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EXHIBIT 4.4
THIS WARRANT IS NON-TRANSFERABLE AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR
OTHERWISE DISPOSED OF WITHOUT THE PRIOR WRITTEN CONSENT OF MDPATHWAYS, INC. AS
PROVIDED IN PARAGRAPH 7(a) HEREOF.
No. _____ Right to Purchase _______
Shares of Series A Preferred
Stock or Common Stock
STOCK PURCHASE WARRANT
THIS CERTIFIES THAT, in consideration of having subscribed for the web
services of MD2patient, Inc., a Georgia corporation (the "Company") and either
having played an important role in the development and market acceptance of our
web site or having referred other physicians who subscribe for our web
services, ______________________ is entitled to purchase from the Company, at
any time during the period specified in Paragraph 2 hereof, ______________
(____) fully paid and non-assessable shares of either Series A Preferred Stock
or Common Stock, par value $.01 per share ("Common Stock"), of the Company, as
determined in accordance with Paragraph 1 hereof, at an exercise price per
share of $1.00 (the "Exercise Price"). The term "Warrant Shares", as used
herein, refers to the _____ shares of either Series A Preferred Stock or Common
Stock, as the case may be, purchasable hereunder. The Warrant Shares and the
Exercise Price are subject to adjustment as provided in Paragraphs 4 and 5
hereof.
This Warrant is subject to the following terms, provisions and
conditions:
1. Manner and Exercise; Issuance of Certificates; Payment for
Shares.
(a) Subject to the provisions hereof, this Warrant may be exercised
by the holder hereof, as to all (but not less than all) of the Warrant Shares,
on any one occasion (but on no more than one occasion) within the time period
specified in Paragraph 2 hereof by the surrender of this Warrant, together with
a completed Exercise Agreement in the form attached hereto, to the Company
during normal business hours on any business day at the Company's principal
office in Franklin, Tennessee (or such other office or agency of the Company as
it may designate by notice to the holder hereof), and payment to the Company in
cash, by certified or official bank check or immediately available federal
funds of the full Exercise Price for all of the Warrant Shares. Notwithstanding
the preceding sentence, the holder, at its sole option, may elect (upon
delivery to the Company of satisfactory documentation of such election,
including an opinion of counsel if reasonably required), in lieu of the payment
of the Exercise Price in cash, check or federal funds, to receive from the
Company a lesser number of Warrant Shares having a Fair Market Value on the
date of exercise equal to the difference between (i) the Fair Market Value on
the date of exercise of the full number of Warrant Shares and (ii) the
aggregate Exercise Price of the full number of Warrant Shares (such lesser
number of Warrant Shares so issuable to the holder shall be considered as and
included within the meaning of the term "Warrant Shares" for all remaining
purposes hereof). Prior to the closing of any "Qualified Public Offering" (as
such term is defined in the Company's Articles of Incorporation, as the same
may be amended from time to time), this Warrant shall be exercisable only for
shares of Series A Preferred Stock. From and after the closing of any such
Qualified Public Offering, this Warrant shall be exercisable only for shares of
Common Stock.
(b) For purposes of this Paragraph 1, "Fair Market Value" per share
of the Warrant Shares on any date shall be the average of the daily closing
prices per share of the type of
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securities for which the Warrant is then exercisable on each of the 20
consecutive trading days through and including the trading day immediately
preceding such date. The closing price per share of any such securities on any
date shall be the last reported sale price, regular way, or, in case no such
sale takes place or is quoted on such date, the average of the closing bid and
asked prices, regular way, for each share of such securities, in either case as
reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the New York Stock
Exchange or, if the securities are not listed or admitted to trading on the New
York Stock Exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which the securities are listed or admitted to trading
or, if the securities are not listed or admitted to trading on any national
securities exchange, as reported by The Nasdaq Stock Market, Inc.'s Nasdaq
National Market or, if on any such date the securities are not listed or
admitted to trading on any national securities exchange or quoted by The Nasdaq
Stock Market, Inc.'s Nasdaq National Market, the average of the closing bid and
asked prices as furnished by a professional market maker making a market in the
securities selected by the Board of Directors of the Company; provided,
however, that if on any such date the securities are not listed or admitted to
trading on a national securities exchange or traded in the over-the-counter
market, the closing price per share of such securities on such date shall mean
the fair value per share of securities on such date as determined in good faith
by the Board of Directors of the Company and set forth in a certificate
delivered to the holder.
