EXHIBIT 4.6
THIS WARRANT AND THE COMMON STOCK ISSUABLE WITH RESPECT HERETO HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE BLUE
SKY ACTS AND MAY BE TRANSFERRED OR SOLD ONLY PURSUANT TO REGISTRATION UNDER SUCH
ACTS, OR TO EXEMPTIONS THEREUNDER.
DATA CRITICAL CORP.
an Oklahoma corporation
(the "Company")
July 10, 1996
For the Purchase of 199,363 Shares of the
Company's Common Stock, $.001 par value
COMMON STOCK PURCHASE WARRANT
This certifies that Xxxxx Xxxxxxx, or such person's registered assigns (the
"Warrant Holder"), is entitled, subject to the terms and conditions hereinafter
set forth at any time on or before July 10, 2000, to purchase from time to time
up to a total of 199,363 shares of the Company's common stock, $0.001 par value
(the "Common Stock"), at a price per share of $.80 (the "Purchase Price"). The
number of shares of Common Stock purchasable under this Common Stock Purchase
Warrant (the "Warrant") and the Purchase Price thereof shall be subject to
adjustment as hereinafter provided.
The Purchase Price shall be payable in cash or by certified or bank
cashier's check in lawful funds of the United States of America or by
cancellation of indebtedness. Upon presentation and surrender of this Warrant,
together with payment of the Purchase Price for the shares of Common Stock
thereby purchased, at the office of the Company's Transfer Agent for the
transfer of such stock or, if at any time there is no such Transfer Agent, at
the principal office of the Company, the Warrant Holder shall be entitled to
receive a certificate or certificates for the shares of Common Stock so
purchased (the "Shares"). All Shares that may be issued upon the exercise of
this Warrant will, upon issuance, be fully paid, nonassessable, and free from
all taxes, liens, and charges with respect thereto.
This Warrant is subject to the following additional terms and conditions:
1. Exercise of Warrant.
1.1. At Warrant Holder's Option. (a) Subject to the vesting
provisions of Sections 1.1(b) and (c), this Warrant may be exercised at any time
on or before July 10, 2000 (the "Termination Date"), and the purchase rights
represented hereby are exercisable solely at the Warrant Holder's option. If
the Warrant Holder does not exercise its right to purchase the number of shares
of Common Stock designated herein, this Warrant shall automatically expire
on the Termination Date. In the event the Warrant Holder purchases less than all
the shares purchasable under this Warrant, the Company shall cancel this Warrant
upon the surrender hereof and execute and deliver a new Warrant of like tenor
for the balance of the shares purchasable hereunder.
(b) This Warrant shall be immediately vested as to 37,380 shares of
Common Stock. The remaining 161,983 shares shall vest in quarterly increments
of 7.69% per quarter, at the end of each of the next 13 calendar quarters,
commencing the quarter ending September 30, 1996.
(c) Provided that DCC is not in default or breach of that certain
Product Development Agreement (the "Product Development Agreement"), dated July
10, 1996, by and between the Company and the Warrant Holder, if DCC terminates
the Product Development Agreement under Section 3(c) thereof, or if Nomadics or
Xxxxx Xxxxxxx terminates under Section 3(b) thereof, this Warrant shall
automatically terminate as to any unvested shares purchasable at the time of
such termination.
1.2. Payment of Purchase Price. The Purchase Price shall be payable
in any one of the following ways, or in any combination thereof:
a. Cash. The Purchase Price is payable in cash or by
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certified or bank cashier's check in lawful funds of the United States
of America.
b. Cancellation of Indebtedness. The Purchase Price is
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payable through the cancellation of indebtedness owed by the Company
to the Warrant Holder.
c. Common Stock. The Purchase Price is payable by delivery
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to the Company of shares of the Company's Common Stock owned by the
Warrant Holder. The shares of Common Stock constituting such payment
shall be valued at Fair Market Value on the date of delivery. For
purposes of this Warrant, "Fair Market Value" of a share of Common
Stock on a given day means the average of one of the following prices
for the five trading days immediately preceding such given day of
valuation: (i) if the Common Stock is listed on an established stock
exchange or exchanges or the NASDAQ National Market System, the
highest closing sales price of Common Stock as reported thereon; or if
not so reported, (ii) the average of the bid and asked prices, as
quoted on the NASDAQ Small-Cap Market, NASDAQ Bulletin Board, or by
the National Quotations Bureau. If the Common Stock shall not be so
quoted, the Fair Market Value shall be determined by the Board of
Directors of the Company taking into account all relevant facts and
circumstances, but in no event shall the Fair Market Value so
determined by the Board of Directors be less than the price per share
of Common Stock in the Company's equity financing most recently
consummated prior to the
valuation date, with total proceeds to the Company in excess of
$1,000,000.
