Exhibit 10.15
INVESTMENT AGREEMENT
THIS AGREEMENT is entered into as of June 16, 1998, by and among
BIONEBRASKA, INC., a Delaware corporation (the "Company"), and MEDTRONIC, INC.,
a Minnesota corporation ("Medtronic").
RECITALS:
A. The Company desires to issue and sell to Medtronic, and Medtronic
desires to purchase from the Company, upon the terms and subject to the
conditions set forth in this Agreement, shares of the Company's Series G
Convertible Preferred Stock, par value $.01 per share ("Series G Preferred"),as
provided for in Section 2.1 hereof.
B. As a condition to Medtronic's investment described above, the Company
is willing to grant to Medtronic certain rights as set forth in this Agreement
and the Registration Rights Agreement (as defined below).
NOW, THEREFORE, in consideration of the respective representations,
warranties, covenants, and agreements contained herein, and for other valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 SPECIFIC DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings set forth or as referenced below:
"AFFILIATE" of a specified person (natural or juridical) means a person that
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the person specified. "Control"
shall mean ownership of more than 50% of the shares of stock entitled to vote
for the election of directors in the case of a corporation, and more than 50% of
the voting power in the case of a business entity other than a corporation.
"AGREEMENT" means this Agreement and all Exhibits and Schedules hereto.
"BOARD" means the Company's Board of Directors.
"CAPITAL STOCK" means any of the authorized shares of the Company.
"CGMP" means current Good Manufacturing Practices.
"CHF" means congestive heart failure.
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"CLOSING" shall have the meaning set forth in Section 2.3.
"COMMON STOCK" means the shares of Common Stock of the Company, par value $.01
per share.
"CONFIDENTIAL INFORMATION" means know-how, trade secrets, and unpublished
information disclosed (whether before or during the term of this Agreement) by
one of the parties (the "disclosing party") to the other party (the "receiving
party") or generated under this Agreement, excluding information that:
(a) was already in the possession of the receiving party prior to its
receipt from the disclosing party or has been independently developed by
the receiving party without breach of this Agreement or use of any
Confidential Information of the other party (provided that the receiving
party is able to provide the disclosing party with reasonable documentary
proof thereof);
(b) is or becomes part of the public domain by reason of acts not
attributable to the receiving party;
(c) is or becomes available to the receiving party from a source other
than the disclosing party, which source, to the best of the receiving
party's knowledge, has rightfully obtained such information and has no
obligation of nondisclosure or confidentiality to the disclosing party with
respect thereto;
(d) is made available by the disclosing party to a third party
unaffiliated with the disclosing party on an unrestricted basis; or
(e) has been or must be publicly disclosed by reason of legal,
accounting, or regulatory requirements beyond the reasonable control, and
despite the reasonable efforts, of the receiving party.
All Confidential Information disclosed by one party to the other under this
Agreement shall be in writing and bear a legend stating "Proprietary,"
"Confidential," or words of similar import or, if disclosed in any manner other
than writing, shall be preceded by an oral statement indicating that the
information is Company proprietary or confidential, and shall be followed by
transmittal of a reasonably detailed written summary of the information provided
to the receiving party within 30 days and identified as Confidential Information
bearing the legend described above.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and all
regulations promulgated thereunder.
"FDA" means the United States Food and Drug Administration.
"FIELD" means the field of congestive heart failure, or CHF.
"GRF" means Human Growth Hormone Releasing Factor, a 44-residue, amidated
peptide hormone produced in the hypothalamus area of the brain, which activates
and regulates the systems comprising the body's growth and maintenance
functions.
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"INTELLECTUAL PROPERTY" means letters patent and patent applications;
trademarks, service marks and registrations thereof and applications therefor;
copyrights and copyright registrations and applications; all discoveries, ideas,
inventions, technology, know-how, trade secrets, processes, formulas, drawings
and designs, notebooks, computer programs and software, and licenses; and all
amendments, modifications, and improvements to any of the foregoing.
"KNOWLEDGE" means actual knowledge of a fact or the knowledge that such person
could reasonably be expected to have based on reasonable inquiry. The knowledge
of an entity shall include the knowledge of such entity's executive officers.
"LIENS" means liens, mortgages, charges, security interests, claims, voting
trusts, pledges, encumbrances, options, assessments, restrictions, or
third-party or spousal interests of any nature.
"PREFERRED STOCK" means shares of the Company's Series A Preferred Stock, Series
B Convertible Preferred Stock, Series C Convertible Preferred Stock, Series D
Convertible Preferred Stock, Series E Convertible Preferred Stock, Series F
Convertible Preferred Stock, and Series G Convertible Preferred Stock.
"PURCHASED SHARES" means the shares of Series G Preferred purchased by Medtronic
pursuant to Section 2.1.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement of even
date herewith between Medtronic and the Company.
"SEC" shall mean the Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and all
regulations promulgated thereunder.
1.2 DEFINITIONAL PROVISIONS.
(a) The words "hereof," "herein," and "hereunder" and words of similar
import, when used in this Agreement, shall refer to this Agreement as a
whole and not to any particular provisions of this Agreement.
(b) Terms defined in the singular shall have a comparable meaning when
used in the plural, and vice versa.
(c) References to an "Exhibit" or to a "Schedule" are, unless
otherwise specified, to one of the Exhibits or Schedules attached to or
referenced in this Agreement, and references to an "Article" or a "Section"
are, unless otherwise specified, to one of the Articles or Sections of this
Agreement.
(d) The term "person" includes any individual, partnership, joint
venture, corporation, trust, unincorporated organization or government or
any department or agency thereof.
