SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)
INFOCURE CORP.
(Name of Issuer)
COMMON STOCK
(Title of Class of Securities)
45665A105
(Cusip Number)
Melvyn Craw
Crescent International Limited
c/o Greenlight (Switzerland) SA
84, av Louis-Casai, P.O. Box 42
1216 Geneva, Cointrin
Switzerland
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
Copy to:
Sara P. Hanks, Esq.
Rogers & Wells
200 Park Avenue
New York, NY 10166
(212) 878-8000
May 13, 1999
(Date of event which requires filing of this statement)
|_| Check box if the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3)
or (4).
|_| Check box if a fee is being paid with the statement.
<PAGE>
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CUSIP No. 45665A108 13D Page 2
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON
CRESCENT INTERNATIONAL LIMITED
============ ===================================================================
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)|_|
(b)|X|
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3. SEC USE ONLY
============ ===================================================================
4. SOURCES OF FUNDS
WC
============ ===================================================================
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
|_|
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
BERMUDA
- ------------------------- ------- ==============================================
7. SOLE VOTING POWER
NUMBER OF
UNITS 480,230
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
------- ==============================================
8. SHARED VOTING POWER
480,230
------- ==============================================
9. SOLE DISPOSITIVE POWER
480,230
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10. SHARED DISPOSITIVE POWER
480,230
============ ===================================================================
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
480,230
============ ===================================================================
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
|-|
============ ===================================================================
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.5%
============ ===================================================================
14. TYPE OF REPORTING PERSON
CO
============ ===================================================================
<PAGE>
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CUSIP No. _ 45665A108 13D Page 3
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- --------------------------------- -------------------------------
============ ===================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON
DMI TRUST
============ ===================================================================
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)|_|
(b)|X|
============ ===================================================================
3. SEC USE ONLY
============ ===================================================================
4. SOURCES OF FUNDS
NOT APPLICABLE
============ ===================================================================
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
|_|
============ ===================================================================
6. CITIZENSHIP OR PLACE OF ORGANIZATION
BAHAMAS
- ------------------------- ------- ==============================================
7. SOLE VOTING POWER
NUMBER OF
UNITS None
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
------- ==============================================
8. SHARED VOTING POWER
480,230
------- ==============================================
9. SOLE DISPOSITIVE POWER
None
------- ==============================================
10. SHARED DISPOSITIVE POWER
480,230
============ ===================================================================
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
480,230
============ ===================================================================
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11 EXCLUDES CERTAIN
SHARES
|-|
============ ===================================================================
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.5%
============ ===================================================================
14. TYPE OF REPORTING PERSON
OO
============ ===================================================================
<PAGE>
SCHEDULE 13D
FILED PURSUANT TO RULE 13d-1
OF THE GENERAL RULES AND REGULATIONS UNDER
THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
This Amendment No. 2 which relates to shares of the common stock, par
value $0.001 per share (the "Common Stock"), of InfoCure Corp., a Delaware
corporation (the "Issuer") and is being filed jointly by DMI Trust ("DMI") and
Crescent International Limited ("Crescent"), supplements and amends the
statement on Schedule 13D originally filed with the Commission on December 22,
1998 and amended on February 1, 1999 (as amended, the "Statement").
Item 3. Source and Amount of Funds or Other Consideration.
The aggregate amount of funds used by Crescent to purchase the
380,230 shares of Common Stock and the Warrant (as defined in Item 5) was
approximately $6,975,887. The aggregate amount of funds to be used by Crescent
to purchase the 100,000 shares of Common Stock through exercise of the Warrant
is currently anticipated to be approximately $2,300,000. Crescent has used and
will use its working capital to make such purchases.
Item 4. Purpose of the Transaction.
Crescent acquired shares of the Common Stock of the Issuer for
investment purposes. None of the Reporting Persons has any current plans or
proposals which relate to or would result in (a) the acquisition by any person
of additional securities of the Issuer or the disposition of any such
securities, (b) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Issuer or any of its subsidiaries,
(c) a sale or transfer of a material amount of assets of the Issuer or any of
its subsidiaries, (d) any material change in the present capitalization or
dividend policy of the Issuer, (e) any other material change in the Issuer's
business or corporate structure, (f) any other material change in the Issuer's
charter, bylaws or instruments corresponding thereto or other actions which may
impede the acquisition of control of the Issuer by any person, (g) a class of
securities of the Issuer being delisted from a national securities exchange or
to cease to be authorized to be quoted in an inter-dealer quotation system of a
registered national securities association, (h) a class of equity securities of
the Issuer becoming eligible for termination of registration pursuant to Section
12(g)(4) of the Securities Exchange Act of 1934, or (i) any action similar to
any of the enumerated actions in (a) through (h) above.