(c) Warrant Shares acquired by the holder hereof shall be deemed to
be issued to the holder as the record owner of such shares as of the close of
business on the date on which this Warrant shall have been surrendered, the
completed Exercise Agreement (and other documentation reasonably requested by
the Company) delivered, and payment made for such shares as aforesaid.
Certificates for the Warrant Shares so purchased shall be delivered to the
holder hereof within a reasonable time after this Warrant shall have been so
exercised. The certificates so delivered shall be in such denominations as may
be requested by the holder hereof and shall be registered in the name of said
holder unless otherwise specified by the holder in the Exercise Agreement and
consented to by the Company.
2. Period of Exercise. This Warrant is exercisable on any one
occasion (but on no more than one occasion) at any time on or after one (1)
year from date of issuance, and before 5:00 p.m. Franklin, Tennessee local time
on the third (3rd) anniversary of the date of issuance. The date of issuance of
this Warrant is ______________, 2000.
3. Certain Agreements of the Company. The Company hereby covenants
and agrees as follows:
(a) Shares to be Fully Paid. All Warrant Shares will, upon issuance,
be validly issued, fully paid and non-assessable.
(b) Reservation of Shares. During the period within which this
Warrant may be exercised, the Company will at all times have authorized, and
reserved for the purpose of issue upon exercise of this Warrant, a sufficient
number of Warrant Shares to provide for the exercise of this Warrant.
4. Stock Dividends, Splits, Combinations. If at any time after the
date of the issuance of this Warrant the Company (a) declares a dividend or
other distribution payable in shares of, or securities convertible into shares
of, Series A Preferred Stock (or, following the closing of any Qualified Public
Offering, Common Stock) or subdivides its outstanding shares of
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Series A Preferred Stock (or, following the closing of any Qualified Public
Offering, Common Stock) into a larger number or (b) combines its outstanding
shares of Series A Preferred Stock (or, following the closing of any Qualified
Public Offering, Common Stock) into a smaller number, then (i) the number of
Warrant Shares to be delivered upon exercise of this Warrant will, upon the
occurrence of an event set forth in clause (a) above, be increased and, upon the
occurrence of an event set forth in clause (b) above, be decreased so that the
holder of this Warrant will be entitled to receive the number of shares of
Series A Preferred Stock (or, following the closing of any Qualified Public
Offering, Common Stock) that such holder would have owned immediately following
such action had this Warrant been exercised immediately prior thereto and (ii)
the Exercise Price in effect immediately prior to such dividend, other
distribution, subdivision or combination, as the case may be, shall be adjusted
proportionately by multiplying such Exercise Price by a fraction, of which the
numerator shall be the number of Warrant Shares purchasable upon exercise of
this Warrant immediately prior to such adjustment, and of which the denominator
shall be the number of Warrant Shares purchasable immediately thereafter.
5. Reorganization, Merger or Sale of Assets. In case of any capital
reorganization or reclassification or other change of outstanding shares of
Series A Preferred Stock (or, following the closing of any Qualified Public
Offering, Common Stock), any consolidation or merger of the Company with or
into another corporation or other entity (other than a consolidation or merger
of the Company in which the Company is the resulting or surviving corporation
and which does not result in any reclassification or change of outstanding
Series A Preferred Stock (or, following the closing of any Qualified Public
Offering, Common Stock)) or the sale of all or substantially all of the assets
of the Company to another corporation or other entity, upon exercise of this
Warrant, the holder of this Warrant shall have the right to receive the kind
and amount of shares of stock or other securities or property to which a holder
of the number of shares of Series A Preferred Stock (or, following the closing
of any Qualified Public Offering, Common Stock) deliverable upon exercise of
this Warrant would have been entitled upon such reorganization,
reclassification, consolidation, merger or sale had this Warrant been exercised
immediately prior to such event; and, in such case, appropriate adjustment (as
determined in good faith by the Board of Directors) shall be made in the
application of the provisions of this Warrant with respect to the rights and
interests thereafter of the holder of this Warrant, to the end that the
provisions set forth in this Warrant (including provisions with respect to
changes in and other adjustments of the Exercise Price) shall thereafter be
applicable, as nearly as reasonably may be, in relation to any shares of stock
or other property thereafter deliverable upon exercise of this Warrant.
6. No Rights or Liabilities as a Shareholder. Nothing contained in
this Warrant shall be determined as conferring upon the holder of this Warrant
any rights as a stockholder of the Company or as imposing any liabilities on
such holder to purchase any securities whether such liabilities are asserted by
the Company or by creditors or stockholders of the Company or otherwise.
