EXHIBIT 10.8
First Amendment to Warrant to Purchase Stock
This First Amendment to Warrant is entered into as of
December _, 1997,
between Imperial Bank ("Bank") and Fusion Medical Technologies,
Inc. ("Company").
A. Company executed and issued that certain Warrant to
Purchase Stock
dated September 15, 1994, to Bank (the "Warrant").
B. Bank and Company desire to amend the terms
provisions of the Warrant.
In Consideration of extensions of credit by Bank to
Company and other good and
valuable consideration, the parties agree as follows:
1 . Class of Stock is hereby amended to read in its
entirety: "Common."
2. Initial Exercise Price is hereby amended to read in
its entirety: 14.00 per
share".
3. Expiration Date is hereby amended to read in its
entirety: "September 15,
2000".
4. Except as amended hereby, the Warrant remains in
full force and effect
and is hereby ratified and confirmed.
FUSION MEDICAL TECHNOLOGIES, INC. "Company"
By
--------------------------------
Its:
--------------------------------
IMPERIAL BANK "Bank"
By:
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Its:
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THIS WARRANT AND --- HEREUNDER HAVE NOT BEEN REGISTERED
UNDER THE SECURI NDED, AND MAY NOT BE SOLD, PLEDGED
OR OTHERWISE TR, N EFFECTIVE REGISTRATION THEREOF
UNDER SUCH ACT @E 144 OR AN OPINION OF COUNSEL
REASONABLY SATIS )RATION AND ITS COUNSEL THAT SUCH
REGISTRATION IS NC
WARRANT TO PURCHASE STOCK
Corporation: FUSION MEDICAL TECHNOLOGIES, INC.,
a Delaware Corporation
Number of Shares: 4,500
Class of Stock: Common
Initial Exercise Price: $4.00 per share
Issue Date: December2l,1997
Expiration Date: Decembetc@l, 2002 (Subject to
Article 4. 1)
THIS WARRANT CERTIFIES THAT, in consideration of the
payment of $1.00 and for other
good and valuable consideration, IWERIAL BANK or registered
assignee ("Holder") is entitled to
purchase the number of fully paid and nonassessable shares of the
class of securities (the "Shares") of the
corporation (the "Company") at the initial exercise price per
Share (the "Warrant Price") all as set forth
above and as adjusted pursuant to Article 2 of this Warrant,
subject to the provisions and upon the terms
and conditions set forth of this Warrant.
ARTICLE 1. EXERCISE
1.1 Method of Exercise. Holder may exercise this
Warrant by delivering this Warrant and a
duly executed Notice of Exercise in substantially the form
attached as Appendix I to the principal office
of the Company. Unless Holder is exercising the conversion right
set forth in Section 1.2, Holder shall
also deliver to the Company a check for the aggregate Warrant
Price for the Shares being purchased.
1.2 Conversion Rig . In lieu of exercising this
Warrant as specified in Section 1.1, Holder
may from time to time convert this Warrant, in whole or in part,
into a number of Shares determined by
dividing (a) the aggregate fair market value of the Shares or
other securities otherwise issuable upon
exercise of this Warrant minus the aggregate Warrant Price of
such Shares by (b) the fair market value of
one Share. The fair market value of the Shares shall be
determined pursuant to Section 1.5.
1.3 Omitted.
1.4 Omitted.
1.5 Fair Market Value. If the Shares are traded
regularly in a public market, the fair market
value of the Shares shall be the closing price of the Shares (or
the closing price of the Company's stock
into which the Shares are convertible) reported for the business
day immediately before Holder delivers
its Notice of Exercise to the Company. If the Shares are not
regularly traded in a public market, the
Board of Directors of the Company shall determine fair market
value in its reasonable good faith
judgment. The foregoing notwithstanding, if Holder advises the
Board of Directors in writing that Holder
disagrees with such determination, then the Company and Holder
shall promptly agree upon a reputable
investment banking firm to undertake such valuation. If the
valuation of such investment banking firm is
greater than that determined by the Board of Directors, then all
fees and expenses of such investment
banking firm shall be paid by the Company. In all other
circumstances, such fees and expenses shall be
paid by Holder.
