-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MMJkUlKXeuWn+/UcNVgJhuc6cnTp3pS31YAMh2lprfU2qWKITsrm27p+Oo2hFKEv qERpzoHEi+3HAjhjp/8iiQ== 0000950170-96-000385.txt : 19960812 0000950170-96-000385.hdr.sgml : 19960812 ACCESSION NUMBER: 0000950170-96-000385 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 12 FILED AS OF DATE: 19960624 SROS: AMEX SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: WHITMAN EDUCATION GROUP INC CENTRAL INDEX KEY: 0000352183 STANDARD INDUSTRIAL CLASSIFICATION: 8200 IRS NUMBER: 222246554 STATE OF INCORPORATION: NJ FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-40390 FILM NUMBER: 96584607 BUSINESS ADDRESS: STREET 1: 440 BISCAYNE BOULEVARD CITY: MIAMI STATE: FL ZIP: 33137 BUSINESS PHONE: 3055756510 MAIL ADDRESS: STREET 1: 440 BISCAYNE BOULEVARD CITY: MIAMI STATE: FL ZIP: 33137 FORMER COMPANY: FORMER CONFORMED NAME: WHITMAN MEDICAL CORP DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: FROST PHILLIP MD ET AL CENTRAL INDEX KEY: 0000898860 STANDARD INDUSTRIAL CLASSIFICATION: FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 4400 BISCAYNE BLVD CITY: MIAMI STATE: FL ZIP: 33137-3227 BUSINESS PHONE: 3055756001 MAIL ADDRESS: STREET 1: 4400 BISCAYNE BLVD CITY: MIAMI STATE: FL ZIP: 33137-3227 SC 13D 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 2)* WHITMAN EDUCATION GROUP, INC. (Name of Issuer) COMMON STOCK, NO PAR VALUE (Title of Class of Securities) 966524-10-0 (Cusip Number) RICHARD C. PFENNIGER, JR., 4400 BISCAYNE BOULEVARD, MIAMI, FL 33137 (305) 575-6000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of the Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]. Check the following box if a fee is being paid with the statement [ ] (A fee is not required only if the reporting person: (1) has a previous statement on file reporting beneficial ownership of more than five percent of the class of securities described in Item 1; and (2) has filed no amendment subsequent thereto reporting beneficial ownership of five percent or less of such class.) (See Rule 13d-7.) NOTE: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filed out for a reporting person's initial on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). (Continued on following page(s)) - - ---------------------------------------- ------------------------ CUSIP NO. 966524-10-0 13D PAGE 2 ------------ - - ---------------------------------------- ----------------------- - - -------------------------------------------------------------------------------- 1 NAME OF REPORTING S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON PHILIP FROST, M.D. SS# ###-##-#### - - -------------------------------------------------------------------------------- 2 Check the appropriate Box if a Member of a Group (a) [X] (b) [ ] - - -------------------------------------------------------------------------------- 3 SEC USE ONLY - - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* PF - - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION USA - - -------------------------------------------------------------------------------- NUMBER OF SHARES 7 SOLE VOTING POWER BENEFICIALY OWNED 0 OWNED BY EACH REPORTING PERSON WITH --------------------------------------------------------- 8 SHARED VOTING POWER 5,289,628 --------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 0 --------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 5,289,628 - - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,289,628 - - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 47.3% - - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - - -------------------------------------------------------------------------------- - - ----------------------------------- ----------------------------- CUSIP NO. 966524-10-0 13D PAGE 3 -------------- - - ----------------------------------- ---------------------------- - - -------------------------------------------------------------------------------- NAME OF REPORTING S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON FROST-NEVADA, LIMITED PARTNERSHIP IRS I.D. #59-2749083 - - -------------------------------------------------------------------------------- 2 Check the appropriate Box if a Member of a Group (a) [X] (b) [ ] - - -------------------------------------------------------------------------------- 3 SEC USE ONLY - - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* WC - - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION NEVADA - - -------------------------------------------------------------------------------- NUMBER OF SHARES 7 SOLE VOTING POWER BENEFICIALY OWNED 0 OWNED BY EACH REPORTING PERSON WITH --------------------------------------------------------- 8 SHARED VOTING POWER 5,289,628 --------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 0 --------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 5,289,628 - - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,289,628 - - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 47.3% - - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - - -------------------------------------------------------------------------------- - - ---------------------------------- ------------------------------ CUSIP NO. 966524-10-0 13D PAGE 4 ----------- - - ---------------------------------- ------------------------------ - - -------------------------------------------------------------------------------- 1 NAME OF REPORTING S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON FROST-NEVADA CORPORATION IRS I.D. #59-274-9057 - - -------------------------------------------------------------------------------- 2 Check the appropriate Box if a Member of a Group (a) [X] (b) [ ] - - -------------------------------------------------------------------------------- 3 SEC USE ONLY - - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* 00 - - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION NEVADA - - -------------------------------------------------------------------------------- NUMBER OF SHARES 7 SOLE VOTING POWER BENEFICIALY OWNED 0 OWNED BY EACH REPORTING PERSON WITH ----------------------------------------------------- 8 SHARED VOTING POWER 5,289,628 --------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 0 --------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 5,289,628 - - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,289,628 - - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 47.3% - - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON CO - - -------------------------------------------------------------------------------- Item 1. SECURITY AND ISSUER. This is Amendment No. 2 to the Schedule 13D previously filed by Phillip Frost, M.D., Frost-Nevada, Limited Partnership (the "Partnership"), and Frost-Nevada Corporation (collectively, the "Reporting Persons"), with respect to Common Stock, no par value (the "Shares") of Whitman Education Group, Inc. (the "Issuer"). The principal executive officers of the Issuer are located at 4400 Biscayne Boulevard, Miami, Florida, 33137-3227. Information regarding each of the Reporting Persons is set forth below. Item 2. IDENTITY AND BACKGROUND. Item 2 is amended and restated in its entirety as follows: Dr. Frost's present principal occupation is as Chairman of the Board of Directors and Chief Executive Officer of IVAX Corporation, a Florida corporation, which through its subsidiaries is engaged primarily in the research, development, manufacturing, marketing and distribution of health care products. Dr. Frost's principal business address is 4400 Biscayne Boulevard, Miami, Florida 33137. The Partnership is a limited partnership organized and existing under the laws of the State of Nevada with its principal office and business address located at 3500 Lakeside Court, Suite 200, Reno, Nevada 89509. The principal business of the Partnership is the investment in marketable securities, precious metals and commodities and real estate located in Nevada. Frost-Nevada Corporation is the sole general partner, and Dr. Frost is the sole limited partner, of the Partnership. Frost-Nevada Corporation is a corporation organized and existing under the laws of the State of Nevada with its principal office and business address located at 3500 Lakeside Court, Suite 200, Reno, Nevada 89509. The principal business of Frost-Nevada Corporation is acting as the general partner of the Partnership. Dr. Frost is the sole shareholder and a director of Frost-Nevada Corporation. Neil Flanzraich is a director and the sole officer of Frost- Nevada Corporation. Neil Flanzraich's present principal occupation is as an attorney with the law firm of Heller, Ehrman, White & McAuliffe. Mr. Flanzraich's principal business address is 525 University Avenue, Palo Alto, California 94301-1900. To the best knowledge of each of the Reporting Persons, neither such Reporting Person nor Mr. Flanzraich has been convicted in any criminal proceeding (excluding traffic violations and similar misdemeanors), or was a party to any civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was subject to a judgment, decree or final order enjoining future violations of, or prohibiting activity subject to, federal or state securities laws or finding any violation with respect to such laws during the last five years. Each of Dr. Frost and Mr. Flanzraich is a citizen of the United States. Item 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. Item 3 is amended and supplemented as follows: The aggregate purchase price of Shares of the Issuer purchased by the Partnership and Phillip Frost, M.D. reported in this Amendment No. 2, including the payment of commissions, was $219,192.25 and $54,670, respectively. The source of funds used by the Partnership and Phillip Frost, M.D. in making these purchases was working capital of the Partnership and the personal funds of Phillip Frost, M.D. No portion of the consideration used Page 5 by the Partnership or Phillip Frost, M.D. in making the purchases described above was borrowed or otherwise obtained for the purpose of acquiring, holding, trading or voting the Shares. Item 4. PURPOSE OF TRANSACTION. Item 4 is amended in its entirety and restated as follows: The Shares were acquired by one or more of the Reporting Persons as an investment. The Reporting Persons intend to monitor their investment in the Shares on a continuing basis. The Reporting Persons may acquire additional Shares (subject to availability of Shares of prices deemed favorable) in the open market, in privately negotiated transactions, by tender offer or otherwise. Alternatively, the Reporting Persons reserve the right to dispose of some or all of their Shares in the open market or in privately negotiated transactions or otherwise depending upon the course of actions that the Reporting Persons or the Issuer pursue, market conditions and other factors. Although the foregoing represents the range of activities presently contemplated by the Reporting Persons with respect to the Shares, it should be noted that the possible activities of the Reporting Persons are subject to change at any time. Except as otherwise stated herein, none of the Reporting Persons have any present plans or proposals which relate to or would result in any of the actions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D. Item 5. INTEREST IN SECURITIES OF THE ISSUER. Item 5 is amended in its entirety and restated as follows: AMOUNT OF SHARES PERCENTAGE NAME BENEFICIALLY OWNED CLASS* Phillip Frost, M.D. 5,289,628** 47.3% Frost-Nevada Corporation 5,289,628** 47.3% Frost-Nevada, Limited 5,289,628** 47.3% Partnership - - ---------------------------- * Based on 8,833,524 Shares outstanding on March 31, 1996, as reported by Continental Stock Transfer and Trust Company and assumes the exercise by (i) the Partnership and Phillip Frost, M.D. of warrants to purchase 850,000 and 1,300,000 Shares, respectively and (ii) Dr. Frost of options to purchase 200,000 Shares. Exercise of these warrants and options are subject to the restrictions of the New Jersey Shareholders Protection Act. The number of shares, warrants and options noted here have been restated to properly reflect the effects of a 2-for-1 stock split effected by the issuer on May 14, 1996. ** These Shares are owned of record by one or more of the Reporting Persons. As the sole limited partner of the Partnership and the sole shareholder and a director of Frost-Nevada Corporation, the general partner of the Partnership, Dr. Frost may be deemed a beneficial owner of the Shares. Record ownership of the Shares may be transferred from time to time among any or all of the Reporting Persons. Accordingly, solely for purposes of reporting beneficial ownership of the Shares pursuant to section 13(d) under the Securities Exchange Act of 1934, as amended, each Reporting Person will be deemed to be the beneficial owner of Shares held by any other Reporting Person. Page 6 The Partnership shares the power to vote or dispose of the Shares beneficially owned by it with Frost-Nevada Corporation and Dr. Frost. Frost-Nevada Corporation, in its capacity as the general partner of the Partnership, has the power to vote or direct the vote of these Shares or to dispose or direct the disposition of these Shares for the Partnership. Frost-Nevada Corporation will be deemed the beneficial owner of the Shares owned by the Partnership by virtue of this relationship to the Partnership. Dr. Frost, in his capacity as the sole shareholder and a director of Frost-Nevada Corporation, the general partner of the Partnership, will be deemed the beneficial owner of all Shares owned by the Partnership by virtue of his power to vote or direct the vote of the Shares or to dispose or direct the disposition of the Shares owned by the Partnership. Other than as reported on Exhibit 2 attached hereto, none of the Reporting Persons has engaged in any transaction involving Shares of the Issuer during the past sixty days. Item 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Item 6 is amended in its entirety and restated as follows: Except as described herein, none of the Reporting Persons is a party to any contract, arrangement, understanding of relationship with any person with respect to any securities of the Issuer. Unless otherwise indicated, all of the Share information and exercise prices for warrants and options to acquire Shares in this Item 6 have been adjusted to reflect a 2-for-1 stock split effected by the Issuer on May 14, 1996. On January 27, 1995, the Issuer granted the Partnership warrants to purchase 1,150,000 Shares at $3.125 per Share which expire on January 26, 2000. These warrants were issued in exchange for the guaranty of a loan. On March 31, 1995 warrants to purchase 150,000 of these Shares (without giving effect to the May 14, 1996 stock split) were exercised at a reduced exercise price of $3.51. On February 26, 1996, the Issuer granted to Dr. Frost warrants to purchase 1,300,000 Shares at $4.25 per Share which expire on February 25, 2001. These warrants were issued in exchange for the guaranty of a loan. On November 20, 1992, the Issuer granted Dr. Frost options to purchase 50,000 Shares at $3.75 per Share which expire on November 19, 2002. On October 1, 1993, the Issuer granted Dr. Frost options to purchase 50,000 Shares at $5.875 per Share which expire on September 30, 2003. On October 21, 1994, the Issuer granted Dr. Frost options to purchase 50,000 Shares at $2.4375 per Share which expire on October 20, 2004. On November 9, 1995, the Issuer granted Dr. Frost options to purchase 50,000 Shares at $3.1875 per Share which expire on November 8, 2005. These options are subject to the terms and conditions of the Issuer's 1986 Directors and Consultants Stock Option Plan. The exercise of the warrants and options are subject to the restrictions of the New Jersey Shareholders Protection Act. The descriptions of the Stock Purchase Warrants and the Stock Option Agreements contained herein is not intended to be complete and is qualified in its entirety by reference to these Agreements which are attached hereto as Exhibits 5 through 10 and incorporated herein by reference. Page 7 Item 7. MATERIAL TO BE FILED AS EXHIBITS. 1. Joint Filing Agreement. 2. Description of transactions in the Issuer's Shares by Frost-Nevada, Limited Partnership. 3. Description of transactions in the Issuer's Shares by Phillip Frost, M.D. 4. Power of Attorney granted to Phillip Frost, M.D. by Neil Flanzraich. 5. Second Amended and Restated Agreement of Frost-Nevada, Limited Partnership, Frost-Nevada Corporation and Phillip Frost, M.D. filed pursuant to Rule 13d-l(f)(l)(iii) of the Securities and Exchange Commission. 6. Whitman Medical Corp. Stock Purchase Warrants issued January 27, 1995. 7. Whitman Medical Corp. Stock Purchase Warrant issued February 26, 1996. 