Exhibit 4.4


 


Form of
Warrant Issued to Purchasers of


Convertible
Secured Promissory Notes


as
amended by the Omnibus Amendment


to
Convertible Secured Promissory Notes and Warrants


dated
November 30, 2005


 





















 


THE SECURITIES
REPRESENTED BY THIS WARRANT HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.  SUCH SECURITIES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER
SAID ACT.


 


No.  3


 


ISSUED:  October 31, 2002


 


MEDLYTE, INC.


 


SHARE PURCHASE WARRANT


 


This Share
Purchase Warrant (this “Warrant”) certifies that Johnson &
Johnson Development Corporation, A New Jersey corporation, or its assigns (the “Registered
Holder”), for value received, is entitled to purchase from Medlyte
Diagnostics, Inc., a Delaware corporation (the “Company”), the
number and character of fully paid and nonassessable shares of the Company’s
capital stock (the “Warrant Shares”) as determined in Section 2
below.  The number and character of the
Warrant Shares issuable upon exercise hereof and the purchase price therefor
are subject to adjustment as provided herein. 
This Warrant is being issued pursuant to that certain Note and Warrant
Purchase Agreement, dated as October 31, 2002, by and among the Company,
the Donald R. Swortwood Trust Dated July 7, 1995; the Letitia H. Swortwood
Revocable Trust #1 Dated September 16, 1992; and the Registered Holder (as
the same may be amended, supplemented or otherwise modified from time to time,
the “Purchase Agreement”). 
Capitalized terms not otherwise defined herein shall have the respective
meanings set forth in Section 1 hereof.


 


1.     Definitions.  As used in this Warrant, the following terms
have the  respective
meanings set forth below:


 


“Equity Financing”
shall mean a cash investment in the Company of at least $2,000,000 in exchange
for a series of Company preferred stock having a liquidation preference senior
to the Company’s existing series of preferred stock.


 


“Equity Financing
Securities” shall mean those shares of the series of preferred stock issued
pursuant to an Equity Financing.


 


 “Liquidity Event” shall mean (i) a
merger, consolidation, recapitalization, reorganization share exchange or any
similar event in which the holders of the voting stock of the Company
immediately prior to such event will not own 50% or more of the voting stock of
the continuing or surviving corporation or other entity, or the parent company
of such corporation or other entity, immediately after such event, (ii) the
sale, 


 


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assignment, conveyance, transfer, lease or other
disposition (other than the grant of a security interest) of more than 50% of
the Company’s assets to any person or group, (iii) any sale or other disposition
of the voting stock of the Company representing 50% or more of the total voting
power of the Company’s outstanding capital stock in a single transaction or
series of related transactions, (iv) any voluntary or involuntary
liquidation, winding up of, dissolution or bankruptcy filing of or by the
Company, or (v) an underwritten public offering of the Company’s common
stock pursuant to a registration statement declared effective under the
Securities Act of 1933, as amended.


 


2.     Warrant Shares.


 


(a)   Number of Warrant Shares.  This Warrant shall evidence the right of the
Registered Holder to purchase up to a number of Warrant Shares determined by
the following formula:


 


	
  W = 

  	
  P x C

  	
   

  
	
   

  	
  M

  	
   

  



 


where:


 


W =
The number of Warrant Shares issuable upon exercise of this Warrant;


 


P = a
percentage equal to:


 


(i)    20%, if an Equity Financing or Liquidity
Event occurs between the date hereof and December 31, 2002;


 


(ii)   40%, if an Equity Financing or Liquidity
Event occurs after December 31, 2002.


 


C =  the balance of the Principal Amount and
interest accrued under the Convertible Secured Promissory Note issued in
conjunction herewith at the date of its conversion


 


M = the per share price of the Equity Financing
Securities, in the event this Warrant is exercised for Equity Financing
Securities.


 


(b)   Exercise Price.  The per Warrant Share exercise price (the “Exercise
Price”) shall be an amount equal to 10% of the per share price of the
Equity Financing Securities.


 


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3.     Exercise Period.


