NON-STATUTORY STOCK OPTION AGREEMENT
THIS AGREEMENT is entered into and effective as of March 4, 1997 (the
"Date of Grant"), by and between LifeRate Systems, Inc. (the "Company") and
Xxxxxxx Xxxxxxx, M.D. (the "Optionee").
A. The Company has adopted the 1993 Stock Option Plan (the "Plan")
authorizing the Board of Directors of the Company, or a committee as provided
for in the Plan (the Board or such a committee to be referred to as the
"Committee"), to grant non-statutory stock options to employees and nonemployee
consultants and independent contractors of the Company.
B. The Company desires to give the Optionee an inducement to acquire a
proprietary interest in the Company and an added incentive to advance the
interests of the Company by granting to the Optionee an option to purchase
shares of common stock of the Company pursuant to the Plan.
Accordingly, the parties hereby agree as follows:
ARTICLE
1.
GRANT OF OPTION
The Company hereby grants to the Optionee the right, privilege, and
option (the "Option") to purchase Ten Thousand Three Hundred Thirty-Three
(10,333) shares (the "Option Shares") of the Company's common stock (the "Common
Stock"), according to the terms and subject to the conditions set forth in this
Agreement and the Plan. The Option is not intended to be an "incentive stock
option," as that term is used in Section 422 of the Internal Revenue Code of
1986, as amended (the "Code").
ARTICLE
2.
OPTION EXERCISE PRICE
The per share price to be paid by Optionee in the event of an exercise
of the Option shall be $2.625, the fair value of one common share of the Company
on March 4, 1997.
ARTICLE
3.
DURATION OF OPTION AND TIME OF EXERCISE
3.1. Initial Period of Exercisability. The Option shall become
exercisable with respect to the Option Shares in three installments. The
following table sets forth the initial dates of exercisability of each
installment and the number of Option Shares as to which this Option shall become
exercisable on such dates:
Initial Date of Number of Option Shares
Exercisability Available for Exercise
-------------- ----------------------
March 7, 1998 3,445
March 7, 1999 3.444
March 7, 2000 3,444
The foregoing rights to exercise this Option shall be cumulative with
respect to the Option Shares becoming exercisable on each such date but in no
event shall this Option be exercisable after, and this Option shall become void
and expire as to all unexercised Option Shares at, 5:00 p.m. (Minneapolis,
Minnesota time) on March 3, 2007 (the "Time of Termination").
3.2. Termination of Employment or Other Service. Except as otherwise
provided in Section 3.3 below:
(a) (In the event the Optionee's employment or other service
with the Company and all Subsidiaries (as defined in the Plan) is
terminated for "cause" (as defined in the Plan), all rights of the
Optionee under the Plan and this Agreement shall immediately terminate
without notice of any kind, and this Option shall no longer be
exercisable. In the event that the Optionee's employment or other
service with the Company and all Subsidiaries is terminated for any
reason other than cause, this Option shall remain exercisable to the
extent exercisable as of such termination until the Time of
Termination.
(b) Notwithstanding anything in this Agreement or the Plan to
the contrary, in the event that the Optionee materially breaches the
terms of any confidentiality or non-compete agreement entered into with
the Company or any Subsidiary, whether such breach occurs before or
after termination of the Optionee's employment or other service with
the Company or any Subsidiary, the Committee in its sole discretion may
immediately terminate all rights of the Optionee under this Agreement
and the Plan without notice of any kind.
3.3. Change in Control.
(a) (For purposes of this Section 3.3, the term "Change in
Control" shall have the meaning set forth in Section 9.1 of the Plan.
(b) If any events constituting a Change in Control of the
Company shall occur, then this Option shall become immediately
exercisable in full until the Time of Termination, whether or not the
Optionee remains in the employ or service of the Company or any
Subsidiary. In addition, if a Change in Control of the Company shall
occur, the Committee, in its sole discretion, and without the consent
of the Optionee, may determine that the Optionee shall receive, with
respect to some or all of the Option Shares, as of the effective date
of any such Change in Control of the Company, cash in an amount equal
to the excess of the Fair Market Value (as defined in the Plan) of such
Option Shares immediately prior to the effective date of such Change in
Control of the Company over the option exercise price per share of this
Option.
