Exhibit 10.1
WARRANT REPURCHASE AGREEMENT
This WARRANT REPURCHASE AGREEMENT(this “Agreement”) is madeasMay 3, 2019,byandbetweenSemler Scientific,Inc.,a Delaware corporation (the “Company”), and the undersigned holder of warrants to purchase shares of the Company’s capitalstock (the “Warrantholder,” and together with the Company,the “Parties”).
WHEREAS, the Companyhasgranted totheWarrantholder warrants (each a “Warrant”and togetherthe“Warrants”)topurchasean aggregate of 236,214sharesof Company Common Stock, par value $0.001pershare (the“CommonStock”),as set forth onSchedule A at such exercise pricespershare of Common Stock aslistedonSchedule A; and
WHEREAS,theWarrantholder wishes tosellto the Company and the Company wishes to purchase from the Warrantholder certain of the Warrants, asindicatedonSchedule A hereto onthe termsset forthherein,such repurchased Warrants, the “Repurchase Warrants.”
NOW, THEREFORE,intendingtobelegally bound and inconsiderationof the mutual provisions set forth inthisAgreement and for other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged,the partiesagreeasfollows:
1. Sale andPurchaseof Repurchase Warrants. Subject to thetermsand conditionshereof,attheClosing(as defined in Section 2below), theWarrantholder hereby agrees to sell to the Company, andtheCompany hereby agrees topurchasefrom the Warrantholder,theRepurchase Warrants. The Company and the Warrantholderherebyirrevocably acknowledge andagreethat,upon thesale oftheRepurchase Warrants, the Warrantholdershallbe entitled to receive an amount equaltothe excess of the aggregate fair market value ofthe RepurchaseWarrants over the aggregate exercise price of the Repurchase Warrants (such payments collectively,the“PurchasePrice”),asspecifiedonSchedule Ahereto.
2. Closing Date.Theclosingofthe sale and purchase of the Warrants under this Agreement (the “Closing”)shall take place at such place andtimeas the Company and the Warrantholder may mutually agree (such dateishereinafter referred to as the “Closing Date”).
3. Delivery.At the Closing, subject to the terms and conditionshereof,the Company willdeliverto the Warrantholder the Purchase Price by wire of immediately available fundsto theWarrantholder and the Warrantholder shall deliver the originally executed Warrants duly endorsed for transfer. Uponpaymentof thePurchasePrice, theRepurchaseWarrants, without further action by theCompanyor bytheWarrantholder, shall be cancelled,terminated infull and rendered null andvoidandprovideno further rights to acquire shares oftheCompany’s Common Stock.
4. FurtherRepresentationsand Warranties.TheWarrantholder hereby further represents and warrants as follows:
(a) TheWarrantholder is duly organized andvalidlyexisting underthe lawsof thejurisdictionofitsorganization.
(b) The Warrantholder has full right,power and authority to sign this Agreement and toperformits obligationshereunder. This Agreement hasbeen dulyexecutedand delivered by the Warrantholderand constitutesthevalid andlegally binding obligationofthe Warrantholderenforceable in accordance withitsterms,except asthesamemay be limited by bankruptcy,insolvency,reorganization,moratorium orsimilarlaws now or hereafter ineffectrelating tocreditors’rightsgenerallyandsubject togeneralprinciples of equity.All consents,judgments,authorizationsand orders necessaryforthe execution and delivery by the Warrantholder of thisAgreementhave beenobtained,and the Warrantholder need notgiveany notice to,make any filing with, or obtainanyconsent,judgmentor approvalof anygovernmental authority or any otherperson inorderto consummate thetransactions contemplatedby thisAgreement.
(c) Theexecution anddelivery of thisAgreementby the Warrantholder does not,the consummationofthe transactions contemplated by thisAgreement willnot,andthe performance of this Agreement bythe Warrantholderwillnot conflictwith or violateany law,judgment,proceeding or otherrestriction of any governmentalauthority or court applicable to the Warrantholder or by which the Warrantholder orany ofthe Warrantholder’s properties orassetsisormay be bound or affected,or Warrantholder’s organizationaldocuments.
(d) TheWarrantholder hasgoodand marketable title to the Warrants, free and clear of allencumbrances, and the transactions contemplated by thisAgreementwill not result intheimposition of anyencumbrances orotherobligations, suchWarrants are notsubjecttoanyadverse claim,and suchWarrantsarenotsubjectto any claimsforbrokerage commissions,finders’fees orsimilar compensation, orany community property rights.