1.6 Delivery of Certificate and New Warrant. Promptly
after Holder exercises or converts this
Warrant, the Company shall deliver to Holder certificates for the
Shares acquired and, if this Warrant has
not been fully exercised or converted and has not expired, a new
Warrant representing the Shares not so
acquired.
1.7 Replacement of Warrants. On receipt of evidence
reasonably satisfactory to the Company
of the loss, theft, destruction or mutilation of this Warrant and,
in the case of loss, theft or destruction, on
delivery of an indemnity agreement reasonably satisfactory in form
and amount to the Company or, in the
case of mutilation, or surrender and cancellation of this Warrant,
the Company at its expense shall execute
and deliver, in lieu of this Warrant a new warrant of like tenor.
1.8 Repurchase on Sale, Merger, or Consolidation of
the Company.
1.8.1. "Acquisition". For the purpose of this
Warrant, "Acquisition" means any sale,
license, or other disposition of all or substantially all of the
assets (including intellectual property) of the
Company, or any reorganization, consolidation, or merger of the
Company where the holders of the
Company's securities before the transaction beneficially own less
than 50% of the outstanding voting
securities of the surviving entity after the transaction.
1.8.2. Assumption of Warrant. If upon the closing
of any Acquisition the successor
entity assumes the obligations of this Warrant, then this Warrant
shall be exercisable for the same
securities, cash, and property as would be payable for the Shares
issuable upon exercise of the
unexercised portion of this Warrant as if such Shares were
outstanding on the record date for the
Acquisition and subsequent closing. The Warrant Price shall be
adjusted accordingly. The Company
shall use reasonable efforts to cause the surviving corporation to
assume the obligations of this Warrant.
1.8.3. Nonassumption. If upon the closing of any
Acquisition the successor entity does
not assume the obligations of this Warrant and Holder has not
otherwise exercised this Warrant in full,
then the unexercised portion of this Warrant shall be deemed to
have been automatically converted
pursuant to Section 1.2 and thereafter Holder shall participate in
the Acquisition on the same ten-ns as
other holders of the same class of securities of the Company.
1.8.4. Purch----- Rip-lit. Notwithstanding the
foregoing, at the election of Holder, the
Company shall purchase the unexercised portion of this Warrant
for cash upon the closing of any
Acquisition for an amount equal to (a) the fair market value of
any consideration that would have been
received by Holder in consideration of the Shares had Holder
exercised the unexercised portion of this
Warrant immediately before the record date for determining the
shareholders entitled to participate in the
proceeds of the Acquisition, less (b) the aggregate Warrant Price
of the Shares, but in no event less than
zero.
ARTICLE 2. ADJUSTMENTS TO THE SHARES.
2.1 Stock Dividends, Splits, Etc. If the Company
declares or pays a dividend on its common
stock payable in common stock, or other securities, subdivides
the outstanding common stock into a
greater amount of common stock, then upon exercise of this
Warrant, for each Share acquired, Holder
shall receive, without cost to Holder, the total number and kind
of securities to which Holder would have
been entitled had Holder owned the Shares of record as of the
date the dividend or subdivision occurred.
2.2 Reclassification, Exchange or Substitution. Upon
any reclassification, exchange,
substitution, or other event that results in a change of the
number and/or class of the securities issuable
upon exercise or conversion of this Warrant, Holder shall be
entitled to receive, upon exercise or
conversion of this Warrant the number and kind of securities and
property that Holder would have
received for the Shares if this Warrant had been exercised
immediately before such reclassification,
exchange, substitution, or other event. Such an event shall
include any automatic conversion of the
outstanding or issuable securities of the Company of the same
class or series as the Shares to common
stock pursuant to the terms of the Company's Articles of
Incorporation upon the closing of a registered
public offering of the Company's common stock. The Company or its
successor shall promptly issue to
Holder a new Warrant for such new securities or other property.
The new Warrant shall provide for
adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in
this Article 2 including, without limitation, adjustments to the
Warrant Price and to the number of
securities or property issuable upon exercise of the new Warrant.