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ARTICLE 2
PURCHASE OF SERIES G PREFERRED STOCK
2.1 PURCHASE AND SALE OF SHARES; PURCHASE PRICE. At or before the Closing,
the Company shall adopt and file with the Secretary of State of Delaware a
Certificate of Designation relating to the Series G Preferred in the form
attached hereto as EXHIBIT A. Subject to the terms and conditions hereof, the
Company shall issue and deliver to Medtronic, and Medtronic shall purchase from
the Company, 50,000 shares of Series G Preferred (the "Purchased Shares"), which
shall have a face value and purchase price of $100 per share and an aggregate
purchase price of $5,000,000. As described in the Certificate of Designation,
the Purchased Shares shall initially be convertible into shares of Common Stock
based on a price per share of Common Stock of $7.75. Certificates representing
the Purchased Shares shall be issued on the Closing Date in form acceptable to
Medtronic and its counsel.
2.2 PAYMENT OF PURCHASE PRICE. Medtronic shall pay the Purchase Price to
the Company on the Closing Date via wire transfer of funds to an account
designated by the Company.
2.3 CLOSING. The consummation of the transactions contemplated by this
Agreement (the "Closing") shall take place, following the satisfaction or waiver
of all of the conditions to Closing contained in this Agreement, at 10:00 a.m.
on June 16, 1998, or at such other time as shall be agreed upon by Medtronic and
the Company (the "Closing Date"). The Closing shall take place (i) at the office
of Xxxxxxxxxx & Xxxxx, P.A. in Minneapolis, Minnesota, or (ii) on the mutual
agreement of the parties, by delivery via facsimile transmission (with originals
sent by overnight courier service) of the documents to be delivered at the
Closing, or (iii) at such other place or in such other manner as the parties
mutually agree.
2.4 USE OF PROCEEDS. The Company and Medtronic agree that the proceeds
received by the Company from the sale of the Purchased Shares hereunder shall be
used by the Company for peptide production scaleup and cGMP development that is
integral to the CHF/GRF clinical program of the Company, including but not
limited to preclinical evaluation, drug stability and drug compatibility of and
with Medtronic's drug delivery systems, any clinical trials necessary to obtain
regulatory approval for GRF, and animal feasibility studies.
ARTICLE 3
MEDTRONIC RIGHTS OF FIRST OFFER AND FIRST REFUSAL
3.1 RIGHT OF FIRST REFUSAL ON NEW ISSUANCES.
(a) The Company hereby grants to Medtronic a right of first refusal to
purchase all or part of its pro rata share of any New Securities (as
defined below) that the Company may, from time to time, propose to sell and
issue, subject to the terms and conditions set forth below. Medtronic's pro
rata share, for purposes of this Section 3.1, shall equal a fraction, the
numerator of which is the number of issued and outstanding shares of Common
Stock then held by Medtronic or into which the shares of Preferred
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Stock then held by Medtronic are convertible and the denominator of which
is the total number of shares of Common Stock then issued and outstanding
and/or into which the shares of all preferred stock of the Company then
issued and outstanding are convertible.
(b) "New Securities" means any Capital Stock, whether or not now
authorized, and rights, options, or warrants to purchase Capital Stock, and
securities of any kind whatsoever that are, or may become, convertible into
Capital Stock; provided, however, that the term "New Securities" does not
include:
(i) Shares of Common Stock issuable upon conversion of
outstanding shares of Preferred Stock;
(ii) Shares of Series F Convertible Preferred Stock currently
being offered to investors by the Company, any warrants to purchase
Common Stock issued to any agents in connection with such offering,
and any shares of Common Stock issued to any agent in lieu of
commissions in connection with such offering;
(iii) Shares of Common Stock issuable to officers, directors, or
employees of or consultants to the Company granted pursuant to the
Company's 1993 Stock Plan, as it has been, and may be, amended from
time to time;
(iv) Shares of Common Stock issued or issuable upon exercise of
warrants to purchase shares of Common Stock outstanding on the date
hereof;
(v) Shares of Common Stock issued upon conversion of the
Company's bridge notes outstanding on the date hereof;
(vi) Shares of Common Stock sold to the public pursuant to a
registration statement filed under the Securities Act; or
(vii) Securities issued as a result of any stock split, stock
dividend, or reclassification of Common Stock, distributable on a pro
rata basis to all holders of Common Stock.
(c) In the event the Company intends to issue New Securities, it shall
give Medtronic written notice of such intention, describing the type of New
Securities to be issued, the price thereof, the proposed offeree(s), and
the general terms upon which the Company proposes to effect such issuance.
Medtronic shall have 15 days from the date of receipt of such notice to
agree to purchase all or part of its pro rata share of such New Securities
for the price and upon the general terms and conditions specified in the
Company's notice by giving written notice to the Company stating the
quantity of New Securities to be so purchased.
(d) In the event that Medtronic fails to exercise the foregoing right
of first refusal with respect to any New Securities within such 15-day
period, the Company may within 120 days thereafter sell any or all of such
New Securities not agreed to be purchased by Medtronic, at a price and upon
general terms no more favorable to the
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purchaser(s) thereof than specified in the notice given to Medtronic pursuant to
paragraph (c) above. In the event that the Company does not sell such New
Securities within such 120-day period, the Company shall not thereafter issue or
sell any New Securities without first offering such New Securities to Medtronic
in the manner described above.
(e) The rights of Medtronic described in this Section 3.1 shall terminate
upon the closing of the sale of the Company's Common Stock in an underwritten
public offering registered under the Securities Act that results in aggregate
gross proceeds to the Company of not less than $7,000,000.
3.2 RIGHT OF FIRST OFFER/FIRST REFUSAL FOR MARKETING AND DISTRIBUTION
RIGHTS.
(a) In the event that the Company or any of its Affiliates
proposes to sell GRF in the Field anywhere in the world on other than
a direct selling basis, the Company shall not enter, and shall cause
each Affiliate not to enter, into any transaction of the general types
described in Section 3.2(b) below without first giving the Company's
Notice (as defined below) to Medtronic with respect thereto and
complying with the terms of this Section 3.2.