Item 5. Interest in Securities of the Issuer.
(a)-(b) Crescent owns 380,230 shares of the Common Stock of the Issuer (the
"Common Stock") representing 2.8% of the 13,536,247 shares of Common Stock
outstanding. (1)
Crescent also owns a warrant (the "Warrant") to purchase
100,000 shares of the Common Stock of the Issuer. The warrant is exercisable by
Crescent at any time before September 28, 2003. Accordingly, pursuant to the
Warrant, Crescent owns beneficially 100,000 shares of the Common Stock of the
Issuer, and owns beneficially in total 480,230 shares of Common Stock,
representing approximately 3.5% of the as adjusted shares of the Common Stock
outstanding.
DMI may be deemed to be a beneficial owner of the shares of
Common Stock of the Issuer beneficially owned by Crescent by reason of the
ownership by DMI of 100 percent of the capital stock of Crescent. Accordingly,
for purposes of this Statement: (i) Crescent is reporting that it shares the
power to vote or direct the vote and the power to dispose or direct the
disposition of the total of 480,230 shares of Common Stock beneficially owned by
it and (ii) DMI is reporting that it shares the power to vote or direct the vote
and the power to dispose or direct the disposition of the 480,230 shares of
Common Stock beneficially owned by Crescent, such number of shares representing
approximately 3.5% of the as adjusted shares of Common Stock outstanding.
(c) On April 27, 1999, Crescent sold 180,000 shares of Common Stock
in a secondary offering of the Issuers for a purchase price of approximately
$4,404,600. On April 27, 1999, Crescent purchased 100,000 shares of Common Stock
in a series of market transactions for a purchase price of approximately
$2,679,385. On April 27, pursuant to the terms of the Stock Purchase Agreement,
dated September 28, 1998, by and between Crescent and the Issuer, Crescent
acquired 10,247 shares of Common Stock, through cashless exercise of an
additional warrant, for a purchase price of approximately $27.1875. Such 10,247
shares are included within the 480,230 shares described above.
Other than as described above, Crescent has the sole power to
vote or direct the vote and to dispose or direct the disposition of all the
shares of Common Stock stated to be beneficially owned by Crescent in Item 5(a)
hereof.
(d)-(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
Except as set forth herein or in the Exhibits filed or to be filed
herewith, no contracts, arrangements, understandings or relationships (legal or
otherwise) between the Reporting Persons and any other person exists with
respect to any securities of the Issuer, including but not limited to transfer
or voting of any such securities, finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, division of profits or loss,
or the giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits.
Exhibit 7.5 Warrant, by InfoCure Corporation in favor of Crescent
International Limited, dated as of January 30, 1999.
_______________
(1) According to the Amendment No. 2 to the Form S-3 Registration Statement
filed by the Issuer on May 5, 1999 and declared effective on May 13, 1999.
<PAGE>
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: June 11, 1999
CRESCENT INTERNATIONAL LIMITED
By: /s/ Omar Ali
__________________
Omar Ali
Director
DMI TRUST
By: /s/ Omar Ali
___________________
Omar Ali
Director
<PAGE>
SCHEDULE I
INFORMATION REGARDING THE DIRECTORS AND EXECUTIVE OFFICERS OF
CRESCENT INTERNATIONAL LIMITED
Set forth in the table below is the name and the present principal
occupation or employment of each of the directors and executive officers of
Crescent International Limited. Except as otherwise stated, each person listed
below has a principal business address of Clarendon House, 2 Church Street,
Hamilton HM 11.
<TABLE>
<CAPTION>
Name Present Principal Occupation or Employment Citizenship
- ---- ------------------------------------------ -----------
<S> <C> <C>
Omar Ali (2) Director of Crescent International Limited Somalian
Donald Malcolm Director of Crescent International Limited British
David Astwood Director of Crescent International Limited British
Osama Mohamed Ali Secretary of Crescent International Limited Swiss
John Thompson Assistant Secretary of Crescent International Limited British
</TABLE>
_____________
(2) Mr. Ali has a principal business address of 84, av. Louis Casai, P.O. Box
42, 1216 Geneva, Cointrin, Switzerland.