The provisions of this Section 2.2 shall
similarly apply to successive reclassifications, exchanges,
substitutions, or other events.
2.3 Adjustments for Combinations, Etc. If
the outstanding Shares are combined or
consolidated, by reclassification or otherwise, into a lesser
number of shares, the Warrant Price shall be
proportionately increased.
2.4 Adiustments for Diluting Issuances. The Warrant
Price and the number of Shares issuable
upon exercise of this Warrant shall be subject to adjustment,
from time to time, in the manner set forth on
Exhibit B, if attached, in the event of Diluting Issuances (as
defined on Exhibit B).
2.5 No Impairment. The Company shall not, by
amendment of its Articles of Incorporation or
through a reorganization, transfer of assets, consolidation,
merger, dissolution, issue, or sale of securities
or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to
be observed or performed under this Warrant by the Company, but
shall at all times in good faith assist in
carrying out all the provisions of this Article 2 and in taking
all such action as may be necessary or
appropriate to protect Holder's rights under this Article against
impain-nent. If the Company takes any
action affecting the Shares or its common stock other than as
described above that adversely affects
Holder's rights under this Warrant, the Warrant Price shall be
adjusted downward and the number of
Shares issuable upon exercise of this Warrant shall be adjusted
upward in such a manner that the
aggregate Warrant Price of this Warrant is unchanged.
2.6 Certificate as to Adjustments. Upon each
adjustment of the Warrant Price, the Company
at its expense shall promptly compute such adjustment, and
furnish Holder with a certificate of its Chief
Financial Officer setting forth such adjustment and the facts
upon which such adjustment is based. The
Company shall, upon written request, furnish Holder a certificate
setting forth the Warrant Price in effect
upon the date thereof and the series of adjustments leading to
such Warrant Price.
ARTICLE 3. REPRESENTATIONS AND COVENANTS OF THE COMPANY.
3.1 Representations and Warranties. The Company
hereby represents and warrants to the
Holder as follows:
(a) The initial Warrant Price referenced on
the first page of this Warrant is not greater
than the fair market value of the Shares as of the date of this
Warrant.
(b) All Shares which may be issued upon the
exercise of the purchase right
represented by this Warrant, and all securities, if any, issuable
upon conversion of the Shares, shall, upon
issuance, be duly authorized, validly issued, fully paid and
nonassessable, and free of any liens and
encumbrances except for restrictions on transfer provided for
herein or under applicable federal and state
securities laws.
3.2 Notice of Certain Events. If the Company
proposes at any time (a) to declare any
dividend or distribution upon its common stock, whether in cash,
property, stock, or other securities and
whether or not a regular cash dividend; (b) to offer for
subscription pro rata to the holders of any class or
series of its stock any additional shares of stock of any class
or series or other rights; (c) to effect any
reclassification or recapitalization of common stock; (d) to
merge or consolidate with or into any other
corporation, or sell, lease, license, or convey all or
substantially all of its assets, or to liquidate, dissolve or
wind up; or (e) offer holders of registration rights the
opportunity to participAte in an underwritten public
offering of the company's securities for cash, then, in
connection with each such event, the Company shall
give Holder (1) at least 20 days prior written notice of the date
on which a record will be taken for such
dividend, distribution, or subscription rights (and specifying
the date on which the holders of common
stock will be entitled thereto) or for determining rights to
vote, if any, in respect of the matters referred to
in (c) and (d) above; (2) in the case of the matters referred to
in (c) and (d) above at least 20 days prior
written notice of the date when the ▇▇▇▇▇ will take place (and
specifying the date on which the holders of
common stock will be entitled to exchange their common stock for
securities or other property
deliverable upon the occurrence of such event); and (3) in the
case of the matter referred to in (e) above,
the same notice as is given to the holders of such registration
rights.
