THIS WARRANT MAY NOT BE TRANSFERRED EXCEPT IN THE LIMITED CIRCUMSTANCES SET
FORTH HEREIN OR WITH THE PRIOR
WRITTEN CONSENT OF THE COMPANY
------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT
for the purchase of
COMMON STOCK
of
IMAGE GUIDED TECHNOLOGIES, INC.
(A COLORADO CORPORATION)
ORIGINAL ISSUE DATE: MARCH 31, 1998
IMAGE GUIDED TECHNOLOGIES, INC., a Colorado corporation (the "COMPANY"),
for good and valuable consideration received, hereby certifies that IMPERIAL
BANK, a California banking corporation, or registered assigns permitted
hereunder (the "HOLDER"), is entitled to purchase from the Company, at any time
or from time to time during the Warrant Exercise Period (as hereinafter
defined), that number of shares of the Company's Common Stock, no par value per
share ("COMMON STOCK"), as shall be equal to the Warrant Number (as hereinafter
defined), at that price per share of Common Stock as shall be equal to the
Purchase Price (as hereinafter defined).
1. DEFINITIONS.
For the purposes of this Warrant:
"FAIR MARKET VALUE" means the average of the closing sale prices (if
listed on a stock exchange or quoted on the Nasdaq National Market System or
any successor thereto), or the average last price as reported in the Wall
Street Journal if quoted on the NASDAQ small-cap market, or the average of the
mean between the closing bid and asked prices (if otherwise publicly traded),
of the Common Stock on each of the five (5) trading days prior to the date of
exercise.
"PURCHASE PRICE" means, initially, $2.86, subject to automatic adjustment
from time to time in accordance with SECTION 3.
"TERMINATION DATE" is defined in SECTION 7.
"WARRANT EXERCISE PERIOD" means the period commencing with the original
issue date of this Warrant and ending on the Termination Date.
"WARRANT NUMBER" means, initially, 10,000, subject to automatic adjustment
from time to time in accordance with SECTION 3.
2. EXERCISE.
(a) This Warrant may be exercised by the Holder, in whole or in part, by
surrendering this
1
Warrant, with the purchase form appended hereto as EXHIBIT A, duly executed
by such Holder, at the principal office of the Company, or at such other
office or agency as the Company may designate, accompanied by payment in full
by bank or certified check in lawful money of the United States, of the
aggregate Purchase Price payable in respect of the total number of shares of
Common Stock purchased upon such exercise.
(b) Each exercise of this Warrant shall be deemed to have been effected
immediately prior to the close of business on the day on which this Warrant
shall have been surrendered to the Company as provided in SUBSECTION 2(a)
above. At such time, the person or persons in whose name or names any
certificates for or other instruments evidencing shares of Common Stock shall
be issuable upon such exercise as provided in SUBSECTION 2(d) below shall be
deemed to have become the holder or holders of record of the Common Stock
represented by such certificates or other instruments.
(c) (i) The Holder may at its sole option, and in lieu of paying
the Purchase Price pursuant to SUBSECTION 2(a) hereof, exchange this
Warrant in whole or in part for a number of shares of Common Stock as
determined below. Such shares of Common Stock shall be issued by the
Company to the Holder without payment by the Holder of any other
exercise price or any cash or other consideration. The number of
shares of Common Stock to be so issued to the Holder shall be equal
to the quotient obtained by dividing (A) the Surrendered Value (as
defined below) on the date of surrender of this Warrant pursuant to
SUBSECTION 2(a), by (B) the Fair Market Value on the exchange date of
one share of Common Stock.
(ii) For the purposes of this SUBSECTION 2(c), the "SURRENDERED
VALUE" of a portion of this Warrant on a given date shall be deemed
to be the difference between (A) the aggregate Fair Market Value on
such date of the total number of shares of Common Stock otherwise
issuable upon exercise of such portion of the Warrant, MINUS (B) the
aggregate Purchase Price of such total number of shares of Common
Stock.
