Exhibit 10.32
REORGANIZATION AGREEMENT
This Reorganization Agreement ("Agreement") is made and entered into as of
the 31st day of December, 1996 (the "Effective Date"), by and between Summit
Medical Systems, Inc., a Minnesota corporation ("Summit"), ▇▇ ▇▇▇▇ LLC, a North
Carolina limited liability company ("▇▇ ▇▇▇▇"), Duke University, a North
Carolina not-for-profit corporation ("Duke"), and Cordillera LLC, a Delaware
limited liability company ("Cordillera").
WHEREAS, Summit and ▇▇ ▇▇▇▇ entered into a Limited Liability Company
Agreement dated December 29, 1995 ("Cordillera Agreement"), pursuant to which
the parties became the sole members of Cordillera, with Summit as the record and
beneficial owner of 202,000 Member Units (as that term is defined in the
Cordillera Agreement) and ▇▇ ▇▇▇▇ as the record and beneficial owner of 2,000
Member Units;
WHEREAS, Duke was also granted an option ("Option") to purchase up to
200,000 Member Units in exchange for a stated Capital Contribution under the
Cordillera Agreement, which Option Duke has not exercised, assigned or otherwise
transferred as of the Effective Date;
WHEREAS, Summit desires to purchase the Member Units owned by ▇▇ ▇▇▇▇, and
extinguish Duke's Option, in order to become the owner of all currently
outstanding and available Member Units in Cordillera, so that Summit may wind-up
and transfer the business of Cordillera to Summit (the "Reorganization"), and
the other parties so agree subject to the terms and conditions of this
Agreement;
WHEREAS, Summit also desires to obtain the services of certain employees
of, and consultants to, Cordillera under the terms of an employment agreement
and consulting agreements, as applicable, as a condition to closing the
Reorganization; and
WHEREAS, Summit and Duke also desire to modify certain terms of the License
Agreement between Duke University and Summit Medical Systems, Inc. dated
December 29, 1995 (the "License Agreement"), to which Cordillera is a third
party beneficiary, as a condition to closing the Reorganization.
NOW, THEREFORE, for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties agree as follows:
1. CLOSING AND PURCHASE OF MEMBERSHIP UNITS.
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1.1 CLOSING. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLP, in Minneapolis, Minnesota, on the 31st day of December, 1996 at 3:00 P.M.
Minneapolis time (the "Closing Date").
1.2 PURCHASE OF ▇▇ ▇▇▇▇'▇ MEMBER UNITS. Subject to the terms and
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condition of this Agreement, on the Closing Date ▇▇ ▇▇▇▇ shall sell to Summit,
and Summit hereby agrees to purchase from ▇▇ ▇▇▇▇, 2,000 Member Units in
Cordillera. In exchange for the Member Units, Summit shall pay to ▇▇ ▇▇▇▇
compensation equal to One Hundred Dollars ($100.00) at the Closing.
2. CANCELLATION OF DUKE'S OPTION AND EXISTING WARRANT.
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2.1 CANCELLATION OF OPTION AND EXISTING WARRANT. Subject to the terms
and conditions of this Agreement, as of the Closing Date Duke consents to the
cancellation of (a) its Option granted pursuant to Section 4.2 of the Cordillera
Agreement, and (b) that certain Warrant to subscribe for and purchase up to
200,000 shares of common stock of Summit, dated December 29, 1995 (the "Existing
Warrant"), which was granted to Duke pursuant to Section 3.1 of the License
Agreement. Duke warrants and represents to Summit that it has not, as of the
Effective Date, exercised, assigned or otherwise transferred the Option or
Existing Warrant, in whole or in part, nor will it do so prior to or on the
Closing Date.
2.2 ISSUANCE OF WARRANTS. On the Closing Date, Summit shall issue to
Duke two (2) separate warrants (singly, "New Warrant" or collectively, "New
Warrants") to subscribe for and purchase common stock of Summit up to the
aggregate amount of 200,000 shares (the "Duke Shares"), subject to (a) the terms
and conditions of the Investment and Registration Rights Agreement between
Summit and Duke dated the Closing Date, and (b) the particular terms and
conditions contained in each of the New Warrants.
2.3 ENDOWMENTS. As further consideration for Duke's consent to the
cancellation of the Option and Existing Warrant, Summit shall deliver to Duke on
the Closing Date the total amount of Two Million Dollars ($2,000,000), which
shall be used by Duke to endow a Chair and a Fellowship at Duke University in
accordance with the terms contained in the forms attached hereto as Exhibit K.
3. AMENDMENT TO SUBLICENSE AND DISTRIBUTION AGREEMENT. Subject to the terms
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and conditions of this Agreement, Duke hereby waives its right to determine (in
conjunction with Summit and Cordillera), pursuant to Section 9.3(f) of the
Sublicense and Distribution Agreement between Summit and Cordillera dated
December 29, 1995 (the "Sublicense Agreement"), the disposition of the residual
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rights and duties Cordillera has or may have with respect to the IP Rights (as
defined in the Sublicense Agreement) as of the Closing Date and all times
thereafter.
4. CONDITIONS TO OBLIGATION TO CLOSE.
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4.1 CONDITIONS TO OBLIGATION OF SUMMIT. The obligations of Summit to
consummate the transactions to be performed in connection with the Closing is
subject to satisfaction of the conditions set forth below:
(a) Receipt of the Existing Warrant from Duke prior to or at the Closing;
(b) Receipt of an executed Amendment to the License Agreement from Duke
prior to or at the Closing, a copy of which is attached hereto as
Exhibit A;
(c) Receipt of an executed Investment and Registration Rights Agreement
from Duke prior to or at the Closing, a copy of which is attached
hereto as Exhibit B;
(d) Receipt of a copy of the Employment Agreement between Summit and ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇, executed by ▇▇. ▇▇▇▇▇▇, prior to or at the Closing, a
copy of which is attached hereto as Exhibit C;
(e) Receipt of a copy of the Nonstatutory Stock Option Agreement between
Summit and ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, executed by ▇▇. ▇▇▇▇▇▇, prior to or at
the Closing, a copy of which is attached hereto as Exhibit D;
(f) Receipt of a copy of the Consulting Agreement between Summit and ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇, executed by ▇▇▇▇▇▇, prior to or at the Closing, a copy
of which is attached hereto as Exhibit E;
(g) Receipt of a copy of the Nonstatutory Stock Option Agreement between
Summit and ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, executed by ▇▇. ▇▇▇▇▇▇, prior to or at
the Closing, a copy of which is attached hereto as Exhibit F;
(h) Receipt of a copy of the Consulting Agreement between Summit and Dr.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, executed by ▇▇. ▇▇▇▇▇▇▇▇, prior to or at the Closing,
a copy of which is attached hereto as Exhibit G;
(i) Receipt of a copy of the Nonstatutory Stock Option Agreement between
Summit and Dr. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, executed by ▇▇. ▇▇▇▇▇▇▇▇, prior to or
at the Closing, a copy of which is attached hereto as Exhibit H;
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(j) Written approval of the Managers of Cordillera to all transactions
necessary to effectuate the Reorganization, including (a) an executed
Amendment to the Cordillera Agreement, which shall permit the
purchase of ▇▇ ▇▇▇▇'▇ Member Units by Summit and make other changes
to reflect Summit's sole ownership of Member Units in Cordillera, a
copy of which is attached hereto as Exhibit I; (b) approval of the
dissolution, winding up, and distribution of assets of Cordillera to
Summit in accordance with the Delaware Limited Liability Company Act.
(k) Receipt of a certificate from ▇▇ ▇▇▇▇ at the Closing stating that its
representations and warranties in Section 6 of this Agreement are
true, complete and accurate as of the Closing Date;
(l) Receipt of a certificate from Duke at the Closing stating that its
representations and warranties in Section 8 of this Agreement are
true, complete and accurate as of the Closing Date; and
(m) Receipt of a certificate from Cordillera at the Closing stating that
its representations and warranties in Section 9 of this Agreement are
true, complete and accurate as of the Closing Date.
4.2 CONDITIONS TO OBLIGATION OF ▇▇ ▇▇▇▇. The obligation of ▇▇ ▇▇▇▇ to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(a) Receipt of the compensation due from Summit for the Member Units, as
provided in Section 1.2 above, at the Closing;
(b) Receipt of a certificate from Summit at the Closing stating that its
representations and warranties in Section 7 of this Agreement are
true, complete and accurate as of the Closing Date;
(c) Receipt of a certificate from Duke at the Closing stating that its
representations and warranties in Section 8 of this Agreement are
true, complete and accurate as of the Closing Date; and
(d) Receipt of a certificate from Cordillera at the Closing stating that
its representations and warranties in Section 9 of this Agreement are
true, complete and accurate as of the Closing Date.
4.3 CONDITIONS TO OBLIGATION OF DUKE. The obligation of Duke to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
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(a) Receipt of the New Warrants representing the Duke Shares from Summit
at the Closing, a copy of such New Warrants being attached hereto as
Exhibit J;
(b) Receipt of a certificate from ▇▇ ▇▇▇▇ at the Closing stating that its
representations and warranties in Section 6 of this Agreement are
true, complete and accurate as of the Closing Date; and
(c) Receipt of a certificate from Summit at the Closing stating that its
representations and warranties in Section 7 of this Agreement are
true, complete and accurate as of the Closing Date; and
(d) Receipt of a certificate from Cordillera at the Closing stating that
its representations and warranties in Section 9 of this Agreement are
true, complete and accurate as of the Closing Date.
5. WIND-UP AND TRANSFER OF CORDILLERA'S BUSINESS. To effectuate the
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Reorganization, Summit may, at any time after the Closing Date, take any action
(including executing and delivering any documents) in the name and on behalf of
either Summit or Cordillera, and Cordillera hereby consents to Summit taking
such actions, in order to carry out and effectuate the transactions contemplated
by this Agreement. Duke and ▇▇ ▇▇▇▇ shall require their respective Managers of
Cordillera to vote for approval of all such actions by Summit or Cordillera,
including approving Exhibit I hereto.
6. REPRESENTATIONS AND WARRANTIES BY ▇▇ ▇▇▇▇. ▇▇ ▇▇▇▇ hereby represents and
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warrants to the parties hereto that:
6.1 OWNERSHIP. ▇▇ ▇▇▇▇ is the record and beneficial owner of 2,000
Member Units;
6.2 ACTS AND PROCEEDINGS. This Agreement, and all actions taken by ▇▇
▇▇▇▇ as required hereunder, which ▇▇ ▇▇▇▇ represents have been taken, have been
duly authorized by all necessary action on the part of ▇▇ ▇▇▇▇, and this
Agreement has been duly executed and delivered by ▇▇ ▇▇▇▇ so that it is a valid
and binding agreement of ▇▇ ▇▇▇▇;
6.3 LIENS, ENCUMBRANCES ETC. The Member Units are not subject to, and
will be delivered to Summit on the Closing Date free and clear of, any liens,
encumbrances or other restrictions of any kind or nature, other than
restrictions on transferability that are imposed by the federal Securities Act
of 1933 (the "Securities Act") and applicable state securities laws;
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6.4 NO BROKERS OR FINDERS. No person, firm or corporation has or will
have, as a result of any act or omission by ▇▇ ▇▇▇▇, any right, interest or
valid claim against Cordillera or Summit for any commission, fee or other
compensation as a finder or broker, or in any similar capacity, in connection
with the transactions contemplated by this Agreement; and
6.5 NO CONFLICT. The execution, delivery and performance of this
Agreement will not result in any violation of, be in conflict with, or
constitute a default under, with or without the passage of time or the giving of
notice: (i) any provision of any judgment, decree, order or ordinance to which
▇▇ ▇▇▇▇ is a party or by which ▇▇ ▇▇▇▇ is bound, (ii) any material contract,
agreement, note, mortgage, indenture, lease instrument, permit, franchise,
license, obligation or commitment to which ▇▇ ▇▇▇▇ is party or by which ▇▇ ▇▇▇▇,
or any of its properties or assets may be bound or affected, or (iii) any
statute, rule or governmental application applicable to ▇▇ ▇▇▇▇.
7. REPRESENTATIONS OF SUMMIT. Summit represents and warrants to the parties
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hereto that:
7.1 ACTS AND PROCEEDINGS. This Agreement, and all actions taken by Summit
as required hereunder, which Summit represents have been taken, have been duly
authorized by all necessary action on the part of Summit, and this Agreement has
been duly executed and delivered by Summit so that it is a valid and binding
agreement of Summit;
7.2 NO BROKERS OR FINDERS. No person, firm or corporation has or will
have, as a result of any act or omission by Summit, any right, interest or valid
claim against Cordillera or Summit for any commission, fee or other compensation
as a finder or broker, or in any similar capacity, in connection with the
transactions contemplated by this Agreement;
7.3 NO CONFLICT. The execution, delivery and performance of this
Agreement will not result in any violation of, be in conflict with, or
constitute a default under, with or without the passage of time or the giving of
notice: (i) any provision of any judgment, decree, order or ordinance to which
Summit is a party or by which Summit is bound, (ii) any material contract,
agreement, note, mortgage, indenture, lease instrument, permit, franchise,
license, obligation or commitment to which Summit is party or by which Summit,
or any of its properties or assets may be bound or affected, or (iii) any
statute, rule or governmental application applicable to Summit; and
7.4 ACCESS TO INFORMATION. Summit has made available to Duke at a
reasonable time prior to the execution of this Agreement any additional
information (which Summit possesses or can acquire without unreasonable effort
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or expense) as Duke has requested to verify the accuracy of information
furnished to Duke in connection with this Agreement and the Duke Shares. There
is no material fact not disclosed to Duke of which any officer or director of
Summit is aware which materially affects adversely, or could reasonably be
anticipated to materially affect adversely, Summit's business, including its
operating results, assets, customer relations, employee relations and business
prospects.
7.5 CAPITAL STOCK. The authorized capital stock of Summit consists of
40,533,333 shares of capital stock, $.01 par value, of which 1,600,000 shares
are designated as Series A Convertible Preferred Stock. As of the date hereof,
9,342,545 shares of Summit common stock, and no shares of Series A Convertible
Preferred Stock, are issued and outstanding. All such outstanding shares of
Summit common stock have been duly authorized and are validly issued, fully paid
and nonassessable.
8. REPRESENTATIONS OF DUKE. Duke represents and warrants to the parties
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hereto that:
8.1 OWNERSHIP. Duke has not exercised, transferred or assigned, in whole
or in part, its rights granted under the Option or Existing Warrant;
8.2 ACTS AND PROCEEDINGS. This Agreement, and all actions taken by Duke
as required hereunder, which Duke represents have been taken, have been duly
authorized by all necessary action on the part of Duke, and this Agreement has
been duly executed and delivered by Duke so that it is a valid and binding
agreement of Duke;
8.3 LIENS, ENCUMBRANCES ETC. The Option and Existing Warrant are not
subject to, and will be delivered to Summit on the Closing Date free and clear
of, any liens, encumbrances or other restrictions of any kind or nature, other
than restrictions on transferability that are imposed by the Securities Act and
applicable state securities laws;
8.4 NO BROKERS OR FINDERS. No person, firm or corporation has or will
have, as a result of any act or omission by Duke, any right, interest or valid
claim against Cordillera or Summit for any commission, fee or other compensation
as a finder or broker, or in any similar capacity, in connection with the
transactions contemplated by this Agreement;
8.5 NO CONFLICT. The execution, delivery and performance of this
Agreement will not result in any violation of, be in conflict with, or
constitute a default under, with or without the passage of time or the giving of
notice: (i) any provision of any judgment, decree, order or ordinance to which
Duke is a party or by which Duke is bound, (ii) any material contract,
agreement, note, mortgage,
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indenture, lease instrument, permit, franchise, license, obligation or
commitment to which Duke is party or by which Duke, or any of its properties or
assets may be bound or affected, or (iii) any statute, rule or governmental
application applicable to Duke; and
8.6 ACCESS TO INFORMATION. Duke acknowledges that Summit has made
available to Duke at a reasonable time prior to the execution of this Agreement
the opportunity to ask questions and receive answers concerning the terms and
conditions of this Agreement and to obtain any additional information (which
Summit possesses or can acquire without unreasonable effort or expense) as may
be necessary to verify the accuracy of information furnished to Duke in
connection with the Duke Shares; and Duke has fully provided Summit with all
information that Summit has requested from Duke.
9. REPRESENTATIONS OF CORDILLERA. Cordillera represents and warrants to the
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parties hereto that:
9.1 ACTS AND PROCEEDINGS. This Agreement, and all actions taken by
Cordillera as required hereunder, which Cordillera represents have been taken,
have been duly authorized by all necessary action on the part of Cordillera, and
this Agreement has been duly executed and delivered by Cordillera so that it is
a valid and binding agreement of Cordillera;
9.2 NO BROKERS OR FINDERS. No person, firm or corporation has or will
have, as a result of any act or omission by Cordillera, any right, interest or
valid claim against Cordillera or Summit for any commission, fee or other
compensation as a finder or broker, or in any similar capacity, in connection
with the transactions contemplated by this Agreement;
9.3 NO CONFLICT. The execution, delivery and performance of this
Agreement will not result in any violation of, be in conflict with, or
constitute a default under, with or without the passage of time or the giving of
notice: (i) any provision of any judgment, decree, order or ordinance to which
Cordillera is a party or by which Cordillera is bound, (ii) any material
contract, agreement, note, mortgage, indenture, lease instrument, permit,
franchise, license, obligation or commitment to which Cordillera is party or by
which Cordillera, or any of its properties or assets may be bound or affected,
or (iii) any statute, rule or governmental application applicable to Cordillera.
10. MISCELLANEOUS.
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10.1 AMENDMENTS. WAIVERS. ETC. Neither this Agreement nor any provision
hereof may be amended, waived, discharged or terminated orally, but only in
writing signed by all the parties.
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10.2 ASSIGNMENT. All the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties to
this Agreement and their respective successors and assigns. No party may assign
this Agreement or any of its rights or obligations hereunder, in whole or in
part, without the prior written approval of the other parties.
10.3 SEVERABILITY. Any term or provision of this Agreement that is found
to be invalid or unenforceable by a court of competent jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof.
10.4 HEADINGS. The headings of the articles and sections of this
Agreement have been inserted for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement or constitute
a part of this Agreement.
10.5 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State or Minnesota, excluding its choice or law
rules.
10.6 COUNTERPARTS. This Agreement may be executed concurrently in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.7 ENTIRE AGREEMENT. This Agreement (including all attached Exhibits
and the documents referred to herein) constitutes the entire agreement between
the parties and supersedes any prior understandings, agreements or
representations between the parties, whether written or oral, to the extent they
relate in any way to the subject matter hereof.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives, as of the Effective Date.
▇▇ ▇▇▇▇ LLC DUKE UNIVERSITY
By__________________________________ By_________________________________
Name________________________________ Name_______________________________
Title_______________________________ Title______________________________
CORDILLERA LLC SUMMIT MEDICAL SYSTEMS, INC.
By__________________________________ By_________________________________
Name________________________________ Name_______________________________
Title_______________________________ Title______________________________
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EXHIBIT A
AMENDMENT
THIS AMENDMENT is made and entered into as of December 31, 1996 (the
"Effective Date"), by and between DUKE UNIVERSITY ("Duke"), a North Carolina
not-for-profit corporation, having its principal office at ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and SUMMIT MEDICAL SYSTEMS, INC. ("Summit"), a Minnesota
corporation, having its principal offices at ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
Recitals
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WHEREAS, Duke and Summit entered into a License Agreement dated December
29, 1995 (the "License Agreement"), pursuant to which Summit was granted an
exclusive license to the Software and Derivative Works (as defined in the
License Agreement), with a requirement to grant a sublicense to Cordillera LLC,
a Delaware limited liability corporation ("Cordillera");
WHEREAS, Summit has agreed to acquire Cordillera pursuant to a
Reorganization Agreement of even date herewith (the "Reorganization Agreement"),
by and among Summit, Cordillera, ▇▇ ▇▇▇▇ L.L.C. and Duke, which provides for
Summit's purchase of all other parties' member units, and options for member
units, in Cordillera, and the wind-up and transfer of Cordillera's business to
Summit (the "Reorganization");
WHEREAS, as a result of the Reorganization, certain modifications to the
License Agreement are required; and
WHEREAS, Duke, Summit and the other parties to the Reorganization Agreement
have agreed that execution of this Amendment by Summit and Duke is a condition
of closing the Reorganization.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
herein contained, the parties do hereby agree:
1. License Grant. The first sentence of Section 2.1 of the License Agreement
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is modified by substituting the words "fully-paid" for "royalty-bearing".
2. Sublicenses. The second sentence of Section 2.2 of the License Agreement
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is deleted in its entirety. In addition, at the beginning of the third sentence
of Section 2.2 in the License Agreement, the following clauses are deleted: "In
addition, subject to the prior written consent of the Joint Venture,".
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3. Right of First Negotiation. The right of first negotiation to New
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Technology granted to Summit pursuant to Section 2.7 of the License Agreement
shall not extend to any data or databases collected with such New Technology;
provided, however, that Duke acknowledges that Summit's license to the Duke
Databank discussed in Section 2.6 of the License Agreement shall not in any way
be affected by the foregoing.
4. Running Royalties. Duke and Summit acknowledge that, as of the Closing
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Date (as that term is defined in the Reorganization Agreement), the license to
the Software and Derivative Works granted to Summit in Section 2.1 of the
Agreement is fully-paid and that no additional running royalties are due or
payable to Duke, Cordillera or any other third party therefor. Accordingly,
Sections 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8 and 3.10 of the License Agreement are
deleted in their entirety.
5. Infringement by Licensed Software. The second sentence of Section 5.4 of
---------------------------------
the License Agreement is deleted in its entirety and replaced by the following:
However, in the event there are no running royalties owed to Duke at
the time of such a Legal Action, within a reasonable time Duke shall
have the option of paying any sum owed to the third party due to such
indemnification or, in lieu of such cash payment, of transferring to
Summit the equivalent fair market value therefor in the form of (i)
the New Warrants (issued pursuant to Section 2.2 of the Reorganization
Agreement dated December 31, 1996 by and between Summit, Duke,
Cordillera LLC and ▇▇ ▇▇▇▇ LLC), or any portion thereof that has not
been exercised by Duke, (ii) any Summit common stock received by Duke
pursuant to its exercise of all or any portion of the New Warrants
(the "Duke Securities") which Duke holds, or (iii) the net value
realized by Duke for all or any portion of the New Warrants or the
Duke Securities which Duke has assigned, sold or otherwise transferred
to a third party. The fair market value of the New Warrants and Duke
Securities transferred to Summit shall be determined as of the date
liability is imposed on Duke under this Section 5.4. Notwithstanding
the foregoing, Duke's indemnification obligation under this Section
5.4 shall be limited to the total value of the New Warrants, including
any Duke Securities received by Duke pursuant to its exercise thereof
that are held by Duke, and the net value realized by Duke for any
portion thereof assigned, sold or otherwise transferred to a third
party.