8. Director and Consultants Stock Option Agreement, dated November 20, 1992, between Whitman Medical Corp. and Phillip Frost, M.D. 9. Director and Consultants Stock Option Agreement, dated October 1, 1993, between Whitman Medical Corp. and Phillip Frost, M.D. 10. Director and Consultants Stock Option Agreement, dated October 21, 1994, between Whitman Medical Corp. and Phillip Frost, M.D. 11. Director and Consultants Stock Option Agreement, dated November 9, 1995, between Whitman Medical Corp. and Phillip Frost, M.D. Page 8 SIGNATURES After reasonable inquiry and to the best of the undersigned's knowledge and belief, the undersigned certify that the information set forth in this Statement is true, complete and correct. Date: June 19, 1996 /s/ Phillip Frost ---------------------------- Phillip Frost, M.D. FROST-NEVADA, LIMITED PARTNERSHIP * Date: June 19, 1996 ---------------------------- Neil Flanzraich President of Frost-Nevada Corporation, General Partner FROST-NEVADA CORPORATION * Date: June 19, 1996 ---------------------------- Neil Flanzraich President *By /s/ Phillip Frost ------------------------------ Phillip Frost, M.D. (Attorney-in-fact pursuant to Power of Attorney) Page 9 EXHIBIT INDEX EXHIBIT DESCRIPTION 1 Joint Filing Agreement. 2 Description of transactions in the Issuer's Shares by Frost-Nevada, Limited Partnership. 3 Description of transactions in the Issuer's Shares by Phillip Frost, M.D. 4 Power of Attorney granted to Phillip Frost, M.D. by Neil Flanzraich. 5 Second Amended and Restated Agreement of Frost-Nevada, Limited Partnership, Frost-Nevada Corporation and Phillip Frost, M.D. filed pursuant to Rule 13d-l(f)(l)(iii) of the Securities and Exchange Commission. 6 Whitman Medical Corp. Stock Purchase Warrants issued January 27, 1995. 7 Whitman Medical Corp. Stock Purchase Warrant issued February 26, 1996. 8 Director and Consultants Stock Option Agreement, dated November 20, 1992, between Whitman Medical Corp. and Phillip Frost, M.D. 9 Director and Consultants Stock Option Agreement, dated October 1, 1993, between Whitman Medical Corp. and Phillip Frost, M.D. 10 Director and Consultants Stock Option Agreement, dated October 21, 1994, between Whitman Medical Corp. and Phillip Frost, M.D. 11 Director and Consultants Stock Option Agreement, dated November 9, 1995, between Whitman Medical Corp. and Phillip Frost, M.D. EX-1 2 EXHIBIT 1 The undersigned hereby agree that this Amendment to the Schedule 13D filed by us with respect to the Common Stock of Whitman Education Group, Inc. is filed on behalf of each of us. Date: June 19, 1996 /s/ Phillip Frost ---------------------------- Phillip Frost, M.D. FROST-NEVADA, LIMITED PARTNERSHIP * Date: June 19, 1996 ---------------------------- Neil Flanzraich President of Frost-Nevada Corporation, General Partner FROST-NEVADA CORPORATION * Date: June 19, 1996 ---------------------------- Neil Flanzraich President *By /s/ Phillip Frost ------------------------------ Phillip Frost, M.D. (Attorney-in-fact pursuant to Power of Attorney) EX-2 3 EXHIBIT 2 Set forth below is a summary of acquisitions of beneficial ownership in the Shares of the Issuer by Frost-Nevada, Limited Partnership effected from January 27, 1995 through the date of this Amendment No. 2. NUMBER OF SHARES PRICE PER TYPE OF DATE ACQUIRED SHARE TRANSACTION - - ---- ---------------- --------- ----------- 7/24/95 2,000 5.00 Open Market Transaction 7/24/95 500 5.125 Open Market Transaction 7/24/95 500 5.1875 Open Market Transaction 7/24/95 2,000 5.00 Open Market Transaction 11/2/95 1,000 5.781 Open Market Transaction 11/2/95 10,000 5.50 Open Market Transaction 11/21/95 25,000 5.25 Open Market Transaction EX-3 4 EXHIBIT 3 Set forth below is a summary of acquisitions of beneficial ownership in the Shares of the Issuer by Phillip Frost, M.D., through his IRA account effected from January 27, 1995 through the date of this Amendment No. 2. NUMBER OF SHARES PRICE PER TYPE OF DATE ACQUIRED SHARE TRANSACTION 4/11/96 100 10.87O Open Market Transaction 4/12/96 4,900 10.87 Open Market Transaction EX-4 5 EXHIBIT 4 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his capacity as President of Frost-Nevada Corporation, a Nevada corporation (the "Corporation"), does hereby make, constitute and appoint PHILLIP FROST, M.D. his true and lawful attorney-in-fact, for him and in his name, place and stead, for the sole and limited purpose of signing any and all statements or reports pursuant to the Securities Exchange Act of 1934, and any amendments thereto, on behalf of the Corporation, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 24th day of May, 1996. /s/ NEIL FLANZRAICH -------------------------- NEIL FLANZRAICH, President EX-5 6 EXHIBIT 5 SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF FROST-NEVADA LIMITED PARTNERSHIP THIS SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP (the "Agreement") is made and entered into as of the 28th day of December, 1995, by and among FROST-NEVADA CORPORATION, a Nevada corporation, as the general partner (the "General Partner") and PHILLIP FROST, as the limited partner (the "Limited Partner"). W I T N E S S E T H: WHEREAS, on December 30, 1986, the General Partner executed a Certificate of Limited Partnership forming a limited partnership known as "FROST-NEVADA LIMITED PARTNERSHIP" (the "Partnership"), under the Nevada Uniform Limited Partnership Act (the "Act") as in effect at that time in the State of Nevada, which Certificate of Limited Partnership was filed in the Public Records of the Secretary of State of Nevada on December 30, 1986; and WHEREAS, the General Partner and Limited Partner have previously executed a First Amended and Restated Certificate of Limited Partnership of FROST-NEVADA LIMITED PARTNERSHIP on February 16, 1987 and a certificate thereof was filed m the Public Records of the Secretary of State of Nevada on March 16, 1989; WHEREAS, the General Partner and the Limited Partner have executed this Second Amended and Restated Agreement of Limited Partnership of FROST-NEVADA LIMITED PARTNERSHIP as of December 28, 1995; and WHEREAS, this Agreement, dated as of December 27, 1995, is made and entered into by and between the General Partner and the Limited Partner for the purpose of setting forth the rights, obligations, and duties of the General Partner and the Limited Partner. NOW, THEREFORE, the parties hereto hereby agree that the Partnership shall be governed and operated pursuant to the terms of this Agreement of Limited Partnership as hereinafter set forth. ARTICLE I NAME, TERM, PRINCIPAL ADDRESS AND REGISTERED AGENT 1.1 NAME. The name of the Partnership is the FROST-NEVADA LIMITED PARTNERSHIP. 1.2 TERM. The term of the Partnership will continue in full force and effect until December 31, 2055, unless sooner terminated in accordance with the Act (as such term is defined herein) or provisions of this Agreement. 1.3 PRINCIPAL PLACE OF BUSINESS. The office and principal place of business of the Partnership shall be maintained at 3500 Lakeside Court Reno, Washoe County, Nevada 89509. The General Partner may from time to time change such office and principal place of business and in such event the General Partner shall notify the other Partners, in writing, at least ten (10) days prior to the effective date of any such change. The General Partner may establish additional places of business of the Partnership when and where required by the Partnership's business. 1.4 ADDRESSES. The address of each Partner is as follows: GENERAL PARTNER: Frost-Nevada Corporation 3500 Lakeside Court Reno, Nevada 89509 LIMITED PARTNER: Phillip Frost, M.D. 8800 N.W. 36th Street Miami, Florida 33178 A Partner may change its address by written notice to the Partnership and each of the other Partners. 1.5 REGISTERED OFFICE AND REGISTERED AGENT. The location of the Registered Office of the Partnership shall be at 3500 Lakeside Court, Reno, Nevada 89509 and the name of the Registered Agent of the Partnership at such office shall be Walther, Key, Maupin, Oats, Cox, Klaich & Legoy. Said Registered Agent shall keep and maintain at such address the records of the Partnership required to be kept and maintained at such address by the Act. - 2 - ARTICLE II BUSINESS OF THE PARTNERSHIP 2.1 PURPOSE. The purpose of the Partnership is to invest in all types of (i) securities, including without limitation, stocks, bonds, limited partnership interests and option contracts for the purchase or sale of securities or any group or index of securities, (ii) precious metals, including without limitation, contracts for the future delivery of precious metals and option contracts for the purchase or sale of precious metals or futures contracts on precious metals; (iii) commodities, including without limitation, contracts for the future delivery of commodities and option contracts for the purchase or sale of commodities or future contracts on commodities, and (iv) real property on the State of Nevada through the acquisition, holding, construction, development, operation, improvement, leasing, sale or other dealings in real property. 2.2 POWERS. Incident to its purpose, the Partnership is authorized to purchase, invest, hold, mortgage, pledge, sell, lease, manage, construct, renovate, operate, improve, alter, transfer, joint venture or otherwise convey and encumber all or any portion of the Partnership properties and exercise all other rights, powers and privileges and other incidences of ownership with respect thereto at any time and from time to time, to borrow or raise moneys without limitations and to do all other things necessary or appropriate to carry out the foregoing purpose. ARTICLE III CERTAIN DEFINITIONS 3.1 ACT. The Revised Nevada Uniform Limited Partnership Act, as from time to time amended. 3.2 ADJUSTED CAPITAL CONTRIBUTION. The amount contributed to the capital of the Partnership by a Partner as provided in Article IV. 3.3 AFFILIATE. Any person or entity that directly or indirectly controls, is controlled by or is under common control with any other person or entity. For this purpose, the term "control" shall mean the direct or indirect ownership of twenty-five (25 %) or more of the beneficial interests or voting power of any entity or the spouse, lineal ascendants, lineal descendants and the brothers and sisters of a Person, as applicable. 3.4 AUTHORIZED EXPENSES. Expenses that: (a) are specifically consented to in writing by the Limited Partner; (b) are authorized as part of an operating budget that is consented to in writing by the Limited Partner; or (c) do not, when aggregated with all other Partnership expenses that are not authorized by parts (a) or (b) above, total more than $2,500 in a single calendar year. - 3 - 3.5 AVAILABLE CASH. All cash of the Partnership resulting from normal business operations (as distinguished from Extraordinary Events or the sale of all or substantially all of the Partnership's property and/or the dissolution of the Partnership), including, without limitation, dividend income, rental income, and any other income derived from the Partnership property which the General Partner, in its sole and absolute discretion, determines is available for distribution to the Partners after payment of all Partnership cash expenditures, including but not limited to, real and personal property taxes, use taxes, principal and interest payments then due on all loans, (including any mortgages encumbering the Partnership's property), expenses incident to the construction and rental of the Partnership property, insurance, present maintenance, including, but not limited to management fees, brokerage fees, or other fees incurred by the Partnership, capital improvements, accounting and legal fees, and other costs and expenses of the Partnership, and the setting aside of any amounts which the General Partner may determine, in its discretion, to be necessary as a reserve for operating expenses, capital improvements and contingencies. 3.6 CAPITAL ACCOUNT. The account established and maintained by the Partnership for each Partner, as set forth in Section 4.6 hereof. 3.7 CAPITAL CONTRIBUTION. The amount of money and the initial fair market value of any property (other than money) contributed to the Partnership by a Partner with respect to the Partnership Interest held by such Partner. 3.8 CERTIFICATE. The certificate of limited partnership filed with the Secretary of State of the State of Nevada, as the same may be amended from time to time. 3.9 CODE. The Internal Revenue Code of 1986, as same may be amended from time to time. 3.10 EXTRAORDINARY EVENT. Any financing, refinancing, insurance award (other than for substantially complete destruction of all or substantially all of the Partnership's property) and sale of Partnership assets (but less than all or substantially all of such assets), which in accordance with generally accepted accounting principles are attributable to capital but which do not result in a dissolution of the Partnership. 3.11 ORIGINAL CAPITAL CONTRIBUTION. The amount contributedto the capital of the Partnership by a Partner as provided in Article IV. 3.12 PARTNERS. Collectively, the Limited Partner and the General Partner. 3.13 PARTNERSHIP. FROST-NEVADA LIMITED PARTNERSHIP, a Nevada limited partnership. 3.14 PARTNERSHIP INTEREST. The entire ownership interest of a Partner in the Partnership at the relevant time, including the right of such Partner to any and all benefits to which a Partner -4- may be entitled as provided in this Agreement, together with the obligations of such Partner to comply with all the terms and provisions of this Agreement. A Partnership Interest does not include any rights or obligations that a Partner may have for providing services or goods for which it is separately compensated as a Person who is not a Partner. 3.15 PERSON. Any individual, corporation, trust, partnership or other form of association. 3.16 PROFITS AND LOSSES. The Partnership's income or loss, as the case may be, for each fiscal year of the Partnership determined in accordance with Code Section 703(a) (including all items of income, gain, deduction or loss that are required to be separately stated). The Partnership's Profits and Losses shall also include: (i) income of the Partnership which is exempt from tax; and (ii) the excess of the deductions for depletion over the basis of the property subject to depletion. Similarly, the Partnership's Losses shall include expenditures for the Partnership which are not deductible in computing its taxable income and are not properly chargeable to a capital account. Notwithstanding anything to the contrary in this Agreement, Profits and Losses shall not include allocations under Code Section 704(c) (which are set forth at Section 4.10 hereof or Regulatory Allocations). 3.17 REGULATORY ALLOCATIONS. The allocations set forth at Sections 4.10, 4.11, 4.12, 4.13 and 4.15. 3.18 SERVICE. Internal Revenue Service. 3.19 SUBSTITUTED LIMITED PARTNER. A person who has acquired a Partnership Interest from a Limited Partner and who has been admitted to the Partnership as a Limited Partner pursuant to Article VI. ARTICLE IV CONTRIBUTIONS TO CAPITAL; DISTRIBUTIONS; ALLOCATIONS 4.1 CAPITAL CONTRIBUTIONS OF THE PARTNERS. 4.1.1 CAPITAL CONTRIBUTIONS OF THE GENERAL PARTNER. The General Partner has contributed $1,085,690.23 in marketable securities to the Partnership. 4.1.2 CAPITAL CONTRIBUTIONS OF THE LIMITED PARTNER. The Limited Partner has contributed the assets set forth at Exhibit 4.1.2. 4.2 WITHDRAWAL AND RETURN OF CAPITAL. Except upon the dissolution and liquidation of the Partnership, a Partner shall have no right to withdraw any of its Capital Contributions without the consent of the General Partner. Under circumstances requiring a return of a -5- Partner's Capital Contributions, no Partner shall have the right to receive property other than cash except as may be specifically provided herein. 4.3 ADDITIONAL CAPITAL CONTRIBUTIONS. The Partnership may accept additional Capital Contributions to the extent that such contributions are authorized by the General Partner and are in accordance with the requirements of Section 5.3 hereof. 4.4 LOANS TO THE PARTNERSHIP. The Partners may make loans to the Partnership from time to time, as authorized by the General Partner (subject to the requirements of Section 5.3 hereof), in excess of their contributions to the capital of the Partnership, and any such loans shall not be treated as a contribution to the capital of the Partnership for any purposes hereunder, nor shall any such loans entitle such Partner to any increase in his share of the profits, losses or distributions of the Partnership. The amount of any such loan shall be an obligation of the Partnership to such Partner and shall bear interest at a rate agreed to by the General Partner. Any such loan shall be repaid prior to any distributions being made to the Partners pursuant to Sections 4.8.2 and 9.3 hereof. 