<PAGE>
SCHEDULE II
INFORMATION REGARDING THE TRUST ADMINISTRATOR OF
DMI TRUST
DMI Trust has a trust administrator, DMI SA. Set forth in the table
below is the name and the present principal occupation or employment of each of
the directors of the trust administrator of DMI Trust. Each person listed below
has a principal business address of 84, av Louis Casai, P.O. Box 42, 1216
Geneva, Cointrin, Switzerland.
<TABLE>
<CAPTION>
Name Present Principal Occupation or Employment Citizenship
<S> <C> <C>
Mohamed Al-Faisal Director of Dar Al Maal Al-Islami (DMI) SA Saudi Arabian
Omar Ali Director of Crescent International Limited Somalian
Pierre Besuchet Director of Dar Al Maal Al-Islami (DMI) SA Swiss
Lucien Rouillier Director of Dar Al Maal Al-Islami (DMI) SA Swiss
Moustapha Hosny Director of Dar Al Maal Al-Islami (DMI) SA Swiss
</TABLE>
EXHIBIT 7.5
WARRANT
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
OTHER APPLICABLE SECURITIES LAWS AND HAVE BEEN ISSUED IN RELIANCE UPON AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH
OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED, HYPOTHECATED OR OTHERWISE DISPOSED OF, EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT
TO A TRANSACTION WHICH IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH
REGISTRATION. THE HOLDER OF THIS CERTIFICATE IS THE BENEFICIARY OF CERTAIN
OBLIGATIONS OF THE COMPANY SET FORTH IN A STOCK PURCHASE AGREEMENT, DATED
AS OF JANUARY 30, 1999, BETWEEN INFOCURE CORPORATION AND CRESCENT
INTERNATIONAL LIMITED A COPY OF THE PORTION OF THE AFORESAID AGREEMENT
EVIDENCING SUCH OBLIGATIONS MAY BE OBTAINED FROM INFOCURE CORPORATION'S
EXECUTIVE OFFICES.
Warrant: W-3 January 30, 1999
Warrant to Purchase up to 20,000 Shares of Common Stock of INFOCURE
CORPORATION (hereinafter, an "Additional Warrant").
INFOCURE CORPORATION, a Delaware corporation (the "Company"), hereby
agrees that Crescent International Limited (the "Investor") or any other Warrant
Holder is entitled, on the terms and conditions set forth below, to purchase
from the Company at any time during the Exercise Period up to 20,000 fully paid
and nonassessable shares of Common Stock, par value $0.001 per share, of the
Company (the "Common Stock"), as the same may be adjusted from time to time
pursuant to Section 7 hereof, at the Exercise Price (hereinafter defined), as
the same may be adjusted pursuant to Section 7 hereof. The resale of the shares
of Common Stock or other securities issuable upon exercise or exchange of this
Additional Warrant is subject to the provisions of the Registration Rights
Agreement (as defined below).
Section 1. Definitions.
"Agreement" shall mean the Stock Purchase Agreement, dated the
date hereof, between the Company and the Investor.
"Capital Shares" shall mean the Common Stock and any shares of
any other class of common stock whether now or hereafter authorized, having the
right to participate in the distribution of earnings and assets of the Company.
"Date of Exercise" shall mean the date that the advance copy
of the Exercise Form is sent by facsimile to the Company, provided that the
original Additional Warrant and Exercise Form are received by the Company within
reasonable time thereafter. If the Warrant Holder has not sent advance notice by
facsimile, the Date of Exercise shall be the date the original Exercise Form is
received by the Company.
1
<PAGE>
"Exercise Period" shall mean the period beginning on the
Effective Date applicable to the Put Closing and continuing until the expiration
of the thirty-day period thereafter; provided that such period shall be extended
one day for each day after the applicable Effective Date, that the Registration
Statement covering (i) shares purchased by the Investor through the applicable
Put and (ii) the Additional Warrant Shares related to such Put and purchasable
by exercise of this Additional Warrant, is not effective during the period such
Registration Statement is required to be effective pursuant to the Registration
Rights Agreement.
"Exercise Price" as of the date hereof shall mean $0.001 per
share of Common Stock, subject to the adjustments provided for in Section 7 of
this Additional Warrant.
"Per Share Additional Warrant Value" shall mean the difference
resulting from subtracting the Exercise Price from the Sale Price of one share
of Common Stock on the Trading Day immediately preceding the Date of Exercise.