In addition, the last sentence of Section 5.4(c) of the License Agreement is
deleted in its entirety and replaced by the following:
In the event there are no running royalties owed to Duke at the time
of such a Legal Action, Duke shall transfer to Summit the equivalent
fair
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market value of such license fee payment by Summit to the third party
in the form of (i) the New Warrants, or any portion thereof that has
not been exercised by Duke, (ii) any Duke Securities that Duke holds,
or (iii) the net value realized by Duke for all or any portion of the
New Warrants or the Duke Securities which Duke has assigned, sold or
otherwise transfered to a third party. The fair market value of the
New Warrants and Duke Securities transferred to Summit shall be
determined as of the date liability is imposed on Duke under this
Section 5.4.
6. Reserved Duke Use Rights. Duke's right to a royalty-free license to the
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Site-Specific Products granted in Section 6.3 of the License Agreement shall be
modified to also include Summit's Crescendo product, including all commercially
available derivative works and new versions thereof, regardless of whether
Crescendo is part of Summit's Site-Specific Products or On-Line Products.
Notwithstanding the foregoing, Duke shall be required to pay for all consulting,
implementation or project management services related to Crescendo, which it
requests from Summit, on terms as the parties may then mutually agree. Further,
Duke shall use it best efforts to integrate Crescendo with all software and
applications currently a part of, or added to, the Duke Medical Center computing
systems, so as to ensure Crescendo's continued role as an integral part of the
Duke Medical Center's computing systems.
7. Termination. Section 7.2(f) of the License Agreement is deleted in its
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entirety.
8. Assumption of Obligations. Summit shall assume all obligations and rights
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of Cordillera as expressly stated in the License Agreement, except the audit
rights under Section 3.9 thereof which, as to Cordillera, shall be canceled.
9. Effect of Amendment. Except as expressly modified herein, the License
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Agreement shall remain in full force and effect in accordance with its terms.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed in
duplicate as of the Effective Date.
DUKE UNIVERSITY SUMMIT MEDICAL SYSTEMS, INC.
By_________________________________ By_________________________________
Name_______________________________ Name_______________________________
Title______________________________ Title______________________________
___________________________________ ___________________________________
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EXHIBIT B
INVESTMENT AND REGISTRATION RIGHTS AGREEMENT
THIS INVESTMENT AND REGISTRATION RIGHTS AGREEMENT, dated as of December 31,
1996 (the "Agreement"), among Summit Medical Systems, Inc., a Minnesota
corporation (the "Company"), and Duke University (the "University").
WHEREAS, the Company has agreed to issue warrants, pursuant to those two
New Warrants, dated December 31, 1996, which entitle the holder thereof to
subscribe for and purchase shares of the Company's Common Stock (the "Shares");
and
WHEREAS, the University may transfer the New Warrants or the Shares,
subject to the terms and conditions of this Agreement, to other persons or
entities (the "Subsequent Holders," and together with the University, the
"Shareholders");
WHEREAS, the New Warrants and Shares will be issued to the University
without registration under the Securities Act of 1933, as amended (the
"Securities Act"), and the Company and the University desire to provide for
compliance with the Securities Act and for the registration of the resale by the
Shareholders of the Shares upon the terms and subject to conditions set forth
below.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used but not defined in this
-------------
Agreement shall have the meanings ascribed to such terms in the Reorganization
Agreement or New Warrants, as appropriate.
2. Investment Representations of Shareholders. Each Shareholder hereby
------------------------------------------
represents, warrants, acknowledges, covenants and agrees as follows: (i) the
Shares are being acquired for the Shareholder's own account for investment
purposes only and not with a view to any public resale, public distribution or
public offering thereof within the meaning of the Securities Act or any state
securities or "blue sky" law, except in compliance with the Securities Act or in
reliance upon an exemption therefrom; (ii) the Shares have not been registered
under the Securities Act or any state securities or "blue sky" law; (iii) the
Shareholder is an "accredited investor" within the meaning of Rule 501 of
Regulation D under the Securities Act or, if not, the Shareholder, either alone
or with the Shareholder's purchaser representative, has such knowledge and
experience in financial and business matters that the Shareholder is capable of
evaluating the merits and risks of the prospective investment in the Shares and
able to bear the economic consequences thereof;
-14-
(iv) in making the Shareholder's decision to invest in the Shares, the
Shareholder has relied upon independent investigations made by the Shareholder
and, to the extent believed by the Shareholder to be appropriate, the
Shareholder's representatives, including the Shareholder's professional, tax and
other advisors, and has not relied upon any representation or warranty from the
Company, or any of its directors, officers, employees, agents, affiliates or
representatives, with respect to the value of the Shares; (v) the Company has
not made any representation, warranty, acknowledgement or covenant, in writing
or otherwise, to the Shareholder regarding the tax consequences, if any, of the
New Warrants or of the resale of the Shares by the Shareholder; (vi) the
Shareholder and the Shareholder's representatives have been given a full
opportunity to examine all documents and to ask questions of, and to receive
answers from, the Company and its representatives concerning the terms of the
New Warrants, the Shareholder's investment in the Shares and the business of the
Company and such other information as the Shareholder desires in order to
evaluate an investment in the Shares, and all such questions have been answered
to the full satisfaction of the Shareholder; (vii) the Shareholder has been
furnished with all the Company books, records, documents and other information
about the Company's assets, operations and business activities which the
Shareholder has requested and which the Shareholder considers necessary or
relevant to enable the Shareholder to make a prudent decision about the New
Warrants; (viii) the Shareholder has evaluated the merits and risks of an
investment in the Shares and has determined that the Shares are a suitable
investment for the Shareholder in light of the Shareholder's overall financial
condition and prospects; (ix) the Shareholder has been advised, and is aware,
that the market prices of shares of stock of publicly traded companies fluctuate
and that there can be no assurance as to the future performance of any given
securities, including shares of Company Common Stock; and (x) the Shareholder
has been furnished with all publicly available information about the Company's
assets, operations and business activities which it has requested and which it
considers necessary or relevant to enable it to make a decision about its
acquisition of the Shares.
3. Restrictions on Transfer.
------------------------
(a) Each Shareholder agrees that the Shareholder will not sell, assign,
transfer or otherwise dispose (each, a "Transfer") of the Shares (or any
interest therein) except upon the terms and conditions specified in this
Agreement, and the Shareholder will cause any subsequent holder of Shares to
agree to take and hold the Shares subject to the terms and conditions of this
Agreement, if such Shares are required to include a legend pursuant to Section 3
hereof.
(b) Each Shareholder agrees to deliver to the Company a notice of
assignment stating the name, address, telephone number and fax number, if any,
-15-
of the assignee and the name of any personal representative of the assignee, if
any, and the date of such transfer (the "Notice of Assignment").
(c) Each certificate representing the Shares issued to a Shareholder shall
include a legend in substantially the following form; provided, however, that
such legend shall not be required if a transfer is being made in connection with
a sale of Shares registered under the Securities Act, or in connection with a
sale in compliance with Rule 144 or, if applicable, Rule 145 under the
Securities Act (each, a "Public Sale"), or if the opinion of counsel for the
Company is to the further effect that neither such legend nor the restrictions
on transfer in this Section 3 are required in order to ensure compliance with
the Securities Act:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE SECURITIES LAW, AND MAY NOT BE TRANSFERRED, SOLD OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM. SUCH SHARES MAY BE TRANSFERRED ONLY IN
COMPLIANCE WITH THE CONDITIONS SPECIFIED IN THE INVESTMENT AND
REGISTRATION RIGHTS AGREEMENT DATED AS OF DECEMBER 31, 1996
BETWEEN THE ISSUER AND THE INDIVIDUAL PARTY THERETO, A COMPLETE
AND CORRECT COPY OF WHICH IS AVAILABLE FOR INSPECTION AT THE
PRINCIPAL OFFICE OF THE ISSUER AND WILL BE FURNISHED TO THE
HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE.
(d) The restrictions set forth in this Section 3 shall terminate and cease
to be effective with respect to any of the Shares (i) upon the sale of any such
Shares, if such Shares have been registered under the Securities Act, (ii) upon
receipt by the Company of an opinion of counsel reasonably acceptable to the
Company, in form reasonably satisfactory to the Company, to the effect that
compliance with such restrictions is not necessary to comply with the Securities
Act with respect to the Transfer of such Shares, or (iii) upon the expiration of
the three-year period referred to in Rule 144(k) under the Securities Act (as
such Rule may be amended from time to time), if, pursuant to Rule 144(k), the
Shareholder was not an "affiliate" of the Company at the time of the sale of the
Shares and has not been an "affiliate" of the Company during the preceding three
months.
4. Registration Under the Securities Act.
-------------------------------------
(a) Required Registration. If, at any time after the Company shall be
---------------------
eligible to file a registration statement on Form S-3 with the Securities and
Exchange
-16-
Commission, the Company receives a written request therefor from Shareholders
who are the holders of a majority of the Shares outstanding as of the time such
notice is given, the Company shall prepare and file a registration statement
under the Securities Act for the Shares which are the subject of such request
and shall use its best efforts to cause such registration statement to become
effective; provided, however, that the Company shall not be obligated to prepare
and file such registration statement and/or may suspend the effectiveness of any
registration statement for a period of not more than 90 days as deemed necessary
(i) by the Company or any underwriter in connection with the offering of shares
of the Company's Common Stock, or (ii) by the Company if the Company is in
possession of material information that has not been disclosed to the public and
the Company reasonably deems disclosure of such information in a registration
statement to be inadvisable. A Shareholder may require only two registrations of
Shares pursuant to this Section 4 (a). In the event that the Shareholder
determines for any reason not to proceed with a registration at any time before
the registration statement has been declared effective by the Commission, and
requests the Company to withdraw such registration statement, if theretofore
filed with the Commission, with respect to the Shares covered thereby, and the
Shareholder agrees to bear its own expenses incurred in connection therewith and
to reimburse the Company for the expenses incurred by it attributable to the
registration of such Shares, then the Shareholder shall not be deemed to have
exercised its right to require the Company to register Shares pursuant to this
Section 4.
(b) Incidental Registration. Each time the Company shall determine to
-----------------------
proceed with the actual preparation and filing of a registration (other than on
Form S-4 or Form S-8) statement under the Securities Act in connection with the
proposed offer and sale for money of any of its securities by it or any of its
security holders, the Company will give written notice of its determination to
all Shareholders. Upon the written request of a Shareholder given within 10
days after receipt of any such notice from the Company, the Company will, except
as herein provided, cause all such Shares, the Shareholders of which have so
requested registration thereof, to be included in such registration statement,
all to the extent requisite to permit the sale or other disposition by the
prospective seller or sellers of the Shares to be so registered; provided,
however, that (a) nothing herein shall prevent the Company from, at any time,
abandoning or delaying any such registration initiated by it, and (b) the rights
pursuant to this subsection 4(b) shall not apply to the Company's first filing
of a registration statement after the date hereof except as to a request to
register up to 50,000 Shares made by Subsequent Holders. If any registration
pursuant to this section shall be underwritten in whole or in part, the Company
may require that the Shares requested for inclusion pursuant to this section be
included in the underwriting on the same terms and conditions as the securities
otherwise being sold through the underwriters. If in the good faith judgment of
the managing underwriter of such public offering the inclusion of all of the
Shares originally covered by a request for registration would reduce the
-17-
number of shares to be offered by the Company or interfere with the successful
marketing of the shares of stock offered by the Company, the number of Shares
otherwise to be included in the underwritten public offering may be reduced pro
rata among the holders thereof requesting such registration. Those Shares which
are thus excluded from the underwritten public offering shall be withheld from
the market by the holders thereof for a period, not to exceed 180 days, which
the managing underwriter reasonably determines is necessary in order to effect
the underwritten public offering.
(c) Registration Procedures. If the Company is required by the provisions
-----------------------
of this Section 4 to register the Shares under the Securities Act, the Company
will:
(i) prepare and file with the Commission a registration statement
with respect to such securities, and use its best efforts to cause such
registration statement to become and remain effective for such period as
may be reasonably necessary to effect the sale of such securities for a
period of 12 months after the effective date of the registration statement,
or such shorter period that shall terminate (i) when all the Shares covered
by the registration statement have been sold or (ii) at any time when the
Shareholders are entitled to sell the Shares without registration under the
Securities Act pursuant to Rule 144 (or any similar rule or regulation);
(ii) use reasonable best efforts to prepare and file with the
Commission such amendments to the registration statement and supplements to
the prospectus contained therein as may be necessary;
(iii) furnish to the Shareholders and to the underwriters of the
securities being registered, if any, such reasonable number of copies of
the registration statement, preliminary prospectus, final prospectus and
such other documents as the Shareholders and such underwriters may
reasonably request in order to facilitate the public offering of such
securities;
(iv) use its best efforts to register or qualify the securities
covered by the registration statement under such state securities or blue
sky laws of such jurisdictions as the Shareholders may reasonably request
and do any other things which may be necessary and advisable to enable the
Shareholders to consummate the sale or other public disposition of the
Shares in such jurisdictions, except that the Company shall not for any
purpose be required to execute a general consent to service of process or
to qualify to do business as a foreign corporation in any jurisdiction
wherein it is not so qualified;
(v) notify each Shareholder or Shareholder's counsel, if any,
participating in such registration, promptly after it shall receive notice
thereof, of the time when the registration statement has become effective
or a
-18-
supplement to any prospectus forming a part of the registration statement
has been filed;
(vi) notify each Shareholder or Shareholder's counsel, if any,
promptly of any request by the Commission for the amending or supplementing
of the registration statement or prospectus or for additional information;
(vii) prepare and promptly file with the Commission and promptly
notify each Shareholder or Shareholder's counsel, if any, of the filing of
such amendment or supplement to the registration statement or prospectus as
may be necessary to correct any statements or omissions if, at the time
when a prospectus relating to such securities is required to be delivered
under the Securities Act, any event shall have occurred as the result of
which any such prospectus or any other prospectus as then in effect would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading;
(viii) advise each Shareholder or Shareholder's counsel, if any,
promptly after it shall receive notice or obtain knowledge thereof, of the
issuance of any stop order by the Commission suspending the effectiveness
of the registration statement or the initiation or threatening of any
proceeding for that purpose and promptly use its best efforts to prevent
the issuance of any stop order or to obtain its withdrawal if such stop
order should be issued;
(ix) use its best efforts to cause the Shares to continue to be
authorized for listing on the Nasdaq National Market; and
(x) prior to filing the registration statement, prospectus, or any
amendment or supplement thereto, furnish to each Shareholder or
Shareholder's counsel, if any, copies of such registration statement,
prospectus, amendment, or supplement which is proposed to be filed,
together with exhibits thereto by the foregoing.
(d) Expenses. With respect to the registration of Shares, the Company
--------
shall bear all costs and fees associated with the registration including,
without limitation, the following fees, costs and expenses: all registration,
filing and Nasdaq fees, printing expenses, fees and disbursements of Company
counsel and accountants, all internal Company expenses, and all legal fees and
disbursements and other expenses of complying with state securities or blue sky
laws of any jurisdictions in which the securities to be offered are to be
registered or qualified, except as provided herein below. Fees and
disbursements of counsel and accountants for each Shareholder, as well as
underwriting discounts and
-19-
commissions and transfer taxes for each Shareholder shall be borne by each
Shareholder.
(e) Indemnification.
---------------
(i) The Company will indemnify and hold harmless each Shareholder
from and against any and all loss, damage, liability, cost and expense to
which any Shareholder or any controlling person thereof may become subject
under the Securities Act or otherwise, insofar as such losses, damages,
liabilities, costs or expenses are caused by any untrue statement or
alleged untrue statement of any material fact contained in the registration
statement, any prospectus contained therein or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances in which they
were made, not misleading; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, damage,
liability, cost or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so
made in reliance on information furnished by such Shareholder; provided,
further, that the Company shall not be liable in any such case to the
extent that any such loss, damage, liability, cost or expense arises out of
or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission in the final prospectus, if such untrue
statement or alleged untrue statement or omission or alleged omission is
corrected in any amendment or supplement to the final prospectus and such
Shareholder or such Shareholder's agents thereafter fails to deliver such
final prospectus as so amended or supplemented prior to or concurrently
with the sale of the Shares covered by the registration statement to the
person asserting such loss, damage, liability, cost or expense after the
Company had furnished such Shareholder with a sufficient number of copies
of the final prospectus as so amended or supplemented in a manner and at a
time sufficient to permit delivery of the same by such Shareholder.
(ii) Each Shareholder will indemnify and hold harmless the Company
and any controlling person thereof from and against any and all loss,
damage, liability, cost or expense to which the Company or any controlling
person thereof may become subject under the Securities Act or otherwise,
insofar as such losses, damages, liabilities, costs or expenses are caused
by any untrue or alleged untrue statement of any material fact contained in
the registration statement, any prospectus contained therein or any
amendment or supplement thereto, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light
of the
-20-
circumstances in which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was so made in reliance on
and with information furnished by such Shareholder.
(iii) Promptly after receipt by an indemnified party pursuant to the
provisions of paragraph (i) or (ii) of this section of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party will, if a claim thereof is to
be made against the indemnifying party pursuant to the provisions of said
paragraph (i) or (ii), promptly notify the indemnifying party of the
commencement thereof; but the omission to so notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than hereunder. In case such action is brought against any
indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party shall have the right to
participate in, and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party; provided,
however, if the defendants in any action include both the indemnified party
and the indemnifying party and there is a conflict of interest which would
prevent counsel for the indemnifying party from also representing the
indemnified party, the indemnified party or parties shall have the right to
select separate counsel to participate in the defense of such action on
behalf of such indemnified party or parties. After notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party pursuant to the provisions of said paragraph (i) or (ii)
for any legal or other expense subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable costs of
investigation, unless (A) the indemnified party shall have employed counsel
in accordance with the proviso of the preceding sentence, (B) the
indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after the notice of the commencement of the action, or (C)
the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party.
(f) Sales Through Market Makers. Each Shareholder agrees that, for a
---------------------------
period of two years from the date hereof, such Shareholder will not sell any
Shares except through registered market makers in the Company's Common Stock on
the Nasdaq National Market; provided, however, that the terms of any such sale
shall not be any less favorable than provided to Summit's executive officers.
-21-
5. Rule 144. the Company shall comply with the requirements of Rule
--------
144(c) under the Securities Act, as such Rule may be amended from time to time
(or any similar rule or regulation hereafter adopted by the Commission),
regarding the availability of current public information to the extent required
to enable any Shareholder to sell Shares without registration under the
Securities Act pursuant to Rule 144 (or any similar rule or regulation). Upon
the request of any Shareholder, the Company will deliver to such Shareholder a
written statement as to whether it has complied with such requirement.
6. Amendments and Waivers. This Agreement may be amended or modified and
----------------------
the Company may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, only if the Company shall have obtained
the written consent to such amendment, modification, action or omission to act,
of the Shareholder or Shareholders of at least 75% of the Shares as of the date
such consent is given. Each Shareholder shall be bound by any consent authorized
by this Section 6, whether or not any Shares shall have been marked to indicate
such consent.
7. Nominees for Beneficial Owners. In the event that any Shares are held
------------------------------
by a nominee for the beneficial owner thereof, the beneficial owner thereof may,
at its election, be treated as the Shareholder for purposes of any request or
other action by the Shareholders pursuant to this Agreement. If the beneficial
owner of any Share so elects, the Company may require assurances reasonably
satisfactory to it of such owner's beneficial ownership of such Shares.
8. Notices. Any notice or communication required or permitted hereunder
-------
shall be in writing and either delivered personally, telegraphed or telecopied
or sent by overnight courier, or by certified or registered mail, postage
prepaid, and shall be deemed to be given, dated and received when so delivered
personally or by courier, telegraphed or telecopied, or, if mailed, five
business days after the date of mailing to the following address or telecopy
number, or to such other address or addresses as such person may subsequently
designate by notice given hereunder:
(a) if to the Company, to:
Summit Medical Systems, Inc.
Suite 100
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-22-
with a copy to:
▇▇▇▇▇▇ & Whitney P.L.L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
(b) if to the University, to:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Building
Duke South Hospital
Duke ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
Duke University
Office of University Counsel
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to any Shareholder other than the University, to such address
designated in the most recent Notice of Assignment relating to the assignment of
Shares to such Shareholder.
9. Company to Retain Copy. A copy of this Agreement, including all
----------------------
Exhibits hereto, shall be filed with the Company, and the Company shall make it
available to the Shareholders at all reasonable times during normal business
hours.
10. Entire Agreement. This Agreement (together with the Reorganization
----------------
Agreement and the New Warrants) represents the entire agreement and
understanding among the Company and the other parties to this Agreement in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties, or undertakings, other than those set forth or referred to
herein or in the Reorganization Agreement and the New Warrants, with respect to
the registration
-23-
rights granted by the Company with respect to the Shares. This Agreement, the
Reorganization Agreement and the New Warrants supersede all prior agreements and
understandings between the parties with respect to the subject matter of this
Agreement.
11. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the internal laws of the State of Minnesota (other than its
rules of conflicts of laws to the extent the application of the laws of another
jurisdiction would be required thereby).
12. Severability. If any provision of this Agreement or the application
------------
thereof to any person or circumstances is determined by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions
hereof, or the application of such provision to persons or circumstances other
than those as to which it has been held invalid or unenforceable, shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated thereby, so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner adverse to any
party. Upon such determination, the parties shall negotiate in good faith in an
effort to agree upon a suitable and equitable substitute provision to effect the
original intent of the parties.
13. Arbitration. Any controversy or claim arising out of or relating to
-----------
this Agreement or the formation, breach or interpretation hereof, will be
settled by arbitration before one arbitrator in accordance with the Commercial
Arbitration Rules of the American Arbitration Association in Minneapolis,
Minnesota. Judgment upon the award rendered by the arbitration may be entered
and enforced in the court with jurisdiction over the appropriate party. All
controversies not subject to arbitration or contesting any arbitration will be
litigated in the State of Minnesota, Hennepin County District Court or a federal
court in the State of Minnesota (and each of the parties hereto hereby consent
to the exclusive jurisdiction of such courts and waive any objections thereto).
14. Miscellaneous. The headings in this Agreement are for purposes of
-------------
reference only and shall not limit or otherwise affect the meaning of this
Agreement. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which, when taken
together, shall constitute one and the same instrument.
15. Transfer of Registration Rights. The rights contained in Section 4
-------------------------------
hereof to cause the Company to register the Shares may be assigned or otherwise
conveyed to a transferee or assignee of Shares who shall be considered a
"Subsequent Holder" for purposes of Section 4.
