating to
Options and Convertible Securities, shall be determined by dividing
(I) the total amount, if any, received or
receivable by the Company as consideration
for the issue of such Options or Convertible
Securities, plus the minimum aggregate
amount of additional consideration (as set
forth in the instruments relating thereto,
without regard to any provision contained
therein for a subsequent adjustment of such
consideration) payable to the Company upon
the exercise of such Options or the
conversion or exchange of such Convertible
Securities, or in the case of Options for
Convertible Securities, the exercise of such
Options for Convertible Securities and the
conversion or exchange of such Convertible
Securities, by
(II) the maximum number of shares of Common Stock
(as set forth in the instruments relating
thereto, without regard to any provision
contained therein for a subsequent
adjustment of such number) issuable upon the
exercise of such Options or the conversion
or exchange of such Convertible Securities.
(vi) MULTIPLE CLOSING DATES. In the event the Company shall
issue on more than one date Additional Shares of Common Stock which are
comprised of shares of the same series or class of Common Stock, and such
issuance dates occur within a period of no more than 120 days, then, upon the
final such issuance, the Purchase Price shall be readjusted to give effect to
all such issuances as if they occurred on the date of the final such issuance
(and without giving effect to any adjustments as a result of such prior
issuances within such period).
(b) ADJUSTMENT FOR STOCK SPLITS AND COMBINATIONS. If the Company
shall at any time or from time to time after the Original Issue Date effect a
subdivision of the outstanding Common Stock, the Purchase Price then in effect
immediately before that subdivision shall be proportionately decreased. If the
Company shall at any time or from time to time after the Original Issue Date
combine the outstanding shares of Common Stock, the Purchase Price then in
effect immediately before the combination shall be proportionately increased.
Any adjustment under this paragraph shall become effective at the close of
business on the date the subdivision or combination becomes effective.
(c) ADJUSTMENT FOR CERTAIN DIVIDENDS AND DISTRIBUTIONS. In the
event the Company at any time, or from time to time after the Original Issue
Date shall make or issue, or fix a record date for the determination of holders
of Common Stock entitled to receive, a dividend or other distribution payable in
additional shares of Common Stock, then and in each such event the Purchase
Price then in effect immediately before such event shall be decreased as of the
time of such issuance or, in the event such a record date shall have been fixed,
as of the close of business on such record date, by multiplying the Purchase
Price then in effect by a fraction:
(1) the numerator of which shall be the total number
of shares of Common Stock issued and outstanding immediately prior to the time
of such issuance or the close of business on such record date, and
(2) the denominator of which shall be the total number
of shares of Common Stock issued and outstanding immediately prior to the time
of such issuance or the close of business on such record date plus the number of
shares of Common Stock issuable in payment of such dividend or distribution;
PROVIDED, HOWEVER, that if such record date shall have been fixed and such
dividend is not fully paid or if such distribution is not fully made on the date
fixed therefor, the Purchase Price shall be recomputed accordingly as of the
close of business on such record date and thereafter the Purchase Price shall be
adjusted pursuant to this paragraph as of the time of actual payment of such
dividends or distributions.
(d) ADJUSTMENT IN NUMBER OF WARRANT SHARES. When any adjustment is
required to be made in the Purchase Price pursuant to subsections 2(a), 2(b) or
2(c), the number of Warrant Shares purchasable upon the exercise of this Warrant
shall be changed to the number determined by dividing (i) an amount equal to the
number of shares issuable upon the exercise of this Warrant immediately prior to
such adjustment, multiplied by the Purchase Price in effect immediately prior to
such adjustment, by (ii) the Purchase Price in effect immediately after such
adjustment.
(e) ADJUSTMENTS FOR OTHER DIVIDENDS AND DISTRIBUTIONS. In the
event the Company at any time or from time to time after the Original Issue Date
shall make or issue, or fix a record date for the determination of holders of
Common Stock entitled to receive, a dividend or other distribution payable in
securities of the Company (other than shares of Common Stock) or in cash or
other property (other than regular cash dividends paid out of earnings or earned
surplus, determined in accordance with generally accepted accounting
principles), then and in each such event provision shall be made so that the
Registered Holder shall receive upon exercise hereof, in addition to the number
of shares of Common Stock issuable hereunder, the kind and amount of securities
of the Company, cash or other property which the Registered Holder would have
been entitled to receive had this Warrant been exercised on the date of such
event and had the Registered Holder thereafter, during the period from the date
of such event to and including the Exercise Date, retained any such securities
receivable during such period, giving application to all adjustments called for
during such period under this Section 2 with respect to the rights of the
Registered Holder.