"Put Closing" shall mean the closing of the purchase and sale
of 80,000 shares of Common Stock for an Investment Amount equal to $2,000,000.00
held on January 30, 1999.
"Registration Rights Agreement" shall mean the registration
rights agreement, dated the date hereof between the Company and the Investor.
"Subscription Date" shall mean the date on which the Agreement
is executed and delivered by the parties hereto.
"Warrant Holder" shall mean the Investor or any assignee or
transferee of all or any portion of this Additional Warrant; and
other capitalized terms used but not defined herein shall have
their respective meanings set forth in the Agreement.
Section 2. Exercisability.
(a) Timing. If the Discounted Market Price on the
Effective Date applicable to the Put Closing is lower than the Subscription Date
Price with respect to such Put, this Additional Warrant shall become immediately
exercisable, subject to clause (c) below.
(b) Number of Shares. The number of shares of Common
Stock for which this Additional Warrant is exercisable (the "Additional Warrant
Shares") shall be determined by subtracting (x) the Investment Amount divided by
the Subscription Date Price from (y) the Investment Amount divided by the
Discounted Market Price on the Effective Date applicable to the Put Closing.
(c) Cash Payment in Lieu of Exercise. In the event
that the Investor gives notice of exercise of this Additional Warrant (in whole
or in part) in accordance with Section 3 hereof and the Sale Price on the
Effective Date applicable to the Put Closing is less than the Floor Price, then
the Company may, in lieu of issuance of shares of Common Stock pursuant to such
exercise, pay to the Investor the Cash-Out Price (as defined below) for any or
all of the shares of Common Stock purchasable by the Investor through the
exercise of this Additional Warrant. In the event that the Investor gives notice
of exercise of this Additional Warrant (in whole or in part) in accordance with
Section 3 hereof and the number of Additional Warrant Shares related to the Put
Closing to be purchased pursuant to such exercise exceeds the number of shares
registered pursuant to Section 1.1(a) of the Registration Rights Agreement (the
"Excess Shares"), then the Company may, in lieu of issuance of shares of Common
Stock pursuant to such exercise, pay to the Investor the Cash-Out Price (as
defined below) for any or all of the Excess Shares.
2
<PAGE>
(d) Notice of Cash Payment in Lieu of Exercise. In
the event that the Company elects to pay cash in lieu of exercise for any
Additional Warrant Shares or any Excess Shares in accordance with Section 2(c)
(the "Cash-Out Option"), the Company shall promptly give notice to the Investor
of such election which notice shall be given no later than one business day
following notice of the Investor's intention to exercise this Additional Warrant
and which notice shall set forth the number of shares of Common Stock for which
the Company elects the Cash-Out Option.
(e) Method of Cash-Out; Effect of Cash-Out. In the
event that the Company chooses the Cash-Out Option, then in lieu of delivering
stock certificates as provided in Section 5 hereof, the Company shall deliver by
wire transfer of immediately available funds to an account designated by the
Investor as soon as practicable after the exercise of this Additional Warrant
(in full or in part), and in any event within three (3) Trading Days thereafter,
the Cash-Out Price (as defined below) for any and all shares of Common Stock for
which the Company elects the Cash-Out Option.
"Cash-Out Price" shall mean the product of (x) the
Sale Price of one share of Common Stock on the Trading Day immediately preceding
the Date of Exercise multiplied by (y) the number of shares of Common Stock for
which the Company proposes to pay cash in lieu of exercise pursuant to Section
2(c).
Section 3. Exercise; Cashless Exercise.
(a) Method of Exercise. This Additional Warrant may
be exercised in whole or in part (but not as to a fractional share of Common
Stock), at any time and from time to time during the Exercise Period, by the
Warrant Holder by (i) surrender of this Additional Warrant, with the form of
exercise attached hereto as Exhibit A duly executed by the Warrant Holder (the
"Exercise Notice"), to the Company at the address set forth in Section 14
hereof, accompanied by payment of the Exercise Price multiplied by the number of
shares of Common Stock for which this Additional Warrant is being exercised (the
"Aggregate Exercise Price") or (ii) telecopying an executed and completed
Exercise Notice to the Company and delivering to the Company within three
business days thereafter the original Exercise Notice, this Additional Warrant
and the Aggregate Exercise Price. Each date on which an Exercise Notice is
received by the Company in accordance with clause (i) and each date on which the
Exercise Notice is telecopied to the Company in accordance with clause (ii)
above shall be deemed an "Exercise Date".