(e) At the Closing, all ofthe Warrantholder’sright, title and interest in and to the Repurchase Warrantsshall terminateand the Warrantholder thereafter relinquishes andwaives any andall rights and benefits it previouslyhadwithrespect to the RepurchaseWarrants,exceptfor theright to receive the Purchase Priceforthe RepurchaseWarrants in accordance with the terms of this Agreement.
(f) TheWarrantholder acknowledgesand agreesthat the Warrantholder is deliveringthisAgreement in theWarrantholder’sownfree willand not under any duress or undueinfluenceand that the Warrantholder has hadareasonableopportunityto ask all reasonable questions andreceiveallanswersfrom theCompanyconcerning the terms and conditions of this Agreement as the Warrantholder has requested.
5. Tax Treatment. TheWarrantholderherebyacknowledgesthat no representations have been madewithrespect to the tax treatmentof anyconsideration that may be received pursuant to the termsofthis Agreement. The Warrantholder acknowledgesand agrees that any taxes that may be owed by the Warrantholderwithrespect tosuch consideration,including but not limitedtoany taxes,interest orpenaltiesthat may beowedpursuanttoSection 409A oftheInternal RevenueCodeof 1986,as amended,shallbe thesoleresponsibility of the Warrantholder.
6. Additional Documents.TheWarrantholder herebyagreesthat he,she oritwill,uponrequestof the Company,executeand deliveranyadditional documents reasonably appropriateornecessary in connectionwiththe transactions contemplated by thisAgreement.
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7. Governing Law; Jurisdiction.This Agreement, therights of the parties hereunder and all actions arising inwholeor in part under orin connectionherewith,will begovernedbyandconstruedandenforcedinaccordance withthe domesticsubstantive laws oftheState of Delaware, without giving effecttoany choice orconflictoflaw provisionorrule thatwould causetheapplication ofthe lawsof any otherjurisdiction.Each oftheparties hereto hereby(i)irrevocablysubmitsto theexclusive jurisdiction oftheU.S.DistrictCourtlocated in theStateof Delaware and thestatecourtsofthe StateofDelawarefor thepurposeof any actionamong anyofthe parties relating toor arising in whole orin partunder orin connectionwith this Agreement,(ii) waives to the extent not prohibitedbyapplicablelaw, and agrees not toassert,byway ofmotion,as adefenseor otherwise,in any such action,any claimthat it is notsubjectpersonally tothejurisdictionoftheabove-named courts,thatits propertyis exemptor immune from attachmentorexecution,thatanysuch actionbrought inone oftheabove-named courts shouldbe dismissed ongrounds of forumnonconveniens,shouldbetransferred orremoved to anycourt otherthan one of theabove-namedcourts,or shouldbestayedbyreason of thependency ofsome otheraction in anyothercourtother than oneof theabove-namedcourts or that this Agreement or thesubjectmatter hereofor thereofmaynotbeenforced in orbysuchcourt and(iii)agrees not to commenceany such action otherthan beforeone oftheabove-named courts.
8. Waiverof Jury Trial. TOTHEEXTENT NOTPROHIBITED BYAPPLICABLE LAW THAT CANNOT BE WAIVED, THE PARTIES HEREBYWAIVE,AND COVENANTTHAT THEY WILLNOT ASSERT (WHETHER AS PLAINTIFF,DEFENDANTOROTHERWISE),ANYRIGHTTO TRIAL BY JURY IN ANY ACTIONARISING INWHOLEORIN PART UNDER ORINCONNECTIONWITH THISAGREEMENT, WHETHERNOWEXISTING OR HEREAFTER ARISING,AND WHETHER SOUNDINGINCONTRACT,TORT OROTHERWISE.THEPARTIESAGREETHATANYOFTHEMMAY FILEA COPYOFTHISPARAGRAPH WITHANY COURTAS WRITTENEVIDENCEOFTHE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE PARTIESIRREVOCABLYTO WAIVE THEIR RESPECTIVERIGHTSTO TRIALBY JURY IN ANY ACTIONWHATSOEVERBETWEENOR AMONG THEM RELATINGTOTHIS AGREEMENT AND THAT SUCH ACTIONS WILLINSTEAD BETRIEDINA COURT OF COMPETENT JURISDICTIONBYA JUDGESITTING WITHOUTA JURY.