(f) ADJUSTMENT FOR REORGANIZATION. If there shall occur any
reorganization, recapitalization, reclassification, consolidation or merger
involving the Company in which the Common Stock is converted into or exchanged
for securities, cash or other property (other than a transaction covered by
subsections 2(a), 2(b) or 2(e)) (collectively, a "Reorganization"), then,
following such Reorganization, the Registered Holder shall receive upon exercise
hereof the kind and amount of securities, cash or other property which the
Registered Holder would have been entitled to receive pursuant to such
Reorganization if such exercise had taken place immediately prior to such
Reorganization. Notwithstanding the foregoing sentence, if (x) there shall occur
any Reorganization in which the Common Stock is converted into or exchanged for
anything other than solely equity securities, and (y) the common stock of the
acquiring or surviving company is publicly traded, then, as part of such
Reorganization, (i) the Registered Holder shall have the right thereafter to
receive upon the exercise hereof such number of shares of common stock of the
acquiring or surviving company as is determined by multiplying (A) the number of
shares of Common Stock subject to this Warrant immediately prior to such
Reorganization by (B) a fraction, the numerator of which is the Fair Market
Value (as defined below) per share of Common Stock as of the effective date of
such Reorganization, and the denominator of which is the fair market value per
share of common stock of the acquiring or surviving company as of the effective
date of such transaction, as determined in good faith by the Board (using the
principles set forth in subsections 2(f)(i) and 2(f)(ii) to the extent
applicable), and (ii) the exercise price per share of common stock of the
acquiring or surviving company shall be the Purchase Price divided by the
fraction referred to in clause (B) above. In any such case, appropriate
adjustment (as determined in good faith by the Board) shall be made in the
application of the provisions set forth herein with respect to the rights and
interests thereafter of the Registered Holder, to the end that the provisions
set forth in this Section 2 (including provisions with respect to changes in and
other adjustments of the Purchase Price) shall thereafter be applicable, as
nearly as reasonably may be, in relation to any securities, cash or other
property thereafter deliverable upon the exercise of this Warrant.
The Fair Market Value per share of Common Stock shall be determined as
follows:
(i) If the Common Stock is listed on a national securities
exchange, The NASDAQ Stock Market, Inc. ("Nasdaq") or another nationally
recognized trading system as of the Exercise Date, the Fair Market Value per
share of Common Stock shall be deemed to be the reported closing price per share
of Common Stock thereon on the trading day immediately preceding the Exercise
Date (PROVIDED that if no such price is reported on such day, the Fair Market
Value per share of Common Stock shall be determined pursuant to clause (ii)).
(ii) If the Common Stock is not listed on a national
securities exchange, Nasdaq or another nationally recognized trading system as
of the Exercise Date, the Fair Market Value per share of Common Stock shall be
deemed to be the amount most recently determined by the Board to represent the
fair market value per share of the Common Stock (including without limitation a
determination for purposes of granting Common Stock options or issuing Common
Stock under any plan, agreement or arrangement with employees of the Company);
and, upon request of the Registered Holder, the Board (or a representative
thereof) shall, as promptly as reasonably practicable but in any event not later
than 10 days after such request, notify the Registered Holder of the Fair Market
Value per share of Common Stock and furnish the Registered Holder with
reasonable documentation of the Board's determination of such Fair Market Value.
