WARRANT
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR ANY STATE SECURITIES LAWS AND, UNLESS SO REGISTERED, MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE
STATE SECURITIES LAWS.
Warrant to purchase 104,712 shares of
the $0.001 par value common
stock of Simione Central Holdings, Inc.
(subject to adjustment)
WARRANT TO PURCHASE COMMON STOCK
OF
SIMIONE CENTRAL HOLDINGS, INC.
This certifies that, for value received, Mestek, Inc., or its
successors or assigns (the "Holder"), is entitled, subject to the terms set
forth below, to purchase from Simione Central Holdings, Inc. (the "Company") up
to 104,712 shares of the $0.001 par value common stock of the Company ("Common
Stock"), as the Company is constituted on the 12th day of July, 2000 (the
"Warrant Issue Date"), upon surrender of this certificate at 6600 Powers Ferry
Road, Atlanta Georgia, or such other place as the Company may designate in
writing to the Holder, and the simultaneous payment therefor in lawful money of
the United States of America of the Exercise Price (as hereinafter defined). The
number, character and Exercise Price of such shares are subject to adjustment as
provided herein. The term "Warrant" as used herein shall include this
certificate, the securities represented by this certificate and any warrants
delivered in substitution or exchange for this certificate as provided herein.
1. Term of Warrant. Subject to the terms and conditions set forth herein, this
Warrant shall be exercisable, in whole or in part, during the period of
time (the "Exercise Period") commencing on the Warrant Issue Date and
ending at 5:00 p.m. on the third anniversary of the Warrant Issue Date,
and shall be void thereafter.
2. Exercise Price. The price at which the Holder may exercise this Warrant
(the "Exercise Price") shall be $2.51 per share, which is the average
closing price of the Common Stock listed on NASDAQ for the five (5)
business days ended Friday, May 5, 2000, subject, however, to
adjustments as provided in Section 9 hereof.
3. Vesting of Warrant. Effective as of the Warrant Issue Date, the Warrant
shall be fully vested and exercisable, and the Holder shall have the
fully vested right to purchase 104,712 shares of Common Stock pursuant
to the terms and conditions of this Warrant.
4. Exercise of the Warrant. The purchase rights represented by this Warrant
are exercisable by the Holder, in whole or in part, at any time, and
from time to time during the Exercise Period, by the Holder's surrender
of this Warrant at 6600 Powers Ferry Road, Atlanta Georgia, or such
other place as the Company may designate in writing to the Holder, and
the simultaneous payment therefor in lawful money of the United States
of America of the Exercise Price in immediately available funds. This
Warrant shall be deemed exercised on the date immediately prior thereto,
and the Holder shall be entitled to receive the shares of Common Stock
and be treated for all purposes as the holder of record of such shares
as of the close of business on such date. As promptly as practicable,
but in no event later than 10 business days thereafter, the Company
shall issue and deliver, at its sole cost and expense, to the person or
persons entitled to receive the same a certificate or certificates for
the number of shares issuable upon such exercise. In the event that this
Warrant is exercised in part, the Company, at its sole cost and expense,
shall execute and deliver a new warrant of like tenor as this Warrant,
exercisable for the remaining number of shares for which this Warrant
may then be exercised, and shall cancel this Warrant only upon issuance
of such new warrant. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant, and
in lieu thereof, the Company shall make a cash payment to the Holder
equal to the Exercise Price multiplied by such fraction.
5. Rights as a Stockholder. The Holder shall not be entitled to vote,
receive dividends or be deemed to be the owner of record of the shares
of Common Stock to which this Warrant relates unless and until the
Holder exercises this Warrant, and then the Holder shall enjoy such
rights only to the extent of such exercise.
6. Transfer of Warrant.
(a) Warrant Register. The Company will maintain a register (the "Warrant
Register") maintaining the names and addresses of the Holder or Holders.
Any Holder of this Warrant or any portion thereof may change its address
as shown on the Warrant Register by written notice to the Company
requesting such change. Any notice or written communication required or
permitted to be given to the Holder may be delivered or given by mail to
such Holder as shown on the Warrant Register and at the address shown on
the Warrant Register. Until this Warrant is transferred on the Warrant
Register of the Company, the Company may treat the Holder as shown on
the Warrant Register as the absolute owner of this Warrant for all
purposes, notwithstanding any notice to the contrary.
