EXHIBIT 4.2
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
February 22, 1995
TO: (i) each of the several
Purchasers named in Schedule I to the
Series B Convertible Participating
Preferred Stock Purchase Agreement of
even date herewith and (ii) each
person who is a party to that certain
Registration Agreement dated
April 27, 1993
Dear Sirs:
This will confirm that in consideration of: (i) the agreement of the
Purchasers to purchase an aggregate of at least 2,500,000 shares (the "Series B
Preferred Shares") of Series B Convertible Participating Preferred Stock, $.01
par value, of Data Critical Corp., an Oklahoma corporation (the "Company"),
pursuant to the Series B Convertible Participating Preferred Stock Purchase
Agreement of even date herewith (the "Purchase Agreement") between the Company
and the Purchasers and as an inducement to the Purchasers to consummate the
transactions contemplated by the Purchase Agreement, and (ii) the agreement by
each person who is a party to that certain Registration Agreement, dated April
27, 1993 (the "Registration Agreement") to amend and restate the Registration
Agreement in its entirety, the Company and each party hereto hereby covenants
and agrees that the Registration Agreement is hereby amended and restated in its
entirety to read as set forth herein and that each party hereto shall be subject
to all of the rights, benefits and obligations of the Registration Agreement as
so amended and restated.
1. Certain Definitions. As used in this Agreement, the following terms
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shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission, or any
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other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Common Stock, $.01 par value, of the Company,
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as constituted as of the date of this Agreement.
"Conversion Shares" shall mean shares of Common Stock issued upon
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conversion of the Preferred Shares and exercise of the Warrants.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
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or any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Preferred Shares" shall mean: (i) the Series B Preferred Shares and
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(ii) the shares of Series A Convertible Participating Preferred Stock, $.01 par
value, of the Company issued by the Company pursuant to that certain Preferred
Stock Purchase Agreement, dated April 27, 1993, between the Company and ML
Oklahoma Venture Partners, Limited Partnership.
"Registration Expense" shall mean the expenses so described in Section 8.
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"Restricted Stock" shall mean the Conversion Shares, excluding Conversion
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Shares which have been: (a) registered under the Securities Act pursuant to an
effective registration statement filed thereunder and disposed of in accordance
with the registration statement covering them or (b) publicly sold pursuant to
Rule 144 under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
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similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean the expenses so described in Section 8.
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"Warrants" shall mean Common Stock Purchase Warrants exercisable for shares
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of Common Stock of the Company issued by the Company on September 23, 1994
pursuant to a certain Bridge Loan Agreement, dated such date, among the Company
and the other parties named therein.
2. Restrictive Legend. Each certificate representing Preferred Shares,
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Warrants or Conversion Shares shall, except as otherwise provided in this
Section 2 or in Section 3, be stamped or otherwise imprinted with a legend
substantially in the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND
MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS IT
HAS BEEN REGISTERED UNDER SUCH ACT AND ALL SUCH APPLICABLE
LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE."
A certificate shall not bear such legend if in the opinion of counsel
satisfactory to the Company (it being agreed that Xxxxx, Xxxxxxx Xxxxxxxxx shall
be satisfactory) the securities represented thereby may be publicly sold without
registration under the Securities Act and any applicable state securities laws.
3. Notice of Proposed Transfer. Prior to any proposed transfer of any
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Preferred Shares, Warrants or Conversion Shares (other than under the
circumstances described in Sections 4, 5 or 6), the holder thereof shall give
written notice to the Company of its intention to effect such transfer. Each
such notice shall describe the manner of the proposed transfer and, if requested
by the Company, shall be accompanied by an opinion of counsel satisfactory to
the
Company (it being agreed that Xxxxx, Xxxxxxx & Xxxxxxxxx shall be satisfactory)
to the effect that the proposed transfer may be effected without registration
under the Securities Act and any applicable state securities laws, whereupon the
holder of such stock shall be entitled to transfer such stock in accordance with
the terms of its notice; provided, however, that no such opinion of counsel
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shall be required for a transfer to one or more partners of the transferor (in
the case of a transferor that is a partnership) or to an affiliated corporation
(in the case of a transferor that is a corporation). Each certificate for
Preferred Shares, Warrants or Conversion Shares transferred as above provided
shall bear the legend set forth in Section 2, except that such certificate shall
not bear such legend if: (i) such transfer is in accordance with the provisions
of Rule 144 (or any other rule permitting public sale without registration under
the Securities Act) or (ii) the opinion of counsel referred to above is to the
further effect that the transferee and any subsequent transferee (other than an
affiliate of the Company) would be entitled to transfer such securities in a
public sale without registration under the Securities Act. The restrictions
provided for in this Section 3 shall not apply to securities which are not
required to bear the legend prescribed by Section 2 in accordance with the
provisions of that Section.
