Exhibit 4.5
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 Nomadics, Inc., an Oklahoma corporation, 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 Section 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
▇▇▇▇▇ ▇▇▇▇▇▇▇ 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
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or by certified or bank cashier's check in lawful funds of
the United States of America.
b. Cancellation of Indebtedness. The Purchase
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Price is payable through the cancellation of indebtedness
owed by the Company to the Warrant Holder.
c. Common Stock. The Purchase Price is payable
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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.
d. Net-Issuance. In addition to the foregoing
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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(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 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President