(b) Warrant Agent. The Company may, by written notice to the Holder, appoint
an agent for the purpose of maintaining the Warrant Register referred to
in Section 6(a) above, issuing the Common Stock or other securities then
issuable upon the exercise of this Warrant, exchanging this Warrant,
replacing this Warrant, or any or all of the foregoing. Thereafter, any
such registration, issuance, exchange, or replacement, as the
case may be, shall be made at the office of such agent.
(c) Transferability of Warrant. This Warrant may not be transferred or
assigned (i) except in its entirety (other than transfers to
subsidiaries or affiliates of Mestek, Inc.) and (ii) without compliance
with all applicable federal and state securities laws by the transferor
and the transferee (including delivery of investment representation
letters reasonably satisfactory to the Company, if such are requested
by the Company), and then only against receipt of an agreement
of the transferee to comply with the provisions of this Section 6(c)
with respect to any resale or other disposition of this Warrant.
(d) Exchange of Warrant upon a Transfer. On surrender of this Warrant for
exchange, properly endorsed and subject to the provisions of this
Warrant with respect to compliance with the Act and with the limitations
on assignments and transfers contained in this Section 6, the Company at
its expense shall issue to or on the order of the Holder a new Warrant
or Warrants of like tenor, in the name of the Holder or as the Holder
(on payment by the Holder of any applicable transfer taxes) may direct,
for the number of shares issuable upon exercise hereof.
(e) Compliance with Securities Laws.
(i) The Holder of this Warrant, by acceptance hereof, acknowledges that this
Warrant and the shares of Common Stock to be issued upon exercise
hereof are being acquired solely for the Holder's own account and not
as a nominee for any other party, and for investment, and that the
Holder will not offer, sell or otherwise dispose of this Warrant or any
shares of the Common Stock to be issued upon exercise hereof except
under circumstances that will not result in a violation of the
Securities Act of 1933 or any state securities laws. Upon exercise of
this Warrant, the Holder shall, if requested by the Company, confirm in
writing, in a form satisfactory to the Company, that the shares of
Common Stock so purchased are being acquired solely for the Holder's own
account and not as a nominee for any other party, for investment, and
not with a view toward distribution or resale.
(ii) This Warrant and all shares of Common Stock issued upon exercise hereof
or conversion thereof shall be stamped or imprinted with a legend in
substantially
the following form (in addition to any legend
required by state securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND, UNLESS SO
REGISTERED, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.
7. Reservation of Stock. The Company covenants that during the Exercise Period,
the Company will reserve from its authorized and unissued shares of
treasury Common Stock a sufficient number of shares to provide for the
issuance of Common Stock upon the exercise of the Warrant and, from tim
to time, will take all steps necessary to amend its certificate of
incorporation (the "Certificate") to provide sufficient authorized
reserved shares of Common Stock issuable upon exercise of the Warrant.
The Company further covenants that all shares that may be issued upon
exercise of the rights represented by this Warrant and payment of the
Exercise Price, all as set forth herein, will be free from all taxes,
liens and charges in respect of the issue hereof (other than taxes in
respect of any transfer occurring contemporaneously or otherwise
specified herein). The Company agrees that its issuance of this Warrant
shall constitute full authority to its officers who are charged with the
duty of executing stock certificates to execute and issue the necessary
certificates for shares of Common Stock upon the exercise of this
Warrant.
8. Merger, Sale of Assets and other Fundamental Corporate Changes. If at
any time during the Exercise Period there shall be a sale of all or
substantially all of the Company assets, or a merger, consolidation or
reorganization of the Company in which the Company is not the surviving
entity, or other transaction in which the shares of the Company are
converted into shares of another entity, the Company shall provide the
Holder with written notice thereof not less than 30 calendar days prior
to the consummation of such event and an opportunity to exercise this
Warrant prior to the consummation of such event.
9. Adjustments to Exercise Price for Certain Diluting Issuances, Splits and
Combinations. The Exercise Price shall be subject to adjustment from
time to time as follows:
(a) Special Definitions. For purposes of this Section 9, the following
definitions apply:
(i) "Options" shall mean rights, options, or warrants to subscribe for,
purchase or otherwise acquire either Common Stock or Convertible
Securities (defined below).
(ii) "Convertible Securities" shall mean any evidences of indebtedness,
shares (other than Common Stock) or other securities convertible into or
exchangeable for Common Stock.