3.3 Information Rights. So long as the Holder holds
this Warrant ad/or any of the Shares, the
Company shall deliver to the Holder (a) promptly after mailing,
copies of all communiques to the
shareholders of the Company, (b) within ninety (90) days after
the end of each fiscal year of the
Company, the annual audited financial statements of the Company
certified by independent public
accountants of recognized standing and (c) within forty-five (45)
days after the end of each of the first
three quarters of each fiscal year, the Company's quarterly,
unaudited financial statements.
3.4 Registration Under Securities Act of 1933, as
amended. The Company agrees that the
Shares shall be subject to the registration rights set forth on
Exhibit C.
ARTICLE 4. MISCELLANEOUS.
4.1 Term: Notice of Expiration. This Warrant is
exercisable, in whole or in part, at any time
and from time to time on or before the Expiration Date set forth
above. The Company shall give Holder
written notice of Holder's right to exercise this Warrant in the
form attached as Appendix 2 not more than
90 days and not less than 30 days before the Expiration Date. If
the notice is not so given, the Expiration
Date shall automatically be extended until 30 days after the date
the Company delivers the notice to
Holder.
4.2 Legends. This Warrant and the Shares (and the
securities issuable, directly or indirectly,
upon conversion of the Shares, if any) shall be imprinted with a
legend in substantially the following
form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR
OTHERWISE
TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF
UNDER SUCH
ACT OR PURSUANT TO RULE 144 OR AN OPINION OF COUNSEL
REASONABLY
SATISFACTORY TO THE CORPORATION AND ITS COUNSEL THAT SUCH
REGISTRATION IS NOT REQUIRED.
4.3 Compliance with Securities Laws on Transfer. This
Warrant and the Shares issuable upon
exercise this Warrant (and the securities issuable, directly or
indirectly, upon conversion of the Shares, if
any) may not be transferred or assigned in whole or in part
without compliance with applicable federal
and state securities laws by the transferor and the transferee
(including, without limitation, the delivery of
investment representation letters and legal opinions reasonably
satisfactory to the Company). The
Company shall not require Holder to provide an opinion of counsel
if the transfer is to an affiliate of
Holder or if there is no material question as to the availability
of current information as referenced in Rule
144(c), Holder represents that it has complied with Rule 144(d)
and (e) in reasonable detail, the selling
broker represents that it has complied with Rule 144(f), and the
Company is provided with a copy of
Holder's notice of proposed sale.
4.4 Transfer Procedure. Subject to the provisions of
Section 4.2, Holder may transfer all or
part of this Warrant or the Shares issuable upon exercise of this
Warrant (or the securities issuable,
directly or indirectly, upon conversion of the Shares, if any) by
giving the Company notice of the portion
of the Warrant being transferred setting forth the name, address
and taxpayer identification number of the
transferee and surrendering this Warrant to the Company for
reissuance to the transferee(s) (and Holder, if
applicable). Unless the Company is filing financial information
with the SEC pursuant to the Securities
Exchange Act of 1934, the Company shall have the right to refuse
to transfer any portion of this Warrant
to any person who directly competes with the Company.
4.5 Notices. All notices and other communications from
the Company to the Holder, or vice
versa, shall be deemed delivered and effective when given
personally or mailed by first-class registered or
certified mail, postage prepaid, at such address as may have been
furnished to the Company or the
Holder, as the case may be, in writing by the Company or such
Holder from time to time.
4.6 Waiver. This Warrant and any term hereof may be
changed, waived, discharged or
terminated only by an instrument in writing signed by the party
against which enforcement of such
change, waiver, discharge or termination is sought.
. 4.7 Attorneys' Fees. In the event of any dispute
between the parties concerning the terms and
provisions of this Warrant, the party prevailing in such dispute
shall be entitled to collect from the other
party all costs incurred in such dispute, including reasonable
attorneys' fees.
4.8 Governing Law. This Warrant shall be governed by
and construed in accordance with the
laws of the State of California, without giving effect to its
principles regarding conflicts of law.
FUSION MEDICAL TECHNOLOGIES, INC.
By:
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Name
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Title:
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APPENDIX I
NOTICE OF EXERCISE
1. The undersigned hereby elects to purchase shares
of the Common Stock of
Fusion Medical Technologies, Inc. pursuant to the terms of the
attached Warrant, and tenders herewith
payment of the purchase price of such shares in full.
