Exhibit 4.3
WARRANT AGREEMENT dated as of April 13, 1995 between DATA CRITICAL CORP.,
an Oklahoma corporation (the "Company"), and XXXXXXX XXXXX SECURITIES
INCORPORATED (the "Agent").
W I T N E S S E T H
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WHEREAS, the Agent has agreed, pursuant to the Placement Agency Agreement
dated as of March 8, 1995, between the Agent and the Company (the "Agency
Agreement"), to act as the placement agent in connection with the Company's
proposed private placement (the "Offering") of up to 40 Units (capitalized terms
not otherwise defined herein shall be as defined in the Agency Agreement); and
WHEREAS, the company is required to issue to the Agent warrants
("Warrants") to purchase a number of shares of Common Stock, $.001 par value, of
the Company ("Common Stock"), as set forth below; and
NOW, THEREFORE, in consideration of the premises, the payment by the Agent
to the Company of ONE DOLLAR, the agreements herein set forth and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Grant. The Agent is hereby granted the right as evidenced by the
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Warrants, to purchase 220,219 shares of Common Stock of the Company, an such
number may be adjusted pursuant hereto ("Warrant Shares"), at any time from the
date hereof until 5:30 p.m., New York time, on the later of (i) the fifth
anniversary of the date of Final Closing and (ii) the third anniversary of the
Closing date of the Company's initial public offering occurring within such
five-year period (the "Warrant Exercise Term"), at the Exercise Price.
"Exercise price" shall initially mean $0.80 per share of Common Stock as such
price may be, from time to time, adjusted pursuant to Section 7 hereof.
2. Warrant certificates. On each Closing Date, the Company shall deliver
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to the Agent warrant certificates (the "Warrant Certificates") evidencing
Warrants to purchase the Warrant Shares. Each Warrant Certificate delivered and
to be delivered pursuant to this Agreement shall be in the form set forth in
Exhibit A, attached hereto and made a part hereof, with such appropriate
insertions, omissions, substitutions, and other variations as required or
permitted by this Agreement and shall be delivered without tax, cost or other
expense of any kind to the Agent. Within 30 days after the Closing Date, the
Agent may surrender such Warrant Certificate in exchange for Warrant
Certificates to purchase the Warrant Shares to be issued to the Agent's
designees, each of whom shall consist of broker-licensed employees of the Agent.
3. Exercise of Warrant.
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3.1 Method of Exercise. The Warrant Certificates may be exercised by the
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Agent and/or other registered holders ("Holders") thereof by surrender of such
Warrant Certificate with
the annexed Form of Election to Purchase Pursuant to Section 3.1 duly executed,
together with payment of the Exercise Price by certified or official bank check
in New York Clearing House funds for the Warrant Shares purchased, at the
Company's principal offices at 0000 000xx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000.
Warrant Certificates may be exercised to purchase all or part of the Warrant
snares covered thereby (but not for fractional shares of Common Stock). in the
event that any Warrant Certificate is exercised to purchase less than all the
Warrant Shares covered thereby, the Company shall cancel said Warrant
Certificate upon the surrender thereof and shall execute and deliver a new
Warrant Certificate of like tenor for the balance of the Warrant Shares,
3.2 Exercise by Surrender of Warrant. Warrants may also be exercised, in
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full or in part, without cash payment, at any time after registration of the
Common Stock under the Securities Exchange Act of 1934 (the "Exchange Act"), by
surrendering the Warrant Certificate with the annexed Form of Election to
Purchase Pursuant to Section 3.2 in exchange for the number of shares of Common
Stock equal to the product of (x) the number of shares as to which the Warrants
are being exercised multiplied by (y) a fraction, the numerator of which is the
market Price (as hereinafter defined) of the Common Stock minus the Exercise
Price and the denominator of which is such Market Price. For all purposes of
this Agreement, the phrase "Market Price" at any date shall be deemed to be the
last reported sale price, or, in case no such reported sale takes place on such
day, the average of the last reported sale prices for the last five trading
days, in either case as officially reported by the principal securities exchange
on which the Common Stock is listed or admitted to trading, or, if the Common
Stock is not listed or admitted to trading on any national securities exchange
or The Nasdaq Stock Market ("Nasdaq"), the average closing bid price as
furnished by the National Association of Securities Dealers, Inc. ("NASD")
through Nasdaq or similar organization if Nasdaq is no longer reporting such
information, or if the Common Stock is not quoted on Nasdaq as determined in
good faith by resolution of the Board of Directors of the Company, based on the
best information available to its.
