Exhibit 10.13
METASYN, INC.
CONVERTIBLE PROMISSORY NOTE
PURCHASE AGREEMENT
Dated as of May 26, 1995
Table of Contents
1. Authorization and Sale of Notes........................................ 1
1.1 Authorization of Notes........................................... 1
1.2 Authorization of Shares.......................................... 1
1.3 Sale of Notes.................................................... 1
1.4 Use of Proceeds.................................................. 1
2. The Closing....................................................... 1
3. Representations of the Company.................................... 2
3.1 Organization and Standing........................................ 2
3.2 Capitalization................................................... 2
3.3 Issuance of Notes................................................ 3
3.4 Issuance of Shares............................................... 3
3.5 Reservation of Series C Preferred Stock and Common Stock......... 3
3.6 Subsidiaries..................................................... 3
3.7 Stockholder List and Agreements.................................. 3
3.8 Tax Returns and Payments......................................... 3
3.9 ERISA............................................................ 4
3.10 Title to Assets................................................. 4
3.11 No Material Adverse Change...................................... 4
3.12 Real Property Leases............................................ 5
3.13 Insurance....................................................... 5
3.14 Transactions with Affiliates.................................... 5
3.15 Assumptions or Guaranties of Indebtedness of Other Persons...... 5
3.16 Investments in Other Persons.................................... 5
3.17 Authority for Agreements........................................ 5
3.18 Conflicting Agreements and Violations of Charter Provisions..... 5
3.19 Consents and Approvals.......................................... 6
3.20 Compliance with Laws............................................ 6
3.21 Litigation...................................................... 6
3.22 Financial Statements............................................ 6
3.23 Absence of Liabilities.......................................... 7
3.24 Patents and Trademarks.......................................... 7
3.25 Material Contracts and Obligations.............................. 7
3.26 Employees and Consultants....................................... 7
3.27 Books and Records............................................... 7
3.28 Disclosures..................................................... 7
4. Representations of the Purchasers...................................... 8
4.1 Investment....................................................... 8
4.2 Authority........................................................ 8
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4.3 Experience.......................................................... 8
4.4 Accredited Investor................................................. 8
5. Conditions to the Obligations of the Purchasers........................... 8
5.1 Accuracy of Representations and Warranties.......................... 9
5.2 Performance......................................................... 9
5.3 Financing Agreements................................................ 9
5.4 Certificates and Documents.......................................... 9
5.5 Compliance Certificate.............................................. 9
5.6 Other Matters....................................................... 9
5.7 Opinion of Counsel................................................. 10
6. Conditions to the Obligations of the Company............................. 10
6.1 Accuracy of Representations and Warranties......................... 10
6.2 Performance........................................................ 10
7. Annual Financial Reports................................................. 10
8. Successors and Assigns................................................... 10
9. Transfers of Certain Rights.............................................. 10
9.1 Permitted Transfers................................................ 10
9.2 Subsequent Transferees............................................. 11
10. Confidentiality......................................................... 11
11. Survival of Representations and Warranties.............................. 11
12. Notices................................................................. 11
13. Brokers................................................................. 11
14. Legal Expenses.......................................................... 11
15. Entire Agreement........................................................ 12
16. Amendments and Waivers.................................................. 12
17. Counterparts............................................................ 12
18. Headings................................................................ 12
19. Severability............................................................ 12
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20. Governing Law........................................................... 12
Exhibits
A - List of Purchasers
B - Form of Convertible Promissory Note
C - Restated Certificate of Incorporation
D - Exceptions to Representations and Warranties
E - List of Stockholders
F - Amended and Restated Stockholders' Rights Agreement
G - Financial Information
H - Employee Nondisclosure and Assignment of Inventions
I - Consultant Nondisclosure and Assignment of Inventions Agreement
J - Form of Opinion of Xxxxxx & Dodge
Schedules
1 - Foreign Qualifications
2 - Real Property Leases
3 - Agreements with Affiliates
4 - Non-accredited Investors
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CONVERTIBLE PROMISSORY NOTE PURCHASE AGREEMENT
This Agreement, dated as of May 26, 1995, is entered into by and among
Metasyn, Inc., a Delaware corporation (the "Company"), and the purchasers listed
on Exhibit A hereto (the "Purchasers").
In consideration of the mutual promises and covenants contained in this
Agreement, the parties hereto agree as follows:
1. Authorization and Sale of Notes.
1.1 Authorization of Notes. The Company has, or before the Closing (as
defined in Section 2) will have, duly authorized the sale and issuance to the
Purchasers of the Company's convertible promissory notes (each note,
individually, a "Note" and collectively, the "Notes," which terms shall also
include any notes delivered in exchange for or replacement of the Notes
originally delivered pursuant to this Agreement) substantially in the form
attached hereto as Exhibit B and convertible into shares of the Company's Series
C Preferred Stock (as defined below).
