<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
November 6, 1996
Date of Report
(Date of earliest event reported)
OCCUPATIONAL HEALTH + REHABILITATION INC
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation)
02-21428 13-3464527
(Commission File Number) (IRS Employer Identification No.)
175 Derby Street, Suite 36
Hingham, Massachusetts 02043-5048
(Address of principal executive offices) (Zip Code)
(617) 741-5175
(Registrant's telephone number, including area code)
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Item 5. Other Events.
On November 6, 1996, Occupational Health + Rehabilitation Inc (the
"Company") sold 1,416,667 shares of Series A Convertible Preferred Stock, $.001
par value per share ("Series A Preferred Stock") in a private placement at a
purchase price of $6.00 per share. Subject to certain conditions, the Company
may require the purchasers to purchase up to an additional 250,000 shares of
Series A Preferred Stock prior to May 1997. Each share of Series A Preferred
Stock is convertible, at the option of the holder, into one share of the
Company's common stock, $.001 par value per share ("Common Stock") (subject to
adjustment upon the occurrence of certain specified events). The holders of the
Series A Preferred Stock are entitled to vote as a single class with the holders
of the Common Stock and each share of Series A Preferred Stock is entitled to
the number of votes that is equal to the number of shares of Common Stock into
which each share of Preferred Stock is convertible at the time of such vote. The
holders of Series A Preferred Stock are entitled to certain registration rights
with respect to the Common Stock into which the Series A Preferred Stock is
convertible. Dividends will be payable on the shares of Series A Preferred Stock
when and if declared by the Board of Directors of the Company after three years
from the date of issuance and will thereafter accrue at an annual cumulative
rate of $0.48 per share, subject to certain adjustments. The Company intends to
use the proceeds from the sale of the Series A Preferred Stock for its expansion
efforts and for working capital.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
4.1 Certificate of Designations of Series A Convertible Preferred
Stock of the registrant filed with the Delaware Secretary of
State on November 6, 1996, filed herewith.
4.2 Form of Series A Convertible Preferred Stock Certificate,
filed herewith.
99.1 Press Release, filed herewith.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: November 20, 1996 OCCUPATIONAL HEALTH +
REHABILITATION INC
/s/ John C. Garbarino
----------------------------------------
John C. Garbarino
President and Chief Executive
Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Exhibit No. Description Numbered Page
- ----------- ----------- -------------
<S> <C> <C>
4.1 Certificate of Designations of Series A Convertible
Preferred Stock of the registrant filed with the Delaware
Secretary of State on November 6, 1996.
4.2 Form of Series A Convertible Preferred Stock Certificate.
99.1 Press Release.
</TABLE>
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EXHIBIT 4.1
CERTIFICATE OF DESIGNATIONS
OF
OCCUPATIONAL HEALTH + REHABILITATION INC
SERIES A CONVERTIBLE PREFERRED STOCK
OCCUPATIONAL HEALTH + REHABILITATION INC, a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
That pursuant to the authority conferred upon its Board of Directors by
Article FOURTH Section C of its Restated Certificate of Incorporation and the
provisions of Section 151 of the General Corporation Law of the State of
Delaware, the Board of Directors, by the unanimous written consent of its
members, filed with the minutes thereof, adopted a resolution setting forth the
designations, preferences, qualifications, privileges, limitations, conversions
rights and other rights of a series of its Preferred Stock consisting of
1,666,667 shares, which resolution is as follows:
"RESOLVED, that pursuant to the authority vested in the Board of Directors
of Occupational Health + Rehabilitation Inc (the "Corporation") by Article
FOURTH Section C of its Restated Certificate of Incorporation, the Board of
Directors hereby approves, authorizes and establishes a series of Preferred
Stock, par value $.001 per share, such series to be designated "Series A
Convertible Preferred Stock" and to consist of 1,666,667 shares. Each share of
Series A Convertible Preferred Stock shall have the following preferences,
qualifications, privileges, limitations, conversions rights and other rights:
1. Designation and Number of Shares. This first series of Preferred Stock
shall be designated as "Series A Convertible Preferred Stock" and shall be
referred to herein as "Series A Preferred Stock." The number of authorized
shares constituting such series shall be 1,666,667 shares.
2. Voting.
2A. General. Except as may be otherwise provided in these terms of
the Series A Preferred Stock or by law, the Series A Preferred Stock shall vote
together with all other classes and series of stock of the Corporation as a
single class on all actions to be taken by the stockholders of the Corporation.
Each share of Series A Preferred Stock shall entitle the holder thereof to such
number of votes per share on each such action as shall equal the number of
shares of Common Stock (including fractions of a share) into which each share of
Preferred Stock is then convertible.
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2B. Board Size. Subject to the provisions of paragraph 2C below,
the Corporation shall not, without the written consent or affirmative vote of
the holders of at least a majority in interest of the then outstanding shares of
Series A Preferred Stock, given in writing or by vote at a meeting, consenting
or voting (as the case may be) separately as a series, increase the maximum
number of directors constituting the Board of Directors to a number in excess of
seven.
2C. Board Seats. The holders of the Series A Preferred Stock,
voting as a separate series, shall be entitled to elect two (2) directors of the
Corporation. At any meeting (or in a written consent in lieu thereof) held for
the purpose of electing directors, the presence in person or by proxy (or the
written consent) of the holders of at least a majority in interest of the then
outstanding shares of Series A Preferred Stock shall constitute a quorum of the
Series A Preferred Stock for the election of directors to be elected solely by
the holders of the Series A Preferred Stock. A vacancy in any directorship
elected by the holders of the Series A Preferred Stock shall be filled only by
vote or written consent of the holders of the Series A Preferred Stock. The
directors to be elected by the holders of the Series A Preferred Stock, voting
separately as one class, pursuant to this paragraph 2C, shall serve for terms
extending from the date of their election and qualification until and until
their successors have been elected and qualified.
