Exhibit 10.31
FORM OF PURCHASE AGREEMENT
HEMASURE INC.
March 2, 2000
926907.2
HEMASURE INC.
PURCHASE AGREEMENT
This Purchase Agreement (the "Agreement") is made as of the __ day of
March, 2000 (the "Agreement Date"), by and between HemaSure Inc., a Delaware
corporation (the "Company"), with its principal office at 000 Xxxxx Xxxxx,
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000, and the purchaser whose name and address is
set forth on the signature page hereof (the "Purchaser").
IN CONSIDERATION of the mutual covenants contained in this Agreement,
the Company and the Purchaser agree as follows:
SECTION 1
Authorization of Sale of the Shares
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1.1 Authorization of Sale of the Shares. Subject to the terms and
conditions of this Agreement, the Company has authorized the sale of up to an
aggregate of 3,730,000 shares (the "Offered Shares") of common stock, $.01 par
value, of the Company (the "Common Stock"), pursuant to the Offering Memorandum
(as defined below).
SECTION 2
Purchase and Sale of Common Stock
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2.1 Purchase and Sale of Common Stock. The Purchaser agrees to purchase
from the Company, and the Company agrees to issue and sell to the Purchaser,
upon the terms and conditions hereinafter set forth, the number of Offered
Shares set forth below (the "Shares") at the purchase price (the "Purchase
Price") set forth below:
Number of Shares to
be Purchased Purchase Price Per Share Purchase Price
------------------- ------------------------ --------------
$7.50
The Company proposes to enter into substantially the same form of
purchase agreement with certain other investors (the "Other Purchasers," and
together with the Purchaser, the "Purchasers") and expects to complete sales of
the Offered Shares to them. The term "Placement Agent" shall refer to Warburg
Dillon Read LLC.
926907.2
SECTION 3
Closing Date; Delivery
----------------------
3.1 Closing Date. The completion of the purchase and sale of the Shares
(the "Closing") will be held at such place and time as designated by the
Company, and the Purchaser will receive prior notification of the Closing by
facsimile, telex, cable or by other means deemed appropriate by the Company. The
date of the Closing to occur hereunder (the "Closing Date") shall not be later
than 5:00 p.m. ET on March __, 2000.
3.2 Delivery. At the Closing, the Company will deliver to the Purchaser
the certificates evidencing the Shares purchased by the Purchaser, as described
above. Such delivery shall be against payment of the Purchase Price by wire
transfer of immediately available funds from the Purchaser to the Company.
Certificates representing the Shares purchased by the Purchaser will be
registered in the Purchaser's name, or in the name of a nominee if designated by
the Purchaser.
SECTION 4
Representations, Warranties and Covenants of the Company
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The Company represents, warrants and covenants to the Purchasers as
follows:
4.1 Offering Memorandum. The Company's private placement memorandum
(including all attachments thereto) dated February 3, 2000 (the "Offering
Memorandum") as amended and/or supplemented through the Closing Date does not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made; there are
no statutes, regulations, material agreements, contracts, indentures, leases or
other instruments that are not described in the Offering Memorandum that would
be required to be described if the Offering Memorandum were a prospectus
required to be filed under the Securities Act of 1933, as amended (the
"Securities Act"); and the Company has not distributed any offering material in
connection with the offering or sale of the Shares other than the Offering
Memorandum.
4.2 Organization and Good Standing. The Company is a corporation duly
organized and validly existing under the laws of the State of Delaware and is in
good standing as a domestic corporation under the laws of such state, and has
the requisite corporate power and authority to own its properties and to carry
on its business as now being conducted.
4.3 Foreign Qualification. The Company is duly qualified to do business
and is in good standing as a foreign corporation in every jurisdiction in which
its ownership of property or the conduct of its business requires it so to be
qualified, except where the failure to so qualify would not have a material
adverse effect on the business, operations, prospects, properties, condition
(financial or otherwise) or results of operation of the Company and the
Subsidiary (as hereinafter defined) taken as a whole (a "Material Adverse
Effect").
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4.4 No Material Subsidiaries. The Company has no subsidiaries that,
individually or in the aggregate, conduct any material business activities or
have any material assets or liabilities (whether fixed or contingent).
4.5 Due Execution, Delivery and Performance of the Agreements. The
Company has all requisite corporate power and authority and has taken all
requisite corporate action to duly authorize, execute and deliver this
Agreement, to sell and issue the Shares and to carry out and perform all of its
obligations under and contemplated by this Agreement. The Company's execution,
delivery and performance of this Agreement, the issuance and sale of the Shares
and the consummation of the transactions contemplated hereby (a) have been duly
authorized under Delaware law by all requisite corporate action by the Company
and (b) will not (i) conflict with, or result in any breach or violation of or
constitute a default under (nor constitute any event which with notice, lapse of
time, or both would result in any breach or violation of, or constitute a
default under) any provisions of the certificate of incorporation or by-laws of
the Company or under any provision of any material license, permit, indenture,
mortgage, deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any material lease, contract or other agreement or instrument
to which the Company is a party or by which it or its properties may be bound or
affected, or under any federal, state, local or foreign law, regulation or rule
or any decree, judgment or order applicable to the Company or (ii) result in the
imposition of any lien or encumbrance upon any asset or property of the Company
pursuant to any material indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any lease, contract or other
agreement or instrument to which the Company is a party or by which it or its
properties may be bound or affected, except for any such liens or encumbrances
as would not, individually or in the aggregate, have a Material Adverse Effect.
Upon the execution and delivery of this Agreement by the Company and assuming
the valid execution and delivery hereof by the Purchaser, this Agreement will
constitute the valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except insofar as enforcement of the
indemnification or contribution provisions hereof may be limited by applicable
laws or principles of public policy and subject, as to enforcement, to the
availability of equitable remedies and limitations imposed by bankruptcy,
insolvency, reorganization and other similar laws and related court decisions
relating to creditors' rights generally.
4.6 Issuance and Delivery. When issued and paid for in accordance with
the terms hereof, the Shares will be validly issued and outstanding, fully paid
and non-assessable, will have been issued in compliance with all federal and
state securities laws (assuming the accuracy of each Purchaser's representations
and warranties in Section 5 of their respective Agreements and of the Placement
Agent set forth in the Placement Agency Agreement by and between the Company and
the Placement Agent) and will not have been issued in violation of any
preemptive right, anti-dilution right, resale right, right of first refusal or
similar right. Except as disclosed in the Offering Memorandum, no stockholder of
the Company has any right (other than any such right as has been waived or has
expired by reason of lapse of time following notification of the Company's
intent to file the Registration Statement (as hereinafter defined)) to require
the Company to register the sale of any securities owned by such holder under
the Securities Act, pursuant to the Registration Statement. No further approval
or authority of the stockholders or the Board of Directors of the Company will
be required for the issuance and sale of the Shares at and as of the Closing.
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4.7 Use of Proceeds. The Company currently intends to apply the net
proceeds from the sale of the Shares substantially in the manner set forth under
the caption "Use of Proceeds" in the Offering Memorandum.
4.8 Sales of the Company's Securities. Except as provided in this
Agreement, the Company will not sell, offer to sell, contract to sell or
otherwise transfer or dispose of any Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock, or grant any options or
warrants to purchase Common Stock, for a period commencing on the date of the
Offering Memorandum and ending after the expiration of 180 days after the
Closing Date, without the prior written consent of the Placement Agent other
than (i) shares of Common Stock issuable upon the exercise of options or
warrants outstanding on the date hereof and described in the Offering Memorandum
and (ii) grants of options under the Company's existing stock option plans,
which options shall not be exercisable for at least 180 days after the Closing
Date (except pursuant to change in control provisions contained in the
applicable plan) unless the holder of such option shall have executed a
"lock-up" letter in the form contemplated by Section 4.9 below.