 


(a)   This Warrant may be
exercised by the Registered Holder at any time or from time to time between the
date hereof and the tenth anniversary of the date hereof by surrendering this
Warrant at the principal office of the Company (or at such other office or
agency as the Company may designate by notice in writing to the Registered
Holder pursuant to Section 15 hereto) with the Form of Subscription
attached hereto as Exhibit A duly executed by such Registered
Holder, accompanied by payment in full by cash, check or wire transfer in the
amount equal to (i) the number of Warrant Shares for which this Warrant is
being exercised multiplied by (ii) the applicable Exercise Price (the “Purchase
Price”).  This Warrant may be
exercised for less than the full number of Warrant Shares at the time called
for hereby, except that the number of shares receivable upon the exercise of
this Warrant as a whole, and the sum payable upon the exercise of this Warrant
as a whole, shall be proportionately reduced. 
Upon a partial exercise of this Warrant in accordance with the terms
hereof, this Warrant shall be surrendered, and a new Warrant of the same tenor
and for the purchase of the number of such shares not purchased upon such
exercise shall be issued by the Company to the Registered Holder without any
charge therefor.


 


(b)   The exercise of this Warrant
shall be deemed to have been effected immediately prior to the close of
business on the day on which this Warrant shall have been surrendered to the
Company as provided in Section 3(a) above.  At such time, the person or persons in whose
name or names any certificates for Warrant Shares shall be issuable upon such
exercise as provided in Section 3(d) below shall be deemed to have
become the Registered Holder or Registered Holders of record of the Warrant
Shares represented by such certificates.


 


(c)   Issuance of Certificates.  The Company agrees that the Warrant Shares
purchased under this Warrant shall be and are deemed to be issued to the
Registered Holder hereof as the record owner of such shares as of the close of
business on the date on which this Warrant shall have been surrendered and
payment made for such shares. 
Certificates for the Warrant Shares so purchased, together with any
other securities or property to which the Registered Holder hereof is entitled
upon such exercise, shall be delivered to the Registered Holder hereof by the
Company at the Company’s expense within a reasonable time after the rights
represented by this Warrant have been so exercised.  In case of a purchase of less than all the
Warrant Shares, the Company shall cancel this Warrant and execute and deliver a
new Warrant or Warrants of like tenor for the balance of the Warrant Shares
purchasable under the Warrant surrendered upon such purchase to the Registered
Holder hereof within a reasonable time, not exceeding fifteen (15) days after
the date of such surrender.  Each stock
certificate so delivered shall be in such denominations as may be requested by
the Registered Holder hereof and shall be registered in the name of such
Registered Holder or such other name as shall be designated by such Registered
Holder.


 


4.     Shares to be Fully Paid; Reservation of
Shares.  The Company covenants and agrees that all
Warrant Shares which may be issued upon the exercise or conversion 


 


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of the rights represented by this
Warrant will, upon issuance, be duly authorized, validly issued, fully paid and
nonassessable and free from all preemptive rights of any shareholder and free
of all taxes, liens and charges with respect to the issue thereof.  The Company further covenants and agrees that
during the period within which the rights represented by this Warrant may be
exercised or converted, the Company will use its best efforts to cause a
sufficient number of shares of authorized but unissued Common Stock to be
authorized when and as required to provide for the exercise or conversion of
the rights represented by this Warrant.  The
Company will take all such action as may be necessary to assure that such
shares of capital stock may be issued as provided herein without violation of
any applicable law or regulation, or of any requirements of any domestic
securities exchange upon which the stock may be listed.


 


5.     Adjustment of Exercise Price and Number
of Shares.


 


(a)   Subdivision or
Combination of Shares.  In case the
Company shall at any time subdivide any of its outstanding shares into a
greater number of shares, the Exercise Price in effect immediately prior to
such subdivision shall be proportionately reduced and the number of shares
issuable upon exercise hereof shall be proportionately increased, and
conversely, in case any outstanding shares of the Company shall be combined
into a smaller number of shares, the Exercise Price in effect immediately prior
to such combination shall be proportionately increased and the number of share
issuable upon exercise hereof shall be proportionately decreased.


 


(b)   Dividends,
Reclassification.  If at any time or
from time to time any holders of the Company’s capital stock shall have
received or become entitled to receive, without payment thereof,


 


(i)         any Common Stock or any shares or other
securities which are at any time directly or indirectly convertible into or
exchangeable for Common Stock, or any rights or options to subscribe for,
purchase or otherwise acquire any of the foregoing by way of dividend or other
distribution;


 


(ii)        any cash paid or payable otherwise than
as a regular periodic cash dividend at a rate which is substantially consistent
with past practice (or, in the case of an initial dividend, at a rate which is
substantially consistent with industry practice); or


 


(iii)       any securities of the Company or other
property (including cash) by way of spinoff, split-up, reclassification,
combination of shares or similar corporate rearrangement or merger,
consolidation or sale of substantially all of the assets of the Company;


 


then and in each such
case, the Registered Holder hereof shall, upon the exercise or conversion of this
Warrant, be entitled to receive, in addition to the number of shares of such
capital stock receivable thereupon, and without payment of any additional 


 


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consideration thereof, the amount of stock and other
securities and property (including cash in the cases referred to in clauses (a) through
(c) above) which such Registered Holder would hold on the date of such
exercise or conversion had the Registered Holder been the Registered Holder of
record of such capital stock as of the date on which holders of such capital
stock received or became entitled to receive such shares and/or all other
additional stock and other securities and property.