9. Severability.Any termorprovisionofthisAgreement thatis invalid or unenforceable in anysituation in any jurisdiction willnotaffectthevalidity or enforceabilityof the remainingtermsand provisions hereoforthevalidity or enforceability oftheoffendingterm orprovisioninany other situation orinany otherjurisdiction.Intheeventthat anyprovision hereofwould,under applicable law,be invalid or unenforceableinanyrespect,eachParty intends thatsuchprovisionwillbeconstruedby modifyingorlimiting itso asto bevalidandenforceableto the maximum extentcompatible with,and possible under,applicablelaw.
10. SpecificPerformance. Notwithstandinganythingin thisAgreement to the contrary,thepartiesagreethat irreparable damagecould occurin the eventthat any of the obligations,undertakings,covenants oragreementscontainedin thisAgreement werenot performed inaccordance withtheirspecifictermsor were otherwisebreached.Accordingly,it isagreed that thepartiesshallbeentitledtoseekan injunctionorinjunctionstoprevent breachesofthisAgreement,without anybondor othersecuritybeing required,and to enforcespecificallytheterms and provisions of thisAgreementbyadecreeofspecific performancewithoutthe necessityofproving the inadequacyofmoney damagesas aremedy,this being inadditiontoanyother remedy towhichthe parties areentitled atlaw orin equity.
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11. Entire Agreement: Amendment.ThisAgreement constitutesthe entireagreement amongthe partieswithrespect to thesubjectmatter hereofandsupersedes any and all prior discussions,negotiations,proposals,undertakings,understandings andagreements, whether writtenororal,withrespect thereto. This Agreementmay not beamended exceptby an instrument inwriting signedby theWarrantholder andtheCompany.
12. Counterpartsand FacsimileTransmission. This Agreementmay beexecutedintwo or more counterparts forthe convenienceof the partieshereto,each ofwhichshallbe deemedanoriginaland all of whichtogetherwill constitute one andthesameinstrument. Deliveryof anexecutedcounterpart of a signaturepage to thisAgreementbyfacsimileor portable documentformat shall be effective asdeliveryof amanuallyexecuted counterpartto thisAgreement.
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IN WITNESS WHEREOF, the Parties hereto haveexecutedthis Agreementasof the latest date specified below.
SEMLER SCIENTIFIC, INC.
By: | /s/ Daniel E. Conger | |
Name: | Daniel E. Conger | |
Title: | VP Finance | |
Date: | May 3, 2019 |
Warrantholder | ||
Murphy-Chutorian Family Trust U/D/T dated | ||
January 13, 1997 | ||
By: | /s/ Douglas Murphy-Chutorian, M.D. | |
Name: | Douglas Murphy-Chutorian, M.D. | |
Title: | Trustee | |
Date: | May 3, 2019 |
[Signature Page to Warrant RepurchaseAgreement]
Schedule A
Issuance & Expiration Dates | Underlying Common Stock | Exercise Price | Repurchase? | Fair Market Value per Share | Aggregate Exercise Price | Aggregate Repurchase Price |
6/7/12 – 7/31/23 | 16,390 | $4.50 | [N] | N/A | $73,755.00 | N/A |
6/7/12 – 7/31/23 | 22,517 | $4.50 | [N] | N/A | $101,326.50 | N/A |
6/7/12 – 7/31/23 | 16,875 | $4.00 | [N] | N/A | $67,500.00 | N/A |
6/7/12 – 7/31/23 | 25,000 | $2.00 | [N] | N/A | $50,000.00 | N/A |
7/31/12 – 7/31/23 | 65,542 | $4.50 | [Y] | $45.50 | $294,939.00 | $2,687,222.00 |
7/31/12 – 7/31/23 | 60,000 | $4.50 | [N] | N/A | $270,000.00 | N/A |
8/31/12 – 7/31/23 | 29,890 | $4.50 | [N] | N/A | $134,505.00 | N/A |
Total | 236,214 | |||||
Total Repurchased | 65,642 | |||||
Total Purchase Price | $2,687,222.00 |
Note: Fair Market Value per Share is $45.50, the last trade price on May 3, 2019.