4.9 "Lock-up" Letters. The Company has furnished to the Placement Agent
"lock-up" letters, in form and substance satisfactory to the Placement Agent,
signed by each of its current directors and executive officers.
4.10 Market Activities. Except as stated in this Agreement or the
Offering Memorandum, the Company has not taken, nor will it take, directly or
indirectly, any action designed to or that might reasonably be expected to cause
or result in stabilization or manipulation of the price of the Common Stock of
the Company to facilitate the sale or resale of the Shares.
4.11 Integration. The Company agrees not to sell, offer for sale or
solicit offers to buy or otherwise negotiate in respect of any security (as
defined in the Securities Act) that would be integrated with the sale of the
Shares in a manner that would require the registration under the Securities Act
of the sale to the Purchasers of the Shares.
4.12 Governmental Consents. Except as stated in the Offering
Memorandum, no consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any federal, state, or
local governmental authority on the part of the Company is required in
connection with the execution and delivery of this Agreement and the
consummation of the transactions contemplated by this Agreement (except such as
may be required under state securities or blue sky laws governing the sale of
the Shares, the filing of a Form D with respect to the issuance of the Shares
with the Securities and Exchange Commission (the "Commission"), which will be
filed in a timely manner, and such as may be required in connection with the
Company's compliance with its obligations under Section 8 hereof).
4.13 Regulatory Consents. The Company has all necessary material
licenses, permits, authorizations, consents and approvals and has made all
necessary material filings required under any federal, state, local or foreign
law, regulation or rule, and has obtained all necessary material authorizations,
consents and approvals from other persons, in order to conduct its respective
businesses as currently conducted; the Company is not in violation of, or in
default under, any such license, permit, authorization, consent or approval or
any federal, state, local or foreign law, regulation or rule or any decree,
order or judgment applicable to the Company, the effect of which could,
individually or in the aggregate, have a Material Adverse Effect.
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4.14 SEC Documents. The Company has filed in a timely manner all
documents that the Company was required to file with the Commission under
Sections 13, 14(a) and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), since January 1, 1999 (the "SEC Documents"). As of their
respective filing dates, all SEC Documents filed by the Company with the
Commission complied in all material respects with the requirements of the
Exchange Act. None of the SEC Documents, as of their respective dates, contained
any untrue statement of material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements made therein,
in light of the circumstances under which they were made, not misleading. The
financial statements included in the SEC Documents have been prepared in
accordance with generally accepted accounting principles consistently applied
and fairly present, in all material respects, the consolidated financial
position, the consolidated results of operations and consolidated cash flows of
the Company for the periods then ended (subject, in the case of unaudited
statements, to normal adjustments).
4.15 Independent Auditors. PricewaterhouseCoopers LLP are independent
public accountants as required by the Securities Act.
4.16 Financial Statements. There are no financial statements
(historical or pro forma) that would be required to be included in the Offering
Memorandum if the Offering Memorandum were a prospectus required to be filed
under the Securities Act, as of the date of the Offering Memorandum, that are
not so included. All financial statements so included have been prepared in
accordance with United States generally accepted accounting principles
consistently applied and fairly present the consolidated financial position of
the Company at the dates thereof and the consolidated results of the Company's
operations and consolidated cash flows for the periods then ended (subject, in
the case of unaudited statements, to normal adjustments).
4.17 Exempt Transactions. Subject to the accuracy of each Purchaser's
representations and warranties in Section 5 of their respective Agreements and
of the Placement Agent set forth in the Placement Agency Agreement by and
between the Company and the Placement Agent, the offer, sale and issuance of the
Shares in conformity with the terms of the Agreements do not require
registration under Section 5 of the Securities Act or registration or
qualification under the laws of any applicable state or United States
jurisdiction, except as stated in the Offering Memorandum.
4.18 No Material Adverse Change. Except as otherwise disclosed in the
Offering Memorandum, since September 30, 1999 there has not been any change in
the assets, liabilities, financial condition, business or operations of the
Company except for changes in the ordinary course of business which have not
been, either individually or in the aggregate, materially adverse.
4.19 Intellectual Property. Except as otherwise disclosed in the
Offering Memorandum, the Company owns or possesses sufficient rights to use all
patents, patent rights, inventions, trademarks, trade names, copyrights,
licenses, trade secrets, know-how, proprietary rights and processes that are
necessary for the conduct and proposed conduct of its business as described in
the Offering Memorandum (the "Proprietary Rights") without any conflict with or
infringement of the rights of others that might, individually or in the
aggregate, result in a Material Adverse Effect. Except as otherwise disclosed in
the Offering Memorandum, the Company believes that there are no third parties
that have or will be able to establish rights to any of the Proprietary Rights
that might result in a Material Adverse Effect. Except as otherwise disclosed in
the Offering Memorandum, to the knowledge of the Company, there is no
infringement by any third parties of the Proprietary Rights. Except as otherwise
disclosed in the Offering
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Memorandum, the Company has not received any notice of, or has no knowledge of
any basis for, any infringement of or conflict with asserted rights of others
with respect to any patent, patent right, invention, trademark, trade name,
copyright, license, trade secret, know-how or other proprietary right or process
that, individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, could have a Material Adverse Effect.
4.20 Authorized Capital Stock. The authorized capital stock of the
Company conforms in all material respects to the statements relating thereto
contained in the Offering Memorandum. The issued and outstanding shares of
capital stock of the Company have been duly authorized, validly issued and are
fully paid and nonassessable. No warrants, options or other rights to purchase,
agreements or other obligations to issue, or agreements or other rights to
convert any obligation into, any shares of capital stock of the Company have
been granted or entered into by the Company, other than those described in the
Offering Memorandum. All of the above securities of the Company were issued in
material compliance with all applicable federal and state securities laws and
were not issued in violation of any preemptive right, anti-dilution right,
resale right, right of first refusal or similar right.
4.21 Litigation. Except as disclosed in the Offering Memorandum, there
are no actions, suits, proceedings or investigations pending or, to the best of
the Company's knowledge, threatened against the Company, the Subsidiary or any
of their respective properties before or by any court or arbitrator or any
governmental body, agency or official which, if adversely decided, would (a)
have a Material Adverse Effect or (b) impair the ability of the Company to
perform in any material respect its obligations under this Agreement. Neither
the Company nor the Subsidiary is in default with respect to any judgment, order
or decree of any court or governmental agency or instrumentality which,
individually or in the aggregate, would have a Material Adverse Effect.
4.22 Compliance. The business and operations of the Company have been
and are being conducted in accordance with all applicable laws, rules and
regulations of all governmental authorities, except for such violations of
applicable laws, rules and regulations which would not, individually or in the
aggregate, have a Material Adverse Effect. The Company is not in violation of
its charter or by-laws nor is it in violation of, or in default under, any lien,
indenture, mortgage, lease, agreement, instrument, commitment or arrangement,
except for such defaults which would not, individually or in the aggregate, have
a Material Adverse Effect, or subject to any restriction which would prohibit
the Company from entering into or performing its obligations under the
Agreement.
4.23 Brokers or Finders. To the knowledge of the Company and except for
claims of the Placement Agent in connection with their agency services in this
transaction, no person, firm or corporation has or will have, as a result of any
act or omission of the Company, any right, interest or valid claim against the
Purchasers for any commission, fee or other compensation ("Fees") as a finder,
broker, or consultant in connection with the transactions contemplated by this
Agreement. The Fees payable to the Placement Agent shall be paid by the Company
on the Closing Date.