(d) As soon as practicable after the exercise of this Warrant in full or
in part, and in any event within three (3) business days thereafter, the
Company, at its expense, will cause to be issued in the name of, and delivered
to, the Holder, or, subject to the terms and conditions hereof, as such Holder
(upon payment by such Holder of any applicable transfer taxes) may direct:
a certificate or certificates for the number of full shares of Common Stock to
which such Holder shall be entitled upon such exercise, PLUS, in lieu of any
fractional share to which such Holder would otherwise be entitled, cash in an
amount determined pursuant to SECTION 3 hereof, and
(ii) in case such exercise is in part only, a new warrant or
warrants (dated the date hereof) of like tenor, calling in the
aggregate on the face or faces thereof for the number of shares
of Common Stock equal (without giving effect to any adjustment
therein) to the Warrant Number minus the number of such shares of
Common Stock purchased by the Holder upon such exercise.
3. ADJUSTMENTS; FRACTIONAL SECURITIES.
(a) If, at any time after the original issue date of this Warrant, the
outstanding Common Stock shall be subdivided into a greater number of shares
or a dividend in Common Stock shall be paid in respect of Common Stock, the
Purchase Price in effect immediately prior to such subdivision or at the
record date of such dividend shall simultaneously with the effectiveness of
such subdivision or immediately after the record date of such dividend be
immediately and automatically proportionately and equitably reduced. If, at
any time after the original issue date of this Warrant, the outstanding
Common Stock shall be combined into a smaller number of shares, the Purchase
Price in effect immediately prior to such combination shall, simultaneously
with the effectiveness of such combination, be immediately and automatically
proportionately and equitably increased. When any adjustment is required to
be made in the Purchase Price, the number of shares of Common Stock
purchasable upon the exercise of this Warrant shall be changed to the number
determined by dividing (i) an amount equal to the maximum number of shares of
Common Stock issuable upon the exercise of this Warrant
2
immediately prior to such adjustment, multiplied by the Purchase Price in
effect immediately prior to such adjustment, by (ii) the Purchase Price in
effect immediately after such adjustment.
(b) If, at any time after the original issue date of this Warrant,
there shall occur any capital reorganization or reclassification of the
Common Stock (other than a change in par value or a subdivision or
combination as provided for in SUBSECTION 3(a) above), or any consolidation
or merger of the Company with or into another corporation, or a transfer of
all or substantially all of the assets of the Company, or the payment of a
liquidating distribution, then, as part of any such reorganization,
reclassification, consolidation, merger, sale, automatic conversion or
liquidating distribution, lawful provision shall be made so that the Holder
of this Warrant shall have the right thereafter to receive upon the exercise
hereof (to the extent, if any, still exercisable) the kind and amount of
shares of stock or other securities or property which such Holder would have
been entitled to receive if, immediately prior to any such reorganization,
reclassification, consolidation, merger, sale, automatic conversion or
liquidating distribution, as the case may be, such Holder had held the number
of shares of Common Stock which were then purchasable upon the exercise of
this Warrant. In any such case, appropriate adjustment (as reasonably
determined by the Board of Directors of the Company) shall be made in the
application of the provisions set forth herein with respect to the rights and
interests thereafter of the Holder of this Warrant such that the provisions
set forth in this SECTION 3 (including provisions with respect to adjustment
of the Purchase Price) shall thereafter be applicable, as nearly as is
reasonably practicable, in relation to any shares of stock or other
securities or property thereafter deliverable upon the exercise of this
Warrant.