(b) Payment of Aggregate Exercise Price. Subject to
paragraph (c) below, payment of the Aggregate Exercise Price shall be made by
check or bank draft payable to the order of the Company or by wire transfer to
an account designated by the Company. If the amount of the payment received by
the Company is less than the Aggregate Exercise Price, the Warrant Holder will
be notified of the deficiency and shall make payment in that amount within five
(5) business days. In the event the payment exceeds the Aggregate Exercise
Price, the Company will refund the excess to the Warrant Holder within three (3)
business days of receipt.
3
<PAGE>
(c) Cashless Exercise. As an alternative to payment
of the Aggregate Exercise Price in accordance with paragraph (b) above, the
Warrant Holder may elect to effect a cashless exercise by so indicating on the
Exercise Notice and including a calculation of the number of shares of Common
Stock to be issued upon such exercise in accordance with the terms hereof (a
"Cashless Exercise"). In the event of a Cashless Exercise, the Warrant Holder
shall surrender this Additional Warrant for that number of shares of Common
Stock determined by (i) multiplying the number of Additional Warrant Shares for
which this Additional Warrant is being exercised by the Per Share Additional
Warrant Value and (ii) dividing the product by the Sale Price of one share of
the Common Stock on the Trading Day immediately preceding the Date of Exercise.
(d) Replacement Additional Warrant. In the event
that the Additional Warrant is not exercised in full, the number of Additional
Warrant Shares shall be reduced by the number of such Additional Warrant Shares
for which this Additional Warrant is exercised, and the Company, at its expense,
shall forthwith issue and deliver to or upon the order of the Warrant Holder a
new Additional Warrant of like tenor in the name of the Warrant Holder or as the
Warrant Holder may request, reflecting such adjusted number of Additional
Warrant Shares.
Section 4. Ten Percent Limitation. The Warrant Holder may not
exercise this Additional Warrant such that the number of Additional Warrant
Shares to be received pursuant to such exercise aggregated with all other shares
of Common Stock then owned by the Warrant Holder beneficially or deemed
beneficially owned by the Warrant Holder would result in the Warrant Holder
owning more than 9.9% of all of such Common Stock as would be outstanding on
such Closing Date, as determined in accordance with Section 16 of the Exchange
Act and the rules and regulations promulgated thereunder. As of any date prior
to the Date of Exercise, the aggregate number of shares of Common Stock into
which this Additional Warrant is exercisable, together with all other shares of
Common Stock then beneficially owned (as such term is defined in Rule 16a-1
under the Exchange Act) by such Warrant Holder and its affiliates, shall not
exceed 9.9% of the total outstanding shares of Common Stock as of such date.
Section 5. Delivery of Stock Certificates.
(a) Subject to the terms and conditions of this Additional
Warrant, as soon as practicable after the exercise of this Additional Warrant in
full or in part, and in any event within three (3) Trading Days thereafter, the
Company at its expense (including, without limitation, the payment by it of any
applicable issue taxes) will cause to be issued in the name of and delivered to
the Warrant Holder, or as the Warrant Holder may lawfully direct, a certificate
or certificates for the number of validly issued, fully paid and non-assessable
Additional Warrant Shares to which the Warrant Holder shall be entitled on such
exercise, together with any other stock or other securities or property
(including cash, where applicable) to which the Warrant Holder is entitled upon
such exercise in accordance with the provisions hereof; provided, however, that
any such delivery to a location outside of the United States shall be made
within five (5) Trading Days after the exercise of this Additional Warrant in
full or in part.
4
<PAGE>
(b) This Additional Warrant may not be exercised as to
fractional shares of Common Stock. In the event that the exercise of this
Additional Warrant, in full or in part, would result in the issuance of any
fractional share of Common Stock, then in such event the Warrant Holder shall
receive in cash an amount equal to the Sale Price of such fractional share
within three (3) Trading Days.
Section 6. Representations, Additional Warranties and
Covenants of the Company.
(a) The Company shall take all necessary action and
proceedings as may be required and permitted by applicable law, rule and
regulation for the legal and valid issuance of this Additional Warrant and the
Additional Warrant Shares to the Warrant Holder.
(b) At all times during the Exercise Period, the Company shall
take all steps reasonably necessary and within its control to insure that the
Common Stock remains listed or quoted on the Principal Market.