7. Transfer, Exchange and Replacement of Warrant.
(a) Warrant Transfer Provisions. THIS WARRANT MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED, HYPOTHECATED OR OTHERWISE DISPOSED OF, UNLESS CONSENTED
TO IN WRITING BY THE COMPANY, AND NO SALE, TRANSFER, ASSIGNMENT, HYPOTHECATION
OR OTHER DISPOSITION OF THIS WARRANT SHALL BE VALID OR EFFECTIVE UNLESS
CONSENTED TO IN WRITING BY THE COMPANY. Any transfer of this Warrant, if
previously consented to by the Company,
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is registrable at the office or agency of the Company referred to in Paragraph
7(d) below by the holder hereof in person or by his duly authorized attorney,
upon surrender of this Warrant properly endorsed.
(b) Replacement of Warrant. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction, upon
delivery of an indemnity agreement reasonably satisfactory in form and amount
to the Company, or, in the case of any such mutilation, upon surrender and
cancellation of this Warrant, the Company, at its expense, will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
(c) Cancellation; Payment of Expenses. Upon the surrender of this
Warrant in connection with any permitted transfer or any replacement as
provided in this Paragraph 7, this Warrant shall be automatically canceled.
(d) Register. The Company shall maintain at its principal office in
Franklin, Tennessee (or such other office or agency of the Company as it may
designate by notice to the holder hereof), a register for this Warrant, in
which the Company shall record the name and address of the person in whose name
this Warrant has been issued, as well as the name and address of each permitted
transferee, if any, and each prior owner of this Warrant, if any.
8. No Adjustment for Dividends. Except as provided in Paragraph 4
hereof, no adjustment in respect of any dividends shall be made during the term
of this Warrant or upon the exercise of this Warrant. Notwithstanding any other
provision hereof, no adjustments shall be made on Warrant Shares issuable on
the exercise of this Warrant for any cash dividends paid or payable to holders
of record of Series A Preferred Stock or Common Stock prior to the date as of
which the holder of this Warrant shall be deemed to be the record holder of
such Warrant Shares.
9. Notices of Corporate Action. So long as this Warrant has not
been exercised, in the event of:
(a) any taking by the Company of a record of all holders of Series A
Preferred Stock (or, following the closing of any Qualified Public Offering,
Common Stock) for the purpose of determining the holders thereof who are
entitled to receive any dividend (other than cash dividends or distributions
paid from the retained earnings of the Company) or other distribution, or any
right to subscribe for, purchase or otherwise acquire any shares of stock of
any class or any other securities or property, or to receive any other right;
(b) any capital reorganization of the Company, any reclassification
or recapitalization of the capital stock of the Company or any consolidation or
merger involving the Company and any other entity or any transfer of all or
substantially all the assets of the Company to any other entity; or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
the Company will mail to the holder of this Warrant a notice specifying (i) the
date or expected date on which any such record is to be taken for the purpose
of such dividend, distribution or right and the amount and character of any
such dividend, distribution or right or (ii) the date or expected date on which
any such reorganization, reclassification, recapitalization, consolidation,
merger, transfer, dissolution, liquidation or winding-up is to take place and
the time, if any such
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time is to be fixed, as of which the holders of record of Series A Preferred
Stock (or, following the closing of any Qualified Public Offering, Common
Stock) shall be entitled to exchange their shares of Series A Preferred Stock
or Common Stock, as the case may be, for the securities or other property, if
any, deliverable upon such reorganization, reclassification, recapitalization,
consolidation, merger, transfer, dissolution, liquidation or winding-up. Such
notice shall be delivered at least 10 days prior to the date therein specified,
unless such date is beyond the control of the Company, in which case the notice
shall be delivered as soon as practicable, but in no event more than 5 days
prior to the date therein specified.