3. Dividends
3A. Dividends. The consent of holders of the members of the Board
of Directors nominated solely by the holders of Series A Preferred Stock shall
be required, before any dividends (other than dividends payable in Common Stock)
shall be declared and paid upon or set aside for the Common Stock of the
Corporation in any year.
3B. Accruing Dividends. From and after November 5, 1999, the
holders of the Series A Preferred Stock shall be entitled to receive, out of
funds legally available therefor, when and if declared by the Board of
Directors, dividends at the rate per annum of $0.48 per share (appropriately
adjusted to reflect the occurrence of any event described in paragraph 6F) (the
"Accruing Dividends"). Accruing Dividends shall accrue from day to day, whether
or not earned or declared, shall be cumulative and shall be paid in cash in
arrears every six months; provided however, that in the event that a mandatory
conversion pursuant to paragraph 6O(b) occurs before May 5, 2000, the Accruing
Dividends will lapse and will not be payable.
4. Liquidation, Dissolution and Winding-up.
4A. Liquidation. Upon any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, the holders of the shares
of Series A Preferred Stock shall be paid an amount equal to the greater of (i)
$6.00 per share plus, in the case of each share, an amount equal to dividends
(including Accruing Dividends) accrued or declared but unpaid thereon, computed
to the date payment thereof is made available, or (ii) such amount per share as
would have been payable had each such share been converted to Common Stock
pursuant to paragraph 6 immediately prior to such liquidation, dissolution or
winding up
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before any payment shall be made to the holders of any stock ranking on
liquidation junior to the Series A Preferred Stock, such amount payable with
respect to one share of Series A Preferred Stock being sometimes referred to as
the "Series A Liquidation Preference Payment" and with respect to all shares of
Preferred Stock being sometimes referred to as the "Series A Liquidation
Preference Payments." After payment of the Series A Liquidation Preference
Payments, the holders of Series A Convertible Stock shall not be entitled to any
further payment upon liquidation, dissolution or winding up. If upon any
liquidation, dissolution, or winding up of the Corporation, the assets to be
distributed to the holders of the Series A Preferred Stock shall be insufficient
to permit payment to such stockholders of the full preferential amounts
aforesaid, then all of the assets of the Corporation available for distribution
shall be distributed to such holders of the Series A Preferred Stock pro rata,
so that each holder receives that portion of the assets available for
distribution as the number of shares of Series A Preferred Stock held by such
holder bears to the total number of shares of Series A Preferred Stock then
outstanding.
4B. Upon any liquidation, dissolution or winding up of the
Corporation, immediately after the holders of Series A Preferred Stock shall
have been paid in full the Series A Liquidation Preference Payments, the
remaining net assets of the Corporation available for distribution shall be
distributed among the holders of the shares of stock ranking on liquidation
junior to the Series A Preferred Stock. Written notice of such liquidation,
dissolution or winding up, stating a payment date and the place where said
payments shall be made, shall be given by mail, postage prepaid, or by telex to
non-U.S. residents, not less than 20 days prior to the payment date stated
therein, to the holders of record of Series A Preferred Stock, such notice to be
addressed to each such holder at its address as shown by the records of the
Corporation. The (x) consolidation or merger of the Corporation into or with any
other entity or entities which results in the exchange of outstanding shares of
the Corporation for securities or other consideration issued or paid or caused
to be issued or paid by any such entity or affiliate thereof (except a
consolidation or merger into a subsidiary or merger in which the holders of the
Corporation's voting stock outstanding immediately prior to the transaction
constitute a majority of the holders of voting stock outstanding immediately
following the transaction), (y) sale, lease, abandonment, transfer or other
disposition by the Corporation of all or substantially all its assets, or (z)
sale or transfer by the Corporation's stockholders of more than 50% in voting
power of the Corporation's capital stock shall be deemed to be a liquidation,
dissolution or winding up of the Corporation within the meaning of the
provisions of this paragraph 4. Whenever the distribution provided for in this
paragraph 4 shall be payable in property other than cash, the value of such
distribution shall be the fair market value of such property as determined in
good faith by the Board of Directors of the Corporation.