(iii) "Additional Stock" shall mean all shares of Common Stock issued by the
Company after the Warrant Issue Date, and all shares of Common Stock
issuable pursuant to Options and Convertible Securities issued by the
Company after the Warrant Issue Date, other than:
(A) up to 606,904 shares of Common Stock that may be issuable to former
preferred shareholders and noteholders of CareCentric Solutions, Inc.
("CareCentric") pursuant to the terms of that certain Agreement and Plan
of Merger dated as of July 12, 1999 by and among the Company, Simione
Acquisition Corporation and CareCentric; and
(B) shares of Common Stock for which adjustment of the Exercise Price is
made pursuant to Section 9(d) or 9(e) below.
(b) Adjustments. If the Company shall issue, after the Warrant Issue
Date, any Additional Stock without consideration or for a consideration
per share less than the Exercise Price in effect immediately prior to
the issuance of such Additional Stock, the Exercise Price in effect
immediately prior to each such issuance shall forthwith be adjusted down
ward to a price equal to the price paid per share for such
Additional Stock.
(c) Determination of Consideration. For purposes of this Section 9, the
consideration received by the Company for the issuance of any Additional
Stock shall be computed as follows:
(i) Cash and Property. Such consideration shall:
(A) insofar as it consists of cash, be computed at the aggregate amount of
cash received by the Company excluding amounts paid or payable for
accrued interest or accrued dividends;
(B) insofar as it consists of property other than cash, be computed at the
fair value thereof at the time of such issue, as determined in good
faith by the Company's Board of Directors; and
(C) in the event Additional Stock is 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 (A) and (B) above, as determined in good faith by
the Company's Board of Directors.
(ii) Options and Convertible Securities. The consideration per share
received by the Company for Additional Stock deemed to have been issued
pursuant to this Section 9 relating to Options and Convertible
Securities shall be determined by dividing:
(A) the total amount, if any, received or receivable by the Company as
consideration for the issuance 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 designed to protect against dilution)
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, upon the exercise of such Options
for Convertible Securities and the conversion or exchange of such
Convertible Securities, by
(B) the maximum number of shares of Common Stock
(as set forth in the instruments relating
thereto, without regard to any provision
contained therein designed to protect
against dilution) issuable upon the exercise
of such Options or conversion or exchange of
such Convertible Securities, or in the case
of Options for Convertible Securities, upon
the exercise of such Options for Convertible
Securities and the conversion or exchange of
such Convertible Securities.
(d) Adjustments to Exercise Price for Stock Dividends and for Combinations or
Subdivisions of Common Stock. In the event that the Company at any time
or from time to time after the Warrant Issue Date shall declare or pay
any dividend on the Common Stock payable in Common Stock or in any right
to acquire Common Stock for no consideration, or shall effect a
subdivision of the outstanding shares of Common Stock into a greater
number of shares of Common Stock (by stock split, reclassification or
otherwise), or in the event the outstanding shares of Common Stock shall
be combined or consolidated, by reclassification or otherwise, into a
lesser number of shares of Common Stock, then the Exercise Price in
effect immediately prior to such event shall, concurrently with the
effectiveness of such event, be proportionately decreased or increased,
as appropriate. In the event that the Company shall declare or pay any
dividend on the Common Stock payable in any right to acquire Common
Stock for no consideration, then the Company shall be deemed to have
made a dividend payable in Common Stock in an amount of shares equal to
the maximum number of shares issuable upon exercise of such rights to
acquire Common Stock.
(e) Adjustments for Reclassification and Reorganization. If the Common Stock
shall be changed into the same or a different number of shares of any
other class or classes of stock, whether by capital reorganization,
reclassification or otherwise (other than a subdivision or combination
of shares provided for in Section 9(d) above) the applicable Exercise
Price then in effect shall, concurrently with the effectiveness of such
reorganization or reclassification, be proportionately adjusted so that
the shares of Common Stock issued upon exercise hereof shall
be convertible into, in lieu of the number of shares of Common Stock
which the Holder would otherwise have been entitled to receive, a number
of shares of such other class or classes of stock equivalent to the
number of shares of Common Stock that would have been subject to
receipt by the Holder upon conversion of shares of the Common Stock
immediately before that change.