(c) In case the Company shall issue shares of Common Stock (excluding
shares issued (i) in any of the transactions described in SUBSECTION 3(a)
above or SUBSECTION 3(b) above, (ii) upon exercise of options granted to the
Company's officers, employees, directors and consultants under a plan or
plans adopted by the Company's Board of Directors, if such shares would
otherwise be included in this SUBSECTION (c), and (iii) upon exercise of
options and warrants outstanding at December 12, 1997, and this Warrant (and
any warrants with the same terms as this Warrant)) for a consideration per
share (the "OFFERING PRICE") less than the Purchase Price, the Purchase Price
shall be adjusted immediately thereafter so that it shall equal the price
determined by multiplying the Purchase Price in effect immediately prior to
the date of issuance by a fraction, the numerator of which shall be the sum
of the number of shares of Common Stock outstanding immediately prior to the
issuance of such additional shares and the number of shares of Common Stock
which the aggregate consideration received (determined as provided in
SUBSECTION 3(e) below) for the issuance of such additional shares would
purchase at the Purchase Price in effect immediately prior to the date of
such issuance, and the denominator of which shall be the number of shares of
Common Stock outstanding immediately after the issuance of such additional
shares. Such adjustment shall be made successively whenever such an issuance
is made. When any such adjustment is required to be made in the Purchase
Price, the number of shares of Common Stock purchasable upon exercise of this
Warrant shall be changed to the number determined by dividing (A) an amount
equal to the maximum number of shares of Common Stock issuable upon the
exercise of this Warrant immediately prior to such adjustment, multiplied by
the Purchase Price in effect immediately prior to such adjustment, by (B) the
Purchase Price in effect immediately after such adjustment.
(d) In case the Company shall issue any securities convertible into or
exchangeable for its Common Stock (excluding options and warrants which are
governed by SUBSECTION (c) above) for a consideration per share of Common
Stock (the "CONVERSION PRICE") initially deliverable upon conversion or
exchange of such securities (determined as provided in SUBSECTION (e) below)
less than the Purchase Price, the Purchase Price shall be adjusted
immediately thereafter so that it shall equal the price determined by
multiplying the Purchase Price in effect immediately prior to the date of
issuance by a fraction, the numerator of which shall be the sum of the number
of shares of Common Stock outstanding immediately prior to the issuance of
such securities and the number of shares of Common Stock which the aggregate
consideration received (determined as provided in SUBSECTION (e) below) for
such securities would purchase at the Purchase Price in effect immediately
prior to the date of such issuance, and the denominator of which shall be the
sum of the number of shares of Common Stock outstanding immediately prior to
the issuance of such securities and the maximum number of shares of Common
Stock of the Company deliverable upon conversion of or in exchange for such
securities at the initial conversion or exchange price or rate. Such
adjustment shall be made successively whenever such issuance is made.
3
(e) For purposes of any computation respecting consideration received
pursuant to SUBSECTIONS (c) and (d) above, the following shall apply:
(i) in the case of the issuance of shares of Common Stock for
cash, the consideration shall be the amount of such cash, provided that in no
case shall any deduction be made for any commissions, discounts or other
expenses incurred by the Company for any underwriting of the issue or
otherwise in connection therewith;
(ii) in the case of the issuance of shares of Common Stock for a
consideration in whole or in part other than cash, the consideration other
than cash shall be deemed to be the fair market value thereof as determined
in good faith by the Board of Directors of the Company (irrespective of the
accounting treatment thereof), whose determination shall be conclusive; and
(iii) in the case of the issuance of securities convertible into
or exchangeable for shares of Common Stock, the aggregate consideration
received therefor shall be deemed to be the consideration received by the
Company for the issuance of such securities plus the additional minimum
consideration, if any, to be received by the Company upon the conversion or
exchange thereof (the consideration in each case to be determined in the same
manner as provided in clauses (i) and (ii) of this SUBSECTION (e)).
(f) When any adjustment is required to be made in the Purchase Price or
the Warrant Number, the Company shall promptly mail to the Holder a certificate
setting forth the Purchase Price and the Warrant Number after such adjustment,
and setting forth a brief statement of the facts requiring such adjustment.
Such certificate shall also set forth the kind and amount of stock or other
securities or property into which this Warrant shall be exercisable following
the occurrence of any of the events specified in SUBSECTION 3(a), (b), (c) or
(d) above.
(g) The Company shall not be required, upon the exercise of this Warrant,
to issue any fractional shares, but shall make an adjustment therefore in cash
on the basis of the Fair Market Value of the Common Stock at the time of
exercise.