4. Issuance of Certificates. Upon the exercise of the Warrants, the
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issuance of certificates for the Warrant Shares shall be made promptly (and in
any event within five (5) business days thereafter) without charge to the Holder
thereof including, without limitation, any tax which may be payable in respect
of the issuance thereof. Such Certificates shall (subject to the provisions of
Sections 5 and 6 hereof) be issued in the name of, or in such names as may be
directed by, the Holder thereof; provided, however, that the Company shall not
be required to pay any tax which my be payable in respect of any transfer
involved in the issuance and delivery of any such certificates in a name other
than that of the Holder and the Company shall not be required to issue or
deliver such certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Company the amount of any such tax or
shall have established to the satisfaction of the Company that such tax is not
due or has been paid. The Warrant certificates and the certificates representing
the Warrant Shares shall be duly executed on behalf of the Company. Warrant
Certificates shall be dated the date of initial issuance, division, exchange,
substitution or transfer.
5. Transfer Of Securities. The Agent and Holders covenant and agree that
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they are acquiring the Warrants and the Warrant Shares (collectively, the
"Warrant Securities") for their
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own account, for investment, and not with a view to distribution thereof.
Holders of the Warrants or Warrant Shares may transfer such Warrants or Warrant
Shares only in compliance with applicable federal and state securities laws. In
order for any transferee of any Warrants or Warrant Shares to receive any of the
benefits of this Agreement, the Company must have received notice of such
transfer, at the address in section 3.1 above, in the form of assignment
attached hereto, accompanied by an opinion of counsel, which opinion of counsel
shall be reasonably acceptable to the Company, that an exemption from
registration of such Warrants or Warrant Shares under the Securities Act of
1933, as amended, (the "1933 Act") and under any applicable state securities
laws is available. Any transferee must also covenant and agree that it is
acquiring such Warrants or Warrant Shares, as the case may be, as an investment
and not with a view to distribution thereof.
6. Registration.
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6.1 No Registration Under the 1933 Act. The warrant Securities have not
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been registered under the 1933 Act or any state securities or "blue sky" laws
and may not be resold except pursuant to an effective registration statement
thereunder or exemption therefrom. The Warrant Certificates and certificates
representing the Warrant Shares shall bear the legend set forth below:
"The securities represented by this certificate have not been registered
under the Securities Act of 1933 or under any state securities or "blue
sky" laws, and may not be offered or sold except pursuant to (i) an
effective registration statement under such Act and such laws, or (ii) an
opinion of counsel, if such opinion shall be reasonably satisfactory to the
issuer, that an exemption from registration under such Act and laws is
available."
6.2 Registration Rights. Reference is made to the Amended and Restated
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Registration Rights Agreement dated February 22, 1995, between the Company,
certain principal stockholders of the Company, purchasers of Units in the
offering and holders of certain warrants of the Company (the "Registration
Agreement"). The Company and the Holders agree that the Holders shall be
entitled to such rights and benefits with respect to registration of the Warrant
Shares as if the Holders were party to such Registration Agreement as holders of
Restricted Stock (as defined in the Registration Agreement) and the Warrant
Shares shall be considered as Restricted Stock for all purposes under the
Registration Agreement. The Company shall execute all such additional agreements
or documents as any Holder shall reasonably request to give effect to this
Section 6.2.
7. Adjustments to Exercise Price and Number of Securities
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7.1 Computation of Adjusted Exercise Price. Except as hereinafter
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provided, in case the Company shall at any time after the date hereof issue or
sell any shares of Common Stock (other than the grants, issuances or sales
referred to in Section 7.7 hereof), including shares held in the Company's
treasury and shares of Common Stock issued upon the exercise of any options,
rights or warrants, or upon the direct or indirect conversion or exchange of
securities for shares of Common Stock, for a consideration per share less than
the Exercise Price in effect immediately prior to the issuance or sale of such
shares, then forthwith upon such issuance or sale, the
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Exercise Price shall (until another such issuance or sale) be reduced to the
lower at the price (calculated to the nearest full cent), determined by dividing
(i) an amount equal to the sum of (a) the number of shares of Common Stock
outstanding immediately prior to such issuance or sale multiplied by the then
existing Exercise Price, and (b) the aggregate amount of the consideration, if
any, received by the Company upon such issuance or sale by (ii) the total number
of shares of Common Stock outstanding immediately after such issuance or sale.