1. The undersigned hereby elects to convert the
attached Warrant into Shares/cash [strike
one] in the manner specified in the Warrant. This conversion is
exercised with respect to of the
Shares covered by the Warrant.
[Strike paragraph that does not apply.]
2. Please issue a certificate or certificates
representing said shares in the name of the
undersigned or in such other name as is specified below:
Chief Financial Officer
Controllers Department
Imperial Bank or registered assignee
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
3. The undersigned represents it is acquiring the
shares solely for its own account and not as
a nominee for any other party and not with a view toward the
resale or distribution thereof except in
compliance with applicable securities laws.
IMPERIAL BANK or registered assignee
(Signature)
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(Date)
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APPENDIX 2
NOTICE THAT WARRANT IS ABOUT TO EXPIRE
Chief Financial Officer
Controllers Department
Imperial Bank or registered assignee
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Gentleperson:
This is to advise you that the Warrant issued to you
described below will expire on November 28,2002.
Issuer: Fusion Medical
Technologies, Inc.
Issue Date: November 28, 1997
Class of Security Issuable: Common
Exercise Price Per Share: $4.00
Number of Shares Issuable: 4,500
Procedure for Exercise:
Please contact ▇▇▇▇ ▇▇▇▇▇▇▇▇ at (▇▇▇) ▇▇▇-▇▇▇▇ with any
questions you may have concerning
exercise of the Warrant. This is your only notice of
pending expiration.
Fusion Medical Technologies, Inc.
By:
-------------------------
Its:
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EXHIBIT A
Omitted .1
EXHIBIT B
IMPERIAL BANK or registered assignee
ANTIDILUTION AGREEMENT
This Antidilution Agreement is entered into as of November
28, 1997, by and between Imperial
Bank or registered assignee, ("Purchaser") and Fusion Medical
Technologies, Inc. ("the Company"').
RECITALS
A. Concurrently with the execution of this
Antidilution Agreement, the Purchaser is
purchasing from the Company a Warrant to Purchase Stock (the
"Warrant") pursuant to which
Purchaser has the right to acquire from the Company the Shares (as
defined in the Warrant).
B. By this Antidilution Agreement, the Purchaser and
the Company desire to set forth the
adjustment in the number of Shares issuable upon exercise of the
Warrant as a result of a Diluting
Issuance (as defined in Exhibit A to the Warrant).
C. Capitalized terms used herein shall have the same
meaning as set forth in the Warrant.
NOW, THEREFORE, in consideration of the mutual
promises, covenants and
conditions hereinafter set forth, the parties hereto mutually
agree as follows:
I . Definitions. As used in this Anti-dilution
Agreement, the following terms have
the following respective meanings:
(a) "Option" means any right, option or warrant to
subscribe for, purchase or otherwise
acquire common stock or Convertible Securities.
(b) "Convertible Securities" means any evidences of
indebtedness, shares of stock or other
securities directly or indirectly convertible into or exchangeable
for common stock.
(c) "Issue" means to grant, issue, sell, assume or fix
a record date for determining persons
entitled to receive any security (including Options), whichever of
the foregoing is the first to occur.
(d) "Additional Common Shares" means all common stock
(including reissued shares)
issued (or deemed to be issued pursuant to Section 2) after the
date of the Warrant. Additional
Common Shares does not include, however, any common stock Issued
in a transaction described in
Sections 2.1 and 2.2 of the Warrant; any common stock Issued upon
conversion of preferred stock
outstanding on the date of the Warrant; the Shares; or common
stock Issued as incentive or in a
nonfinancing transaction to employees, officers, directors or
consultants to the Company.
(e) The shares of common stock ultimately Issuable
upon exercise of an Option (including
the shares of common stock ultimately Issuable upon conversion or
exercise of a Convertible Security
Issuable pursuant to an Option) are deemed to be Issued when the
Option is Issued. The shares of
common stock ultimately Issuable upon conversion or exercise of a
Convertible Security (other than a
Convertible Security Issued pursuant to an Option) shall be
deemed Issued upon Issuance of the
Convertible Security.