10. Registration Rights. The Company covenants and agrees that the Holder shall
have registration rights with respect to this Warrant as follows:
10.1 Definitions. For purposes of this Section 10:
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(a) The term "Form S-3" means such form under the Securities Act
of 1933, as amended ("Securities Act"), as in effect on the
date hereof or any registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or
incorporation of substantial information by reference to other
documents filed by the Company with the SEC.
(b) The term "Form S-4" means such form under the Securities Act
as in effect on the date hereof or any registration form under
the Securities Act subsequently adopted by the SEC for
corporate combinations and exchange offers which permits
inclusion or incorporation of substantial information by
reference to other documents filed by the Company with the
SEC.
(c) The term "Holder" means the Holder or any permitted transferee or assignee
thereof.
(d) The term "Person" means an individual, a corporation, a
limited liability company, a partnership, an association, a
trust or any other entity organization, including a
governmental entity.
(e) The terms "register," "registered," and "registration" refer
to a registration effected by preparing and filing a
registration statement or similar document in compliance with
the Securities Act, and the declaration or ordering of
effectiveness of such registration statement or document.
(f) The term "Registrable Shares" means (i) the Company's Common
Stock issuable or issued upon exercise of this Warrant, and
(ii) any Common Stock or other securities issued or issuable
in respect of shares referenced in (i) above, upon any stock
split, stock dividend, recapitalization, or similar event;
excluding in all cases, however, any Registrable Shares sold
by a Person in a transaction in which such Person's rights
under this Section 10 are not assigned.
(g) The term "SEC" means the Securities and Exchange Commission.
---
(h) The term "Subsidiary" means, with respect to any Person, any
corporation, limited liability company, or partnership of
which such Person owns, either directly or through its
subsidiaries or affiliates, more than fifty percent (50%) of
(i) the total combined voting power of all classes of voting
securities in the case of a corporation or (ii) the capital or
profit interests therein in the case of a partnership.
10.2 Request for Registration. Upon request of the Holder, the Company
will use its best efforts to file within 45 days of a request from the Holder a
registration statement with the SEC (utilizing Form S-3 or a successor form
thereto and Rule 415 to the extent available) to register Registrable Shares as
requested by the Holder. The Company shall not be required to file more than
three such registration statements (excluding any registration statement which
is delayed pursuant to Section 10.4(e) below and through which the Holder is
unable to register eighty percent (80%) or more of the amount of Registrable
Shares that the Holder originally requested to register in such registration
statement), and no such filing shall be made prior to the date which is six
months after the Warrant Issue Date.
10.3 Company Registration. If the Company at any time proposes to
register an offering of its securities under the Securities Act, either for its
own account or for the account of or at the request of one or more Persons
holding securities of the Company, the Company will:
(a) give written notice thereof to the Holder (which shall include
a list of the jurisdictions in which the Company intends to
attempt to qualify such securities under the applicable blue
sky or other state securities laws) within 10 days of its
receipt of a request from one or more Persons holding
securities of the Company to register securities, or from its
decision to effect a registration of securities for its own
account, whichever first occurs; and
(b) use its best efforts to include in such registration and in
any underwriting involved therein, all the Registrable Shares
specified in a written request by the Holder made within 30
days after receipt of such written notice from the Company,
except as set forth in Section 10.4(e) below and subject to
the currently existing piggyback rights referenced in Section
10.10.
10.4 Obligations of the Company. If and whenever pursuant to the
provisions of this Section 10 the Company effects registration of Registrable
Shares under the Securities Act and state securities laws, the Company shall:
(a) Prepare and file with the SEC a registration statement with
respect to such securities and use its best efforts to cause
such registration statement to become and remain effective for
a period not to exceed two years after the filing (but which
period shall be extended by the duration of any delay periods
under clause (e) below);
(b) Use its best efforts to register or qualify the securities
covered by such registration statement under the securities or
blue sky laws of such jurisdictions as the Holder shall
reasonably request, and do any and all other acts and things
which may be necessary or
advisable (in the reasonable opinion of the Holder) to enable
the Holder to consummate the
disposition thereof; provided, however, that in no event shall
the Company be obligated to
qualify to do business in any jurisdiction where it is not now
so qualified or to take any
action which would subject it to the service of process
in suits other than those arising out
of the offer or sale of the securities covered by such
registration statement in any
jurisdictions where it is not now so subject;
(c) As promptly as practicable prepare and file with the SEC such
amendments and supplements to any registration statement and
prospectus used pursuant to or in connection with this
Agreement as may be necessary to keep such registration
statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all
securities covered by such registration statement until such
time as all of such securities have been disposed of in
accordance with the intended methods of disposition by the
seller or sellers thereof set forth in such registration
statement or for such shorter period as may be required
herein; and
(d) Furnish to the Holder such number of conformed copies of its
registration statement and of each such amendment and
supplement thereto (in each case including all exhibits, such
number of copies of the prospectus comprised in such
registration statement (including each preliminary prospectus
and any summary prospectus), in conformity with the
requirements of the Securities Act), and such other related
documents as the Holder may reasonably request in order to
facilitate the disposition of the Registrable Shares to be
registered.