(c) The Additional Warrant Shares, when issued in accordance
with the terms hereof, will be duly authorized and, when paid for or issued in
accordance with the terms hereof, shall be validly issued, fully paid and
non-assessable.
(d) The Company has authorized and reserved for issuance to
the Warrant Holder the requisite number of shares of Common Stock to be issued
pursuant to this Additional Warrant. The Company shall at all times reserve and
keep available, solely for issuance and delivery as Additional Warrant Shares
hereunder, such shares of Common Stock as shall from time to time be issuable as
Additional Warrant Shares.
Section 7. Adjustment of the Exercise Price. The Exercise
Price shall be subject to adjustment from time to time upon the happening of
certain events as follows:
(a) Reclassification, Consolidation, Merger or Mandatory Share
Exchange. If the Company, at any time (a) between the Subscription Date and the
Effective Date applicable to the first Put or (b) between each subsequent
issuance of a Put Notice by the Company and the applicable Effective Date
therefor (i) reclassifies or changes its Outstanding Capital Shares or (ii)
consolidates, merges or effects a mandatory share exchange with or into another
corporation (other than a merger or mandatory share exchange with another
corporation in which the Company is a continuing corporation and that does not
result in any reclassification or change, or as a result of a subdivision or
combination of Outstanding Capital Shares issuable upon exercise of this
Additional Warrant), then in any such event the Company, or such successor or
purchasing corporation, as the case may be, shall, without payment of any
additional consideration therefore, amend this Additional Warrant or issue a new
warrant providing that the Warrant Holder shall have rights not less favorable
to the holder than those then applicable to this Additional Warrant and to
receive upon exercise under such amendment of this Additional Warrant or new
warrant, in lieu of each share of Common Stock theretofore issuable upon
exercise of this Additional Warrant hereunder, the kind and amount of shares of
stock, other securities, money or property receivable upon such
reclassification, change, consolidation, merger, mandatory share exchange, sale
or transfer by the holder of one share of Common Stock issuable upon exercise of
this Additional Warrant had this Additional Warrant been exercised immediately
prior to such reclassification, change, consolidation, merger, mandatory share
exchange or sale or transfer. Such amended warrant shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Section 7. The provisions of this subsection (a) shall
similarly apply to successive reclassifications, changes, consolidations,
mergers, mandatory share exchanges and sales and transfers.
5
<PAGE>
(b) Subdivision or Combination of Shares. If the Company, at
any time (a) between the Subscription Date and the Effective Date applicable to
the first Put or (b) between each subsequent issuance of a Put Notice by the
Company and the applicable Effective Date therefor, shall subdivide its Common
Stock, the number of shares of Common Stock issuable to the Investor hereunder
shall be proportionately increased as of the effective date of such subdivision,
or, if the Company shall take a record of holders of its Common Stock for the
purpose of so subdividing, as of such record date, whichever is earlier. If the
Company, at any time (a) between the Subscription Date and the Effective Date
applicable to the first Put or (b) between each subsequent issuance of a Put
Notice by the Company and the applicable Effective Date therefor, shall combine
its Common Stock, the number of shares of Common Stock issuable to the Investor
hereunder shall be proportionately decreased as of the effective date of such
combination, or, if the Company shall take a record of holders of its Common
Stock for the purpose of so combining, as of such record date, whichever is
earlier.
Section 8. No Impairment. The Company will not, by amendment
of its Articles of Incorporation or By-Laws 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 Additional 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 Warrant Holder against impairment. Without limiting the
generality of the foregoing, the Company (a) will not increase the par value of
any Additional Warrant Shares above the amount payable therefor on such
exercise, and (b) will take all such action as may be reasonably necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable Additional Warrant Shares on the exercise of this Additional
Warrant.
Section 9. Rights As Stockholder. Prior to exercise of this
Additional Warrant, the Warrant Holder shall not be entitled to any rights as a
stockholder of the Company with respect to the Additional Warrant Shares,
including (without limitation) the right to vote such shares, receive dividends
or other distributions thereon or be notified of stockholder meetings. However,
in the event of 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 (other than a cash dividend) or other
distribution, 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, the Company shall mail to each Warrant Holder, at least ten
(10) days prior to the date specified therein, a notice specifying the date on
which any such record is to be taken for the purpose of such dividend,
distribution or right, and the amount and character of such dividend,
distribution or right.