4.24 Contracts. The contracts described in the Offering Memorandum are
in full force and effect on the date hereof, and the Company is not in material
breach of or default under any of such contracts.
4.25 Investment Company. The Company is not, and upon completion of the
transactions contemplated hereby will not be, an "investment company" or an
"affiliated person" of or "promoter" or
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"principal underwriter" for an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
4.26 Insurance. The Company maintains and will continue to maintain
from time to time insurance of the types and in the amounts that the Company
reasonably believes is adequate for its business, all of which insurance is in
full force and effect.
SECTION 5
Representations, Warranties and Covenants of the Purchaser
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5.1 The Purchaser represents, warrants and covenants to, the
Company that:
(a) the Purchaser, taking into account the personnel and
resources it can bring to bear on the purchase of the Shares
contemplated hereby, is knowledgeable, sophisticated and experienced in
making, and is qualified to make, decisions with respect to investments
in shares presenting an investment decision like that involved in the
purchase of the Shares, including investments in securities issued by
companies comparable to the Company, and has requested, received,
reviewed and considered all information it deems relevant in making an
informed decision to purchase the Shares;
(b) the Purchaser is acquiring the number of Shares set forth
in Section 2 above in the ordinary course of its business and solely
for its own account for investment only and with no present intention
of distributing any of such Shares or any arrangement or understanding
with any other persons regarding the distribution of such Shares;
(c) the Purchaser will not, directly or indirectly, offer,
sell, pledge, transfer or otherwise dispose of (or solicit any offers
to buy, purchase or otherwise acquire or take a pledge of) any of the
Shares except in compliance with (i) the Securities Act and the rules
and regulations promulgated thereunder, and (ii) any applicable state
securities laws;
(d) the Purchaser has completed or caused to be completed the
Registration Statement Questionnaire and the Stock Certificate
Questionnaire, both attached hereto as Appendix I, for use in
preparation of the Registration Statement, and the answers thereto are
true and correct as of the date hereof and will be true and correct as
of the effective date of the Registration Statement;
(e) the Purchaser has, in connection with its decision to
purchase the number of Shares set forth in Section 2 above, relied
solely upon the Offering Memorandum and the representations and
warranties of the Company contained herein; and
(f) the Purchaser qualifies as an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D promulgated under the Securities Act.
5.2 The Purchaser hereby covenants with the Company not to make any
sale of the Shares without effectively causing the prospectus delivery
requirements under the Securities Act to be satisfied, and the Purchaser
acknowledges and agrees that such Shares are not transferable on the books of
the Company unless (a) such Shares are sold (i) pursuant to the Registration
Statement, (ii) pursuant to Rule
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144 under the Securities Act ("Rule 144"), or (iii) pursuant to an exemption
from registration, other than Rule 144, and (b) a certificate is submitted to
the transfer agent evidencing the Shares is accompanied by a separate officer's
certificate: (i) in the form of Appendix II hereto; (ii) executed by an officer
of, or other authorized person designated by, the Purchaser; and (iii) to the
effect that the Shares have been sold pursuant to (A) the Registration
Statement, in which case the Purchaser certifies that the requirement of
delivering a current prospectus has been complied with or will be complied with
in connection with the sale, (B) Rule 144, in which case the Purchaser certifies
that it has complied with or will comply with the requirements of Rule 144, or
(C) pursuant to an exemption from registration, other than Rule 144, in which
case the Purchaser must provide the Company with an opinion (in form and
substance reasonably satisfactory to the Company) of its counsel (who shall be
reasonably satisfactory to the Company) to the effect that the transaction is so
exempt. The Purchaser acknowledges that there may occasionally be times when the
Company must suspend the use of the Prospectus in accordance with Section 8.1(g)
hereof.
5.3 The Purchaser further represents and warrants to, and
covenants with, the Company that:
(a) the Purchaser is a ________, duly organized, validly
existing and in good standing under the laws of ________. The Purchaser
has full right, requisite [corporate][partnership] power, authority and
capacity to enter into this Agreement, to carry out its obligations
hereunder and to consummate the transactions contemplated hereby and
has taken all requisite [corporate][partnership] action to duly
authorize, execute and deliver this agreement and perform all of its
obligations under and contemplated by this Agreement;
(b) upon the execution and delivery of this Agreement, this
Agreement shall constitute a valid and binding obligation of the
Purchaser enforceable against the Purchaser in accordance with its
terms except insofar as enforcement of the indemnification or
contribution provisions hereof may be limited by applicable laws or
principles of public policy and subject, as to enforcement, to the
availability of equitable remedies and limitations imposed by
bankruptcy, insolvency, reorganization and other similar laws and
related court decisions relating to creditors' rights generally;
(c) the Purchaser's execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated
hereby (a) have been authorized by all requisite
[corporate][partnership] action by the Purchaser, and (b) will not
conflict with, or result in any breach or violation of or constitute a
default under (nor constitute any event which with notice, lapse of
time, or both would result in any breach or violation of, or constitute
a default under) any provisions of the organizational documents of the
Purchaser or under any provision of any material license, permit,
indenture, mortgage, deed of trust, bank loan or credit agreement or
other evidence of indebtedness, or any material lease, contract or
other agreement or instrument to which the Purchaser is a party or by
which it or its properties may be bound or affected, or under any
federal, state, local or foreign law, regulation or rule or any decree,
judgment or order applicable to the Purchaser; and
(d) no consent, approval, order or other authorization, action
by, filing with, or notification to any federal, state or local
governmental authority on the part of the Purchaser is required in
connection with its execution and delivery of this Agreement and its
consummation of the transactions contemplated by this Agreement, except
for such consents, approvals, orders or authorizations as have been
obtained.
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5.4 The Purchaser understands that nothing in this Agreement or any
other materials presented to the Purchaser in connection with the purchase of
the Shares constitutes legal, tax or investment advice. The Purchaser has
consulted such legal, tax and investment advisors as it, in its sole discretion,
has deemed necessary or appropriate in connection with its purchase of the
Shares.
5.5 The Purchaser acknowledges and agrees that any information or data
it has acquired from the Company, not otherwise properly in the public domain,
was received in confidence. The Purchaser agrees not to divulge, communicate or
disclose, except as may be required by law after obtaining written consent from
the Company (which consent shall not be unreasonably withheld), or use to the
detriment of the Company or for the benefit of any other person or persons, or
misuse in any way, any confidential information of the Company; provided
however, that the Purchaser may furnish the Offering Materials in confidence to
its officers, directors, employees or advisors to the extent necessary to
evaluate the offering of the Offered Shares.
SECTION 6
Conditions to Closing of the Purchaser
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The obligation of the Purchaser to purchase the Shares at the Closing
is subject to the fulfillment as of the Closing Date of the following
conditions:
6.1 Representations and Warranties. The representations and warranties
made by the Company in Section 4 hereof shall be true and correct when made, and
shall be true and correct on the Closing Date with the same force and effect as
if they had been made on and as of said date.
6.2 Covenants. All covenants, agreements and conditions contained in
this Agreement to be performed by the Company on or prior to the Closing shall
have been performed or complied with in all material respects.
6.3 Compliance Certificate. The President or Chief Financial Officer of
the Company shall have delivered to the Purchaser a certificate, dated as of the
Closing Date, certifying that the conditions specified in Sections 6.1 and 6.2
have been fulfilled.
6.4 Legal Opinion of Company Counsel. Battle Xxxxxx LLP, counsel to the
Company, shall have delivered a legal opinion, dated the Closing Date addressed
to the Purchaser, substantially in the form as set forth in Annex A hereto.
6.5 Legal Opinion of Patent Counsel. Xxxxxx & Xxxxxxxxxx, P.C.,
intellectual property counsel to the Company, shall have delivered a legal
opinion dated the Closing Date and addressed to the Purchaser, substantially in
the form as set forth in Annex A hereto.