(b) In the event that (referred to as a "Proposed Transaction"):
(i) the Company or any of its Affiliates receives a bona fide
offer from a third party regarding the grant by the Company or such
Affiliate of marketing, distribution, or sales representative rights
for GRF for use in the Field, or
(ii) the Company or any of its Affiliates determines that it
wishes to grant, or to explore the possibility of granting, licenses
to market, distribute, or sell GRF for use in the Field (including,
without limitation, a determination to seek indications of interest
with respect to such a transaction or agreement),
then the Company shall, within five days after such event, notify Medtronic
in writing of th`e Company's or such Affiliate's receipt of such offer
described in clause (i) above or the Company's or such Affiliate's
determination described in clause (ii) above (the "Company's Notice"). The
Company's Notice shall set forth, as applicable, the material terms and
provisions of such offer described in clause (i) above or, in the case of a
determination described in clause (ii) above, the material terms and
provisions upon which the Company or such Affiliate would be willing to
enter into any such a transaction with Medtronic.
(c) During the 60-day period following Medtronic's receipt of the
Company's Notice with respect to any Proposed Transaction (the "Exclusive
Period"), the Company shall negotiate, and shall cause each Affiliate to
negotiate, in good faith exclusively with Medtronic regarding the entry
into the Proposed Transaction with Medtronic. During the Exclusive Period,
the Company will not, and will cause each Affiliate not to, solicit offers
from, negotiate with, or provide information to any third party regarding
the Proposed Transaction.
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(d) If Medtronic and the Company or such Affiliate fail to reach a
mutual agreement upon the terms and provisions of the Proposed Transaction
during the Exclusive Period, then the Company and its Affiliates shall have
180 days from the expiration of the Exclusive Period in which to negotiate
and enter into definitive agreements for the Proposed Transaction with the
third party whose bona fide offer was described in the Company's Notice
(with respect to a Proposed Transaction described in paragraph (b)(i)
above) or with any third party (with respect to a Proposed Transaction
described in paragraph (b)(ii) above); provided, however, that the Company
shall not enter into definitive agreements with any such third party with
respect to such Proposed Transaction unless the terms and provisions
thereof have been found by the Company's Board in good faith to be, in the
aggregate, more favorable to the Company than the final terms and
provisions proposed by Medtronic during the Exclusive Period. If the
Company fails to enter into definitive agreements with respect to such
Proposed Transaction within such 180-day period, then Medtronic's rights
under this Section 3.2 shall be reinstated and the Company may not enter
into such Proposed Transaction without first giving Medtronic a new
Company's Notice and complying with the terms of this Section 3.2.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth on the attached Disclosure Schedule, the Company
represents and warrants to Medtronic as follows:
4.1 ORGANIZATION, QUALIFICATION AND CORPORATE POWER. The Company is a
corporation duly incorporated, validly existing, and in good standing under the
laws of the State of Delaware and is duly licensed or qualified to transact
business as a foreign corporation and is in good standing in each jurisdiction
in which the nature of the business transacted by it or the character of the
properties owned or leased by it requires such licensing or qualification and
where the failure to be so licensed or qualified could have a material adverse
effect upon the Company or its business. The Company has the corporate power and
authority to own and hold its properties and to carry on its business as now
conducted and as proposed to be conducted, to execute, deliver and perform this
Agreement, and to issue, sell, and deliver the Purchased Shares.
4.2 AUTHORIZATION OF AGREEMENT, ETC.
(a) The execution and delivery by the Company of this Agreement, the
performance by the Company of its obligations hereunder, and the issuance,
sale, and delivery of the Purchased Shares have been duly authorized by all
requisite corporate action and will not violate any provision of law, any
order of any court or other agency of government, the Certificate of
Incorporation or the Bylaws of the Company, as amended, or any provision of
any indenture, agreement or other instrument to which the Company or any of
its Affiliates, properties or assets is bound, or conflict with, result in
a breach of or constitute (with due notice or lapse of time or both) a
default under any such indenture, agreement or other instrument, or result
in the creation or imposition of any lien, charge, restriction, claim or
encumbrance of any nature whatsoever upon any of the properties or assets
of the Company or its Affiliates.
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(b) The Purchased Shares have been duly authorized and validly issued,
and are fully paid and nonassessable shares of Series G Preferred with no
personal liability attaching to the ownership thereof and are free and
clear of all Liens imposed by or through the Company. Neither the issuance
nor the sale or delivery of the Purchased Shares is subject to any
preemptive right of stockholders of the Company or to any right of first
refusal or other right in favor of any person that has not been complied
with or duly waived. Assuming, and after taking into account, the sale and
issuance of all of the shares of Capital Stock described in Section
3.1(b)(ii) hereof, the Purchased Shares constitute approximately 6.5
percent of the issued and outstanding shares of Common Stock of the
Company, on an as-converted and fully-diluted basis.
4.3 VALIDITY. This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid, and binding obligations of the
Company, enforceable in accordance with its terms, subject, as to the
enforcement of remedies, to the discretion of the courts in awarding equitable
relief and to applicable bankruptcy, reorganization, insolvency, moratorium, and
similar laws affecting the rights of creditors generally.