(g) CERTIFICATE AS TO ADJUSTMENTS. Upon the occurrence of each
adjustment or readjustment of the Purchase Price pursuant to this Section 2, the
Company at its expense shall, as promptly as reasonably practicable but in any
event not later than 10 days thereafter, compute such adjustment or readjustment
in accordance with the terms hereof and furnish to the Registered Holder a
certificate setting forth such adjustment or readjustment (including the kind
and amount of securities, cash or other property for which this Warrant shall be
exercisable and the Purchase Price) and showing in detail the facts upon which
such adjustment or readjustment is based. The Company shall, as promptly as
reasonably practicable after the written request at any time of the Registered
Holder (but in any event not later than 10 days thereafter), furnish or cause to
be furnished to the Registered Holder a certificate setting forth (i) the
Purchase Price then in effect and (ii) the number of shares of Common Stock and
the amount, if any, of other securities, cash or property which then would be
received upon the exercise of this Warrant.
3. FRACTIONAL SHARES. The Company shall not be required upon the
exercise of this Warrant to issue any fractional shares, but shall pay the value
thereof to the Registered Holder in cash on the basis of the Fair Market Value
per share of Common Stock, as determined pursuant to subsection 2(f) above.
4. CALL PROVISION. Notwithstanding any other provision contained herein
to the contrary, at any time after [ ], 2005, in the event that the closing
price of the Common Stock as reported on Nasdaq (or such other exchange or stock
market on which the Common Stock may then be listed or quoted) is at least 150%
of the initial Purchase Price (appropriately adjusted for any stock split,
reverse stock split, stock dividend or other reclassification or combination of
the Common Stock occurring after the date hereof) for twenty (20) consecutive
trading days (the "Trading Period"), PROVIDED, that the actual average daily
trading volume of the Common Stock for the Trading Period is greater than
100,000 shares per day, upon thirty (30) days prior written notice (the "Notice
Period") to the Registered Holder, the Company may repurchase this Warrant in
full. In order for the Company to repurchase this Warrant, (i) the Company must
give a similar notice to all holders of the Company Warrants and repurchase all
Company Warrants, and (ii) the Warrant Shares must (A) have been registered
pursuant to an effective Registration Statement which has not been suspended and
for which no stop order is in effect, and pursuant to which the Registered
Holder is able to sell such Warrant Shares at all times during the Notice Period
or (B) no longer constitute Registrable Securities (as defined in the Securities
Purchase Agreement of even date herewith, by and between the Company and the
Purchasers noted therein). Notwithstanding any such notice by the Company, the
Registered Holder shall have the right to exercise this Warrant prior to the end
of the Notice Period. Upon exercise of the Company's repurchase right set forth
herein, the Company shall pay the Registered Holder an aggregate amount equal to
$0.10 per Warrant Share.
5. TRANSFERS, ETC.
(a) Notwithstanding anything to the contrary contained herein,
this Warrant and the Warrant Shares shall not be sold or transferred unless
either (i) they first shall have been registered under the Securities Act of
1933, as amended (the "Act"), or (ii) such sale or transfer shall be exempt from
the registration requirements of the Act and the Company shall have been
furnished with an opinion of legal counsel, reasonably satisfactory to the
Company, to the effect that such sale or transfer is exempt from the
registration requirements of the Act. Notwithstanding the foregoing, no
registration or opinion of counsel shall be required for (i) a transfer by a
Registered Holder which is an entity to a wholly owned subsidiary of such
entity, a transfer by a Registered Holder which is a partnership to a partner of
such partnership or a retired partner of such partnership or to the estate of
any such partner or retired partner, or a transfer by a Registered Holder which
is a limited liability company to a member of such limited liability company or
a retired member or to the estate of any such member or retired member, PROVIDED
that the transferee in each case agrees in writing to be subject to the terms of
this Section 5, or (ii) a transfer made in accordance with Rule 144 under the
Act.
(b) Each certificate representing Warrant Shares shall bear a
legend substantially in the following form:
"The securities represented hereby have not been registered under
the Securities Act of 1933, as amended, or any state securities laws
and neither the securities nor any interest therein may not be
offered, sold, transferred, pledged or otherwise disposed of except
pursuant to an effective registration under such act or an exemption
from registration, which, in the opinion of counsel reasonably
satisfactory to counsel for this corporation, is available."
The foregoing legend shall be removed from the certificates representing
any Warrant Shares, at the request of the holder thereof, at such time as they
become eligible for resale pursuant to Rule 144(k) under the Act or at such time
as the Warrant Shares are sold or transferred in accordance with the
requirements of a registration statement of the Company on Form S-3, or such
other form as may then be in effect.