6.6 Legal Opinions of Patent Litigation Counsel
(a) Xxxxxx & Xxxxxxx LLP, intellectual property litigation
counsel to the Company, shall have delivered a legal opinion dated the
Closing Date and addressed to the Purchaser, substantially in the form
as set forth in Annex A hereto.
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(b) Xxxxxx & Xxxxxx L.L.P., intellectual property litigation
counsel to the Company, shall have delivered a legal opinion dated the
Closing Date and addressed to the Purchaser, substantially in the form
as set forth in Annex A hereto.
6.7 Legal Opinion of Regulatory Counsel. Xxxx and Xxxx LLP, regulatory
counsel to the Company, shall have delivered a legal opinion dated the Closing
Date and addressed to the Purchaser, substantially in the form as set forth in
Annex A hereto.
SECTION 7
Conditions to Closing of the Company
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The Company's obligation to sell and issue the Shares at the Closing to
a Purchaser is subject to the fulfillment or waiver of the following conditions:
7.1 Representations and Warranties. The representations and warranties
made by such Purchaser in Section 5 hereof shall be true and correct when made,
and shall be true and correct on the Closing with the same force and effect as
if they had been made on and as of such date.
7.2 Covenants. All covenants, agreements and conditions contained in
this Agreement to be performed by such Purchaser on or prior to the Closing
shall have been performed or complied with in all material respects.
7.3 Compliance Certificate. An authorized representative of the
Purchaser shall have delivered to the Company a certificate, dated as of the
Closing Date, certifying that the conditions specified in Sections 7.1 and 7.2
have been fulfilled.
SECTION 8
Registration Rights
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8.1 Registration Requirements.
(a) The Company shall, within 30 days following the Closing,
prepare and file a registration statement on the applicable form with
the Commission under the Securities Act to register the resale of the
Offered Shares purchased by the Purchasers, and the Company shall use
its best efforts to secure the effectiveness of such registration
statement within 90 days following the Closing Date. For purposes
hereof, the term "Registration Statement" shall refer to such
Registration Statement, including any prospectus(es) constituting a
part thereof and together with any amendments and supplements thereto.
(b) The Company shall pay all Registration Expenses (as
defined below) in connection with any registration, qualification or
compliance hereunder, and the Purchasers shall pay all Selling Expenses
(as defined below) and other expenses that are not Registration
Expenses relating to the Offered Shares resold by the Purchasers.
"Registration Expenses" shall mean all expenses, except for Selling
Expenses, incurred by the Company in complying with the registration
provisions herein described, including, without limitation, all
registration, qualification and filing
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fees, printing expenses, escrow fees, fees and disbursements of counsel
for the Company, reasonable fees and disbursements (not to exceed
$15,000) of one counsel for the Purchasers (selected by the Purchasers
owning a majority of the Offered Shares to be registered in the
Registration Statement), reasonable blue sky fees and expenses, the
expense of any special audits of the Company incident to or required by
any such registration and any fees and expenses, other than Selling
Expenses incurred in connection with any underwritten offering.
"Selling Expenses" shall mean all selling commissions, underwriting
fees and stock transfer taxes applicable to the Offered Shares.
(c) In the case of the registration effected by the Company
pursuant to these registration provisions, the Company will use its
best efforts to: (i) keep the Registration Statement effective until
the earlier of (A) such date as all of the Offered Shares have been
resold pursuant to the Registration Statement, or (B) such time as
Offered Shares held by the Purchasers can be sold without compliance
with the registration requirements of the Securities Act pursuant to
Rule 144(k) thereunder (or any successor rule thereto); (ii) prepare
and file with the Commission such amendments and post-effective
amendments to the Registration Statement as may be necessary to keep
the Registration Statement effective for the applicable period
specified in this Section 8.1(c); (iii) cause the related prospectus to
be supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) under the Securities Act; (iv) comply with
the provisions of the Securities Act with respect to the disposition of
all securities covered by the Registration Statement during the
applicable period in accordance with the intended methods of
disposition by the sellers thereof set forth in the Registration
Statement as so amended or such prospectus as so supplemented; (v)
furnish such number of prospectuses and other documents incident
thereto, including any amendment of or supplement to the prospectus, as
the Purchaser from time to time may reasonably request in order to
facilitate the disposition of Shares covered by the Registration
Statement, and the Company hereby consents to the use of such
prospectus or each amendment and supplement thereto by each of the
Purchasers selling Offered Shares and the underwriters, if any, in
connection with the offering and sale of the Shares covered by such
prospectus or any amendment or supplement thereto; (vi) cause the
Shares covered by the Registration Statement to be listed on each
securities exchange and quoted on each quotation service on which
similar securities issued by the Company are then listed or quoted and
maintain the listing of the Shares covered by the Registration
Statement; (vii) provide a transfer agent and registrar for all Shares
registered pursuant to the Registration Statement and a CUSIP number
for all such Shares; (viii) otherwise use its best efforts to comply
with all applicable rules and regulations of the Commission with
respect to maintaining the effectiveness of the Registration Statement;
and (ix) use its best efforts to register or otherwise qualify the
Shares for resale in states requested by the Purchaser; provided that
the Company may do so without incurring unreasonable effort or expense;
provided, further, that the Company shall not be obligated to (x) file
any general consent to service of process, (y) qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or (z)
take any action that would subject it to income taxation in any such
jurisdiction.
In the event that any Offered Shares included in the
Registration Statement subject to, or required by, this Agreement
remain unsold at the end of the period during which the Company is
obligated to use its best efforts to maintain the effectiveness of the
Registration Statement, the
926907.2
11
Company may file a post-effective amendment to the Registration
Statement for the purpose of removing such Offered Shares from
registered status.
(d) It shall be a condition precedent to the obligations of
the Company to take any action pursuant to this Section 8.1 with
respect to the Offered Shares of any Purchaser that such Purchaser
shall furnish to the Company such information regarding such Purchaser,
the number of the Offered Shares owned by it, and the intended method
of disposition of such Offered Shares as shall be reasonably required
to effect the registration of such Offered Shares, and to cooperate
with the Company to the extent reasonably required in preparing such
registration.
(e) With a view to making available to the Purchaser the
benefits of Rule 144 and any other rule or regulation of the Commission
that may at any time permit the Purchaser to sell Shares to the public
without registration or pursuant to a registration on Form S-3 (if then
available), the Company covenants and agrees to: (i) make and keep
public information available, as those terms are understood and defined
in Rule 144, until the earlier of (A) such date as all of the Offered
Shares shall have been resold pursuant to the Registration Statement or
(B) such time as all of the Offered Shares held by Purchasers can be
sold without compliance with the registration requirements of the
Securities Act pursuant to Rule 144(k) thereunder (or any successor
rule thereto); (ii) file with the Commission in a timely manner all
reports and other documents required of the Company under the
Securities Act and Exchange Act; and (iii) furnish to the Purchaser
upon request, as long as the Purchaser owns any Shares, (A) a written
statement by the Company that it has complied with the reporting
requirements of the Securities Act and the Exchange Act, (B) a copy of
any annual, quarterly or current report of the Company, and (C) such
other information as may be reasonably requested in order to avail the
Purchaser of any rule or regulation of the Commission that permits the
selling of any such Shares without registration or pursuant to such
Form S-3.