4.4 FINANCIAL STATEMENTS. The Company has furnished to Medtronic (i) the
audited balance sheet of the Company as of December 31, 1997 (the "Balance
Sheet"), and the related statements of operations, shareholders' equity, and
cash flows of the Company for the year then ended, and (ii) the unaudited
balance sheet of the Company as of March 31, 1998 (the "March 31 Balance
Sheet"), and the related statements of operations, shareholders' equity, and
cash flows for the month then ended. The Balance Sheet and related financial
statements for the year ended December 31, 1997 have been prepared in accordance
with generally accepted accounting principles consistently applied, and all of
the financial statements described in this Section 4.4 fairly present the
financial position of the Company as of the dates thereof and the results of its
operations for the periods then ended. Since the date of the March 31 Balance
Sheet and except as disclosed on the Disclosure Schedule, (i) there has been no
change in the assets, liabilities or financial condition of the Company from
that reflected in the March 31 Balance Sheet except for changes in the ordinary
course of business that in the aggregate have not been materially adverse, and
(ii) none of the business, prospects, financial condition, operations, property
or affairs of the Company has been materially adversely affected by any
occurrence or development, individually or in the aggregate, whether or not
insured against.
4.5 LITIGATION; COMPLIANCE WITH LAW. There is no (i) action, suit, claim,
proceeding or investigation pending or, to the Company's knowledge, threatened
against or affecting the Company, at law or in equity, or before or by any
federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, (ii) arbitration
proceeding relating to the Company pending under collective bargaining
agreements or otherwise, or (iii) governmental inquiry pending or, to the
Company's knowledge, threatened against or affecting the Company or its
Affiliates (including without limitation any inquiry as to the qualification of
the Company to hold or receive any license or permit), and there is no basis for
any of the foregoing. The Company has complied with all laws, rules,
regulations, and orders applicable to its business, operations, properties,
assets, products, and services. The Company has all necessary permits, licenses,
and other authorizations required to conduct its business as conducted, and has
no reason to believe that the Company will not obtain the same with respect
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to its business as proposed to be conducted, which, if not obtained, would have,
either individually or in the aggregate, a material adverse effect on the
Company.
4.6 PROPRIETARY INFORMATION OF THIRD PARTIES. To the Company's knowledge,
no third party has claimed or has reason to claim that any person employed by or
affiliated with the Company or its Affiliates has (a) violated or may be
violating any of the terms or conditions of his or her employment,
noncompetition or nondisclosure agreement with such third party, (b) disclosed
or may be disclosing or utilized or may be utilizing any trade secret or
proprietary information or documentation of such third party, or (c) interfered
or may be interfering in the employment relationship between such third party
and any of its present or former employees.
4.7 TITLE TO PROPERTIES. The Company has good and marketable title to its
properties and assets reflected on the March 31 Balance Sheet or acquired by it
since the date of the March 31 Balance Sheet (other than properties and assets
disposed of in the ordinary course of business since the date of the March 31
Balance Sheet), and all such properties and assets are free and clear of all
Liens, except for liens for current taxes not yet due and payable and minor
imperfections of title, if any, not material in nature or amount and not
materially detracting from the value or impairing the use of the property
subject thereto or impairing the operations or proposed operations of the
Company.
4.8 LEASEHOLD INTERESTS. Each material lease or agreement to which the
Company is a party under which it is a lessee of any property, real or personal,
is a valid and existing agreement without any default of the Company thereunder
and, to the Company's knowledge, without any default thereunder of any other
party thereto. No event has occurred and is continuing that, with due notice or
lapse of time or both, would constitute a default or event of default by the
Company under any such material lease or agreement or, to the Company's
knowledge, by any other party thereto.
4.9 TAXES. The Company has filed all tax returns, federal, state, county,
and local, required to be filed by it, and the Company has paid all taxes shown
to be due by such returns as well as all other taxes, assessments, and
governmental charges that have become due or payable, including without
limitation all taxes that the Company is obligated to withhold from amounts
owing to employees, creditors, and third parties. All such taxes with respect to
which the Company has become obligated pursuant to elections made by the Company
in accordance with generally accepted practice have been paid and adequate
reserves have been established for all taxes accrued but not yet payable. The
federal income tax returns of the Company have never been audited by the
Internal Revenue Service. No deficiency assessment with respect to or proposed
adjustment of the Company's federal, state, county or local taxes is pending or,
to the Company's knowledge, threatened.
4.10 NO DEFAULTS. The Company and, to the Company's knowledge, each other
party thereto have in all material respects performed all the obligations
required to be performed by them to date, have received no notice of default and
are not in default (with due notice or lapse of time or both) under any lease,
agreement or contract now in effect to which the Company is a party or by which
it or its property may be bound. The Company has no present expectation or
intention of not fully performing all its obligations under each such lease,
contract or other agreement, and the Company has no knowledge of any breach or
anticipated breach by the other party to any contract or commitment to which the
Company is a party. The Company is in full
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compliance with all of the terms and provisions of its Certificate of
Incorporation and Bylaws, as amended.
4.11 PATENTS, TRADEMARKS, ETC. To the Company's knowledge, the Company owns
or possesses licenses or other rights to use all Intellectual Property necessary
or desirable to the conduct of its business as conducted and as proposed to be
conducted, and no claim is pending or threatened to the effect that the
operations of the Company infringe upon or conflict with the asserted rights of
any other person under any Intellectual Property, and there is no basis for any
such claim. No claim is pending or threatened to the effect that any such
Intellectual Property owned or licensed by the Company, or which the Company
otherwise has the right to use, is invalid or unenforceable by the Company, and
there is no basis for any such claim (whether or not pending or threatened). To
the Company's knowledge, all technical information developed by and belonging to
the Company that has not been patented has been kept confidential.
4.12 BROKERS. The Company has no contract, arrangement or understanding
with any broker, finder or similar agent with respect to the transactions
contemplated by this Agreement.
4.13 TRANSACTIONS WITH AFFILIATES. No director, officer, employee or
stockholder of the Company, or member of the family of any such person, or any
corporation, partnership, trust or other entity in which any such person, or any
member of the family of any such person, has a substantial interest or is an
officer, director, trustee, partner or holder of more than 5% of the outstanding
capital stock thereof, is a party to any transaction with the Company, including
any contract, agreement or other arrangement providing for the employment of,
furnishing of services by, rental of real or personal property from or otherwise
requiring payments to any such person or firm.