2. Deemed Issuance of Additional Common Shares. The
shares of common stock
ultimately Issuable upon exercise of an Option (including the
shares of common stock ultimately
Issuable upon conversion or exercise of a Convertible Security
Issuable pursuant to an Option) are
deemed to be Issued when the Option is Issued. The shares of
common stock ultimately Issuable upon
conversion or exercise of a Convertible Security (other than a
Convertible Security Issued pursuant to
an Option) shall be deemed Issued upon Issuance of the
Convertible Security. The maximum amount
of common stock Issuable is determined without regard to any
future adjustments permitted under the
instrument creating the Options or Convertible Securities.
3. Adjustment of Warrant Price for Diluting
Issuances.
3.1 Weighted Average Adjustment. If the Company
issues Additional Common
Shares after the date of the Warrant and the consideration per
Additional Common Share (determined
pursuant to Section 9) is less than the Warrant Price in effect
immediately before such Issue, the
Warrant Price in effect immediately before such Issue shall be
reduced, concurrently with such Issue,
to a price (calculated to the nearest hundredth of a cent)
determined by multiplying the Warrant Price
by a fraction:
(a) the numerator of which is the amount of
common stock outstanding immediately
before such Issue plus the amount of common stock that the
aggregate consideration received by
Company for the Additional Common Shares would purchase at the
Warrant Price in effect
immediately before such Issue, and
(b) the denominator of which is the amount of
common stock outstanding
immediately before such Issue plus the number of such Additional
Shares.
3.2 Adjustment of Number of Shares. Upon each
adjustment of the Warrant Price,
the number of Shares Issuable upon exercise of the Warrant shall
be increased to equal the quotient
obtained by dividing (a) the product resulting from multiplying
(i) the number of Shares Issuable upon
exercise of the Warrant and (ii) the Warrant Price, in each case
as in effect immediately before such
adjustment, by (b) the adjusted Warrant Price.
3.3 Securities Deemed Outstanding. For the
purpose of this Section 3, all securities
Issuable upon exercise of any outstanding Convertible Securities
or Options, Warrants, or other rights
to acquire securities of the Company shall be deemed to be
outstanding.
4. No Adjustment for Issuances Following Deemed
Issuances. No adjustment to the
Warrant Price shall be made upon the exercise of Options or
conversion of Convertible Securities.
5. Adjustment Following Changes in Terms of Options
or Convertible Securities. If the
consideration payable to, or the amount of common stock Issuable
by, the Company increases or
decreases, respectively, pursuant to the terms of any
outstanding Options or Convertible Securities, the
Warrant Price shall be recomputed to reflect such increase or
decrease. The recomputation shall be
made as of the time of the Issuance of the Options or
Convertible Securities. Any changes in the
Warrant Price that occurred after such Issuance because other
Additional Common Shares were Issued
or deemed Issued shall also be recomputed.
6. Recomputation Upon Expiration of Options or
Convertible Securities. The Warrant
Price computed upon the original Issue of any Options or
Convertible Securities, and any subsequent
adjustments based thereon, shall be recomputed when any Options
or rights of conversion under
Convertible Securities expire without having been exercised. In
the case of Convertible Securities or
Options for common stock, the Warrant Price shall be recomputed
as if the only Additional Common
Shares Issued were the shares of common stock actually Issued
upon the exercise of such securities, if
any, and as if the only consideration received therefor was the
consideration actually received upon the
Issue, exercise or conversion of the Options or Convertible
Securities. In the case of Options for
Convertible Securities, the Warrant Price shall be recomputed as
if the only Convertible Securities
Issued were the Convertible Securities actually Issued upon the
exercise thereof, if any, and as if the
only consideration received therefor was the consideration
actually received by the Company
(determined pursuant to Section 9), if any, upon the Issue of
the Options for the Convertible Securities.
7. Limit on Readjustments. No readjustment of the
Warrant Price pursuant to Sections 5 or
6 shall increase the Warrant Price more than the amount of any
decrease made in respect of the Issue of
any Options or Convertible Securities.