4. Required Registration. (a) At any time, or from time to time, the
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holders of Restricted Stock constituting at least 40% of the total shares of
Restricted Stock then outstanding may request the Company to register under the
Securities Act all or any portion of the shares of Restricted Stock held by such
requesting holder or holders for sale in the manner specified in such notice,
provided that the shares of Restricted Stock for which registration has been
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requested shall constitute at least 20% of the total shares of Restricted Stock
originally issued if such holder or holders shall request the registration of
less than all shares of Restricted Stock then held by such holder or holders (or
any lesser percentage if the reasonably anticipated aggregate price to the
public of such public offering would exceed $5,000,000). For purposes of this
Section 4 and Sections 5, 6, 13(a) and 13(d), the term "Restricted Stock" shall
be deemed to include the number of shares of Restricted Stock which would be
issuable to a holder of Preferred Shares and/or Warrants upon conversion and
exercise of all Preferred Shares and/or Warrants held by such holder at such
time, provided, however, that the only securities which the Company shall be
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required to register pursuant hereto shall be shares of Common Stock, and
provided, further, however, that, in any underwritten public offering
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contemplated by this Section 4 or Sections 5 and 6, the holders of Preferred
Shares and warrants shall be entitled to sell such Preferred Shares and warrants
to the underwriters for conversion, exercise and sale of the shares of Common
Stock issued upon conversion or exercise thereof. Notwithstanding anything to
the contrary contained herein, no request may be made under this Section 4
within 120 days after the effective date of a registration statement filed by
the Company covering a firm commitment underwritten public offering in which the
holders of Restricted Stock shall have been entitled to join pursuant to
Sections 5 or 6 and in which there shall have been effectively registered all
shares of Restricted Stock as to which registration shall have been requested.
(b) Following receipt of any notice under this Section 4, the Company shall
immediately notify all holders of Restricted Stock from whom notice has not been
received and shall use its best efforts to register under the Securities Act,
for public sale in accordance with the method of disposition specified in such
notice from requesting holders, the number of shares of Restricted Stock
specified in such notice (and in all notices received by the Company from other
holders within 30 days after the giving of such notice by the Company). If such
method of disposition shall be an underwritten public offering, the holders of a
majority of the shares of Restricted Stock to be sold in
such offering may designate the managing underwriter of such offering, subject
to the approval of the Company, which approval shall not be unreasonably
withheld or delayed. The Company shall be obligated to register Restricted Stock
pursuant to this Section 4 on two occasions only, provided, however, that such
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obligation shall be deemed satisfied only when a registration statement covering
all shares of Restricted Stock specified in notices received as aforesaid, for
sale in accordance with the method of disposition specified by the requesting
holders, shall have become effective and, if such method of disposition is a
firm commitment underwritten public offering, all such shares shall have been
sold pursuant thereto.
(c) The Company shall be entitled to include in any registration statement
referred to in this Section 4, for sale in accordance with the method of
disposition specified by the requesting holders, shares of Common Stock to be
sold by the Company for its own account, except as and to the extent that, in
the opinion of the managing underwriter (if such method of disposition shall be
an underwritten public offering), such inclusion would adversely affect the
marketing of the Restricted Stock to be sold. Except for registration statements
on Form X-0, X-0 or any successor thereto, the Company will not file with the
Commission any other registration statement with respect to its Common Stock,
whether for its own account or that of other stockholders, from the date of
receipt of a notice from requesting holders pursuant to this Section 4 until the
completion of the period of distribution of the registration contemplated
thereby.