-24-
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
SUMMIT MEDICAL SYSTEMS, INC.
By ________________________________
Name:
Title:
DUKE UNIVERSITY
By ________________________________
Name:
Title:
_______________________________________________________________________
-25-
EXHIBIT C
EMPLOYMENT AGREEMENT
AGREEMENT, dated December 31, 1996 (the "Effective Date"), by and
between Summit Medical Systems, Inc., a Minnesota corporation ("Summit") and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D., an individual resident of the state of North Carolina
("Executive").
WHEREAS, Executive has heretofore been employed as an executive
officer of Cordillera, LLC, a Delaware limited liability corporation (the
"Company");
WHEREAS, Summit has agreed to acquire the Company pursuant to a
Reorganization Agreement of even date herewith (the "Reorganization Agreement")
by and among Summit, Company, ▇▇ ▇▇▇▇ LLC and Duke University, which provides
for the purchase by Summit of all other parties' member units, and options for
member units, in Company, and the wind-up and transfer of the Company's business
to Summit (the "Reorganization");
WHEREAS, the parties to the Reorganization Agreement have agreed that
execution of this Agreement is a condition of closing the Reorganization; and
WHEREAS, the Summit desires to retain the services of Executive
subsequent to the consummation of the Reorganization, and Executive desires to
be employed by the Summit, on the terms and subject to the conditions set forth
in this Agreement.
NOW, THEREFORE, in consideration of the respective covenants and
commitments of Summit and Executive set forth below, and as an inducement to
Summit to consummate the Reorganization, the Executive and Summit hereby agree
as follows:
1. Employment. Summit hereby employs Executive, and Executive
----------
accepts such employment and shall perform services for Summit, for the period
and upon the other terms and conditions set forth in this Agreement.
2. Term. Unless terminated at an earlier date in accordance with
----
Section 9 of this Agreement, the term of Executive's employment hereunder shall
commence on the Effective Date and shall extend for a continuous period until
four (4) years from the date thereof. Thereafter, the terms of this Agreement
shall be extended for successive one year periods unless Summit or Executive
objects to such extension by written notice to the other party at least ninety
(90) days prior to the expiration of such initial term or any extension thereof.
--------------------------------------------------------------------------------
-26-
3. Position and Duties.
-------------------
3.1 Service with Summit. During the term of this
-------------------
Agreement, Executive agrees to serve as Vice-President and Chief Scientific
Officer of Summit and to perform such employment duties, consistent with such
position, as Summit shall reasonably assign to him from time to time.
3.2 Performance of Duties. Executive agrees to serve
---------------------
Summit faithfully and to the best of his ability and, except as provided in
Section 3.3 below, to devote his full time, attention and efforts to the
business and affairs of Summit during the term of his employment. Executive
hereby confirms that he is under no contractual commitments inconsistent with
his obligations set forth in this Agreement and that, during the term of his
employment, except as provided in Section 3.3 below, he shall not render or
perform any services for any other corporation, firm, entity or person which are
inconsistent with the provisions of this Agreement or which would otherwise
impair his ability to perform his duties hereunder.
3.3 Other Employment. Summit acknowledges and agrees that
----------------
Executive shall continue to be employed at Duke University or a practice group
affiliated therewith for one (1) day per week.
4. Compensation.
------------
4.1 Base Salary. As base compensation for all services to
-----------
be rendered by Executive under this Agreement during the term of this Agreement,
Summit shall pay to Executive an annual salary of One Hundred Fifty Thousand
Dollars ($ 150,000) in accordance with normal payroll procedures and policies.
4.2 Incentive Compensation. Executive shall be entitled to
----------------------
participate in such bonus or incentive compensation plans as may be established
by Summit's Board of Directors from time to time for Summit's executive level
employees.
4.3 Option. On the Closing Date (as defined in the
------
Reorganization Agreement), Summit shall grant to Executive a nonstatutory stock
option (the, "Option") to subscribe for and purchase common stock of Summit up
to the aggregate amount of 300,000 shares, subject to the terms and conditions
of the Nonstatutory Stock Option Agreement between Summit and the Executive of
even date herewith.
4.4 Participation in Benefit Plans. During the term of
------------------------------
Executive's employment by Summit, Executive shall be entitled to receive such
life, disability, medical, dental and other insurance coverage as are being
provided by
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Summit to its executive level employees from time to time to the extent that
Executive's age, position or other factors qualify him for such fringe benefits.
Nothing in this Agreement is intended to or shall in any way restrict Summit's
right to amend, modify or terminate any of its benefit plans during the term of
Executive's employment.
4.5 Expenses. In accordance with Summit's normal policies
--------
for expense verification, Summit shall pay or reimburse Executive for all
reasonable and necessary out-of-pocket expenses incurred by him in the
performance of his duties under this Agreement, subject to the presentment of
appropriate documentation in accordance with Summit's normal policy for expense
verification.
4.6 Signing Bonus. Summit agrees to pay Executive a signing
-------------
bonus on January 2, 1997, in the amount of $129,371.
5. Confidential Information. Except as permitted or directed
------------------------
by Summit, during the term of this Agreement or at any time thereafter,
Executive shall not divulge, furnish or make accessible to anyone or use in any
way (other than in the ordinary course of the business of Summit) any
confidential or secret knowledge or information of Company, Summit or Summit
Affiliates which Executive has acquired or become acquainted with prior to the
term of this Agreement while working for the Company, or shall acquire or become
acquainted with during the term of this Agreement in the course of Executive'
employment, whether or not during regular working hours, in each case, whether
developed by himself or by others, concerning any trade secrets, confidential or
secret designs, processes, formulae, plans, algorithms, software, devices or
material (whether or not patented or patentable) directly or indirectly useful
in any aspect of the business of Summit or of any Summit Affiliate, any customer
or supplier lists of Summit or of any Summit Affiliate, any confidential or
secret development or research work of Summit or of any Summit Affiliate, or any
other confidential information or secret aspects of the business of Summit or
any Summit Affiliate. As used herein, "Summit Affiliate" shall mean any entity
that controls or is controlled by Summit, with "control" meaning the ownership
of 50% or more of the voting securities in such entity. Executive acknowledges
that the above-described knowledge or information constitutes a unique and
valuable asset of Summit and of the respective Summit Affiliates and represents
a substantial investment of time and expense by Summit and the Summit Affiliates
and that any disclosure or other use of such knowledge or information other than
for the sole benefit of Summit or of any Summit Affiliate would be wrongful and
would cause irreparable harm to Summit or such Summit Affiliate. Both during and
after the term of this Agreement, Executive shall not intentionally act in any
manner that is reasonably likely to reduce the value of such knowledge or
information to Summit or any Summit Affiliate. The foregoing obligations of
confidentiality shall not apply to any
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knowledge or information that (a) is at the time acquired by Executive, or
thereafter becomes, a part of the public domain other than through the act or
omission of Executive, (b) is provided by Summit or any Summit Affiliate to a
third party without any obligation of confidentiality, or (c) is required by law
to be disclosed.
6. Ventures. If, during the term of Executive's employment
--------
pursuant to this Agreement, Executive is engaged in or associated with the
planning or implementing of any project, program or venture involving Summit and
a third party or parties, all rights in such project, program or venture shall
belong to Summit. Except as formally approved by Summit's Board of Directors,
Executive shall not be entitled to any interest in such project, program or
venture or to any commission, finder's fee or other compensation in connection
therewith other than the salary to be paid to Executive as provided in this
Agreement.
7. Intellectual Property.
---------------------
7.1 Assignment. Executive hereby assigns to Summit, to the
----------
extent such rights are not already owned by the Company or Summit, (a) all
tangible embodiments of and intellectual property rights in developments made or
conceived by Executive in the course of his employment solely or in
collaboration with others during his employment at Company, and (b) all
intellectual property rights in developments made or conceived by Executive in
the course of his employment solely or in collaboration with others during the
term of his employment by Summit. Executive further agrees that all
copyrightable works made by Executive for Summit shall be considered "works made
for hire" for the benefit of Summit and, to the extent not qualifying as "works
made for hire," all rights in such copyrightable works are hereby assigned to
Summit. Executive shall disclose promptly and fully to Summit all developments
owned by Summit under this Agreement. Executive warrants that his rights in
developments assigned to Summit by this Agreement have not been previously
licensed, pledged, assigned or encumbered by Executive other than as may have
been assigned to the Company.
7.2 Records. Executive shall keep complete and accurate
-------
accounts, notes, data and records of all developments in the manner and form
reasonably requested by Summit. Such accounts, notes, data and records shall be
the property of Summit, and, upon request by Summit, Executive shall promptly
surrender the same to it or, if not previously surrendered upon its request or
otherwise, Executive shall surrender the same, and all copies thereof, to Summit
upon the conclusion of his employment.
8. Non-competition and Non-solicitation Covenants.
----------------------------------------------
8.1 Agreement Not to Compete. Executive agrees that during
------------------------
the term of his employment by Summit and for eighteen (18) months thereafter
(whether termination of employment is with or without cause, or whether it is
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occasioned by Executive or Summit)(the "Restricted Period"), he shall not,
directly or indirectly, engage in competition with Summit or any Summit
Affiliate in any manner or capacity (e.g. as an adviser, principal, agent,
partner, officer, director, stockholder employee, member of an association or
otherwise) in any phase of the business which Summit or any Summit Affiliate is
conducting during the term of this Agreement or any extensions thereof.
Notwithstanding the foregoing, Summit acknowledges and agrees that none of the
following shall constitute a breach of this Section 8.1: (a) Executive's
employment at Duke University, in any capacity; (b) Executive's practice of
medicine, in any capacity; or (c) Executive's performance of services, in any
capacity, for any healthcare system, managed care system, insurer, or other
entity engaged in the provision or management of healthcare services, so long as
such entity does not market, license or sell, or develop with a view toward
marketing, licensing or selling, to any third party, other than its own members
or constituents, products or services competitive with those marketed, licensed
or sold by Summit or any Summit Affiliates.
8.2 Geographic Extent of Covenant. The obligations of
-----------------------------
Executive under Section 8.1 shall apply to all markets, domestic or foreign, in
which Summit or any Summit Affiliate has engaged in business during the term of
this Agreement or any extensions thereof, through production, promotional sales
or marketing activities or has otherwise established substantial goodwill,
business reputation or any customer or supplier relationships.
8.3 Non-solicitation; Non-hire and Non-interference. During the
-----------------------------------------------
term of this Agreement and for the Restricted Period, Executive shall not (a)
induce or attempt to induce any employee of Summit or of any Summit Affiliate to
leave the employ of Summit or such Summit Affiliate, respectively, or in any way
interfere adversely with the relationship between any such employee and Summit
or such Summit Affiliate, (b) induce or attempt to induce any employee of Summit
or of any Summit Affiliate to work for, render services or provide advice to or
supply confidential business information or trade secrets of Summit or any
Summit Affiliate to any third person, firm or corporation, (c) employ, or
otherwise pay for services rendered by, any employee of Summit or any Summit
Affiliate in any business enterprise with which Executive may be associated,
connected or affiliated, or (d) induce or attempt to induce any customer,
supplier, licensee, licensor or other business relation of Summit or of any
Summit Affiliate to cease doing business with the Company or such Summit
Affiliate, respectively, or in any way interfere with the relationship between
any such customer, supplier, licensee, licensor or other business relation and
the Summit or such Summit Affiliate.
8.4 Indirect Competition or Solicitation. Executive agrees
------------------------------------
that, during the term of this Agreement and the period covered by Sections 8.1
or 8.3 hereof, he shall not, directly or indirectly, assist or encourage any
other person in carrying out, directly or indirectly, any activity that would be
prohibited by the provisions of Sections 8.1 or 8.3 if such activity were
carried out by Executive, either
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directly or indirectly; and, in particular, Executive agrees that he shall not,
directly or indirectly, induce any employee of Summit or of any Summit Affiliate
to carry out, directly or indirectly, any such activity.
9. Termination.
-----------
9.1 Grounds for Termination. This Agreement shall terminate
-----------------------
prior to the expiration of the initial term set forth in Section 2 or any
extension thereof in the event that at any time during such initial term or any
extension thereof:
(a) Executive dies; or
(b) Executive becomes disabled (as defined below), so that he
cannot perform the essential functions of his position with
reasonable accommodation; or
(c) The Board of Directors of Summit elects to terminate this
Agreement for "cause" and notifies Executive in writing of
such election; or
(d) The Board of Directors of Summit elects to terminate this
Agreement without "cause" and notifies Executive in writing
of such election; or
(e) Executive elects to terminate this Agreement and notifies
Summit in writing of such election.
Any such termination shall be effective immediately.
9.2 "Cause" Defined.
---------------
(a) Executive has breached in any material respect the provision
of Sections 5, 6, 7 or 8 of this Agreement in any material
respect and has failed to cure such breach within thirty
(30) days after written notice thereof to Executive; or
(b) Executive has engaged in willful and material misconduct,
including willful and material failure to perform
Executive's duties as an officer or employee of Summit and
has failed to "cure" such default within thirty (30) days
after receipt of written notice of default from the
President of Summit; or
_______________________________________________________________________________
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(c) Executive has committed material fraud, misappropriation or
embezzlement in connection with Summit's business; or
(d) Executive has been convicted or has pleaded nolo contendere
to criminal misconduct (except for parking violations and
occasional minor traffic violations); or
(e) Executive's use of narcotics, liquor or illicit drug has a
materially detrimental effect on the performance of his
employment responsibilities, as reasonably determined by
Summit's Board of Directors.
In the event that Summit terminates Executive's employment for "cause"
pursuant to subsection 9.1(c) and Executive objects in writing to the Board's
determination that there was proper "cause" for such termination within thirty
(30) days after Executive is notified of such termination, the matter shall be
resolved by arbitration in accordance with the provisions of Section 10.1. If
Executive fails to object to any such determination of "cause" in writing within
such thirty (30) day period, he shall be deemed to have waived his right to
object to that determination. If such arbitration determines that there was not
proper "cause" for termination, such termination shall be deemed to be a
termination pursuant to Subsection 9.1(d) and Executive's sole remedy shall be
to receive the wage continuation benefits contemplated by Section 9.6.
9.3 Effect of Termination Notwithstanding any termination
---------------------
of this Agreement, the parties hereto shall remain bound by the provisions of
this Agreement which specifically relate to periods, activities or obligations
upon, or subsequent to, the termination of Executive's employment.
9.4 "Disability" Defined. For the purposes of this
--------------------
Agreement, the term "disability" shall mean the physical or mental illness or
disability of the Executive, which renders him unable to perform his duties
hereunder for a period of at least two consecutive months or for shorter periods
totaling more than ninety (90) days during any 365 day period.
9.5 Surrender of Records and Property. Upon termination of
---------------------------------
his employment with Summit, Executive shall deliver promptly to Summit all
records, manuals, books, blank forms, documents, letters, memoranda, notes,
notebooks, software, algorithms, reports, data, tables, calculations and all
other information, or copies thereof, which are the property of Summit or any
Summit Affiliate, or which relate in any way to the business, products,
practices or techniques of Summit or any Summit Affiliate, and all other
property, trade secrets and confidential information of Summit or any Summit
Affiliate, including, but not limited to, all documents which in whole or in
part contain any trade secrets or
-32-
confidential information of Summit or any Summit Affiliate, which in any of
these cases are in his possession or under his control.
9.6 Wage Continuation. If Executive's employment by Summit
-----------------
is terminated pursuant to Subsection 9.1(d), Summit shall continue to pay to
Executive his base salary and shall continue to provide health insurance
benefits for Executive for eighteen (18) months following termination of this
Agreement. If this Agreement is terminated pursuant to subsection 9.1(a),
9.1(b), 9.1(c) or 9.1(e), Executive's right to base salary and benefits shall
immediately terminate, except as may otherwise be required by applicable law.
10. Settlement of Disputes.
----------------------
10.1 Arbitration. Except as provided in Section 10.2, any
-----------
claims or disputes of any nature between Summit and Executive arising from or
related to the performance, breach, termination, expiration, application, or
meaning of this Agreement or any matter relating to Executive's employment and
the termination of that employment by Summit shall be resolved exclusively by
arbitration in Durham, North Carolina, in accordance with the applicable rules
then obtaining of the American Arbitration Association. The fees of the
arbitrator(s), reasonable attorneys' fees and other costs incurred by Executive
and Summit in connection with such arbitration shall be recovered by the
prevailing party in such arbitration.
The decision of the arbitrator(s) shall be final and binding upon
both parties. Judgment of the award rendered by the arbitrator(s) may be entered
in any court having jurisdiction thereof. In the event of submission of any
dispute to arbitration, each party shall, not later than thirty (30) days prior
to the date set for hearing, provide to the other party and to the arbitrator(s)
a copy of all exhibits upon which the party intends to rely at the hearing and a
list of all persons each party intends to call at the hearing.
10.2 Resolution of Certain Claims - Injunctive Relief.
------------------------------------------------
Section 10.1 shall have no application to claims by Summit asserting a violation
of Sections 5, 6, 7, 8 or 9.5 or seeking to enforce, by injunction or otherwise,
the terms of Sections 5, 6, 7, 8 or 9.5. Such claims may be maintained by
Summit in a lawsuit subject to the terms of Section 10.3. Executive agrees
that, in addition to, but not to the exclusion of, any other available remedy,
Summit shall have the right to enforce the provisions of Sections 5, 6, 7, 8 and
9.5 by applying for and obtaining temporary and permanent restraining orders or
injunctions from a court of competent jurisdiction subject to filing a bond
therefor, and the prevailing party shall be entitled to recover from the other
party its reasonable attorneys' fees and costs in any action related to
enforcement of the provisions of Sections 5, 6, 7, 8 and 9.5.
10.3 Venue. Any action or proceeding arising under Section
-----
10.2 of this Agreement shall be litigated only in the federal or state courts
located in
-33-
the State of Minnesota, County of Hennepin. Executive agrees such a venue is
reasonable and convenient and waives any right the Executive may have to
transfer or change the venue of any litigation brought against Executive by
Summit pursuant to such Section 10.2.
10.4 Severability. To the extent any provision of this
------------
Agreement shall be invalid or unenforceable, it shall be considered deleted
herefrom and the remainder of such provision and of this Agreement shall be
unaffected and shall continue in full force and effect.
11. Miscellaneous.
-------------
11.1 Governing Law. This Agreement is made under and shall
-------------
be governed by and construed in accordance with the laws of the State of
Minnesota, excluding its choice of law rules.
11.2 Prior Agreements. This Agreement (including the
----------------
Options and Stock Option Agreement) contains the entire agreement of the parties
relating to the employment of Executive by Summit and the ancillary matters
discussed herein and supersedes all prior agreements and understandings with
respect to such matters, whether oral or written, and the parties hereto have
made no agreements, representations or warranties relating to such employment or
ancillary matters which are not set forth herein.
11.3 Withholding Taxes. Summit may withhold from any
-----------------
benefits payable under this Agreement all federal, state, city or other taxes as
shall be required pursuant to any law or governmental regulation or ruling.
11.4 Amendments. No amendment or modification of this
----------
Agreement shall be deemed effective unless made in writing and signed by the
both Executive and Summit.
11.5 No Waiver. No term or condition of this Agreement
---------
shall be deemed to have been waived, nor shall there be any estoppel to enforce
any provisions of this Agreement, except by a statement in writing signed by the
party against whom enforcement of the waiver or estoppel is sought. Any written
waiver shall not be deemed a continuing waiver unless specifically stated, shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
11.6 Assignment. The rights and duties of Executive under
----------
this Agreement are personal and may not be assigned, in whole or in part,
without the written consent of Summit, in its sole discretion. Subject to the
foregoing, this
-34-
Agreement shall be binding upon and inure to the benefit of, and be enforceable
against, the parties hereto and any permitted assignees or successors.
11.7 Counterparts. This Agreement may be simultaneously
------------
executed in any number of counterparts, and such counterparts executed and
delivered, each as an original, shall constitute but one and the same
instrument.
11.8 Captions and Headings. The captions and paragraph
---------------------
headings used in this Agreement are for convenience of reference only, and shall
not affect the construction or interpretation of this Agreement or any of the
provisions hereof.
11.9 Notices. All notices and other communications
-------
hereunder shall be in writing and shall be deemed given if delivered personally
or by facsimile transmission (receipt verified), telexed, or sent by express
courier service, to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice; provided, that notices
of a change or address shall be effective only upon receipt thereof):
If to Summit, addressed to:
Summit Medical Systems, Inc.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Chief Financial Officer
If to ▇▇▇▇▇▇, addressed to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax:(▇▇▇)▇▇▇-▇▇▇▇
-
IN WITNESS WHEREOF, Executive and Summit have executed this
Agreement as of the Effective Date.
SUMMIT MEDICAL SYSTEMS, INC.
___________________________ By_________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
Name_______________________
Title______________________
_______________________________________________________________
-35-
EXHIBIT D
SUMMIT MEDICAL SYSTEMS INC.
NONSTATUTORY STOCK OPTION AGREEMENT
This Nonstatutory Stock Option Agreement is made this 31st day of December
1996 (the "Effective Date"), by and between Summit Medical Systems, Inc. (the
"Company") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D. (the "Employee").
WHEREAS, the Company and Employee desire to enter into an Employment
Agreement of even date herewith (the "Employment Agreement"), pursuant to which
Employee would serve as Vice-President and Chief Scientific Officer of the
Company; and
WHEREAS, an option to purchase shares of the Company's common stock is an
essential inducement for Employee to enter into the Employment Agreement.
NOW THEREFORE, in consideration of the premises and of the mutual covenants
herein contained, the parties hereto agree as follows:
1. Grant of Option. The Company hereby grants to the Employee an option (the
---------------
"Option") to purchase 300,000 shares of the Company's Common Stock on the terms
and conditions set forth herein.
2. Purchase Price. The purchase price of the Company's Common Stock shall be
--------------
$7.50 per share (subject to adjustment as noted below).
3. Nonstatutory Option. The Option is not intended to be an incentive stock
-------------------
option within the meaning of Section 422 of the Internal Revenue Code of 1986,
as amended.
4. Exercise. The holder hereof may exercise this Option for up to 300,000
--------
shares of the Company's Common Stock in cumulative installments, each
exercisable in whole or in part, at any time from the date first exercisable up
to ten (10) years from the Effective Date (the "Expiration Date"), as follows:
Number of shares as to
Date First Exercisable which Option is exercisable
---------------------- ---------------------------
Effective Date 45,000
December 31, 1997 85,000
December 31, 1998 85,000
________________________________________________________________________________
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December 31, 1999 85,000
The Option may be exercised only while the Employee is actively employed by the
Company, or alternatively as provided in Section 6, dealing with termination of
employment.
5. Transferability. This Option is not transferable except by will or the laws
---------------
of descent and distribution, or with the prior written consent of the Company.
