THIS WARRANT, AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF, HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS AND MAY NOT BE REOFFERED OR SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF, EXCEPT PURSUANT TO (1) REGISTRATION OR
(2) AN OPINION OF COUNSEL FOR THE COMPANY OR OTHER COUNSEL REASONABLY ACCEPTABLE
TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.
WARRANT
To Purchase 100,000
Shares of Common Stock of
LIFERATE SYSTEMS, INC.
May 12, 1997
LifeRate Systems, Inc., a Minnesota corporation (the "Company"), for
value received, hereby certifies that Medtronic, Inc., a Minnesota corporation
("Medtronic"), or its registered assigns (the "Holder"), is entitled, subject to
the terms set forth below, upon exercise of this Warrant to purchase from the
Company, at any time or from time to time after the date hereof and on or before
11:59 p.m. (Minneapolis, Minnesota time) on May 12, 2002 (the five-year
anniversary of the date hereof), up to one hundred thousand (100,000) shares of
Common Stock, without par value, of the Company ("Common Stock"), at a purchase
price (subject to adjustment in accordance with Section 4 hereof) equal to the
lesser of (i) $2.00 per share or (ii) the average price per share of Common
Stock (reflecting conversion of any convertible preferred stock) paid by all
purchasers of Common Stock in the Next Equity Financing. For these purposes, the
"Next Equity Financing" shall mean the Company's receipt in one or more
transactions of an aggregate Five Million Dollars ($5,000,000) or more of new
cash funds from the sale of Common Stock or securities convertible into Common
Stock pursuant to a private placement financing, as described in greater detail
in the $1,000,000 Convertible Promissory Note (the "Note") dated May 12, 1997,
issued by the Company in favor of Medtronic. The shares issuable upon exercise
or conversion of this Warrant, and the purchase price per share, each as
adjusted from time to time pursuant to the provisions of this Warrant, are
hereinafter referred to as the "Warrant Shares" and the "Exercise Price,"
respectively.
This Warrant is being issued in connection with the execution and
delivery of the Note on the date hereof.
This Warrant is further subject to the following provisions, terms and
conditions:
1. Exercise of Warrant. This Warrant may be exercised by the Holder, in
whole or in part (but not as to any fraction of a share of Common Stock), by
surrendering this Warrant,
with the Exercise Form attached hereto as Exhibit A completed and duly executed
by such Holder or by such Holder's duly authorized attorney, to the Company at
its principal office accompanied by payment of the Exercise Price in the form of
a cashier's or certified check or wire transfer in the amount of the Exercise
Price multiplied by the number of shares as to which the Warrant is being
exercised.
2. Conversion of Warrant.
(a) In lieu of exercising its rights under Section 1 hereof, the Holder
shall also have the right (the "Conversion Right") to convert all or any portion
of this Warrant into such number of shares (rounded to the nearest whole share)
of Company Common Stock equal to the quotient obtained by dividing (i) the
"Aggregate Warrant Spread" as of the close of business on the date the
Conversion Right is exercised, by (ii) the "Market Price of the Common Stock" as
of the close of business on the date the Conversion Right is exercised. The
Conversion Right shall be exercisable at any time or from time to time prior to
expiration of this Warrant by surrendering this Warrant with the Conversion Form
attached hereto as Exhibit B completed and duly executed by such Holder or by
such Holder's duly authorized attorney to the Company at its principal office.
(b) For purposes of this Section 2, the "Aggregate Warrant Spread" of
all or a portion of this Warrant as of a particular date shall equal (i) the
Market Price of the Common Stock multiplied by the number of shares of Common
Stock purchasable upon exercise of all or such portion of this Warrant on such
date, minus (ii) the Exercise Price multiplied by the number of shares of Common
Stock purchasable upon exercise of all or such portion of this Warrant on such
date. For purposes of this Section 2, the "Market Price of the Common Stock" as
of a particular date shall equal: (i) if the Common Stock is traded on an
exchange or is quoted on the Nasdaq National Market, then the average closing or
last sale prices, respectively, reported for the 10 trading days immediately
preceding such date, or (ii) if the Common Stock is not traded on an exchange or
on the Nasdaq National Market but is traded on the Nasdaq SmallCap Market, then
the average of the mid-points between the closing bid and asked prices reported
for the 10 trading days immediately preceding such date, or (iii) if the Common
Stock is not traded on an exchange, the Nasdaq National Market, or the Nasdaq
SmallCap Market but is traded in the local over-the-counter market, then the
average of the mid-points between the highest bid and lowest asked quotations
for each of the 10 trading days immediately preceding such date.