5. Restrictions. At any time when shares of Series A Preferred Stock are
outstanding, except where the vote or written consent of the holders of a
greater number of shares of the Corporation is required by law or by the
Restated Certificate of Incorporation, and in addition to any other vote
required by law or the Restated Certificate of Incorporation, without the
approval of the holders of at least a majority in interest of the then
outstanding shares of Series A Preferred Stock given in writing or by vote at a
meeting, consenting or voting (as the
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case may be) separately as a series, the Corporation will not:
(1) Merge or consolidate with or into, or permit any
subsidiary to merge or consolidate with or into, any other corporation,
corporations, entity or entities (except a consolidation or merger with or
into a subsidiary or merger in which the holders of the Corporation's
voting stock outstanding immediately prior to the transaction constitute a
majority of the holders of voting stock outstanding immediately following
the transaction);
(2) Sell, abandon, transfer, lease or otherwise dispose of
all or substantially all of its properties or assets or consent to the
liquidation, dissolution or winding up of the Corporation;
(3) Create or authorize the creation of any additional
class or series of shares of stock unless the same ranks junior to the
Series A Preferred Stock as to dividends and the distribution of assets on
the liquidation, dissolution or winding up of the Corporation, or increase
the authorized amount of Series A Preferred Stock or increase the
authorized amount of any additional class or series of shares of stock
unless the same ranks junior to the Series A Preferred Stock as to
dividends and the distribution of assets on the liquidation, dissolution
or winding up of the Corporation, or create or authorize any obligation or
security convertible into shares of Series A Preferred Stock or into
shares of any other class or series of stock unless the same ranks junior
to the Series A Preferred Stock as to dividends and the distribution of
assets on the liquidation, dissolution or winding up of the Corporation,
whether any such creation, authorization or increase shall be by means of
amendment to the Restated Certificate of Incorporation or by merger,
consolidation or otherwise;
(4) In any manner amend, alter or change the designations
or the powers, preferences or rights, privileges or the restrictions of
the Series A Preferred Stock adversely; or
(5) Issue or sell or obligate itself to issue or sell any
equity securities of the Corporation which, in the aggregate, exceed
750,000 shares (on a common stock-equivalent basis and appropriately
adjusted to reflect any subdivision or combination of Common Stock).
6. Conversions. The holders of shares of Series A Preferred Stock shall
have the following conversion rights:
6A. Right to Convert. Subject to the terms and conditions of this
paragraph 6, the holder of any share or shares of Series A Preferred Stock shall
have the right, at its option at any time, to convert any such shares of Series
A Preferred Stock (except that upon any liquidation of the Corporation the right
of conversion shall terminate at the close of business on the business day fixed
for payment of the amounts distributable on the Series A Preferred Stock) into
such number of fully paid and nonassessable shares of Common Stock as is
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obtained by (i) multiplying the number of shares of Series A Preferred Stock so
to be converted by $6.00 and (ii) dividing the result by the conversion price of
$6.00 per share or in case an adjustment of such price has taken place pursuant
to the further provisions of this paragraph 6, then by the conversion price as
last adjusted and in effect at the date any share or shares of Series A
Preferred Stock are surrendered for conversion (such price, or such price as
last adjusted, being referred to as the "Series A Conversion Price"). Such
rights of conversion shall be exercised by the holder thereof by giving written
notice that the holder elects to convert a stated number of shares of Series A
Preferred Stock into Common Stock and by surrender of a certificate or
certificates for the shares so to be converted to the Corporation at its
principal office (or such other office or agency of the Corporation as the
Corporation may designate by notice in writing to the holders of the Series A
Preferred Stock) at any time during its usual business hours on the date set
forth in such notice, together with a statement of the name or names (with
address) in which the certificate or certificates for shares of Common Stock
shall be issued.
6B. Issuance of Certificates; Time Conversion Effected. Promptly
after the receipt of the written notice referred to in paragraph 6A and
surrender of the certificate or certificates for the share or shares of Series A
Preferred Stock to be converted, the Corporation shall issue and deliver, or
cause to be issued and delivered, to the holder, registered in such name or
names as such holder may direct, a certificate or certificates for the number of
whole shares of Common Stock issuable upon the conversion of such share or
shares of Series A Preferred Stock. To the extent permitted by law, such
conversion shall be deemed to have been effected and the Series A Conversion
Price shall be determined as of the close of business on the date on which such
written notice shall have been received by the Corporation and the certificate
or certificates for such share or shares shall have been surrendered as
aforesaid, and at such time the rights of the holder of such share or shares of
Series A Preferred Stock shall cease, and the person or persons in whose name or
names any certificate or certificates for shares of Common Stock shall be
issuable upon such conversion shall be deemed to have become the holder or
holders of record of the shares represented thereby.
6C. Fractional Shares; Dividends; Partial Conversion. No
fractional shares shall be issued upon conversion of Series A Preferred Stock
into Common Stock. Subject to the provisions of paragraph 4A, at the time of
each conversion, whether optional or mandatory, the Corporation shall: (i) if
cash is legally available, pay in cash an amount equal to all dividends
(including Accruing Dividends) accrued or declared but unpaid on the shares of
Series A Preferred Stock surrendered for conversion to the date upon which such
conversion is deemed to take place as provided in paragraph 6B, or (ii) if cash
is not legally available, provide to such holder a certificate representing a
number of shares of Common Stock equal to the quotient of all dividends
(including Accruing Dividends) accrued or declared but unpaid on the shares of
Series A Preferred Stock so surrendered divided by the applicable Series A
Conversion Price. In case the number of shares of Series A Preferred Stock
represented by the certificate or certificates surrendered pursuant to paragraph
6A exceeds the number of shares converted, the Corporation shall, upon such
conversion, execute and deliver to the holder, at the expense of the
Corporation, a new certificate or certificates for the number of shares of
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Series A Preferred Stock represented by the certificate or certificates
surrendered which are not to be converted. If any fractional share of Common
Stock would, except for the provisions of the first sentence of this paragraph
6C, be delivered upon such conversion, the Corporation, in lieu of delivering
such fractional share, shall pay to the holder surrendering the Series A
Preferred Stock for conversion an amount in cash equal to the current market
price of such fractional share as determined in good faith by the Board of
Directors of the Corporation, and based upon the aggregate number of Shares of
Series A Preferred Stock surrendered by any one holder.