Section 10. Replacement of Additional Warrant. Upon receipt of
evidence reasonably satisfactory to the Company of the loss, theft, destruction
or mutilation of the Additional Warrant and, in the case of any such loss, theft
or destruction of the Additional Warrant, upon delivery of an indemnity
agreement or security reasonably satisfactory in form and amount to the Company
or, in the case of any such mutilation, on surrender and cancellation of such
Additional Warrant, the Company at its expense will execute and deliver, in lieu
thereof, a new Additional Warrant of like tenor.
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Section 11. Choice of Law. This Agreement shall be construed
under the laws of the State of Delaware, without giving effect to conflict of
law provisions.
Section 12. Entire Agreement; Amendments. This Additional
Warrant, the Incentive Warrant, the Registration Rights Agreement, and the
Agreement contain the entire understanding of the parties with respect to the
matters covered hereby and thereby. No provision of this Additional Warrant may
be waived or amended other than by a written instrument signed by the party
against whom enforcement of any such amendment or waiver is sought.
Section 13. Restricted Securities.
(a) Registration or Exemption Required. This Additional
Warrant has been issued in a transaction exempt from the registration
requirements of the Securities Act in reliance upon the provisions of Section
4(2) promulgated by the SEC under the Securities Act. This Additional Warrant
and the Additional Warrant Shares issuable upon exercise of this Additional
Warrant may not be resold except pursuant to an effective registration statement
or an exemption to the registration requirements of the Securities Act and
applicable state laws.
(b) Legend. Any replacement Additional Warrants issued
pursuant to Section 2 hereof and any Additional Warrant Shares issued upon
exercise hereof, shall bear the following legend:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY OTHER APPLICABLE SECURITIES
LAWS AND HAVE BEEN ISSUED IN RELIANCE UPON AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH
OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST
OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED, HYPOTHECATED OR OTHERWISE
DISPOSED OF, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO A
TRANSACTION WHICH IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH
REGISTRATION. THE HOLDER OF THIS CERTIFICATE IS THE
BENEFICIARY OF CERTAIN OBLIGATIONS OF THE COMPANY SET FORTH IN
A STOCK PURCHASE AGREEMENT, DATED AS OF SEPTEMBER 28, 1998,
BETWEEN INFOCURE CORPORATION AND CRESCENT INTERNATIONAL
LIMITED. A COPY OF THE PORTION OF THE AFORESAID AGREEMENT
EVIDENCING SUCH OBLIGATIONS MAY BE OBTAINED FROM THE COMPANY'S
EXECUTIVE OFFICES."
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Removal of such legend shall be in accordance with the legend removal provisions
in the Agreement.
(c) No Other Legend or Stock Transfer Restrictions. No legend
other than the one specified in Section 12(b) has been or shall be placed on the
share certificates representing the Additional Warrant Shares and no
instructions or "stop transfer orders," so called, "stock transfer restrictions"
or other restrictions have been or shall be given to the Company's transfer
agent with respect thereto other than as expressly set forth in this Section 12.
(d) Assignment. Assuming the conditions of Section 12(a) above
regarding registration or exemption have been satisfied, the Warrant Holder may
sell, transfer, assign, pledge or otherwise dispose of this Additional Warrant,
in whole or in part. The Warrant Holder shall deliver a written notice to
Company, substantially in the form of the Assignment attached hereto as Exhibit
B, indicating the person or persons to whom the Additional Warrant shall be
assigned and the respective number of warrants to be assigned to each assignee.
The Company shall effect the assignment within ten (10) days, and shall deliver
to the assignee(s) designated by the Warrant Holder a Additional Warrant or
Additional Warrants of like tenor and terms for the appropriate number of
shares.
(e) Investor's Compliance. Nothing in this Section 12 shall
affect in any way the Investor's obligations under any agreement to comply with
all applicable securities laws upon resale of the Common Stock.
Section 14. Notices. All notices, demands, requests, consents,
approvals, and other communications required or permitted hereunder shall be in
writing and shall be (i) personally served, (ii) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery, telegram or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or permitted to be
given hereunder shall be deemed effective (a) upon hand delivery or delivery by
facsimile (with accurate confirmation generated by the transmitting facsimile
machine) at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the second business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses for such
communications shall be:
if to the Company:
Infocure Corp.