3. Effective Date of Exercise or Conversion. Each exercise or
conversion of this Warrant shall be deemed effective as of the close of business
on the day on which this Warrant is surrendered to the Company as provided in
Section 1 or Section 2(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 or conversion shall be deemed to have become the holder or holders of
record of the Warrant Shares represented by such certificates. Within 10 days
after the exercise or conversion of this Warrant in full or in part, the Company
will, at its expense, cause to be issued in the name of and delivered to the
Holder or such other person as the Holder may (upon payment by such Holder of
any applicable transfer taxes) direct: (i) a certificate or certificates for the
number of full Warrant Shares to which such Holder is entitled upon such
exercise or
conversion, and (ii) unless this Warrant has expired, a new Warrant
or Warrants (dated the date hereof and in form identical hereto) representing
the right to purchase the remaining number of shares of Common Stock, if any,
with respect to which this Warrant has not then been exercised or converted.
4. Adjustments to Exercise Price. The above provisions are subject to
the following:
(a) (i) If the Company shall at anytime after the date of this Warrant
subdivide or combine the outstanding shares of Common Stock or declare a
dividend payable in Common Stock, then the number of shares of Common Stock for
which this Warrant may be exercised as of immediately prior to the subdivision,
combination or record date for such dividend payable in Common Stock shall
forthwith be proportionately decreased, in the case of combination, or
increased, in the case of subdivision or dividend payable in Common Stock.
(ii) If the Company shall at anytime after the date of this
Warrant subdivide or combine the outstanding shares of Common Stock or declare a
dividend payable in Common Stock, the Exercise Price in effect immediately prior
to the subdivision, combination or record date for such dividend payable in
Common Stock shall forthwith be proportionately increased, in the case of
combination, or decreased, in the case of subdivision or dividend payable in
Common Stock.
(b) If any capital reorganization or reclassification of the capital
stock of the Company, or consolidation or merger of the Company with another
corporation, or the sale of all or substantially all of its assets to another
corporation shall be effected in such a way that holders of Common Stock shall
be entitled to receive stock, securities or assets with respect to or in
exchange for Common Stock, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, lawful and adequate provision
shall be made whereby the Holder shall hereafter have the right to receive upon
the basis and upon the terms and conditions specified in this Warrant and in
lieu of the shares of the Common Stock of the Company into which this Warrant
was immediately theretofore exercisable or convertible, such shares of stock,
securities or assets as may be issued or payable with respect to or in exchange
for a number of outstanding shares of such Common Stock equal to the number of
shares of such stock into which this Warrant was immediately theretofore
exercisable had such reorganization, reclassification, consolidation, merger or
sale not taken place, and in any such case appropriate provisions shall be made
with respect to the rights and interests of Holder to the end that the
provisions hereof (including without limitation provisions for adjustments of
the Exercise Price and of the number of shares purchasable upon exercise or
conversion of this Warrant) shall thereafter be applicable, as nearly as may be,
in relation to any shares of stock, securities or assets thereafter deliverable
upon the conversion hereof. The Company shall not effect any such consolidation,
merger or sale, unless prior to the consummation thereof the successor
corporation (if other than the Company) resulting from such consolidation or
merger or the corporation purchasing such assets shall assume by written
instrument executed and mailed to the Holder at the last address of such Holder
appearing on the books of the Company, the obligation to deliver to such Holder
such shares of stock, securities or assets into which, in accordance with the
foregoing provisions, such Holder may be entitled to convert this Warrant.
(c) If at anytime after the date of this Warrant the Company
distributes to all holders of Common Stock any assets (excluding ordinary cash
dividends), debt securities, or any rights or warrants to purchase debt
securities, assets or other securities (including Common Stock), the Exercise
Price shall be adjusted in accordance with the formula:
E^1 = E x (O x M) - F
---------------
O x M
where:
E^1 = the adjusted Exercise Price.
E = the current Exercise Price.
M = the average market price of Common Stock
for the 30 consecutive trading days
commencing 45 trading days before the record
date mentioned below.
O = the number of shares of Common Stock
outstanding on the record date mentioned
below.
F = the fair market value on the record date
of the aggregate of all assets, securities,
rights or warrants distributed. The
Company's Board of Directors shall determine
the fair market value in the exercise of its
reasonable judgment.
The adjustment shall be made successively whenever any such
distribution is made and shall become effective immediately after the record
date for the determination of shareholders entitled to receive the distribution.