(f) The Company shall notify the Purchaser, if the Purchaser
has registered Shares in a Registration Statement which remain unsold,
(i) when a prospectus or any prospectus supplement or post-effective
amendment has been filed, and, with respect to the Registration
Statement or any post-effective amendment, when the same are declared
effective, (ii) of any request by the Commission or any other federal
or state governmental authority during the period of effectiveness of
the Registration Statement for amendments or supplements to the
Registration Statement or related prospectus or for additional
information relating to the Registration Statement, (iii) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or
exemption from qualification of any of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose, (v) of the happening of any event which makes any
statement made in the Registration Statement or related prospectus
untrue in any material respect or which requires the making of any
changes in the Registration Statement or prospectus so that, in the
case of the Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the prospectus, it will
not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which
they were made, not
926907.2
12
misleading, and (vi) of the Company's reasonable determination that a
post-effective amendment to the Registration Statement would be
appropriate.
(g) The Company may, upon written notice to the Purchaser of
(i) the happening of any event of the kind described in Section
8.1(f)(ii), 8.1(f)(iii), 8.1(f)(iv), 8.1(f)(v) or 8.1(f)(vi) hereof or
(ii) that, in the judgement of the Company's Board of Directors, it is
advisable to suspend use of the prospectus for a discrete period of
time due to pending corporate developments, public filings with the SEC
or similar events, require the Purchaser, and the Purchaser agrees, to
discontinue disposition of Shares covered by the Registration Statement
or prospectus until copies of the supplemented or amended prospectus
contemplated by Section 8.1(i) hereof are distributed to the
Purchasers, or until the Purchasers are advised in writing by the
Company that the use of the applicable prospectus may be resumed and
the Purchasers have received copies of any additional or supplemental
filings that are incorporated or deemed incorporated by reference in
such prospectus. The Company shall not suspend use of a prospectus or
Registration Statement under this Section 8.1(g) for more than 30 days
at a time and more than once in any 12-month period. Any period for
which use of a prospectus or Registration Statement is suspended under
this Section 8.1(g) shall be added to the time for which the Company is
required to maintain the effectiveness of such Registration Statement,
including the prospectus constituting a part thereof, under Section
8.1(c) hereof. Any period for which use of a prospectus or Registration
Statement is suspended in accordance with this Section 8.1(g) shall be
referred to herein as a "Suspension Period").
(h) The Company shall use reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of the
Registration Statement, or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the Shares
for sale in any jurisdiction, at the earliest possible moment, subject
to Section 8.1(c)(ix) hereof.
(i) The Company shall, upon the occurrence of any event
contemplated by Section 8.1(f)(v) or 8.1(f)(vi) above, prepare a
supplement or post-effective amendment to the Registration Statement or
a supplement to the related prospectus or any document incorporated
therein by reference or file any other required document so that, as
thereafter delivered to the purchasers of the Shares being sold
thereunder, such prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(j) If the Registration Statement (i) is not declared
effective by the Commission on or before ninety (90) days from the
Closing Date or (ii) ceases to be effective (without being succeeded
immediately by an additional registration statement filed and declared
effective) or usable for the offer and sale of Shares at any time prior
to the earlier of (A) such date as all of the Shares have been resold
pursuant to the Registration Statement or (B) such time as all of the
Shares held by Purchasers can be sold without compliance with the
registration requirements of the Securities Act pursuant to Rule 144(k)
(other than during a Suspension Period in accordance with Section
8.1(g) hereof) (each such event referred to in clauses (i) through
(ii), a "Registration Default") the Company shall pay the Purchaser an
amount equal to 2% of the purchase price paid by the Purchaser for the
Shares of the Purchaser registered or to be registered under the
Securities Act pursuant to this Agreement and not previously sold
pursuant to the Registration Statement for every thirty day period
during which one or more Registration Defaults exist (and pro rated for
926907.2
13
each lesser portion thereof); provided, however, that the aggregate
amount of damages the Purchaser is entitled to under this provision for
any and all Registration Defaults shall be limited to 5% of the
purchase price paid by the Purchaser for such Shares. Amounts payable
pursuant to this Section 8.1(j) shall be paid to the Purchaser within
20 business days after expiration of each 30 day period or lesser
portion thereof during which a Registration Default exists. Any
obligation of the Company to pay any amounts under this Section 8.1(j)
shall survive until such obligation is paid in full. The obligation of
the Company to pay amounts under this Section 8.1(j) is intended to be
in addition to, and not exclusive of, any other remedy that a Purchaser
may have (whether considered in equity or at law) in the event of a
Registration Default.
8.2 Agreements of Purchaser. In connection with any registration
pursuant to Section 8.1 hereof, the Purchaser agrees, as applicable:
(a) that it will not offer or sell its Offered Shares under
the Registration Statement until it has received copies of the
supplemented or amended prospectus contemplated by Section 8.1(c)(ii)
hereof and receives notice that any post-effective amendment (if
required) has become effective; and
(b) that upon receipt of any notice from the Company of the
happening of any transaction or event of the kind described in Section
8.1(g) hereof, such Purchaser will forthwith discontinue disposition of
the Offered Shares pursuant to the Registration Statement until the
Purchaser receives copies of the supplemented or amended prospectus
contemplated by Section 8.1(c)(ii) hereof and receives notice that any
post-effective amendment (if required) has become effective, and, if so
directed by the Company, the Purchaser will deliver to the Company (at
the expense of the Company) all copies in its possession, other than
permanent file copies then in such Purchaser's possession, of the
prospectus covering such Offered Shares current immediately preceding
the time of receipt of such notice.
8.3 Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the
Purchaser and any officer, director, trustee or affiliate of such
Purchaser from and against any losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) incurred by such
indemnified person pursuant to any actual or threatened (which threat
shall have been made in writing) action, suit, proceeding or
investigation, or to which any of the foregoing persons may become
subject under the Securities Act, the Exchange Act or other federal or
state laws, insofar as such losses, claims, damages or liabilities (i)
arise out of, or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement
or any prospectus (preliminary or final), as amended on the applicable
date thereof, (ii) 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 not misleading, or
(iii) arise out of any failure by the Company to fulfill any
undertaking included in the Registration Statement or any prospectus
(preliminary or final), as amended on the applicable date thereof,
which, in the case of this clause (iii), results in a violation or
alleged violation of the federal securities laws, any applicable state
securities law or any rule or regulation promulgated under the
Securities Act, the Exchange Act or any applicable state securities
laws, and the Company will, as incurred within 30 days of written
notice thereof to the indemnifying person (regardless of whether it is
ultimately determined that
926907.2
14
an indemnified person is not entitled to indemnification hereunder),
reimburse such indemnified person for any legal or other expenses
reasonably incurred in investigating, defending or preparing to defend
any such action, suit, proceeding or investigation; provided, however,
that the indemnification required by this Section 8.3 shall not apply
to amounts paid in settlement of any such loss, claim, damage,
liability or expense if such settlement is effected without the consent
of the Company, which consent shall not be unreasonably withheld, nor
shall the Company be liable in any such case to the extent that such
loss, claim, damage or liability arises out of, or is based upon (x) an
untrue statement or an omission made in such Registration Statement in
reliance upon and in conformity with written information furnished to
the Company by or on behalf of the indemnified person specifically for
use in preparation of the Registration Statement, or (y) any untrue
statement or the omission of a material fact in any prospectus that is
corrected in any subsequent prospectus that was delivered to the
indemnified person prior to the pertinent sale or sales by the
indemnified person.
