EXHIBIT 10.15
THIS WARRANT AND THE SECURITIES THAT MAY BE ACQUIRED UPON THE EXERCISE OF
THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "FEDERAL ACT"), OR UNDER THE PROVISIONS OF ANY APPLICABLE STATE
SECURITIES LAWS. NEITHER THIS WARRANT NOR THE SECURITIES THAT MAY BE ACQUIRED
UPON THE EXERCISE OF THIS WARRANT MAY BE SOLD, PLEDGED, TRANSFERRED. ASSIGNED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER PROVISIONS OF THE FEDERAL ACT AND ALL APPLICABLE STATE
SECURITIES LAWS AND, IN THE CASE OF ANY EXEMPTION, ONLY IF THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH TRANSACTION
DOES NOT REQUIRE REGISTRATION OF THE WARRANT OR THE OTHER SECURITIES.
UNITED SURGICAL PARTNERS INTERNATIONAL, INC.
100,000 SHARES JULY 1, 1999
COMMON STOCK PURCHASE WARRANT
UNITED SURGICAL PARTNERS INTERNATIONAL, INC., a Delaware corporation (the
"Company"), hereby certifies that, for value received, GIASURG, LLP, a Texas
limited liability partnership ("Holder"), is entitled, subject to the terms set
forth below, to purchase from the Company at any time or from time to time, on
or after the date hereof and prior to the earliest of (1) the fifth anniversary
of the date hereof, (2) the dissolution of the Company as described in Section
6.2 below or (3) the date the Warrant terminates pursuant to Section 8 below
(the "Expiration Date"), that number of fully paid and nonassessable shares of
Common Stock (as defined in Section 1.1 hereof), as shall be equal to the
Initial Warrant Number (as defined in Section 1.5) at a purchase price per share
equal to the Initial Exercise Price (as defined in Section 1.3), subject,
however, to adjustment both as to such number of shares and as to such price as
hereinafter set forth (such price per share as so adjusted from time to time
being herein called the "Exercise Price").
1. DEFINITIONS. As used herein the following terms have the following respective
meanings:
1.1. The term "Common Stock" includes (a) the Company's Common Stock, par
value $.01 per share, and (b) any other securities into which or for which any
of the securities described in clause (a) above have been converted or exchanged
pursuant to a plan of recapitalization, reorganization, merger or consolidation,
or otherwise.
1.2. The term "Company" shall include United Surgical Partners
International, Inc., a Delaware corporation, and any corporation which shall
succeed to or assume the obligations of the Company hereunder.
1.3. The term "Initial Exercise Price" shall mean $4.00
1.4. The term "Initial Public Offering" shall mean the first offer and
sale of shares of Common Stock by the Company pursuant to an effective
registration statement under the Securities Act of 1933, as amended.
1.5. The term "Initial Warrant Number" shall mean 100,000.
1.6. The term "Person" shall mean an individual, partnership, limited
liability company, corporation, association, trust, joint venture,
unincorporated organization or any government, governmental department or agency
or political subdivision thereof.
1.7. The term "Warrant Exercise Period" shall mean the period beginning on
the date hereof and ending on the Expiration Date.
2. EXERCISE OF WARRANT. Subject to the limitations set forth in Section 3, this
Warrant may be exercised (in whole and not in part) by Holder at any time during
the Warrant Exercise Period by surrender of this Warrant to the Company at its
principal office, together with (a) the Form of Subscription at the end hereof
duly executed by Holder, (b) such other documents, statements, subscription
agreements or other items as may be reasonably requested by the Company in
furtherance of its requirements pursuant to Section 3 below and (c) payment, by
certified check payable to the order of the Company or by wire transfer to its
account, in the amount obtained by multiplying the number of shares of Common
Stock for which this Warrant is then being exercised by the Exercise Price then
in effect.
