Exhibit 10.11
WARRANT
This Warrant has not been registered under the Securities Act of 1933, as
amended, or any applicable state securities laws, and may not be sold or
transferred unless such sale or transfer is in accordance with the registration
requirements of such Act and applicable laws or some other exemption from the
registration requirements of such Act and applicable laws is available with
respect thereto.
VISTACARE, INC.
Class A Common Stock Purchase Warrant
Warrant No. CS-1
Void after July 26, 2009
1. Issuance. This Warrant is issued to Bessemer Venture Partners III
L.P. by VistaCare, Inc., a Delaware corporation (hereinafter with its successors
called the "Company").
2. Purchase Price; Number of Shares. Subject to the terms and
conditions hereinafter set forth, the registered holder of this Warrant (the
Holder"), is entitled upon surrender of this Warrant with the subscription form
annexed hereto duly executed, at the office of the Company, 7702 East Doubletree
Branch Road, Scottsdale, Arizona 85258, or such other office as the Company
shall notify the Holder of in writing, from and after the date hereof and on or
before July 26, 2009, to purchase from the Company, at a purchase price per
share equal to $.01 (the "Purchase Price"), 50,000 fully paid and nonassessable
shares of Class A Common Stock, $.01 par value per share, of the Company (the
"Common Stock"). Until such time as this Warrant is exercised in full or
expires, the Purchase Price and the securities issuable upon exercise of this
Warrant are subject to adjustment as hereinafter provided.
3. Payment of Purchase Price. The Purchase Price may be paid (i) in
cash or by check; (ii) by the surrender by the Holder to the Company of any
promissory notes or other obligations issued by the Company, with all such notes
and obligations so surrendered being credited against the Purchase Price in an
amount equal to the principal amount thereof plus
accrued interest to the date of surrender; or (iii) by any combination of the
foregoing.
4. Net Issuance Election. The Holder may elect to receive, without the
payment by the Holder of any additional consideration, shares equal to the value
of this Warrant or any portion hereof by the surrender of this Warrant or such
portion to the Company, with the net issuance election notice annexed hereto
duly executed, at the office of the Company. Thereupon, the Company shall issue
to the Holder such number of fully paid and nonassessable shares of Common Stock
as is computed using the following formula:
X = Y (A-B)
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A
where X = the number of shares to be issued to the Holder pursuant to
this Section 4.
Y = the number of shares covered by this Warrant in respect of
which the net issuance election is made pursuant to this
Section 4.
A = fair market value of one share of Common Stock, as determined
in good faith by the Board of Directors of the Company (the
"Board"), at the time the net issuance election is made
pursuant to this Section 4.
B = the Purchase Price in effect under this Warrant at the time
the net issuance election is made pursuant to this Section 4.
The Board shall promptly respond in writing to an inquiry by the Holder as to
the fair market value of one share of Common Stock.
5. Partial Exercise. This Warrant may be exercised in part, and the
Holder shall be entitled to receive a new warrant, which shall be dated as of
the date of this Warrant, covering the number of shares in respect of which this
Warrant shall not have been exercised.
6. Issuance Date. The person or persons in whose name or names any
certificate representing shares of Common Stock is issued hereunder shall be
deemed to have become the holders of record of the shares represented thereby as
at the close of
business on the date this Warrant is exercised with respect to such shares,
whether or not the transfer books of the Company shall be closed.
7. Expiration Date. This Warrant shall expire at the close of business
on July 26, 2009, and shall be void thereafter.
8. Reserved Shares; Valid Issuance. The Company covenants that it will
at all times from and after the date hereof reserve and keep available such
number of its authorized shares of Common Stock, free from all preemptive or
similar rights therein, as will be sufficient to permit the exercise of this
Warrant in full. The Company further covenants that such shares as may be issued
pursuant to the exercise of this Warrant will, upon issuance, be duly and
validly issued, fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issuance thereof.
9. Subdivisions, Split-ups, Combinations and Stock Dividends. If after
the Original Issue Date (as defined in Section 14 hereof) the Company shall
subdivide the Common Stock, by split up or otherwise, or combine the Common
Stock, or issue additional shares of Common Stock in payment of a stock dividend
on the Common Stock, the number of shares issuable on the exercise of this
Warrant shall forthwith be proportionately increased in the case of a
subdivision or stock dividend, or proportionately decreased in the case of a
combination, and the Purchase Price shall forthwith be proportionately decreased
in the case of a subdivision or stock dividend, or proportionately increased in
the case of a combination.
10. Mergers and Reclassifications. If after the Original Issue Date (as
defined in Section 14 hereof) there shall be any reclassification, capital
reorganization or change of the Common Stock (other than as a result of a
subdivision, combination or stock dividend provided for in Section 9 hereof), or
any consolidation of the Company with, or merger of the Company into, another
corporation or other business organization (other than a consolidation or merger
(i) in which the stockholders of the Company immediately before such transaction
hold immediately after such transaction stock representing in excess of 50% of
the voting power of the surviving or resulting entity and (ii) which does not
result in any reclassification or change of the outstanding Common Stock), or
any sale or conveyance to another corporation or other business organization of
all or
substantially all of the assets of the Company, then, as a condition of such
reclassification, reorganization, change, consolidation, merger, sale or
conveyance, lawful provisions shall be made, and duly executed documents
evidencing the same from the Company or its successor shall be delivered to the
Holder, so that the Holder shall thereafter have the right to purchase, at a
total price not to exceed that payable upon the exercise of this Warrant in
full, the kind and amount of shares of stock and other securities and property
receivable upon such reclassification, reorganization, change, consolidation,
merger, sale or conveyance by holders of the number of shares of Common Stock
which might have been purchased by the Holder immediately prior to such
reclassification, reorganization, change, consolidation, merger, sale or
conveyance, and in such case appropriate provisions shall be made with respect
to the rights and interest of the Holder to the end that the provisions hereof
(including, without limitation, provisions for the adjustment of the Purchase
Price and the number of shares issuable hereunder) shall thereafter be
applicable in relation to any shares of stock or other securities and property
thereafter deliverable upon exercise hereof.