6. Termination of Employment. The holder hereof shall have the right to
-------------------------
exercise the Option only to the extent of the full number of shares of the
Company's Common Stock the Employee was entitled to purchase under the Option on
the effective date of termination of the Employment Agreement; provided,
however, that if Employee's employment with the Company terminates due to
Employee's death, disablement or without cause in accordance with Sections
9.1(a), (b) or (d), respectively, of the Employment Agreement, the Option shall
be exercisable as to all 300,000 shares of the Company's Common Stock
immediately upon the effective date of such termination, notwithstanding Section
4 above. In the event of termination of Employee's employment with the Company
for any and all reasons, the Option may be exercised by the holder hereof until
the Expiration Date, subject to the extent provided in this Section 6.
7. Service. This Agreement shall in no way restrict the right of the Company or
-------
Summit Affiliate to terminate Employee's employment at any time.
8. Method of Exercise. The Option may be exercised, subject to the terms and
------------------
conditions of this Agreement by written notice to the Company. The notice shall
be in the form attached to this Agreement and will be accompanied by payment by
check (bank check, certified check or personal check) or by delivery to the
Company for cancellation shares of Common Stock having a Market Price (defined
in Section 11(f) below) equal to the full purchase price of the shares to be
issued on the date the notice of exercise is received by the Company, and in the
event of an exercise by an executor or administrator or other person authorized
under Section 5, appropriate proof of the right of such person to exercise the
Option. The Company will issue and deliver certificates representing the number
of shares purchased under the Option, registered in the name of the holder
hereof as soon as practicable after receipt of the notice.
9. Withholding. In any case where withholding is required or advisable under
-----------
federal, state or local law in connection with any exercise by the Employee
hereunder, Employee may elect to (i) authorize the Company to withhold
appropriate amounts from amounts payable to the Employee, (ii) remit to the
Company an amount equal to such appropriate withholding, or (iii) have the
-37-
Company withhold a portion of the shares of Common Stock otherwise to be
delivered upon exercise of such option having a Market Price equal to the amount
of such appropriate withholding.
10. Registration. Company shall use commercially reasonable efforts to register
------------
the shares of Common Stock that Employee obtains pursuant to an exercise of the
Option on a registration statement on Form S-8 (or any successor form) and the
Company shall use commercially reasonable efforts to maintain the effectiveness
of such registration statement for so long as any portion of the Option remains
exercisable by Employee hereunder.
11. Anti-Dilution Adjustments. The above provisions are, however, subject to
-------------------------
the following:
(a) The purchase price set forth in Section 2 above shall, from and after the
date of issuance of this Option, be subject to adjustment from time to time as
hereinafter provided. Upon each adjustment of the purchase price, the holder
hereof shall thereafter be entitled to purchase, at the purchase price resulting
from such adjustment, the number of shares obtained by multiplying the purchase
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 purchase 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, including any dividend declared to
effect a subdivision of the outstanding shares of Common Stock, the purchase
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 purchase 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 hereof shall thereafter have the right to purchase and
receive, upon the basis and upon the terms and conditions specified in this
Option and in lieu of the shares of Common Stock of the Company immediately
theretofore purchasable and receivable upon the exercise of the rights
represented hereby, such shares of stock, securities or assets as may be issued
or payable with respect to or in exchange for a number of outstanding
-38-
shares of such Common Stock equal to the number of shares of such stock
immediately theretofore purchasable and receivable upon the exercise of the
rights represented hereby had such reorganization, reclassification,
consolidation, merger or sale not taken place, and in any such case appropriate
provision shall be made with respect to the rights and interests of the holder
hereof to the end that the provisions hereof (including without limitation
provisions for adjustments of the purchase price and of the number of shares
purchasable upon the exercise of this Option) shall thereafter be applicable, as
nearly as may be, in relation to any shares of stock, securities or assets
thereafter deliverable upon the exercise 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 registered holder hereof 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
as, in accordance with the foregoing provisions, such holder may be entitled to
purchase.
(d) Upon any adjustment of the purchase price, then and in each such case the
Company shall give written notice thereof, by first-class mail, postage prepaid,
addressed to the registered holder of this Option at the address of such holder
as shown on the books of the Company, which notice shall state the purchase
price resulting from such adjustment and the increase or decrease, if any, in
the number of shares purchasable 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.
(e) If any event occurs as to which the other provisions of this Section 11 are
not strictly applicable or if strictly applicable would not fairly protect the
purchase rights of the holder of this Option or of Common Stock in accordance
with the essential intent and principles of such provisions, then this Option
shall be adjusted in the application of such provisions, in accordance with such
essential intent and principles, so as to protect such purchase rights as
aforesaid.
(f) No fractional shares of Common Stock shall be issued upon the exercise of
this Option, but, instead of any fraction of a share which would otherwise be
issuable, the Company shall pay a cash adjustment (which may be effected as a
reduction of the amount to be paid by the holder hereof upon such exercise) in
respect of such fraction in an amount equal to the same fraction of the Market
Price per share of Common Stock on the date of the written notice of exercise
required by Section 8 above. "Market Price" for purposes of this Section 11(f),
Sections 8 and 9 hereof, and for the purpose of determining the option purchase
price shall mean, if the Common Stock is traded on a securities exchange or on
the Nasdaq National Market, the closing price of the Common Stock on such
exchange or the Nasdaq National
-39-
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 5
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 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 15 days of the date as
of which the determination is to be made.
12. Common Stock. As used herein, the term "Common Stock" shall mean and
-------------
include the Company's presently authorized Common Stock and shall also include
any capital stock of any class of the Company hereafter authorized which 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 of assets
upon the voluntary or involuntary liquidation, dissolution or winding up of the
Company; provided that the shares purchasable pursuant to this Option shall
include shares designated as Common Stock of the Company on the date of original
issue of this Option or, in the case of any reclassification of the outstanding
shares thereof, the stock, securities or assets provided for in Section 11(c)
above.
13. No Voting Rights. This Option shall not entitle the holder hereof to any
----------------
voting rights or other rights as a shareholder of the Company.
14. Optional Conversion.
-------------------
(a) In addition to and without limiting the rights of the holder of this Option
under the terms of this Option, such holder shall have the right (the
"Conversion Right") to convert this Option or any portion thereof into shares of
Common Stock as provided in this Section 14 at any time from and after the
Effective Date and to and including the Expiration Date, subject to the
restrictions set forth in Section 4. Upon exercise of the Conversion Right with
respect to a particular number of shares subject to this Option (the "Converted
Option Shares"), the Company shall deliver to the holder of this Option, without
payment by the holder of any exercise price or any cash or other consideration,
that number of shares of Common Stock equal to the quotient obtained by dividing
the Net Value (as hereinafter defined) of the Converted Option Shares by the
Market Price of a single share of Common Stock, determined in each case as of
the close of business on the Conversion Date (as hereinafter defined). The "Net
Value" of the Converted Option Shares shall be
-40-
determined by subtracting the aggregate option purchase price of the Converted
Option Shares from the Market Price of the Converted Option Shares.
Notwithstanding anything in this Section 14 to the contrary, the Conversion
Right cannot be exercised with respect to a number of Converted Option Shares
having a Net Value below $100. No fractional shares shall be issuable upon
exercise of the Conversion Right, and if the number of shares to be issued in
accordance with the foregoing formula is other than a whole number, the Company
shall pay to the holder of this Option an amount in cash equal to the fair
market value of the resulting fractional share.
(b) The Conversion Right may be exercised by the holder of this Option by the
surrender of this Option at the principal office of the Company together with a
written statement specifying that the holder thereby intends to exercise the
Conversion Right and indicating the number of shares subject to this Option
which are being surrendered (referred to in paragraph (a) above as the Converted
Option Shares) in exercise of the Conversion Right. Such conversion shall be
effective upon receipt by the Company of this Option together with the aforesaid
written statement, or on such later date as is specified therein (the
"Conversion Date"), but not later than the Expiration Date. Certificates for
the shares of Common Stock issuable upon exercise of the Conversion Right,
together with a check in payment of any fractional share and, in the case of a
partial exercise, a new option evidencing the shares remaining subject to this
Option, shall be issued as of the Conversion Date and shall be delivered to the
holder of this Option within 7 days following the Conversion Date.
15. Governing Law. All questions concerning this Option will be governed and
-------------
interpreted and enforced in accordance with the internal law of the State of
Minnesota without regard for principles of conflict of law.
SUMMIT MEDICAL SYSTEMS, INC.
ACCEPTED: By____________________________
Its___________________________
_________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
________________________________________________________________________________
-41-
SUMMIT MEDICAL SYSTEMS, INC.
----------------------------
NOTICE OF EXERCISE OF STOCK OPTION
----------------------------------
To: Board of Directors
SUMMIT MEDICAL SYSTEMS, INC.
I hereby exercise my Option dated
__________ to purchase _____ shares of $.01 par value common stock of the
Company at the option exercise price of $__________ per share. Enclosed is a
certified or cashier's check in the total amount of $__________, or payment in
such other form as the Company has specified.
I request that my shares be issued in
my name as follows:
_______________________________________
(Print your name in the form in which you wish to
have the shares registered)
___________________________________
(Social Security Number)
___________________________________
(Street and Number)
___________________________________
(City) (State) (Zip Code)
Dated: __________, 19__.
Signature:__________________________
_______________________________________________________________________________
-42-
EXHIBIT E
CONSULTING AGREEMENT
CONSULTING AGREEMENT is made and entered into as of the 31st day of
December, 1996 (the "Effective Date"), by and between Summit Medical Systems,
Inc., a Minnesota corporation ("Summit"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D., an
individual resident of the State of North Carolina (the "Consultant").
WHEREAS, Consultant has heretofore been retained as a consultant to
Cordillera, LLC, a Delaware limited liability corporation (the "Company");
WHEREAS, Summit has agreed to acquire the Company pursuant to a
Reorganization Agreement of even date herewith (the "Reorganization Agreement")
by and among Summit, Company, ▇▇ ▇▇▇▇ LLC and Duke University, which provides
for the purchase by Summit of all other parties' member units, and options for
member units, in Company, and the wind-up and transfer of the Company's business
to Summit (the "Reorganization");
WHEREAS, the parties to the Reorganization Agreement have agreed that
execution of this Agreement is a condition of closing the Reorganization; and
WHEREAS, Summit desires to retain the services of Consultant
subsequent to the consummation of the Reorganization, and Consultant desires to
be so retained by Summit, on the terms and subject to the conditions set forth
in this Agreement.
NOW, THEREFORE, in consideration of the respective covenants and
commitments of Summit and Consultant set forth below, and as an inducement to
Summit to consummate the Reorganization, Summit and Consultant hereby agree as
follows:
1. Consulting. Summit hereby retains the consulting services of
----------
Consultant, and Consultant shall perform such consulting services for Summit,
for the period and upon the other terms and conditions set forth in this
Agreement.
2. Term. Unless terminated at an earlier date in accordance with
----
Section 8 of this Agreement, Consultant's services shall be retained hereunder
for a continuous period of four (4) years beginning on the Effective Date.
Thereafter, the terms of this Agreement shall be extended for successive one
year periods unless Summit or Consultant objects to such extension by written
notice to the other party at least ninety (90) days prior to the expiration of
such initial term or any extension thereof.
_______________________________________________________________________________
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3. Position and Duties.
-------------------
3.1 Service with Summit. During the term of this Agreement,
-------------------
Consultant agrees to perform such duties and projects on behalf of Summit as the
parties shall mutually agree, provided that Consultant shall be available for
such duties and project for at least four (4) hours of service in each month of
this Agreement.
3.2 Performance of Duties. With respect to those duties and
---------------------
projects of Consultant hereunder, Consultant agrees to serve Summit faithfully
and to the best of his ability. Consultant hereby confirms that he is under no
contractual commitments inconsistent with his obligations set forth in this
Agreement and that, during the term hereof, he shall not enter into contractual
commitments that are materially inconsistent with the provisions of this
Agreement or which would otherwise materially impair his ability to perform his
duties hereunder.
3.3 Location. Consultant shall perform services hereunder
--------
primarily at Summit's offices in Raleigh, North Carolina, but he may, at
Summit's expense, also render services at such other locations as may be
specified by Summit and agreed to by Consultant.
4. Compensation.
------------
4.1 Consulting Fee. As compensation in full for Con sultant's
--------------
services hereunder, Summit shall pay to Consultant a consulting fee at the rate
of Twelve Hundred Fifty Dollars ($1,250.00) per month. The consulting fee shall
be payable to Consultant in arrears at the end of each calendar month during the
term of this Agreement, and a prorated portion of such fee shall be payable upon
termination of this Agreement if such termination occurs other than at the end
of a month.
4.2 Option. On the Closing Date (as defined in the
------
Reorganization Agreement), Summit shall grant to Consultant a non-qualified
stock option (the "Option") to subscribe for and purchase common stock of
Summit, up to the aggregate amount of 150,000 shares, subject to the terms and
conditions of the Nonstatutory Stock Option Agreement between the Summit and
Consultant of even date herewith.
4.3 Taxes. Consultant shall be solely responsible for any
-----
income or social security taxes due upon any payments or the Options received
under this Agreement, and hereby indemnifies and holds Summit harmless from any
charge, liability or penalty due to or arising out of any failure by Consultant
to pay such
-44-
taxes. Consultant acknowledges Summit may issue a Form 1099 as to any payments
or Options received under this Agreement and report the same to the Internal
Revenue Service.
4.4 Signing Bonus. Summit shall pay to Consultant a signing
-------------
bonus on January 2, 1997, in the amount of Fifty Nine Thousand Six Hundred and
Eighty Five Dollars ($59,685.00).
5. Expenses. Consultant shall be reimbursed by Summit in accordance
--------
with the policies and procedures that are established from time to time by
Summit for all reasonable and necessary out-of-pocket expenses that are incurred
by Consultant in performing his duties under this Agreement, including, without
limitation, reasonable travel expenses incurred by Consultant in rendering
services outside of the metropolitan Raleigh, North Carolina area.
6. Confidential Information. Except as permitted or directed by
------------------------
Summit, during the term of this Agreement or at any time thereafter, Consultant
shall not divulge, furnish or make accessible to anyone or use in any way (other
than in performing his duties hereunder) any confidential or secret knowledge or
information of the Company, Summit or of any Summit Affiliate which Consultant
has acquired or become acquainted with prior to the term of this Agreement while
being engaged as a consultant for the Company, or shall acquire or become
acquainted with during the term of this Agreement in the course of performing
Consultant's duties hereunder, whether or not during regular working hours, in
each case, whether developed by himself or by others, concerning any trade
secrets, confidential or secret designs, processes, formulae, plans, algorithms,
software, devices or material (whether or not patented or patentable) directly
or indirectly useful in any aspect of the business of Summit or of any Summit
Affiliate, any customer or supplier lists of Summit or of any Summit Affiliate,
any confidential or secret development or research work of Summit or of any
Summit Affiliate, or any other confidential information or secret aspects of the
business of Summit or any Summit Affiliate. As used herein, "Summit Affiliate"
shall mean any entity that controls or is controlled by Summit, with "control"
meaning the ownership of 50% or more of the voting securities in such entity.
Consultant acknowledges that the above-described knowledge or information
constitutes a unique and valuable asset of Summit and of the respective Summit
Affiliates and represents a substantial investment of time and expense by Summit
and Summit Affiliates and that any disclosure or other use of such knowledge or
information other than for the sole benefit of Summit or of any Summit Affiliate
would be wrongful and would cause irreparable harm to Summit or such Summit
Affiliate. Both during and after the term of this Agreement, Consultant shall
not intentionally act in any manner that is reasonably likely to reduce the
value of such knowledge or information to Summit or any Summit Affiliate. The
foregoing obligations of confidentiality shall not apply
-45-
to any knowledge or information that (a) is at the time acquired by Consultant,
or thereafter becomes, a part of the public domain other than through the act or
omission of Consultant, (b) is provided by Summit or any Summit Affiliate to a
third party without any obligation of confidentiality, or (c) is required by law
to be disclosed.
7. Intellectual Property.
---------------------
7.1 Assignment. Consultant hereby assigns to Summit, to the extent
----------
such rights are not already owned by the Company or Summit, (a) all tangible
embodiments of and intellectual property rights in developments made or
conceived by Consultant, solely or in collaboration with others, during and in
the course of his provision of services to the Company prior to the Effective
Date of this Agreement, and (b) all intellectual property rights in developments
made or conceived by Consultant, solely or in collaboration with others, during
and in the course of his provision of services to Summit hereunder during the
term of this Agreement. Consultant further agrees that all copyrightable works
made by Consultant for Summit shall be, if possible, considered "works made for
hire" for the benefit of Summit and, to the extent not qualifying as "works made
for hire," all rights in such copyrightable works are hereby assigned to Summit.
Consultant shall disclose promptly and fully to Summit all developments owned by
Summit under this Agreement. Consultant warrants that his rights in developments
assigned to Summit by this Agreement have not been previously licensed, pledged,
assigned or encumbered by Consultant other than as may have been assigned to the
Company.
7.2 Records. Consultant shall keep complete and accurate accounts,
-------
notes, data and records of all developments in the manner and form reasonably
requested by Summit. Such accounts, notes, data and records shall be the
property of Summit, and, upon request by Summit, Consultant shall promptly
surrender the same to it or, if not previously surrendered upon its request or
otherwise, Consultant shall surrender the same, and all copies thereof, to
Summit upon the conclusion of this Agreement.
8. Termination. This Agreement may be terminated prior to its expiration
-----------
(a) in the event of a material breach by either party, which breach is not cured
within thirty (30) days written notice by the other party, or (b) at any time by
either party upon ninety (90) days prior written notice. The parties' rights and
obligations under Sections 6, 7, 9 and 10 shall survive any termination of this
Agreement, and Consultant shall be entitled to receive its consulting fee and
expenses for any services performed prior to such termination.
9. Settlement of Disputes.
----------------------
________________________________________________________________________________
-46-
9.1 Arbitration. Except as provided in Section 9.2, any claims or
-----------
disputes of any nature between Summit and Consultant arising from or related to
the performance, breach, termination, expiration, application, or meaning of
this Agreement or any matter relating to Consultant's services and the
termination of such services by Summit shall be resolved exclusively by
arbitration in Durham, North Carolina, in accordance with the applicable rules
then obtaining of the American Arbitration Association. The fees of the
arbitrator(s), reasonable attorneys' fees and other costs incurred by Consultant
and Summit in connection with such arbitration shall be recovered by the
prevailing party in such arbitration.
The decision of the arbitrator(s) shall be final and binding
upon both parties. Judgment of the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof. In the event of submission of
any dispute to arbitration, each party shall, not later than thirty (30) days
prior to the date set for hearing, provide to the other party and to the
arbitrator(s) a copy of all exhibits upon which the party intends to rely at the
hearing and a list of all persons each party intends to call at the hearing.
9.2 Resolution of Certain Claims - Injunctive Relief. Section 9.1
------------------------------------------------
shall have no application to claims by Summit asserting a violation of Sections
6 or 7 or seeking to enforce, by injunction or otherwise, the terms of Sections
6 or 7. Such claims may be maintained by Summit in a lawsuit subject to the
terms of Section 9.3. Consultant agrees that, in addition to, but not to the
exclusion of, any other available remedy, Summit shall have the right to enforce
the provisions of Sections 6 or 7 by applying for and obtaining temporary and
permanent restraining orders or injunctions from a court of competent
jurisdiction subject to filing a bond therefor, and the prevailing party shall
be entitled to recover from the other party its reasonable attorneys' fees and
costs in actions related to the enforcement of the provisions of Sections 6 or
7.
9.3 Venue. Any action or proceeding arising under Section 9.2 of
-----
this Agreement shall be litigated only in the federal or state courts located in
the State of Minnesota, County of Hennepin. Consultant agrees to agrees that
such a venue is reasonable and convenient and waives any right Consultant may
have to transfer or change the venue of any litigation brought against
Consultant by Summit pursuant to such Section 9.2.
9.4 Severability. To the extent any provision of this Agreement
------------
shall be invalid or unenforceable, it shall be considered deleted herefrom and
the remainder of such provision and of this Agreement shall be unaffected and
shall continue in full force and effect.
________________________________________________________________________________
-47-
10. Miscellaneous.
--------------
10.1 Governing Law. This Agreement is made under and shall be
-------------
governed by and construed in accordance with the laws of the State of Minnesota,
excluding its choice of law rules.
10.2 Prior Agreements. This Agreement (including the Options and
----------------
Stock Option Agreement) contains the entire agreement of the parties relating to
Consultant's services for Summit and the ancillary matters discussed herein and
supersedes all prior agreements and understandings with respect to such matters,
whether oral or written, and the parties hereto have made no agreements,
representations or warranties relating to such services or ancillary matters
which are not set forth herein.
10.3 Relationship of Parties. It is understood and agreed that
-----------------------
Consultant is an independent contractor and not an employee of the Summit.
Consultant has no authority to obligate the Summit by contract or otherwise.
10.4 Amendments. No amendment or modification of this Agreement
----------
shall be deemed effective unless made in writing and signed by the both
Consultant and Summit.
10.5 No Waiver. No term or condition of this Agreement shall be
---------
deemed to have been waived, nor shall there be any estoppel to enforce any
provisions of this Agreement, except by a statement in writing signed by the
party against whom enforcement of the waiver or estoppel is sought. Any written
waiver shall not be deemed a continuing waiver unless specifically stated, shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
10.6 Assignment. The rights and duties of Consultant under this
----------
Agreement are personal and may not be assigned, in whole or in part, without the
written consent of Summit, in its sole discretion. Subject to the foregoing,
this Agreement shall be binding upon and inure to the benefit of, and be
enforceable against, the parties hereto and any permitted assignees or
successors.
10.7 Counterparts. This Agreement may be simultaneously executed in
------------
any number of counterparts, and such counterparts executed and delivered, each
as an original, shall constitute but one and the same instrument.
10.8 Captions and Headings. The captions and paragraph headings used
---------------------
in this Agreement are for convenience of reference only, and shall not affect
-48-
the construction or interpretation of this Agreement or any of the provisions
hereof.
10.9 Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed given if delivered personally or by facsimile
transmission (receipt verified), telexed, or sent by express courier service, to
the parties at the following addresses (or at such other address for a party as
shall be specified by like notice; provided, that notices of a change or address
shall be effective only upon receipt thereof):
If to Summit, addressed to:
Summit Medical Systems, Inc.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Chief Financial Officer
If to Consultant, addressed to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
Duke Clinical Research Institute
▇▇▇▇▇ Mill Building
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ A, Room 108
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax:(▇▇▇) ▇▇▇-▇▇▇▇
IN WITNESS WHEREOF, Summit and Consultant have executed this Agreement as
of the Effective Date.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D. SUMMIT MEDICAL SYSTEMS, INC.