 


(c)           Certain Events.  If any event occurs of the type contemplated
by the provisions of this Section 5 but not expressly provided for by such
provisions, then the Company’s board of directors in its reasonable judgment
shall make an appropriate adjustment to the Exercise Price and the number of
Warrant Shares obtainable upon exercise of this Warrant so as to protect the
rights of the holders of the Warrant.


 


6.     Conversion or Redemption.  Should all
of the Company’s capital stock of the same class and series as the Warrant
Shares be, or if outstanding would be, at any time prior to or upon the
expiration of this Warrant or any portion thereof, redeemed or converted into
Common Stock, then this Warrant shall immediately become exercisable or
convertible for that number of shares of Common Stock equal to the number of
shares of Common Stock that would have been received if this Warrant had been
exercised in full and the capital stock received thereupon had been
simultaneously converted immediately prior to such event, and the Exercise
Price shall be immediately adjusted to equal the quotient obtained by dividing
(x) the aggregate Exercise Price of the maximum number of shares of
capital stock for which this Warrant was exercisable or convertible immediately
prior to such conversion or redemption, by (y) the number of shares of Common
Stock for which this Warrant is exercisable or convertible immediately after
such conversion or redemption.


 


7.     Notices.  If at any
time:


 


(a)           there shall be a
Liquidity Event; or


 


(b)           the Company shall
take or propose to take any other action, notice of which is actually provided
to or is required to be provided, pursuant to any written agreement, to holders
of shares of the Company’s capital stock, then the Company shall give, by first
class mail, postage prepaid, addressed to the Registered Holder of this Warrant
at the address of such Registered Holder as shown of the books of the Company,
notice of such Liquidity Event or other event at least 10 days prior to the
commencement thereof.


 


The Company shall not
effect any consolidation, merger or sale, unless prior to the consummation
thereof, the successor entity (if other than the Company) resulting from such
consolidation or merger or the entity purchasing such assets assumes by written
instrument the obligation to deliver to each such holder such shares of stock,
securities or assets as, in accordance with the foregoing provisions, such
holder may be entitled to acquire.


 


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8.     Issue Tax.  The issuance
of certificates for the Warrant Shares shall be made without charge to the
Registered Holder for any issue tax in respect thereof, provided, however,
that the Company shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issuance and delivery of any certificate
in a name other than that of the then Registered Holder of the Warrant being
transferred.


 


9.     No Voting or Dividend Rights; Limitation
of Liability.  Prior to the exercise hereof, nothing herein
shall be construed as conferring upon the Registered Holder the right to vote
or to consent to any action requiring shareholder approval with respect to the
Warrant Shares issuable upon exercise hereof. 
Except as provided in Section 5, no dividends or interest shall be
payable or accrued in respect of this Warrant or the interest represented
hereby or the shares purchasable hereunder until, and only to the extent that,
this Warrant shall have been exercised or converted.  No provisions hereof, in the absence of
affirmative action by the Registered Holder to purchase shares of capital
stock, and no mere enumeration herein of the rights or privileges of the
Registered Holder hereof, shall give rise to any liability of such Registered
Holder for the Exercise Price or as a stockholder of the Company, whether such
liability is asserted by the Company or by its creditors.


 


10.  Modification and Waiver.  This Warrant
and any provision hereof may only be amended by an instrument in writing signed
by both parties.


 


11.  Notice.  Any notice,
request or other document required or permitted to be given or delivered to the
Registered Holder hereof or the Company shall be delivered or shall be sent by
certified or registered mail, postage prepaid, by facsimile transmission or by
overnight courier, to the Registered Holder at its address and facsimile number
as shown on the books of the Company or to the Company at the address indicated
on the execution page of this Warrant.


 


12.  Descriptive Headings.  The
descriptive headings of the several sections and paragraphs of this Warrant are
inserted for convenience only and do not constitute a part of this Warrant.