5. Incidental Registration. If the Company at any time (other than
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pursuant to Section 4 or Section 6) proposes to register any of its securities
under the Securities Act for sale to the public, whether for its own account or
for the account of other security holders or both (except with respect to
registration statements on Forms X-0, X-0 or another form not available for
registering the Restricted Stock for sale to the public), each such time it will
give written notice to all holders of outstanding Restricted Stock of its
intention so to do. Upon the written request of any such holder, received by the
Company within 30 days after the giving of any such notice by the Company, to
register any of its Restricted Stock, the Company will use its best efforts to
cause the Restricted Stock as to which registration shall have been so requested
to be included in the securities to be covered by the registration statement
proposed to be filed by the Company, all to the extent requisite to permit the
sale or other disposition by the holder of such Restricted Stock so registered.
In the event that any registration pursuant to this Section 5 shall be, in whole
or in part, an underwritten public offering of Common Stock, the number of
shares of Restricted Stock to be included in such an underwriting may be reduced
(pro rata among the requesting holders based upon the number of shares of
Restricted Stock owned by such holders) if and to the extent that the managing
underwriter shall be of the opinion that such inclusion would adversely affect
the marketing of the securities to be sold by the Company therein, provided,
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however, that such number of shares of Restricted Stock shall not be reduced if
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any shares are to be included in such underwriting for the account of any person
other than the Company or requesting holders of Restricted Stock, and provided,
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further, however, that in no event may less than one-third of the total number
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of shares of Common Stock to be included in such underwriting be made available
for shares of Restricted Stock. Notwithstanding the foregoing provisions, the
Company may withdraw any registration statement referred to in this Section 5
without thereby incurring any liability to the holders of Restricted Stock.
6. Registration on Form S-3. If at any time (i) a holder or holders of
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Preferred Shares, Warrants or Restricted Stock request that the Company file a
registration statement on
Form S-3 or any successor thereto for a public offering of all or any portion of
the shares of Restricted Stock held by such requesting holder or holders, the
reasonably anticipated aggregate price to the public of which would exceed
$250,000, and (ii) the Company is a registrant entitled to use Form S-3 or any
successor thereto to register such shares, then the Company shall use its best
efforts to register under the Securities Act on Form S-3 or any successor
thereto, for public sale in accordance with the method of disposition specified
in such notice, the number of shares of Restricted Stock specified in such
notice. Whenever the Company is required by this Section 6 to use its best
efforts to effect the registration of Restricted Stock, each of the procedures
and requirements of Section 4 (including but not limited to the requirement that
the Company notify all holders of Restricted Stock from whom notice has not been
received and provide them with the opportunity to participate in the offering)
shall apply to such registration, provided, however, that there shall be no
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limitation on the number of registrations on Form S-3 which may be requested and
obtained under this Section 6, and provided, further, however, that the
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requirements contained in the first sentence of Section 4(a) shall not apply to
any registration on Form S- which may be requested and obtained under this
Section 6.