(b) The Purchaser agrees to indemnify and hold harmless the
Company and each officer, director, trustee or affiliate of the Company
from and against any losses, claims, damages or liabilities (or actions
or proceedings in respect thereof), any other Purchaser selling its
Offered Shares in the Registration Statement, any controlling person of
any such other Purchaser (within the meaning of the Securities Act) and
each officer, director, partner, and employee of such other Purchaser
and such controlling person, incurred by such indemnified person
pursuant to any actual or threatened (which threat shall have been made
in writing) action, suit, proceeding or investigation, or to which any
of the foregoing persons may become subject under the Securities Act,
the Exchange Act or other federal or state laws insofar as such losses,
claims, damages or liabilities arise out of, or are based upon an
untrue statement or an alleged untrue statement of material fact made
in such Registration Statement or prospectus (preliminary or final), as
amended on the applicable date thereof, or the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in reliance
upon and in conformity with written information furnished to the
Company by or on behalf of the Purchaser specifically for use in
preparation of the Registration Statement, provided, however, that the
indemnification required by this Section 8.3 shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or
expense if such settlement is effected without the consent of the
Purchaser, which consent shall not be unreasonably withheld, nor shall
the Purchaser be liable in any such case for any untrue statement or
alleged untrue statement or the omission or alleged omission that has
been corrected, in writing, by the Purchaser, delivered to the Company
before the sale from which such loss occurred, and the Purchaser will,
as incurred within 30 days of written notice thereof to the
indemnifying person (regardless of whether it is ultimately determined
that an indemnified party is not entitled to indemnification
hereunder), reimburse such indemnified person for any legal or other
expenses reasonably incurred in investigating, defending or preparing
to defend any such action, suit, proceeding or investigation; provided,
however, that the Purchaser's indemnification obligation shall be
limited to the net proceeds received from its sale of the Shares.
(c) Promptly after receipt by any indemnified person of a
notice of a claim or the beginning of any action in respect of which
indemnity is to be sought against an indemnifying person pursuant to
this Section 8.3, such indemnified person shall notify the indemnifying
person in writing of such claim or of the commencement of such action,
and, subject to the provisions
926907.2
15
hereinafter stated, in case any such action shall be brought against an
indemnified person and the indemnifying person shall have been notified
thereof, the indemnifying person shall be entitled to participate
therein, and, to the extent that it shall wish, to assume the defense
thereof, with counsel reasonably satisfactory to the indemnifying
person and indemnified persons. The failure to deliver written notice
to the indemnifying person within a reasonable time following the
commencement of any such action, if not otherwise known by the
indemnifying person and materially prejudices or results in forfeiture
of substantial rights or defenses shall relieve such indemnifying
person of any liability to the indemnified party under this Section 8.3
but shall not relieve the indemnifying person of any liability that it
may have to any indemnified party otherwise than pursuant to this
Section 8.3. After notice from the indemnifying person to such
indemnified person of the indemnifying person's election to assume the
defense thereof, the indemnifying person shall not be liable to such
indemnified person for any legal expenses subsequently incurred by such
indemnified person in connection with the defense thereof; provided,
however, that if there exists or shall exist a conflict of interest
such that counsel employed by the indemnifying party could not
faithfully represent both the indemnified person and such indemnifying
person or any affiliate or associate thereof, the indemnified person,
after notifying the indemnifying person in writing of its election to
employ separate counsel, shall be entitled to retain its own counsel at
the expense of such indemnifying person, it being understood, however,
that the indemnifying person shall not, in connection with any one such
action, claim or proceeding or separate but substantially similar or
related actions, claims or proceedings in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one additional firm of
attorneys (together with appropriate local counsel) at any time for all
such indemnified persons, unless in the reasonable judgment of such
indemnified person a conflict of interest may exist between such
indemnified person and any other of such indemnified persons with
respect to such action, claim or proceeding, in which event the
indemnifying person shall be obligated to pay the fees and expenses of
such additional counsel or counsels. No indemnifying person shall be
liable to an indemnified person for any settlement of any action,
proceeding or claim without the written consent of the indemnifying
person, which consent shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 8.3 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions or proceedings in respect thereof)
referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as the result of
such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative
fault and benefits of the indemnifying person and indemnified persons
in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative
fault of such indemnifying person and indemnified persons shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
such indemnifying person or indemnified persons and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The relative benefit to
the Purchaser shall be determined by reference to the net proceeds
received by it in connection with the offering to which such losses,
claims, damages or liabilities relate. The relative benefit to the
Company shall be deemed to equal the net
926907.2
16
proceeds to the Company from the sale of the Offered Shares to the
Purchasers pursuant to the Offering Memorandum. The Company and the
Purchaser agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the
losses, claims, damages, or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include,
subject to the limitations set forth in Sections 8.3(a) and (b) hereof,
any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (d), a
Purchaser shall not be required to contribute any amount in excess of
the amount by which the gross amount received by such Purchaser from
the sale of the Shares to which such loss relates exceeds the amount of
any damages which such Purchaser has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The obligations of the Company and the Purchaser under
this Section 8.3 shall be in addition to any liability which the
Company and the Purchaser may otherwise have and shall extend, upon the
same terms and conditions, to directors, officers, employees and agents
of the Company and the Purchaser and to each person, if any, who
controls the Company or any Purchaser within the meaning of Section 15
of the Securities Act and Section 20 of the Exchange Act.
(f) If the indemnification is available under this Section
8.3, the indemnifying parties shall indemnify each indemnified person
to the full extent provided in this Section 8.3 without regard to the
relative fault of such indemnifying person or indemnified person or any
other equitable consideration referred to in Section 8.3(d) hereof.
(g) The obligations of the Company and the Purchaser under
this Section 8.3 shall survive the completion of any offering of the
Offered Shares pursuant to the Registration Statement under this
agreement, and otherwise.
8.4 Underwritten Offerings.
(a) If holders owning a majority of the Offered Shares so
request, an offering of Offered Shares pursuant to the Registration
Statement may be effected as an underwritten offering. In such event,
the managing underwriter for such an offering shall be selected by the
holders of a majority of the Offered Shares to be sold pursuant to the
underwritten offering; provided, however, that each underwriter or
underwriters shall be reasonably satisfactory to the Company.
(b) In the event of an underwritten offering pursuant to
Section 8.3(a), (i) the Company shall (A) enter into an underwriting
agreement, in usual and customary form, with the managing underwriter
and take all such other actions in connection therewith as may
reasonably be required in order to facilitate such underwritten
offering, (B) make such customary representations and warranties to the
underwriters as the underwriters may reasonably request, (C) enter into
such customary indemnification arrangements with the underwriters as
the underwriters
926907.2
17
may reasonably request, and (D) make arrangements for the underwriters
to conduct customary due diligence to the extent the underwriters
reasonably request, (ii) each of the holders of Offered Shares to be
included in such underwritten offering shall enter into an underwriting
agreement, in usual and customary form, with the managing underwriter
and take all such other actions in connection therewith as may
reasonably be required in order to facilitate such underwritten
offering, and (iii) each of the holders of Offered Shares to be
included in such underwritten offering and executive officers and
directors of the Company shall enter into such lock-up agreements with
the underwriters as is customary for similar offerings; provided, that
such lock-up agreements shall not cover a period in excess of 90 days
from the date of the underwritten offering, unless otherwise agreed to
by the party from whom such lock-up agreement is sought.
SECTION 9
Restrictions on Transferability of Shares:
------------------------------------------
Compliance with Securities Act
------------------------------
9.1 Restrictions on Transferability. The Shares shall not be
transferable in the absence of a registration under the Securities Act or an
exemption therefrom or in the absence of compliance with any term of this
Agreement.