____________________________________ By_________________________________
Name_______________________________
Title______________________________
________________________________________________________________________________
-49-
EXHIBIT F
SUMMIT MEDICAL SYSTEMS INC.
NONSTATUTORY STOCK OPTION AGREEMENT
This Nonstatutory Stock Option Agreement is made this 31st day of December
1996 (the "Effective Date"), by and between Summit Medical Systems, Inc. (the
"Company") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D. (the "Consultant").
WHEREAS, the Company and Consultant desire to enter into an Consulting
Agreement of even date herewith (the "Consulting Agreement") pursuant to which
Consultant would provide certain consulting services to the Company; and
WHEREAS, an option to purchase shares of the Company's common stock is an
essential inducement for Consultant to enter into the Consulting Agreement.
NOW THEREFORE, in consideration of the premises and of the mutual covenants
herein contained, the parties hereto agree as follows:
1. Grant of Option. The Company hereby grants to Consultant an option (the
---------------
"Option") to purchase up to an aggregate amount of 150,000 shares of the
Company's Common Stock on the terms and conditions set forth herein.
2. Exercise. (a) Consultant may exercise this Option for up to 112,500 shares
--------
of the Company's Common Stock in cumulative installments, each exercisable in
whole or in part, from the date first exercisable up to the Expiration Date, as
follows:
Number of shares as to
Date First Exercisable which Option is exercisable
---------------------- ---------------------------
Effective Date 16,875
December 31, 1997 31,875
December 31, 1998 31,875
December 31, 1999 31,875
(b) Consultant may exercise this Option for up to 37,500 additional shares of
the Company's Common Stock as follows:
In the event that (i) prior to the fifth anniversary of the Effective Date, the
Company shall have entered into On-line Outcomes Registry Agreements (as
hereinafter defined) which have in the aggregate Contract Values (as hereinafter
defined) of at least $40 million, and (ii) as of the date, if any, on which
clause (i) is satisfied, the average of the last reported sale prices of the
Company's common stock on the
-50-
Nasdaq National Market during the period of the thirty (30) most recent trading
days, ending on the date on which clause (i) is satisfied, is less than $28.00
per share, this Option may be exercised by Consultant, in whole or in part, as
to 18,750 shares of the Company's Common Stock. Notwithstanding the foregoing,
in the event that, prior to the fifth anniversary of the Effective Date, the
Company shall have entered into On-line Outcomes Registry Agreements which have
in the aggregate Contract Values of at least $75 million, this Option may be
exercised, in whole or in part, as to 37,500 shares of the Company's Common
Stock. "On-line Outcomes Registry Agreements" shall mean any written agreement,
understanding or arrangement pursuant to which the Company will develop,
maintain, manage, operate, or otherwise provide services related to, a central
registry or database (a "registry") that collects clinical medical data from
participants in the registry or database, primarily using On-line Technologies
(as hereinafter defined) to receive data into the registry, to process queries
to the registry, and to deliver reports and responses to the participants in the
registry. "On-line Technologies" shall mean software products and related
services that require a participant in the registry to access an off-site
central processing unit or server maintained by the Company or a third party in
order to input, aggregate, access and/or process the participant's clinical
medical data and other data from, or reports based on, the clinical medical data
in the registry. "Contract Value", as to any On-line Outcomes Registry
Agreement, shall be determined in accordance with Exhibit A hereto. The Company
agrees that within twenty (20) business days of the execution and delivery of
each On-line Outcomes Registry Agreement, the Company will determine in good
faith the Contract Value of such On-line Outcomes Registry Agreement in
accordance with the provisions of Exhibit A and will give written notice to
Consultant, which notice shall state the Contract Value for such On-line
Outcomes Registry Agreement as determined by the Company and the aggregate
Contract Values for all On-line Outcomes Registry Agreements as of the date of
such notice. The calculation of Contract Value set forth in this notice shall be
certified by ▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D. as Chief Scientific Officer of the Company. If
Consultant objects to the determination of Contract Value within thirty (30)
business days following the date of the notice, the Company and Consultant shall
negotiate in good faith for a period of thirty (30) business days to settle any
dispute regarding the Contract Value. If such dispute has not been settled
within such thirty (30) business day period, the dispute shall be settled in
accordance with the arbitration provision of Section 11 below.
3. Purchase Price. The purchase price of the stock shall be $7.50 per share
--------------
(subject to adjustment as noted below).
4. Nonstatutory Option. The Option is not intended to be an incentive stock
-------------------
option within the meaning of Section 422 of the Internal Revenue Code of 1986,
as amended.
________________________________________________________________________________
-51-
5. Period of Exercise. The Option will expire on the date (the "Expiration
------------------
Date") ten (10) years from the Effective Date. The Option may be exercised only
while the Consulting Agreement is in effect between the Company and Consultant,
or alternatively as provided in Section 7, which deals with termination of the
Consulting Agreement; provided, however, that the Option shall not be
exercisable after the Expiration Date.
6. Transferability. This Option is not transferable except by will or the laws
---------------
laws of descent and distribution, or with the prior written consent of the
Company.
7. Termination of Consulting Agreement. The holder hereof shall have the
-----------------------------------
right to exercise the Option only to the extent of the full number of shares of
the Company's Common Stock the Consultant was entitled to purchase under the
Option on the effective date of termination of the Consulting Agreement;
provided, however, that if the Consulting Agreement terminates for any reason
other than Consultant's material breach thereof, or Consultant's voluntary
termination thereof other than as a result of Company's uncured material breach,
the Option shall be exercisable as to all 150,000 shares of the Company's Common
Stock immediately upon the effective date of such termination, notwithstanding
Section 2 above. In the event of termination of the Consulting Agreement for
any and all reasons, the Option may be exercised by the holder hereof until the
Expiration Date, subject to the extent provided in this Section 7.
8. Service. This Agreement shall in no way restrict the right of the Company
-------
or Consultant to terminate the Consulting Agreement in accordance with its
terms.
9. Method of Exercise. The Option may be exercised, subject to the terms and
------------------
conditions of this Agreement, by written notice to the Company. The notice shall
be in the form attached to this Agreement and will be accompanied by payment by
check (bank check, certified check or personal check) or by delivery to the
Company for cancellation shares of Common Stock having a Market Price (defined
in Section 13(f) below) equal to the full purchase price of the shares to be
issued on the date the notice of exercise is received by the Company, and in the
event of an exercise by an executor or administrator or other person authorized
under Section 6 hereof appropriate proof of the right of such person to exercise
the Option. The Company will issue and deliver certificates representing the
number of shares purchased under the Option, registered in the name of the
holder hereof as soon as practicable after receipt of the notice.
10. Withholding. In any case where withholding is required under federal,
-----------
state or local law in connection with any exercise by the Consultant hereunder,
Consultant may elect to (i) authorize the Company to withhold appropriate
amounts from amounts payable to the Consultant, (ii) remit to the Company an
-52-
amount equal to such appropriate withholding, or (iii) have the Company withhold
a portion of the shares of Common Stock otherwise to be delivered upon exercise
of such option having a Market Price equal to the amount of such appropriate
withholding.
11. Arbitration. Any dispute, claim or controversy arising out of or in
-----------
connection with this Agreement or this Option which has not been settled through
negotiation within a period of thirty (30) days after the date on which either
party shall first have notified the other party in writing of the existence of a
dispute shall be settled by final and binding arbitration under the then
applicable Commercial Arbitration Rules of the American Arbitration Association
("AAA"). Any such arbitration shall be conducted by three (3) arbitrators
appointed by mutual agreement of the parties or, failing such agreement, in
accordance with such AAA Rules. At least one (1) arbitrator shall be an
experienced computer software professional, and at least one (1) arbitrator
shall be an experienced business attorney with background in the licensing and
distribution of computer software. Any such arbitration shall be conducted in
Durham, North Carolina. An arbitral award may be enforced in any court of
competent jurisdiction. Notwithstanding any contrary provision in the AAA Rules,
the following additional procedures and rules shall apply to any such
arbitration:
(a) Each party shall have the right to request from the arbitrators, and the
arbitrators shall order upon good cause shown, reasonable and limited pre-
hearing discovery, including (i) exchange of witness lists, (ii) depositions
under oath of named witnesses at a mutually convenient location, (iii) written
interrogatories, and (iv) document requests.
(b) Upon conclusion of the pre-hearing discovery, the arbitrators shall
promptly hold a hearing upon the evidence to be adduced by the parties and shall
promptly render a written opinion and award.
(c) The arbitrators may not award or assess punitive damages against either
party.
(d) Each party shall bear its own costs and expenses of the arbitration and
one-half (1/2) of the fees and costs of the arbitrators, subject to the power of
the arbitrators, in their sole discretion, to award all such reasonable cots,
expenses and fees to the prevailing party.
12. Registration. Company shall use commercially reasonable efforts to
------------
register the shares of Common Stock that Consultant obtains pursuant to an
exercise of the Option on a registration statement on Form S-8 (or any successor
form) and the Company shall use commercially reasonable efforts to maintain the
effectiveness of
-53-
such registration statement for so long as any portion of the Option remains
exercisable by Consultant hereunder.
13. Anti-Dilution Adjustments. The above provisions are, however, subject to
-------------------------
the following:
(a) The purchase price set forth in Section 3 above shall, from and after the
date of issuance of this Option, be subject to adjustment from time to time as
hereinafter provided. Upon each adjustment of the purchase price, the holder
hereof shall thereafter be entitled to purchase, at the purchase price resulting
from such adjustment, the number of shares obtained by multiplying the purchase
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 purchase 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, including any dividend declared to
effect a subdivision of the outstanding shares of Common Stock, the purchase
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 purchase 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 hereof shall thereafter have the right to purchase and
receive, upon the basis and upon the terms and conditions specified in this
Option and in lieu of the shares of Common Stock of the Company immediately
theretofore purchasable and receivable upon the exercise of the rights
represented hereby, 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 purchasable and receivable upon the exercise of the rights
represented hereby had such reorganization, reclassification, consolidation,
merger or sale not taken place, and in any such case appropriate provision shall
be made with respect to the rights and interests of the holder hereof to the end
that the provisions hereof (including without limitation provisions for
adjustments of the purchase price and of the number of shares purchasable upon
the exercise of this Option) shall thereafter be applicable, as nearly as may
be, in relation to any shares of
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stock, securities or assets thereafter deliverable upon the exercise 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 registered
holder hereof 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 as, in accordance with the foregoing provisions, such
holder may be entitled to purchase.
(d) Upon any adjustment of the purchase price, then and in each such case the
Company shall give written notice thereof, by first-class mail, postage prepaid,
addressed to the registered holder of this Option at the address of such holder
as shown on the books of the Company, which notice shall state the purchase
price resulting from such adjustment and the increase or decrease, if any, in
the number of shares purchasable 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.
(e) If any event occurs as to which the other provisions of this Section 13 are
not strictly applicable or if strictly applicable would not fairly protect the
purchase rights of the holder of this Option or of Common Stock in accordance
with the essential intent and principles of such provisions, then this Option
shall be adjusted in the application of such provisions, in accordance with such
essential intent and principles, so as to protect such purchase rights as
aforesaid.
(f) No fractional shares of Common Stock shall be issued upon the exercise of
this Option, but, instead of any fraction of a share which would otherwise be
issuable, the Company shall pay a cash adjustment (which may be effected as a
reduction of the amount to be paid by the holder hereof upon such exercise) in
respect of such fraction in an amount equal to the same fraction of the Market
Price per share of Common Stock on the date of the written notice of exercise
required by Section 9 above. "Market Price" for purposes of this Section 13(f),
Sections 9 and 10 hereof, and for the purpose of determining the option purchase
price shall mean, if the Common Stock is traded on a securities exchange or on
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 5 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
-55-
selected by the Board of Directors of the Company as of the last day of any
month ending within 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 15 days of the date as
of which the determination is to be made.
14. Common Stock. As used herein, the term "Common Stock" shall mean and
-------------
include the Company's presently authorized Common Stock and shall also include
any capital stock of any class of the Company hereafter authorized which 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 of assets
upon the voluntary or involuntary liquidation, dissolution or winding up of the
Company; provided that the shares purchasable pursuant to this Option shall
include shares designated as Common Stock of the Company on the date of original
issue of this Option or, in the case of any reclassification of the outstanding
shares thereof, the stock, securities or assets provided for in Section 13(c)
above.
15. No Voting Rights. This Option shall not entitle the holder hereof to any
----------------
voting rights or other rights as a shareholder of the Company.
16. Optional Conversion.
-------------------
(a) In addition to and without limiting the rights of the holder of this Option
under the terms of this Option, such holder shall have the right (the
"Conversion Right") to convert this Option or any portion thereof into shares of
Common Stock as provided in this Section 16 at any time from and after the
Effective Date and to and including the Expiration Date, subject to the
restrictions set forth in Section 5. Upon exercise of the Conversion Right with
respect to a particular number of shares subject to this Option (the "Converted
Option Shares"), the Company shall deliver to the holder of this Option, without
payment by the holder of any exercise price or any cash or other consideration,
that number of shares of Common Stock equal to the quotient obtained by dividing
the Net Value (as hereinafter defined) of the Converted Option Shares by the
Market Price of a single share of Common Stock, determined in each case as of
the close of business on the Conversion Date (as hereinafter defined). The "Net
Value" of the Converted Option Shares shall be determined by subtracting the
aggregate option purchase price of the Converted Option Shares from the Market
Price of the Converted Option Shares. Notwithstanding anything in this Section
16 to the contrary, the Conversion Right cannot be exercised with respect to a
number of Converted Option Shares having a Net Value below $100. No fractional
shares shall be issuable upon exercise of the Conversion Right, and if the
number of shares to be issued in accordance with the foregoing formula is other
than a whole number, the Company shall pay to the
-56-
holder of this Option an amount in cash equal to the fair market value of the
resulting fractional share.
(b) The Conversion Right may be exercised by the holder of this Option by the
surrender of this Option at the principal office of the Company together with a
written statement specifying that the holder thereby intends to exercise the
Conversion Right and indicating the number of shares subject to this Option
which are being surrendered (referred to in paragraph (a) above as the Converted
Option Shares) in exercise of the Conversion Right. Such conversion shall be
effective upon receipt by the Company of this Option together with the aforesaid
written statement, or on such later date as is specified therein (the
"Conversion Date"), but not later than the Expiration Date. Certificates for
the shares of Common Stock issuable upon exercise of the Conversion Right,
together with a check in payment of any fractional share and, in the case of a
partial exercise, a new option evidencing the shares remaining subject to this
Option, shall be issued as of the Conversion Date and shall be delivered to the
holder of this Option within 7 days following the Conversion Date.
17. Governing Law. All questions concerning this Option will be governed and
-------------
interpreted and enforced in accordance with the internal law of the State of
Minnesota without regard for principles of conflict of law.
ACCEPTED: SUMMIT MEDICAL SYSTEMS, INC.
____________________________________ By_________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
Its________________________________
________________________________________________________________________________
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EXHIBIT A
CONTRACT VALUE
The Contract Value of each On-line Outcomes Registry Agreement shall be
determined in accordance with the following procedures. The Contract Value of
each On-line Outcomes Registry Agreement shall equal the sum of (a) the Fixed
Fees (as hereinafter defined) and (b) the Variable Fees (as hereinafter
defined). "Fixed Fees" shall mean the sum of all sponsorship fees, periodic site
license fees or other fixed fees to be paid to the Company during the term of
the On-line Outcomes Registry Agreement for which a cash payment of an amount
certain is specified in such agreement. "Variable Fees" shall mean the product
of the Estimated Fees (as hereinafter defined) multiplied by .75. "Estimated
Fees" shall mean the sum of all usage, encounter, inquiry, training, service and
other variable fees, based on usage of the registry and related services by
participants, to be paid to the Company during the term of the On-line Outcomes
Registry Agreement. The Company shall estimate the Estimated Fees in good faith
as of the date the On-line Outcomes Registry Agreement is executed and
delivered. The Company represents, warrants and covenants that it will have a
reasonable basis for its estimate of Estimated Fees and that such estimate will
be prepared on a basis consistent with the internal projections of the Company.
The estimate of Estimated Fees will be prepared using the pricing terms as set
forth in the On-line Outcomes Registry Agreement, including, without limitation,
estimates of any volume discounts, based on the usage estimates made in
accordance with the following sentence. The Company shall prepare in good faith
an estimate of the usage of the registry and related services by participants
over the term of the On-line Outcomes Registry Agreement. By way of example
only, an estimate of the Estimated Fees for a stent registry would include (i)
an estimate of the number of cardiac catheter laboratories ("cath labs") to be
covered by the agreement, (ii) an estimate of the size distribution of such cath
labs, (iii) an estimate of usage of the registry and related services by each
cath lab based on its size, and (iv) an estimate of any volume discounts based
on the foregoing. The foregoing procedure shall be applied in a manner similar
to the illustration attached hereto as Exhibit B, subject to the specific terms
and conditions of the applicable On-Line Outcomes Registry Agreement; provided,
that in Exhibit B the calculation of Contract Value illustrated therein shall
not include the Net Present Value discount shown, but, rather, shall include the
multiplication of any Estimated Fees by the factor of .75.
________________________________________________________________________________
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SUMMIT MEDICAL SYSTEMS, INC.
----------------------------
NOTICE OF EXERCISE OF STOCK OPTION
----------------------------------
To: Board of Directors
SUMMIT MEDICAL SYSTEMS, INC.
I hereby exercise my Option dated __________ to purchase _____ shares of $.01
par value common stock of the Company at the option exercise price of
$__________ per share. Enclosed is a certified or cashier's check in the total
amount of $__________, or payment in such other form as the Company has
specified.
I request that my shares be issued in my name as follows:
________________________________________________________________________________
(Print your name in the form in which you wish to
have the shares registered)
________________________________________________________________________________
(Social Security Number)
________________________________________________________________________________
(Street and Number)
________________________________________________________________________________
(City) (State) (Zip Code)
Dated: __________, 19__.
Signature: _____________________________
________________________________________________________________________________
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EXHIBIT G
CONSULTING AGREEMENT
CONSULTING AGREEMENT is made and entered into as of the 31st day of
December, 1996 (the "Effective Date"), by and between Summit Medical Systems,
Inc., a Minnesota corporation ("Summit"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III, M.D., an
individual resident of the State of North Carolina (the "Consultant").
WHEREAS, Consultant has heretofore been retained as a consultant to
Cordillera, LLC, a Delaware limited liability corporation (the "Company");
WHEREAS, Summit has agreed to acquire the Company pursuant to a
Reorganization Agreement of even date herewith (the "Reorganization Agreement")
by and among Summit, Company, ▇▇ ▇▇▇▇ LLC and Duke University, which provides
for the purchase by Summit of all other parties' member units, and options for
member units, in Company, and the wind-up and transfer of the Company's business
to Summit (the "Reorganization");
WHEREAS, the parties to the Reorganization Agreement have agreed that
execution of this Agreement is a condition of closing the Reorganization; and
WHEREAS, Summit desires to retain the services of Consultant
subsequent to the consummation of the Reorganization, and Consultant desires to
be so retained by Summit, on the terms and subject to the conditions set forth
in this Agreement.
NOW, THEREFORE, in consideration of the respective covenants and
commitments of Summit and Consultant set forth below, and as an inducement to
Summit to consummate the Reorganization, Summit and Consultant hereby agree as
follows:
1. Consulting. Summit hereby retains the consulting services of
----------
Consultant, and Consultant shall perform such consulting services for Summit,
for the period and upon the other terms and conditions set forth in this
Agreement.
2. Term. Unless terminated at an earlier date in accordance with Section
----
8 of this Agreement, Consultant's services shall be retained hereunder for a
continuous period of four (4) years beginning on the Effective Date. Thereafter,
the terms of this Agreement shall be extended for successive one year periods
unless Summit or Consultant objects to such extension by written notice to the
other party at least ninety (90) days prior to the expiration of such initial
term or any extension thereof.
________________________________________________________________________________
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3. Position and Duties.
-------------------
3.1 Service with Summit. During the term of this Agreement,
-------------------
Consultant agrees to perform such duties and projects on behalf of Summit as the
parties shall mutually agree, provided that Consultant shall be available for
such duties and projects for at least four (4) hours of service in each month of
this Agreement.
3.2 Performance of Duties. With respect to those duties and
---------------------
projects of Consultant hereunder, Consultant agrees to serve Summit faithfully
and to the best of his ability. Consultant hereby confirms that he is under no
contractual commitments inconsistent with his obligations set forth in this
Agreement and that, during the term hereof, he shall not enter into contractual
commitments that are materially inconsistent with the provisions of this
Agreement or which would otherwise materially impair his ability to perform his
duties hereunder.
3.3 Location. Consultant shall perform services hereunder primarily
--------
at Summit's offices in Raleigh, North Carolina, but he may, at Summit's expense,
also render services at such other locations as may be specified by Summit and
agreed to by Consultant.
4. Compensation.
------------
4.1 Consulting Fee. As compensation in full for Consultant's
--------------
services hereunder, Summit shall pay to Consultant a consulting fee at the rate
of Twelve Hundred Fifty Dollars ($1,250.00) per month. The consulting fee shall
be payable to Consultant in arrears at the end of each calendar month during the
term of this Agreement, and a prorated portion of such fee shall be payable upon
termination of this Agreement if such termination occurs other than at the end
of a month.
4.2 Option. On the Closing Date (as defined in the Reorganization
------
Agreement), Summit shall grant to Consultant a non-qualified stock option (the
"Option") to subscribe for and purchase common stock of Summit, up to the
aggregate amount of 150,000 shares, subject to the terms and conditions of the
Nonstatutory Stock Option Agreement between the Summit and Consultant of even
date herewith.
4.3 Taxes. Consultant shall be solely responsible for any income or
-----
social security taxes due upon any payments or the Options received under this
Agreement, and hereby indemnifies and holds Summit harmless from any charge,
liability or penalty due to or arising out of any failure by Consultant to pay
such
-61-
taxes. Consultant acknowledges Summit may issue a Form 1099 as to any
payments or Options received under this Agreement and report the same to the
Internal Revenue Service.
4.4 Signing Bonus. Summit agrees to pay consultant a signing bonus
-------------
on January 2, 1997, in the amount of $59,685.
5. Expenses. Consultant shall be reimbursed by Summit in accordance with
--------
the policies and procedures that are established from time to time by Summit for
all reasonable and necessary out-of-pocket expenses that are incurred by
Consultant in performing his duties under this Agreement, including, without
limitation, reasonable travel expenses incurred by Consultant in rendering
services outside of the metropolitan Raleigh, North Carolina area.