4.14 DISCLOSURE. Neither this Agreement, nor any other statements,
documents, certificates or other items prepared or supplied by the Company with
respect to the transactions contemplated hereby contains an untrue statement of
a material fact or omits a material fact necessary to make the statements
contained therein not misleading. There is no fact that the Company has not
disclosed to Medtronic and its counsel in writing and of which the Company is
aware that materially and adversely affects or could materially and adversely
affect the business, prospects, financial condition, operations, property or
affairs of the Company.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF MEDTRONIC
Medtronic represents and warrants to the Company as follows:
5.1 PURCHASE OF SHARES. Medtronic is an "accredited investor" within the
meaning of Rule 501 under the Securities Act and was not organized for the
specific purpose of acquiring the Purchased Shares. Medtronic has sufficient
knowledge and experience in investing in companies similar to the Company in
terms of the Company's stage of development so as to be able to evaluate the
risks and merits of Medtronic's investment in the Company, and Medtronic is able
financially to bear the risks thereof. Medtronic has had an opportunity to
discuss the Company's business, management, and financial affairs with the
Company's management. The Purchased Shares are being acquired for Medtronic's
own account for the purpose of investment and not
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with a view to or for sale in connection with any distribution thereof.
Medtronic understands that (i) the Purchased Shares have not been registered
under the Securities Act by reason of their issuance in a transaction exempt
from the registration requirements of the Securities Act pursuant to Section
4(2) thereof or Rule 505 or 506 promulgated under the Securities Act, (ii) the
Purchased Shares must be held indefinitely unless a subsequent disposition
thereof is registered under the Securities Act or is exempt from such
registration, (iii) the Purchased Shares will bear a legend to such effect, and
(iv) the Company will make a notation on its transfer books to such effect.
5.2 CORPORATE AUTHORITY. The execution, delivery, and performance by
Medtronic of this Agreement and the transactions contemplated hereby has been
duly and validly authorized and approved by all requisite corporate action on
the part of Medtronic, and the execution and the delivery of this Agreement and
consummation of the transactions contemplated hereby and compliance with and
fulfillment of the terms and provisions hereof will not (i) conflict with or
result in a breach of the terms, conditions or provisions of or constitute a
default under the Articles of Incorporation or Bylaws of Medtronic, or (ii)
require any affirmative approval, consent, authorization or other order or
action of any court, governmental authority, regulatory body, creditor or any
other person. Medtronic has all requisite power and authority to do and perform
all acts and things required to be done by it under this Agreement and the
agreements contemplated hereby. This Agreement constitutes the valid and binding
obligation of Medtronic enforceable in accordance with its terms except as may
be limited by laws affecting creditors' rights generally or by judicial
limitations on the right to specific performance.
ARTICLE 6
CONDITIONS TO THE OBLIGATIONS OF MEDTRONIC
The obligations of Medtronic to purchase and pay for the Purchased Shares
pursuant to Section 2.1 are, at its option, subject to the satisfaction on or
before the Closing Date of the conditions set forth in Sections 6.1 through 6.8
below, inclusive. References in this Article 6 to the "Closing Date" shall mean
and refer to the date set forth in Section 2.4, unless the parties agree to
consummate the transactions contemplated by this Agreement as of a date other
than the date set forth therein.
6.1 REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT. The representations
and warranties of the Company contained in Article 4 shall be true, complete,
and correct on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of such date, and the
Chairman of the Board and the President of the Company shall have certified to
such effect to Medtronic in writing.
6.2 PERFORMANCE. The Company shall have performed and complied with all
agreements contained herein required to be performed or complied with by it
prior to or at the Closing Date, and the Chairman of the Board and the President
of the Company shall have certified to Medtronic in writing to such effect and
to the further effect that all of the conditions set forth in Section 6.1
through 6.8, inclusive, have been satisfied.
6.3 ALL PROCEEDINGS TO BE SATISFACTORY. All corporate and other proceedings
to be taken by the Company in connection with the transactions contemplated
hereby and all
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documents incident thereto shall be satisfactory in form and substance to
Medtronic and its counsel, and Medtronic and its counsel shall have received all
such counterpart originals or certified or other copies of such documents as
they reasonably may request.
6.4 SUPPORTING DOCUMENTS. Medtronic and its counsel shall have received
copies of the following documents:
(a) a certificate of the Secretary of State of the State of
Delaware dated as of a date within five days prior to the Closing Date
as to the good standing of the Company and the payment of all excise
taxes by the Company and listing all documents of the Company on file
with said Secretary of State, and evidence satisfactory to Medtronic
of the filing of the Certificate of Designation described in Section
2.1;
(b) a certificate of the Secretary of the Company dated as of the
Closing Date certifying: (i) that the Company's Certificate of
Incorporation and Bylaws have not been amended since the date of the
copies thereof previously delivered to Medtronic; (ii) that attached
thereto is a true and complete copy of all resolutions adopted by the
Board of Directors of the Company authorizing the execution, delivery,
and performance of this Agreement and the issuance, sale, and delivery
of the Purchased Shares, and that all such resolutions are in full
force and effect and are all the resolutions adopted in connection
with the transactions contemplated by this Agreement; and (iii) to the
incumbency and specimen signature of each officer of the Company
executing this Agreement, the stock certificates representing the
Purchased Shares, and any certificate or instrument furnished pursuant
hereto, and a certification by another officer of the Company as to
the incumbency and signature of the officer signing the certificate
referred to in this paragraph (b); and
(c) such additional supporting documents and other information
with respect to the operations and affairs of the Company as Medtronic
or its counsel reasonably may request.