9.2 Restrictive Legend. Each certificate representing the Shares shall
bear substantially the following legends (in addition to any other legends
required under applicable law):
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY STATE
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF HEMASURE INC. (THE
"COMPANY") THAT THIS SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (1) TO THE COMPANY, (2) PURSUANT TO
AN EXEMPTION FROM REGISTRATION IN ACCORDANCE WITH RULE 144 (IF
AVAILABLE) UNDER THE SECURITIES ACT, ESTABLISHED TO THE
COMPANY'S SATISFACTION, OR OTHER EXEMPTION WHICH, IN THE
OPINION OF COUNSEL FOR THE HOLDER, WHICH COUNSEL AND OPINION
ARE REASONABLY SATISFACTORY TO THE COMPANY, IS AVAILABLE, OR
(3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
9.3 Transfer of Shares after Registration. Each Purchaser hereby
covenants with the Company not to make any sale of the Shares except either (i)
in accordance with the Registration Statement, in which case such Purchaser
covenants to comply with the requirement of delivering a current prospectus,
(ii) in accordance with Rule 144, in which case Purchaser covenants to comply
with Rule 144, or (iii) in accordance with another exemption from the
registration requirements of the Securities Act. The legend
926907.2
18
set forth in Section 9.2 will be removed from a certificate representing the
Shares following and in connection with any sale of the Shares pursuant to
subsection (i) or (ii) hereof, but not in connection with any sale of Shares
pursuant to subsection (iii) hereof, and also will be removed at such time that
the Shares may be sold under Rule 144 without restriction as to volume and
manner of sale at such time as the resale of the Shares is registered under the
Securities Act. If the above legend is removed from any of the Shares and
thereafter the effectiveness of a registration statement covering such Shares is
suspended or the Company determines that a supplement or amendment thereto is
required by applicable securities laws, then upon reasonable advance notice to
Purchaser the Company may require that the above legend be placed on any such
Shares that cannot then be sold pursuant to an effective registration statement
or under Rule 144 and Purchaser shall cooperate in the replacement of such
legend. Such legend shall thereafter be removed when such Shares may again be
sold pursuant to and effective registration statement or under Rule 144.
9.4 Purchaser Information. Each Purchaser covenants that it will
promptly notify the Company of any changes in the information set forth in the
Registration Statement regarding such Purchaser, under the heading "Selling
Security Holders" or elsewhere, or such Purchaser's "Plan of Distribution."
SECTION 10
Miscellaneous
-------------
10.1 Waivers and Amendments. Neither this Agreement nor any provisions
hereof shall be waived, modified, changed or discharged or terminated except by
an instrument in writing signed by the Company and the Purchaser.
10.2 Placement Agent's Fee. The Purchaser acknowledges that the Company
intends to pay a fee to the Placement Agent on the Closing Date of in connection
with the offer and sale of the Shares. Each of the parties hereto hereby
represents that, on the basis of any actions and agreements by it, there are no
brokers or finders or other consultants entitled to compensation in connection
with the sale of the Shares to the Purchaser, except as aforesaid.
10.3 Governing Law. This Agreement shall be governed in all respects by
and construed in accordance with the laws of the State of New York without any
regard to conflicts of laws principles.
10.4 Survival. The representations, warranties, covenants and
agreements made in this Agreement shall survive any investigation made by the
Company or the Purchasers and the Closing.
10.5 Successors and Assigns. The provisions hereof shall inure to the
benefit of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties to this Agreement; provided, however, neither
party hereto shall assign or delegate any of the rights or obligations created
under this Agreement without the prior written consent of the other party. If
any successor, assignee or transferee of the Purchaser shall acquire Shares,
such successor, assignee or transferee may succeed to the rights set forth in
Section 8 hereof, provided such successor, assignee or transferee agrees in
writing to be bound by the provisions thereof but in no event shall be entitled
to receive any other rights, interests in or benefits of this Agreement. Nothing
expressed or referred to in this Agreement will be construed to give any person
other than parties to this Agreement and such other parties referred to in
Section 8
926907.2
19
hereof any legal or equitable right, remedy or claim under or with respect to
this Agreement or any provision of this Agreement.
10.6 Entire Agreement. This Agreement, including all exhibits,
schedules and appendices hereto constitutes the full and entire understanding
and agreement between the parties with regard to the subjects hereof and the
transactions contemplated hereby and supersede all prior agreements written or
oral, if there be any, with respect thereto.
10.7 Notices, etc. All notices and other communications required or
permitted under this Agreement shall be in writing and may be delivered in
person, by telecopy, overnight delivery service or registered or certified
United States mail, addressed to the Company or the Purchaser, as the case may
be, at their respective addresses set forth at the beginning of this Agreement
or on the signature page to this Agreement, or at such other address as the
Company or the Purchaser shall have furnished to the other party in writing. All
notices and other communications shall be effective upon the earlier of actual
receipt thereof by the person to whom notice is directed or (i) in the case of
notices and communications sent by personal delivery or telecopy, one business
day after such notice or communication arrives at the applicable address or was
successfully sent to the applicable telecopy number, (ii) in the case of notices
and communications sent by overnight delivery service, at noon (local time) on
the second business day following the day such notice or communication was sent,
and (iii) in the case of notices and communications sent by United States mail,
seven days after such notice or communication shall have been deposited in the
United States mail.
10.8 Severability of this Agreement. If any provision of this Agreement
shall be judicially determined to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
10.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
10.10 Headings. The headings of the various 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.
10.11 Expenses. Except as otherwise specifically provided herein, each
party shall bear its own expenses in connection with this Agreement.
10.12 Publicity. The Purchaser shall not issue any press releases or
otherwise make any public statement with respect to this Agreement or the
transactions contemplated by this Agreement without the prior written consent of
the Company.
926907.2
20
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
HEMASURE INC.
By: -------------------------------------------
Xxxx X. XxXxxxx, III
President and Chief Executive Officer
Print or Type:
Name of Purchaser (Individual or Institution):
------------------------------------------------
Name of Individual representing Purchaser (if
an Institution):
------------------------------------------------
Name of Individual representing Purchaser (if
an Institution):
-----------------------------------------------
Signature by: Individual Purchaser or Individual representing
Purchaser:
------------------------------------------------
Address:________________________________________
Telephone:______________________________________
Telecopier:_____________________________________
926907.2
21
APPENDIX I(a)
HEMASURE INC.
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration Statement,
please provide us with the following information regarding the Purchaser.
1. Please state your organization's name exactly as it should appear in
the Registration Statement:
2. Have you or your organization had any position, office or other
material relationship within the past three years with the Company or its
affiliates other than as disclosed in the prospectus included in the
Registration Statement?
______________ Yes ____________ No
If yes, please indicate the nature of any such relationship below:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
926907.2
APPENDIX I(b)
HEMASURE INC.
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 5.1 of the Agreement, please provide us with the following
information:
1. The exact name that the Shares are to be registered in (this is the name
that will appear on the stock certificate(s)). You may use a nominee name
if appropriate:
------------------------------------------------------
2. The relationship between the Purchaser of
the Shares and the Registered Holder listed
in response to item 1 above:
------------------------------------------------------
3. The mailing address of the Registered
Holder listed in response to item 1 above:
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
4. The Tax Identification Number of the
Registered Holder listed in response to
item 1 above:
------------------------------------------------------
APPENDIX II
STOCK CERTIFICATE QUESTIONNAIRE
To: American Stock Transfer & Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
The undersigned, the Purchaser or an officer thereof, or other person
duly authorized by the Purchaser, hereby certifies that _________________ (fill
in name of Purchaser) institution was the Purchaser of the shares (the "Shares")
of common stock, par value $.01 per share, of HemaSure Inc., evidenced by the
attached certificate, and as such, proposes to transfer such Shares on or about
________________ (date) either
|_| pursuant to a registration statement, in which case the
Purchaser certifies that the requirement of a delivering a
current prospectus has been complied with or will be complied
with in connection with such sale, or
|_| pursuant to Rule 144 under the Securities Act of 1933 ("Rule
144"), in which case the Purchaser certifies that it has
complied with or will comply with the requirements of Rule 144,
or
|_| pursuant to an exemption from registration, other than Rule 144,
in which case the Purchaser is herewith providing the Company
with an opinion of counsel to the effect that the transaction is
so exempt.
