EXHIBIT 99.5
Exhibit B
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE
TRANSFERRED UNTIL (1) A REGISTRATION STATEMENT UNDER SUCH SECURITIES
LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (2) IN THE
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY REGISTRATION UNDER SUCH
SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED
TRANSFER.
RESPONSE ONCOLOGY, INC.
Warrant to Purchase Common Stock
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Response Oncology, Inc., a Tennessee corporation (the "Company"),
hereby certifies that Seafield Capital Corporation, a Missouri corporation
("Seafield") is entitled, subject to the terms and conditions set forth below,
to purchase from the Company upon surrender of this Warrant 1,000,000 fully paid
and non-assessable shares of the Common Stock, par value $.01 per Share, of the
Company (the "Shares"), at an exercise price per share equal to the lesser of
(i) the average of the closing prices of the Common Stock on the NASDAQ Stock
Market's National Market for the five (5) consecutive trading days ending one
(1) trading day prior to the date on which the Warrant Issuance Event occurs
(for purposes of computing such average, such closing trading prices shall be
appropriately adjusted to eliminate the impact of any dividend, whether in cash,
securities or other property, stock split, reclassification, recapitalization,
reverse split or similar event, announced or occurring with respect to the
Company's Common Stock during such five (5) trading day period) and (ii) $11.00.
This Warrant shall be exercisable for the three (3) year period
commencing on [date of Warrant Issuance Event] and ending at the close of
business on [3rd Anniversary of Warrant Issuance Date], and no rights herein
given to the holder of this Warrant shall exist thereafter.
As used herein, the term "Company" includes any corporation which shall
succeed to or assume the obligations of the Company hereunder, and the term
"Shares" which may be purchased upon exercise of this Warrant includes stock of
any class or classes (however designated) of the Company, the holders of which
shall have the right (without limitation as to amount) either to all or to a
portion of the balance of current dividends and liquidating distributions after
the payment of dividends and distributions on any securities entitled to
preference.
The number and character of the Shares which may be purchased upon
exercise of this Warrant and the exercise price per Share are subject to
adjustment from time to time as hereinafter provided.
1. Compliance with the Securities Act of 1933.
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(a) The holder of this Warrant agrees that the Company, if it so
desires, may permit transfers of this Warrant and all Shares purchased upon
exercise hereof only when the securities which the holder of this Warrant
desires to transfer have been registered under the Securities Act of 1933, as
amended (the "Securities Act"), and any applicable state or other jurisdiction's
securities laws, or when the request for transfer is accompanied by an opinion
of counsel (which opinion and the counsel rendering such opinion shall be
reasonably acceptable to the Company) to the effect that the sale or proposed
transfer does not require registration under the Securities Act or any state or
other jurisdiction's securities laws. The holder of this Warrant further agrees
that the following legend, if the Company so desires, may be placed on the
certificate or certificates representing any of the Shares purchased upon
exercise of this Warrant and a stop transfer order may be placed with respect
thereto:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED UNTIL (1) A
REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (2)
IN THE OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY, REGISTRATION UNDER
SUCH SECURITIES ACT AND SUCH APPLICABLE STATE SECURITIES LAWS IS NOT
REQUIRED IN CONNECTION WITH SUCH PROPOSED TRANSFER.
The holder of this warrant understands that the Company shall have no obligation
to permit the transfer of this Warrant to any person if such transfer would
constitute a violation of any applicable federal or state securities law,
including the Securities Act.
(b) In the event of a transfer of this Warrant in accordance with the
provisions of this Section 1 and upon surrender of this Warrant to the Company
or its transfer agent's principal office for such purpose, the Company, at its
expense, will issue and deliver a new Warrant of like tenor in the name of such
holder or holders (upon payment of any applicable transfer taxes) as the holder
hereof may direct. Until this Warrant is transferred on the books of the
Company, the Company may treat the registered holder hereof as absolute owner
for all purposes, without being affected by any notice to the contrary.
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(c) The holder of this Warrant agrees that upon exercise of this
Warrant, the holder shall deliver written investment representations to the
Company in form reasonably satisfactory to the Company and shall otherwise
reasonably comply with any current requirements of the Securities and Exchange
Commission and any applicable state securities laws as may be required in the
reasonable opinion of counsel for the Company at the time of the exercise of
this Warrant to allow the issuance of the shares to the holder in compliance
with such laws.