In no event shall the Exercise Price be adjusted pursuant to this
computation to an amount in excess of the Exercise Price in effect immediately
prior to such computation, except in the case of a combination of outstanding
shares of Common Stock, an provided by Section 7.3 hereof.
For the purposes of any computation to be made in accordance with this
Section 7.1, the following provisions shall be applicable:
(i) In case of the issuance or sale of shares of Common Stock for a
consideration part or all of which shall be cash, the amount of the cash
consideration therefor shall be deemed to be the amount of cash received by the
Company for such shares or, if either of such securities shall be sold to
underwriters or dealers for public offering, the initial public offering price,
in all cases before deducting therefrom any compensation paid or discount
allowed in the sale, underwriting or purchase thereof by underwriters or dealers
or others performing similar services, or any expenses incurred in connection
therewith.
(ii) In came of the issuance or sale (otherwise than as a dividend or
other distribution on any stock of the Company) of shares of Common Stock for a
consideration part or all of which shall be other than cash, the amount of the
consideration therefor other than cash shall be deemed to he the value of such
consideration as determined in good faith by the Board of Directors of the
Company irrespective of any accounting treatment.
(iii) Shares of Common Stock issuable by way of dividend or other
distribution on any stock of the Company shall be deemed to have been issued
immediately after the opening of business an the day following the record date
for the determination of stockholders entitled to receive such dividend or other
distribution and shall be deemed to have been issued without consideration.
(iv) The reclassification of securities of the Company other than
shares of Common Stock into securities including shares of Common Stock shall be
deemed to involve the issuance of such shares of Common Stock for a
consideration other than cash immediately prior to the close of business on the
date fixed for the determination of security holders entitled to receive such
shares, and the value of the consideration allocable to such shares of Common
Stock shall be determined as provided in subsection (ii) of this Section 7.1.
(v) The number of shares at Common Stock at any one time outstanding
shall include the aggregate number of shares issued or issuable (subject to
readjustment upon the actual issu-
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ance thereof) upon the exercise of options, rights, warrants, and upon the
conversion or exchange of convertible or exchangeable securities.
7.2 Options, Rights, Warrants and Convertible and Exchange Securities. In
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case the Company shall at any time after the date hereof issue options, rights
or warrants to subscribe for shares at Common Stock other than as set forth in
Section 7.7, or issue any securities convertible into or exchangeable for shares
of Common Stock, for a consideration per share less than the Exercise Price in
effect immediately prior to the issuance of such options, rights or warrants, or
such convertible or exchangeable securities, or without consideration, the
Exercise Price in effect immediately prior to the issuance of such options,
rights or warrants, or such convertible or exchangeable securities, as the case
may be, shall be reduced to a price determined by making a computation in
accordance with the provisions of Section 7.1 hereof, provided that:
(a) The aggregate maximum number of shares of Common Stock, as the case
may be, issuable under such options, rights or warrants shall be deemed to be
issued and outstanding at the time such options, rights or warrants were issued,
and for a consideration equal to the minimum purchase price per share provided
for in such options, rights or warrants at the time of issuance, plus the
consideration (determined in the same manner as consideration received on the
issue or sale of shares in accordance with the terms of the Warrants), if any,
received by the Company for such options, rights or warrants.
(b) The aggregate maximum number of shares of Common Stock issuable upon
conversion or exchange of any convertible or exchangeable securities shall be
deemed to be issued and outstanding at the time of issuance of such securities,
and for a consideration equal to the consideration (determined in the same
manner as consideration received on the issue or sale of shares at Common Stock
in accordance with the terms of the Warrants) received by the Company for such
securities, plus the minimum consideration, if any, receivable by the Company
upon the conversion or exchange thereof.