(e) Anything in this Agreement to the contrary notwithstanding:
(i) The Company may defer the filing ("Filing") of any registration
statement or suspend the use of a prospectus under a currently
effective registration statement under this Agreement at
its discretion for "Good Cause." "Good Cause" means either if (1) the
Company is engaged in active negotiations with respect to the
acquisition of a "significant subsidiary" as defined in Regulation S-X
promulgated by the SEC under the Securities Exchange Act of 1934, as
amended ("Exchange Act") and the Securities Act which would in the
opinion of counsel for the Company be required to be disclosed in the
Filing; or (2) in the opinion of counsel for the Company, the Filing
would require the inclusion therein of certified financial statements
other than those in respect of the Company's most recently ended full
fiscal year and any preceding full fiscal year, and the Company may
then, at its option, delay the imposition of its registration
obligations hereof until the earlier of (A) the conclusion or
termination of such negotiations, or the date of availability of such
certified financial statements, whichever is applicable, or (B) 60 days
from the date of the registration request.
(ii) In the event the Company has deferred a requested Filing, pursuant to
the preceding paragraph, such deferral period shall end if the Company
registers shares for resale by another
stockholder of the Company. In the event the Company undertakes an
underwritten public offering to issue the Company securities for cash
during any period in which a requested Filing has been deferred or if
the registration of which the Company gives notice under Section 10.3(a)
is for an underwritten public offering to issue the Company securities
for cash, the Company shall include the Registrable Shares in such
underwritten offering subject to (A) the right of the managing
underwriters to object to including such shares, (B) Section 10.10, and
(C) the condition that the Holder selling Registrable Shares in such
underwritten offering shall cooperate in the registration process in all
material respects, including execution by the Holder of the
underwriting agreement agreed to by the Company and the underwriters.
(iii) If the managing underwriter elects to limit the number or amount of
securities to be included in any registration referenced in the
preceding paragraph or in Section 10.3(a), all Persons holding
securities of the Company (including the Holder) who hold registration
rights and who have requested registration (collectively, the
"Security Holders") shall, subject to Section 10.10 hereof,
participate in the underwritten public offering pro rata based upon
the ratio of the total number or amount of securities to be offered in
the offering to the total number or amount of securities held by each
Security Holder (including the number or amount of securities which
each such Security Holder may then be entitled to receive upon the
exercise of any option or warrant, or the exchange or conversion of any
security or loan, held by such Security Holder). If any such
Security Holder would thus be entitled to include more securities than
such Security Holder requested to be registered, the excess shall
be allocated among the other Security Holders pro rata in a manner
similar to that described in the previous sentence.
(iv) The Company may amend any registration statement to
withdraw registration of the Holder's Registrable
Shares if the Holder fails or refuses to cooperate in
full and in a timely manner with all reasonable
requests relating to such registration and the public
offering generally made by the Company, the
underwriters (if any), their respective counsel and
the Company's auditors.
10.5 Expenses. Without regard to whether the registration statement
relating to the proposed sale of the Registrable Shares is made effective or the
proposed sale of such shares is carried out, the Company shall pay the fees and
expenses in connection with any such registration including, without limitation,
legal, accounting and printing fees and expenses in connection with such
registration statements, the registration filing and examination fees paid under
the Securities Act and state securities laws and the filing fees paid to the
National Association of Securities Dealers, Inc. Notwithstanding the foregoing,
the Holder shall be responsible for the payment of underwriting discounts and
commissions, if any, and applicable transfer taxes relating to the Registrable
Shares sold by the Holder and for the fees and charges of any attorneys or other
advisers retained by the Holder.