7. Registration Procedures. If and whenever the Company is required by
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the provisions of Sections 4, 5 or 6 to use its best efforts to effect the
registration of any shares of Restricted Stock under the Securities Act, the
Company will, as expeditiously as possible:
(a) prepare and file with the Commission a registration statement
(which, in the case of an underwritten public offering pursuant to Section 4,
shall be on Form S-1 or other form of general applicability satisfactory to the
managing underwriter selected as therein provided) with respect to such
securities and use its best efforts to cause such registration statement to
become and remain effective for the period of the distribution contemplated
thereby (determined as hereinafter provided);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the period specified in paragraph (a) above and comply with the provisions of
the Securities Act with respect to the disposition of all Restricted Stock
covered by such registration statement in accordance with the sellers, intended
method of disposition set forth in such registration statement for such period,
(c) furnish to each seller of Restricted Stock and to each underwriter
such number of copies of the registration statement and the prospectus included
therein (including each preliminary prospectus) as such persons reasonably may
request in order to facilitate the public sale or other disposition of the
Restricted Stock covered by such registration statement;
(d) use its best efforts to register or qualify the Restricted Stock
covered by such registration statement under the securities or "blue sky" laws
of such jurisdictions as the sellers of Restricted Stock or, in the case of an
underwritten public offering, the managing underwriter reasonably shall request,
provided, however, that the Company shall not for any such purpose be required
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to qualify generally to transact business as a foreign corporation in any
jurisdiction where it is not so qualified or to consent to general service of
process in any such jurisdiction;
(e) use its best efforts to list the Restricted Stock covered by such
registration statement with any securities exchange on which the Common Stock of
the Company is then listed;
(f) immediately notify each seller of Restricted Stock and each
underwriter under such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event of which the Company has knowledge as a result of which
the prospectus contained in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(g) if the offering is underwritten and at the request of any seller
of Restricted Stock, use its best efforts to furnish on the date that Restricted
Stock is delivered to the underwriters for sale pursuant to such registration:
(a) an opinion dated such date of counsel representing the Company for the
purposes of such registration, addressed to the underwriters and to such seller,
stating that such registration statement has become effective under the
Securities Act and that (A) to the best knowledge of such counsel, no stop order
suspending the effectiveness thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the Securities
Act, (B) the registration statement, the related prospectus and each amendment
or supplement thereof comply as to form in all material respects with the
requirements of the Securities Act (except that such counsel need not express
any opinion as to financial statements contained therein) and (C) to such other
effects as reasonably may be requested by counsel for the underwriters or by
such seller or its counsel and (ii) a letter dated such date from the
independent public accountants retained by the Company, addressed to the
underwriters and to such seller, stating that they are independent public
accountants within the meaning of the Securities Act and that, in the opinion of
such accountants, the financial statements of the Company included in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as to the
period ending no more than five business days prior to the date of such letter)
with respect to such registration as such underwriters reasonably may request;
and
(h) make available for inspection by each seller of Restricted Stock,
any underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such seller
or underwriter, all financial and other records, pertinent corporate documents
and properties of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement.
For purposes of Section 7(a) and 7(b) and of Section 4(c), the period of
distribution of Restricted Stock in a firm commitment underwritten public
offering shall be deemed to extend until each underwriter has completed the
distribution of all securities purchased by it, and the period of distribution
of Restricted Stock in any other registration shall be deemed to extend until
the earlier of the sale of all Restricted Stock covered thereby and 120 days
after the effective date thereof.
In connection with each registration hereunder, the sellers of Restricted
Stock will furnish to the Company in writing such information with respect to
themselves and the proposed distribution by them as reasonably shall be
necessary in order to assure compliance with federal and applicable state
securities laws.
In connection with each registration pursuant to Sections 4, 5 or 6
covering an underwritten public offering, the Company and each seller agree to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between such
underwriter and companies of the Company's size and investment stature.
8. Expenses. All expenses incurred by the Company in complying with
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Sections 4, 5 and 6, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for the Company, fees and expenses (including counsel fees)
incurred in connection with complying with state securities or "blue sky" laws,
fees of the National Association of Securities Dealers, Inc., transfer taxes,
fees of transfer agents and registrars, costs of insurance and fees and
disbursements of one counsel for the sellers of Restricted Stock, but excluding
any Selling Expenses, are called "Registration Expenses". All underwriting
discounts and selling commissions applicable to the sale of Restricted Stock are
called "Selling Expenses".
The Company will pay all Registration Expenses in connection with each
registration statement under Sections 4, 5 or 6. All Selling Expenses in
connection with each registration statement under Sections 4, 5 or 6 shall be
borne by the participating sellers in proportion to the number of shares sold by
each, or by such participating sellers other than the Company (except to the
extent the Company shall be a seller) as they may agree.