(c) If any change shall occur in the price per share provided for in any
of the options, rights or warrants referred to in subsection (a) of this Section
7.2, or in the price per share at which the securities referred to in subsection
(b) of this Section 7.,2 are convertible or exchangeable, such options, rights
or warrants or conversion or exchange rights, as the case may be, shall be
deemed to have expired or terminated on the date when such price change became
effective in respect of shares not theretofore issued pursuant to the exercise
or conversion or exchange thereof, and the Company shall be deemed to have
issued upon such date new options, rights or warrants or convertible or
exchangeable securities at the new price in respect of the number of shares
issuable upon the exercise of such options, rights or warrants or the conversion
or exchange of such convertible or exchangeable securities.
(d) Upon the termination or expiration of any options, warrants or rights
referred to in Section (a) of this Section 7.2, or the termination or expiration
at any convertible or exchangeable securities referred to in Section (b) of this
Section 7.2, the Exercise Price shall forthwith be readjusted to such Exercise
Price as would have been obtained had the adjustment made upon the issuance of
such options, warrants or rights, or convertible or exchangeable securities been
made
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upon the basis of the issuance of only the number of shares of Common Stock
actually issued upon the exercise of such options, warrants or rights, or upon
the conversion or exchange of convertible or exchangeable securities.
7.3 Subdivision and Combination. In case the Company shall at any time
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subdivide or combine the outstanding shares of Common Stock, the Exercise Price
shall forthwith be proportionately decreased in the case of subdivision or
increased in the case of combination.
7.4 Adjustment in Number of Shares. Upon each adjustment of the Exercise
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Price pursuant to the provisions of this Section 7, the number of Warrant Shares
issuable upon exercise of the Warrants shall be adjusted to the nearest full
amount by multiplying a number equal to the Exercise Price in effect immediately
prior to such adjustment by the number of Warrant Shares issuable upon exercise
of time Warrants immediately prior to such adjustment and dividing the product
so obtained by the adjusted Exercise Price.
7.5 Definition of Common Stock. For the purpose of this Agreement, the
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term "Common Stock" shall mean (i) the class of stock designated an Common Stock
in the Certificate of Incorporation of the Company as such Certificate of
Incorporation may be amended as of the date hereof, or (ii) any other class of
stock resulting from successive changes or reclassifications of such Common
Stock consisting solely of changes in par value, or from par value to no par
value or from no par value to par value.
7.6 Merger or Consolidation. In case of any consolidation of the Company
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with, or merger of the Company with, or merger of the Company into, another
corporation other than a consolidation or merger which does not result in any
reclassification or change of the outstanding Common Stock), the corporation
formed by such consolidation or merger shall execute and deliver to the Holder a
supplemental warrant agreement providing that the holder of each Warrant then
outstanding or to be outstanding shall have the right thereafter (until the
expiration of such Warrant) to receive, upon exercise of such warrant, the kind
and amount of shares of stock and other securities and property receivable upon
such consolidation or merger, by a holder of the number of shares of Common
Stock of the Company for which such warrant might have been exercised
immediately prior to such consolidation or merger. Such supplemental warrant
agreement shall provide for adjustments which shall be identical to the
adjustments provided in this section 7. The above provision of this Subsection
shall similarly apply to successive consolidations or mergers.
7.7 No Adjustment of Exercise Price in Certain Cases. No adjustment of the
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Exercise Price shall be made:
(a) Upon the grant of options, or the issuance or sale of Common Stock, to
officers, directors, employees or consultants of the Company, whether done
directly or pursuant to any existing or future stock option, stock purchase or
restricted stock plan approved by the Company's Board of Directors, including,
but not limited to, the grant of options under the Data Critical Corp. 1994
Stock Option Plan and the exercise of outstanding and future options granted
thereunder.
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(b) Upon the issuance of Common Stock upon conversion of any shares of the
Company's issued and outstanding Preferred Stock (including Preferred Stock sold
in the Offering) and the Company's outstanding Series A convertible
Participating Preferred Stock.
(c) Upon exercise of this Warrant or any other stock warrants or options
issued and outstanding as of the date hereof.