d. Net-Issuance. In addition to the foregoing methods of
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payment, the Warrant Holder may exercise this Warrant, or a portion
thereof, and the Purchase Price shall be payable in connection
therewith, by relinquishing the right under this Warrant to purchase
an Exercise Block and, in exchange therefor, the Warrant Holder shall
receive that number of shares of Common Stock equal to the number of
shares constituting the Exercise Block, less a number of shares equal
to the quotient of (i) the aggregate Purchase Price for the Exercise
Block, divided by (ii) the Fair Market Value per share of Common Stock
(determined as of the date of relinquishment). For purposes of this
Section 1.2(d), "Exercise Block" shall mean that total number of
shares covered by this Warrant for which the Warrant Holder desires to
relinquish as provided herein.
2. Adjustments.
2.1. Adjustment to Purchase Price. The Purchase Price of the Common
Stock issuable upon exercise of this Warrant shall be subject to adjustment,
from time to time, as follows:
(i)(A) If the Company shall issue any Additional Stock (as
hereinafter defined) after the date hereof for a consideration (the "New
Consideration") per share less than the Purchase Price for the Common Stock
issuable upon exercise of the Warrant in effect immediately prior to the
issuance of such Additional Stock, the Purchase Price shall be reduced so as to
be equal to such New Consideration.
(B) Except to the limited extent provided for in subparagraphs
(i)(E)(y) and (i)(E)(z) of this Section 2.1, no adjustment of the Purchase Price
shall have the effect of increasing the Purchase Price above the Purchase Price
in effect immediately prior to such adjustment.
(C) In the case of the issuance of Common Stock for cash, the
consideration shall be deemed to be the amount of cash paid therefor before
deducting any reasonable discounts, commissions, or other expenses allowed,
paid, or incurred by the Company for any underwriting or otherwise in connection
with the issuance and sale thereof.
(D) In the case of the issuance 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 value thereof as determined by the Company's
Board of Directors irrespective of any accounting treatment.
(E) In the case of the issuance of options to purchase or
rights to subscribe for Common Stock, securities that by their terms are
convertible into or exchangeable
for Common Stock, or options to purchase or rights to subscribe for such
convertible or exchangeable securities (which are not excluded from the
definition of Additional Stock):
(w) the aggregate maximum number of shares of Common Stock
deliverable upon exercise of such options to purchase or rights to
subscribe for Common Stock shall be deemed to have been issued at the time
such options or rights were issued and for a consideration equal to the
consideration (determined in the manner provided in subparagraphs (i)(C)
and (i)(D) of this Section 2.1), if any, received by the Company upon the
issuance of such options or rights, plus the minimum purchase price
provided in such options or rights for the Common Stock covered thereby;
(x) the aggregate maximum number of shares of Common Stock
deliverable upon conversion of or in exchange for any such convertible or
exchangeable securities or upon the exercise of options to purchase or
rights to subscribe for such convertible or exchangeable securities and
subsequent conversion or exchange thereof shall be deemed to have been
issued at the time such convertible or exchangeable securities were issued
or such options or rights were issued and for a consideration equal to the
consideration, if any, received by the Company for any such convertible or
exchangeable securities and related options or rights (excluding any cash
received on account of accrued interest or accrued dividends), plus the
additional consideration, if any, to be received by the Company upon the
conversion or exchange of such securities or the exercise of any related
options or rights (the consideration in each case to be determined in the
manner provided in subparagraphs (i)(C) and (i)(D) of this Section 2.1);
(y) upon any change in the number of shares of Common Stock
deliverable upon exercise of such options or rights or conversion of or
exchange for such convertible or exchangeable securities, the Purchase
Price as then in effect shall forthwith be readjusted to such Purchase
Price as would have been obtained had the adjustment made upon the issuance
of such options, rights, or securities not converted prior to such change
or options or rights related to such securities not converted prior to such
change been made upon the basis of such change, but no further adjustment
shall be made for the actual issuance of Common Stock upon the exercise of
any such options or rights or the conversion or exchange of such
securities;
(z) upon the expiration of any such options or rights, the
termination of any such rights to convert or exchange or the expiration of
any options or rights related to such convertible or exchangeable
securities, the Purchase Price shall forthwith be readjusted to such
Purchase Price as would have been obtained had the adjustment made upon the
issuance of such options, rights, or securities or options or rights
related to such securities been made upon the basis of the issuance of only
the number of shares of Common Stock actually issued upon the exercise of
such options or rights, upon the conversion or
exchange of such securities, or upon the exercise of the options or rights
related to such securities.
(ii) "Additional Stock" for purposes of this Warrant shall mean any
shares of the Company's Common Stock issued by the Company in conjunction with
or after the determination of the Purchase Price as specified hereinabove, other
than:
(A) Common Stock issued pursuant to a transaction described
in Section (iii) hereof;
(B) Common Stock (not to exceed 1,790,000 shares) issuable or
issued as incentive compensation to employees or consultants of the Company,
whether directly or pursuant to the exercise of options.