1.2 Authorization of Shares. The Company has, or before the Closing will
have, duly authorized the issuance upon conversion of the Notes of up to 355,256
shares of its Series C Convertible Preferred Stock, $.01 par value per share
(the "Series C Preferred Stock"), having the rights, restrictions, privileges
and preferences set forth in the Restated Certificate of Incorporation attached
hereto as Exhibit C (the "Restated Certificate"). The Company has, or on or
before the Closing will have, adopted and filed the Restated Certificate with
the Secretary of State of the State of Delaware. The shares of Series C
Preferred Stock issuable upon conversion of the Notes shall collectively
constitute and are hereinafter referred to as the "Shares."
1.3 Sale of Notes. Subject to the terms and conditions of this Agreement,
at the Closing the Company will sell and issue to each of the Purchasers, and
each of the Purchasers will purchase, the Notes for an aggregate purchase price
of up to $1,500,005.00, payable as set forth in Section 2 of this Agreement, in
denominations set forth opposite such Purchaser's name on Exhibit A hereto.
1.4 Use of Proceeds. The Company will use the proceeds from the sale of
the Notes for product development and other working capital purposes.
2. The Closing. The closing ("Closing") of the sale and purchase of the
Notes under this Agreement shall take place at the offices of Xxxxxx & Dodge,
Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx at 10:00 a.m. on May 26, 1995. At or
promptly following the Closing, the Company will deliver to each of the
Purchasers a Note in the original principal
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amount to be purchased by the Purchasers, payable to the order of the
Purchasers, against payment to the Company of the purchase price therefor, by
wire transfer, check, or other method acceptable to the Company. The date of the
Closing is hereinafter referred to as the "Closing Date." If at the Closing any
of the conditions specified in Section 5 shall not have been fulfilled, each of
the Purchasers shall, at its election, be relieved of all of its obligations
under this Agreement without thereby waiving any other rights it may have by
reason of such failure or such non-fulfillment.
3. Representations of the Company. Subject to and except as disclosed by
the Company in Exhibit D hereto, the Company hereby represents and warrants to
each of the Purchasers as follows:
3.1 Organization and Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has full corporate power and authority to own and hold its
properties and conduct its business as presently conducted and as proposed to be
conducted by it and to enter into and perform this Agreement, the Notes, the
Amended and Restated Stockholders' Rights Agreement (Exhibit F), and the
agreements, documents and instruments contemplated hereby and thereby
(collectively, the "Financing Agreements"), and to carry out the transactions
contemplated by the Financing Agreements. The Company is duly qualified to do
business as a foreign corporation and is in good standing in each jurisdiction
listed on Schedule 1, such jurisdictions being the only jurisdictions in which
the failure to so qualify would have a material adverse effect on the operations
or financial condition of the Company. The Company has furnished to the
Purchasers true and complete copies of its Restated Certificate and By-Laws,
each as amended to date and presently in effect.
3.2 Capitalization. The authorized capital stock of the Company (after
the filing of the Restated Certificate and immediately prior to the Closing)
will consist of 8,000,000 shares of common stock, $.01 par value per share (the
"Common Stock"), of which 2,163,736 shares are issued and outstanding, and
3,114,782 shares of Preferred Stock, $.01 par value per share, of which 104,388
have been designated Series A Preferred Stock and 93,691 of which are issued and
outstanding, 2,655,138 of which have been designated Series B Preferred Stock
and 2,643,736 of which are issued and outstanding, and 355,256 of which have
been designated Series C Preferred Stock, none of which are issued and
outstanding. All of the issued and outstanding shares of the Company's capital
stock have been duly authorized and validly issued and are fully paid and
non-assessable, and have been issued in transactions which have been exempt from
the registration requirements of applicable federal and state securities laws.
Except as set forth in Exhibit D hereto or contemplated by this Agreement, (i)
no subscription, warrant, option, convertible security or other right
(contingent or otherwise) to purchase or acquire any shares of capital stock of
the Company is authorized or outstanding, (ii) there is not any commitment or
offer of the Company to issue any subscription, warrant, option, convertible
security or other such right or to issue or distribute to holders of any shares
of its capital stock any evidences of indebtedness or assets of the Company, and
(iii) the Company has no obligation (contingent
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or otherwise) to purchase, redeem or otherwise acquire any shares of its capital
stock or any interest therein or to pay any dividend or make any other
distribution in respect thereof. Except as set forth in Exhibit D hereto or
contemplated by this Agreement, no person or entity is entitled to (i) any
preemptive or similar right with respect to the issuance of any capital stock of
the Company, or (ii) any rights with respect to the registration of any capital
stock of the Company under the Securities Act of 1933, as amended. Except as set
forth in Exhibit D hereto or contemplated by this Agreement, the designations,
powers, preferences, rights, qualifications, limitations and restrictions in
respect of each class and series of authorized capital stock of the Company are
as set forth in the Restated Certificate and By-Laws, each as amended, and all
such designations, powers, preferences, rights, qualifications, limitations and
restrictions are valid, binding and enforceable and in accordance with all
applicable laws.