2. Adjustments of Number of Shares Issuable Upon Exercise of Warrants.
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(a) In the event of any change in the outstanding Shares of Common
Stock of the Company by reason of a stock dividend, split or combination in
which the Company is the surviving corporation or other similar change affecting
the capital structure of the Company, the number of Shares issuable upon the
exercise of this Warrant and the exercise price per Share shall be appropriately
adjusted by the Company to reflect such change.
(b) In case of any capital reorganization or reclassification of
Shares, or in case of any consolidation or merger of the Company with or into
any other corporation, or in case of any sale to another corporation of the
properties and assets of the Company as or substantially as an entirety, then,
and in each such case, the holder of this Warrant shall have the right to
receive upon the exercise hereof as provided in Section 7 hereof, at any time
after the consummation of such reorganization, reclassification, consolidation,
merger or sale, the kind and amount of shares of stock or other securities or
property receivable upon such reorganization, reclassification, consolidation,
merger or sale by a holder of the number of Shares issuable upon exercise of
this warrant immediately prior to such reorganization, reclassification,
consolidation, merger or sale; and in any such case, if necessary, the
provisions set forth herein with respect to the rights and interests thereafter
of the holder of this Warrant shall be appropriately adjusted so as to be
applicable, as nearly as may reasonably be, to any shares of stock or other
securities or property thereafter receivable upon the exercise of this Warrant.
The above provisions of this subparagraph (b) shall similarly apply to
successive reclassifications and changes of Shares and to successive
consolidations, mergers, sales or conveyances.
(c) Anything in this Section 2 to the contrary notwithstanding, no
adjustment in the number of Shares shall be required unless such adjustment
would require an increase or decrease of at least 1% in such number; provided,
however, that any adjustments which by reason of this Section 2 are not required
to be made shall be carried forward and taken into account (together with any
other adjustments so carried forward) in any subsequent adjustment. All
calculations under this Section 2 shall be made to the nearest one-hundredth of
a Share, as the case may be, but in no event shall the Company be obligated to
issue fractional Shares upon the exercise of this Warrant.
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(d) Immediately upon any adjustment pursuant to this Section 2, the
Company shall send written notice thereof to the holder of this Warrant (as
provided in Section 9 hereof), which notice shall state the increase or decrease
in the number of Shares to be acquired upon exercise of this Warrant, and in the
exercise price per Share, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based.
3. Notice of Reclassifications, Consolidations, Mergers, etc.
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In case of any capital reorganization or reclassification of the
capital stock of the Company or a consolidation or merger of the Company with
another corporation, or the full dissolution, liquidation or winding up of the
Company, or a sale of all or substantially all its assets (whether voluntary or
involuntary), then in any one or more of said cases, the Company shall mail (as
provided in Section 9 hereof) a notice to the holder of this Warrant at the
address of said holder on the records of the Company, at least 10 days prior to
the date such reorganization, reclassification, consolidation, merger,
dissolution, liquidation, winding up or sale shall take place. Such notice shall
also specify the date as of which shareholders of record shall be entitled to
exchange their Shares for other securities or property pursuant to such
reorganization, reclassification, consolidation or merger, or to receive their
respective distributive Shares in the event of such dissolution, liquidation,
winding up or sale, as the case may be. Such notice shall also set forth a
statement of the effect of such action (to the extent then known) on the kind
and amount of shares of capital stock and property receivable upon exercise of
this Warrant.
4. Covenants of the Company.
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The Company covenants and agrees that all Shares which may be issued
upon the exercise of this Warrant shall, upon issuance, be duly authorized,
validly issued, fully paid and non-assessable and free from all preemptive
rights of any shareholder and all taxes, liens and charges with respect to the
issue thereof (other than taxes in respect of any transfer occurring
contemporaneously with such issue).
5. Warrant Holder Not Deemed a Shareholder.
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No holder of this Warrant, as such, shall be entitled to vote or
receive dividends or be deemed the holder of Shares for any purpose, nor shall
anything contained in this Warrant be construed to confer upon the holder
hereof, as such, any of the rights of a shareholder of the company or any right
to vote, give or withhold consent to any corporate action, receive notice of
meetings, receive dividends, or subscription rights, or otherwise, prior to the
issuance of record to the holder of this Warrant of the Shares which he is then
entitled to receive upon the due exercise of this Warrant.
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6. No Limitation on Corporate Action.
---------------------------------
No provisions of this Warrant and no right or option granted or
conferred hereunder shall in any way limit, affect or abridge the exercise by
the Company of any of its corporate rights or powers to recapitalize, amend its
Charter, reorganize, consolidate or merge with or into another corporation, or
to transfer all or any part of its property or assets, or the exercise of any
other of its corporate rights and powers.