(d) If the amount of said adjustment shall be less than $.02 per Warrant
Share; provided, however, that in such case any adjustment that would otherwise
be required then to be made shall be carried forward and shall be made at the
time of and together with the next subsequent adjustment which, together with
any adjustment so carried forward, shall amount to at least $.02 per Warrant
Share,
7.8 Dividends and Other Distributions. In the event that the Company
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shall at any time prior to the exercise of all Warrants declare a dividend
(other than a dividend consisting solely of shares of Common Stock) or otherwise
distribute to its stockholders any assets, property, rights, evidence of
indebtedness, securities (other than shares of Common Stock), whether issued by
the Company or by another, or any other thing of value, the Holders of the
unexercised Warrants shall thereafter be entitled, in addition to the shares of
Common Stock or other securities and property receivable upon the exercise
thereof, to receive, upon the exercise of such Warrants, the same property,
assets, rights, evidences of indebtedness, securities or any other thing of
value that they would have been entitled to receive at the time of such dividend
or distribution as if the Warrants had been exercised immediately prior to such
dividend or distribution. At the time of any such dividend or distribution, the
Company shall make appropriate reserves to ensure the timely performance of the
provisions of this Subsection 7.8.
8. Exchange and Replacement of Warrant Certificates.
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(a) Each Warrant Certificate is exchangeable upon the surrender thereof by
the registered Holder at the principal office of the Company and reimbursement
to the company of all reasonable expenses incidental thereto, for a new Warrant
Certificate of like tenor and date representing in the aggregate the right to
purchase the same number of Warrant Shares in such denominations as shall be
designated by the Holder thereof at the time of such surrender.
(b) Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of any Warrant Certificate, and,
in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Warrant
Certificate, if mutilated, the Company will make and deliver a new Warrant
Certificate of like tenor, in lieu thereof.
9. Elimination of Fractional Interests. The Company shall not be required
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to issue certificates representing fractions of shares of Common Stock upon the
exercise of the Warrants, nor shall it be required to issue scrip or pay cash in
lieu of fractional interests, it being the intent
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of the parties that all fractional interests shall be eliminated by rounding any
fraction to the nearest whole number of shares of Common Stock or other
securities, properties or rights.
10. Reservations of Securities. The Company shall at all times reserve and
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keep available out of its authorized shares of Common Stock, solely for the
purpose of issuance upon the exercise of the Warrants, such number of shares of
Common Stock or other securities, properties or rights as shall be issuable
upon the exercise thereof. The Company covenants and agrees that upon exercise
of the Warrants and payment of the Exercise Price therefor, all shares of Common
Stock and other securities issuable upon such exercise shall be duly and validly
issued, fully paid, non-assessable and not subject to the preemptive rights of
any stockholder.
11. Notice to Warrant Holders. Nothing contained in this Agreement shall
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be construed as conferring upon the Holders the right to vote or to consent or
to receive notice as a stockholder in respect of any meetings of stockholders
for the election of directors or any other matter, or as having any rights
whatsoever as a stockholder of the Company. If, however, at any time prior to
the expiration of the Warrants and their exercise, any of the following events
shall occur:
(a) the Company intends to declare a dividend (other than a dividend
consisting solely of shares of Common Stock) or otherwise distribute to its
stockholders any assets (other than shares of Common Stock), whether issued by
the company or by another, or any other thing of value; or
(b) the Company shall take a record of the holders of its shares of Common
Stock for the purpose of entitling them to receive a dividend or distribution
payable otherwise than in cash, or a cash dividend or distribution payable
otherwise than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company, or
(c) the Company shall offer to all the holders of its Common Stock any
additional shares of capital stock of the Company or securities convertible into
or exchangeable for shares of capital stock of the Company, or any option right
or warrant to subscribe therefor; or
(d) a dissolution, liquidation or winding up of the Company (other than in
connection with a consolidation or merger) or a sale of all or substantially all
of its property, assets and business as an entirety shall be proposed;
then, in any one or more of said events, the Company shall give written notice
of such event at least fifteen (15) days prior to the date fixed as a record
date or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights., or entitled to vote on such
proposed dissolution,, liquidation, winding up or sale. Such notice shall
specify such record date or the date of closing the transfer books, as the case
may be. Failure to give such notice or any defect therein shall not affect the
validity of any action taken in connection with the declaration or payment of
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any such dividend, or the issuance of any convertible or exchangeable
securities, or subscription rights, options or warrants, or any proposed
dissolution, liquidation, winding up or sale.