6. Confidential Information. Except as permitted or directed by Summit,
------------------------
during the term of this Agreement or at any time thereafter, Consultant shall
not divulge, furnish or make accessible to anyone or use in any way (other than
in performing his duties hereunder) any confidential or secret knowledge or
information of the Company, Summit or of any Summit Affiliate which Consultant
has acquired or become acquainted with prior to the term of this Agreement while
being engaged as a consultant for the Company, or shall acquire or become
acquainted with during the term of this Agreement in the course of performing
Consultant's duties hereunder, whether or not during regular working hours, in
each case, whether developed by himself or by others, concerning any trade
secrets, confidential or secret designs, processes, formulae, plans, algorithms,
software, devices or material (whether or not patented or patentable) directly
or indirectly useful in any aspect of the business of Summit or of any Summit
Affiliate, any customer or supplier lists of Summit or of any Summit Affiliate,
any confidential or secret development or research work of Summit or of any
Summit Affiliate, or any other confidential information or secret aspects of the
business of Summit or any Summit Affiliate. As used herein, "Summit Affiliate"
shall mean any entity that controls or is controlled by Summit, with "control"
meaning the ownership of 50% or more of the voting securities in such entity.
Consultant acknowledges that the above-described knowledge or information
constitutes a unique and valuable asset of Summit and of the respective Summit
Affiliates and represents a substantial investment of time and expense by Summit
and Summit Affiliates and that any disclosure or other use of such knowledge or
information other than for the sole benefit of Summit or of any Summit Affiliate
would be wrongful and would cause irreparable harm to Summit or such Summit
Affiliate. Both during and after the term of this Agreement, Consultant shall
not intentionally act in any manner that is reasonably likely to reduce the
value of such knowledge or information to Summit or any Summit Affiliate. The
foregoing obligations of confidentiality shall not apply to any knowledge or
information that (a) is at the time acquired by Consultant, or
-62-
thereafter becomes, a part of the public domain other than through the act or
omission of Consultant, (b) is provided by Summit or any Summit Affiliate to a
third party without any obligation of confidentiality, or (c) is required by law
to be disclosed.
7. Intellectual Property.
---------------------
7.1 Assignment. Consultant hereby assigns to Summit, to the extent
----------
such rights are not already owned by the Company or Summit, (a) all tangible
embodiments of and intellectual property rights in developments made or
conceived by Consultant, solely or in collaboration with others, during and in
the course of his provision of services to the Company prior to the Effective
Date of this Agreement, and (b) all intellectual property rights in developments
made or conceived by Consultant, solely or in collaboration with others, during
and in the course of his provision of services to Summit hereunder during the
term of this Agreement. Consultant further agrees that all copyrightable works
made by Consultant for Summit shall be, if possible, considered "works made for
hire" for the benefit of Summit and, to the extent not qualifying as "works made
for hire," all rights in such copyrightable works are hereby assigned to Summit.
Consultant shall disclose promptly and fully to Summit all developments owned by
Summit under this Agreement. Consultant warrants that his rights in developments
assigned to Summit by this Agreement have not been previously licensed, pledged,
assigned or encumbered by Consultant other than as may have been assigned to the
Company.
7.2 Records. Consultant shall keep complete and accurate accounts,
-------
notes, data and records of all developments in the manner and form reasonably
requested by Summit. Such accounts, notes, data and records shall be the
property of Summit, and, upon request by Summit, Consultant shall promptly
surrender the same to it or, if not previously surrendered upon its request or
otherwise, Consultant shall surrender the same, and all copies thereof, to
Summit upon the conclusion of this Agreement.
8. Termination. This Agreement may be terminated prior to its expiration
-----------
(a) in the event of a material breach by either party, which breach is not cured
within thirty (30) days written notice by the other party, or (b) at any time by
either party upon ninety (90) days prior written notice. The parties' rights and
obligations under Sections 6, 7, 9 and 10 shall survive any termination of this
Agreement, and Consultant shall be entitled to receive its consulting fee and
expenses for any services performed prior to such termination.
________________________________________________________________________________
-63-
9. Settlement of Disputes.
----------------------
9.1 Arbitration. Except as provided in Section 9.2, any claims or
-----------
disputes of any nature between Summit and Consultant arising from or related to
the performance, breach, termination, expiration, application, or meaning of
this Agreement or any matter relating to Consultant's services and the
termination of such services by Summit shall be resolved exclusively by
arbitration in Durham, North Carolina, in accordance with the applicable rules
then obtaining of the American Arbitration Association. The fees of the
arbitrator(s), reasonable attorneys' fees and other costs incurred by Consultant
and Summit in connection with such arbitration shall be recovered by the
prevailing party in such arbitration.
The decision of the arbitrator(s) shall be final and binding
upon both parties. Judgment of the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof. In the event of submission of
any dispute to arbitration, each party shall, not later than thirty (30) days
prior to the date set for hearing, provide to the other party and to the
arbitrator(s) a copy of all exhibits upon which the party intends to rely at the
hearing and a list of all persons each party intends to call at the hearing.
9.2 Resolution of Certain Claims - Injunctive Relief. Section 9.1
------------------------------------------------
shall have no application to claims by Summit asserting a violation of Sections
6 or 7 or seeking to enforce, by injunction or otherwise, the terms of Sections
6 or 7. Such claims may be maintained by Summit in a lawsuit subject to the
terms of Section 9.3. Consultant agrees that, in addition to, but not to the
exclusion of, any other available remedy, Summit shall have the right to enforce
the provisions of Sections 6 or 7 by applying for and obtaining temporary and
permanent restraining orders or injunctions from a court of competent
jurisdiction subject to filing a bond therefor, and the prevailing party shall
be entitled to recover from the other party its reasonable attorneys' fees and
costs in actions related to the enforcement of the provisions of Sections 6 or
7.
9.3 Venue. Any action or proceeding arising under Section 9.2 of
-----
this Agreement shall be litigated only in the federal or state courts located in
the State of Minnesota, County of Hennepin. Consultant agrees to agrees that
such a venue is reasonable and convenient and waives any right Consultant may
have to transfer or change the venue of any litigation brought against
Consultant by Summit pursuant to such Section 9.2.
9.4 Severability. To the extent any provision of this Agreement
------------
shall be invalid or unenforceable, it shall be considered deleted herefrom and
the remainder of such provision and of this Agreement shall be unaffected and
shall continue in full force and effect.
________________________________________________________________________________
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10. Miscellaneous.
--------------
10.1 Governing Law. This Agreement is made under and shall be
-------------
governed by and construed in accordance with the laws of the State of Minnesota,
excluding its choice of law rules.
10.2 Prior Agreements. This Agreement (including the Options and
----------------
Stock Option Agreement) contains the entire agreement of the parties relating to
Consultant's services for Summit and the ancillary matters discussed herein and
supersedes all prior agreements and understandings with respect to such matters,
whether oral or written, and the parties hereto have made no agreements,
representations or warranties relating to such services or ancillary matters
which are not set forth herein.
10.3 Relationship of Parties. It is understood and agreed that
-----------------------
Consultant is an independent contractor and not an employee of the Summit.
Consultant has no authority to obligate the Summit by contract or otherwise.
10.4 Amendments. No amendment or modification of this Agreement
----------
shall be deemed effective unless made in writing and signed by the both
Consultant and Summit.
10.5 No Waiver. No term or condition of this Agreement shall be
---------
deemed to have been waived, nor shall there be any estoppel to enforce any
provisions of this Agreement, except by a statement in writing signed by the
party against whom enforcement of the waiver or estoppel is sought. Any written
waiver shall not be deemed a continuing waiver unless specifically stated, shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
10.6 Assignment. The rights and duties of Consultant under this
----------
Agreement are personal and may not be assigned, in whole or in part, without the
written consent of Summit, in its sole discretion. Subject to the foregoing,
this Agreement shall be binding upon and inure to the benefit of, and be
enforceable against, the parties hereto and any permitted assignees or
successors.
10.7 Counterparts. This Agreement may be simultaneously executed in
------------
any number of counterparts, and such counterparts executed and delivered, each
as an original, shall constitute but one and the same instrument.
________________________________________________________________________________
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10.8 Captions and Headings. The captions and paragraph headings used
---------------------
in this Agreement are for convenience of reference only, and shall not affect
the construction or interpretation of this Agreement or any of the provisions
hereof.
10.9 Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed given if delivered personally or by facsimile
transmission (receipt verified), telexed, or sent by express courier service, to
the parties at the following addresses (or at such other address for a party as
shall be specified by like notice; provided, that notices of a change or address
shall be effective only upon receipt thereof):
If to Summit, addressed to:
Summit Medical Systems, Inc.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Chief Financial Officer
If to Consultant, addressed to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III, M.D.
Division of Cardiology
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇ University ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax:(▇▇▇) ▇▇▇-▇▇▇▇
IN WITNESS WHEREOF, Summit and Consultant have executed this Agreement as
of the Effective Date.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III, M.D. SUMMIT MEDICAL SYSTEMS, INC.
____________________________________ By_________________________________
Name_______________________________
Title______________________________
________________________________________________________________________________
-66-
EXHIBIT H
SUMMIT MEDICAL SYSTEMS INC.
NONSTATUTORY STOCK OPTION AGREEMENT
This Nonstatutory Stock Option Agreement is made this 31st day of December
1996 (the "Effective Date"), by and between Summit Medical Systems, Inc. (the
"Company") and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III, M.D. (the "Consultant").
WHEREAS, the Company and Consultant desire to enter into an Consulting
Agreement of even date herewith (the "Consulting Agreement") pursuant to which
Consultant would provide certain consulting services to the Company; and
WHEREAS, an option to purchase shares of the Company's common stock is an
essential inducement for Consultant to enter into the Consulting Agreement.
NOW THEREFORE, in consideration of the premises and of the mutual covenants
herein contained, the parties hereto agree as follows:
1. Grant of Option. The Company hereby grants to Consultant an option (the
---------------
"Option") to purchase up to an aggregate amount of 150,000 shares of the
Company's Common Stock on the terms and conditions set forth herein.
2. Exercise. (a) Consultant may exercise this Option for up to 112,500 shares
--------
of the Company's Common Stock in cumulative installments, each exercisable in
whole or in part, from the date first exercisable up to the Expiration Date, as
follows:
Number of shares as to
Date First Exercisable which Option is exercisable
------------------------------------------------------------------------
Effective Date 16,875
December 31, 1997 31,875
December 31, 1998 31,875
December 31, 1999 31,875
(b) Consultant may exercise this Option for up to 37,500 additional shares of
the Company's Common Stock as follows:
In the event that (i) prior to the fifth anniversary of the Effective Date, the
Company shall have entered into On-line Outcomes Registry Agreements (as
hereinafter defined) which have in the aggregate Contract Values (as hereinafter
defined) of at least $40 million, and (ii) as of the date, if any, on which
clause (i) is satisfied, the average of the last reported sale prices of the
Company's common stock on the
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Nasdaq National Market during the period of the thirty (30) most recent trading
days, ending on the date on which clause (i) is satisfied, is less than $28.00
per share, this Option may be exercised by Consultant, in whole or in part, as
to 18,750 shares of the Company's Common Stock. Notwithstanding the foregoing,
in the event that, prior to the fifth anniversary of the Effective Date, the
Company shall have entered into On-line Outcomes Registry Agreements which have
in the aggregate Contract Values of at least $75 million, this Option may be
exercised, in whole or in part, as to 37,500 shares of the Company's Common
Stock. "On-line Outcomes Registry Agreements" shall mean any written agreement,
understanding or arrangement pursuant to which the Company will develop,
maintain, manage, operate, or otherwise provide services related to, a central
registry or database (a "registry") that collects clinical medical data from
participants in the registry or database, primarily using On-line Technologies
(as hereinafter defined) to receive data into the registry, to process queries
to the registry, and to deliver reports and responses to the participants in the
registry. "On-line Technologies" shall mean software products and related
services that require a participant in the registry to access an off-site
central processing unit or server maintained by the Company or a third party in
order to input, aggregate, access and/or process the participant's clinical
medical data and other data from, or reports based on, the clinical medical data
in the registry. "Contract Value", as to any On-line Outcomes Registry
Agreement, shall be determined in accordance with Exhibit A hereto. The Company
agrees that within twenty (20) business days of the execution and delivery of
each On-line Outcomes Registry Agreement, the Company will determine in good
faith the Contract Value of such On-line Outcomes Registry Agreement in
accordance with the provisions of Exhibit A and will give written notice to
Consultant, which notice shall state the Contract Value for such On-line
Outcomes Registry Agreement as determined by the Company and the aggregate
Contract Values for all On-line Outcomes Registry Agreements as of the date of
such notice. The calculation of Contract Value set forth in this notice shall be
certified by ▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D. as Chief Scientific Officer of the Company. If
Consultant objects to the determination of Contract Value within thirty (30)
business days following the date of the notice, the Company and Consultant shall
negotiate in good faith for a period of thirty (30) business days to settle any
dispute regarding the Contract Value. If such dispute has not been settled
within such thirty (30) business day period, the dispute shall be settled in
accordance with the arbitration provision of Section 11 below.
3. Purchase Price. The purchase price of the stock shall be $7.50 per share
--------------
(subject to adjustment as noted below).
4. Nonstatutory Option. The Option is not intended to be an incentive stock
-------------------
option within the meaning of Section 422 of the Internal Revenue Code of 1986,
as amended.
________________________________________________________________________________
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5. Period of Exercise. The Option will expire on the date (the "Expiration
------------------
Date") ten (10) years from the Effective Date. The Option may be exercised only
while the Consulting Agreement is in effect between the Company and Consultant,
or alternatively as provided in Section 7, which deals with termination of the
Consulting Agreement; provided, however, that the Option shall not be
exercisable after the Expiration Date.
6. Transferability. This Option is not transferable except by will or the laws
---------------
of descent and distribution, or with the prior written consent of the Company.
7. Termination of Consulting Agreement. The holder hereof shall have the
-----------------------------------
right to exercise the Option only to the extent of the full number of shares of
the Company's Common Stock the Consultant was entitled to purchase under the
Option on the effective date of termination of the Consulting Agreement;
provided, however, that if the Consulting Agreement terminates for any reason
other than Consultant's material breach thereof, or Consultant's voluntary
termination thereof other than as a result of Company's uncured material breach,
the Option shall be exercisable as to all 150,000 shares of the Company's Common
Stock immediately upon the effective date of such termination, notwithstanding
Section 2 above. In the event of termination of the Consulting Agreement for
any and all reasons, the Option may be exercised by the holder hereof until the
Expiration Date, subject to the extent provided in this Section 7.
8. Service. This Agreement shall in no way restrict the right of the Company
-------
or Consultant to terminate the Consulting Agreement in accordance with its
terms.
9. Method of Exercise. The Option may be exercised, subject to the terms and
------------------
conditions of this Agreement, by written notice to the Company. The notice shall
be in the form attached to this Agreement and will be accompanied by payment by
check (bank check, certified check or personal check) or by delivery to the
Company for cancellation shares of Common Stock having a Market Price (defined
in Section 13(f) below) equal to the full purchase price of the shares to be
issued on the date the notice of exercise is received by the Company, and in the
event of an exercise by an executor or administrator or other person authorized
under Section 6 hereof appropriate proof of the right of such person to exercise
the Option. The Company will issue and deliver certificates representing the
number of shares purchased under the Option, registered in the name of the
holder hereof as soon as practicable after receipt of the notice.
10. Withholding. In any case where withholding is required under federal,
-----------
state or local law in connection with any exercise by the Consultant hereunder,
Consultant may elect to (i) authorize the Company to withhold appropriate
amounts from amounts payable to the Consultant, (ii) remit to the Company an
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amount equal to such appropriate withholding, or (iii) have the Company withhold
a portion of the shares of Common Stock otherwise to be delivered upon exercise
of such option having a Market Price equal to the amount of such appropriate
withholding.
11. Arbitration. Any dispute, claim or controversy arising out of or in
-----------
connection with this Agreement or this Option which has not been settled through
negotiation within a period of thirty (30) days after the date on which either
party shall first have notified the other party in writing of the existence of a
dispute shall be settled by final and binding arbitration under the then
applicable Commercial Arbitration Rules of the American Arbitration Association
("AAA"). Any such arbitration shall be conducted by three (3) arbitrators
appointed by mutual agreement of the parties or, failing such agreement, in
accordance with such AAA Rules. At least one (1) arbitrator shall be an
experienced computer software professional, and at least one (1) arbitrator
shall be an experienced business attorney with background in the licensing and
distribution of computer software. Any such arbitration shall be conducted in
Durham, North Carolina. An arbitral award may be enforced in any court of
competent jurisdiction. Notwithstanding any contrary provision in the AAA
Rules, the following additional procedures and rules shall apply to any such
arbitration:
(a) Each party shall have the right to request from the arbitrators, and the
arbitrators shall order upon good cause shown, reasonable and limited pre-
hearing discovery, including (i) exchange of witness lists, (ii) depositions
under oath of named witnesses at a mutually convenient location, (iii) written
interrogatories, and (iv) document requests.
(b) Upon conclusion of the pre-hearing discovery, the arbitrators shall
promptly hold a hearing upon the evidence to be adduced by the parties and shall
promptly render a written opinion and award.
(c) The arbitrators may not award or assess punitive damages against either
party.
(d) Each party shall bear its own costs and expenses of the arbitration and
one-half (1/2) of the fees and costs of the arbitrators, subject to the power of
the arbitrators, in their sole discretion, to award all such reasonable cots,
expenses and fees to the prevailing party.
12. Registration. Company shall use commercially reasonable efforts to
------------
register the shares of Common Stock that Consultant obtains pursuant to an
exercise of the Option on a registration statement on Form S-8 (or any successor
form) and the Company shall use commercially reasonable efforts to maintain the
effectiveness of
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such registration statement for so long as any portion of the Option remains
exercisable by Consultant hereunder.
13. Anti-Dilution Adjustments. The above provisions are, however, subject to
-------------------------
the following:
(a) The purchase price set forth in Section 3 above shall, from and after the
date of issuance of this Option, be subject to adjustment from time to time as
hereinafter provided. Upon each adjustment of the purchase price, the holder
hereof shall thereafter be entitled to purchase, at the purchase price resulting
from such adjustment, the number of shares obtained by multiplying the purchase
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 purchase 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, including any dividend declared to
effect a subdivision of the outstanding shares of Common Stock, the purchase
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 purchase 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 hereof shall thereafter have the right to purchase and
receive, upon the basis and upon the terms and conditions specified in this
Option and in lieu of the shares of Common Stock of the Company immediately
theretofore purchasable and receivable upon the exercise of the rights
represented hereby, 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 purchasable and receivable upon the exercise of the rights
represented hereby had such reorganization, reclassification, consolidation,
merger or sale not taken place, and in any such case appropriate provision shall
be made with respect to the rights and interests of the holder hereof to the end
that the provisions hereof (including without limitation provisions for
adjustments of the purchase price and of the number of shares purchasable upon
the exercise of this Option) shall thereafter be applicable, as nearly as may
be, in relation to any shares of
-71-
stock, securities or assets thereafter deliverable upon the exercise 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 registered
holder hereof 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 as, in accordance with the foregoing provisions, such
holder may be entitled to purchase.
(d) Upon any adjustment of the purchase price, then and in each such case the
Company shall give written notice thereof, by first-class mail, postage prepaid,
addressed to the registered holder of this Option at the address of such holder
as shown on the books of the Company, which notice shall state the purchase
price resulting from such adjustment and the increase or decrease, if any, in
the number of shares purchasable 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.
(e) If any event occurs as to which the other provisions of this Section 13 are
not strictly applicable or if strictly applicable would not fairly protect the
purchase rights of the holder of this Option or of Common Stock in accordance
with the essential intent and principles of such provisions, then this Option
shall be adjusted in the application of such provisions, in accordance with such
essential intent and principles, so as to protect such purchase rights as
aforesaid.
(f) No fractional shares of Common Stock shall be issued upon the exercise of
this Option, but, instead of any fraction of a share which would otherwise be
issuable, the Company shall pay a cash adjustment (which may be effected as a
reduction of the amount to be paid by the holder hereof upon such exercise) in
respect of such fraction in an amount equal to the same fraction of the Market
Price per share of Common Stock on the date of the written notice of exercise
required by Section 9 above. "Market Price" for purposes of this Section 13(f),
Sections 9 and 10 hereof, and for the purpose of determining the option purchase
price shall mean, if the Common Stock is traded on a securities exchange or on
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 5 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
-72-
selected by the Board of Directors of the Company as of the last day of any
month ending within 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 15 days of the date as
of which the determination is to be made.
14. Common Stock. As used herein, the term "Common Stock" shall mean and
-------------
include the Company's presently authorized Common Stock and shall also include
any capital stock of any class of the Company hereafter authorized which 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 of assets
upon the voluntary or involuntary liquidation, dissolution or winding up of the
Company; provided that the shares purchasable pursuant to this Option shall
include shares designated as Common Stock of the Company on the date of original
issue of this Option or, in the case of any reclassification of the outstanding
shares thereof, the stock, securities or assets provided for in Section 13(c)
above.
15. No Voting Rights. This Option shall not entitle the holder hereof to any
----------------
voting rights or other rights as a shareholder of the Company.
16. Optional Conversion.
-------------------
(a) In addition to and without limiting the rights of the holder of this Option
under the terms of this Option, such holder shall have the right (the
"Conversion Right") to convert this Option or any portion thereof into shares of
Common Stock as provided in this Section 16 at any time from and after the
Effective Date and to and including the Expiration Date, subject to the
restrictions set forth in Section 5. Upon exercise of the Conversion Right with
respect to a particular number of shares subject to this Option (the "Converted
Option Shares"), the Company shall deliver to the holder of this Option, without
payment by the holder of any exercise price or any cash or other consideration,
that number of shares of Common Stock equal to the quotient obtained by dividing
the Net Value (as hereinafter defined) of the Converted Option Shares by the
Market Price of a single share of Common Stock, determined in each case as of
the close of business on the Conversion Date (as hereinafter defined). The "Net
Value" of the Converted Option Shares shall be determined by subtracting the
aggregate option purchase price of the Converted Option Shares from the Market
Price of the Converted Option Shares. Notwithstanding anything in this Section
16 to the contrary, the Conversion Right cannot be exercised with respect to a
number of Converted Option Shares having a Net Value below $100. No fractional
shares shall be issuable upon exercise of the Conversion Right, and if the
number of shares to be issued in accordance with the foregoing formula is other
than a whole number, the Company shall pay to the
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holder of this Option an amount in cash equal to the fair market value of the
resulting fractional share.
(b) The Conversion Right may be exercised by the holder of this Option by the
surrender of this Option at the principal office of the Company together with a
written statement specifying that the holder thereby intends to exercise the
Conversion Right and indicating the number of shares subject to this Option
which are being surrendered (referred to in paragraph (a) above as the Converted
Option Shares) in exercise of the Conversion Right. Such conversion shall be
effective upon receipt by the Company of this Option together with the aforesaid
written statement, or on such later date as is specified therein (the
"Conversion Date"), but not later than the Expiration Date. Certificates for
the shares of Common Stock issuable upon exercise of the Conversion Right,
together with a check in payment of any fractional share and, in the case of a
partial exercise, a new option evidencing the shares remaining subject to this
Option, shall be issued as of the Conversion Date and shall be delivered to the
holder of this Option within 7 days following the Conversion Date.