6.5 REQUIRED CONSENTS. The Company shall have obtained the written consent
or approval of each person whose consent or approval Medtronic reasonably
believes is required in connection with this Agreement.
6.6 LITIGATION AFFECTING CLOSING. No suit, action or other proceeding shall
be pending or threatened by any third party or by or before any court or
governmental agency seeking to restrain or prohibit or to obtain damages or
other relief in connection with this Agreement, or the consummation of the
transactions contemplated hereby or thereby, and no investigation that might
result in any such suit, action or other proceeding shall be pending or
threatened.
6.7 NO MATERIAL ADVERSE CHANGES. Since the date hereof, no events shall
have occurred or circumstances arisen that are reasonably expected to have or
result in a material adverse effect upon the Company or its business or
prospects. The Company shall fully cooperate to enable Medtronic to determine
that this condition has been satisfied.
6.8 REGISTRATION RIGHTS AGREEMENT. The Company shall have executed and
delivered to Medtronic the Registration Rights Agreement.
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ARTICLE 7
COVENANTS OF THE COMPANY AND THE SHAREHOLDERS
So long as Medtronic is the legal or beneficial owner of at least four
percent of the issued and outstanding shares of Common Stock of the Company, on
an as-converted basis:
7.1 FINANCIAL STATEMENTS, REPORTS, ETC. The Company shall furnish to
Medtronic:
(a) within 120 days after the end of each fiscal year of the
Company, a balance sheet of the Company as of the end of such fiscal
year and the related consolidated statements of income, stockholders'
equity, and cash flows for the fiscal year then ended, prepared in
accordance with generally accepted accounting principles and certified
by a firm of independent public accountants selected by the Board of
Directors of the Company;
(b) within 30 days after the end of each month, an unaudited
balance sheet of the Company and the related statement of income,
prepared on a basis consistent with the Company's past practice and in
accordance with its books and records;
(c) within 30 days prior to the start of each fiscal year, any
Company-wide forecasts or budgets prepared by the Company in respect
of such fiscal year, and forecasts or budgets for its CHF/GRF program;
(d) promptly after the commencement thereof, notice of all
actions, suits, claims, proceedings, investigations, and inquiries
that could materially adversely affect the Company;
(e) promptly upon sending, making available or filing the same,
all press releases, reports, and financial statements that the Company
sends or makes available to its stockholders or directors or files
with the SEC, the NASD, or any national securities exchange; and
(f) promptly, from time to time, such other information regarding
the Company's overall financial condition and CHF/GRF program as
Medtronic reasonably may request.
7.2 INSPECTION, CONSULTATION, AND ADVICE. The Company shall permit and
cause any Affiliates of the Company to permit Medtronic and such persons as
it may designate, at Medtronic's expense, to visit and inspect any of the
properties of the Company and its Affiliates, examine their books and take
copies and extracts therefrom, discuss the CHF/GRF program and the finances
of the Company and its Affiliates with their officers, employees, and
public accountants (and the Company hereby authorizes said accountants to
discuss with Medtronic and such designees such information), and consult
with and advise the management of the Company and its Affiliates as to the
Company's finances and CHF/GRF program, all at reasonable times and upon
reasonable notice. All such information shall be subject to Section 9.2
hereof.
13
7.3 TRANSACTIONS WITH AFFILIATES. Except for transactions contemplated by
this Agreement or as otherwise approved by the Board of Directors, neither the
Company nor any of its subsidiaries shall enter into any transaction with any
director, officer, employee or holder of more than 5% of the outstanding capital
stock of any class or series of capital stock of the Company or any of its
subsidiaries, member of the family of any such person, or any corporation,
partnership, trust or other entity in which any such person, or member of the
family of any such person, is a director, officer, trustee, partner or holder of
more than 5% of the outstanding capital stock thereof, except for transactions
on customary terms related to such person's employment.
7.4 BOARD MEETINGS. The Company shall use its best efforts to ensure that
meetings of its Board of Directors are held at least four times each year and at
least once each quarter.
7.5 MEDTRONIC BOARD OBSERVER. Medtronic shall have the right to designate
an observer to the Company's Board. Medtronic's designee shall receive all
notices, documents, and other information in the same time and manner as such
information is supplied to members of the Board. All such information shall be
subject to Section 9.2 hereof. The Company shall make reasonable efforts to
permit Medtronic's designee to participate or observe Board meetings by
telephone if such designee is unable to attend in person. The parties agree that
Medtronic's observer to the Company's Board shall be present solely for the
purpose of observation and shall have no power to exert "control" on behalf of
Medtronic as that term is defined in Rule 405 under the Securities Act.
7.6 PROPRIETARY INFORMATION AND EMPLOYEE INVENTIONS AGREEMENTS. The Company
shall use its best efforts to obtain confidentiality and assignment of
inventions agreements from all officers, key employees, and other employees,
consultants or independent contractors who will have access to confidential
information of the Company.
7.7 COMPLIANCE WITH LAWS. The Company shall comply, and cause each
Affiliate to comply, with all applicable laws, rules, regulations, and orders,
noncompliance with which could materially adversely affect the Company's
business or condition, financial or otherwise.
7.8 KEEPING OF RECORDS AND BOOKS OF ACCOUNT. The Company shall keep, and
cause each Affiliate to keep, adequate records and books of account, in which
complete entries will be made in accordance with generally accepted accounting
principles consistently applied, reflecting all financial transactions of the
Company and such subsidiary, and in which, for each fiscal year, all proper
reserves for depreciation, depletion, obsolescence, amortization, taxes, bad
debts, and other purposes in connection with its business shall be made.
7.9 USE OF MEDTRONIC NAME. Except for any joint public announcement
described in Section 9.8 and the information contained therein, the Company
shall not, except with the written consent of Medtronic, publicly use
Medtronic's name or disclose Medtronic's relationship with the Company.