6D. Adjustment of Series A Conversion Price Upon Issuance of
Common Stock. Except as provided in paragraphs 6E and 6F, if and whenever the
Corporation shall issue or sell, or is, in accordance with subparagraphs 6D(1)
through 6D(7), deemed to have been issued or sold, any shares of Common Stock
for a consideration per share less than the Series A Conversion Price in effect
immediately prior to the time of such issue or sale, (such number being
appropriately adjusted to reflect the occurrence of any event described in
paragraph 6F), then, forthwith upon such issue or sale, the Series A Conversion
Price shall be reduced to the price determined by dividing (i) an amount equal
to the sum of (a) the number of shares of Common Stock outstanding, one-half of
the number of shares of Common Stock isssuable upon conversion of the Series A
Preferred Stock outstanding, one-half of the number of shares of Common Stock
issuable upon conversion of any other Convertible Securities (as defined below)
outstanding and one-half of the number of shares of Common Stock issuable upon
exercise of Options (as defined below) outstanding immediately prior to such
issue or sale multiplied by the then existing Series A Conversion Price and (b)
the consideration, if any, received by the Corporation upon such issue or sale,
by (ii) the total number of shares of Common Stock outstanding, one-half of the
number of shares of Common Stock issuable upon conversion of the Series A
Preferred Stock outstanding, one-half of the number of shares of Common Stock
issuable upon conversion of any other Convertible Securities (as defined below)
outstanding and one-half of the number of shares of Common Stock issuable upon
exercise of Options (as defined below) outstanding immediately after such issue
or sale.
For purposes of this paragraph 6D, the following subparagraphs
6D(1) to 6D(7) shall also be applicable:
6D(1) Issuance of Rights or Options. In case at any time
the Corporation shall in any manner grant (whether directly or by
assumption in a merger or otherwise) any warrants or other rights to
subscribe for or to purchase, or any options for the purchase of, Common
Stock or any stock or security convertible into or exchangeable for Common
Stock (such warrants, rights or options being called "Options" and such
convertible or exchangeable stock or securities being called "Convertible
Securities") whether or not such Options or the right to convert or
exchange any such Convertible Securities are immediately exercisable, and
the price per share for which Common Stock is issuable upon the exercise
of such Options or upon the conversion or exchange of such Convertible
Securities (determined by dividing (i) the total amount, if any, received
or receivable by the Corporation as consideration for the granting of such
Options, plus the minimum aggregate amount of additional consideration
payable to the Corporation upon
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the exercise of all such Options, plus, in the case of such Options which
relate to Convertible Securities, the minimum aggregate amount of
additional consideration, if any, payable upon the issue or sale of such
Convertible Securities and upon the conversion or exchange thereof, by
(ii) the total maximum number of shares of Common Stock issuable upon the
exercise of such Options or upon the conversion or exchange of all such
Convertible Securities issuable upon the exercise of such Options) shall
be less than the Series A Conversion Price in effect immediately prior to
the time of the granting of such Options, then the total maximum number of
shares of Common Stock issuable upon the exercise of such Options or upon
conversion or exchange of the total maximum amount of such Convertible
Securities issuable upon the exercise of such Options shall be deemed to
have been issued for such price per share as of the date of granting of
such Options or the issuance of such Convertible Securities and thereafter
shall be deemed to be outstanding. Except as otherwise provided in
subparagraph 6D(3), no adjustment of the Series A Conversion Price shall
be made upon the actual issue of such Common Stock or of such Convertible
Securities upon exercise of such Options or upon the actual issue of such
Common Stock upon conversion or exchange of such Convertible Securities.
6D(2) Issuance of Convertible Securities. In case the
Corporation shall in any manner issue (whether directly or by assumption
in a merger or otherwise) or sell any Convertible Securities, whether or
not the rights to exchange or convert any such Convertible Securities are
immediately exercisable, and the price per share for which Common Stock is
issuable upon such conversion or exchange (determined by dividing (i) the
total amount received or receivable by the Corporation as consideration
for the issue or sale of such Convertible Securities, plus the minimum
aggregate amount of additional consideration, if any, payable to the
Corporation upon the conversion or exchange thereof, by (ii) the total
maximum number of shares of Common Stock issuable upon the conversion or
exchange of all such Convertible Securities) shall be less than the Series
A Conversion Price in effect immediately prior to the time of such issue
or sale, then the total maximum number of shares of Common Stock issuable
upon conversion or exchange of all such Convertible Securities shall be
deemed to have been issued for such price per share as of the date of the
issue or sale of such Convertible Securities and thereafter shall be
deemed to be outstanding, provided that (a) except as otherwise provided
in subparagraph 6D(3), no adjustment of the Series A Conversion Price
shall be made upon the actual issue of such Common Stock upon conversion
or exchange of such Convertible Securities and (b) if any such issue or
sale of such Convertible Securities is made upon exercise of any Options
to purchase any such Convertible Securities for which adjustments of the
Series A Conversion Price have been or are to be made pursuant to other
provisions of this paragraph 6D, no further adjustment of the Series A
Conversion Price shall be made by reason of such issue or sale.