(c) Notwithstanding anything in this Section 3.3 to the
contrary, if, with respect to the Optionee, acceleration of the
exercisability of this Option or the payment of cash in exchange for
all or part of this Option as provided above (which acceleration or
payment could be deemed a payment within the meaning of Section
280G(b)(2) of the Code), together with any other payments which the
Optionee has the right to receive from the Company or any corporation
which is a member of an "affiliated group" (as defined in Section
1504(a) of the Code without regard to Section 1504(b) of the Code) of
which the Company is a member, would constitute a "parachute payment"
(as defined in Section 280G(b)(2) of the Code), then the acceleration
of exercisability and the payments to the Optionee as set forth herein
shall be reduced to the largest amount as, in the sole judgment of the
Committee, will result in no portion of such payments being subject to
the excise tax imposed by Section 4999 of the Code.
ARTICLE
4.
MANNER OF OPTION EXERCISE
4.1. Notice. This Option may be exercised by the Optionee in whole or
in part from time to time, subject to the conditions contained in the Plan and
herein, by delivery, in person or by registered mail, to the Company at its
principal executive office in Edina, Minnesota (Attention: Chief Financial
Officer), of a written notice of exercise. Such notice shall be in a form
satisfactory to the Committee, shall identify the Option, shall specify the
number of Option Shares with respect to which the Option is being exercised, and
shall be signed by the person or persons so exercising the Option. Such notice
shall be accompanied by payment in full of the total purchase price of the
Option Shares purchased. In the event that the Option is being exercised, as
provided by the Plan and Section 3.2 above, by any person or persons other than
the Optionee, the notice shall be accompanied by appropriate proof of right of
such person or persons to exercise the Option. As soon as practicable after the
effective exercise of the Option, the Optionee shall be recorded on the stock
transfer books of the Company as the owner of the Option Shares purchased, and
the Company shall deliver to the Optionee one or more duly issued stock
certificates evidencing such ownership.
4.2. Payment. At the time of exercise of this Option, the Optionee
shall pay the total purchase price of the Option Shares to be purchased solely
in cash (including a personal check or a certified or bank cashier's check,
payable to the order of the Company); provided, however, that to the extent
permitted by the Plan, the Committee, in its sole discretion, may allow such
payments to be made, in whole or in part, by delivery of a Broker Exercise
Notice or a promissory note (containing such terms and conditions as the
Committee may in its discretion determine), by transfer from the Optionee to the
Company of Previously Acquired Shares, or by a combination thereof. For purposes
of this Agreement, the terms "Broker Exercise Notice" and "Previously Acquired
Shares" shall have the meanings set forth in the Plan. In the event the Optionee
is permitted to pay the total purchase price of this Option in whole or in part
with Previously Acquired Shares, the value of such shares shall be equal to
their Fair Market Value on the date of exercise of this Option.
4.3. Investment Purpose. The Company shall not be required to issue or
deliver any shares of Common Stock under this Option unless (1)(a) such shares
are covered by an effective and current registration statement under the
Securities Act of 1933 and applicable state securities laws or (b) if the
Committee has determined not to so register such shares, exemptions from
registration under the Securities Act of 1933 and applicable state securities
laws are available for such issuance (as determined by counsel to the Company)
and the Company has received from the Optionee (or, in the event of death or
disability, the Optionee's heir(s) or legal representative(s)) any
representations or agreements requested by the Company in order to permit such
issuance to be made pursuant to such exemptions, and (2) the Company has
obtained any other consent, approval or permit from any state or federal
governmental agency which the Committee shall, in its sole discretion upon the
advice of counsel, deem necessary or advisable. In the event that, at the time
of the attempted exercise of this Option, any of these conditions to the
issuance of a certificate for shares of Common Stock have not been satisfied,
such exercise shall be deemed withdrawn and the Company shall return any
payments made with respect thereto unless the Optionee, within 15 days after
being informed of the nonsatisfaction of such conditions, gives the Company
written notice that he or she wants such exercise to remain suspended (in which
event such exercise shall be deemed to be effective on the earliest date upon
which such conditions have been satisfied). Unless a registration statement
under the Securities Act of 1933 is in effect with respect to the issuance or
transfer of Option Shares, each certificate representing any such shares shall
be restricted by the Company as to transfer unless the Company receives an
opinion of counsel satisfactory to the Company to the effect that registration
under the Securities Act of 1933 and applicable state securities laws is not
required with respect to such transfer.