17. Governing Law. All questions concerning this Option will be governed and
-------------
interpreted and enforced in accordance with the internal law of the State of
Minnesota without regard for principles of conflict of law.
ACCEPTED: SUMMIT MEDICAL SYSTEMS, INC.
______________________________________ By_____________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III, M.D.
Its____________________________
________________________________________________________________________________
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EXHIBIT A
CONTRACT VALUE
The Contract Value of each On-line Outcomes Registry Agreement shall be
determined in accordance with the following procedures. The Contract Value of
each On-line Outcomes Registry Agreement shall equal the sum of (a) the Fixed
Fees (as hereinafter defined) and (b) the Variable Fees (as hereinafter
defined). "Fixed Fees" shall mean the sum of all sponsorship fees, periodic
site license fees or other fixed fees to be paid to the Company during the term
of the On-line Outcomes Registry Agreement for which a cash payment of an amount
certain is specified in such agreement. "Variable Fees" shall mean the product
of the Estimated Fees (as hereinafter defined) multiplied by .75. "Estimated
Fees" shall mean the sum of all usage, encounter, inquiry, training, service and
other variable fees, based on usage of the registry and related services by
participants, to be paid to the Company during the term of the On-line Outcomes
Registry Agreement. The Company shall estimate the Estimated Fees in good faith
as of the date the On-line Outcomes Registry Agreement is executed and
delivered. The Company represents, warrants and covenants that it will have a
reasonable basis for its estimate of Estimated Fees and that such estimate will
be prepared on a basis consistent with the internal projections of the Company.
The estimate of Estimated Fees will be prepared using the pricing terms as set
forth in the On-line Outcomes Registry Agreement, including, without limitation,
estimates of any volume discounts, based on the usage estimates made in
accordance with the following sentence. The Company shall prepare in good faith
an estimate of the usage of the registry and related services by participants
over the term of the On-line Outcomes Registry Agreement. By way of example
only, an estimate of the Estimated Fees for a stent registry would include (i)
an estimate of the number of cardiac catheter laboratories ("cath labs") to be
covered by the agreement, (ii) an estimate of the size distribution of such cath
labs, (iii) an estimate of usage of the registry and related services by each
cath lab based on its size, and (iv) an estimate of any volume discounts based
on the foregoing. The foregoing procedure shall be applied in a manner similar
to the illustration attached hereto as Exhibit B, subject to the specific terms
and conditions of the applicable On-Line Outcomes Registry Agreement; provided,
that in Exhibit B the calculation of Contract Value illustrated therein shall
not include the Net Present Value discount shown, but, rather, shall include the
multiplication of any Estimated Fees by the factor of .75.
________________________________________________________________________________
-75-
SUMMIT MEDICAL SYSTEMS, INC.
----------------------------
NOTICE OF EXERCISE OF STOCK OPTION
----------------------------------
To: Board of Directors
SUMMIT MEDICAL SYSTEMS, INC.
I hereby exercise my Option dated __________ to purchase _____ shares of $.01
par value common stock of the Company at the option exercise price of
$__________ per share. Enclosed is a certified or cashier's check in the total
amount of $__________, or payment in such other form as the Company has
specified.
I request that my shares be issued in my name as follows:
________________________________________________________________________________
(Print your name in the form in which you wish to
have the shares registered)
________________________________________________________________________________
(Social Security Number)
________________________________________________________________________________
(Street and Number)
________________________________________________________________________________
(City) (State) (Zip Code)
Dated: __________, 19__.
Signature: ___________________________
________________________________________________________________________________
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EXHIBIT I
AMENDMENT
THIS AMENDMENT is made and entered into as of December 31, 1996 (the
"Effective Date"), by and between SUMMIT MEDICAL SYSTEMS, INC., a Minnesota
corporation ("Summit") and ▇▇ ▇▇▇▇ LLC, a North Carolina limited liability
company.
Recitals
--------
WHEREAS, Summit and ▇▇ ▇▇▇▇ entered into the Limited Liability Company
Agreement of Cordillera LLC dated December 29, 1995 (the "LLC Agreement"),
pursuant to which Summit and ▇▇ ▇▇▇▇ became the sole Members (as that term is
defined in the LLC Agreement) of Cordillera LLC, a North Carolina limited
liability company ("Cordillera");
WHEREAS, Summit has agreed to acquire all of ▇▇ ▇▇▇▇'▇ Member Units in
Cordillera pursuant to a Reorganization Agreement (the "Reorganization
Agreement") by and among Summit, Cordillera, ▇▇ ▇▇▇▇ and Duke University, a
North Carolina not-for-profit company ("Duke");
WHEREAS, as a result of Summit becoming the sole Member of Cordillera,
certain modifications to the LLC Agreement are required.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
herein contained, the parties do hereby agree:
1. Names and Addresses of the Members. The name and address of ▇▇ ▇▇▇▇ is
----------------------------------
deleted in its entirety from Section 1.3 of the LLC Agreement.
2. Capital Contribution of Duke. Section 4.2 of the LLC Agreement is
----------------------------
deleted in its entirety.
3. Additional Capital Contributions by Summit. Any and all obligations of
------------------------------------------
Summit to make any Capital Contributions to Cordillera, pursuant to Section 4.3
of the LLC Agreement, after the Effective Date are hereby extinguished.
4. Number of Managers. Section 6.3 of the LLC Agreement is deleted in its
------------------
entirety and replaced by the following:
________________________________________________________________________________
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The number of Managers shall, at all times, be two. The two Managers shall be
appointed by Summit. Summit, in its sole discretion, may remove one or more of
the Managers who were appointed by it and appoint a new Manager or Managers.
5. Purchase Option. Section 9.8 of the LLC Agreement is deleted in its
---------------
entirety.
6. Conversion to Corporation. Section 11.4(a) of the LLC Agreement is
-------------------------
deleted in its entirety.
7. Limitation on Benefits of this Agreement. All rights given to Duke (or its
----------------------------------------
assigns) to enforce the terms of the LLC Agreement are hereby deleted from
Section 14.8 of the LLC Agreement and extinguished as of the Effective Date.
8. Effect of Amendment. Except as expressly modified herein, the LLC
-------------------
Agreement shall remain in full force and effect in accordance with its terms.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed in
duplicate as of the Effective Date.
SUMMIT MEDICAL SYSTEMS, INC. ▇▇ ▇▇▇▇ LLC
By_______________________________ By________________________________
Name_____________________________ Name______________________________
Title____________________________ Title_____________________________
________________________________________________________________________________
SO AGREED:
DUKE UNIVERSITY
By______________________________
Name____________________________
Title___________________________
________________________________
________________________________________________________________________________
-78-
EXHIBIT J
WARRANT
To Subscribe for and Purchase Common Stock of
SUMMIT MEDICAL SYSTEMS, INC.
THIS CERTIFIES THAT, for value received, Duke University (herein called
"Purchaser") or registered assigns is entitled to subscribe for and purchase
from Summit Medical Systems, Inc. (herein called the "Company"), a corporation
organized and existing under the laws of the State of Minnesota, at the price
specified below (subject to adjustment as noted below) at any time from and
after the date hereof (the "Issuance Date") to and including the tenth
anniversary of the Issuance Date (the "Expiration Date"), 150,000 fully paid and
nonassessable shares of the Company's Common Stock (subject to adjustment as
noted below).
The warrant purchase price per share (subject to adjustment as noted below)
shall be equal to $7.50 per share of the Company's Common Stock on the Issuance
Date.
This Warrant is subject to the following provisions, terms and conditions:
1. Exercise. The rights represented by this Warrant may be exercised by
--------
the holder hereof, in whole or in part, by written notice of exercise delivered
to the principal office of the Company, accompanied by this Warrant (properly
endorsed if required) and the warrant purchase price in the form of (i) check,
(ii) the Company's Common Stock or (iii) a combination of the payment forms in
(i) and (ii); provided, however, that if any shares of the Company's Common
stock are used for such payment, the value of each share surrendered by the
Purchaser shall be equal to the market price (as defined in paragraph 3(f)
hereof) per share of the Company's Common Stock on the date such shares are
mailed or otherwise dispatched by the Purchaser. The Company agrees that the
shares so purchased shall be and are deemed to be issued to the 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 as
aforesaid. Certificates for the shares of stock so purchased shall be delivered
to the holder hereof within a reasonable time, not exceeding ten business days,
after the rights represented by this Warrant shall have been so exercised, and,
unless this Warrant has expired, a new Warrant representing the number of
shares, if any, with respect to which this Warrant shall not then have been
exercised shall also be delivered to the holder hereof within such time.
2. Covenants of the Company. The Company covenants and agrees that all
------------------------
shares which may be issued upon the exercise of the rights represented by this
Warrant will, upon issuance, be duly authorized and issued, fully paid and
nonassessable. The Company further covenants and agrees that during the period
within which the rights represented by this Warrant may be exercised, the
Company will at all times have authorized, and reserved for the purpose of issue
or transfer upon exercise of the subscription rights evidenced by this Warrant,
a sufficient number of shares of its Common Stock to provide for the exercise of
the rights represented by this Warrant.
________________________________________________________________________________
-79-
3. Anti-Dilution Adjustments. The above provisions are, however, subject
-------------------------
to the following:
(a) The warrant purchase price shall, from and after the date of
issuance of this Warrant, be subject to adjustment from time to time as
hereinafter provided. Upon each adjustment of the warrant purchase price,
the holder of this Warrant shall thereafter be entitled to purchase, at the
warrant purchase price resulting from such adjustment, the number of shares
obtained by multiplying the warrant purchase 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 warrant purchase 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, including any
dividend declared to effect a subdivision of the outstanding shares of
Common Stock, the warrant purchase 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 warrant purchase 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 hereof shall thereafter
have the right to purchase and receive, upon the basis and upon the terms
and conditions specified in this Warrant and in lieu of the shares of
Common Stock of the Company immediately theretofore purchasable and
receivable upon the exercise of the rights represented hereby, 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
purchasable and receivable upon the exercise of the rights represented
hereby had such reorganization, reclassification, consolidation, merger or
sale not taken place, and in any such case appropriate provision shall be
made with respect to the rights and interests of the holder of this Warrant
to the end that the provisions hereof (including without limitation
provisions for adjustments of the warrant purchase price and of the number
of shares purchasable upon the exercise 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 exercise 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 registered holder hereof 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 as, in accordance with
the foregoing provisions, such holder may be entitled to purchase.
(d) Upon any adjustment of the warrant purchase price, then and in
each such case the Company shall give written notice thereof, by first-
class mail, postage prepaid, addressed to the registered holder of this
Warrant at the address of such holder as shown on the books of the Company,
which notice shall state the warrant purchase price resulting from such
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adjustment and the increase or decrease, if any, in the number of shares
purchasable at such price upon the exercise of this Warrant, setting forth
in reasonable detail the method of calculation and the facts upon which
such calculation is based.
(e) If any event occurs as to which the other provisions of this
paragraph 3 are not strictly applicable or if strictly applicable would not
fairly protect the purchase rights of the holder of this Warrant or of
Common Stock in accordance with the essential intent and principles of such
provisions, then this Warrant shall be adjusted in the application of such
provisions, in accordance with such essential intent and principles, so as
to protect such purchase rights as aforesaid.
(f) No fractional shares of Common Stock shall be issued upon the
exercise of this Warrant, but, instead of any fraction of a share which
would otherwise be issuable, the Company shall pay a cash adjustment (which
may be effected as a reduction of the amount to be paid by the holder
hereof upon such exercise) in respect of such fraction in an amount equal
to the same fraction of the market price per share of Common Stock on the
date of the written notice of exercise required by paragraph 1 above.
"Market price" for purposes of this paragraph 3(f), paragraph 1 and
paragraph 9(d) hereof, and for the purpose of determining the warrant
purchase price shall mean, if the Common Stock is traded on a securities
exchange or on 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 5 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 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 15 days of the date as of which the determination is
to be made.
4. Common Stock. As used herein, the term "Common Stock" shall mean and
------------
include the Company's presently authorized Common Stock and shall also include
any capital stock of any class of the Company hereafter authorized which 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 of assets
upon the voluntary or involuntary liquidation, dissolution or winding up of the
Company; provided that the shares purchasable pursuant to this Warrant shall
include shares designated as Common Stock of the Company on the date of original
issue of this Warrant or, in the case of any reclassification of the outstanding
shares thereof, the stock, securities or assets provided for in paragraph 3(c)
above.
5. No Voting Rights. This Warrant shall not entitle the holder hereof to
----------------
any voting rights or other rights as a shareholder of the Company.
6. Notice of Transfer of Warrant or Resale of Shares. The holder of this
-------------------------------------------------
Warrant, by acceptance hereof, agrees to give written notice to the Company
before transferring this Warrant or transferring any Common Stock issuable or
issued upon the exercise hereof of such holder's intention to do so, describing
briefly the manner of any proposed transfer of this Warrant or such holder's
intention as to the disposition to be made of shares of Common Stock issuable or
issued upon the exercise hereof. Such holder shall also provide the Company with
written representations from the holder and the
-81-
proposed transferee satisfactory to the Company regarding the transfer or, at
the election of the Company, an opinion of counsel reasonably satisfactory to
the Company to the effect that the proposed transfer of this Warrant or
disposition of shares may be effected without registration or qualification
(under any Federal or State law) of this Warrant or the shares of Common Stock
issuable or issued upon the exercise hereof. Upon receipt of such written notice
and either such representations or opinion by the Company, such holder shall be
entitled to transfer this Warrant, or to exercise this Warrant in accordance
with its terms and dispose of the shares received upon such exercise or to
dispose of shares of Common Stock received upon the previous exercise of this
Warrant, all in accordance with the terms of the notice delivered by such holder
to the Company, provided that an appropriate legend, if any, respecting the
aforesaid restrictions on transfer and disposition may be endorsed on this
Warrant or the certificates for such shares.
7. Transferability. Subject to the provisions of paragraph 6 hereof, this
---------------
Warrant and all rights hereunder are transferable, in whole or in part, at the
principal office of the Company by the holder hereof in person or by duly
authorized attorney, upon surrender of this Warrant properly endorsed. Each
taker and holder of this Warrant, by taking or holding the same, consents and
agrees that the bearer of this Warrant, when endorsed, may be treated by the
Company and all other persons dealing with this Warrant as the absolute owner
hereof for any purpose and as the person entitled to exercise the rights
represented by this Warrant, or to the transfer hereof on the books of the
Company, any notice to the contrary notwithstanding; but until such transfer on
such books, the Company may treat the registered holder hereof as the owner for
all purposes.
This Warrant is exchangeable, upon the surrender hereof by the holder
hereof at the principal office of the Company, for new Warrants of like tenor
representing in the aggregate the right to subscribe for and purchase the number
of shares which may be subscribed for and purchased hereunder, each of such new
Warrants to represent the right to subscribe for and purchase such number of
shares as shall be designated by said holder hereof at the time of such
surrender.
8. Registration Rights. The holder of this Warrant and of the Common
-------------------
Stock issuable or issued upon the exercise hereof shall be entitled to the
registration rights set forth in that certain Investment and Registration Rights
Agreement, dated December 31, 1996, by and between the Purchaser and the Company
9. Optional Conversion.
-------------------
(a) In addition to and without limiting the rights of the holder of
this Warrant under the terms of this Warrant, the holder of this Warrant
shall have the right (the "Conversion Right") to convert this Warrant or
any portion thereof into shares of Common Stock as provided in this
paragraph 9 at any time from and after the Issuance Date and to and
including the Expiration Date, subject to the restrictions set forth in
paragraph (c) below. Upon exercise of the Conversion Right with respect to
a particular number of shares subject to this Warrant (the "Converted
Warrant Shares"), the Company shall deliver to the holder of this Warrant,
without payment by the holder of any exercise price or any cash or other
consideration, that number of shares of Common Stock equal to the quotient
obtained by dividing the Net Value (as hereinafter defined) of the
Converted Warrant Shares by the fair market value (as defined in paragraph
(d) below) of a single share of Common Stock, determined in each case as of
the close of business on the Conversion Date (as hereinafter defined). The
"Net Value" of the Converted Warrant Shares shall be determined by
subtracting the aggregate warrant purchase price of the Converted Warrant
Shares from the aggregate fair market value of the Converted Warrant
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Shares. Notwithstanding anything in this paragraph 9 to the contrary, the
Conversion Right cannot be exercised with respect to a number of Converted
Warrant Shares having a Net Value below $100. No fractional shares shall
be issuable upon exercise of the Conversion Right, and if the number of
shares to be issued in accordance with the foregoing formula is other than
a whole number, the Company shall pay to the holder of this Warrant an
amount in cash equal to the fair market value of the resulting fractional
share.
(b) The Conversion Right may be exercised by the holder of this
Warrant by the surrender of this Warrant at the principal office of the
Company together with a written statement specifying that the holder
thereby intends to exercise the Conversion Right and indicating the number
of shares subject to this Warrant which are being surrendered (referred to
in paragraph (a) above as the Converted Warrant Shares) in exercise of the
Conversion Right. Such conversion shall be effective upon receipt by the
Company of this Warrant together with the aforesaid written statement, or
on such later date as is specified therein (the "Conversion Date"), but not
later than the expiration date of this Warrant. Certificates for the
shares of Common Stock issuable upon exercise of the Conversion Right,
together with a check in payment of any fractional share and, in the case
of a partial exercise, a new warrant evidencing the shares remaining
subject to this Warrant, shall be issued as of the Conversion Date and
shall be delivered to the holder of this Warrant within 7 days following
the Conversion Date.
(c) In the event the Conversion Right would, at any time this Warrant
remains outstanding, be deemed by the Company's independent certified
public accountants to give rise to a charge to the Company's earnings for
financial reporting purposes, then the Conversion Right shall automatically
terminate upon the Company's written notice to the holder of this Warrant
of such adverse accounting treatment.
(d) For purposes of this paragraph 10, the "fair market value" of a
share of Common Stock as of a particular date shall be its "market price",
calculated as described in paragraph 4(g) hereof.
10. Governing Law. All questions concerning this Warrant will be governed
-------------
and interpreted and enforced in accordance with the internal law of the State of
Minnesota without regard for principles of conflict of law.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officer and this Warrant to be dated as of December 31, 1996.
SUMMIT MEDICAL SYSTEMS, INC.
By___________________________
Name:
Title:
________________________________________________________________________________
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RESTRICTION ON TRANSFER
THIS WARRANT OR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
HEREOF MAY NOT BE RESOLD OR TRANSFERRED UNLESS SUCH RESALE OR TRANSFER IS
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND ANY APPLICABLE STATE SECURITIES LAWS ("LAWS"), AND THE
COMPANY RECEIVES, PRIOR TO RESALE OR TRANSFER, WRITTEN REPRESENTATIONS OF THE
HOLDER AND PROPOSED TRANSFEREE SATISFACTORY TO THE COMPANY REGARDING SUCH
TRANSFER OR, AT THE ELECTION OF THE COMPANY, AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT THE PROPOSED TRANSFER OF THIS
WARRANT OR OF SUCH SHARES MAY BE EFFECTED WITHOUT REGISTRATION UNDER THE ACT OR
QUALIFICATION UNDER THE LAWS , OR THE RESALE OR TRANSFER OF THIS WARRANT OR OF
SUCH SHARES IS REGISTERED UNDER THE ACT AND ANY APPLICABLE LAWS.
________________________________________________________________________________
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FORM OF ASSIGNMENT
(To Be Signed Only Upon Assignment)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto __________________________ Warrant, and appoints _________________________
transfer this Warrant on the books of the Company with the full power of
substitution in the premises.
Dated:
In the presence of:
Signature:____________________________________
Note: The signature must conform in all
respects to the name of the holder as written
on the face of this Warrant without alteration,
enlargement or any change whatsoever, and the
signature must be guaranteed in the usual
manner.
________________________________________________________________________________
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SUBSCRIPTION FORM
To be Executed by the Holder of this Warrant if such Holder
Desires to Exercise this Warrant in Whole or in Part:
To: Summit Medical Systems, Inc. (the "Company")
The undersigned,____________________________, hereby irrevocably elects to
exercise the right of purchase represented by this Warrant for, and to purchase
thereunder, _________________ shares of Common Stock provided for therein and
tenders payment herewith to the order of the Company in the amount of
$__________________, such payment being made as provided on the face of this
Warrant.
Please insert Social Security or other identifying number of the
undersigned:
___________________________________
The undersigned requests that certificates for such shares of Common Stock
be issued as follows:
Name:_____________________________________________
Address:__________________________________________
Deliver to:_______________________________________
Address:__________________________________________
and, if such number of shares of Common Stock shall not be all the shares of
Common Stock purchasable hereunder, that a new Warrant for the balance remaining
of the shares of Common Stock purchasable under this Warrant be registered in
the name of, and delivered to, the undersigned at the address stated above.
Dated:
Signature:______________________________
Note: The signature must conform in all
respects to the name of the holder as
written on the face of this Warrant
without alteration, enlargement or any
change whatsoever.
________________________________________
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WARRANT
To Subscribe for and Purchase Common Stock of
SUMMIT MEDICAL SYSTEMS, INC.
THIS CERTIFIES THAT, for value received, Duke University (herein called
"Purchaser") or registered assigns, subject to the terms and conditions set
forth herein, is entitled to subscribe for and purchase from Summit Medical
Systems, Inc. (herein called the "Company"), a corporation organized and
existing under the laws of the State of Minnesota, at the price specified below
(subject to adjustment as noted below) at any time from and after the date
hereof (the "Issuance Date") to and including the tenth anniversary of the
Issuance Date (the "Expiration Date"), 50,000 fully paid and nonassessable
shares of the Company's Common Stock (subject to adjustment as noted below).
The warrant purchase price per share (subject to adjustment as noted below)
shall be equal to $7.50 per share of the Company's Common Stock on the Issuance
Date.