6D(3) Change in Option Price or Conversion Rate. Upon the
happening of any of the following events, namely, if the purchase price
provided for in any Option referred to in subparagraph 6D(1), the
additional consideration, if any, payable upon the conversion or exchange
of any Convertible Securities referred to in subparagraph 6D(1)
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or 6D(2), or the rate at which Convertible Securities referred to in
subparagraph 6D(1) or 6D(2) are convertible into or exchangeable for
Common Stock shall change at any time (including, but not limited to,
changes under or by reason of provisions designed to protect against
dilution), the Series A Conversion Price in effect at the time of such
event shall forthwith be readjusted to the Series A Conversion Price which
would have been in effect at such time had such Options or Convertible
Securities still outstanding provided for such changed purchase price,
additional consideration or conversion rate, as the case may be, at the
time initially granted, issued or sold, but only if as a result of such
adjustment the Series A Conversion Price then in effect hereunder is
thereby reduced; and on the expiration of any such Option or the
termination of any such right to convert or exchange such Convertible
Securities, the Series A Conversion Price then in effect hereunder shall
forthwith be increased to the Series A Conversion Price which would have
been in effect at the time of such expiration or termination had such
Option or Convertible Securities, to the extent outstanding immediately
prior to such expiration or termination, never been issued.
6D(4) Stock Dividends. In case the Corporation shall
declare a dividend or make any other distribution upon any stock of the
Corporation payable in Common Stock (except for the issue of stock
dividends or distributions upon the outstanding Common Stock for which
adjustment is made pursuant to paragraph 6F), Options or Convertible
Securities, any Common Stock, Options or Convertible Securities, as the
case may be, issuable in payment of such dividend or distribution shall be
deemed to have been issued or sold without consideration.
6D(5) Consideration for Stock. In case any shares of Common
Stock, Options or Convertible Securities shall be issued or sold for cash,
the consideration received therefor shall be deemed to be the amount
received by the Corporation therefor, without deduction therefrom of any
expenses incurred or any underwriting commissions or concessions paid or
allowed by the Corporation in connection therewith. In case any shares of
Common Stock, Options or Convertible Securities shall be issued or sold
for a consideration other than cash, the amount of the consideration other
than cash received by the Corporation shall be deemed to be the fair value
of such consideration as determined in good faith by the Board of
Directors of the Corporation, without deduction of any expenses incurred
or any underwriting commissions or concessions paid or allowed by the
Corporation in connection therewith. In case any Options shall be issued
in connection with the issue and sale of other securities of the
Corporation, together comprising one integral transaction in which no
specific consideration is allocated to such Options by the parties
thereto, such Options shall be deemed to have been issued for such
consideration as determined in good faith by the Board of Directors of the
Corporation.
6D(6) Record Date. In case the Corporation shall take a
record of the holders of its Common Stock for the purpose of entitling
them (i) to receive a dividend or other distribution payable in Common
Stock, Options or Convertible Securities or (ii) to subscribe for or
purchase Common Stock, Options or Convertible Securities, then such record
date shall be deemed to be the date of the issue or sale of the shares of
Common Stock deemed to have been issued or sold upon the declaration of
such dividend or the
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making of such other distribution or the date of the granting of such
right of subscription or purchase, as the case may be.
6D(7) Treasury Shares. The number of shares of Common Stock
outstanding at any given time shall not include shares owned or held by or
for the account of the Corporation, and the disposition of any such shares
shall be considered an issue or sale of Common Stock for the purpose of
this paragraph 6D.
6E. Certain Issues of Common Stock Excepted. Anything herein to
the contrary notwithstanding, the Corporation shall not be required to make any
adjustment of the Series A Conversion Price in the case of the issuance of (i)
shares of Common Stock issuable upon conversion of the Series A Preferred Stock
(ii) the issuance of Reserved Employee Shares (as defined in Section 4.12 of the
Series A Preferred Stock Purchase Agreement) or the grant of options with
respect thereto; and (iii) the issuance of Common Stock pursuant to the exercise
or conversion of Options and Convertible Securities outstanding on the date of
the filing hereof.
6F. Subdivision or Combination of Common Stock. In case the
Corporation shall at any time subdivide (by any stock split, stock dividend or
otherwise) its outstanding shares of Common Stock into a greater number of
shares, the Series A Conversion Price in effect immediately prior to such
subdivision shall be proportionately reduced, and, conversely, in case the
outstanding shares of Common Stock shall be combined into a smaller number of
shares, the Series A Conversion Price in effect immediately prior to such
combination shall be proportionately increased.
6G. Reorganization or Reclassification. If any capital
reorganization or reclassification of the capital stock of the Corporation shall
be effected in such a way that holders of Common Stock shall be entitled to
receive stock, securities or assets with respect to or in exchange for Common
Stock, then, as a condition of such reorganization or reclassification, lawful
and adequate provisions shall be made whereby each holder of a share or shares
of Series A Preferred Stock shall thereupon have the right to receive, upon the
basis and upon the terms and conditions specified herein and in lieu of or in
addition to, as the case may be, the shares of Common Stock immediately
theretofore receivable upon the conversion of such share or shares of Preferred
Stock, such shares of stock, securities or assets as may be issued or payable
with respect to or in exchange for a number of outstanding shares of such Common
Stock equal to the number of shares of such Common Stock immediately theretofore
receivable upon such conversion had such reorganization or reclassification not
taken place, and in any such case appropriate provisions shall be made with
respect to the rights and interests of such holder to the end that the
provisions hereof (including without limitation provisions for adjustments of
the Conversion Price) shall thereafter be applicable, as nearly as may be, in
relation to any shares of stock, securities or assets thereafter deliverable
upon the exercise of such conversion rights.
6H. Notice of Adjustment. Upon any adjustment of the Series A
Conversion Price, then and in each such case the Corporation shall give written
notice thereof, by first
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class mail, postage prepaid, or by facsimile transmission to non-U.S. residents,
addressed to each holder of shares of Series A Preferred Stock at the address of
such holder as shown on the books of the Corporation, which notice shall state
the Series A Conversion Price resulting from such adjustment, setting forth in
reasonable detail the method upon which such calculation is based.