9. Indemnification and Contribution. (a) In the event of a registration
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of any of the Restricted Stock under the Securities Act pursuant to Sections 4,
5 or 6, the Company will indemnify and hold harmless each seller of such
Restricted Stock thereunder, each underwriter of such Restricted Stock
thereunder and each other person, if any, who controls such seller or
underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such seller,
underwriter or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such Restricted Stock was registered under the Securities Act
pursuant to Sections 4, 5 or 6, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each such seller, each such underwriter and each
such controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action, provided, however, that the Company will not be liable in
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any such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished by any such
seller, any such underwriter or any such controlling person in writing
specifically for use in such registration statement or prospectus.
(b) In the event of a registration of any of the Restricted Stock
under the Securities Act pursuant to Sections 4, 5 or 6, each seller of such
Restricted Stock thereunder, severally and not jointly, will indemnify and hold
harmless the Company, each person, if any, who controls the Company within the
meaning of the Securities Act, each officer of the Company who signs the
registration statement, each director of the Company, each underwriter and each
person who controls any underwriter within the meaning of the Securities Act,
against all losses, claims, damages or liabilities, joint or several, to which
the Company or such officer, director, underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the registration statement under which such Restricted Stock
was registered under the Securities Act pursuant to Sections 4, 5 or 6, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Company and each such officer, director, underwriter and controlling person for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action,
provided, however, that such seller will be liable hereunder in any such case if
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and only to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in reliance upon and in conformity with information
pertaining to such seller, as such, furnished in writing to the Company by such
seller specifically for use in such registration statement or prospectus, and
provided, further, however, that the liability of each seller hereunder shall be
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limited to the proportion of any such loss, claim, damage, liability or expense
which is equal to the proportion that the public offering price of the shares
sold by such seller under such ' registration statement bears to the total
public offering price of all securities sold thereunder, but not in any event to
exceed the proceeds received by such seller from the sale of Restricted Stock
covered by such registration statement.
(c) Promptly after receipt by an indemnified party hereunder of notice
of the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
such indemnified party other than under this Section 9 and shall only relieve it
from any liability which it may have to such indemnified party under this
Section 9 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 9 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected, provided,
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however, that, if the defendants in
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any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
reasonable defenses available to it which are different from or additional to
those available to the indemnifying party or if the interests of the indemnified
party reasonably may be deemed to conflict with the interests of the
indemnifying party, the indemnified party shall have the right to select a
separate counsel and to assume such legal defenses and otherwise to participate
in the defense of such action, with the expenses and fees of such separate
counsel and other expenses related to such participation to be reimbursed by the
indemnifying party as incurred.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any holder
of Restricted Stock exercising rights under this Agreement, or any controlling
person of any such holder, makes a claim for indemnification pursuant to this
Section 9 but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 9 provides for
indemnification in such case, or (ii) contribution under the Securities Act may
be required on the part of any such selling holder or any such controlling
person in circumstances for which indemnification is provided under this Section
9; then, and in each such case, the Company and such holder will contribute to
the aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportion so that such holder
is responsible for the portion represented by the percentage that the public
offering price of its Restricted Stock offered by the registration statement
bears to the public offering price of all securities offered by such
registration statement, and the Company is responsible for the remaining
portion; provided, however, that, in any such case, (A) no such holder will be
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required to contribute any amount in excess of the public offering price of all
such Restricted Stock offered by it pursuant to such registration statement; and
(B) no person or entity guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) will be entitled to contribution
from any person or entity who was not guilty of such fraudulent
misrepresentation.
10. Changes in Capital Stock. If, and as often as, there is any change in
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the Capital Stock of the Company by way of a stock split, stock dividend,
combination or reclassification, or through a merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof so that the rights and
privileges granted hereby shall continue with respect to the Capital Stock as so
changed.
11. Rule 144 Reporting. With a view to making available the benefits of
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certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Stock to the public without registration, at all times
after 90 days after any registration statement covering a public offering of
securities of the Company under the Securities Act shall have become effective,
the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to each holder of Restricted Stock forthwith upon request
a written statement by the Company as to its compliance with the reporting
requirements of such Rule 144 and of the Securities Act and the Exchange Act, a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents so filed by the Company as such holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing such holder to sell any Restricted Stock without
registration.