4. LIMITATION ON SALES, ETC.
The Holder, and each subsequent holder of this Warrant, if any,
acknowledges that this Warrant and the underlying shares of Common Stock have
not been registered under the Securities Act of 1933, as now in force or
hereafter amended, or any successor legislation (the "ACT"), and agrees not
to sell, pledge, distribute, offer for sale, transfer or otherwise dispose of
this Warrant or any Common Stock issued upon its exercise in the absence of
(a) an effective registration statement under the Act as to this Warrant or
such underlying shares of Common Stock and registration or qualification of
this Warrant or such underlying shares of Common Stock under any applicable
Blue Sky or state securities laws then in effect, or (b) an opinion of
counsel, satisfactory to the Company, that such registration and
qualification are not required.
Without limiting the generality of the foregoing, unless the offering
and sale of the Common Stock to be issued upon the particular exercise of the
Warrant shall have been effectively registered under the Act, the Company
shall be under no obligation to issue the shares covered by such exercise
unless and until the registered Holder shall have executed an investment
letter in form and substance reasonably satisfactory to the Company,
including a warranty at the time of such exercise that it is acquiring such
shares for its own account, for investment, and not with a view to, or for
sale in connection with, the distribution of any such shares, in which event
the registered Holder shall be bound by the provisions of a legend to such
effect on the certificate(s) representing the Common Stock.
In addition, without limiting the generality of the foregoing, the Company
may delay issuance of the Common Stock hereunder until completion of any action
or obtaining of any consent which the Company deems necessary under any
applicable law (including without limitation state securities or "blue sky"
laws),
4
PROVIDED that the Company shall use all reasonable efforts in good faith to
diligently pursue completion of such action or the receipt of such consent.
5. NOTICES OF RECORD DATE, ETC.
In case:
(a) the Company shall take a record of the holders of Common Stock for
the purpose of entitling or enabling them to receive any dividend or other
distribution, or to receive any right to subscribe for or purchase any shares
of stock of any class or any other securities, or to receive any other right,
or
(b) of any capital reorganization of the Company, any reclassification of
the capital stock of the Company, any consolidation or merger of the Company
with or into another corporation, or any transfer of all or substantially all
of the assets of the Company, or
(c) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then, and in each such case, the Company will mail or cause to be mailed to the
Holder of this Warrant a notice specifying, as the case may be, (i) the date on
which a record is to be taken for the purpose of such dividend, distribution or
right, and stating the amount and character of such dividend, distribution or
right, or (ii) the effective date on which such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation or
winding-up is to take place, and the time, if any is to be fixed, as of which
the holders of record of Common Stock shall be entitled to exchange their
Common Stock for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up. Such notice shall be mailed at least twenty (20)
days prior to the record date or effective date for the event specified in such
notice, PROVIDED that the failure to so mail such notice shall not affect the
legality or validity of any such action.
6. RESERVATION OF STOCK, ETC.
(a) The Company will at all times reserve and keep available, solely
for issuance and delivery upon the exercise of this Warrant, such stock and
other property as from time to time shall be issuable upon the exercise of
this Warrant.
(b) The Company further covenants that it will, at its expense, prior
to the issuance of any Common Stock upon exercise of this Warrant, procure
the listing on all stock exchanges (if any) on which the Common Stock is then
listed of all such shares of Common Stock.
(c) The Company will not, by amendment of its Articles of Incorporation
or through reorganization, consolidation, merger, dissolution, issuance of
capital stock or sale of treasury stock (otherwise than upon exercise of this
Warrant) or sale of assets, or by any other act or deed, avoid or seek to
avoid the material performance or observance of any of the covenants,
stipulations or conditions in this Warrant to be observed or performed by the
Company. The Company will at all times in good faith assist, insofar as it
is able, in the carrying out of all of the provisions of this Warrant in a
reasonable manner and in the taking of all other action which may be
necessary in order to protect the rights hereunder of the Holder of this
Warrant.
(d) The Company will maintain an office where presentations and demands
to or upon the Company in respect of this Warrant may be made. The Company
will give notice in writing to the Holder, at the address of the Holder
appearing on the books of the Company, of each change in the location of such
office.