4.5 CAPITAL ACCOUNTS. A separate Capital Account shall be determined and maintained for each Partner in accordance with the rules of Treas. Reg. /section/ 1.704-l(b)(2)(iv). Except as otherwise provided in Treas. Reg. /section/ 1.704-l(b)(2)(iv), each Partner's Capital Account shall initially consist of such Partner's Capital Contribution and shall be further credited with each Partner's additional Capital Contributions and allocable share of the Partnership's income, as determined in Section 4.6 below, and shall be debited by all distributions made by the Partnership to a Partner together with each such Partner's allocable share of the Partnership's losses, as determined in Section 4.6 below. In the event that the Partnership, in conformity with the above Regulations, has property on its books at a value ("book value") greater than or less than its adjusted tax basis, the Partners' Capital Accounts shall be adjusted to reflect only allocations to them of depreciation, amortization and gain or loss as computed for book purposes (and not for tax purposes) with respect to such property. In such event, items of book depreciation, amortization and gain or loss shall be calculated in conformity with the rules of Treas. Reg. /section/ 1.704-l(b)(2)(iv)(g). For purposes of calculating a Partner's Capital Account, the following adjustments shall be included as Profits and Losses: (a) any and all adjustments made to Capital Accounts pursuant to Treas. Reg. /section/ 1.704-l(b)(2)(iv) (f) (optional revaluation of Capital Accounts), as it may be amended or supplemented from time to time; (b) any and all adjustments made to Capital Accounts pursuant to Treas. Reg. /section/ 1.704-l(b)(2)(iv) (e) (adjustment resulting from property distribution), as it may be amended or supplemented from time to time; and (c) any and all adjustments made to Capital Accounts pursuant to Treas. Reg. /section/ 1.704-l(b)(2)(iv) (n)(4) (as it may be amended or supplemented from time -6- to time), as it relates to distributions other than in liquidation of a Partner's Interest in the Partnership. 4.6 ALLOCATION OF INCOME AND LOSSES. All items of Profits and Losses incurred by the Partnership shall be allocated to the Partners as follows: General Partner 1 % Limited Partner 99 % 4.7 PRINCIPLES OF ALLOCATION. It is the intention of the Partners that the allocations of Profits and Losses hereunder have substantial economic effect in accordance with the tests therefor set forth in the Treasury Regulations under Section 704(b) of the Internal Revenue Code. Accordingly, allocations not specifically provided for in this Agreement shall be made in such a manner as shall conform to the allocation rules and principles as set forth in such Regulations as in effect from time to time, and the Capital Accounts of the Partners shall be maintained in accordance with the provisions hereof construed and interpreted in the light of such Regulations. 4.8 DISTRIBUTIONS. 4.8.1 Available Cash shall be distributed periodically, as determined by the General Partner in its sole discretion, to the Partners as follows: General Partner 1 % Limited Partner 99% 4.8.2 Net Proceeds from an Extraordinary Event which are not reinvested in other real property shall, to the extent determined by the General Partner as being available for distribution, be distributed as expeditiously as possible, in the following order of priority: (a) first, to the payment of any unpaid principal and interest on any third-party financing then due; (b) next, to the prepayment of any unpaid principal and interest on any third-party financing, if and to the extent determined by the General Partner; (c) next, to the repayment of any loans made by the Partners to the Partnership pursuant to Section 4.4 hereof, in proportion to the total amount of principal and interest payable to each such Partner, such distributions being treated first as in payment of accrued interest on such loans and next as in payment of principal of such loans: - 7 - (d) next, to the Partners in proportion to their positive capital account balances until such Capital Account balances have been reduced to zero; and (e) the balance, if any, as follows: General Partner 1 % Limited Partner 99 % 4.8.3 Distributions in connection with the sale of all or substantially all of the Partnership's property and/or the dissolution and winding up of the Partnership shall be made in accordance with Section 9.3 of this Agreement. 4.8.4 The Partnership, with the Partners' mutual consent, may make additional distributions of Partnership property. 4.9 ALLOCATIONS OF CERTAIN TAX ITEMS. If the fair market value of any Partnership property differs from its adjusted basis as of the day it is contributed to the Partnership, then items of income, gain, loss, deductions and credit related to such property for tax purposes shall be allocated between the Partners so as to take into account the variation between the adjusted basis of the property for tax purposes and its fair market value in the manner provided for under Code Section 704(c). Except as may be otherwise required by Code /section/ 704(c), depreciation, amortization and gain or loss, as computed for tax purposes with respect to Partnership property which has a book value greater or less than its adjusted tax basis, shall be allocated among the Partners in a manner that takes into account the variation between the adjusted tax basis and the book value of such property, in the same manner as variations between the adjusted tax basis and fair market value of property contributed to the Partnership are taken into account in determining the Partners' share of tax items under Code ss. 704(c), as required by Treas. Reg. /section/1.704-l(b)(2) (iv)(f)(4) and Treas. Reg. /section/ 1.704-l(b)(4)(i). In complying with the requirements of Code ss. 704(c), the General Partner is authorized to utilize any method permitted by the Treasury Regulations under Code ss. 704(c). Allocations pursuant to this Section 4.9 are solely for purposes of complying with federal, state and local tax requirements, and shall not affect, or in any way be taken into account, in computing any Partner's share of income, gain, loss, deduction or credit. 4.10 MINIMUM GAIN CHARGEBACK. Notwithstanding any other provision of this Article IV, if there is a net decrease in partnership minimum gain (as such term is defined in Treas. Reg. /section/ 1.704-2(f)) during any Partnership fiscal year, a Partner shall be specially allocated items of Partnership income and gain for such year (and, if necessary, subsequent years) in an amount equal to its share of the net decrease in the minimum gain. The items to be so allocated shall be determined in accordance with Section 1.704-2(f) of the Treasury Regulations. This Section 4.10 is intended to comply with the minimum gain chargeback requirement in such Section of the Treasury Regulations and shall be interpreted consistently therewith. - 8 - 4.11 PARTNER NONRECOURSE DEDUCTIONS. Any partner nonrecourse deductions for any fiscal year or other period shall be allocated to the Partner who bears the risk of loss with respect to the loan to which such partner nonrecourse deduction is attributable in accordance with Regulations Section 1.704-2(i), if such sections of the Regulations become applicable to the Partnership. Partner nonrecourse debt minimum gain shall be charged back to the Partners in accordance with Regulations Section 1.704-2(i)(4). 4.12 QUALIFIED INCOME OFFSET. In the event the Limited Partner unexpectedly receives any adjustments, allocations, or distributions described in Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6) of the Treasury Regulations, items of Partnership income and gain shall be specially allocated to each such Partner in an amount and manner sufficient to eliminate, to the extent required by the Regulations, the adjusted capital account deficit (as such term is used in Section 1.704-2(fl of the Treasury Regulations) of the Limited Partner as quickly as possible, provided that an allocation pursuant to this Section 4.12 shall be made only if and to the extent that the Limited Partner would have an adjusted capital account deficit after all other allocations provided for in this Article IV have been tentatively made as if this Section 4.12 were not in the Agreement. This Section 4.12 is intended to constitute a "qualified income offset" within the meaning of Section 1.704-1(b)(2)(ii)(d)(3) of the Treasury Regulations, and is to be interpreted, to the extent possible, to comply with the requirements of such Regulation as it may be amended or supplemented from time to time. 4.13 LOSS LIMITATION. The Losses allocated to the Limited Partner pursuant to Section 4.7 hereof shall not exceed the maximum amount of Losses that can be so allocated without causing the Limited Partner to have a deficit Capital Account at the end of any Fiscal Year after: (a) increasing a Limited Partner's Capital Account by amounts that he is obligated to restore pursuant to this Agreement or is deemed obligated to restore pursuant to the penultimate sentences of Treas. Reg. /section/ 1.704-2(g)(1) and 1.704-2(i)(5), as they may be amended or supplemented from time to time; and (b) decreasing a Limited Partner's Capital Account by the items described in Treas. Reg. /section/ 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(d)(5) and 1.704- 1(b)(2)(d)(6), as it may be amended or supplemented from time to time (an "Adjusted Deficit Capital Account"). All Losses in excess of the limitations set forth in this Section 4.13 shall be allocated to the General Partner. 4.14 FUTURE AMENDMENTS; REVALUATION OF PARTNERSHIP PROPERTY. The General Partner will have complete discretion to amend the provisions of this Agreement if such amendment would not have a material adverse effect on the Partners and if, in the opinion of counsel for the Partnership, such amendment is advisable for purposes of complying with Section 1.704-1 and 1.704-2 of the Treasury Regulations (as it may be amended or supplemented from time to time). The General Partner may, in its sole and absolute discretion, revise the Partners' Capital Accounts to reflect a revaluation of the Partnership property, provided that the revaluation adheres to the requirements of Section 1.704-1(b)(2)(iv)(fl of the Treasury Regulations. 4.15 GROSS INCOME ALLOCATION. In the event the Limited Partner has a deficit Capital Account at the end of any Partnership fiscal year which is in excess of the sum of (i) the amount -9- the Limited Partner is obligated to restore pursuant to any provision of this Agreement, and (ii) the amount the Limited Partner is deemed to be obligated to restore pursuant to the penultimate sentences of Treas. Reg. /section/ 1.704-2(g)(1) and 1.704-2(i)(5), the Limited Partner shall be specially allocated items of Partnership income and gain in the amount of such excess as quickly as possible, provided that an allocation pursuant to this Section 4.15 shall be made only if and to the extent that the Limited Partner would have a deficit Capital Account in excess of such sum after all other allocations provided for in this Article 4 have been made, as if Article 4.12 hereof and this Section 4.15 were not in the Agreement. 4.16 CURATIVE ALLOCATIONS. In the event that income, loss or items thereof are allocated to one or more Partners pursuant to Sections 4.10, 4.11, 4.12, 4.13, and 4.15, above, subsequent income and loss first will be allocated (subject to the provisions of Sections 4.10, 4.11, 4.12, 4.13, and 4.15) to the Partners in a manner designed to result in each Partner having a Capital Account balance equal to what it would have been if the original allocation of income or loss pursuant to Sections 4.10, 4.11, 4.12, 4.13, and 4.15 had not occurred. ARTICLE V MANAGEMENT OF THE PARTNERSHIP 5.1 RIGHTS AND DUTIES OF THE GENERAL PARTNER. Except as otherwise provided herein, the General Partner shall have full, exclusive and complete authority and discretion in the management and control of the business of the Partnership and shall make all decisions affecting the business of the Partnership. Further, the General Partner shall have all of the rights and powers of a general partner as provided in the Act and as otherwise provided by law or this Agreement, and any action taken by the General Partner shall constitute the act of and serve to bind the Partnership. The General Partner shall manage and control the affairs of the Partnership to the best of its ability and shall use its best efforts to carry out the business of the Partnership as set forth in Article II. 5.2 PARTNERSHIP CHECKS. Any check or checks to be made or issued by the Partnership (with respect to any transaction or series of related transactions) shall require the signature of a person who is designated as an authorized signatory by the General Partner. Notwithstanding the foregoing, the General Partner may delegate its check signing authority to any other person and the exercise of the authority granted pursuant to such delegation shall constitute the act of the General Partner who delegated such authority. 5.3 LIMITATIONS ON POWERS OF GENERAL PARTNER.Notwithstanding the generality of Section 5.1 hereof, the General Partner shall not be empowered, without the written consent of the Limited Partner, to: (a) do any act in contravention of this Agreement; -10- (b) change or reorganize the Partnership into any other legal form; (c) sell, exchange, encumber, assign, pledge, or otherwise transfer or grant a security interest in any or all of the assets of the Partnership; (d) incur, renew, extend, refinance, pay, or otherwise discharge indebtedness of the Partnership, other than in the ordinary course of the Partnership's business hereof; (e) pay or incur expenses (including) that do not qualify as Authorized Expenses; (f) settle a lawsuit or any other dispute (including, but not limited to, a dispute concerning the income tax liabilities associated with income and loss reported by the Partnership); (g) enter into an insurance policy; (h) agree to lease a rental space; (i) set aside a reserve; (j) confess a judgment against the Partnership; (k) amend this Agreement except as provided for in Section 4.14; (1) require additional Capital Contributions from one or more of the Partners; or (m) offer additional Partnership Interests. 5.4 ROLE OF LIMITED PARTNER. The Limited Partner shall not participate in or have any control over the Partnership business or shall have any authority or right to act for or bind the Partnership. The Limited Partner hereby consents to the exercise by the General Partner of the powers conferred upon it by this Agreement. 5.5 DUTIES AND OBLIGATIONS OF GENERAL PARTNER. 5.5.1 As more fully set forth in Section 5.1 hereof, the General Partner shall take all actions which may be necessary or appropriate for the continuation of the Partnership's valid existence as a limited partnership under the laws of the State of Nevada and to enable the Partnership to conduct the business in which it is engaged. 5.5.2 The General Partner shall devote such time to the Partnership as may be sufficient for the proper performance of its duties hereunder. - 11 - 5.6 PARTNERSHIP AGREEMENTS WITH AFFILIATES OF GENERAL PARTNER. The General Partner may utilize the services of Affiliates, as designated by the General Partner. Affiliates of the General Partner may be engaged to perform services, including but not limited to, the following: investment advice, renovation, marketing, acquisition of insurance, obtaining of financing, recordkeeping, participation at shareholder meetings, data processing, procurement of licenses, services ordinarily performed by independent contractors, and other administrative activities. The validity of any transaction, agreement or payment involving the Partnership and any Affiliate of the General Partner otherwise permitted by the terms of this Agreement shall not be affected by reason of the relationship between the General Partner and such Affiliate or the approval of said transaction, agreement or payment by the General Partner. 5.7 PAYMENT OF EXPENSES. All expenses of the Partnership shall be paid by the Partnership. In the event the Partnership expenses are not billed directly to and paid by the Partnership, it shall reimburse the General Partner or pay their respective Affiliates for such expenses, including but not limited to: (a) organizational costs, including, legal and accounting fees; (b) the actual cost to the General Partner of goods, services and materials used for or by the Partnership; and (c) all other direct expenses actually incurred by the General Partner or their respective Affiliates for or on behalf of the Partnership. 