6I. Other Notices. In case at any time:
(1) the Corporation shall declare any dividend upon its
Common Stock payable in cash or stock or make any other distribution to
the holders of its Common Stock;
(2) the Corporation shall offer for subscription pro rata
to the holders of its Common Stock any additional shares of stock of any
class or other rights;
(3) there shall be any capital reorganization or
reclassification of the capital stock of the Corporation, or a
consolidation or merger of the Corporation with or into, or a sale of all
or substantially all its assets to, another entity or entities; or
(4) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Corporation;
then, in any one or more of said cases, the Corporation shall give, by first
class mail, postage prepaid, or by facsimile transmission to non-U.S. residents,
addressed to each holder of any shares of Series A Preferred Stock at the
address of such holder as shown on the books of the Corporation, (a) at least 20
days' prior written notice of the date on which the books of the Corporation
shall close or a record shall be taken for such dividend, distribution or
subscription rights or for determining rights to vote in respect of any such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up and (b) in the case of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up, at least 20 days' prior written notice of the date when the same
shall take place. Such notice in accordance with the foregoing clause (a) shall
also specify, in the case of any such dividend, distribution or subscription
rights, the date on which the holders of Common Stock shall be entitled thereto
and such notice in accordance with the foregoing clause (b) shall also specify
the date on which the holders of Common Stock shall be entitled to exchange
their Common Stock for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, as the case may be.
6J. Stock to be Reserved. The Corporation will at all times
reserve and keep available out of its authorized Common Stock, solely for the
purpose of issuance upon the conversion of Series A Preferred Stock as herein
provided, such number of shares of Common Stock as shall then be issuable upon
the conversion of all outstanding shares of Series A Preferred Stock. The
Corporation covenants that all shares of Common Stock which shall be so issued
shall be duly and validly issued and fully paid and nonassessable and free from
all
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<PAGE> 11
taxes, liens and charges with respect to the issue thereof, and, without
limiting the generality of the foregoing, the Corporation covenants that it will
from time to time take all such action as may be requisite to assure that the
par value per share of the Common Stock is at all times equal to or less than
the Series A Conversion Price in effect at the time. The Corporation will take
all such action as may be necessary to assure that all such shares of Common
Stock may be so issued without violation of any applicable law or regulation, or
of any requirement of any national securities exchange upon which the Common
Stock may be listed.
6K. No Reissuance of Series A Preferred Stock. Shares of Series A
Preferred Stock which are converted into shares of Common Stock as provided
herein shall not be reissued.
6L. Issue Tax. The issuance of certificates for shares of Common
Stock upon conversion of Series A Preferred Stock shall be made without charge
to the holders thereof for any issuance tax in respect thereof, provided that
the Corporation shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issuance and delivery of any certificate
in a name other than that of the holder of the Series A Preferred Stock which is
being converted.
6M. Closing of Books. The Corporation will at no time close its
transfer books against the transfer of any Series A Preferred Stock or of any
shares of Common Stock issued or issuable upon the conversion of any shares of
Series A Preferred Stock in any manner which interferes with the timely
conversion of such Series A Preferred Stock, except as may otherwise be required
to comply with applicable securities laws.
6N. Definition of Common Stock. As used in this paragraph 6, the
term "Common Stock" shall mean and include the Corporation's authorized Common
Stock, par value $.001 per share, as constituted on the date of filing of these
terms of the Series A Preferred Stock, and shall also include any capital stock
of any class of the Corporation thereafter authorized which shall neither be
limited to a fixed sum or percentage of par value in respect of the rights of
the holders thereof to participate in dividends nor entitled to a preference in
the distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation; provided that the shares of Common
Stock receivable upon conversion of shares of Series A Preferred Stock shall
include only shares designated as Common Stock of the Corporation on the date of
filing of this instrument, or in case of any reorganization or reclassification
of the outstanding shares thereof, the stock, securities or assets provided for
in subparagraph 6G.
6O. Mandatory Conversion. If (a) at any time the Corporation shall
effect a firm commitment underwritten public offering of shares of Common Stock
in which (i) the aggregate gross proceeds from such offering to the Corporation
shall be at least $12,500,000 and (ii) the price paid by the public for such
shares shall be at least $12.50 per share (appropriately adjusted to reflect the
occurrence of any event described in paragraph 6F), or (b) if, beginning three
years after the issuance of the Series A Preferred Stock, for sixteen out of
twenty consecutive days on which the Corporation's Common Stock is traded; (i)
the last
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<PAGE> 12
sales price for shares of Common Stock is at least $15.00 per share
(appropriately adjusted to reflect the occurrence of any event described in
paragraph 6F) and (ii) the average daily trading volume for such sixteen days
for shares of Common Stock equals or exceeds 20,000 shares (appropriately
adjusted to reflect the occurrence of any event described in paragraph 6F), then
effective upon the closing of the sale of such shares by the Corporation
pursuant to such public offering or effective upon the attainment of the
specified price and trading volume of such shares of Common Stock for the
specified duration, as the case may be, all outstanding shares of Series A
Preferred Stock shall automatically convert to shares of Common Stock.
