NON-STATUTORY STOCK OPTION AGREEMENT
THIS AGREEMENT is entered into and effective as of March 4, 1997, by
and between LifeRate Systems, Inc., a Minnesota corporation. (the "Company") and
APF, LLC, an Oregon limited liability company (the "Holder").
A. The Company, the Holder and Xxxxxxx Xxxxxxx, M.D. have entered into
an agreement, dated the date hereof, pursuant to which, among other things such
parties have agreed to certain modifications to the "CORIS" Computer Software
Purchase Agreement, dated July 2, 1995, among such parties (the "Purchase
Agreement").
B. The Company has agreed to grant the option set forth herein in
replacement of the option granted to the Holder pursuant to Section 6.2 of the
Purchase Agreement.
Accordingly, the parties hereby agree as follows:
1. Grant of Option. The Company hereby grants to the Holder the right,
privilege, and option (the "Option") to purchase from the Company Twenty-Six
Thousand (26,000) fully paid and nonassessable shares of the Company's Common
Stock, no par value (such class of stock being hereinafter referred to as the
"Common Stock" and such shares of Common Stock as may be acquired upon exercise
hereof being hereinafter referred to as the "Option Shares") at an exercise
price equal to $2.625 per share, subject to adjustment as provided in Section 4
("Option Exercise Price"). 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"). This Option shall remain exercisable through the
latest date of exercisability with respect to the number of Option Shares set
forth below:
Latest Date of
Exercisability Number of Option Shares
-------------- -----------------------
March 31, 2005 8,667
March 31, 2006 8,667
March 31, 2007 8,666
This Option shall expire and become void with respect to the numbers of
Option Shares designated above opposite and as of the respective, designated
Latest Dates of Exercisability. In any event, this Option shall become void and
expire as to all unexercised and unpurchased Option Shares at 5:00 p.m.
(Minneapolis, Minnesota time) on March 31, 2007.
2. Exercise. The rights represented by this Option may be exercised by
the Holder, in whole or in part (but not as to a fractional share of Common
Stock), by written notice of exercise delivered to the Company at the principal
office of the Company in Minneapolis, Minnesota (Attention: Chief Executive
Officer), and upon payment to it, by cash, certified check or bank draft, of the
Option Exercise Price for such shares. In addition, the Holder may elect to pay
the full purchase price, in whole or in part, by delivery of a Broker Exercise
Notice. For purposes of this Agreement, a "Broker Exercise Notice" shall mean a
written notice from the Holder to the Company at its principal executive office
in Minneapolis, Minnesota (Attention: Chief Executive Officer), pursuant to
which the Holder irrevocably elects to exercise all or any portion of this
Option and irrevocably directs the Company to deliver the Holder's stock
certificates to be issued to the Holder upon such Option exercise directly to a
broker or dealer. A Broker Exercise Notice must be accompanied by or contain
irrevocable instructions to the broker or dealer (i) to promptly sell a
sufficient number of shares of such Common Stock or to loan the Holder a
sufficient amount of money to pay the aggregate Option Exercise Price and, if
not otherwise satisfied by the Holder, to fund any related employment and
withholding tax obligations due upon such exercise, and (ii) to promptly remit
such sums to the Company upon the broker's or dealer's receipt of the stock
certificates. Notwithstanding the foregoing, however, the Company shall not be
required to deliver any certificates for the Option Shares, except in accordance
with the provisions and subject to the limitations of Section 6 below.
3. Covenants of the Company. The Company covenants and agrees that all
Option Shares that may be issued upon the exercise of this Option will, upon
issuance, be duly authorized and issued, fully paid and nonassessable. The
Company further covenants and agrees that until expiration of this Option, the
Company will at all times have authorized, and reserved for the purpose of
issuance or transfer upon exercise of this Option, a sufficient number of shares
of Common stock to provide for the exercise of this Option.
4. Anti-Dilution Provisions; Adjustment of Option Exercise Price. The
foregoing provisions are, however, subject to the following:
(a) The Option Exercise Price shall be subject to adjustment
from time to time as hereinafter provided. Upon each adjustment of the
Option Exercise Price, the Holder of this Option shall thereafter be
entitled to purchase, at the Option Exercise Price resulting from such
adjustment, the number of shares obtained by multiplying the Option
Exercise Price in effect immediately prior to such adjustment by the
number of shares purchasable pursuant hereto immediately prior to such
adjustment and dividing the product thereof by the Option Exercise
Price resulting from such adjustment.
(b) In case the Company shall at any time subdivide its
outstanding shares of Common Stock into a greater number of shares, the
Option Exercise Price in effect immediately prior to such subdivision
shall be proportionately reduced, and conversely, in case the
outstanding shares of Common Stock of the Company shall be combined
into a smaller number of shares, the Option Exercise Price in effect
immediately prior to such combination shall be proportionately
increased.
(c) 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 of this Option shall thereafter have the right to receive upon
the basis and upon the terms and conditions specified herein and in
lieu of the shares of the Common Stock of the Company immediately
theretofore receivable upon the exercise of this Option, 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 immediately theretofore
receivable upon the exercise of this Option had such reorganization,
reclassification, consolidation, merger or sale not taken place, plus
all dividends unpaid and accumulated or accrued thereon to the date of
such reorganization, reclassification, consolidation, merger or sale,
and in any such case appropriate provision shall be made with respect
to the rights and interests of the Holder of this Option to the end
that the provisions hereof (including without limitation provisions for
adjustments of the Option Exercise Price and of the number of shares
receivable upon the exercise of the this Option) shall thereafter be
applicable, as nearly as may be in relation to any shares of stock,
securities or assets thereafter receivable upon the exercise of this
Option. 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 of this
Option, at the last addresses of such holders appearing on the books of
the Company, the obligation to deliver to the Holder such shares of
stock, securities or assets as, in accordance with the foregoing
provisions, the Holder may be entitled to receive.