This Warrant is subject to the following provisions, terms and conditions:
1. Exercise. This Warrant shall be exercisable by the holder hereof in
--------
accordance with the following terms and conditions:
(a) In the event that (i) prior to the fifth anniversary of the Issuance Date,
the Company shall have entered into On-line Outcomes Registry Agreements (as
hereinafter defined) which have in the aggregate Contract Values (as hereinafter
defined) of at least $40 million, and (ii) as of the date, if any, on which
clause (i) is satisfied, the average of the last reported sale prices of the
Company's common stock on the Nasdaq National Market during the period of the
thirty most recent trading days, ending on the date on which clause (i) is
satisfied, is less than $28.00 per share, this Warrant may be exercised by the
holder hereof, in whole or in part, as to 25,000 shares of the Company's Common
Stock in accordance with paragraph 1(b) hereof. "On-line Outcomes Registry
Agreements" shall mean any written agreement, understanding or arrangement
pursuant to which the Company will develop, maintain, manage, operate, or
otherwise provide services related to, a central registry or database (a
"registry") that collects clinical medical data from participants in the
registry or database, primarily using On-line Technologies (as hereinafter
defined) to receive data into the registry, to process queries to the registry,
and to deliver reports and responses to the participants in the registry. "On-
line Technologies" shall mean software products and related services that
require a participant in the registry to access an off-site central processing
unit or server maintained by the Company or a third party in order to input,
aggregate, access and/or process the participant's clinical medical data and
other data from, or reports based on, the clinical medical data in the registry.
"Contract Value", as to any On-line Outcomes Registry Agreement, shall be
determined in accordance with Exhibit A hereto. Notwithstanding the foregoing,
in the event that, prior to the fifth anniversary of the Issuance Date, the
Company shall have entered into On-line Outcomes Registry Agreements which have
in the aggregate Contract Values of at least $75 million, this Warrant may be
exercised, in whole or in part, as to 50,000 shares of the Company's Common
Stock in accordance in paragraph 1(b) hereof. The Company agrees that within 20
business days of the execution and delivery of each On-line Outcomes Registry
Agreement, the Company will determine in good faith the Contract Value of such
On-line
-▇▇-
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Agreement in accordance with the provisions of Exhibit A and
will give written notice to the holder hereof, which notice shall state the
Contract Value for such On-line Outcomes Registry Agreement as determined by the
Company and the aggregate Contract Values for all On-line Outcomes Registry
Agreements as of the date of such notice. The calculation of Contract Value set
forth in this notice shall be certified by ▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D. as Chief
Scientific Officer of the Company. If the holder hereof objects to the
determination of Contract Value within 30 business days following the date of
the notice, the Company and such holder shall negotiate in good faith for a
period of 30 business days to settle any dispute regarding the Contract Value.
If such dispute has not been settled within such 30 business day period, the
dispute shall be settled in accordance with the arbitration provision of
paragraph 11.
(b) Upon rights represented by this Warrant becoming exercisable in accordance
with paragraph 1(a) hereof, this Warrant may be exercised by the holder hereof,
in whole or in part, by written notice of exercise delivered to the principal
office of the Company, accompanied by this Warrant (properly endorsed if
required) and the warrant purchase price in the form of (i) check, (ii) the
Company's Common Stock or (iii) a combination of the payment forms in (i) and
(ii); provided, however, that if any shares of the Company's Common stock are
used for such payment, the value of each share surrendered by the Purchaser
shall be equal to the market price (as defined in paragraph 3(f) hereof) per
share of the Company's Common Stock on the date such shares are mailed or
otherwise dispatched by the Purchaser. The Company agrees that the shares so
purchased shall be and are deemed to be issued to the 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 as
aforesaid. Certificates for the shares of stock so purchased shall be delivered
to the holder hereof within a reasonable time, not exceeding ten business days,
after the rights represented by this Warrant shall have been so exercised, and,
unless this Warrant has expired, a new Warrant representing the number of
shares, if any, with respect to which this Warrant shall not then have been
exercised shall also be delivered to the holder hereof within such time.
2. Covenants of the Company. The Company covenants and agrees that all shares
------------------------
which may be issued upon the exercise of the rights represented by this Warrant
will, upon issuance, be duly authorized and issued, fully paid and
nonassessable. The Company further covenants and agrees that during the period
within which the rights represented by this Warrant may be exercised, the
Company will at all times have authorized, and reserved for the purpose of issue
or transfer upon exercise of the subscription rights evidenced by this Warrant,
a sufficient number of shares of its Common Stock to provide for the exercise of
the rights represented by this Warrant.
3. Anti-Dilution Adjustments. The above provisions are, however, subject to
-------------------------
the following:
(a) The warrant purchase price shall, from and after the date of issuance of
this Warrant, be subject to adjustment from time to time as hereinafter
provided. Upon each adjustment of the warrant purchase price, the holder of this
Warrant shall thereafter be entitled to purchase, at the warrant purchase price
resulting from such adjustment, the number of shares obtained by multiplying the
warrant purchase 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 warrant purchase 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, including any dividend declared to
effect a subdivision of the outstanding shares of Common Stock, the warrant
purchase price in effect immediately prior to such subdivision
-88-
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 warrant purchase 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 hereof shall thereafter have the right to purchase and
receive, upon the basis and upon the terms and conditions specified in this
Warrant and in lieu of the shares of Common Stock of the Company immediately
theretofore purchasable and receivable upon the exercise of the rights
represented hereby, 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 purchasable and receivable upon the exercise of the rights
represented hereby had such reorganization, reclassification, consolidation,
merger or sale not taken place, and in any such case appropriate provision shall
be made with respect to the rights and interests of the holder of this Warrant
to the end that the provisions hereof (including without limitation provisions
for adjustments of the warrant purchase price and of the number of shares
purchasable upon the exercise 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 exercise 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 registered holder hereof 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
as, in accordance with the foregoing provisions, such holder may be entitled to
purchase.
(d) Upon any adjustment of the warrant purchase price, then and in each such
case the Company shall give written notice thereof, by first-class mail, postage
prepaid, addressed to the registered holder of this Warrant at the address of
such holder as shown on the books of the Company, which notice shall state the
warrant purchase price resulting from such adjustment and the increase or
decrease, if any, in the number of shares purchasable at such price upon the
exercise of this Warrant, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based.
(e) If any event occurs as to which the other provisions of this paragraph 3 are
not strictly applicable or if strictly applicable would not fairly protect the
purchase rights of the holder of this Warrant or of Common Stock in accordance
with the essential intent and principles of such provisions, then this Warrant
shall be adjusted in the application of such provisions, in accordance with such
essential intent and principles, so as to protect such purchase rights as
aforesaid.
(f) No fractional shares of Common Stock shall be issued upon the exercise of
this Warrant, but, instead of any fraction of a share which would otherwise be
issuable, the Company shall pay a cash adjustment (which may be effected as a
reduction of the amount to be paid by the holder hereof upon such exercise) in
respect of such fraction in an amount equal to the same fraction of the market
price per share of Common Stock on the date of the written notice of exercise
required by paragraph 1 above. "Market price" for purposes of this paragraph
3(f), paragraph 1 and paragraph 9(d) hereof, and for the purpose of determining
the warrant purchase price shall mean, if the Common Stock is traded on a
securities exchange or on the Nasdaq National Market, the closing price of the
Common Stock on such
-89-
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 5 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 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 15 days of the date as of which the determination is to be made.
4. Common Stock. As used herein, the term "Common Stock" shall mean and
------------
include the Company's presently authorized Common Stock and shall also include
any capital stock of any class of the Company hereafter authorized which 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 of assets
upon the voluntary or involuntary liquidation, dissolution or winding up of the
Company; provided that the shares purchasable pursuant to this Warrant shall
include shares designated as Common Stock of the Company on the date of original
issue of this Warrant or, in the case of any reclassification of the outstanding
shares thereof, the stock, securities or assets provided for in paragraph 3(c)
above.
5. No Voting Rights. This Warrant shall not entitle the holder hereof to any
----------------
voting rights or other rights as a shareholder of the Company.
6. Notice of Transfer of Warrant or Resale of Shares. The holder of this
-------------------------------------------------
Warrant, by acceptance hereof, agrees to give written notice to the Company
before transferring this Warrant or transferring any Common Stock issuable or
issued upon the exercise hereof of such holder's intention to do so, describing
briefly the manner of any proposed transfer of this Warrant or such holder's
intention as to the disposition to be made of shares of Common Stock issuable or
issued upon the exercise hereof. Such holder shall also provide the Company with
written representations from the holder and the proposed transferee satisfactory
to the Company regarding the transfer or, at the election of the Company, an
opinion of counsel reasonably satisfactory to the Company to the effect that the
proposed transfer of this Warrant or disposition of shares may be effected
without registration or qualification (under any Federal or State law) of this
Warrant or the shares of Common Stock issuable or issued upon the exercise
hereof. Upon receipt of such written notice and either such representations or
opinion by the Company, such holder shall be entitled to transfer this Warrant,
or to exercise this Warrant in accordance with its terms and dispose of the
shares received upon such exercise or to dispose of shares of Common Stock
received upon the previous exercise of this Warrant, all in accordance with the
terms of the notice delivered by such holder to the Company, provided that an
appropriate legend, if any, respecting the aforesaid restrictions on transfer
and disposition may be endorsed on this Warrant or the certificates for such
shares.
7. Transferability. Subject to the provisions of paragraph 6 hereof, this
---------------
Warrant and all rights hereunder are transferable, in whole or in part, at the
principal office of the Company by the holder hereof in person or by duly
authorized attorney, upon surrender of this Warrant properly endorsed. Each
taker and holder of this Warrant, by taking or holding the same, consents and
agrees that the bearer of this Warrant, when endorsed, may be treated by the
Company and all other persons dealing with this Warrant as the absolute owner
hereof for any purpose and as the person entitled to exercise the rights
represented by this Warrant, or to the transfer hereof on the books of the
Company, any
-90-
notice to the contrary notwithstanding; but until such transfer on such books,
the Company may treat the registered holder hereof as the owner for all
purposes.
This Warrant is exchangeable, upon the surrender hereof by the holder hereof at
the principal office of the Company, for new Warrants of like tenor representing
in the aggregate the right to subscribe for and purchase the number of shares
which may be subscribed for and purchased hereunder, each of such new Warrants
to represent the right to subscribe for and purchase such number of shares as
shall be designated by said holder hereof at the time of such surrender.
8. Registration Rights. The holder of this Warrant and of the Common Stock
-------------------
issuable or issued upon the exercise hereof shall be entitled to the
registration rights set forth in that certain Investment and Registration Rights
Agreement, dated December 31, 1996, by and between the Purchaser and the Company
9. Optional Conversion.
-------------------
(a) In addition to and without limiting the rights of the holder of this Warrant
under the terms of this Warrant, the holder of this Warrant shall have the right
(the "Conversion Right") to convert this Warrant or any portion thereof into
shares of Common Stock as provided in this paragraph 9 at any time from and
after the Issuance Date and to and including the Expiration Date, subject to the
restrictions set forth in paragraph (c) below. Upon exercise of the Conversion
Right with respect to a particular number of shares subject to this Warrant (the
"Converted Warrant Shares"), the Company shall deliver to the holder of this
Warrant, without payment by the holder of any exercise price or any cash or
other consideration, that number of shares of Common Stock equal to the quotient
obtained by dividing the Net Value (as hereinafter defined) of the Converted
Warrant Shares by the fair market value (as defined in paragraph (d) below) of a
single share of Common Stock, determined in each case as of the close of
business on the Conversion Date (as hereinafter defined). The "Net Value" of the
Converted Warrant Shares shall be determined by subtracting the aggregate
warrant purchase price of the Converted Warrant Shares from the aggregate fair
market value of the Converted Warrant Shares. Notwithstanding anything in this
paragraph 9 to the contrary, the Conversion Right cannot be exercised with
respect to a number of Converted Warrant Shares having a Net Value below $100.
No fractional shares shall be issuable upon exercise of the Conversion Right,
and if the number of shares to be issued in accordance with the foregoing
formula is other than a whole number, the Company shall pay to the holder of
this Warrant an amount in cash equal to the fair market value of the resulting
fractional share.
(b) The Conversion Right may be exercised by the holder of this Warrant by the
surrender of this Warrant at the principal office of the Company together with a
written statement specifying that the holder thereby intends to exercise the
Conversion Right and indicating the number of shares subject to this Warrant
which are being surrendered (referred to in paragraph (a) above as the Converted
Warrant Shares) in exercise of the Conversion Right. Such conversion shall be
effective upon receipt by the Company of this Warrant together with the
aforesaid written statement, or on such later date as is specified therein (the
"Conversion Date"), but not later than the expiration date of this Warrant.
Certificates for the shares of Common Stock issuable upon exercise of the
Conversion Right, together with a check in payment of any fractional share and,
in the case of a partial exercise, a new warrant evidencing the shares remaining
subject to this Warrant, shall be issued as of the Conversion Date and shall be
delivered to the holder of this Warrant within 7 days following the Conversion
Date.
________________________________________________________________________________
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(c) In the event the Conversion Right would, at any time this Warrant remains
outstanding, be deemed by the Company's independent certified public accountants
to give rise to a charge to the Company's earnings for financial reporting
purposes, then the Conversion Right shall automatically terminate upon the
Company's written notice to the holder of this Warrant of such adverse
accounting treatment.
(d) For purposes of this paragraph 10, the "fair market value" of a share of
Common Stock as of a particular date shall be its "market price", calculated as
described in paragraph 4(g) hereof.
10. Governing Law. All questions concerning this Warrant will be governed and
-------------
interpreted and enforced in accordance with the internal law of the State of
Minnesota without regard for principles of conflict of law.
11. Final and Binding Arbitration. Any dispute, claim or controversy arising
-----------------------------
out of or in connection with this Warrant which has not been settled through
negotiation within a period of thirty (30) days after the date on which either
party shall first have notified the other party in writing of the existence of a
dispute shall be settled by final and binding arbitration under the then
applicable Commercial Arbitration Rules of the American Arbitration Association
("AAA"). Any such arbitration shall be conducted by three (3) arbitrators
appointed by mutual agreement of the parties or, failing such agreement, in
accordance with such AAA Rules. At least one (1) arbitrator shall be an
experienced computer software professional, and at least one (1) arbitrator
shall be an experienced business attorney with background in the licensing and
distribution of computer software. Any such arbitration shall be conducted in
Minneapolis, Minnesota, if initiated by the holder hereof and in Durham, North
Carolina, if initiated by the Company. An arbitral award may be enforced in any
court of competent jurisdiction. Notwithstanding any contrary provision in the
AAA Rules, the following additional procedures and rules shall apply to any such
arbitration:
(a) Each party shall have the right to request from the arbitrators, and the
arbitrators shall order upon good cause shown, reasonable and limited pre-
hearing discovery, including (i) exchange of witness lists, (ii) depositions
under oath of named witnesses at a mutually convenient location, (iii) written
interrogatories, and (iv) document requests.
(b) Upon conclusion of the pre-hearing discovery, the arbitrators shall promptly
hold a hearing upon the evidence to be adduced by the parties and shall promptly
render a written opinion and award.
(c) The arbitrators may not award or assess punitive damages against either
party.
(d) Each party shall bear its own costs and expenses of the arbitration and one-
half (1/2) of the fees and costs of the arbitrators, subject to the power of the
arbitrators, in their sole discretion, to award all such reasonable cots,
expenses and fees to the prevailing party.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its duly
authorized officer and this Warrant to be dated as of December 31, 1996.
SUMMIT MEDICAL SYSTEMS, INC.
By___________________________
Name:
Title:
________________________________________________________________________________
-92-
RESTRICTION ON TRANSFER
THIS WARRANT OR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF MAY NOT
BE RESOLD OR TRANSFERRED UNLESS SUCH RESALE OR TRANSFER IS EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
AND ANY APPLICABLE STATE SECURITIES LAWS ("LAWS"), AND THE COMPANY RECEIVES,
PRIOR TO RESALE OR TRANSFER, WRITTEN REPRESENTATIONS OF THE HOLDER AND PROPOSED
TRANSFEREE SATISFACTORY TO THE COMPANY REGARDING SUCH TRANSFER OR, AT THE
ELECTION OF THE COMPANY, AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY TO THE EFFECT THAT THE PROPOSED TRANSFER OF THIS WARRANT OR OF SUCH
SHARES MAY BE EFFECTED WITHOUT REGISTRATION UNDER THE ACT OR QUALIFICATION UNDER
THE LAWS , OR THE RESALE OR TRANSFER OF THIS WARRANT OR OF SUCH SHARES IS
REGISTERED UNDER THE ACT AND ANY APPLICABLE LAWS.
________________________________________________________________________________
-93-
FORM OF ASSIGNMENT
(To Be Signed Only Upon Assignment)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
__________________________ Warrant, and appoints _________________________
transfer this Warrant on the books of the Company with the full power of
substitution in the premises.
Dated:
In the presence of:
Signature:______________________________
Note: The signature must conform in all
respects to the name of the holder as
written on the face of this Warrant
without alteration, enlargement or any
change whatsoever, and the signature
must be guaranteed in the usual manner.
________________________________________________________________________________
-94-
SUBSCRIPTION FORM
To be Executed by the Holder of this Warrant if such Holder
Desires to Exercise this Warrant in Whole or in Part:
Summit Medical Systems, Inc. (the "Company")
The undersigned,___________________________, hereby irrevocably elects to
exercise the right of purchase represented by this Warrant for, and to
purchase thereunder, _________________ shares of Common Stock provided for
therein and tenders payment herewith to the order of the Company in the
amount of $__________________, such payment being made as provided on the
face of this Warrant.
Please insert Social Security or other identifying number of the
undersigned:
________________________________________
The undersigned requests that certificates for such shares of Common Stock
be issued as follows:
Name:____________________________________
Address:_________________________________
Deliver to:______________________________
Address:_________________________________
and, if such number of shares of Common Stock shall not be all the shares of
Common Stock purchasable hereunder, that a new Warrant for the balance
remaining of the shares of Common Stock purchasable under this Warrant be
registered in the name of, and delivered to, the undersigned at the address
stated above.
Dated:
Signature:_____________________________________
Note: The signature must conform in all respects to the name of the
holder as written on the face of this Warrant
without alteration, enlargement or any change
whatsoever.
________________________________________________________________________________
-95-
EXHIBIT A
CONTRACT VALUE
The Contract Value of each On-line Outcomes Registry Agreement shall be
determined in accordance with the following procedures. The Contract Value of
each On-line Outcomes Registry Agreement shall equal the sum of (a) the Fixed
Fees (as hereinafter defined) and (b) the Variable Fees (as hereinafter
defined). "Fixed Fees" shall mean the sum of all sponsorship fees, periodic
site license fees or other fixed fees to be paid to the Company during the term
of the On-line Outcomes Registry Agreement for which a cash payment of an amount
certain is specified in such agreement. "Variable Fees" shall mean the product
of the Estimated Fees (as hereinafter defined) multiplied by .75. "Estimated
Fees" shall mean the sum of all usage, encounter, inquiry, training, service and
other variable fees, based on usage of the registry and related services by
participants, to be paid to the Company during the term of the On-line Outcomes
Registry Agreement. The Company shall estimate the Estimated Fees in good faith
as of the date the On-line Outcomes Registry Agreement is executed and
delivered. The Company represents, warrants and covenants that it will have a
reasonable basis for its estimate of Estimated Fees and that such estimate will
be prepared on a basis consistent with the internal projections of the Company.
The estimate of Estimated Fees will be prepared using the pricing terms as set
forth in the On-line Outcomes Registry Agreement, including, without limitation,
estimates of any volume discounts, based on the usage estimates made in
accordance with the following sentence. The Company shall prepare in good faith
an estimate of the usage of the registry and related services by participants
over the term of the On-line Outcomes Registry Agreement. By way of example
only, an estimate of the Estimated Fees for a stent registry would include (i)
an estimate of the number of cardiac catheter laboratories ("cath labs") to be
covered by the agreement, (ii) an estimate of the size distribution of such cath
labs, (iii) an estimate of usage of the registry and related services by each
cath lab based on its size, and (iv) an estimate of any volume discounts based
on the foregoing. The foregoing procedure shall be applied in a manner similar
to the illustration attached hereto as Exhibit B subject to the specific terms
and conditions of the applicable On-line Outcomes Registry Agreement; provided,
that in Exhibit B the calculation of Contract Value illustrated therein shall
not include the Net Present Value discount shown, but, rather, shall include the
multiplication of any Estimated Fees by the factor of .75.
________________________________________________________________________________
-96-
EXHIBIT K
THE ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D. PROFESSORSHIP
IN CARDIOLOGY ENDOWMENT FUND
Summit Medical Systems, Inc. does hereby give $1.5 million to Duke
University.
The gift may, for investment purposes, be merged with the general
investment assets of Duke University, but the gift shall be entered in the
University's books and records as THE ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D. PROFESSORSHIP
IN CARDIOLOGY ENDOWMENT FUND.
The spendable income of the Fund, but not the principal, shall be directed
first toward paying the salary and fringe benefits of the holder of the
Chair; and next, toward defraying library, secretarial, travel and other
expenses relating to his or her teaching and research. Selection of the
professor will be made in accordance with University guidelines and
procedures then in effect. The Professorship will be awarded to a scholar
of true eminence and excellence in the field of Cardiology. Any proportion
of the spendable income not expended in any given year may be (1)
accumulated and temporarily invested and used in subsequent years for the
purpose set forth above, or (2) added to the principal of the Fund.
If, at some future time, the purpose designated for the spendable income
from this Fund no longer exists, then at the direction of the Trustees of
the University, the spendable income shall be used to further the
objectives and purposes of Duke University, giving due consideration to my
original intent.
The Fund shall be administered in accordance with the policies and
procedures of Duke University then in effect.
Summit Medical Systems, Inc.
by:
___________________________
RECEIVED and ACCEPTED this 31st day of December 1996.
DUKE UNIVERSITY
By: _________________________________________ By:_________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Vice President and Corporate Controller ▇▇▇▇▇▇▇
________________________________________________________________________________
-▇▇-
▇▇▇ ▇▇▇▇▇▇ MEDICAL SYSTEMS, INC. ENDOWMENT FUND
Summit Medical Systems, Inc. does hereby give $500,000 to Duke University.
The gift may, for investment purposes, be merged with the general
investment assets of Duke University, but the gift shall be entered in the
University's books and records as THE SUMMIT MEDICAL SYSTEMS, INC.
ENDOWMENT FUND.
The spendable income of the Fund, but not the principal, shall be used to
provide fellowship support to postdoctoral M.D. fellows in the Division of
Cardiology. Expenditures may be made at the discretion of the Chair of the
Department of Medicine. Any portion of the spendable income not expended in
any given year may be (1) accumulated and temporarily invested and used in
subsequent years for the purpose set forth above, or (2) added to the
principal of the Fund.
If, at some future time, the purpose designated for the spendable income
from this Fund no longer exists, then at the direction of the Trustees of
the University, the spendable income shall be used to further the
objectives and purposes of Duke University, giving due consideration to the
original intent.
The Fund shall be administered in accordance with the policies and
procedures of Duke University then in effect.
Summit Medical Systems, Inc.
by:_________________________
RECEIVED AND ACCEPTED this 31st day of December, 1996.
DUKE UNIVERSITY
By:_______________________
▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and Corporate Controller
-98-