8. 30 Day Options. In the case of any Options that
expire by their terms not more than 30
days after the date of Issue thereof, no adjustment of the
Warrant Price shall be made until the
expiration or exercise of all such Options.
9. Computation of Consideration. The consideration
received by the Company for the
Issue of any Additional Common Shares shall be computed as
follows:
(a) Cash shall be valued at the amount of cash
received by the Corporation, excluding
amounts paid or payable for accrued interest or accrued
dividends.
(b) Property. Property, other than cash, shall be
computed at the fair market value thereof at
the time of the Issue as determined in good faith by the Board
of Directors of the Company.
(C) Mixed Consideration. The consideration for
Additional Common Shares Issued together
with other property of the Company for consideration that covers
both shall be determined in good
faith by the Board of Directors.
(d) Options and Convertible Securities. The
consideration per Additional Common Share
for Options and Convertible Securities shall be determined by
dividing:
(i) the total amount, if any, received or
receivable by the Company for the Issue of
the Options or Convertible Securities, plus the minimum 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 exercise of the Options or
conversion of the Convertible Securities, by
(ii) the maximum amount of common stock (as
set forth in the instruments relating
thereto, without regard to any provision contained therein for a
subsequent adjustment of such number)
ultimately Issuable upon the exercise of such Options or the
conversion of such Convertible Securities.
10. General.
10.1 Governing Law. This Antidilution
Agreement shall be governed in all respects
by the laws of the State of California as such laws are applied
to agreements between California
residents entered into and to be performed entirely within
California.
10.2 Successors and Assigns. Except as
otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs,
executors and administrators of the parties hereto.
10.3 Entire Aareement. Except as set forth
below, this Antidilution Agreement and
the other documents delivered pursuant hereto constitute the
full and entire understanding and
agreement between the parties with regard to the subjects hereof
and thereof.
10.4 Notices, etc. All notices and other
communications required or permitted
hereunder shall be in writing and shall be mailed by first class
mail, postage prepaid, certified or
registered mail, return receipt requested, addressed (a) if to
Purchaser at Purchaser's address as set forth
below, or at such other address as Purchaser shall have
furnished to the Company in writing, or (b) if to
the Company, at the Company's address set forth below, or at
such other address as the Company shall
have furnished to the Purchaser in writing.
10.5 Severability. In case any provision of
this Antidilution Agreement shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions of
this Antidilution Agreement shall not in any way be affected or
impaired thereby.
10.6 Titles and Subtitles. The titles of the
sections and subsections of this Agreement
are for convenience of reference only and are not to be
considered in construing this Antidilution
Agreement.
10.7 Counf6roarts. This Antidilution Agreement may be
executed in any number of
counterparts, each of which shall be an original, but all of which
together shall constitute one
instrument.
PURCHASER ISSUER
IMPERIAL BANK
or registered assignee FUSION MEDICAL TECHNOLOGIES,
INC.
By: By:
------------------- -----------------------
Name: Name:
------------------- ----------------------
Title: Title:
------------------- ----------------------
Address: Address:
------------------- ----------------------
EXHIBIT C
Registration Rights
The Shares shall be deemed "registrable securities" or
otherwise entitled to "piggy back"
registration rights in accordance with the terms of the following
agreement (the "Agreement") between
the Company and its investor(s):
[Identify Agreement by date, title and parties. If
no Agreement
exists, indicate by "none."]
The Company agrees that no amendments will be made to the
Agreement which would have an
adverse impact on Holder's registration thereunder without the
consent of Holder. By acceptance of the
Warrant to which this Exhibit C is attached, Holder shall not be
deemed to be a party to the Agreement,
but solely entitled to the registration rights created thereby.
If no Agreement exists, then the Company and the Holder
shall enter into Holder's standard form
of Registration Rights Agreement as in effect on the Issue Date
of the Warrant.
IMPERIAL BANK
Member FDIC
AUTOMATIC DEBIT AUTHORIZATION
To: Imperial Bank
Re: Loan #
You are hereby authorized and instructed to charge Account No.