7. Redemption. The shares of Series A Preferred Stock shall be redeemed as
follows:
7A. Optional Redemption. The Corporation shall not have the right
to call or require the redemption at any time of all or any shares of Series A
Preferred Stock. Holders of shares of Series A Preferred Stock constituting a
majority of the then outstanding shares of Series A Preferred Stock may, by
giving notice (the "Notice") to the Corporation at any time after November 5,
2001 require the Corporation to redeem all of the outstanding shares of Series A
Preferred Stock in four equal installments, with one-fourth of the shares of
Series A Preferred Stock outstanding on the date of the Notice redeemed on the
First Redemption Date (as defined below), one-fourth of the shares of Series A
Preferred Stock outstanding on the date of the Notice redeemed on the first
anniversary of the First Redemption Date (the "Second Redemption Date"),
one-fourth of the shares of Series A Preferred Stock outstanding on the date of
the Notice redeemed on the second anniversary of the First Redemption Date (the
"Third Redemption Date"), and the remainder of the shares of Series A Preferred
Stock outstanding on the date of the Notice redeemed on the third anniversary of
the First Redemption Date (the "Fourth Redemption Date"). Upon receipt of the
Notice, the Corporation will so notify all other persons holding Series A
Preferred Stock. After receipt of the Notice, the Corporation shall fix the
first date for redemption (the "First Redemption Date"), provided that such
First Redemption Date shall occur within thirty (30) days after receipt of the
Notice. All holders of Series A Preferred Stock shall deliver to the Corporation
during regular business hours, at the office of any transfer agent of the
Corporation for the Series A Preferred Stock, or at the principal office of the
Corporation or at such other place as may be designated by the Corporation, the
certificate or certificates for the Series A Preferred Stock, duly endorsed for
transfer to the Corporation (if required by it) on or before the First
Redemption Date. The First Redemption Date, the Second Redemption Date, the
Third Redemption Date and the Fourth Redemption Date are collectively referred
to as the "Redemption Dates."
7B. Redemption Price and Payment. The Series A Preferred Stock to
be redeemed on the Redemption Dates shall be redeemed by paying for each share
in cash an amount equal to $6.00 per share (appropriately adjusted to reflect
the occurrence of any event described in paragraph 6F) plus, in the case of each
share, an amount equal to all dividends (including Accruing Dividends) accrued
or declared but unpaid thereon, such amount being referred to as the "Series A
Redemption Price." Such payment shall be made in full on each of the Redemption
Dates to the holders entitled thereto.
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<PAGE> 13
7C. Redemption Mechanics. At least 20 but not more than 30 days
prior to each Redemption Date, written notice (the "Redemption Notice") shall be
given by the Corporation by mail, postage prepaid, or by facsimile transmission
to non-U.S. residents, to each holder of record (at the close of business on the
business day next preceding the day on which the Redemption Notice is given) of
shares of Series A Preferred Stock notifying such holder of the redemption and
specifying the Series A Redemption Price, the Redemption Date and the place
where said Series A Redemption Price shall be payable. The Redemption Notice
shall be addressed to each holder at his address as shown by the records of the
Corporation. From and after the close of business on the Redemption Date, unless
there shall have been a default in the payment of the Series A Redemption Price,
all rights of holders of shares of Series A Preferred Stock (except the right to
receive the Series A Redemption Price) shall cease with respect to such shares,
and such shares shall not thereafter be transferred on the books of the
Corporation or be deemed to be outstanding for any purpose whatsoever. If the
funds of the Corporation legally available for redemption of shares of Series A
Preferred Stock on any Redemption Date are insufficient to redeem the total
number of outstanding shares of Series A Preferred Stock to be redeemed on such
redemption date, the holders of shares of Series A Preferred Stock shall share
ratably in any funds legally available for redemption of such shares according
to the respective amounts which would be payable with respect to the full number
of shares owned by them if all such outstanding shares were redeemed in full.
The shares of Series A Preferred Stock not redeemed shall remain outstanding and
entitled to all rights and preferences provided herein. At any time thereafter
when additional funds of the Corporation are legally available for the
redemption of such shares of Series A Preferred Stock, such funds will be used,
at the end of the next succeeding fiscal quarter, to redeem the balance of such
shares, or such portion thereof for which funds are then legally available, on
the basis set forth above.
7D. Redeemed or Otherwise Acquired Shares to be Retired. Any
shares of Series A Preferred Stock redeemed pursuant to this paragraph 7 or
otherwise acquired by the Corporation in any manner whatsoever shall be
cancelled and shall not under any circumstances be reissued; and the Corporation
may from time to time take such appropriate corporate action as may be necessary
to reduce accordingly the number of authorized shares of Series A Preferred
Stock.
8. Amendments. Except where the vote or written consent of the holders of
a greater number of shares of the Corporation is required by law or the Restated
Certificate of Incorporation, no provision of these terms of the Series A
Preferred Stock may be amended, modified or waived without the written consent
or affirmative vote of the holders of at least a majority in interest of the
then outstanding shares of Series A Preferred Stock.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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<PAGE> 14
IN WITNESS THEREOF, the Corporation has caused this certificate to be
signed by John C. Garbarino, its President, this 5th day of November, 1996.