(c) The Company will maintain a register containing the name and
address of the Registered Holder of this Warrant. The Registered Holder may
change its address as shown on the warrant register by written notice to the
Company requesting such change.
(d) Subject to the provisions of Section 5 hereof, this Warrant
and all rights hereunder are transferable, in whole or in part, upon surrender
of this Warrant with a properly executed assignment (in the form of EXHIBIT II
hereto) at the principal office of the Company (or, if another office or agency
has been designated by the Company for such purpose, then at such other office
or agency).
6. NO IMPAIRMENT. The Company will not, by amendment of its charter or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms
and in the taking of all such action as may be necessary or appropriate in order
to protect the rights of the Registered Holder against impairment.
7. NOTICES OF RECORD DATE, ETC. In the event:
(a) the Company shall take a record of the holders of its Common
Stock (or other stock or securities at the time deliverable upon the exercise of
this Warrant) for the purpose of entitling or enabling them to receive any
dividend or other distribution, or to receive any right to subscribe for or
purchase any shares of stock of any class or any other securities, or to receive
any other right; or
(b) of any capital reorganization of the Company, any
reclassification of the Common Stock of the Company, any consolidation or merger
of the Company with or into another corporation, or any transfer of all or
substantially all of the assets of the Company; or
(c) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company, then, and in each such case, the Company will send or
cause to be sent to the Registered Holder a notice specifying, as the case may
be, (i) the record date for such dividend, distribution or right, and the amount
and character of such dividend, distribution or right, or (ii) the effective
date on which such reorganization, reclassification, consolidation, merger,
transfer, dissolution, liquidation or winding-up is to take place, and the time,
if any is to be fixed, as of which the holders of record of Common Stock (or
such other stock or securities at the time deliverable upon the exercise of this
Warrant) shall be entitled to exchange their shares of Common Stock (or such
other stock or securities) for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, transfer,
dissolution, liquidation or winding-up. Such notice shall be sent at least 10
days prior to the record date or effective date for the event specified in such
notice.
8. RESERVATION OF STOCK. The Company will at all times reserve and keep
available, solely for issuance and delivery upon the exercise of this Warrant,
such number of Warrant Shares and other securities, cash and/or property, as
from time to time shall be issuable upon the exercise of this Warrant.
9. EXCHANGE OR REPLACEMENT OF WARRANTS.
(a) Upon the surrender by the Registered Holder, properly
endorsed, to the Company at the principal office of the Company, the Company
will, subject to the provisions of Section 5 hereof, issue and deliver to or
upon the order of the Registered Holder, at the Company's expense, a new Warrant
or Warrants of like tenor, in the name of the Registered Holder or as the
Registered Holder (upon payment by the Registered Holder of any applicable
transfer taxes) may direct, calling in the aggregate on the face or faces
thereof for the number of shares of Common Stock (or other securities, cash
and/or property) then issuable upon exercise of this Warrant.
(b) Upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant and (in
the case of loss, theft or destruction) upon delivery of an indemnity agreement
(with surety if reasonably required) in an amount reasonably satisfactory to the
Company, or (in the case of mutilation) upon surrender and cancellation of this
Warrant, the Company will issue, in lieu thereof, a new Warrant of like tenor.
10. NOTICES. All notices and other communications from the Company to
the Registered Holder in connection herewith shall be mailed by certified or
registered mail, postage prepaid, or sent via a reputable nationwide overnight
courier service guaranteeing next business day delivery, to the address last
furnished to the Company in writing by the Registered Holder. All notices and
other communications from the Registered Holder to the Company in connection
herewith shall be mailed by certified or registered mail, postage prepaid, or
sent via a reputable nationwide overnight courier service guaranteeing next
business day delivery, to the Company at its principal office set forth below.
If the Company should at any time change the location of its principal office to
a place other than as set forth below, it shall give prompt written notice to
the Registered Holder and thereafter all references in this Warrant to the
location of its principal office at the particular time shall be as so specified
in such notice. All such notices and communications shall be deemed delivered
one business day after being sent via a reputable international overnight
courier service guaranteeing next business day delivery.