12. Representations and Warranties of the Company. The Company represents
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and warrants to you as follows:
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and will not
violate any provision of law, any order of any court or other agency of
government, the Charter or By-laws of the Company or any provision of any
indenture, agreement or other instrument to which it or any or its properties or
assets is bound, conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture, agreement
or other instrument or result in the creation or imposition of any lien, charge
or encumbrance of any nature whatsoever upon any of the properties or assets of
the Company.
(b) This Agreement has been duly executed and delivered by the Company
and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms.
13. Miscellaneous.
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(a) All covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto (including without
limitation transferees of any Preferred Shares or Restricted Stock), whether so
expressed or not.
(b) All notices, requests, consents and other communications hereunder
shall be in writing and shall be delivered in person, mailed by certified or
registered mail, return receipt requested, or sent by telecopier or telex,
addressed as follows:
if to the Company or any other party hereto, at the address of such
party set forth beneath such party signature to this Agreement;
if to any subsequent holder of Preferred Shares, Warrants or
Restricted Stock, to it at such address as may have been furnished to the
Company in writing by such holder;
or, in any case, at such other address or addresses as shall have been furnished
in writing to the Company (in the case of a holder of Preferred Shares, warrants
or Restricted Stock) or to the
holders of Preferred Shares, Warrants or Restricted Stock (in the case of the
Company) in accordance with the provisions of this paragraph.
(c) This Agreement shall be governed by and construed in accordance
with the laws of the State of Oklahoma.
(d) This Agreement may not be amended or modified, and no provision
hereof may be waived, without the written consent of the Company and the holders
of at least two-thirds of the outstanding shares of Restricted Stock.
(e) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(f) If requested in writing by the underwriters for the initial
underwritten public offering of securities of the Company, each holder of
Restricted Stock who is a party to this Agreement shall agree not to sell
publicly any shares of Restricted Stock or any other shares of Common Stock
(other than shares of Restricted Stock or other shares of Common Stock being
registered in such offering), without the consent of such underwriters, for a
period of not more than 90 days following the effective date of the registration
statement relating to such offering; provided, however, that all persons
-------- -------
entitled to registration rights with respect to shares of Common Stock who are
not parties to this Agreement, all other persons selling shares of Common Stock
in such offering, all persons holding in excess of 1% of the capital stock of
the Company on a fully diluted basis and all executive officers and directors of
the Company shall also have agreed not to sell publicly their Common Stock under
the circumstances and pursuant to the terms set forth in this Section 13(f).
(g) Notwithstanding the provisions of Section 7 (a), the Company's
obligation to file a registration statement, or cause such registration
statement to become and remain effective, shall be suspended for a period not to
exceed 60 days in any 24-month period if there exists at the time material non-
public information relating to the Company which, in the reasonable opinion of
the Company, should not be disclosed
(h) The Company shall not grant to any third party any registration
rights more favorable than or inconsistent with any of those contained herein,
so long as any of the registration rights under this Agreement remains in
effect.
(i) if any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability shall
attach only to such provision and shall not in any manner affect or render
illegal, invalid or unenforceable any other provision of this Agreement, and
this Agreement shall be carried out as if any such illegal, invalid or
unenforceable provision were not contained herein.
(j) Any Additional Purchaser (as that term is defined in the Purchase
Agreement) may become a party to this Agreement by the execution of a
counterpart of this Agreement by the Company and such Additional Purchaser.
Please indicate your acceptance of the foregoing by signing and returning
the enclosed counterpart of this letter, whereupon this Agreement shall be a
binding agreement between the Company and you.
Very truly yours,
DATA CRITICAL CORP.
By: /s/
Xxxxxxx X. Xxxxx, President
AGREED TO AND ACCEPTED as of the date first above written.
PURCHASERS:
APEX INVESTMENT FUND II, L.P.