OCCUPATIONAL HEALTH + REHABILITATION INC
By: /s/ John C. Garbarino
------------------------------------------
John C. Garbarino, President
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<PAGE> 1
EXHIBIT 4.2
INCORPORATED UNDER THE LAWS OF
THE STATE OF DELAWARE
NUMBER [EAGLE] SHARES
____________ ____________
OCCUPATIONAL HEALTH + REHABILITATION INC
SERIES A CONVERTIBLE PREFERRED STOCK, PAR VALUE $.001
FULLY PAID THE CORPORATION WILL FURNISH WITHOUT CHARGE NON-ASSESSABLE
TO EACH STOCKHOLDER WHO SO REQUESTS THE
POWERS, DESIGNATIONS, PREFERENCES AND
RELATIVE, PARTICIPATING, OPTIONAL OR OTHER
SPECIAL RIGHTS OF EACH CLASS OF STOCK OR
SERIES THEREOF AND THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS OF SUCH
PREFERENCES AND/OR RIGHTS. ANY SUCH REQUEST
SHOULD BE ADDRESSED TO THE SECRETARY OF THE
CORPORATION.
This Certifies that _____________________________________________________is the
registered holder of ____________________________________________________Shares
OCCUPATIONAL HEALTH + REHABILITATION INC
transferable only on the books of the Corporation by the holder hereof
in person or by Attorney upon surrender of this Certificate properly endorsed.
SERIES A PREFERRED
In Witness Whereof, the said Corporation has caused this Certificate to
be signed by its duly authorized officers and its Corporate Seal to be hereunto
affixed.
this ____________________________day of_________________A.D. 19_______
[SEAL]
________________________ ________________________
PRESIDENT/VICE PRESIDENT SECRETARY/TREASURER
<PAGE> 2
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES
HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE,
AND MAY NOT BE SOLD, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE
SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS, OR THE AVAILABILITY
OF AN EXEMPTION FROM THE REGISTRATION PROVISIONS OF THE SECURITIES ACT OF 1933
AND APPLICABLE STATE SECURITIES LAWS.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS OF A STOCKHOLDERS' AGREEMENT DATED AS OF NOVEMBER 6, 1996, A COPY OF
WHICH WILL BE FURNISHED TO ANY INTERESTED PARTY UPON WRITTEN REQUEST WITHOUT
CHARGE.
For Value Received,_____________hereby sell, NOTICE. THE SIGNATURE OF
assign and transfer unto_______________________ THIS ASSIGNMENT MUST
_______________________________________ Shares CORRESPOND WITH THE NAME
represented by the within Certificate, AS WRITTEN UPON THE FACE
and do hereby irrevocably constitute and OF THE CERTIFICATE, IN
appoint EVERY PARTICULAR, WITHOUT
_____________________________________Attorney ALTERATION OR
to transfer the said Shares on the books of ENLARGEMENT, OR ANY
the within named Corporation with full CHANGE WHATEVER.
power of substitution in the premises.
Dated________________19_______
In presence of
______________________ ______________
<PAGE> 1
EXHIBIT 99.1
OCCUPATIONAL HEALTH + REHABILITATION INC
175 Derby Street, Suite 36
Hingham, MA 02043-4058
Contact: John C. Garbarino
President and Chief Executive Officer
Occupational Health + Rehabilitation Inc
Telephone: (617) 741-5175
FOR IMMEDIATE RELEASE:
OCCUPATIONAL HEALTH + REHABILITATION INC ANNOUNCES
$8,500,000 EQUITY FINANCING FOR EXPANSION PROGRAM
Hingham, MA, November 6, 1996 - Occupational Health + Rehabilitation
Inc (OH+R) (Nasdaq: OHRI) announced today that it has completed a private
placement of 1,416,667 shares of its Series A Convertible Preferred Stock at
$6.00 per share. Cahill, Warnock Strategic Partners Fund was the lead investor
with a number of OH+R's current venture capital investors also participating.
OH+R intends to use the funds in its expansion effort and for working capital.
OH+R is the leading provider of occupational health services in New
England, currently operating 10 centers in four states and providing a full
range of services for the prevention, treatment and management of work-related
injuries and illnesses. The Company also provides occupational health services
at employer locations throughout the Northeast. By combining high quality
patient care with a high level of service, OH+R seeks to reduce workers'
compensation costs for both employers and employees. Prevention services,
designed to reduce the frequency and severity of work-related injuries, include
pre-employment examinations, drug and alcohol testing, medical monitoring and
work-site safety programs. OH+R's treatment approach integrates medical,
rehabilitation and case management services in a comprehensive "one-stop shop"
program which enhances communications, convenience, accountability and outcomes.
The Company's strategic plan is to expand its network of centers and on-site
programs throughout the Northeast principally through acquisitions of
occupational medicine practices and joint ventures with hospitals to own and
operate occupational medicine departments.
Cahill, Warnock & Company, LLC is an asset management firm established
primarily to make direct equity investments in small public companies. Edward L.
Cahill, a founding partner of Cahill, Warnock & Company, will be joining OH+R's
Board of Directors. Mr. Cahill was previously a Managing Director at Alex Brown
& Sons where, since 1986, he headed the firm's Health Care Investment Banking
Group.
<PAGE> 2
Equity Financing
Page 2 of 2
John C. Garbarino, President and Chief Executive Officer stated "We are
pleased to add to our group of high quality, experienced healthcare investors
who believe in the industry and the Company. OH+R has ambitious plans to invest
the funds in a large backlog of regionally-focused acquisitions and joint
ventures as well as additions to our management team to help execute our
strategy."
The offering by OH+R of the Series A Convertible Preferred Stock has
not been and will not be registered under the Securities Act of 1933, and the
securities may not be offered or sold in the United States absent registration
or an applicable exemption from the registration requirements.
Statements which do not contain historical information are
forward-looking and involve risk and uncertainties, including the ability to
identify suitable acquisition candidates for expansion, consummating
acquisitions on favorable terms and other factors discussed in OH+R's filings
with the Securities and Exchange Commission.