11. NO RIGHTS AS STOCKHOLDER. Until the exercise of this Warrant, the
Registered Holder shall not have or exercise any rights by virtue hereof as a
stockholder of the Company. Notwithstanding the foregoing, in the event (i) the
Company effects a split of the Common Stock by means of a stock dividend and the
Purchase Price of and the number of Warrant Shares are adjusted as of the date
of the distribution of the dividend (rather than as of the record date for such
dividend), and (ii) the Registered Holder exercises this Warrant between the
record date and the distribution date for such stock dividend, the Registered
Holder shall be entitled to receive, on the distribution date, the stock
dividend with respect to the shares of Common Stock acquired upon such exercise,
notwithstanding the fact that such shares were not outstanding as of the close
of business on the record date for such stock dividend.
12. AMENDMENT OR WAIVER. Any term of this Warrant may be amended or
waived (either generally or in a particular instance and either retroactively or
prospectively) with the written consent of the Company and the holders of
Company Warrants representing at least two-thirds of the number of shares of
Common Stock then subject to outstanding Company Warrants. Notwithstanding the
foregoing, (a) this Warrant may be amended and the observance of any term
hereunder may be waived without the written consent of the Registered Holder
only in a manner which applies to all Company Warrants in the same fashion and
(b) the number of Warrant Shares subject to this Warrant and the Purchase Price
of this Warrant may not be amended, and the right to exercise this Warrant may
not be waived, without the written consent of the Registered Holder (it being
agreed that an amendment to or waiver under any of the provisions of Section 2
of this Warrant shall not be considered an amendment of the number of Warrant
Shares or the Purchase Price). The Company shall give prompt written notice to
the Registered Holder of any amendment hereof or waiver hereunder that was
effected without the Registered Holder's written consent. No waivers of any
term, condition or provision of this Warrant, in any one or more instances,
shall be deemed to be, or construed as, a further or continuing waiver of any
such term, condition or provision.
13. SECTION HEADINGS. The section headings in this Warrant are for the
convenience of the parties and in no way alter, modify, amend, limit or restrict
the contractual obligations of the parties.
14. GOVERNING LAW. This Warrant will be governed by and construed in
accordance with the internal laws of the State of New York (without reference to
the conflicts of law provisions thereof).
15. FACSIMILE SIGNATURES. This Warrant may be executed by facsimile
signature.
* * * * * * *
EXECUTED as of the Date of Issuance indicated above.
CHINDEX INTERNATIONAL, INC.
By:________________________________
Name:
Title:
ATTEST:
______________________________
EXHIBIT I
PURCHASE FORM
To: Chindex International, Inc. Dated:____________
The undersigned, pursuant to the provisions set forth in the attached
Warrant (No. ___), hereby elects to purchase (CHECK APPLICABLE BOX):
[ ] ____ shares of the Common Stock of Chindex International, Inc. covered
by such Warrant; or
[ ] the maximum number of shares of Common Stock covered by such Warrant
pursuant to the cashless exercise procedure set forth in subsection 1(b).
The undersigned herewith makes payment of the full purchase price for such
shares at the price per share provided for in such Warrant. Such payment takes
the form of (CHECK APPLICABLE BOX OR BOXES):
[ ] $______ in lawful money of the United States; and/or
[ ] the cancellation of such portion of the attached Warrant as is
exercisable for a total of _____ Warrant Shares (using a Fair Market
Value of $______ per share for purposes of this calculation); and/or
[ ] the cancellation of such number of Warrant Shares as is necessary,
in accordance with the formula set forth in subsection 1(b), to
exercise this Warrant with respect to the maximum number of Warrant
Shares purchasable pursuant to the cashless exercise procedure set
forth in subsection 1(b).
Signature: ______________________
Address: ________________________
________________________
EXHIBIT II
ASSIGNMENT FORM
FOR VALUE RECEIVED, ______________________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the attached
Warrant (No. ____) with respect to the number of shares of Common Stock of
Chindex International, Inc. covered thereby set forth below, unto:
NAME OF ASSIGNEE ADDRESS NO. OF SHARES
---------------- ------- -------------
Dated: ____________________ Signature:________________________________
Signature Guaranteed:
By: _______________________
The signature should be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with membership in
an approved signature guarantee medallion program) pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended.