12 Notices. All notices, requests, consents and other communications
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hereunder shall be in writing and shall be deemed to have been duly made when
delivered, or mailed by registered or certified mail, return receipt requested:
(a) If to the registered Holder of the Warrants, to the address of such
Holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth in Section 3. 1 hereof or
to such other address as the Company may designate by notice to the Holders; or
(c) If to the Agent, to 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
13. Supplements and Amendments. The Company and the Agent may from time to
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time supplement or amend this Agreement without the approval of any Holders of
Warrant Certificates (other than the Agent) in order to cure any ambiguity, to
correct or supplement any provision contained heroin which may be defective or
inconsistent with any provision herein, or to make any other provisions in
regard to matters or questions arising hereunder which the Company and the Agent
may deem necessary or desirable and which the Company and the Agent deem shall
not adversely affect the interests of the Holders of Warrant Certificates. Other
amendments to this Agreement may be made only with the written consent of the
Holders of a majority of the Warrant securities.
14. Successors. All the covenants and provisions of this Agreement shall
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be binding upon and inure to the benefit of the Company, the Agent, the Holders
and their respective successors and assigns hereunder.
15. Termination. This Agreement shall terminate on the eighth anniversary
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of the First Closing. Notwithstanding the foregoing, the indemnification
provisions of Section 6 shall survive such termination until the expiration of
the applicable statute of limitations.
16. Governing Law: Submission to Jurisdiction. This Agreement and each
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Warrant Certificate issued hereunder shall be deemed to be a contract made under
the laws of the State of New York and for all purposes shall be construed in
accordance with the laws of said State without giving effect to the rules of
said State governing the conflicts of laws.
The Company, the Agent and the Holders by accepting Warrants issued
pursuant to this Agreement, hereby agree that any action, proceeding or claim
against it or them arising out of, or relating in any way to, this Agreement
shall be brought and enforced in the courts of the United States and the State
of New York located in the City of New York, and irrevocably submit to such
jurisdiction, which jurisdiction shall be exclusive. The Company, the Agent and
the Holders hereby irrevocably waive any objection to such exclusive
jurisdiction or inconvenient forum.
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Any process or summons to be served upon any of the Company, the Agent and the
Holders (at the option of the party bringing such action, proceeding or claim)
may be served by transmitting a copy thereof, by registered or certified mail,
return receipt requested, postage prepaid, addressed to it at the address as set
forth in Section 12 hereof. Such mailing shall be deemed personal service and
shall be legal and binding upon the party so served in any action, proceeding or
claim. The Company, the Agent and the Holders agree that the prevailing
party(ies) in any such action or proceeding shall be entitled to recover from
the other party(ies) all of its/their reasonable legal costs and expenses
relating to such action or proceeding and/or incurred in connection with the
preparation therefor.
17. Entire Agreement; Modification. This Agreement (including the
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Placement Agency Agreement and the Registration Agreement to the extent referred
to herein) contains the entire understanding between the parties hereto with
respect to the subject matter hereof and may not be modified or amended except
as provided in Section 13 or by a writing duly signed by the party against whom
enforcement of the modification or amendment is sought.
18. Severability. It any provision of this Agreement shall be held to be
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invalid and unenforceable, such invalidity or unenforceability shall not affect
any other provision of this Agreement.
19. Captions. The caption headings of the Sections of this Agreement are
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for convenience of reference only and are not intended, nor, should they be
construed as, a part of this Agreement and shall be given no substantive effect.
20. Benefits of this Agreement. Nothing in this Agreement shall be
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construed to give to any person or corporation other than the Company and the
Agent and any other registered Holder(s) of the Warrant Certificates or Warrant
Securities any legal or equitable right; remedy or claim under this Agreement;
and this Agreement shall be for the sole and exclusive benefit of the Company
and the Agent and any other Holder(s) of the Warrant Certificates or warrant
Securities.