14
ARTICLE 8
INDEMNIFICATION
8.1 INDEMNIFICATION OF MEDTRONIC. The Company shall indemnify, defend, and
hold harmless Medtronic and each of its subsidiaries, officers, directors,
shareholders, employees, agents, and affiliates (Medtronic and such other
indemnities are referred to in this Article 8 as "Medtronic") from and against
and in respect of any and all demands, claims, actions or causes of action,
assessments, losses, damages, liabilities, interest and penalties, costs, and
expenses (including, without limitation, reasonable legal fees and disbursements
incurred in connection therewith and in seeking indemnification therefor, and
any amounts or expenses required to be paid or incurred in connection with any
action, suit, proceeding, claim, appeal, demand, assessment or judgment)
("Indemnifiable Losses") resulting from, arising out of, or imposed upon or
incurred by any person to be indemnified hereunder by reason of any breach of
any representation, warranty, covenant or agreement of the Company contained in
this Agreement or any agreement, certificate or document executed and delivered
by the Company pursuant hereto or in connection with any of the transactions
contemplated by this Agreement.
8.2 INDEMNIFICATION OF THE COMPANY. Medtronic shall indemnify, defend, and
hold harmless the Company and each of its subsidiaries, officers, directors,
shareholders, employees, agents, and affiliates (the Company and such other
indemnities referred to in this Article 8 as "the Company") from and against and
in respect of any and all demands, claims, actions or causes of action,
assessments, losses, damages, liabilities, interest and penalties, costs, and
expenses (including, without limitation, reasonable legal fees and disbursements
incurred in connection therewith and in seeking indemnification therefor, and
any amounts or expenses required to be paid or incurred in connection with any
action, suit, proceeding, claim, appeal, demand, assessment or judgment)
resulting from, arising out of, or imposed upon or incurred by any person to be
indemnified hereunder by reason of any breach of any representation, warranty,
covenant or agreement of Medtronic contained in this Agreement or any agreement,
certificate or document executed and delivered by Medtronic pursuant hereto or
in connection with the transactions contemplated by this Agreement.
8.3 THIRD-PARTY CLAIMS. If a claim by a third party is made against an
indemnified party and if the indemnified party intends to seek indemnity with
respect thereto under this Article 8, such indemnified party shall promptly
notify the indemnifying party of such claim; provided, however, that failure to
give timely notice shall not affect the rights of the indemnified party so long
as the failure to give timely notice does not adversely affect the indemnifying
party's ability to defend such claim against a third party. The indemnifying
party or parties shall be entitled to settle or assume the defense of such
claim, including the employment of counsel reasonably satisfactory to the
indemnified party. If the indemnifying party or parties elect(s) to settle or
defend such claim, the indemnifying party or parties shall notify the
indemnified party within 30 days (but in no event less than 20 days before any
pleading, filing or response on behalf of the indemnified party is due) of the
indemnifying party's or parties' intent to do so. If the indemnifying party or
parties elect(s) not to settle or defend such claim or fail(s) to notify the
indemnified party of the election within 30 days (or such shorter period
provided above) after receipt of the indemnified party's notice of a claim of
indemnity hereunder, the indemnified party shall have the right to contest,
settle or compromise the claim without prejudice to any rights to
indemnification hereunder. Regardless of which party is controlling the
settlement of defense of any claim, (a) both the indemnified party and
indemnifying party or parties shall act
15
in good faith, (b) the indemnifying party or parties shall not thereby permit to
exist any lien, encumbrance or other adverse charge upon any asset of any
indemnified party or of its subsidiaries, (c) the indemnifying party or parties
shall permit the indemnified party to participate in such settlement or defense
through counsel chosen by the indemnified party, with all fees, costs, and
expenses of such counsel borne by the indemnifying party or parties, (d) no
entry of judgment or settlement of a claim may be agreed to without the written
consent of the indemnified party, and (e) the indemnifying party or parties
shall promptly reimburse the indemnified party for the full amount of such claim
and the related expenses as incurred by the indemnified party pursuant to this
Article 8. So long as the indemnifying party or parties is (are) reasonably
contesting any such third party claim in good faith and the foregoing clause (b)
is being complied with, the indemnified party shall not pay or settle any such
claim. The controlling party shall upon request deliver, or cause to be
delivered, to the other party copies of all correspondence, pleadings, motions,
briefs, appeals or other written statements relating to or submitted in
connection with the settlement or defense of any such claim, and timely notices
of any hearing or other court proceeding relating to such claim.
8.4 COOPERATION AS TO INDEMNIFIED LIABILITY. Each party hereto shall
cooperate fully with the other parties with respect to access to books, records,
or other documentation within such party's control, if deemed reasonably
necessary or appropriate by any party in the defense of any claim that may give
rise to indemnification hereunder.
ARTICLE 9
OTHER PROVISIONS
9.1 PURCHASE OF PURCHASED SHARES BY MEDTRONIC AFFILIATE. Notwithstanding
any other provisions of this Agreement, Medtronic shall have the right at its
option to designate and permit an affiliate of Medtronic to acquire and hold the
Purchased Shares pursuant to this Agreement. In the event that Medtronic elects
to do so, references in this Agreement to "Medtronic" shall, in the context of
the acquisition and ownership of the Purchased Shares, mean and refer to such
affiliate.
9.2 NONDISCLOSURE. Each party agrees not to disclose or use (except as
permitted or required for performance by the party receiving such Confidential
Information of its rights or duties hereunder) any Confidential Information of
the other party obtained during the during the term of this Agreement until, as
to any such Confidential Information, the date as of which such Confidential
Information has been in the possession of the receiving party, as a result of
disclosure under this Agreement, for a period of seven years. Each party further
agrees to take appropriate measures to prevent any such prohibited disclosure by
its present and future employees, officers, agents, subsidiaries, or consultants
during such period.