 


13.  Lost Warrants of Stock Certificates.  The Company
represents and warrants to the Registered Holder hereof that upon receipt of
evidence reasonably satisfactory to the Company of the loss, theft,
destruction, or mutilation of any Warrant or stock certificate and, in the case
of any such loss, theft or destruction, upon receipt of an indemnity reasonably
satisfactory to the Company, or in the case of any such mutilation upon surrender
and cancellation of such Warrant or stock certificate, the Company at its
expense will make and deliver a new Warrant or stock certificate, of like
tenor, in lieu of the lost, stolen, destroyed or mutilated Warrant or stock
certificate.


 


14.  Remedies.  The Company
stipulates that the remedies at law of the Registered Holder of this Warrant 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 


 


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not adequate and may be 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.


 


15.  Fractional
Shares. 
No fractional shares shall be issued upon exercise of this Warrant.  The Company shall, in lieu of issuing any
fractional share, pay the Registered Holder entitled to such fraction a sum in
cash equal to such fraction multiplied by the then effective Exercise Price.


 


16.  Governing Law; Consent to Jurisdiction;
Waiver to Jury Trial.  THE PARTIES HEREBY CONSENT TO THE EXCLUSIVE
JURISDICTION OF A FEDERAL COURT LOCATED WITHIN THE COUNTY OF SAN DIEGO IN THE
STATE OF CALIFORNIA, AND IRREVOCABLY AGREE THAT ALL ACTIONS OR PROCEEDINGS
RELATING TO OR ARISING OUT OF THIS WARRANT SHALL BE TRIED AND LITIGATED ONLY IN
SUCH COURT.  THE PARTIES HEREBY WAIVE TO
THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, AND AGREE NOT TO ASSERT, BY WAY OF
MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH ACTION, SUIT, OR PROCEEDING, ANY
CLAIM THAT THEY ARE NOT SUBJECT PERSONALLY TO THE JURISDICTION OF THE
ABOVE-NAMED COURT, THAT THEY ARE IMMUNE FROM EXTRATERRITORIAL INJUNCTIVE RELIEF
OR OTHER INJUNCTIVE RELIEF, THAT THEIR PROPERTY IS EXEMPT OR IMMUNE FROM
ATTACHMENT OR EXECUTION, THAT ANY SUCH ACTION, SUIT, OR PROCEEDING MAY NOT
BE BROUGHT OR MAINTAINED IN THE ABOVE-NAMED COURT, THAT ANY SUCH ACTION, SUIT
OR PROCEEDING BROUGHT OR MAINTAINED IN THE ABOVE-NAMED COURT SHOULD BE
DISMISSED ON THE GROUNDS OF FORUM NON CONVENIENS, SHOULD BE TRANSFERRED
TO ANY COURT OTHER THAN THE ABOVE-NAMED COURT, OR THAT THIS AGREEMENT OR THE
SUBJECT MATTER HEREOF MAY NOT BE ENFORCED IN OR BY THE ABOVE-NAMED
COURT.  THE PARTIES HEREBY CONSENT TO
SERVICE OF PROCESS IN ANY SUCH ACTION, SUIT, OR PROCEEDING IN ANY MANNER
PERMITTED  BY THE LAWS OF THE STATE OF
CALIFORNIA.


 


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IN
WITNESS WHEREOF, the undersigned have executed this Warrant
as of the date first written above.


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  Medlyte, Inc.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name: William Gerhart, CEO

  
	
   

  	
   

  
	
   

  	
  Address for
  notice:

  
	
   

  	
   

  
	
   

  	
  5500 Campanile
  Drive

  
	
   

  	
  San Diego, CA
  92182

  



 


 


	
  ACKNOLWEDGED AND
  AGREED:

  
	
   

  
	
  REGISTERED
  HOLDER:

  
	
  Johnson &
  Johnson Development Corporation

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Name: Roy Cosan, Vice President

  
	
   

  
	
  Address for
  Notices:

  
	
   

  
	
  Johnson &
  Johnson Development Corporation

  
	
  One
  Johnson & Johnson Plaza

  
	
  New Brunswick,
  NJ 08933

  



 


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Appendix A


 


FORM OF
SUBSCRIPTION


 


[To be executed only upon
exercise of Warrant]


 


To Medlyte, Inc.:


 


The undersigned
registered holder of the within Warrant hereby irrevocably exercises such
Warrant for, and purchases thereunder, [        ]
shares of Medlyte, Inc. and herewith makes payment of $              and
requests that the certificates for such shares be issued in the name of, and
delivered to, whose address is set forth below.


 


	
  Date:

  	
   

  
	
   

  	
  (Signature must conform in all respects to

  name of holder as specified on the face of

  Warrant)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Street Address)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (City) (State) (Zip Code)