5.8 INDEMNIFICATION OF THE GENERAL PARTNER. The General Partner and all Affiliates of the General Partner and their respective shareholders, partners, officers, directors and employees (hereinafter referred to individually as an "Indemnitee") shall not be liable to the Partnership or any other Partner for any loss incurred in connection with any action or inaction of an Indemnitee, if such Indemnitee, in good faith, determined that such course of conduct was in the best interest of the Partnership and did not constitute negligence of such Indemnitee. An Indemnitee shall be indemnified and held harmless by the Partnership against any and all losses, judgments, liabilities, expenses, costs (including attorney's fees) actually and necessarily incurred by said Indemnitee in connection with the defense of any suit or action (including, without limitation, all costs of appeal) to which the Indemnitee is made a party by reason of its position herein, to the fullest extent permitted under the provisions of the Act or any other applicable statute. Nothing herein shall make any Affiliate of the General Partner liable in any way for the acts, omissions, obligations or liabilities of the General Partner. 5.9 TAX MATTERS PARTNER. If the Partnership is required by the Code or the Treasury Regulations to have a Tax Matters Partner ("TMP"), the General Partner shall serve as the TMP for the Partnership. The TMP agrees to act as a liaison between the Partnership and the Service in connection with all administrative and judicial proceedings involving tax controversies of the Partnership, and agrees to assume all the rights and duties of a TMP as set forth in the Code and the Regulations promulgated thereunder. These rights and duties include, but are not limited to: (a) the duty to notify and keep all other Partners informed of all administrative and judicial proceedings, as required by Section 6223(g) of the Code, and to furnish to -12- each Partner, who so requests in writing, a copy of each notice or other communication received by the TMP from the Service; (b) the right to settle any claims by the Service against the Partnership; (c) the right to initiate judicial proceedings contesting adverse determinations by the Service against the Partnership; (d) the right to enter into an agreement to extend the statute of limitations; (e) the right to employ experienced tax counsel to represent the Partnership in connection with any audit or investigation of the Partnership by the Service, and in connection with all subsequent administrative and judicial proceedings arising out of such audit. The fees and expenses of such counsel shall be a Partnership expense and shall be paid by the Partnership. Such counsel shall be responsible for representing the Partnership; it shall be the responsibility of the General Partner and of the Limited Partner, at their expense, to employ tax counsel to represent their respective separate interests; and (f) arrange for the preparation and delivery of Partnership information returns and Schedule K's to the Partners. The TMP shall be entitled to be reimbursed for all expenses incurred when acting in its capacity as TMP. 5.10 PARTNERSHIP BASIS ELECTIONS. In the event of a distribution of property by the Partnership within the meaning of Section 734 of the Code, or the transfer of any interest in the Partnership within the meaning of Section 743 of the Code, the General Partner, in its sole and absolute discretion, may cause the Partnership to elect to adjust the basis of its assets pursuant to Section 754 of the Code. The Partners affected by this election, if made, shall supply to the Partnership any information that may be required to make such election. ARTICLE VI LIABILITY OF PARTNERS AND TRANSFERABILITY OF INTERESTS 6.1 LIMITED LIABILITY OF LIMITED PARTNER. Except as otherwise provided in the Act or any other applicable law, the Limited Partner is not personally liable for the expenses, liabilities or obligations of the Partnership beyond the amount of his Capital Contribution. -13- 6.2 TRANSFER OF LIMITED PARTNER'S INTEREST. The Limited Partner shall not transfer, sell, encumber, assign or otherwise dispose (a "Transfer") of any portion of his Partnership Interest. ARTICLE VII REPRESENTATIONS AND WARRANTIES 7.1 REPRESENTATIONS AND WARRANTIES OF THE GENERAL PARTNER AND THE PARTNERSHIP. The General Partner and the Partnership jointly and severally represent and warrant to the Limited Partner that, as of the date hereof, the Partnership is duly and validly organized as a limited partnership under the laws of the State of Nevada with full power and authority to own and operate its property and to conduct the business in which it engages and will be authorized and qualified under the laws of all other jurisdictions in which such authorization or qualification is necessary to protect the limited liability of the Limited Partner, to enable it to engage in its business, and to engage in the business of the Partnership. ARTICLE VIII ADMISSION AND WITHDRAWAL OF GENERAL PARTNER 8.1 ADMISSION. The General Partner may select and admit additional general partner(s), provided that the Limited Partner agrees upon the additional general partner(s) to be admitted. Unless it shall be provided otherwise upon the admittance of said additional general partner(s), said additional general partner(s) shall be deemed to have acquired a share of the general partner's interest hereunder, such that the additional general partner(s) shall not be entitled to share in the net income, net loss or distributions of the Partnership otherwise allocable to the Limited Partner hereunder. 8.2 WITHDRAWAL. The General Partner may withdraw from the Partnership provided that the withdrawing General Partner shall give to the Limited Partner ninety (90) days' prior written notice and, if necessary under applicable rulings and regulations for the Partnership to be treated for federal income tax purposes as a partnership and not as an association taxable as a corporation, shall propose a new general partner or general partners qualified and willing to manage the Partnership's business and with the minimum net worth required. The withdrawing General Partner shall be entitled to receive the fair market value of its interest upon the date of its withdrawal. -14- ARTICLE IX TERMINATION OF THE PARTNERSHIP 9.1 DISSOLUTION. The Partnership shall be dissolved upon the happening of any of the following events: (a) The adjudication of bankruptcy, filing of a petition pursuant to a chapter of the Federal Bankruptcy Act, the withdrawal, dissolution, or cessation of business of the General Partner, death of an individual General Partner, if any, or any other "event of withdrawal of a general partner" as such term is defined in the Act, unless: (i) the remaining General Partner(s), if any, elects to continue the business of the Partnership or if the remaining General Partner(s) does not so elect or if there is no remaining General Partner, within sixty (60) days after such event, the Limited Partner elects a substitute General Partner to continue the business of the Partnership and such substitute General Partner agrees in writing to accept such election; and (ii) in the case of the withdrawal of a General Partner, the applicable provisions of Article VIII shall have been complied with. (b) The sale or other disposition, not including an exchange, of all or substantially all of the Partnership's property; (c) The Transfer by any Partner of part or all of its Partnership Interest; or (d) The unanimous written consent of the Partners. 9.2 EFFECTIVENESS. Dissolution of the Partnership shall be effective on December 31, 2055, or the day on which the event occurs giving rise to the dissolution, but the Partnership shall not terminate until the Certificate shall have been cancelled and the assets of the Partnership shall have been distributed as provided in Section 9.3 below. Notwithstanding the dissolution of the Partnership, prior to the termination of the Partnership, as aforesaid, the business of the Partnership and the affairs of the Partners, as such, shall continue to be governed by this Agreement. 9.3 LIQUIDATION. Upon dissolution of the Partnership, the General Partner shall wind up the affairs of the Partnership, apply and distribute its assets or the proceeds thereof as contemplated by this Agreement and cause the cancellation of the Certificate. As soon as possible after the dissolution of the Partnership, a full account of the assets and liabilities of the Partnership shall be taken, and a statement shall be prepared by a certified public accountant to -15- be selected by the General Partner, setting forth the assets and liabilities of the Partnership. A copy of such statement shall be furnished to each of the Partners within thirty (30) days after such dissolution. Thereafter, the General Partner shall, in its sole and absolute discretion, either liquidate the assets as promptly as is consistent with obtaining in so far as possible the fair value thereof or determine to distribute all or part of the assets in kind. Any proceeds from liquidation, together with any assets which the General Partner determines to distribute in kind shall be applied to the following order: (a) first, to the payment of debts and liabilities of the Partnership other than to Partners, to the expenses of liquidation, and to the setting up of such reserves as may be deemed reasonably necessary for any known contingent or unforeseen liabilities or obligations of the Partnership arising out of or in connection with the Partnership or its liquidation. Such reserves shall be held for the purpose of disbursement in payment of any of the aforementioned contingencies, and at the expiration of such period as the General Partner shall deem advisable, the Partnership shall distribute the balance remaining in the manner provided for herein; (b) next, to the repayment of any debts and liabilities of the Partnership to Partners not in respect of their Partnership Interests, including, without limitation, unpaid expense accounts or advances made to or for the benefit of the Partnership; (c) next, to the Partners in proportion to their then Capital Account balances until such Capital Account balances have been reduced to zero; and (d) the balance, if any, as follows: General Partner 1 % Limited Partner 99 % 9.4 GENERAL PARTNER CONTRIBUTIONS. Upon the liquidation of the General Partner's interest in the Partnership, the General Partner will contribute to the Partnership an amount equal to the deficit balance in its Capital Account after taking into account all Capital Account adjustments for the Partnership's taxable year during which such liquidation occurs. Except as provided for in the previous sentence, no Partner shall be required to contribute funds to the Partnership to restore its deficit capital account. 9.5 GAIN OR LOSS FROM DISSOLUTION. The net gain or loss, if any, resulting from such dissolution and termination shall be allocable to the Partners as provided in Section 4.6 hereof. -16- ARTICLE X BOOKS AND RECORDS; REPORTS 10.1 BOOKS AND RECORDS. The General Partner shall keep adequate books and records at one or more of its places of business, setting forth a true and accurate account of all business transactions arising out of and in connection with the conduct of the Partnership. Partners or their designated representatives shall have the right, at any reasonable time, to have access to and inspect and copy the contents of said books or records. 10.2 ANNUAL REPORTS. The Partners shall be furnished annually by the Partnership with an unaudited financial statement for the year then ended. Upon request by any Partner, the Partnership shall furnish an audited financial statements, with such costs being borne by the Partnership. ARTICLE XI POWER OF ATTORNEY 11.1 POWER OF ATTORNEY. In order to facilitate amendments of this Agreement which require the signatures of the Partners, or a proposed additional or substituted partner, and the preparation and signing of any other documentation in connection with the Partnership including the Certificate of Limited Partnership or any amendments thereto or cancellation thereof, each Partner by his or his signature hereto irrevocably makes, constitutes and appoints the General Partner, and each person who shall hereafter become a General Partner, his true and lawful attorney in his name, place and stead, with the power from time to time to make, execute, swear to, acknowledge, verify, deliver, file, record and publish: (a) any certificates or other instruments which may be required to be filed by the Partnership under the laws of the State of Nevada or of any other state or jurisdiction in which the Partnership shall transact business or in which the General Partner shall deem it advisable to file; (b) all documents, certificates or other instruments which may be required or deemed desirable by the General Partner to effectuate the provisions of any part of this Agreement and to continue the Partnership under the laws of the State of Nevada and of any state or jurisdiction in which it shall do business; and (c) all documents, certificates or other instruments which may be required to effectuate the dissolution and termination of the Partnership or the organization of any new limited partnership occurring by reason of the withdrawal, dissolution, death, bankruptcy, or adjudication of incompetency of the General Partner. -17- 11.2 IRREVOCABILITY. The foregoing power of attorney is a special power of attorney coupled with an interest in favor of the General Partner, and as such shall be irrevocable, and shall survive the dissolution, death, bankruptcy or adjudication of incompetency of a Partner. 11.3 EFFECT OF ASSIGNMENT. The foregoing power of attorney shall survive the delivery of an assignment by any Partner of the whole or any portion of his Partnership Interest, except that where an assignee of a Limited Partner's interest has been approved as a Substituted Limited Partner, the foregoing power of attorney of the assignor Limited Partner shall survive the delivery of such assignment for the sole purpose of enabling the General Partner to execute, swear to, acknowledge and file any and all instruments necessary to effect such substitution. ARTICLE XII GENERAL PROVISIONS 12.1 NOTICES. Any notice, payment, demand or communication required or permitted to be given by any provision of this Agreement shall be in writing and delivered personally, sent by overnight courier or sent by registered or certified mail, return receipt requested, to a party at the address specified in Section 1.4 hereof. Any such notice shall be deemed to be given as of the date of receipt or refusal of receipt to the party at its address. Any Partner may from time to time specify a different address by notice to the Partnership. 12.2 JURISDICTION AND APPLICABLE LAW. Each party hereto and with regard solely to matters arising out of, or in connection with, this Agreement hereby designates the laws of the State of Nevada, both substantive and procedural, without reference to the conflicts of the law provisions thereof, as the law applicable hereto, and each voluntarily submits itself to the courts of the State of Nevada as having jurisdiction over the subject matter hereof and the parties hereto. 12.3 SURVIVAL OF RIGHTS. Except as otherwise provided, this Agreement shall be binding upon and inure to the benefit of the Partners, their personal representative, successors and assigns. 12.4 VALIDITY. In the event that any provision of this Agreement shall be held to be invalid, the same shall not affect in any respect whatsoever the validity of the remainder of this Agreement. 12.5 AGREEMENTS IN COUNTERPARTS. This Agreement may be executed in several counterparts, and as executed shall constitute one Agreement, binding on all the parties hereto, notwithstanding that all the parties are not signatory to the original or to the same counterpart. -18- 12.6 WAIVER OF PARTITION. The Partners hereby waive any right of partition as to the Partnership's property or any right to take any other action which otherwise might be available to them for the purpose of severing their relationship in connection with Partnership property. 12.7 HEADINGS. The headings, titles and subtitles used in this Agreement are for ease of reference only and shall not control or affect the meaning or construction of any provision hereof. 12.8 AMENDMENTS. This Agreement may be amended by the General Partner as permitted by Section 4.14 hereof and, to the extent necessary, the General Partner shall file or cause to be filed without any additional consent of the Limited Partner any amendment to the Certificate. 