10.6 Indemnification. In the event any Registrable Shares are
included in a registration statement under this Section 10:
(a) To the extent permitted by law, with respect to each registration,
qualification, or compliance that has been effected pursuant to this
Warrant, the Company will indemnify and hold harmless
the Holder, his legal counsel and accountants each a "Representative"),
and any underwriter (as defined in the Securities Act) for the
Holder and any controlling Person of such
underwriter against any losses, claims, damages, or liabilities
(joint or several) to which
they may become subject under the Securities Act, the Exchange Act.
or other federal or state
law, insofar as such expenses, losses, claims, damages, or
liabilities (or actions in respect
thereof) arise out of or are based upon any of the following
statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement or
alleged untrue statement of a material fact contained in such
registration statement, including any preliminary
prospectus or final prospectus contained therein, offering circular
or other document or any
amendments or supplements thereto, (ii) the omission or alleged
omission to state therein a
material fact required or allegedly required to be stated therein,
or necessary to make the
statements therein not misleading, or (iii) any violation or alleged
violation by the Company
of the Securities Act, the Exchange Act, any other federal or state
securities law or any rule
or regulation promulgated under the Securities Act, the Exchange
Act or any other federal or
state securities law; and the Company will pay the Holder, the
Holder's Representative,
underwriter and any controlling Person of such underwriter or
controlling Person any legal or
other expenses reasonably incurred by such Person in connection with
investigating or defending
any such loss, claim, damage, liability, or action; provided, however,
that the indemnity
agreement contained in this subsection shall not apply to amounts paid
in settlement of any
such loss, claim, damage, liability, or action if such settlement is
effected without the
consent of the Company (which consent shall not be unreasonably
withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage,
liability, or action to
the extent that it arises out of or is based upon a Violation that
occurs in reliance upon and
in conformity with written information furnished expressly for use in
connection with such registration by the Holder.
(b) To the extent permitted by law, the Holder will indemnify and hold
harmless the Company, each
of the Company's directors, each of the Company's officers who has
signed the registration
statement, each Person, if any, who controls the Company within the
meaning of the Securities
Act, any underwriter, any other Security Holder selling securities in
such registration
statement and any controlling Person of any such underwriter or other
Security Holder, against
any losses, claims, damages, or liabilities (joint or several) to
which any of the foregoing
Persons may become subject, under the Securities Act, the Exchange Act
or other federal or
state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect
thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to
the extent) that such Violation occurs in reliance upon and in
conformity with written
information furnished by the Holder expressly for use in connection with
such registration; and
the Holder will pay any legal or other expenses reasonably incurred by
any Person intended to
be indemnified pursuant to this subsection, in connection with
investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that
the indemnity agreement
contained in this subsection shall not apply to amounts paid in
settlement of any such loss,
claim, damage, liability or action if such settlement is effected
without the consent of the
Holder, which consent shall not be unreasonably withheld; provided,
that, in no event shall any
indemnity under this subsection exceed the net proceeds after
unreimbursed expenses and
commissions from the offering received by the Holder.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement
of any action (including any governmental action), such indemnified
party will, if a claim in
respect thereof is to be made against any indemnifying party under this
Section, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party
shall have the right to participate in, and, to the extent the
indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume
the defense of such
action, with counsel mutually satisfactory to the parties; provided,
however, that an
indemnified party (together with all other indemnified parties that may
be represented without
conflict by one counsel) shall have the right to retain one separate
counsel, with the fees and
expenses to be paid by the indemnifying party, if representation of
such indemnified party by
the counsel retained by the indemnifying party would be inappropriate
due to actual or
potential differing interests between such indemnified party and any
other party represented by
such counsel in such proceeding. The failure to deliver written notice
to the indemnifying
party within a reasonable time of the commencement of any such action,
if prejudicial to its
ability to defend such action, shall relieve such indemnifying party of
its liability to the
indemnified party under this Section 10.6 only to the extent that the
indemnifying party has
been injured by the delay. The omission so to deliver written notice to
the indemnifying party
will not relieve it of any liability that it may have to any indemnified
party otherwise than
under this Section.