(C) Common Stock issued or issuable upon conversion of any
shares of the Company's outstanding Series A Convertible Participating Preferred
Stock or Series B Convertible Participating Preferred Stock or upon exercise of
this Warrant or any other stock warrants issued contemporaneously herewith or
issued and outstanding as of the date hereon.
(iii) If the number of shares of Common Stock outstanding at any
time after the date hereof is increased by a stock dividend payable in shares of
Common Stock or by a subdivision payable in shares of Common Stock or by a
subdivision or split-up of shares of the Company's Common Stock, then, following
the record date fixed for the determination of holders of Common Stock entitled
to receive such stock dividend, subdivision, or split-up, the Purchase Price for
the Common Stock issuable upon the exercise of this Warrant shall be
appropriately decreased so that the number of shares of Common Stock issuable
upon the exercise of this Warrant will be increased in proportion to such
increase in the number of outstanding shares of the Company's Common Stock.
(iv) If the number of shares of Common Stock outstanding at any
time after the date hereof is decreased by a combination or reverse stock split
of the outstanding shares of the Company's Common Stock, then, following the
record date of such combination or reverse stock split, the Purchase Price for
the Common Stock shall be appropriately increased so that the number of shares
of Common Stock issuable upon the exercise of this Warrant will be decreased in
proportion to such decrease in the number of outstanding shares of Common Stock.
2.2. No Adjustment to Number of Shares Purchasable Under Warrant in Event
of Purchase Price Adjustment Under Section 2.1(i). Upon any adjustment to the
Purchase Price under Section 2.1(i), there shall be no adjustment in the number
of shares purchasable under this Warrant.
2.3. Warrant Need Not be Changed to Reflect Adjustments. This Warrant
need not be changed to reflect any adjustment or changes in the Purchase Price.
2.4. Reorganization, Merger, Etc. If any capital reorganization or
reclassification of the capital stock of the Company, or consolidation or merger
of the Company
with another corporation or entity, or the sale or conveyance of all or
substantially all of the Company's assets to another corporation or entity shall
be effected, then, as a condition of such reorganization, reclassification,
consolidation, merger, sale, or conveyance, lawful and adequate provision shall
be made whereby the Warrant Holder shall thereafter have the right to purchase
and receive upon the basis and upon the terms and conditions specified in this
Warrant and in lieu of the shares of Common Stock immediately theretofore
purchasable and receivable upon the exercise of the rights represented hereby,
such shares of stock, securities, or assets as may be issued or payable with
respect to or in exchange for a number of outstanding shares of such Common
Stock equal to the number of shares of such Common Stock immediately theretofore
purchasable and receivable upon the exercise of the rights represented hereby
had such reorganization, reclassification, consolidation, merger, sale, or
conveyance not taken place, and, in any such case, appropriate provision shall
be made with respect to the rights and interests of the Warrant Holder such that
the provisions hereof (including, without limitation, provisions for adjustment
of the Purchase Price) shall thereafter be applicable, as nearly as may be, to
any stock, securities, or assets thereafter deliverable upon the exercise
hereof.
The Company shall not effect any consolidation, merger, or sale of all or
substantially all of its assets to any other corporation or entity, unless prior
to or simultaneously with the consummation thereof the successor corporation or
entity (if other than the Company) resulting from such consolidation or merger,
or the corporation or entity purchasing such assets, shall assume, by written
instrument executed and mailed or delivered to the Warrant Holder at the address
indicated in Section 7 hereof, the obligation of such corporation or entity to
deliver to such Warrant Holder shares of stock, securities, or assets as, in
accordance with the provisions of this Warrant, such Warrant Holder may be
entitled to purchase, and to perform and observe each and every covenant and
condition of this Warrant to be performed and observed by the Company.
2.5. Notice to Warrant Holder or Warrant Holders.
(a) Upon any adjustment of the Purchase Price, the Company,
within thirty (30) days thereafter, shall give written notice thereof, pursuant
to Section 7 hereof, which notice shall state the adjusted Purchase Price
setting forth in reasonable detail the method of calculation and the facts
(including a statement of the consideration received or deemed to have been
received by the Company for any additional shares or convertible or exchangeable
securities or rights or options) upon which such calculations are based. Where
appropriate, such notice may be given in advance and be included as part of the
notice required to be mailed pursuant to the provisions of paragraph (b) of this
Section 2.5.