1765 The Exchange
Suite 450
Atlanta, GA 30339
Attention: Mr. Richard Perlman, Chairman
Telephone: (770) 221-9990
Facsimile: (404) 636-7525
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with a copy (which shall not constitute notice) to:
Morris, Manning & Martin LLP
1600 Atlanta Financial Center
Atlanta, GA 30326
Attention: Oby Brewer, Esq.
Telephone: (404) 233-7000
Facsimile: (404) 365-9532
if to the Investor:
Crescent International Limited
c/o GreenLight (Switzerland) SA
84, av Louis-Casai, P.O. Box 42
1216 Geneva, Cointrin
Switzerland
Attention: Melvyn Craw/Maxi Brezzi
Telephone: +41 22 791 72 56
Facsimile: +41 22 929 53 94
with a copy (which shall not constitute notice) to:
Rogers & Wells LLP
200 Park Avenue
New York, NY 10166
Attention: Sara Hanks, Esq.
Telephone: (212) 878-8000
Facsimile: (212) 878-8375
Either party hereto may from time to time change its address or facsimile number
for notices under this Section 13 by giving at least ten (10) days' prior
written notice of such changed address or facsimile number to the other party
hereto.
Section 14. Miscellaneous. This Additional Warrant and any
term hereof may be changed, waived, discharged or terminated only by an
instrument in writing signed by the party against which enforcement of such
change, waiver, discharge or termination is sought. The headings in this
Additional Warrant are for purposes of reference only, and shall not limit or
otherwise affect any of the terms hereof. The invalidity or unenforceability of
any provision hereof shall in no way affect the validity or enforceability of
any other provision.
IN WITNESS WHEREOF, this Additional Warrant was duly executed
by the undersigned, thereunto duly authorized, as of the date first set forth
above.
INFOCURE CORPORATION
By: /s/ Richard E. Perlman
_____________________________
Name: Richard E. Perlman
Title: Chairman
Attested:
By: /s/ James K. Price
________________________
Name: James K. Price
Title: Secretary
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<PAGE>
EXHIBIT A TO THE ADDITIONAL WARRANT
EXERCISE FORM
INFOCURE CORP.
The undersigned hereby irrevocably exercises the right to purchase
__________________ shares of Common Stock of INFOCURE CORPORATION, a Delaware
corporation (the "Company"), evidenced by the attached Additional Warrant, and
herewith makes payment of the Exercise Price with respect to such shares in full
in the form of (check the appropriate box) (i) |_| cash or certified check in
the amount of $________; (ii) |_| wire transfer to the Company's account at
__________________, _________, _________ (Account No.:_________); or (iii) |_|
______ Additional Warrant Shares, which represent the amount of Additional
Warrant Shares as provided in the attached Additional Warrant to be canceled in
connection with such exercise, all in accordance with the conditions and
provisions of said Additional Warrant.
The undersigned requests that stock certificates for such Additional
Warrant Shares be issued, and a Additional Warrant representing any unexercised
portion hereof be issued, pursuant to this Additional Warrant in the name of the
registered Holder and delivered to the undersigned at the address set forth
below.
Dated:_______________________________________
- ---------------------------------------------
Signature of Registered Holder
Name of Registered Holder (Print)
- ---------------------------------------------
Address
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NOTICE
The signature to the foregoing Exercise Form must correspond to the
name as written upon the face of the attached Additional Warrant in every
particular, without alteration or enlargement or any change whatsoever.
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<PAGE>
EXHIBIT B TO THE ADDITIONAL WARRANT
ASSIGNMENT
(To be executed by the registered Warrant Holder desiring to transfer
the Additional Warrant) FOR VALUED RECEIVED, the undersigned Warrant
Holder of the attached Additional Warrant hereby sells,
assigns and transfers unto the persons below named the right to purchase
______________ shares of the Common Stock of INFOCURE CORPORATION evidenced by
the attached Additional Warrant and does hereby irrevocably constitute and
appoint ______________________ attorney to transfer the said Additional Warrant
on the books of the Company, with full power of substitution in the premises.
Dated:
- ------------------------------
Signature
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Fill in for new Registration of Additional Warrant:
- -----------------------------------------
Name
- -----------------------------------------
Address
- -----------------------------------------
Please print name and address of assignee
(including zip code number)
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<PAGE>
NOTICE
The signature to the foregoing Assignment must correspond to the name
as written upon the face of the attached Additional Warrant in every particular,
without alteration or enlargement or any change whatsoever.
14