9.3 FURTHER ASSURANCES. At such time and from time to time on and after the
date hereof upon request by Medtronic, the Company will execute, acknowledge,
and deliver, or will cause to be done, executed, acknowledged, and delivered,
all such further acts, certificates, and assurances that may be required for the
better conveying, transferring, assigning, delivering, assuring, and confirming
to Medtronic, or to its respective successors and assigns, all of the Purchased
Shares or to otherwise carry out the purposes of this Agreement.
16
9.4 ENTIRE AGREEMENT. The Schedules and Exhibits to this Agreement shall be
construed as an integral part of this Agreement to the same extent as if they
had been set forth verbatim herein. This Agreement and the Registration Rights
Agreement, and the Schedules and Exhibits hereto and thereto, constitute the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersede all prior agreements whether written or oral relating
hereto, except for that certain Agreement for Mutual Exchange of Confidential
Information dated December 11, 1997, between the Company and Medtronic, which
shall remain in effect.
9.5 SURVIVAL. The representations, warranties, covenants, and agreements
contained herein shall survive the purchase of the Purchased Shares and remain
in full force and effect, except that the representations and warranties
contained in Articles 4 and 5 hereof shall expire on the date that is two years
after the date hereof. No independent investigation of the Company by Medtronic,
its counsel, or any of its agents or employees shall in any way limit or
restrict the scope of the representations and warranties made by the Company in
this Agreement.
9.6 WAIVER, DISCHARGE, AMENDMENT, ETC. The failure of either party to
enforce at any time any of the provisions of this Agreement shall in no way be
construed to be a waiver of any such provision, nor in any way to affect the
validity of this Agreement or any part of it or the right of either party after
any such failure to enforce each and every such provision. No waiver of any
breach of this Agreement shall be held to be a waiver of any other or subsequent
breach. This Agreement may be amended only by the Company and Medtronic, by
mutual action approved by their respective Boards of Directors or their
respective officers authorized by such Board of Directors. Any amendment to this
Agreement shall be in writing and signed by the Company and Medtronic.
9.7 NOTICES. All notices or other communications to a party required or
permitted hereunder shall be in writing and shall be delivered personally or by
telecopy (receipt confirmed) to such party (or, in the case of an entity, to an
executive officer of such party) or shall be sent by a reputable express
delivery service or by certified mail, postage prepaid with return receipt
requested, addressed as follows:
if to Medtronic to:
Medtronic, Inc.
Corporate Center
0000 Xxxxxxx Xxxxxx X.X.
Xxxxxxxxxxx, Xxxxxxxxx 00000
FAX (000) 000-0000
with separate copies thereof addressed to:
Attention: General Counsel
and
Attention: Vice President, Corporate Development
and Associate General Counsel
17
if to the Company to:
BioNebraska, Inc.
0000 XX 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
FAX (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
Chairman of the Board and CEO
Any party may change the above-specified recipient and/or mailing address
by notice to all other parties given in the manner herein prescribed. All
notices shall be deemed given on the day when actually delivered as provided
above (if delivered personally or by telecopy) or on the day shown on the return
receipt (if delivered by mail or delivery service).
9.8 PUBLIC ANNOUNCEMENT. In the event any party proposes to issue any press
release or public announcement concerning any provisions of this Agreement or
the transactions contemplated hereby, such party shall so advise the other
parties hereto, and the parties shall thereafter use their best efforts to cause
a mutually agreeable release or announcement to be issued. Neither party will
publicly disclose or divulge any provisions of this Agreement or the
transactions contemplated hereby without the other parties' written consent,
except as may be required by applicable law or stock exchange regulation, and
except for communications to employees.
9.9 EXPENSES. The Company and Medtronic shall each pay their own expenses
incident to this Agreement and the preparation for, and consummation of, the
transactions provided for herein.
9.10 GOVERNING LAW. This Agreement shall be governed by, and interpreted
and construed in accordance with, the laws of the State of Minnesota, without
giving effect to principles of conflict or choice of laws.
9.11 TITLES AND HEADINGS; CONSTRUCTION. The titles and headings to the
Articles and Sections herein are inserted for the convenience of reference only
and are not intended to be a part of or to affect the meaning or interpretation
of this Agreement. This Agreement shall be construed without regard to any
presumption or other rule requiring construction hereof against the party
causing this Agreement to be drafted.
9.12 BENEFIT. Nothing in this Agreement, expressed or implied, is intended
to confer on any person other than the parties to this Agreement, or their
respective successors or assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
9.13 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed as original and all of which
together shall constitute one instrument, and may be delivered in person or by
facsimile transmission.
9.14 SEVERABILITY. If any provision of this Agreement is held invalid by a
court of competent jurisdiction, the remaining provisions shall nonetheless be
enforceable according to their terms. Further, if any provision is held to be
overbroad as written, such provision shall be
18
deemed amended to narrow its application to the extent necessary to make the
provision enforceable according to applicable law and shall be enforced as
amended.
9.15 PARTIES IN INTEREST. All representations, covenants, and agreements
contained in this Agreement by or on behalf of any of the parties hereto shall
bind and inure to the benefit of the respective successors and assigns of the
parties hereto, whether so expressed or not. Without limiting the generality of
the foregoing, all representations, covenants, and agreements benefiting
Medtronic shall inure to the benefit of any and all subsequent holders from time
to time of the Purchased Shares.
19
IN WITNESS WHEREOF, each of the parties has caused this Investment
Agreement to be executed in the manner appropriate for each, and to be dated as
of the date first above written.
BIONEBRASKA, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
MEDTRONIC, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------
Its: VICE PRESIDENT
---------------
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