(d) If at any time after the date of this Warrant the Company issues or
sells any shares of Common Stock (other than dividends payable in shares of
Common Stock) or any options, warrants, convertible securities and other rights
to subscribe to or otherwise acquire Common Stock (such rights referred to as
"Options") for a consideration per share less than the Exercise Price then in
effect, then the Exercise Price in effect immediately prior to such issuance or
sale shall be reduced so as to equal such per share consideration. If the
Exercise Price is adjusted as the result of the issuance of any Options, no
further adjustments of such Exercise Price shall be made at the time of the
exercise or conversion of such Options. The consideration per share for any
issuance of Common Stock or Options shall equal a fraction, the numerator of
which is equal to the sum of (i) the total amount received or receivable by the
Company as consideration for such issuance, plus (ii) the minimum aggregate
amount of additional consideration (as set forth in the instruments relating
thereto, without regard to any provision contained therein for a subsequent
adjustment of such consideration) payable to the Company upon the exercise,
conversion or exchange of any Options included in such issuance, and the
denominator of which is equal to the total number of shares of Common Stock
issued, or issuable upon the exercise, conversion or exchange of Options issued,
in such issuance. If the Company issues or sells any shares of Common Stock or
any Options for consideration other than cash, the amount of the consideration
other than cash received by the Company shall be deemed to be the fair value of
such consideration as determined by the Board of Directors of the Company.
(e) Notwithstanding Section 4(d) above, no adjustment of the Exercise
Price shall be made pursuant to Section 4(d) above as a result of issuances,
sales or grants of: (i) up to 332,395 shares of Common Stock (subject to
adjustment in the event of any stock splits, stock dividends or other
recapitalization of the Common Stock) issuable upon exercise of Warrants
outstanding on the date hereof; (ii) shares issued upon the conversion of the
Convertible Subordinated Note, dated March 28, 1997, in the principal amount of
$2,250,000, issued by the Company to The Atlanta Cardiology Group, P.C.; (iii)
shares issuable upon the exercise of the Non-Statutory Stock Option Agreement,
dated as of March 4, 1997, between the Company and APF LLC covering 550,000
shares of Common Stock (subject to adjustment in the event of any stock splits,
stock dividends, other recapitalization of the Common Stock, or antidilution
adjustments set forth in such option); (iv) shares issuable pursuant to the
Company's Employee Stock Purchase Plan, as may be amended from time to time by
the Company's Board of Directors; (v) securities issued for the acquisition of
another corporation by the Company by merger, purchase of substantially all the
assets of such corporation or another reorganization resulting in the ownership
by the Company of not less than a majority of the voting power of such
corporation; (vi) options to purchase not more than 750,000 shares of Common
Stock (subject to adjustment in the event of any stock splits, stock dividends
or other recapitalization of the Common Stock) issued to employees of or
consultants to the Company pursuant to the Company's 1993 Stock Option Plan (and
the Common Stock issuable upon exercise thereof); (vii) securities issued as a
result of any stock split, stock dividend or reclassification of Common Stock,
distributable on a pro rata basis to all holders of Common Stock; or (viii)
shares of Common Stock issued in the Next Equity Financing or to Medtronic
pursuant to the Note.
(f) Upon any adjustment of the Exercise Price, then and in each such
case, the Company shall give written notice thereof, by first class mail,
postage prepaid, addressed to the Holder of this Warrant at the address of such
Holder as shown on the books of the Company, which notice shall state the
Exercise Price resulting from such adjustment and the increase or decrease, if
any, in the number of shares for which this Warrant may be exercised, setting
forth in reasonable detail the method of calculation and the facts upon which
such calculation is based.
5. Common Stock. As used herein, the term "Common Stock" shall mean and
include the Company's presently authorized shares of common stock and shall also
include any capital stock of any class of the Company hereafter authorized that
shall not be limited to a fixed sum or percentage in respect of the rights of
the holders thereof to participate in dividends or in the distribution,
dissolution or winding up of the Company.
6. No Voting Rights. This Warrant shall not entitle the Holder to any
voting rights or other rights as a shareholder of the Company unless and until
exercised or converted pursuant to the provisions hereof.
7. Exercise or Transfer of Warrant or Resale of Common Stock. The
Holder, by acceptance hereof, agrees to give written notice to the Company
before transferring this Warrant, in whole or in part, or transferring any
shares of Common Stock issued upon the exercise or conversion hereof, of such
Holder's intention to do so, describing briefly the manner of any proposed
transfer. Such notice shall include an opinion of counsel reasonably
satisfactory to the
Company that (i) the proposed exercise or transfer may be effected without
registration or qualification under the Securities Act of 1933, as amended (the
"Act") and any applicable state securities or blue sky laws, or (ii) the
proposed exercise or transfer has been registered under such laws. Upon
delivering such notice, such Holder shall be entitled to transfer this Warrant
or such Warrant Shares, all in accordance with the terms of the notice delivered
by such Holder to the Company, provided that an appropriate legend may be
endorsed on the certificates for such shares respecting restrictions upon
transfer thereof necessary or advisable in the opinion of counsel to the Company
to prevent further transfer that would be in violation of Section 5 of the Act
and applicable state securities or blue sky laws.