11. Fractional Shares. In no event shall any fractional share of Common
Stock be issued upon any exercise of this Warrant. If, upon exercise of this
Warrant as an entirety, the Holder would, except as provided in this Section 11,
be entitled to receive a fractional share of Common Stock, then the Company
shall issue the next higher number of full shares of Common Stock, issuing a
full share with respect to such fractional share.
12. Certificate of Adjustment. Whenever the Purchase Price is adjusted,
as herein provided, the Company shall promptly deliver to the Holder a
certificate of the Company's Chief Financial Officer setting forth the Purchase
Price after such adjustment and setting forth a brief statement of the facts
requiring such adjustment.
13. Notices of Record Date, Etc. In the event of:
(a) any taking by the Company of a record of the holders of any class
of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend 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 reclassification of the capital stock of the Company, capital
reorganization of the Company, consolidation or merger involving the Company, or
sale or conveyance of all or substantially all of its assets, or
(c) any voluntary or involuntary dissolution, liquidation or winding-up
of the Company,
then and in each such event the Company will mail or cause to be mailed to the
Holder a notice specifying (i) the date on which any such record is to be taken
for the purpose of such dividend, distribution or right, and stating the amount
and character of such dividend, distribution or right, or (ii) the date on which
any such reclassification, reorganization, consolidation, merger, sale or
conveyance, dissolution, liquidation or winding-up is to take place, and the
time, if any is to be fixed, as of which the holders of record in respect of
such event are to be determined. Such notice shall be mailed at least 20 days
prior to the date specified in such notice on which any such action is to be
taken.
14. Other Agreements. This Warrant is being issued by the Company on
December 27, 1999 (the "Original Issue Date") pursuant to a Stock Purchase
Agreement, dated as of December 23, 1999, among the Company and the other
parties thereto.
15. Amendment. The terms of this Warrant may be amended, modified or
waived only with the written consent of the Company and the Holder.
16. Warrant Register; Transfers, Etc.
A. The Company will maintain a register containing the name and address
of the Holder. The Holder may change his or its address as shown on the warrant
register by written notice to the Company requesting such change. Any notice or
written communication required or permitted to be given to the Holder may be
given by certified mail or delivered to the Holder at his or its address as
shown on the warrant register.
B. Subject to compliance with applicable federal and state securities
laws, this Warrant may be transferred by the Holder with respect to any or all
of the Shares purchasable hereunder. Upon surrender of this Warrant to the
Company,
together with the assignment hereof properly endorsed, for transfer of this
Warrant as an entirety by the Holder, the Company shall issue a new warrant of
the same denomination to the assignee. Upon surrender of this Warrant to the
Company, together with the assignment hereof properly endorsed, by the Holder
for transfer with respect to a portion of the shares of Common Stock purchasable
hereunder, the Company shall issue a new warrant to the assignee, in such
denomination as shall be requested by the Holder hereof, and shall issue to such
Holder a new warrant covering the number of shares in respect of which this
Warrant shall not have been transferred.
C. In case this Warrant shall be mutilated, lost, stolen or destroyed,
the Company shall issue a new warrant of like tenor and denomination and deliver
the same (i) in exchange and substitution for and upon surrender and
cancellation of any mutilated Warrant, or (ii) in lieu of any Warrant lost,
stolen or destroyed, upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft or destruction of such Warrant (including a
reasonably detailed affidavit with respect to the circumstances of any loss,
theft or destruction) and of indemnity reasonably satisfactory to the Company.
17. No Impairment. The Company will not, by amendment of its
Certificate of Incorporation or By-laws or through any reclassification, capital
reorganization, consolidation, merger, sale or conveyance of assets,
dissolution, liquidation, issue or sale of securities or any other voluntary
action, avoid or seek to avoid the observance or performance of any of the terms
of this Warrant, but will at all times in good faith assist in the carrying out
of all such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holder.
18. Governing Law. The provisions and terms of this Warrant shall be
governed by and construed in accordance with the internal laws of The
Commonwealth of Massachusetts.
19. Successors and Assigns. This Warrant shall be binding upon the
Company's successors and assigns and shall inure to the benefit of each of the
Holder's successors, legal representatives and permitted assigns.
Dated: December 27, 1999 VISTACARE, INC.
(Corporate Seal) By: /s/ Barry M. Smith
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Attest: Name: Barry M. Smith
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/s/ David Daucher Title: President
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Subscription
To:___________ Date:___________
The undersigned hereby subscribes for $____worth of shares of Common
Stock covered by this Warrant. The certificate(s) for such shares shall be
issued in the name of the undersigned or as otherwise indicated below:
Signature
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Name for Registration
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Mailing Address
Net Issuance Election Notice
To:___________ Date:___________
The undersigned hereby elects under Section 4 to surrender the right to
purchase ____shares of Common Stock pursuant to this Warrant. The certificate(s)
for the shares issuable upon such net issuance election shall be issued in the
name of the undersigned or as otherwise indicated below:
Signature
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Name for Registration
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Mailing Address
Assignment
For value received hereby sells,
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assigns and transfers unto
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(print or typewrite name and address of Assignee)
the within Warrant, and does hereby irrevocably constitute and appoint
its attorney to transfer the within Warrant on the books of the
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within named Company with full power of substitution on the premises.
Dated:
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In the Presence of:
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