12.9 ENTIRE AGREEMENT. This Agreement sets forth the entire understanding of the parties with respect to the subject matter hereof. This Agreement replaces and supersedes all previous agreements and amendments entered into by the parties hereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the 27th day of December, 1995. GENERAL PARTNER: Attest: FROST-NEVADA CORPORATION, a Nevada Corporation By: - - ----------------------------- ------------------------- Neil Flanzraich, President [Corporate Seal] LIMITED PARTNER: Witness: ----------------------------- - - ------------------------------- PHILLIP FROST, M.D. -19- EX-6 7 EXHIBIT 6 STOCK PURCHASE WARRANT TO PURCHASE COMMON STOCK OF WHITMAN MEDICAL CORP. THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF (COLLECTIVELY THE "SECURITIES") HAVE BEEN ACQUIRED FOR INVESTMENT ONLY AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR ANY STATE SECURITIES LAW, AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO WHITMAN MEDICAL CORP. SUCH REGISTRATION IS AVAILABLE. Void after 5:00 p.m. New York Time, on January 26, 2000. Warrant to Purchase up to 575,000 shares of Common Stock. WARRANT TO PURCHASE COMMON STOCK OF WHITMAN MEDICAL CORP. This is to Certify That, FOR VALUE RECEIVED, Frost-Nevada Limited Partnership ("Frost-Nevada"), or assigns (collectively, "Holder"), is entitled to purchase, subject to the provisions of this Warrant, from Whitman Medical Corp., a New Jersey corporation ("Company"), up to 575,000 fully paid, validly issued and nonassessable shares of Common Stock, no par value per share, of the Company ("Common Stock") at a price of $6.25 per share at any time or from time to time during the period from January 27, 1995 to January 26, 2000, but not later than 5:00 p.m. New York City Time, on January 26, 2000. The number of shares of Common Stock to be received upon the exercise of this Warrant and the price to be paid for each share of Common Stock may be adjusted from time to time as hereinafter set forth. The shares of Common Stock deliverable upon such exercise, and as adjusted from time to time, are hereinafter sometimes referred to as "Warrant Shares" and the exercise price of a share of Common Stock in effect at any time and as adjusted from time to time is hereinafter sometimes referred to as the "Exercise Price". (a) EXERCISE OF WARRANT. This Warrant may be exercised in whole or in part at any time or from time to time on or after January 27, 1995 and until January 26, 2000, provided, however, that (i) if either such day is a day on which banking institutions in the State of New Jersey are authorized by law to close, then on the next succeeding day which shall not be such a day, and (ii) in the event of any merger, consolidation or sale of substantially all the assets of the Company as an entirety, resulting in any distribution to the Company's stockholders, prior to January 26, 2000, the Holder shall have the right to exercise this Warrant commencing at such time through January 26, 2000 into the kind and amount of shares of stock and other securities and property (including cash) receivable by a holder of the number of shares of Common Stock into which this Warrant might have been exercisable immediately prior thereto. This Warrant may only be exercised subject to the limitations imposed by the New Jersey Shareholders Protection Act (N.J.S.A. 14:10A-1 et seq.), including, without limitation, the prohibitions against entering into a"business combination" with an "interested shareholder", provided however, that if at the time of exercise the Company is not subject to such act, no such limitations shall apply. This Warrant may be exercised by presentation and surrender hereof to the Company at its principal office, or at the office of its stock transfer agent, if any, with the Purchase Form annexed hereto duly executed and accompanied by payment of the Exercise Price for the number of Warrant Shares specified in such form. As soon as practicable after each such exercise of the warrants, but not later than seven (7) days from the date of such exercise, the Company shall issue and deliver to the Holder a certificate or certificates for the Warrant Shares issuable upon such exercise, registered in the name of the Holder or its designee. If this Warrant should be exercised in part only, the Company shall, upon surrender of this Warrant for cancellation, execute and deliver a new Warrant evidencing the rights of the Holder thereof to purchase the balance of the Warrant Shares purchasable thereunder. Upon receipt by the Company of this Warrant at its office, or by the stock transfer agent of the Company at its office, in proper form for exercise, the Holder shall be deemed to be the holder of record of the shares of Common Stock issuable upon such exercise, notwithstanding that the stock transfer books of the Company shall then be closed or that certificates representing such shares of Common Stock shall not then be physically delivered to the Holder. (b) RESERVATION OF SHARES. The Company shall at all times reserve for issuance and/or delivery upon exercise of this Warrant such number of shares of its Common Stock as shall be required for issuance and delivery upon exercise of the Warrants. (c) FRACTIONAL SHARES. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. With respect to any fraction of a share called for upon any exercise hereof, the Company shall pay to the Holder an amount in cash equal to such fraction multiplied by the current market value of a share, determined as follows: (1) If the Common Stock is listed on a National Securities Exchange or admitted to unlisted trading privileges on such exchange or listed for trading on the NASDAQ system, the current market value shall be the last reported sale price of the Common Stock on such exchange or system on the last business day prior to the date of exercise of this Warrant or if no such sale is made on such day, the average closing bid and asked prices for such day on such exchange or system; or (2) If the Common Stock is not so listed or admitted to unlisted trading privileges, the current market value shall be the mean of the last reported bid and asked prices reported by the National Quotations Bureau, Inc. on the last business day prior to the date of the exercise of this Warrant; or (3) If the Common Stock is not so listed or admitted to unlisted trading privileges and bid and asked prices are not so reported, the current market value shall 2 be an amount, not less than book value thereof as at the end of the most recent fiscal year of the Company ending prior to the date of the exercise of the Warrant, determined in such reasonable manner as may be prescribed by the Board of Directors of the Company. (d) EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT. This Warrant is exchangeable, without expense, at the option of the Holder, upon presentation and surrender hereof to the Company or at the office of its stock transfer agent, if any, for other warrants of different denominations entitling the holder thereof to purchase in the aggregate the same number of shares of Common Stock purchasable hereunder. Upon surrender of this Warrant to the Company at its principal office or at the office of its stock transfer agent, if any, with the Assignment Form annexed hereto duly executed and funds sufficient to pay any transfer tax, the Company shall, without charge, execute and deliver a new Warrant in the name of the assignee named in such instrument of assignment and this Warrant shall promptly be cancelled. This Warrant may be divided or combined with other warrants which carry the same rights upon presentation hereof at the principal office of the Company or at the office of its stock transfer agent, if any, together with a written notice specifying the names and denominations in which new Warrants are to be issued and signed by the Holder hereof. The term "Warrant" as used herein includes any Warrants into which this Warrant may be divided or exchanged. Upon receipt by the Company of evidence satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and (in the case of loss, theft or destruction) of reasonably satisfactory indemnification, and upon surrender and cancellation of this Warrant, if mutilated, the Company will execute and deliver a new Warrant of like tenor and date. Any such new Warrant executed and delivered shall constitute an additional contractual obligation on the part of the Company, whether or not this Warrant so lost, stolen, destroyed, or mutilated shall be at any time enforceable by anyone. (e) RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be entitled to any rights of a shareholder in the Company, either at law or equity, and the rights of the Holder are limited to those expressed in the Warrant and are not enforceable against the Company except to the extent set forth herein. (f) ANTI-DILUTION PROVISIONS. The Exercise Price in effect at any time and the number and kind of securities purchasable upon the exercise of the Warrants shall be subject to adjustment from time to time upon the happening of certain events as follows: (1) In case the Company shall (i) declare a dividend or make a distribution on its outstanding shares of Common Stock in shares of Common Stock, (ii) subdivide or reclassify its outstanding shares of Common Stock into a greater number of shares, or (iii) combine or reclassify its outstanding shares of Common Stock into a smaller number of shares, the Exercise Price in effect at the time of the record date for such dividend or distribution or of the effective date of such subdivision, combination or reclassification shall be adjusted so that it shall equal the price determined by multiplying the Exercise Price by a fraction, the denominator 3 of which shall be the number of shares of Common Stock outstanding after giving effect to such action, and the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to such action. Such adjustment shall be made successively whenever any event listed above shall occur. (2) In case the Company shall fix a record date for the issuance of rights or warrants to all holders of its Common Stock entitling them to subscribed for or purchase shares of Common Stock (or securities) convertible into Common Stock) at a price (the "Subscription Price") (or having a conversion price per share) less than the current market price of the Common Stock (as defined in Subsection (8) below) on the record date mentioned below, or less than the Exercise Price on such record date the Exercise Price shall be adjusted so that the same shall equal the lower of (i) the price determined by multiplying the Exercise Price in effect immediately prior to the date of such issuance by a fraction, the numerator of which shall be the sum of the number of shares of Common Stock outstanding on the record date mentioned below and the number of additional shares of Common Stock which the aggregate offering price of the total number of shares of Common Stock so offered (or the aggregate conversion price of the convertible securities so offered) would purchase at such current market price per share of the Common Stock, and the denominator of which shall be the sum of the number of shares of Common Stock outstanding on such record date and the number of additional shares of Common Stock offered for subscription or purchase (or into which the convertible securities so offered are convertible) or (ii) in the event the Subscription Price is equal to or higher than the current market price but is less than the Exercise Price, the price determined by multiplying the Exercise Price in effect immediately prior to the date of issuance by a fraction, the numerator of which shall be the sum of the number of shares outstanding on the record date mentioned below and the number of additional shares of Common Stock which the aggregate offering price of the total number of shares of Common Stock so offered (or the aggregate conversion price of the convertible securities so offered) would purchase at the Exercise Price in effect immediately prior to the date of such issuance, and the denominator of which shall be the sum of the number of shares of Common Stock outstanding on the record date mentioned below and the number of additional shares of Common Stock offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustment shall be made successively whenever such rights or warrants are issued and shall become effective immediately after the record date for the determination of shareholders entitled to receive such rights or warrants; and to the extent that shares of Common Stock are not delivered (or securities convertible into Common Stock are not delivered) after the expiration of such rights or warrants the Exercise Price shall be readjusted to the Exercise Price which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made upon the basis of delivery of only the number of shares of Common Stock (or securities convertible into Common Stock) actually delivered. 4 (3) In case the Company shall hereafter distribute to the holders of its Common Stock evidences of its indebtedness or assets (excluding cash dividends or distributions and dividends or distributions referred to in Subsection (1) above) or subscription rights or warrants (excluding those referred to in Subsection (2) above), then in each such case the Exercise Price in effect thereafter shall be determined by multiplying the Exercise Price in effect immediately prior thereto by a fraction, the numerator of which shall be the total number of shares of Common Stock outstanding multiplied by the current market price per share of Common Stock (as defined in Subsection (8) below), less the fair market value (as determined by the Company's Board of Directors) of said assets or evidences of indebtedness so distributed or of such rights or warrants, and the denominator of which shall be the total number of shares of Common Stock outstanding multiplied by such current market price per share of Common Stock. Such adjustment shall be made successively whenever such a record date is fixed. Such adjustment shall be made whenever any such distribution is made and shall become effective immediately after the record date for the determination of shareholders entitled to receive such distribution. (4) In case the Company shall issue shares of its Common Stock excluding shares issued (i) in any of the transactions described in Subsection (1) above, (ii) upon exercise of options granted pursuant to the Company's Stock Option Plan, (iii) upon exercise of warrants outstanding at January 27, 1995 and this Warrant and (iv) to shareholders of any corporation which merges into the Company in proportion to their stock holdings of such corporation immediately prior to such merger, upon such merger, or issued in a bona fide public offering pursuant to a firm commitment underwriting, but only if no adjustment is required pursuant to any other specific subsection of this Section (f) (without regard to Subsection (9) below) with respect to the transaction giving rise to such rights for a consideration per share (the "Offering Price") less than the current market price per share (as defined in Subsection (8) below) on the date the Company fixes the offering price of such additional shares or less than the Exercise Price, the Exercise Price shall be adjusted immediately thereafter so that it shall equal the lower of (i) the price determined by multiplying the Exercise Price in effect immediately prior thereto by a fraction, the numerator of which shall be the sum of the number of shares of Common Stock outstanding immediately prior to the issuance of such additional shares and the number of shares of Common Stock which the aggregate consideration received (determined as provided in Subsection (7) below) for the issuance of such additional shares would purchase at such current market price per share of Common Stock, and the denominator of which shall be the number of shares of Common Stock outstanding immediately after the issuance of such additional shares or (ii) in the event the Offering Price is equal to or higher than the current market price per share but less than the Exercise Price, the price determined by multiplying the Exercise Price in effect immediately prior to the date of issuance by a fraction, the numerator 5 of which shall be the number of shares of Common Stock outstanding immediately prior to the issuance of such additional shares and the number of shares of Common Stock which the aggregate consideration received (determined as provided in Subsection (7) below) for the issuance of such additional shares would purchase at the Exercise Price in effect immediately prior to the date of such issuance, and the denominator of which shall be the number of shares of Common Stock outstanding immediately after the issuance of such additional shares. Such adjustment shall be made successively whenever such an issuance is made. (5) In case the Company shall issue any securities convertible into or exchangeable for its Common Stock (excluding securities issued in transactions described in Subsections (2) and (3) above) for a consideration per share of Common Stock (the "Conversion Price") initially deliverable upon conversion or exchange or such securities (determined as provided in Subsection (7) below) less than the current market price per share (as defined in Subsection (8) below) in effect immediately prior to the issuance of such securities, or less than the Exercise Price, the Exercise Price shall be adjusted immediately thereafter so that it shall equal the lower of (i) the price determined by multiplying the Exercise Price in effect immediately prior thereto by a fraction, the numerator of which shall be the sum of the number of shares of