(b) In case at any time:
(i) the Company shall declare any dividend upon its Common
Stock payable otherwise than in cash or in the Common Stock of the Company
or payable otherwise than out of net income for a twelve (12) month period
ending not earlier than ninety (90) days prior to the date of payment of
such dividend; or
(ii) the Company shall offer for subscription to the
holders of its Common Stock any additional shares of stock of any class or
any other securities convertible into or exchangeable for shares of stock
or any rights or options to subscribe thereto; or
(iii) there shall be any capital reorganization or
reclassification of the capital stock of the Company, or a sale or
conveyance of all or substantially all of the assets of the Company, or a
consolidation or merger of the Company with another corporation or entity;
or
(iv) there shall be a voluntary or involuntary dissolution,
liquidation, or winding up of the Company; or
(v) the Company intends to issue or has issued any Common
Stock or rights convertible into Common Stock for a per share consideration
of less than the Purchase Price, then, in any one or more of said cases,
the Company shall give written notice, pursuant to Section 7 hereof, at the
earliest time legally practicable (and, unless otherwise impossible for a
legal reason, not less than thirty (30) days before any record date or
other date set for definitive action) of the date as of which (A) the books
of the Company shall close or a record date shall be taken for such
dividend, distribution, or subscription rights or options, or (B) such
reorganization, reclassification, sale, conveyance, consolidation, merger,
dissolution, liquidation, or winding up shall take place, as the case may
be. Such notice shall also specify the date as of which the holders of the
Common Stock of record shall participate in said dividend, distribution,
subscription rights, or options or shall be entitled to exchange their
Common Stock for securities or other property deliverable upon such
reorganization, reclassification, sale, conveyance, consolidation, merger,
dissolution, liquidation, or winding up, as the case may be (on which date,
in the event of voluntary or involuntary dissolution, liquidation, or
winding up of the Company, the right to exercise this Warrant shall cease
and terminate).
2.6. Conditions Not Specifically Covered. In case at any time
conditions shall arise by reason of action taken by the Company, which, in the
good faith judgment of the Company's Board of Directors, are not adequately
covered by the limited antidilution provisions of this Warrant so as to
potentially materially and adversely affect the rights of the Warrant Holder or
Warrant Holders, or, in case at any time any such conditions are expected to
arise by reason of any action contemplated by the Company, its Board of
Directors shall appoint a firm of independent certified public accountants of
recognized standing (which may be the firm that regularly examines the Company's
financial statements), who shall give an opinion as to the adjustment, if any
(not inconsistent with the standards established in this Section 2 hereof), of
the Purchase Price, which is, or would be, required to preserve, without
dilution, the rights of the Warrant Holder or Warrant Holders to the extent
provided herein. The Company's Board of Directors shall make the adjustment
recommended forthwith upon the receipt of such opinion or the taking of any such
action contemplated, as the case may be. Nothing in this Section 2.6 or any
other provision of this Warrant shall permit or require adjustment regarding the
number of shares of Common Stock into which this Warrant may hereafter be
exercisable, it being the
parties' intention to limit antidilution protection in this Warrant solely to
adjustments to the Purchase Price.
3. Status of Warrant Holders. This Warrant does not entitle the Warrant
Holder or Warrant Holders hereof to any rights as a shareholder of the Company.
4. Remedies. The Company stipulates that the remedies at law of the
Warrant Holder or Warrant Holders in the event of any default or threatened
default by the Company in the performance of or compliance with any of the terms
of this Warrant are not and will not be adequate, and that such terms may be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
5. Reservation of Shares. The Company shall reserve and keep available a
sufficient number of shares of Common Stock to satisfy the requirements of this
Warrant. Before taking any action that would cause a reduction of the Purchase
Price below the then current par value of the shares of Common Stock issuable
upon exercise of this Warrant, the Company will take any corporate action that
may, in the opinion of its counsel, be necessary in order that the Company may
validly and legally issue fully paid and nonassessable shares of such Common
Stock at such adjusted Purchase Price.
6. Assignment. This Warrant shall be binding upon and inure to the
benefit of the Company, the Warrant Holder, and their respective successors and
assigns.
7. Notices. All notices, requests, consents, and other communications
hereunder shall be in writing and shall be deemed to have been given when
personally delivered, mailed first class (postage prepaid), or delivered to a
telegraph office:
(i) if to a Warrant Holder, at the address of such Warrant Holder as
shown on the books of the Company.
(ii) if to the Company, at 0000 000xx Xxxxxx, X.X., Xxxxxxx,
Xxxxxxxxxx 00000, to the attention of the corporate Secretary, or at such
other address as may have been furnished to the Warrant Holder in writing.
8. Headings. The headings of the Sections and subsections of this
Warrant are inserted for convenience only and shall not be deemed to constitute
a part of this Warrant.
IN WITNESS WHEREOF, this Warrant has been duly executed by its duly
authorized officer as of the date first above written.
DATA CRITICAL CORP.
an Oklahoma corporation
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President