10. Lock-Up. Notwithstanding anything herein to the contrary,
without the prior written consent of the Company, neither this Warrant nor any
of the Warrant Shares issued or issuable upon exercise of this Warrant may be
transferred, sold, assigned, pledged, hypothecated or otherwise disposed of by
the holder(s) hereof or thereof (collectively, a "Disposition") at any time
within the 180-day period immediately following the effective date of any
registration statement filed under the Securities Act of 1933 in connection
with the Company's first Qualified Public Offering; except for any Disposition
(i) as a bona fide gift, provided the donees thereof agree in writing to be
bound by this restriction, (ii) as a distribution to the general or limited
partners, members or shareholders of such holder, provided that the
distributees thereof agree in writing to be bound by this restriction, or (iii)
if such holder is an individual, to members of his or her immediate family or
to a trust the beneficiaries of which are exclusively such holder and/or
members of his or her immediately family, provided that the transferees thereof
agree in writing to be bound by this restriction. The provisions of this
Paragraph 10 shall survive any exercise of this Warrant. This Paragraph 10 is
intended for the benefit of the Company and any underwriters that underwrite
such Qualified Public Offering. Any certificate(s) representing Warrant Shares
issued upon exercise of this Warrant may bear a legend referring to the
restriction contained in this Paragraph 10.
11. Notices. All notices, requests and other communications required
or permitted to be given or delivered hereunder to the holder of this Warrant
shall be in writing, and shall be personally delivered, or shall be sent by
certified or registered mail, postage prepaid and addressed, to such holder at
the address shown for such holder on the books of the Company, or at such other
address as shall have been furnished to the Company by notice from such holder.
All notices, requests and other communications required or permitted to be
given or delivered hereunder to the Company shall be in writing and shall be
personally delivered, or shall be sent by certified or registered mail, postage
prepaid and addressed, to the office of the Company at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, or at such other address as shall
have been furnished to the holder of this Warrant by notice from the Company.
Any such notice, request or other communication may be sent by telegram,
facsimile or telex, but shall in such case be subsequently confirmed by a
writing personally delivered or sent by certified or registered mail as
provided above. All notices, requests and other communications shall be deemed
to have been given either at the time of the delivery thereof to (or the
receipt by, in the case of a telegram, facsimile or telex) the person entitled
to receive such notice at the address of such person for purposes of this
Paragraph 11, or, if mailed, at the completion of the third full day following
the date of such mailing thereof to such address, as the case may be.
12. Governing Law. This Warrant shall be governed by and construed
and enforced in accordance with the laws of the State of Georgia.
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13. Miscellaneous.
(a) Amendments. This Warrant and any provision hereof may not be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the same is sought.
(b) Descriptive Headings. The descriptive headings of the several
Paragraphs of this Warrant are inserted for purposes of reference only and
shall not affect the meaning or construction of any of the provisions hereof.
(c) Entire Agreement. This Warrant constitutes the entire agreement
between the Company and the holder of this Warrant with respect to this
Warrant.
(d) Binding Effect; Benefits. This Warrant shall inure to the
benefit of and shall be binding upon the Company and the holder of this Warrant
(and, for purposes of Paragraph 10 hereof, any holder of Warrant Shares) and
their respective successors and assigns. Except as expressly provided in
Paragraph 10 hereof, nothing in this Warrant, expressed or implied, is intended
to or shall confer on any person other than the Company and such holder, or
their respective successors or assigns, any rights, remedies, obligations or
liabilities under or by reason of this Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
by its duly authorized undersigned officer as of _______________, 2000.
MD2PATIENT, INC.
By:
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Name:
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Title:
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FORM OF EXERCISE AGREEMENT
Dated:
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To: MD2patient, Inc.
The undersigned, pursuant to the provisions set forth in the within
Warrant, hereby exercises said Warrant with regard to all of the Warrant Shares
covered by such Warrant, and makes payment herewith in full therefor at the
price per share provided by such Warrant either: [check one]
[ ] (i) in cash or by certified or official bank check or by
immediately available federal funds in the amount of
$________________ as provided in the first sentence of
Paragraph 1(a) of the Warrant or
[ ] (ii) by acceptance of a lesser number of shares of Common
Stock as provided in the second sentence of Paragraph 1(a)
of the Warrant.
Please issue a certificate or certificates for the Warrant Shares in the name
of _______________ the undersigned. [Unless consented to in writing by the
Company, the Warrant Shares must be issued in the same name that the Warrant
has been issued.]
If the address to which the certificate(s) representing Warrant Shares
is(are) to be forwarded differs from the address of the holder of the Warrant
as shown on the records of the Company, or if more than one stock certificate
is to be issued with regard to such shares, the denominations in which the
stock certificate(s) should be issued and/or the address to which the stock
certificate(s) should be forwarded is set forth below.
Name:
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Signature:
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Title of Signing Officer or Agent (if any):
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Note: The above signature should correspond exactly
with the name on the face of the within Warrant.