Common Stock outstanding immediately prior to the issuance of such securities and the number of shares of Common Stock which the aggregate consideration received (determined as provided in Subsection (7) below) for such securities would purchase at such current market price per share of Common Stock, and the denominator of which shall be the sum of the number of shares of Common Stock outstanding immediately prior to such issuance and the maximum number of shares of Common Stock of the Company deliverable upon conversion of or in exchange for such securities at the initial conversion or exchange price or rate or (ii) in the event the Conversion Price is equal to or higher than the current market price per share but less than the Exercise Price, the price determined by multiplying the Exercise Price in effect immediately prior to the date of issuance by a fraction, the numerator of which shall be the sum of the number of shares outstanding immediately prior to the issuance of such securities and the number of shares of Common Stock which the aggregate consideration received (determined as provided in Subsection (7) below) for such securities would purchase at the Exercise Price in effect immediately prior to the date of such issuance, and the denominator of which shall be the sum of the number of shares of Common Stock outstanding immediately prior to the issuance of such securities and the maximum number of shares of Common Stock of the Company deliverable upon conversion of or in exchange for such securities at the initial conversion or exchange price or rate. Such adjustment shall be made successively whenever such an issuance is made. (6) Whenever the Exercise Price payable upon exercise of each Warrant is adjusted pursuant to Subsections (1), (2), (3), (4) and (5) above, the number of 6 Shares purchasable upon exercise of this Warrant shall simultaneously be adjusted by multiplying the number of Shares initially issuable upon exercise of this Warrant by the Exercise Price in effect on the date hereof and dividing the product so obtained by the Exercise Price, as adjusted. (7) For purposes of any computation respecting consideration received pursuant to Subsections (4) and (5) above, the following shall apply: (A) in the case of the issuance of shares of Common Stock for cash, the consideration shall be the amount of such cash, provided that in no case shall any deduction be made for any commissions, discounts or other expenses incurred by the Company for any underwriting of the issue or otherwise in connection therewith; (B) in the case of the issuance of shares of Common Stock for a consideration in whole or in part other than cash, the consideration other than cash shall be deemed to be the fair market value thereof as determined in good faith by the Board of Directors of the Company (irrespective of the accounting treatment thereof), whose determination shall be conclusive; and (C) in the case of the issuance of securities convertible into or exchangeable for shares of Common Stock, the aggregate consideration received therefor shall be deemed to be the consideration received by the Company for the issuance of such securities plus the additional minimum consideration, if any, to be received by the Company upon the conversion or exchange thereof the consideration in each case to be determined in the same manner as provided in clauses (A) and (B) of this Subsection (7). (8) For the purpose of any computation under Subsections (2), (3), (4) and (5) above, the current market price per share of Common Stock at any date shall be deemed to be the lower of (i) the average of the daily closing prices for 30 consecutive business days before such date or (ii) the closing price on the business day immediately preceding such date. The closing price for each day shall be the last sale price regular way or, in case no such reported sale takes place on such day, the average of the last reported bid and asked prices regular way, in either case on the principal national securities exchange on which the Common Stock is admitted to trading or listed, or if not listed or admitted to trading on such exchange, the average of the highest reported bid and lowest reported asked prices as reported by NASDAQ, or other similar organization if NASDAQ is no longer reporting such information, or if not so available, the fair market price as determined by the Board of Directors. 7 (9) No adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one cent ($0.01) in such price; provided, however, that any adjustments which by reason of this Subsection (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment required to be made hereunder. All calculations under this Section (f) shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be. Anything in this Section (f) to the contrary notwithstanding, the Company shall be entitled, but shall not be required, to make such changes in the Exercise Price, in addition to those required by this Section (f), as it shall determine, in its sole discretion, to be advisable in order that any dividend or distribution in shares of Common Stock, or any subdivision, reclassification or combination of Common Stock, hereafter made by the Company shall not result in any Federal Income tax liability to the holders of Common Stock or securities convertible into Common Stock (including Warrants). (10) Whenever the Exercise Price is adjusted, as herein provided, the Company shall promptly cause a notice setting forth the adjusted Exercise Price and adjusted number of Shares issuable upon exercise of each Warrant to be mailed to the Holders, at their last addresses appearing in the Warrant Register, and shall cause a certified copy thereof to be mailed to its transfer agent, if any. The Company may retain a firm of independent certified public accountants selected by the Board of Directors (who may be the regular accountants employed by the Company) to make any computation required by this Section (f), and a certificate signed by such firm shall be conclusive evidence of the correctness of such adjustment. (11) In the event that at any time, as a result of an adjustment made pursuant to Subsection (1) above, the Holder of this Warrant thereafter shall become entitled to receive any shares of the Company, other than Common Stock, thereafter the number of such other shares so receivable upon exercise of this Warrant shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in Subsections (1) to (9), inclusive above. (12) Irrespective of any adjustments in the Exercise Price or the number or kind of shares purchasable upon exercise of this Warrant, Warrants theretofore or thereafter issued may continue to express the same price and number and kind of shares as are stated in the similar Warrants initially issuable pursuant to this Agreement. (g) OFFICER'S CERTIFICATE. Whenever the Exercise Price shall be adjusted as required by the provisions of the foregoing Section, the Company shall forthwith file in the custody of its Secretary or an Assistant Secretary at its principal office and with its stock transfer agent, if any, an officer's certificate showing the adjusted Exercise Price determined as herein 8 provided, setting forth in reasonable detail the facts requiring such adjustment, including a statement of the number of additional shares of Common Stock, if any, and such other facts as shall be necessary to show the reason for and the manner of computing such adjustment. Each such officer's certificate shall be made available at all reasonable times for inspection by the holder or any holder of a Warrant executed and delivered pursuant to Section (a) and the Company shall, forthwith after each such adjustment, mail a copy by certified mail of such certificate to the Holder or any such holder. (h) NOTICES TO WARRANT HOLDERS. So long as this Warrant shall be outstanding, (i) if the Company shall pay any dividend or make any distribution upon the Common Stock or (ii) if the Company shall offer to the holders of Common Stock for subscription or purchase by them any share of any class or any other rights of (iii) if any capital reorganization of the Company, reclassification of the capital stock of the Company, consolidation or merger of the Company with or into another corporation, sale, lease or transfer of all or substantially all of the property and assets of the Company to another corporation, or voluntary or involuntary dissolution, liquidation or winding up of the Company shall be effected, then in any such case, the Company shall cause to be mailed by certified mail to the Holder, at least fifteen days prior the date specified in (x) or (y) below, as the case may be, a notice containing a brief description of the proposed action and stating the date on which (x) a record is to be taken for the purpose of such dividend, distribution or rights, or (y) such reclassification, reorganization, consolidation, merger, conveyance, lease, dissolution, liquidation or winding up is to take place and the date, if any is to be fixed, as of which the holders of Common Stock or other securities shall receive cash or other property deliverable upon such reclassification, reorganization, consolidation, merger, conveyance, dissolution, liquidation or winding up. (i) RECLASSIFICATION, REORGANIZATION OR MERGER. In case of any reclassification, capital reorganization or other change of outstanding shares of Common Stock of the Company, or in case of any consolidation or merger of the Company with or into another corporation (other than a merger with a subsidiary in which merger the Company is the continuing corporation and which does not result in any reclassification, capital reorganization or other change of outstanding shares of Common Stock of the class issuable upon exercise of this Warrant) or in case of any sale, lease or conveyance to another corporation of the property of the Company as an entirety, the Company shall, as a condition precedent to such transaction, cause effective provisions to be made so that the Holder shall have the right thereafter by exercising this Warrant at any time prior to the expiration of the Warrant, to purchase the kind and amount of shares of stock and other securities and property receivable upon such reclassification, capital reorganization and other change, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock which might have been purchased upon exercise of this Warrant immediately prior to such reclassification, change, consolidation, merger, sale or conveyance. Any such provision shall include provision for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Warrant. The foregoing provisions of this Section (i) shall similarly apply to successive reclassifications, capital reorganizations and changes of shares of Common Stock and to successive consolidations, mergers, sales or conveyances. In the event that in connection with 9 any such capital reorganization or reclassification, consolidation, merger, sale or conveyance, additional shares of Common Stock shall be issued in exchange, conversion, substitution or payment, in whole or in part, for a security of the Company other than Common Stock, any such issue shall be treated as an issue of Common Stock covered by the provisions of Subsection (1) of Section (f) hereof. IN WITNESS whereof, the Company has duly executed this Warrant as of the date below. WHITMAN MEDICAL CORP. By:______________________________________ Name: Randy Proto Title: President [SEAL] Dated: ___________________, 1995 Attest: ___________________ Joseph Lichtenstein, Secretary 10 PURCHASER FORM Dated_____________, 19 The undersigned hereby irrevocably elects to exercise the within Warrant to the extent of purchasing ____________ shares of Common Stock and hereby makes payment of__________ in payment of the actual exercise price thereof. ___________ INSTRUCTIONS FOR REGISTRATION OF STOCK Name___________________________________________ (Please typewrite or print in block letters) Address_______________________________________ Signature___________________ __________ ASSIGNMENT FORM FOR VALUED RECEIVED,_____________ hereby sells, assigns and transfers unto Name__________________________________ (Please typewrite or print in block letters) Address______________________________ the right to purchase Common Stock represented by this Warrant to the extent of ________shares as to which such right is exercisable and does hereby irrevocably constitute and appoint________ Attorney, to transfer the same on the books of the Company with full power of substitution in the premises. Date____________, 19____ Signature_____________________ 11 EX-7 8 EXHIBIT 7 STOCK PURCHASE WARRANT TO PURCHASE COMMON STOCK OF WHITMAN MEDICAL CORP. THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF (COLLECTIVELY THE "SECURITIES") HAVE BEEN ACQUIRED FOR INVESTMENT ONLY AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR ANY STATE SECURITIES LAW, AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO WHITMAN MEDICAL CORP. THAT AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. Void after 5:00 p.m. New York Time, on February 25, 2001. Warrant to Purchase up to 650,000 shares of Common Stock. WARRANT TO PURCHASE COMMON STOCK OF WHITMAN MEDICAL CORP. This is to Certify That, FOR VALUE RECEIVED, Phillip Frost ("Frost"), or assigns (collectively, "Holder"), is entitled to purchase, subject to the provisions of this Warrant, from Whitman Medical Corp., a New Jersey corporation ("Company"), up to 650,000 fully paid, validly issued and nonassessable shares of Common Stock, no par value per share, of the Company ("Common Stock") at a price of $8.50 per share at any time or from time to time during the period from February 26, 1996 to February 25, 2001, but not later than 5:00 p.m. New York City Time, on February 25, 2001. The number of shares of Common Stock to be received upon the exercise of this Warrant and the price to be paid for each share of Common Stock may be adjusted from time to time as hereinafter set forth. The shares of Common Stock deliverable upon such exercise, and as adjusted from time to time, are hereinafter sometimes referred to as "Warrant Shares" and the exercise price of a share of Common Stock in effect at any time and as adjusted from time to time is hereinafter sometimes referred to as the "Exercise Price". (a) EXERCISE OF WARRANT. This Warrant may be exercised in whole or in part at any time or from time to time on or after February 26, 1996 and until February 25, 2001, provided, however, that (i) if either such day is a day on which banking institutions in the State of New Jersey are authorized by law to close, then on the next succeeding day which shall not be such a day, and (ii) in the event of any merger, consolidation or sale of substantially all the assets of the Company as an entirety, resulting in any distribution to the Company's stockholders, prior to February 25, 2001, the Holder shall have the right to exercise this Warrant commencing at such time through February 25, 2001 into the kind and amount of shares of stock and other securities and property (including cash) receivable by a holder of the number of shares of Common Stock into which this Warrant might have been exercisable immediately prior thereto. This Warrant may only be exercised subject to the limitations imposed by the New Jersey Shareholders Protection Act (N.J.S.A. 14A:10A-1 et seq.), including, without limitation, the prohibitions against entering into a"business combination" with an "interested shareholder", provided however, that if at the time of exercise the Company is not subject to such act, no such limitations shall apply. This Warrant may be exercised by presentation and surrender hereof to the Company at its principal office, or at the office of its stock transfer agent, if any, with the Purchase Form annexed hereto duly executed and accompanied by payment of the Exercise Price for the number of Warrant Shares specified in such form. As soon as practicable after each such exercise of the warrants, but not later than seven (7) days from the date of such exercise, the Company shall issue and deliver to the Holder a certificate or certificates for the Warrant Shares issuable upon such exercise, registered in the name of the Holder or its designee. If this Warrant should be exercised in part only, the Company shall, upon surrender of this Warrant for cancellation, execute and deliver a new Warrant evidencing the rights of the Holder thereof to purchase the balance of the Warrant Shares purchasable thereunder. Upon receipt by the Company of this Warrant at its office, or by the stock transfer agent of the Company at its office, in proper form for exercise, the Holder shall be deemed to be the holder of record of the shares of Common Stock issuable upon such exercise, notwithstanding that the stock transfer books of the Company shall then be closed or that certificates representing such shares of Common Stock shall not then be physically delivered to the Holder. (b) RESERVATION OF SHARES. The Company shall at all times reserve for issuance and/or delivery upon exercise of this Warrant such number of shares of its Common Stock as shall be required for issuance and delivery upon exercise of the Warrants. (c) FRACTIONAL SHARES. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. With respect to any fraction of a share called for upon any exercise hereof, the Company shall pay to the Holder an amount in cash equal to such fraction multiplied by the current market value of a share, determined as follows: (1) If the Common Stock is listed on a National Securities Exchange or admitted to unlisted trading privileges on such exchange or listed for trading on the NASDAQ system, the current market value shall be the last reported sale price of the Common Stock on such exchange or system on the last business day prior to the date of exercise of this Warrant or if no such sale is made on such day, the average closing bid and asked prices for such day on such exchange or system; or (2) If the Common Stock is not so listed or admitted to unlisted trading privileges, the current market value shall be the mean of the last reported bid and asked prices reported by the National Quotations Bureau, Inc. on the last business day prior to the date of the exercise of this Warrant; or 2 (3) If the Common Stock is not so listed or admitted to unlisted trading privileges and bid and asked prices are not so reported, the current market value shall be an amount, not less than book value thereof as at the end of the most recent fiscal year of the Company ending prior to the date of the exercise of the Warrant, determined in such reasonable manner as may be prescribed by the Board of Directors of the Company. (d) EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT. This Warrant is exchangeable, without expense, at the option of the Holder, upon presentation and surrender hereof to the Company or at the office of its stock transfer agent, if any, for other warrants of different denominations entitling the holder thereof to purchase in the aggregate the same number of shares of Common Stock purchasable hereunder. Upon surrender of this Warrant to the Company at its principal office or at the office of its stock transfer agent, if any, with the Assignment Form annexed hereto duly executed and funds sufficient to pay any transfer tax, the Company shall, without charge, execute and deliver a new Warrant in the name of the assignee named in such instrument of assignment and this Warrant shall promptly be cancelled. This Warrant may be divided or combined with other warrants which carry the same rights upon presentation hereof at the principal office of the Company or at the office of its stock transfer agent, if any, together with a written notice specifying the names and denominations in which new Warrants are to be issued and signed by the Holder hereof. The term "Warrant" as used herein includes any Warrants into which this Warrant may be divided or exchanged. Upon receipt by the Company of evidence satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and (in the case of loss, theft or destruction) of reasonably satisfactory indemnification, and upon surrender and cancellation of this Warrant, if mutilated, the Company will execute and deliver a new Warrant of like tenor and date. Any such new Warrant executed and delivered shall constitute an additional contractual obligation on the part of the Company, whether or not this Warrant so lost, stolen, destroyed, or mutilated shall be at any time enforceable by anyone. (e) RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be entitled to any rights of a shareholder in the Company, either at law or equity, and the rights of the Holder are limited to those expressed in the Warrant and are not enforceable against the Company except to the extent set forth herein. (f) ANTI-DILUTION PROVISIONS. The Exercise Price in effect at any time and the number and kind of securities purchasable upon the exercise of the Warrants shall be subject to adjustment from time to time upon the happening of certain events as follows: (1) In case the Company shall (i) declare a dividend or make a distribution on its outstanding shares of Common Stock in shares of Common Stock, (ii) subdivide or reclassify its outstanding shares of Common Stock into a greater number of shares, or (iii) combine or reclassify its outstanding shares of Common Stock into a smaller number of shares, the Exercise Price in effect at the time of the record date for such dividend or distribution or of the effective date of such 3 subdivision, combination or reclassification shall be adjusted so that it shall equal the price determined by multiplying the Exercise Price by a fraction, the denominator of which shall be the number of shares of Common Stock outstanding after giving effect to such action, and the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to such action. Such adjustment shall be made successively whenever any event listed above shall occur. (2) In case the Company shall fix a record date for the issuance of rights or warrants to all holders of its Common Stock entitling them to subscribed for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price (the "Subscription Price") (or having a conversion price per share) less than the current market price of the Common Stock (as defined in Subsection (8) below) on the record date mentioned below, or less than the Exercise Price on such record date the Exercise Price shall be adjusted so that the same shall equal the lower of (i) the price determined by multiplying the Exercise Price in effect immediately prior to the date of such issuance by a fraction, the numerator of which shall be the sum of the number of shares of Common Stock outstanding on the record date mentioned below and the number of additional shares of Common Stock which the aggregate offering price of the total number of shares of Common Stock so offered (or the aggregate conversion price of the convertible securities so offered) would purchase at such current market price per share of the Common Stock, and the denominator of which shall be the sum of the number of shares of Common Stock outstanding on such record date and the number of additional shares of Common Stock offered for subscription or purchase (or into which the convertible securities so offered are convertible) or (ii) in the event the Subscription Price is equal to or higher than the current market price but is less than the Exercise Price, the price determined by multiplying the Exercise Price in effect immediately prior to the date of issuance by a fraction, the numerator of which shall be the sum of the number of shares outstanding on the record date mentioned below and the number of additional shares of Common Stock which the aggregate offering price of the total number of shares of Common Stock so offered (or the aggregate conversion price of the convertible securities so offered) would purchase at the Exercise Price in effect immediately prior to the date of such issuance, and the denominator of which shall be the sum of the number of shares of Common Stock outstanding on the record date mentioned below and the number of additional shares of Common Stock offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustment shall be made successively whenever such rights or warrants are issued and shall become effective immediately after the record date for the determination of shareholders entitled to receive such rights or warrants; and to the extent that shares of Common Stock are not delivered (or securities convertible into Common Stock are not delivered) after the expiration of such rights or warrants the Exercise Price shall be readjusted to the Exercise Price which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made 4 upon the basis of delivery of only the number of shares of Common Stock (or securities convertible into Common Stock) actually delivered. (3) In case the Company shall hereafter distribute to the holders of its Common Stock evidences of its indebtedness or assets (excluding cash dividends or distributions and dividends or distributions referred to in Subsection (1) above) or subscription rights or warrants (excluding those referred to in Subsection (2) above), then in each such case the Exercise Price in effect thereafter shall be determined by multiplying the Exercise Price in effect immediately prior thereto by a fraction, the numerator of which shall be the total number of shares of Common Stock outstanding multiplied by the current market price per share of Common Stock (as defined in Subsection (8) below), less the fair market value (as determined by the Company's Board of Directors) of said assets or evidences of indebtedness so distributed or of such rights or warrants, and the denominator of which shall be the total number of shares of Common Stock outstanding multiplied by such current market price per share of Common Stock. Such adjustment shall be made successively whenever such a record date is fixed. Such adjustment shall be made whenever any such distribution is made and shall become effective immediately after the record date for the determination of shareholders entitled to receive such distribution. (4) In case the Company shall issue shares of its Common Stock excluding shares issued (i) in any of the transactions described in Subsection (1) above, (ii) upon exercise of options granted pursuant to the Company's Stock Option Plan, (iii) upon exercise of warrants outstanding at February 26, 1996 and this Warrant and (iv) to shareholders of any corporation which merges into the Company in proportion to their stock holdings of such corporation immediately prior to such merger, upon such merger, or issued in a bona fide public offering pursuant to a firm commitment underwriting, but only if no adjustment is required pursuant to any other specific subsection of this Section (f) (without regard to Subsection (9) below) with respect to the transaction giving rise to such rights for a consideration per share (the "Offering Price") less than the current market price per share (as defined in Subsection (8) below) on the date the Company fixes the offering price of such additional shares or less than the Exercise Price, the Exercise Price shall be adjusted immediately thereafter so that it shall equal the lower of (i) the price determined by multiplying the Exercise Price in effect immediately prior thereto by a fraction, the numerator of which shall be the sum of the number of shares of Common Stock outstanding immediately prior to the issuance of such additional shares and the number of shares of Common Stock which the aggregate consideration received (determined as provided in Subsection (7) below) for the issuance of such additional shares would purchase at such current market price per share of Common Stock, and the denominator of which shall be the number of shares of Common Stock outstanding immediately after the issuance of such additional shares or (ii) in the 5 event the Offering Price is equal to or higher than the current market price per share but less than the Exercise Price, the price determined by multiplying the Exercise Price in effect immediately prior to the date of issuance by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to the issuance of such additional shares and the number of shares of Common Stock which the aggregate consideration received (determined as provided in Subsection (7) below) for the issuance of such additional shares would purchase at the Exercise Price in effect immediately prior to the date of such issuance, and the denominator of which shall be the number of shares of Common Stock outstanding immediately after the issuance of such additional shares. Such adjustment shall be made successively whenever such an issuance is made. (5) In case the Company shall issue any securities convertible into or exchangeable for its Common Stock (excluding securities issued in transactions described in Subsections (2) and (3) above) for a consideration per share of Common Stock (the "Conversion Price") initially deliverable upon conversion or exchange or such securities (determined as provided in Subsection (7) below) less than the current market price per share (as defined in Subsection (8) below) in effect immediately prior to the issuance of such securities, or less than the Exercise Price, the Exercise Price shall be adjusted immediately thereafter so that it shall equal the lower of (i) the price determined by multiplying the Exercise Price in effect immediately prior thereto by a fraction, the numerator of which shall be the sum of the number of shares of Common Stock outstanding immediately prior to the issuance of such securities and the number of shares of Common Stock which the aggregate consideration received (determined as provided in Subsection (7) below) for such securities would purchase at such current market price per share of Common Stock, and the denominator of which shall be the sum of the number of shares of Common Stock outstanding immediately prior to such issuance and the maximum number of shares of Common Stock of the Company deliverable upon conversion of or in exchange for such securities at the initial conversion or exchange price or rate or (ii) in the event the Conversion Price is equal to or higher than the current market price per share but less than the Exercise Price, the price determined by multiplying the Exercise Price in effect immediately prior to the date of issuance by a fraction, the numerator of which shall be the sum of the number of shares outstanding immediately prior to the issuance of such securities and the number of shares of Common Stock which the aggregate consideration received (determined as provided in Subsection (7) below) for such securities would purchase at the Exercise Price in effect immediately prior to the date of such issuance, and the denominator of which shall be the sum of the number of shares of Common Stock outstanding immediately prior to the issuance of such securities and the maximum number of shares of Common Stock of the Company deliverable upon conversion of or in exchange for such securities at the initial conversion or exchange price or rate. Such adjustment shall be made successively whenever such an issuance is made. 6 (6) Whenever the Exercise Price payable upon exercise of each Warrant is adjusted pursuant to Subsections (1), (2), (3), (4) and (5) above, the number of Shares purchasable upon exercise of this Warrant shall simultaneously be adjusted by multiplying the number of Shares initially issuable upon exercise of this Warrant by the Exercise Price in effect on the date hereof and dividing the product so obtained by the Exercise Price, as adjusted. (7) For purposes of any computation respecting consideration received pursuant to Subsections (4) and (5) above, the following shall apply: (A) in the case of the issuance of shares of Common Stock for cash, the consideration shall be the amount of such cash, provided that in no case shall any deduction be made for any commissions, discounts or other expenses incurred by the Company for any underwriting of the issue or otherwise in connection therewith; (B) in the case of the issuance of shares of Common Stock for a consideration in whole or in part other than cash, the consideration other than cash shall be deemed to be the fair market value thereof as determined in good faith by the Board of Directors of the Company (irrespective of the accounting treatment thereof), whose determination shall be conclusive; and (C) in the case of the issuance of securities convertible into or exchangeable for shares of Common Stock, the aggregate consideration received therefor shall be deemed to be the consideration received by the Company for the issuance of such securities plus the additional minimum consideration, if any, to be received by the Company upon the conversion or exchange thereof the consideration in each case to be determined in the same manner as provided in clauses (A) and (B) of this Subsection (7). (8) For the purpose of any computation under Subsections (2), (3), (4) and (5) above, the current market price per share of Common Stock at any date shall be deemed to be the lower of (i) the average of the daily closing prices for 30 consecutive business days before such date or (ii) the closing price on the business day immediately preceding such date. The closing price for each day shall be the last sale price regular way or, in case no such reported sale takes place on such day, the average of the last reported bid and asked prices regular way, in either case on the principal national securities exchange on which the Common Stock is admitted to trading or listed, or if not listed or admitted to trading on such exchange, the average of the highest reported bid and lowest reported asked prices as reported by NASDAQ, or other similar organization if NASDAQ is no longer reporting such information, or if not so available, the fair market price as determined by the Board of Directors. 