3. RESTRICTIONS ON TRANSFER.
3.1 SECURITIES LAW RESTRICTIONS. Holder hereby acknowledges that neither
this Warrant nor any of the securities that may be acquired upon exercise of
this Warrant have been registered under the Securities Act of 1933, as amended,
or under the securities laws of any state. Holder acknowledges that, upon
exercise of this Warrant, the securities to be issued upon such exercise may
become subject to applicable federal and state securities (or other) laws
requiring registration, qualification or approval of governmental authorities
before such securities may be validly issued or delivered upon notice of such
exercise. With respect to any such securities, this Warrant may not be exercised
by, and securities shall not be issued to, Holder in any state in which such
exercise would be unlawful. Holder agrees that the Company may place such legend
or legends on certificates representing securities issued upon exercise of this
Warrant as the Company may reasonably deem necessary to comply with applicable
state and federal securities laws for the issuance of such securities.
3.2 REPRESENTATIONS BY HOLDER. By acceptance of this Warrant as set forth
below, Holder represents and warrants to the Company that Holder is acquiring
this Warrant, and will acquire any shares of Common Stock issued upon exercise
of this Warrant, for Holder's own account and for investment and without any
present intention of selling or otherwise disposing of this Warrant or any such
shares of Common Stock.
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3.3 WARRANT NON-TRANSFERABLE. This Warrant is not transferable by Holder
without the express prior written consent of the Company, which consent may be
withheld at the Company's sole discretion.
4. DELIVERY OF STOCK CERTIFICATES ON EXERCISE.
4.1. DELIVERY. Subject to the terms and conditions of this Warrant, as
soon as practicable after the exercise of this Warrant, and in any event within
10 days thereafter, the Company at its expense (including the payment by it of
any applicable issue taxes) will cause to be issued in the name of and delivered
to Holder a certificate or certificates for the number of fully paid and
non-assessable shares of Common Stock to which such Holder shall be entitled
upon such exercise, together with any other stock or other securities and
property (including cash, where applicable) to which Holder is entitled upon
such exercise.
4.2. FRACTIONAL SHARES. This Warrant may not be exercised as to fractional
shares of the Common Stock. In the event that the exercise of this Warrant, in
full or in part, results in the issuance of any fractional share of Common
Stock, then in such event Holder shall be entitled to cash equal to the fair
market value of such fractional share as determined by the Company's Board of
Directors.
5. ADJUSTMENT FOR DIVIDENDS, DISTRIBUTIONS AND RECLASSIFICATIONS. In case
at any time or from time to time the holders of Common Stock shall have
received, or (on or after the record date fixed for the determination of
stockholders eligible to receive) shall have become entitled to receive, without
payment therefor:
(a) other or additional stock or other securities or property (other
than cash) by way of dividend; or
(b) other or additional (or less) stock or other securities or
property (including cash) by way of spin-off, split-up, reclassification,
recapitalization, combination of shares or similar corporate
restructuring;
OTHER THAN additional shares of Common Stock issued as a stock dividend or in a
stock-split (adjustments in respect of which are provided for in Section 7
hereof), then and in each such case Holder on the exercise hereof as provided in
Section 2 hereof shall be entitled to receive the amount of stock and other
securities and property (including cash in the case referred to in subsection
(b) of this Section 5) which Holder would have held on the date of such exercise
if on the date the events described in subsections (a) and (b) above Holder had
been the holder of record of the number of shares of Common Stock subject to
such exercise and had thereafter, during the period from the date of such events
to and including the date of such exercise, retained such shares and all such
other or additional stock and other securities and property (including cash in
the case referred to in subsection (b) of this Section 5) receivable by Holder
as aforesaid during such period, giving effect to all further adjustments called
for during such period by Sections 6 and 7 hereof.
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6. ADJUSTMENT FOR REORGANIZATION CONSOLIDATION, MERGER, ETC.
6.1. CERTAIN ADJUSTMENTS. In case at any time or from time to time the
Company shall (a) consolidate with or merge into any other person or (b)
transfer all or substantially all of its properties or assets to any other
Person under any plan or arrangement contemplating the dissolution of the
Company, then in each such case on the exercise hereof as provided in Section 2
hereof at any time after the consummation of such consolidation or merger or
transfer of assets (and prior to the effective date of such dissolution), as the
case may be, Holder shall receive, in lieu of the Common Stock issuable on such
exercise prior to such consummation, the stock and other securities and property
(including cash) to which Holder would have been entitled upon such consummation
or in connection with such dissolution, as the case may be, if Holder had so
exercised this Warrant immediately prior thereto, all subject to further
adjustment thereafter as provided in Sections 5 and 7 hereof.