(d) If the indemnification provided for in this Section is held by a court
of competent
jurisdiction to be unavailable to an indemnified party with respect to
any loss, liability,
claim, damage, or expense referred to therein, then the indemnifying
party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the
amount paid or payable
by such indemnified party as a result of such loss, liability, claim,
damage, or expense in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party on
the one hand and of the indemnified party on the other in connection
with the statements or
omissions that resulted in such loss, liability, claim, damage, or
expense as well as any other
relevant equitable considerations. The relative fault of the
indemnifying party and of the
indemnified party shall be determined by reference to, among other
things, whether the untrue
or alleged untrue statement of a material fact or the omission to state
a material fact relates
to information supplied by the indemnifying party or by the indemnified
party and the parties'
relative intent, knowledge, access to information, and opportunity to
correct or prevent such
statement or omission.
(e) No indemnifying party, in defense of any such claim or
litigation, shall, except with the consent of each indemnified
party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such
indemnifying party of a release from all liability in respect
to such claim or litigation.
(f) To the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered
into in connection with any underwritten public offering are
in conflict with the foregoing provisions, the provisions in
this Warrant shall control.
(g) The obligations of the Company and the Holder under this
Section 10.6 shall survive the completion of any offering of
Registrable Shares in a registration statement under this
Section 10.6, and otherwise.
10.7 Information by the Holder. The Holder shall furnish to the Company
such information regarding the Holder and the distribution proposed by him as
the Company may reasonably request in writing and as shall reasonably be
required in connection with any registration or qualification referred to in
this Section 10.
10.8 SEC Rule 144 Reporting and Reports Under Securities Act and
Exchange Act. With a view to making available to the Holder the benefits of SEC
Rule 144 promulgated under the Securities Act and any other rule or regulation
of the SEC that may at any time permit the Holder to sell securities of the
Company to the public without registration or pursuant to a registration on Form
S-3 or its successor, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144, at all times from and
after ninety (90) days following the effective date of the
first registration statement filed by the Company for the
offering of its securities to the general public;
(b) take such action, including the voluntary registration of its
Common Stock under Section 12 of the Exchange Act, as is
necessary to enable the Holder to utilize Form S-3 or its
successor for the sale of his Registrable Shares, such action
to be taken as soon as practicable after the end of the fiscal
year in which the first registration statement filed by the
Company for the offering of its securities to the general
public is declared effective;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and
the Exchange Act after it has become subject to such reporting
requirements; and
(d) furnish to the Holder, so long as the Holder owns any Registrable
Shares, forthwith upon
request (i) a written statement by the Company that it has complied with
the reporting
requirements of SEC Rule 144 (at any time from and after ninety (90)
days following the
effective date of the first registration statement filed by the Company
for an offering of the
securities to the general public), the Securities Act and the Exchange
Act (at any time after
it has become subject to such reporting requirements), or that it
qualifies as a registrant
whose securities may be resold pursuant to Form S-3 or its successor
(at any time after it so
qualifies), (ii) a copy of the most recent annual or quarterly report
of the Company and such
other reports and documents so filed by the Company (at any time after
it has become subject to
such reporting requirements), and (iii) such other information as may
be reasonably requested
in availing the Holder of any rule or regulation of the SEC which
permits the selling of any
such securities without registration or pursuant to such Form S-3 or
its successor.
10.9 Transfer or Assignment of Registration Rights. The rights to cause
the Company to register Registrable Shares pursuant to this Section 10 may be
transferred or assigned (but only with all related obligations) by the Holder to
a transferee or assignee of such securities, provided: (a) such assignment shall
be effective only if immediately following such transfer the further disposition
of such securities by the transferee or assignee is restricted under the
Securities Act; and (b) such assignment shall only be effective if it complies
with all applicable federal and state securities laws. For the purposes of
determining the number of shares of Registrable Securities held by a transferee
or assignee, the holdings of transferees and assignees of a partnership who are
partners or retired partners of such partnership (including spouses and
ancestors, lineal descendants and siblings of such partners or spouses who
acquire Registrable Shares by gift, will or intestate succession) shall be
aggregated together and with the partnership.