▇▇-▇▇▇-▇▇▇ in the name of
FUSION MEDICAL TECHNOLOGIES, INC. for principal and/or
interest payments due on the above
referenced loan as set forth below and credit the loan
referenced above.
C!O Debit each interest payment as it becomes due
according to the terms of that
certain Loan Agreement dated of even date
herewith, and any renewals or
amendments thereof.
N Debit each principal payment as it becomes due
according to the terms of that
certain Loan Agreement dated of even date:
herewith, and any renewals or
amendments thereof.
This Authorization is to remain in full force and effect until
revoked in writing.
Borrower Signature:
Date: December l, 1997
FUSION MEDICAL TECHNOLOGEES, INC.,
a Delaware corporation
By:
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chief Financial Officer
21410218
121197
[Equipment Lines)
AGREEMENT TO PROVIDDE
INSURANCE
(REAL OR PERSONAL
PROPERTY)
TO: IMPERIAL BANK
Date: December 1997
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Borrower: FUSION MEDICAL TECHNOLOGUES, INC.
San Jose, California 951 10
In consideration of loans that shall not at any one
time in the aggregate exceed the principal sum of $2,500,000.00
("Loans"), secured by all tangible personal property of the
undersigned, including inventory and equipment, the
undersigned agrees to obtain adequate insurance coverage to
remain in force during the term of the Loans.
'Me undersigned also agrees to advise the below
named agent to add IMPERIAL BANK ("Bank") as a loss payee
on the new or existing insurance policy, and to furnish Bank
at the above address with a copy of said policy/endorsements
and any subsequent renewal policies.
'Me undersigned understands that the policy must
contain:
1. Fire and extended coverage in an amount
sufficient to cover:
(a) 'Me amount of the Loans, OR
(b) All existing encumbrances,
whichever is greater.
But not in excess of the replacement value of the
improvements on the real property.
2. A Lender's "Loss Payable' Endorsement Form
438 BFU in favor of IMPERIAL BANK, or any other form
acceptable to Bank.
INSURANCE
INFORMATION
C) e))
Insurance Co./Agent:
Telephone No.
Agent's Address:
BORROWER
FUSION MEDICAL TECHNOLOGIES, INC.,
a Delaware corporation
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chief Financial Officer
FOR BANK USE ONLY
INSURANCE VERIFICATION: Date:
Person Spoken to:
Policy Number:
Effective Form: To:
Verified By:
21410236
121197
IMPERIAL BANK
Member FDIC
ITEMIZATION OF AMOUNT FINANCED
DISBURSEMENT INSTRUCTIONS
Borrower: FUSION MEDICAL TECHNOLOGIES, INC.
Date: December__, 1997
$ paid to you directly
by Cashiers Check No.
$ 2,500,000.00 (maximum aggregate
amount available less outstanding under Facility-B
Commitment calculated
as set forth in Loan Agreement) credited to deposit
Account No. ▇▇-▇▇▇-▇▇▇
(from undisbursed proceeds from the Facility-A
Commitment)
$ 1,000,000.00 (maximum aggregate
amount available less outstanding under Facility-A
Commitment calculated
as set forth in Loan Agreement) credited to deposit
Account No. ▇▇-▇▇▇-▇▇▇
(from undisbursed proceeds from the Facility-B
Commitment)
$ paid on Loan(s) No.
$ amounts paid to Bank
for:
Amounts ▇▇▇▇ to others on your ▇▇▇▇▇
$ to
Title Insurance Company
$ to Public Officials
$ to
$ to
$ to
$ to
$ 2,500,000.00 SUBTOTAL (Aggregate
Loans Outstanding At Any One Time)
LESS $ 0.00 Prepaid Finance Charge
(Loan fee)
$ 2,500,000.00 TOTAL (Amount Financed
At Any One Time Outstanding)
Upon consummation of this transaction, this document will also
serve as the authorization for Imperial Bank to disburse the
loan proceeds as stated above.
FUSION MEDICAL TECHNOLOGIES, INC.,
a Delaware corporation
------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chief Financial Officer
21410242
121197
[Equipment Lines]