ARTICLE
5.
NONTRANSFERABILITY
Neither this Option nor the Option Shares acquired upon exercise may be
transferred by the Optionee, either voluntarily or involuntarily, or subjected
to any lien, directly or indirectly, by operation of law or otherwise, except as
provided in the Plan. Any attempt to transfer or encumber this Option or the
Option Shares other than in accordance with this Agreement and the Plan shall be
null and void and shall void this Option.
ARTICLE
6.
LIMITATION OF LIABILITY
Nothing in this Agreement shall be construed to (a) limit in any way
the right of the Company to terminate the employment or service of the Optionee
at any time, or (b) be evidence of any agreement or understanding, express or
implied, that the Company will retain the Optionee in any particular position,
at any particular rate of compensation or for any particular period of time.
ARTICLE
7.
WITHHOLDING TAXES
The Company is entitled to (a) withhold and deduct from future wages of
the Optionee (or from other amounts which may be due and owing to the Optionee
from the Company), or make other arrangements for the collection of, all legally
required amounts necessary to satisfy any federal, state or local withholding
and employment-related tax requirements attributable to the grant or exercise of
this Option or otherwise incurred with respect to this Option, or (b) require
the Optionee promptly to remit the amount of such withholding to the Company
before acting on the Optionee's notice of exercise of this Option. In the event
that the Company is unable to withhold such amounts, for whatever reason, the
Optionee hereby agrees to pay to the Company an amount equal to the amount the
Company would otherwise be required to withhold under federal, state or local
law.
ARTICLE
8.
ADJUSTMENTS
In the event of any reorganization, merger, consolidation,
recapitalization, liquidation, reclassification, stock dividend, stock split,
combination of shares, rights offering, extraordinary dividend or divestiture
(including a spin-off) or any other change in the corporate structure or shares
of the Company, the Committee (or, if the Company is not the surviving
corporation in any such transaction, the board of directors of the surviving
corporation), in order to prevent dilution or enlargement of the rights of the
Optionee, shall make appropriate adjustment (which determination shall be
conclusive) as to the number, kind and exercise price of securities subject to
this Option.
ARTICLE
9.
SUBJECT TO PLAN
The Option and the Option Shares granted and issued pursuant to this
Agreement have been granted and issued under, and are subject to the terms of,
the Plan. The terms of the Plan are incorporated by reference herein in their
entirety, and the Optionee, by execution hereof, acknowledges having received a
copy of the Plan. The provisions of this Agreement shall be interpreted as to be
consistent with the Plan, and any ambiguities herein shall be interpreted by
reference to the Plan. In the event that any provision hereof is inconsistent
with the terms of the Plan, the terms of the Plan shall prevail.
ARTICLE
10.
MISCELLANEOUS
10.1. Binding Effect. This Agreement shall be binding upon the heirs,
executors, administrators and successors of the parties hereto.
10.2. Governing Law. This Agreement and all rights and obligations
hereunder shall be construed in accordance with the Plan and governed by the
laws of the State of Minnesota.
10.3. Entire Agreement. This Agreement and the Plan set forth the
entire agreement and understanding of the parties hereto with respect to the
grant and exercise of this Option and the administration of the Plan and
supersede all prior agreements, arrangements, plans and understandings relating
to the grant and exercise of this Option and the administration of the Plan.
10.4. Amendment and Waiver. Other than as provided in the Plan, this
Agreement may be amended, waived, modified or canceled only by a written
instrument executed by the parties hereto or, in the case of a waiver, by the
party waiving compliance.
10.5. Prior Stock Option Agreements. This Agreement shall supercede and
replace in their entirety the Non-Statutory Stock Option Agreements executed by
the parties covering an option to purchase 1,333 shares previously granted on or
about January 1, 1995 and an option covering 9,000 shares granted on or about
June 5, 1995.
The parties hereto have executed this Agreement effective the day and
year first above written.
LIFERATE SYSTEMS, INC.
By__________________________________
Its_________________________________
[By execution hereof, the Optionee
acknowledges having receive a copy
of the Plan.] ____________________________________
Xxxxxxx X. Xxxxxxx, M.D.