7 (9) No adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one cent ($0.01) in such price; provided, however, that any adjustments which by reason of this Subsection (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment required to be made hereunder. All calculations under this Section (f) shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be. Anything in this Section (f) to the contrary notwithstanding, the Company shall be entitled, but shall not be required, to make such changes in the Exercise Price, in addition to those required by this Section (f), as it shall determine, in its sole discretion, to be advisable in order that any dividend or distribution in shares of Common Stock, or any subdivision, reclassification or combination of Common Stock, hereafter made by the Company shall not result in any Federal Income tax liability to the holders of Common Stock or securities convertible into Common Stock (including Warrants). (10) Whenever the Exercise Price is adjusted, as herein provided, the Company shall promptly cause a notice setting forth the adjusted Exercise Price and adjusted number of Shares issuable upon exercise of each Warrant to be mailed to the Holders, at their last addresses appearing in the Warrant Register, and shall cause a certified copy thereof to be mailed to its transfer agent, if any. The Company may retain a firm of independent certified public accountants selected by the Board of Directors (who may be the regular accountants employed by the Company) to make any computation required by this Section (f), and a certificate signed by such firm shall be conclusive evidence of the correctness of such adjustment. (11) In the event that at any time, as a result of an adjustment made pursuant to Subsection (1) above, the Holder of this Warrant thereafter shall become entitled to receive any shares of the Company, other than Common Stock, thereafter the number of such other shares so receivable upon exercise of this Warrant shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in Subsections (1) to (9), inclusive above. (12) Irrespective of any adjustments in the Exercise Price or the number or kind of shares purchasable upon exercise of this Warrant, Warrants theretofore or thereafter issued may continue to express the same price and number and kind of shares as are stated in the similar Warrants initially issuable pursuant to this Agreement. (g) OFFICER'S CERTIFICATE. Whenever the Exercise Price shall be adjusted as required by the provisions of the foregoing Section, the Company shall forthwith file in the custody of its Secretary or an Assistant Secretary at its principal office and with its stock transfer agent, if any, an officer's certificate showing the adjusted Exercise Price determined as herein 8 provided, setting forth in reasonable detail the facts requiring such adjustment, including a statement of the number of additional shares of Common Stock, if any, and such other facts as shall be necessary to show the reason for and the manner of computing such adjustment. Each such officer's certificate shall be made available at all reasonable times for inspection by the holder or any holder of a Warrant executed and delivered pursuant to Section (a) and the Company shall, forthwith after each such adjustment, mail a copy by certified mail of such certificate to the Holder or any such holder. (h) NOTICES TO WARRANT HOLDERS. So long as this Warrant shall be outstanding, (i) if the Company shall pay any dividend or make any distribution upon the Common Stock or (ii) if the Company shall offer to the holders of Common Stock for subscription or purchase by them any share of any class or any other rights of (iii) if any capital reorganization of the Company, reclassification of the capital stock of the Company, consolidation or merger of the Company with or into another corporation, sale, lease or transfer of all or substantially all of the property and assets of the Company to another corporation, or voluntary or involuntary dissolution, liquidation or winding up of the Company shall be effected, then in any such case, the Company shall cause to be mailed by certified mail to the Holder, at least fifteen days prior the date specified in (x) or (y) below, as the case may be, a notice containing a brief description of the proposed action and stating the date on which (x) a record is to be taken for the purpose of such dividend, distribution or rights, or (y) such reclassification, reorganization, consolidation, merger, conveyance, lease, dissolution, liquidation or winding up is to take place and the date, if any is to be fixed, as of which the holders of Common Stock or other securities shall receive cash or other property deliverable upon such reclassification, reorganization, consolidation, merger, conveyance, dissolution, liquidation or winding up. (i) RECLASSIFICATION, REORGANIZATION OR MERGER. In case of any reclassification, capital reorganization or other change of outstanding shares of Common Stock of the Company, or in case of any consolidation or merger of the Company with or into another corporation (other than a merger with a subsidiary in which merger the Company is the continuing corporation and which does not result in any reclassification, capital reorganization or other change of outstanding shares of Common Stock of the class issuable upon exercise of this Warrant) or in case of any sale, lease or conveyance to another corporation of the property of the Company as an entirety, the Company shall, as a condition precedent to such transaction, cause effective provisions to be made so that the Holder shall have the right thereafter by exercising this Warrant at any time prior to the expiration of the Warrant, to purchase the kind and amount of shares of stock and other securities and property receivable upon such reclassification, capital reorganization and other change, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock which might have been purchased upon exercise of this Warrant immediately prior to such reclassification, change, consolidation, merger, sale or conveyance. Any such provision shall include provision for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Warrant. The foregoing provisions of this Section (i) shall similarly apply to successive reclassifications, capital reorganizations and changes of shares of Common Stock and to successive consolidations, mergers, sales or conveyances. In the event that in connection with 9 any such capital reorganization or reclassification, consolidation, merger, sale or conveyance, additional shares of Common Stock shall be issued in exchange, conversion, substitution or payment, in whole or in part, for a security of the Company other than Common Stock, any such issue shall be treated as an issue of Common Stock covered by the provisions of Subsection (1) of Section (f) hereof. IN WITNESS whereof, the Company has duly executed this Warrant as of the date below. WHITMAN MEDICAL CORP. By: /S/ RANDY S. PROTO ______________________________ Name: Randy S. Proto Title: President [SEAL] Dated: February 26, 1996 Attest: /S/ FERNANDO FERNANDEZ ______________________ Fernando Fernandez, Secretary 10 PURCHASER FORM Dated_________,_______ The undersigned hereby irrevocably elects to exercise the within Warrant to the extent of purchasing____ shares of Common Stock and hereby makes payment of _______ in payment of the actual exercise price thereof. INSTRUCTIONS FOR REGISTRATION OF STOCK Name___________________________________________ (Please typewrite or print in block letters) Address________________________________________ Signature____________________ ____________ ASSIGNMENT FORM FOR VALUED RECEIVED,____________ hereby sells, assigns and transfers unto Name__________________________________________ (Please typewrite or print in block letters) Address________________________________________ the right to purchase Common Stock represented by this Warrant to the extent of ________ shares as to which such right is exercisable and does hereby irrevocably constitute and appoint ________ Attorney, to transfer the same on the books of the Company with full power of substitution in the premises. Date_________,_____ Signature__________ 11 EX-8 9 EXHIBIT 8 DIRECTORS AND CONSULTANTS STOCK OPTION AGREEMENT THIS AGREEMENT is made as of November 20, 1992 between Whitman Medical Corp. ("Company") and Phillip Frost, M.D. ("Optionee"). Terms used herein have the same meaning as in the Company's 1986 Directors and Consultants Stock Option Plan ("Plan"). 1. The Company hereby grants to Optionee an option (the "Option") to purchase 25,000 of the Company's common shares, no par value per share ("Shares"), pursuant and subject to the terms of the Plan, a copy of which has been delivered to Optionee and which is incorporated herein by reference. 2. The Option price per Share shall be $7.50. 3. The Option shall expire on November 19, 2002 unless earlier terminated. 4. The Option shall not be transferable otherwise than by will or by the laws of descent and distribution and during the lifetime of Optionee shall be exercisable only by Optionee. 5. The Option is not limited in the period of time in which it is exercisable by reason of the Optionee ceasing to be a director or a consultant to the Company, provided that the Option shall not be exercisable beyond the expiration date set forth in Section 3. 6. Nothing herein or in the Plan shall confer upon any director of or consultant to the Company any right to continue in the service of the Company. 7. The Option and the Plan are subject to adjustments, modifications and amendments as provided in the Plan. 8. Subject to the Plan, this Agreement shall bind and inure to the benefit of the Company, Optionee and their respective successors, assigns and personal representatives. 9. This Agreement will be governed by and construed under the laws of New Jersey. 10. Any disputes, claims or interpretive issues arising hereunder shall be determined by the Board of Directors or a committee thereof in its sole and absolute discretion, and such determination shall be final and uncontestable. IN WITNESS WHEREOF, the undersigned have executed this Agreement to be effective from the date first above written. WHITMAN MEDICAL CORP. By: ------------------------- ------------------------- PHILLIP FROST, M.D. EX-9 10 EXHIBIT 9 DIRECTORS AND CONSULTANTS STOCK OPTION AGREEMENT THIS AGREEMENT is made as of October 1, 1993 between Whitman Medical Corp. ("Company") and Phillip Frost, M.D. ("Optionee"). Terms used herein have the same meaning as in the Company's 1986 Directors and Consultants Stock Option Plan ("Plan"). 1. The Company hereby grants to Optionee an option (the "Option") to purchase 25,000 of the Company's common shares, no par value per share ("Shares"), pursuant and subject to the terms of the Plan, a copy of which has been delivered to Optionee and which is incorporated herein by reference. 2. The Option price per Share shall be $11.75. 3. The Option shall expire on September 30, 2003 unless earlier terminated. 4. The Option shall not be transferable otherwise than by will or by the laws of descent and distribution and during the lifetime of Optionee shall be exercisable only by Optionee. 5. The Option is not limited in the period of time in which it is exercisable by reason of the Optionee ceasing to be a director or a consultant to the Company, provided that the Option shall not be exercisable beyond the expiration date set forth in Section 3. 6. Nothing herein or in the Plan shall confer upon any director of or consultant to the Company any right to continue in the service of the Company. 7. The Option and the Plan are subject to adjustments, modifications and amendments as provided in the Plan. 8. Subject to the Plan, this Agreement shall bind and inure to the benefit of the Company, Optionee and their respective successors, assigns and personal representatives. 9. This Agreement will be governed by and construed under the laws of New Jersey. 10. Any disputes, claims or interpretive issues arising hereunder shall be determined by the Board of Directors or a committee thereof in its sole and absolute discretion, and such determination shall be final and uncontestable. IN WITNESS WHEREOF, the undersigned have executed this Agreement to be effective from the date first above written. WHITMAN MEDICAL CORP. By:___________________________ --------------------------- PHILLIP FROST, M.D. EX-10 11 EXHIBIT 10 DIRECTORS AND CONSULTANTS STOCK OPTION AGREEMENT THIS AGREEMENT is made as of October 21, 1994 between Whitman Medical Corp. ("Company") and Phillip Frost, M.D. ("Optionee"). Terms used herein have the same meaning as in the Company's 1986 Directors and Consultants Stock Option Plan ("Plan"). 1. The Company hereby grants to Optionee an option (the "Option") to purchase 25,000 of the Company's common shares, no par value per share ("Shares"), pursuant and subject to the terms of the Plan, a copy of which has been delivered to Optionee and which is incorporated herein by reference. 2. The Option price per Share shall be $4.88. 3. The Option shall expire on October 20, 2004 unless earlier terminated. 4. The Option shall not be transferable otherwise than by will or by the laws of descent and distribution and during the lifetime of Optionee shall be exercisable only by Optionee. 5. The Option is not limited in the period of time in which it is exercisable by reason of the Optionee ceasing to be a director or a consultant to the Company, provided that the Option shall not be exercisable beyond the expiration date set forth in Section 3. 6. Nothing herein or in the Plan shall confer upon any director of or consultant to the Company any right to continue in the service of the Company. 7. The Option and the Plan are subject to adjustments, modifications and amendments as provided in the Plan. 8. Subject to the Plan, this Agreement shall bind and inure to the benefit of the Company, Optionee and their respective successors, assigns and personal representatives. 9. This Agreement will be governed by and construed under the laws of New Jersey. 10. Any disputes, claims or interpretive issues arising hereunder shall be determined by the Board of Directors or a committee thereof in its sole and absolute discretion, and such determination shall be final and uncontestable. IN WITNESS WHEREOF, the undersigned have executed this Agreement to be effective from the date first above written. WHITMAN MEDICAL CORP. By: -------------------------- -------------------------- PHILLIP FROST, M.D. EX-11 12 EXHIBIT 11 DIRECTORS AND CONSULTANTS STOCK OPTION AGREEMENT THIS AGREEMENT is made as of November 9, 1995 between Whitman Medical Corp. ("Company") and Phillip Frost, M.D. ("Optionee"). Terms used herein have the same meaning as in the Company's 1986 Directors and Consultants Stock Option Plan ("Plan"). 1. The Company hereby grants to Optionee an option (the "Option") to purchase 25,000 of the Company's common shares, no par value per share ("Shares"), pursuant and subject to the terms of the Plan, a copy of which has been delivered to Optionee and which is incorporated herein by reference. 2. The Option price per Share shall be $6.375. 3. The Option shall expire on November 9, 2005 unless earlier terminated. 4. The Option shall not be transferable otherwise than by will or by the laws of descent and distribution and during the lifetime of Optionee shall be exercisable only by Optionee. 5. The Option is not limited in the period of time in which it is exercisable by reason of the Optionee ceasing to be a director or a consultant to the Company, provided that the Option shall not be exercisable beyond the expiration date set forth in Section 3. 6. Nothing herein or in the Plan shall confer upon any director of or consultant to the Company any right to continue in the service of the Company. 7. The Option and the Plan are subject to adjustments, modifications and amendments as provided in the Plan. 8. Subject to the Plan, this Agreement shall bind and inure to the benefit of the Company, Optionee and their respective successors, assigns and personal representatives. 9. This Agreement will be governed by and construed under the laws of New Jersey. 10. The exercise of the Option is subject to the New Jersey Shareholders Protection Act. 11. Any disputes, claims or interpretive issues arising hereunder shall be determined by the Board of Directors or a committee thereof in its sole and absolute discretion, and such determination shall be final and uncontestable. IN WITNESS WHEREOF, the undersigned have executed this Agreement to be effective from the date first above written. WHITMAN MEDICAL CORP. By:___________________________ --------------------------- PHILLIP FROST, M.D. -----END PRIVACY-ENHANCED MESSAGE-----