Print or Type:
Name of Purchaser:
--------------------------------------------------------
Name of Individual
representing Purchaser
(if an Institution):
--------------------------------------------------------
Title of Individual
representing Purchaser
(if an Institution):
-------------------------------------------------------
Signature by:
Purchaser or Individual
representing Purchaser:
------------------------------------------------------
ANNEX A TO PURCHASE AGREEMENT
Form of Legal Opinion of Battle Xxxxxx LLP(1)
1. The Company is a corporation validly existing and in good standing under
the laws of the State of Delaware and has all requisite corporate power and
authority to conduct its business as presently conducted; and the Company
is duly qualified to conduct its business as a foreign corporation in
Massachusetts.
2. The authorized capital stock of the Company consists of (a) 35,000,000
shares of common stock, $.01 par value per share, and (b) 1,000,000 shares
of undesignated preferred stock, $.01 par value per share.
3. When issued and paid for in accordance with the Agreements, the Shares will
be validly issued, fully paid and non-assessable and will not have been
issued in violation of any preemptive rights contained in the Company's
Certificate of Incorporation or under the Delaware General Corporation Law.
4. The Company has the requisite corporate power and authority (A) to enter
into this Agreement and (B) to issue, sell and deliver the Shares to be
sold by it to the Purchasers as provided in the Purchase Agreements; and
the Purchase Agreements have been duly authorized, executed and delivered
by the Company.
5. The Purchase Agreements constitute the valid and binding obligation of the
Company, enforceable against the Company in accordance with their terms.
6. Neither the offer, sale or delivery of the Shares, the execution, delivery
or performance by the Company of the Purchase Agreements, nor the
consummation by the Company of the transactions contemplated thereby
constitutes or will constitute a breach or violation of, or a default
under, the Certificate of Incorporation or Bylaws of the Company or any
agreement, indenture, lease or other instrument to which the Company is a
party or by which its properties or assets is subject and, in each case,
which is identified as an exhibit to the Company's Annual Report on Form
10-K for the Year Ended December 31, 1998 (the "1998 10-K") or to any
Quarterly Report on Form 10-Q or Current Report on Form 8-K filed with the
Commission subsequent to the 1998 10-K (each such agreement, indenture,
lease or other contract or instrument herein, a "Material Agreement"), or
will result in the creation or imposition of any material lien, charge or
encumbrance upon any property or assets of the Company pursuant to the
terms of any Material Agreement, nor will any such action result in any
material
------------------
(1) Subject to customary assumptions, qualifications and limitations.
914864.2
violation of any existing law, or any regulation, ruling judgment,
injunction, order or decree known to us to be applicable to the Company and
to transactions of the nature contemplated by the Offering.
7. No consent, approval, authorization or other order of, or registration or
filing with, any court, regulatory body, administrative agency or other
governmental body, agency or official is required on the part of the
Company (except such as may be required under state securities or Blue Sky
laws governing the sale of the Shares, the filing of a Form D with respect
to the issuance of the Shares with the Commission, or such as may be
required in connection with the performance by the Company of its
obligations under Section 8 of the Purchase Agreements, as to which we
express no opinion) for the issuance and sale of the Shares to the
Purchasers as contemplated by the Purchase Agreements.
8. To our knowledge, there are no legal or governmental proceedings pending or
threatened against the Company, or to which the Company or any of its
properties are subject, which are not disclosed or identified in the
Offering Memorandum and which, if adversely decided, would likely cause a
Material Adverse Effect or materially and adversely affect the issuance of
the Shares or the consummation of the transactions contemplated by the
Purchase Agreements.
9. The offer and sale of the Shares in the manner contemplated by the Offering
Memorandum, the Placement Agency Agreement and the Purchase Agreements do
not require registration under Section 5 of the Act.
10. The Company is not, and upon consummation of the sale of the Shares will
not be, an "investment company" or a person "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
In addition, we have participated in conferences with officers and other
representatives of the Company, representatives of the independent public
accountants of the Company, the Placement Agent and representatives of the
Placement Agent at which the contents of the Offering Memorandum were discussed
and, although we are not passing upon and do not assume responsibility for the
accuracy, completeness or fairness of the statements contained in the Offering
Memorandum, on the basis of the foregoing, nothing has come to the attention of
such counsel that causes them to believe that the Offering Memorandum as of its
date and as of the date hereof contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading (it being
understood that we express no opinion with respect to the financial statements
and schedules and other financial, accounting and statistical data included in
or excluded from the Offering Memorandum).
-2-
914864.2
In rendering their opinion as aforesaid, counsel may rely upon an opinion
or opinions of other counsel retained by it or the Company as to laws of any
jurisdiction other than the United States, the State of New York or the General
Corporation Law of the State of Delaware; provided that (i) each such local
counsel is reasonably acceptable to the Placement Agent, (ii) such reliance is
expressly authorized by each opinion so relied upon and a copy of each such
opinion is delivered to the Placement Agent and is in form and substance
satisfactory to them and their counsel and (iii) counsel shall state in its
opinion that it believes that it and the Placement Agent are justified in
relying thereon.
-3-
914864.2
Form of Legal Opinion of Xxxxxx & Xxxxxxxxxx, P.C.
To such counsel's knowledge, the statements in the Offering Memorandum under the
captions "Risk Factors - We May Be Unable to Adequately Protect Our Proprietary
Rights," "Risk Factors - We May Be Sued by Third Parties for Infringement of
Their Proprietary Rights, in the first and second paragraphs under the captions
"Risk Factors - We May Not Prevail in Pending or Potential Lawsuits," "Business
- Licenses, Patents and Proprietary Information" and in the first through fifth
paragraphs under the caption "Business - Legal Proceedings" insofar as such
statements constitute summaries of intellectual property matters with respect to
the Company and the Subsidiary, are in all material respects accurate and
complete statements or summaries of the matters therein set forth.
-4-
914864.2
Form of Legal Opinion of Xxxxxx & Xxxxxxx LLP
To such counsel's knowledge, the statements in the Offering Memorandum in the
first and second paragraphs under the caption "Risk Factors - We May Not Prevail
in Pending or Potential Lawsuits" and in the first through fifth paragraphs
under the caption "Business - Legal Proceedings," as of the date of the Offering
Memorandum and as of the date of such opinion, are in all material respects
accurate and complete statements or summaries of the matters therein set forth.
-5-
914864.2
Form of Legal Opinion of Xxxxxx & Xxxxxx L.L.P.
To such counsel's knowledge, the statements in the Offering Memorandum in the
first and second paragraphs of the section captioned "Risk Factors - We May Not
Prevail in Pending or Potential Lawsuits" and in the third and fourth paragraphs
of the section captioned "Business - Legal Proceedings," as of the date of the
Offering Memorandum and as of the date of such opinion, are in all material
respects accurate and complete statements or summaries of the matters therein
set forth.
-6-
914864.2
Form of Legal Opinion of Xxxx and Xxxx LLP
To such counsel's knowledge, the statements in the Offering Memorandum under the
captions "Risk Factors - We May Not Be Able to Timely Obtain Regulatory
Approvals, If at All" and "Business - Government Regulation," insofar as such
statements constitute summaries of law under the Federal Food, Drug and Cosmetic
Act applicable to the Company's business and products as set forth in the
Offering Memorandum, as of the date of the Offering Memorandum and as of the
date of such opinion, are in all material respects accurate summaries.
-7-
914864.2