If in the opinion of counsel to the Company or other counsel reasonably
acceptable to the Company the proposed transfer or disposition of this Warrant
or the Warrant Shares described in the written notice given pursuant to this
Section 7 may not be effected without registration of this Warrant or the
Warrant Shares, the Company shall promptly give written notice thereof to the
Holder within 10 days after the Company receives such notice, and such holder
will limit its activities in respect to such as, in the opinion of such counsel,
is permitted by law.
8. Covenants of the Company. The Company covenants and agrees that all
shares that may be issued upon conversion of this Warrant will, upon issuance,
be duly authorized and issued, fully paid, nonassessable and free from all
taxes, liens and charges with respect to the issue thereof. The Company further
covenants and agrees that the Company will at all times have authorized, and
reserved for the purpose of issue upon exercise hereof, a sufficient number of
shares of its Common Stock to provide for the exercise of this Warrant.
9. Certain Notices. The Holder shall be entitled to receive from the
Company immediately upon declaration thereof and at least 30 days prior to the
record date for determination of shareholders entitled thereto or to vote
thereon (or if no record date is set, prior to the event), written notice of any
event that could require an adjustment pursuant to Section 4 hereof or of the
dissolution or liquidation of the Company. All notices hereunder shall be in
writing and shall be delivered personally or by telecopy (receipt confirmed) to
such party (or, in the case of an entity, to an executive officer of such party)
or shall be sent by a reputable express delivery service or by certified mail,
postage prepaid with return receipt requested, addressed as follows:
if to Holder to:
Medtronic, Inc.
Corporate Center
0000 Xxxxxxx Xxxxxx X.X.
Xxxxxxxxxxx, XX 00000
Attention: General Counsel
FAX (000) 000-0000
with a copy to:
Medtronic, Inc.
Corporate Center
0000 Xxxxxxx Xxxxxx X.X.
Xxxxxxxxxxx, XX 00000
Attention: Vice President Corporate Development and
Associate General Counsel
FAX (000) 000-0000
if to the Company to:
LifeRate Systems, Inc.
0000 Xxxxx Xxxxxxxxx
Xxxxx, Xxxxxxxxx 00000
Attention: Chief Executive Officer
FAX (000) 000-0000
Any party may change the above-specified recipient and/or mailing
address by notice to all other parties given in the manner herein prescribed.
All notices shall be deemed given on the day when actually delivered as provided
above (if delivered personally or by telecopy) or on the day shown on the return
receipt (if delivered by mail or delivery service).
10. Registration Rights. The Holders of this Warrant and the Warrant
Shares are entitled to the benefits of all of the terms, provisions and
conditions of Article 8 of that certain Investment Agreement dated December 26,
1995, which is hereby amended if and to the extent necessary to include this
Warrant and the Warrant Shares within the definition of "Registrable Securities"
thereunder.
11. Miscellaneous.
(a) No amendment, modification or waiver of any provision of this
Warrant shall be effective unless the same shall be in writing and signed by the
holder hereof.
(b) This Warrant shall be governed by and construed in accordance with
the laws of the State of Minnesota.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its authorized officers and dated as of the date stated above.
LIFERATE SYSTEMS, INC.
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Its Chairman
-----------------------------
ATTEST: /s/ Xxxx X. Xxxxxxxx
----------------------------------
Exhibit A
NOTICE OF EXERCISE OF WARRANT -- To Be Executed by the Registered Holder in
Order to Exercise the Warrant
The undersigned hereby irrevocably elects to exercise the attached
Warrant to purchase, for cash pursuant to Section 1 thereof, ________________
shares of Common Stock issuable upon the exercise of such Warrant. The
undersigned requests that certificates for such shares be issued in the name of
__________________________________. If this Warrant is not fully exercised, the
undersigned requests that a new Warrant to purchase the balance of shares
remaining purchasable hereunder be issued in the name of
__________________________________.
Date: _________________, ______ _____________________________________
[name of registered Holder]
_____________________________________
[signature]
_____________________________________
[street address]
_____________________________________
[city, state, zip]
_____________________________________
[tax identification number]
Exhibit B
NOTICE OF CONVERSION OF WARRANT -- To Be Executed by the Registered Holder in
Order to Convert the Warrant on a
Cashless Basis
The undersigned hereby irrevocably elects to convert, on a cashless
basis, a total of ______________ shares of Common Stock otherwise purchasable
upon exercise of the attached Warrant into such lesser number of shares of
Common Stock as determined by Section 2 of the Warrant. The undersigned requests
that certificates for such shares be issued in the name of
__________________________________. If this Warrant is not fully converted, the
undersigned requests that a new Warrant to purchase the balance of shares
remaining purchasable hereunder be issued in the name of
________________________________.
Date: _________________, ______ _____________________________________
[name of registered Holder]
_____________________________________
[signature]
_____________________________________
[street address]
_____________________________________
[city, state, zip]
_____________________________________
[tax identification number]