BY: Apex Management Partnership, its
General Partner
By: Xxxxxx X. Xxxxxxxxx, General Partner
---------
AMENDMENT NO. 1 TO
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
-----------------------------
Effective September 18, 1996, pursuant to Amendment No. 3 to that certain
Series B Convertible Participating Preferred Stock Purchase Agreement, executed
by Data Critical Corp. and the holders of more than two-thirds of the
outstanding shares of Restricted Stock, the Amended and Restated Registration
Rights Agreement was amended as follows:
I. Definition of Preferred Shares. The definition of "Preferred Shares"
--------------------------------
was amended to read in its entirety as follows:
"Preferred Shares" shall mean: (i) the Series B Preferred Shares;
-------------------------
(ii) the shares of Series A Convertible Participating Preferred Stock, $.01
par value, of the Company issued by the Company pursuant to that certain
Preferred Stock Purchase Agreement, dated April 27, 1993, between the
Company and ML Oklahoma Venture Partners, Limited Partnership; and (iii)
the shares of Series C Convertible Participating Preferred Stock, $.01 par
value, of the Company issued by the Company pursuant to the terms of that
certain Series C Convertible Participating Preferred Stock Purchase
Agreement.
2. Definition of Warrants. The definition of "Warrants" was amended to
------------------------
read in its entirety as follows:
"Warrants' shall mean Common Stock Purchase Warrants exercisable for
-----------
shares of Common Stock of the Company issued by the Company: (i) on
September 23, 1994, pursuant to a certain Bridge Loan Agreement, dated such
date, among the Company and the other parties named therein; (ii) on April
13, 1995 pursuant to a certain Warrant Agreement, dated such date, between
the Company and Xxxxxxx Xxxxx Incorporated, and the assignees thereto; and
(iii) on July 10, 1996 pursuant to a certain Product Development Agreement,
dated such date, among the Company, Nomadics, Inc. and Xxxxx Xxxxxxx.
The foregoing set forth all amendments in effect through September 27,
1996.
AMENDMENT NO. 2 TO
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
-----------------------------
Effective February 19, 1998, pursuant to a Memorandum of Action of
Shareholders, executed by the holders of more than two-thirds of the outstanding
shares of Restricted Stock (as defined in the Registration Rights Agreement),
the Amended and Restated Registration Rights Agreement was amended as follows:
1. Definition of Preferred Shares. The definition of "Preferred Shares"
------------------------------------
was amended to read in its entirety as follows:
"Preferred Shares" shall mean: (i) the Series B Preferred Shares; (ii)
-------------------
the shares of Series A Convertible Participating Preferred Stock, $.01 par
value, of the Company issued by the Company pursuant to that certain
Preferred Stock Purchase Agreement, dated April 27, 1993, between the
Company and ML Oklahoma Venture Partners, Limited Partnership; (iii) the
shares of Series C Convertible Participating Preferred Stock, $.01 par
value, of the Company issued by the Company pursuant to the terms of that
certain Series C Convertible Participating Preferred Stock Purchase
Agreement; and (iv) the shares of Series D Convertible Participating
Preferred Stock, $.01 par value, of the Company issued by the Company
pursuant to the terms of that certain Series D Convertible Participating
Preferred Stock Purchase Agreement, dated February 26, 1998.
2. Definition of Warrants. The definition of "Warrants" was amended to
------------------------
read in its entirety as follows:
"Warrants" shall mean Common Stock Purchase Warrants exercisable for
-----------
shares of Common Stock of the Company issued by the Company: (i) on
September 23, 1994, pursuant to a certain Bridge Loan Agreement, dated such
date, among the Company and the other parties named therein; (ii) on April
13, 1995 pursuant to a certain Warrant Agreement, dated such date, between
the Company and Xxxxxxx Xxxxx Incorporated, and the assignees thereto;
(iii) on July 10, 1996 pursuant to a certain Product Development Agreement,
dated such date, among the Company, Nomadics, Inc. and Xxxxx Xxxxxxx; and
(iv) pursuant to that certain Bridge Loan Agreement, dated as of November
4, 1997, by and among the Company and the other parties named therein.
The foregoing set forth all amendments in effect through March 2, 1998.