6.2. CONTINUATION OF TERMS. Upon any consolidation or merger referred to
in Section 6.1(a), this Warrant shall continue in full force and effect and the
terms hereof shall be applicable to the shares of stock and other securities and
property receivable upon the exercise of this Warrant after the consummation of
such merger or consolidation, and shall be binding upon the issuer of any such
stock or other securities whether or not such person shall have expressly
assumed the terms of this Warrant. Anything herein to the contrary
notwithstanding, in the event of a transfer of assets as described in Section
6.1(b) above, this Warrant shall expire and be of no further force or effect
upon the dissolution of the Company, as and to the extent the Warrant is not
properly exercised prior to the effective date of such dissolution.
7. STOCK SPLITS, STOCK DIVIDENDS, REDUCTION IN WARRANT NUMBER. If at any time
there shall occur any stock split, stock dividend, reverse stock split or other
subdivision of the Company's Common Stock (a "Stock Event"), then the number of
shares of Common Stock to be received by the Holder of this Warrant shall be
appropriately adjusted such that the proportion of the number of shares issuable
hereunder immediately prior to such Stock Event to the total number of shares of
the Company outstanding immediately prior to such Stock Event is equal to the
proportion of the number of shares issuable hereunder immediately after such
Stock Event to the total number of shares of the Company outstanding immediately
after such Stock Event. The Exercise Price shall be proportionately decreased or
increased upon the occurrence of any Stock Event.
8. NON-COMPETITION COVENANT. This Warrant shall immediately terminate in the
event that Giasurg, LLP or any person or entity who has any ownership interest
in Giasurg. LLP (each of which is hereinafter referred to as a "Covenantor" in
this Section 8) at any time during the Warrant Exercise Period:
(a) engages in any activity with respect to a facility located
within 1O miles of TOPS Specialty Hospital, which is located at 00000 Xxx
Xxx Xxxxx. Xxxxxxx, Xxxxx (the "Hospital"), that is competitive with the
business of the Hospital, including; without limitation any ambulatory
surgical center, hospital, doctor's offices or any other facility
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where surgical procedures customarily performed in hospitals or outpatient
surgical centers are performed; or
(b) has any direct or indirect financial interest (as defined below)
in any Person that engages in any competitive activity described in
subparagraph (a) above; provided, however, that no Covenantor who is a
physician shall be restricted from performing surgery at any other
facility or otherwise practicing medicine in any private practice which
may utilize such competing facilities from time to time.
For purposes of this Section 8, "direct or indirect financial interest"
shall include (i) interests held by any family member of a Covenantor or any
trust for the benefit of any family member of a Covenantor, (ii) services
provided for any consideration to a competitive facility or Person, including
services as an officer, director, consultant or employee, (iii) any record or
beneficial ownership interest in, or being a creditor of, any competitive
facility or Person and (iv) any other financial relationship with such a
competing facility or Person, except for investments made in mutual funds or the
ownership of outstanding shares of a publicly held corporation purchased through
a broker on an established stock exchange or the NASDAQ system at an original
cost of not more than $25,000. If any Covenantor shall engage in any of the
activities or have any financial interest described in subparagraph (a) or (b)
above, this Warrant shall automatically terminate in full. Any purported
exercise of this Warrant prior to the date of the commencement of such activity
or the acquisition of such financial interest shall be null and void and any
shares issued pursuant to any such purported exercise shall be immediately
forfeited and returned to the Company and the Company shall return to Holder the
Exercise Price actually received by the Company in connection with such
exercise.