(d) Upon any adjustment of the Option Exercise Price, then and
in each case the Company shall give written notice thereof, by
first-class mail, postage prepaid, addressed to the Holder of this
Option, which shall state the Option Exercise Price resulting from such
adjustment and the increase or decrease, if any, in the number of
shares receivable at such price upon the exercise of this Option,
setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based, and which notice shall be
certified by a nationally recognized firm of independent auditors
(which may be the Company's independent auditors).
(e) If any event occurs as to which in the opinion of the
Board of Directors of the Company the other provisions of this Section
4 are not strictly applicable or if strictly applicable would not
fairly protect the rights of the Holder in accordance with the
essential intent and principles of such provisions, then the Board of
Directors shall make an adjustment in the application of such
provisions, in accordance with such essential intent and principles, so
as to protect such rights as aforesaid.
(f) No fractional shares of Common Stock shall be issued upon
conversion pursuant to this Section 4, but, instead of any fraction of
a share which would otherwise be issuable, the Company shall pay a cash
adjustment in respect of such fraction in an amount equal to the same
fraction of the market price per share of Common Stock as of the close
of business on the day of conversion. "Market price" shall mean if the
Common Stock is traded on a securities exchange or the Nasdaq National
Market, the closing price of the Common Stock on such exchange or the
Nasdaq National Market, or, if the Common Stock is otherwise traded in
the over-the-counter market, the closing bid price, in each case
averaged over a period of twenty (20) consecutive business days prior
to the date as of which "market price" is being determined. If at any
time the Common Stock is not traded on an exchange or the Nasdaq
National Market, or otherwise traded in the over-the-counter market,
the "market price" shall be deemed to be the higher of (i) the book
value thereof as determined by any firm of independent public
accountants of recognized standing selected by the Board of Directors
of the Company as of the last day of any month ending within sixty (60)
days preceding the date as of which the determination is to be made, or
(ii) the fair value thereof determined in good faith by the Board of
Directors of the Company as of a date which is within fifteen (15) days
of the date as of which the determination is to be made.
5. No Rights as Shareholder. This Option shall not entitle the Holder
to any voting rights or other rights as a shareholder of the Company
6. Securities Laws Restrictions. The Holder, by acceptance hereof,
represents and warrants that (a) it is acquiring this Option for its own account
for investment purposes only and not with a view to its resale or distribution
and (b) it has no present intention to resell or otherwise dispose of all or any
part of this Option. Other than pursuant to registration under federal and state
securities laws or an exemption from such registration, the availability of
which the Company shall determine in its sole discretion, (y) the Company will
not accept the exercise of this Option or issue certificates for Option Shares
and (z) neither this Option nor any Option Shares may be sold, pledged, assigned
or otherwise disposed of (whether voluntarily or involuntarily). The Company may
condition such issuance or sale, pledge, assignment or other disposition on the
receipt from the party to whom this Option is to be so transferred or to whom
Option Shares are to be issued or so transferred of any representations and
agreements requested by the Company in order to permit such issuance or transfer
to be made pursuant to exemptions from registration under federal and applicable
state securities laws. Each certificate representing the Option (or any part
thereof) and any Option Shares shall be stamped with appropriate legends setting
forth these restrictions on transferability. The Holder, by acceptance hereof,
agrees to give written notice to the Company before exercising or transferring
this Option or transferring any Option Shares of the Holder's intention to do
so, describing briefly the manner of any proposed exercise or transfer. Within
thirty (30) days after receiving such written notice, the Company shall notify
the Holder as to whether such exercise or transfer may be effected.
7. Registration Rights. The Company shall register the issuance of the
Option Shares under the Securities Act of 1933, as amended, on a registration
statement on Form S-8 (or any comparable successor form) within ninety (90) days
of the date hereof.
8. Nontransferability. This Option may not be transferred or assigned
by the Holder, either voluntarily or involuntarily, except by will or otherwise
under the laws of descent and distribution; provided, however, that if the rules
applicable to the use of a registration statement on Form S-8 (or any comparable
successor form) are hereafter amended to permit the transferability of options
registered on a Form S-8 (or any comparable successor form), this Option shall
become transferable to the extent permitted by the rules then applicable to the
use of Form S-8 (or any comparable successor form) and any other applicable
federal or state securities laws or regulations. Any transfer of this Option
other than in accordance with this Agreement shall be null and void.
9. Amendment. Neither this Option nor any term hereof may be changed,
waived, discharged or terminated orally but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought.
10. Prior Stock Option Agreement. This Agreement shall supercede and
replace in its entirety the Non-Statutory Stock Option Agreement executed by the
parties pursuant to Section 6.2 of the ("Purchase Agreement").
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective the day and year first above written.
LIFERATE SYSTEMS, INC.
By____________________________________
Its___________________________________
APF, LLC
By____________________________________
Its___________________________________