7. Exercise of Warrant.
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(a) This Warrant may be exercised in whole or in multiples of 25,000
shares. The holder of this Warrant may exercise the same by surrendering this
Warrant, with the form of subscription at the end hereof duly executed by such
holder, to the Company at the principal office of the Company, until such time
as the Company may appoint a transfer agent and thereafter at the principal
office of the transfer agent, accompanied by payment in cash or by certified or
official bank check, payable to the order of the Company, of the sum obtained by
multiplying the number of Shares being purchased (giving effect to any
adjustments therein) by the exercise price per Share, plus any applicable
transfer tax. If the Company appoints a transfer agent, the Company agrees to
notify the holder of this Warrant of the address of such agent's principal
office.
(b) As soon as practicable after exercise of this Warrant and payment
of the sum payable upon such exercise, and in any event within 20 days
thereafter, the Company will cause to be issued in the name of and delivered to
the holder hereof, or as such holder may direct (upon payment by such holder of
any applicable transfer taxes), a certificate or certificates for the number of
fully paid and non-assessable Shares or other securities or property to which
such holder shall be entitled upon such exercise, plus, in lieu of any
fractional Shares to which such holder would otherwise be entitled, cash equal
to such fraction multiplied by the then current fair market value of one full
Share. Issuance and delivery of the Shares deliverable on the due exercise of
this Warrant may be postponed by the Company and its transfer agent during any
period, not exceeding 40 days, for which the transfer books of the Company for
its Common Stock are closed between (1) the record date set by the Board of
Directors for the determination of shareholders entitled to vote at or to
receive notice of any shareholders' meeting, or entitled to receive payment of
any dividends or to any allotment of rights or to exercise rights in respect of
any change, conversion or exchange of capital stock, and (2) the date of such
allotment of rights, or the date when any such change or conversion or exchange
of capital stock shall go into effect, as the case may be.
(c) If this Warrant is exercised in part as permitted hereunder, the
Company, at its expense, will issue and deliver a new Warrant of like tenor
(giving effect to all prior exercises) in the name of the holder.
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8. Registration Rights.
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The original holder of this Warrant and its permitted successors and
assigns are entitled to the registration rights granted with respect to this
Warrant and the Shares issued upon exercise of this Warrant in accordance with
that certain Loan Agreement, dated as of October 4, 1996, between the Company
and Seafield.
9. Notices.
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All communications hereunder shall be in writing and, if sent to the
Company, shall be mailed by registered or certified mail or delivered or
telegraphed and confirmed in writing to 0000 Xxxxxx Xxxxx Xxxx., Xxxxxxx,
Xxxxxxxxx 00000; Attention: Xxxxxx X. Xxxxx, President, and if sent to the
holder hereof, shall be mailed by registered or certified mail or delivered or
telegraphed and confirmed in writing to the address of such holder as set forth
in the Company's records. The Company or any such holder may change its address
by proper notice to all holders or the Company, as the case may be.
Dated: _______________, 199__
RESPONSE ONCOLOGY INC.
Attest: ________________________ By: ______________________________
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ASSIGNMENT
FOR VALUE RECEIVED __________________________ hereby sells, assigns and
transfers unto ____________________________ the within Warrant, and does hereby
irrevocably constitute and appoint _________________________, Attorney-in-Fact,
to transfer the said Warrant on the books of the within-named corporation with
full power of substitution.
Dated: _____________________, 199__
Person to Receive New Warrant:
_______________________________
Name
_______________________________
Address
_______________________________
_______________________________
Tax Identification Number
_________________________________
Signature
_________________________________
Signature
NOTICE: The signature(s) to this Assignment must correspond with the name(s) as
written upon the face of the Certificate, in every particular, without
alteration or enlargement or any change whatever.
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SUBSCRIPTION FORM
TO BE EXECUTED BY THE REGISTERED HOLDER
TO EXERCISE THIS WARRANT
RESPONSE ONCOLOGY, INC.
The undersigned hereby exercises the right to purchase ____________
Shares of Common Stock or other securities or property covered by this Warrant.
The undersigned hereby exercises such right to purchase in accordance with the
conditions of the Warrant and herewith makes payment in full of the Purchase
Price of such Shares of Common Stock or other securities or property.
Dated: _______________________, 199__
_________________________________
Signature
_________________________________
Signature
_________________________________
Address
_________________________________
Number of Shares of Common Stock Being
Purchased or Description of other
Securities or Property
$________________________________
Purchase Price
NOTICE: The signatures to this Subscription Form must correspond with
the name(s) as written upon the face of the Certificate, in
every particular, without alteration or enlargement or any
change whatever.
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