Exhibit 4.4
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")
January 26, 1998
For the Purchase of [SHARES] Shares of the
Company's Common Stock, $.001 par value
FORM OF COMMON STOCK PURCHASE WARRANT
NO. [WARRANT NO.]
This certifies that [HOLDER], 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 November 1, 2002, to purchase from time to
time up to a total of [SHARES] shares of the Company's common stock, $.001 par
value (the "Common Stock"), at a price per share of $.40 (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.
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. This Warrant may be exercised at any
time on or before November 1, 2002 (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.
1.2. Payment of Purchase Price. The Purchase Price shall be payable
in any one of the following ways, or in any combination thereof:
(i) Cash. The Purchase Price is payable in cash or by
----
certified or bank cashier's check in lawful funds of the United States of
America.
(ii) Cancellation of Indebtedness. The Purchase Price is
----------------------------
payable through the cancellation of indebtedness owed by the Company to the
Warrant Holder.
(iii) Common Stock. The Purchase Price is payable by delivery 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 $1,000,000.
(iv) Net-Issuance. In addition to the foregoing methods of
------------
payment, the Warrant Holder may exercise this Warrant, or a portion thereof, and
the Purchase Price shall be payable in connection therewith, by relinquishing
the right under this Warrant to purchase an Exercise Block and, in exchange
therefor, the Warrant Holder shall receive that number of shares of Common Stock
equal to the number of shares constituting the Exercise Block, less a number of
shares equal to the quotient of (i) the aggregate Purchase Price for the
Exercise Block, divided by (ii) the Fair Market Value per share of Common Stock
(determined as of the date of relinquishment). For purposes of this Section
1.2(iv), "Exercise Block" shall mean that total number of shares covered by this
Warrant for which the Warrant Holder desires to relinquish as provided herein.
2. Adjustments.
-2-
2.1. Adjustment to Purchase Price. The Purchase Price of the Common
Stock issuable upon exercise of this Warrant shall be subject to adjustment,
from time to time, as follows:
(i)(A) If the Company shall issue any Additional Stock (as
hereinafter defined) after the date hereof for a consideration (the "New
Consideration") per share less than the Purchase Price for the Common Stock
issuable upon exercise of the Warrant in effect immediately prior to the
issuance of such Additional Stock, the Purchase Price shall be reduced so as to
be equal to such New Consideration.
(B) No adjustment of the Purchase Price for the Common Stock
issuable upon the exercise of this Warrant shall be made in an amount less than
one cent ($.01) per share, and (except to the limited extent provided for in
subparagraphs (i)(E)(y) and (i)(E)(z) of this Section 2.1) no adjustment of such
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
-3-
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 issuable or issued to officers,
directors, employees, or consultants of the Company, whether directly or
pursuant to the exercise of options, on terms that have been approved by the
Company's Board of Directors; and
(C) Common Stock issued or issuable upon conversion of any
shares of the Company's outstanding 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
-4-
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. Adjustment to Number of Shares Purchasable Under Warrant. Upon
any adjustment to the Purchase Price, the number of shares purchasable under
this Warrant shall be adjusted to equal the product of (i) the number of shares
of Common Stock purchasable under this Warrant immediately prior to such
adjustment to the Purchase Price and (ii) the quotient of (A) the Purchase Price
in effect immediately prior to such adjustment divided by (B) the Purchase Price
in effect immediately after such adjustment.
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
-5-
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.
(i) 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.
(ii) In case at any time:
(A) 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
(B) 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
(C) 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
(D) there shall be a voluntary or involuntary dissolution,
liquidation, or winding up of the Company; or
(E) 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 (y) the books of the Company shall
close or a record date shall be taken for such dividend, distribution, or
subscription rights or options, or (z) 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,
-6-
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-
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.
-8-
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
----------------------------------
Xxxxxxx X. Xxxxx, President
-9-
Warrantholders who currently hold this Form of Common Stock Warrant
-----------------------------------------------------------------------
Warant
No. Holder Shares
-----------------------------------------------------------------------
013 Xxxxxxxxx Family Partners, L.P. 93,750
-----------------------------------------------------------------------
014 APEX Investment Fund II, L.P. 28,332
-----------------------------------------------------------------------
015 The Productivity Fund II, L.P. 10,795
-----------------------------------------------------------------------
016 Environmental Private Equity Fund, L.P. 15,383
-----------------------------------------------------------------------
017 Xxxxxx X. Xxxxx, Xx. 9,531
-----------------------------------------------------------------------
018 Xxxxx X. Xxxxxx 2,667
-----------------------------------------------------------------------
019 Xxxxxxx and Xxxxxx Xxxxxxxxx 6,417
-----------------------------------------------------------------------
020 Xxxxxx Xxxx XxXxxxxxx 4,687
-----------------------------------------------------------------------
000 Xxxxxxx Xxxxxx Limited Partnership 4,687
-----------------------------------------------------------------------
022 Xxxxxxxxx X. Xxxxx 2,667
-----------------------------------------------------------------------
023 Xxx Xxxx, TTEE, FBO XxXxxxxxx Children's 9,375
Trust
-----------------------------------------------------------------------
024 Xxxxxxx X. Xxxxx 2,274
-----------------------------------------------------------------------
025 Xxxxxxx X. Xxxxxxx 1,770
-----------------------------------------------------------------------
026 American Fidelity Corp. 1,770
-----------------------------------------------------------------------
027 Clarion Capital Corporation 4,687
-----------------------------------------------------------------------
-10-