9. CERTAIN OBLIGATIONS OF THE COMPANY. The Company covenants that it will at all
times reserve and keep available out of its authorized and unissued Common
Stock, solely for the purpose of issuance upon exercise of this Warrant, a
number of shares of Common Stock equal to the number of shares of Common Stock
issuable upon exercise of this Warrant in effect from time to time. The Company
will from time to time, in accordance with the laws of the State of Delaware,
take action to increase the authorized amount of its Common Stock if at any time
the number of shares of Common Stock authorized but remaining unissued and
unreserved for other purposes shall be insufficient to permit the exercise of
this Warrant in full. The Company will maintain an office where presentations
and demands to or upon the Company in respect of this Warrant may be made. The
Company will give notice in writing to Holder, at the address of the Holder of
this Warrant appearing on the books of the Company, of each change in the
location of such office.
10. CERTIFICATE AS TO ADJUSTMENTS. In case of any event that may require any
adjustment or readjustment in the shares of Common Stuck issuable on the
exercise of this Warrant, the Company at its expense will promptly prepare and
send to Holder a certificate setting forth such adjustment or readjustment,
including a statement of (a) the number of shares of the Company's Common Stock
then outstanding on a fully diluted basis, (b) the number of shares of Common
Stock to be received upon exercise of this Warrant, as in effect immediately
prior to such adjustment or readjustment and as adjusted and readjusted (if
required by Section 7)
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on account thereof and (c) a calculation of the new Exercise Price in case of
any adjustment of the Exercise Price.
11. NOTICES OF RECORD DATE. In the event of (a) any taking by the Company of a
record of the holders of any class of securities for the purpose of determining
the holders thereof who are entitled to receive any dividend or other
distribution, or any right to subscribe for, purchase or otherwise acquire any
shares of stock of any class or any other securities or property, or to receive
any other right; (b) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company or any
transfer of all or substantially all the assets of the Company to or any
consolidation with or merger of the Company into any other Person; (c) an
Initial Public Offering; or (d) any voluntary or involuntary dissolution,
liquidation or winding-up of the Company, then, and in each such event, the
Company will mail or cause to be mailed to Holder a notice specifying (i) the
date on which any such record is to be taken for the purpose of such dividend,
distribution or right, and stating the amount and character of such dividend,
distribution or right, and (ii) the estimated date on which any such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, Initial Public Offering, 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 shall be entitled to exchange their shares of Common
Stock for securities or other property deliverable on such reorganization,
reclassification, recapitalization, transfer, consolidation, merger, Initial
Public Offering, dissolution, liquidation or winding-up. Such notice shall be
mailed at least 15 days prior to the date specified in such notice on which any
such action is expected to be taken.
12. NOTICES. All notices and other communications from the Company to the Holder
of this Warrant shall be mailed by first class registered or certified mail,
postage prepaid, or sent by, facsimile machine to such address or facsimile
number set forth on the signature page hereof, unless, and until Holder
furnishes to the Company a different address or facsimile number.
13. MISCELLANEOUS. In case any provision of this Warrant shall be invalid,
illegal or unenforceable, or partially invalid, illegal or unenforceable, the
provision shall be enforced to the extent, if any, that it may legally be
enforced and the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby. This Warrant
and any term hereof may be changed, waived, discharged or terminated only by a
statement in writing signed by the party against which enforcement of such
change, waiver, discharge or termination is sought Holder shall have no rights
as a stockholder of the Company until the date of the issuance to Holder of
stock certificates for Common Stock upon the exercise of the Warrant in
accordance with the terms hereof. This Warrant shall be governed by and
construed in accordance with the domestic substantive laws (and not the conflict
of law rules) of Delaware. The headings in this Warrant are for purposes of
reference only and shall not limit or otherwise affect any of the terms hereof.
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IN WITNESS WHEREOF, the Company, has caused this Common Stock Purchase
Warrant to be executed by its duly authorized officer as of the first above
written.
UNITED SURGICAL PARTNERS INTERNATIONAL, INC.
By: /s/ XXXXXX XXXXX
Name: Xxxxxx Xxxxx
Title: Chief Executive Officer
Holder's Address for Notices:
________________________________________
________________________________________
Fax No.: ( )__________________________
ACKNOWLEDGED AND AGREED:
GIASURG, LLP
By /s/ XXXXXX XXXX
Name Xxxxxx Xxxx MD
Title President
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