10.10 Priority and Limitation on Subsequent Registration Rights.
---------------------------------------------------------
(a) The parties hereto acknowledge that the rights to
registration contained herein shall be
subject to (i) the registration rights contained in Section
2(k) of those certain Registration
Rights Agreements ("Registration Rights Agreements") dated
October 6, 1996 by and among InfoMed
Holdings, Inc. (as predecessor in interest to the Company)
and certain shareholders of the
Company named therein, the registration rights granted
pursuant to that certain Second Amended
and Restated Agreement and Plan of Merger and Investment
Agreement dated as of October 25, 1999
among MCS, Inc., Mestek, Inc., the Company, John E. Reed
("Reed"), Stewart B. Reed and E.
Herbert Burk (the "MCS Merger Agreement"), and (iii) the
registration rights granted pursuant
---------------------
to that certain Agreement and Plan of Merger dated as o
July 12, 1999 among CareCentric
Solutions, Inc., Simione Acquisition Corporation and the
Company (the "CareCentric Merger
Agreement"); provided that the registration rights set
forth in the Registration Rights
---------
Agreements, the MCS Merger Agreement and the CareCentric
Merger Agreement shall only have
priority over the registration rights granted pursuant to
this Warrant to the extent required
in such agreements and to the extent that any such prior
rights have not been waived or amended.
(b) Subject to Section 10.10(d), the Company will not grant +
any right of registration under the
Securities Act relating to any of its equity securities
to any person or entity other than
pursuant to this Warrant unless the Holder shall be
entitled to have included in such
registration all Registrable Shares requested by the
Holder to be so included prior to the
inclusion of any securities requested to be registered
by the persons or entities entitled to
any such other registration rights, other than securities
subject to the Registration Rights
Agreements, the MCS Merger Agreement, and the CareCentric
Merger Agreement, which shall have
priority (but only to the extent that such prior rights have
not been waived or amended).
(c) Subject to Section 10.10(d), for so long as the Holder owns
securities representing 20% or more of the voting power of the
Company on a fully diluted basis, and except as expressly set
forth in this Section 10.10, no other Person shall be entitled
to "piggyback" or participate in any of the demand
registrations that the Holder initiates pursuant to Section
10.2 without such Holder's prior written consent.
(d) The parties agree that the rights to registration contained
herein shall be pari passu with the rights to registration
granted in (i) that certain Secured Convertible Credit
Facility and Security Agreement between the Company and Reed,
dated June 12, 2000; (ii) that certain Series D Convertible
Preferred Stock Purchase Agreement between the Company and
Reed, dated June 12, 2000 and (iii) that certain Warrant,
dated June 12, 2000, granted to the Holder in lieu of certain
voting rights previously held by the Holder.
10.11 Suspension of Registration Rights. The right of the Holder to
request registration of shares as provided in this Section 10 shall be suspended
during any period of time that all of the Registrable Shares held and entitled
to be held (as a result of conversion of Series D Preferred Stock held) by the
Holder may immediately be sold under SEC Rule 144.
11. Miscellaneous.
-------------
(a) Successors. All the covenants and provisions hereof by or for the
benefit of the Company or the Holder
----------
shall bind and inure to the benefit of their respective
successors and assigns.
(b) Governing Law. This Warrant shall be deemed to be a contract
made under the laws of the State of Delaware (notwithstanding
any principles of conflicts of laws) and for all purposes
shall be construed in accordance with the laws of said State.
(c) Attorneys Fees in the Event of a Dispute. In the event of any
action at law, suit in equity or arbitration proceeding in
relation to this Warrant or any common stock issued or to be
issued hereunder, the prevailing party or parties shall be
paid by the other party or parties a reasonable sum for
attorneys, fees and expenses of such prevailing party or
parties.
(d) Saturdays, Sundays, Holidays. If the last or appointed day for
the taking of any action or the expiration of any right
required or granted herein shall be a Saturday or a Sunday or
shall be a legal holiday in the State of Delaware, then such
action may be taken or such right may be exercised on the next
succeeding day not a legal holiday.
(e) Amendment. This Warrant and any term hereof may not be
changed, waived, discharged or amended except by an instrument
in writing signed by the party against whom enforcement of
such change, waiver, discharge or amendment is sought.
(f) Multiple Counterparts. This Warrant may be executed in multiple
counterparts, each of which shall for
all purposes be deemed to be an original and all of which shall
constitute the same instrument.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its duly authorized officer.
Dated July 12, 2000
Simione Central Holdings, Inc.
By: /S/ R. Bruce Dewey_____
Title: President___________
HOLDER:
Mestek, Inc.
By: /S/ John E. Reed______
Title: President__________