21. Counterparts. This Agreement may be executed in any number of
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counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
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EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 OR UNDER ANY STATE SECURITIES OR "BLUE SKY" LAWS, AND
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (I) AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND SUCH LAWS, OR (II) AN OPINION OF COUNSEL, IF SUCH
OPINION SHALL BE REASONABLY SATISFACTORY TO THE ISSURER, THAT AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT AND LAWS IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
No. [WARRANT NO.] [SHARES] Warrants
WARRANT CERTIFICATE
This Warrant Certificate, certifies that [HOLDER] is the registered holder of
[SHARES] Warrants each to purchase initially, at any time after the date hereof
until 5:30 p.m. New York time on the later of (i) the fifth anniversary of the
Final Closing and (ii) the third anniversary of the closing date of the initial
public offering of Data Critical Corp. (the "Company") occurring within such
five-year period (the "Expiration Date") one fully paid and non-assessable
share of Common Stock, $.001 par value ("Common Stock"), of the Company at the
initial exercise price, subject to adjustment in certain events (the "Exercise
Price") , of $.80 per share upon surrender of this Warrant Certificate and
payment of the Exercise Price at an office or agency of the Company, or by
surrender of this Warrant Certificate in lieu of cash payment, but subject to
the conditions set forth herein and in the Warrant Agreement dated as of April
13, 1995 between the Company and Xxxxxxx Xxxxx Securities Incorporated (the
"Warrant Agreement"). Capitalized terms not otherwise defined herein shall have
the meanings ascribed to them in the Warrant Agreement. Payment of the Exercise
Price shall be made by certified or official bank check in Now York clearing
House funds payable to the order of the Company.
No Warrant may be exercised after 5:30 p.m., New York time,. on the
Expiration Date, at which time all Warrants evidenced hereby,. unless exercised
prior thereto, shall thereafter be void.
A-1
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The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in, and made a part of,
this instrument and is hereby referred to for a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Company, the Agent and the holders (the words "holders" or "holder" meaning the
registered holder or registered holders) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain events
the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate in accordance with the Warrant Agreement at an office or agency of
the Company, a new Warrant Certificate or Warrant Certificates of like tenor and
evidencing in the aggregate a like number of Warrants be issued to the
transferee(s) in exchange for this Warrant Certificate, subject to the
limitations provided. Upon the exercise or less than without any charge
evidenced by this Certificate, the Company shall forthwith issue to the holder
hereof a new Warrant Certificate representing such number of unexercised
Warrants.
The company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof , and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
X-0
-00-
Xxxxxxxxxxxxxx who currently hold this Form of Common Stock Warrant
--------------------------------------------------------------------------
Warrant
No. Holder Shares
--------------------------------------------------------------------------
W-2 Xxxxx Xxxxxx 158
--------------------------------------------------------------------------
W-3 Xxxxxx Xxxxxx 369
--------------------------------------------------------------------------
W-4 Xxxxxxx Xxxxx 1,265
--------------------------------------------------------------------------
W-5 Xxx Xxxxxxx 949
--------------------------------------------------------------------------
W-6 Xxxx Xxxxxxxxx 1,912
--------------------------------------------------------------------------
W-7 Xxx XxXxxxxx 211
--------------------------------------------------------------------------
W-9 Xxx Xxxxxxxxx 791
--------------------------------------------------------------------------
W-10 Xxxx Xxxxx 422
--------------------------------------------------------------------------
W-11 Xxxxxxx Xxxxxxx 211
--------------------------------------------------------------------------
W-12 Xx Xxxxxx 263
--------------------------------------------------------------------------
W-13 Xxxxxxx Xxxxx Holdings Inc. 1,318
--------------------------------------------------------------------------
W-14 First National Fund 211
--------------------------------------------------------------------------
W-15 Locus Trust 791
--------------------------------------------------------------------------
W-16 Xxxxxxx X. Oshkims Irrevocable Trust dated 1,125
11/21/90
--------------------------------------------------------------------------
W-17 Xxxx Xxxxxxxx 1,322
--------------------------------------------------------------------------
W-18 Xxxxx XxXxxxxx 750
--------------------------------------------------------------------------
W-19 Xxxxx Xxxxxxxx 375
--------------------------------------------------------------------------
W-20 Xxxxxxx Xxxxx Holdings Inc. 5,670
--------------------------------------------------------------------------
W-24 Xxxxxxx X. Xxxxxxxxx 1,795
--------------------------------------------------------------------------
W-25 Oshkim Limited Partners 8,388
--------------------------------------------------------------------------
W-26 Xxxxxxx Xxxxx 70
--------------------------------------------------------------------------
W-27 Xxxxx X. XxXxxxxx 293
--------------------------------------------------------------------------
W-28 Xxxxxxx Xxxxx Holdings Inc. 7,189
--------------------------------------------------------------------------
W-29 First National Fund Corp. 213
--------------------------------------------------------------------------
W-30 Oshkim Limited Partnership 36,938
--------------------------------------------------------------------------
-13-