7. TERMINATION.
THIS WARRANT SHALL TERMINATE AND NO LONGER BE EXERCISABLE FROM AND AFTER
5:00 P.M., BOSTON
5
TIME, ON MARCH 30, 2005 (THE "TERMINATION DATE").
8. TRANSFERS, ETC.
(a) The Company will maintain a register containing the names and
addresses of the Holders of this Warrant. The Holder may change its, his or
her address as shown on the warrant register by written notice to the Company
requesting such change.
(b) Until any transfer of this Warrant is made in the warrant register,
the Company may treat the Holder of this Warrant as the absolute owner hereof
for all purposes.
9. REPLACEMENT OF WARRANTS.
Upon receipt of evidence reasonably satisfactory to the Company of the
loss, theft, destruction or mutilation of this Warrant, and (in the case of
loss, theft or destruction) upon delivery of an indemnity agreement (with
surety if reasonably required) in an amount reasonably satisfactory to the
Company, or (in the case of mutilation) upon surrender and cancellation of
this Warrant, the Company will issue, in lieu thereof, a new Warrant of like
tenor.
10. MAILING OF NOTICES, ETC.
All notices and other communications from the Company to the Holder of
this Warrant shall be mailed by first-class certified or registered mail,
postage prepaid, to the address furnished to the Company in writing by the
last Holder of this Warrant who shall have furnished an address to the
Company in writing. All notices and other communications from the Holder of
this Warrant or in connection herewith to the Company shall be mailed by
first-class certified or registered mail, postage prepaid, to the Company at
its principal executive offices or at such other address as the Company shall
so notify the Holder.
11. NO RIGHTS AS STOCKHOLDER.
Until the exercise of this Warrant, the Holder shall not have or
exercise any rights by virtue hereof as a stockholder of the Company.
12. CHANGE OR WAIVER.
Any term of this Warrant may be changed or waived only by an instrument
in writing signed by the party against which enforcement of the change or
waiver is sought.
13. HEADINGS.
The headings in this Warrant are for purposes of reference only and
shall not limit or otherwise affect the meaning of any provision of this
Warrant.
14. GOVERNING LAW.
THE VALIDITY, CONSTRUCTION AND PERFORMANCE OF THIS WARRANT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA APPLICABLE TO CONTRACTS EXECUTED IN AND PERFORMED ENTIRELY WITHIN
SUCH STATE, WITHOUT REFERENCE TO ANY CHOICE OF LAW PRINCIPLES OF SUCH STATE.
With respect to any suit, action or other proceeding arising out of this
Warrant, or any other transaction contemplated thereby, the parties hereto
expressly waive any right they may have to a jury trial and agree that any
proceeding hereunder shall be tried by a judge without a jury.
6
IN WITNESS WHEREOF, IMAGE GUIDED TECHNOLOGIES, INC. has caused this COMMON
STOCK PURCHASE WARRANT to be signed in its corporate name and its corporate
seal to be impressed hereon by its duly authorized officers on and as of
March 31, 1998.
The Company:
[CORPORATE SEAL] IMAGE GUIDED TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Title: Vice President Finance
Attest: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------
7
EXHIBIT A
PURCHASE FORM
To:
The undersigned, pursuant to the provisions set forth in the attached
COMMON STOCK PURCHASE WARRANT, hereby irrevocably elects either (a) to
purchase _______________ shares of Common Stock covered by such Warrant and
herewith makes payment of $___________, representing the full purchase price
for such shares at the Purchase Price per share provided for in such Warrant,
or (b) to surrender _________________ number of shares of such Warrant in
exchange for the number of shares of Common Stock determined pursuant to
SECTION 2(c) thereof.
Dated: By:
-------------------------- ----------------------------
8
EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:______________________ the right to purchase Common Stock represented by
this Warrant to the extent of ___________________ shares, and does hereby
irrevocably constitute and appoint ____________________, attorney-in-fact to
transfer the same on the books of the Company with power of substitution in
the premises.
Dated: By:
---------------------------- --------------------------
9