3.3 Issuance of Notes. The issuance, sale and delivery of the Notes
have been, or will be on or prior to the Closing, duly authorized by all
necessary corporate action on the part of the Company.
3.4 Issuance of Shares. The issuance and delivery of the Shares
issuable upon conversion of the Notes, and the issuance and delivery of the
shares of Common Stock issuable upon conversion of the Shares (the "Conversion
Stock"), have been, or will be on or prior to the Closing, duly authorized and
reserved for issuance by all necessary corporate action on the part of the
Company, and the Shares and the shares of Conversion Stock, when issued upon
such conversion, will be duly and validly issued, fully paid and non-assessable.
3.5 Reservation of Series C Preferred Stock and Common Stock. The
Company has authorized and reserved, and will continue to reserve, free of
preemptive and other preferential rights, a sufficient number of its authorized
but unissued shares of Series C Preferred Stock and Common Stock to satisfy the
rights of conversion of any holders of Notes and Series C Preferred Stock,
respectively.
3.6 Subsidiaries. The Company has no subsidiaries and does not own or
control, directly or indirectly, any other corporation, association or business
entity.
3.7 Stockholder List and Agreements. Attached hereto as Exhibit E is a
true and complete list of the stockholders of the Company, showing the number of
shares of Common Stock or other securities of the Company held by each
stockholder immediately prior to the Closing. Except as contemplated by this
Agreement or in Exhibit E, there are no agreements, written or oral, between the
Company and any holder of its capital stock, or, to the best knowledge of the
Company, among any holders of its capital stock, relating to the acquisition,
disposition or voting of the capital stock of the Company.
3.8 Tax Returns and Payments. The Company has timely filed all required
tax returns and reports (other than those not required to be filed by applicable
law or regulation) and has paid, or adequately provided for the payment of, all
taxes, assessments
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and other governmental charges imposed upon it or upon any of its assets, income
or franchises, other than any such charges which are currently payable without
penalty or interest and taxes, assessments and charges which are being contested
in good faith by the Company. The charges, accruals and reserves on the books of
the Company with respect to taxes for all fiscal periods are adequate in the
opinion of the Company. Except to the extent adequate reserves have been set up,
the Company does not know of any actual or proposed tax assessment for any
fiscal period. The federal income tax returns of the Company have never been
audited by the Internal Revenue Service. The Company has not received notice of
any tax lien imposed by any taxing authority which is outstanding against the
assets, properties or business of the Company.
3.9 ERISA. Each employee benefit plan sponsored by the Company is in
material compliance with applicable provisions of the Employee Retirement Income
Security Act of 1974 ("ERISA") and the Internal Revenue Code of 1986, as amended
(the "Code"). The Company has not incurred any material liability to the Pension
Benefit Guaranty Corporation ("PBGC") or any employee benefit plan on account of
any failure to meet the contribution requirements of any such plan, minimum
funding requirements or prohibited transactions under ERISA or the Code,
termination of a single employer plan, partial or complete withdrawal from a
multi-employer plan, or the insolvency, reorganization or termination of any
multi-employer plan, and no event has occurred or conditions exist which present
a material risk that the Company will incur any material liability on account of
any of the foregoing circumstances. The consummation of the transactions
contemplated by this Agreement will not result in any prohibited transaction
under ERISA or the Code for which an exemption is not available.
3.10 Title to Assets. The Company has good and merchantable title to
all of its owned assets free of any mortgages, pledges, charges, liens, security
interests or other encumbrances except (i) those reflected on its audited
financial statements or the notes thereto, or (ii) tax and mechanics liens not
material to the Company or any property to which such liens relate. The Company
enjoys peaceful and undisturbed possession under all leases (both capital and
operating leases) under which it is operating, and all said leases are valid and
subsisting and in full force and effect on and against the Company and, to the
knowledge of the Company, the other parties thereto.
3.11 No Material Adverse Change. Since March 31, 1994, except as
indicated in the Financial Statements (as defined below) or in any Exhibit or
Schedule hereto, or for changes in general economic conditions, (i) there has
been no material adverse change in the business, properties, operations or
condition, financial or otherwise, of the Company, whether or not covered by
insurance and whether or not arising from transactions in the ordinary course of
business; (ii) the business, assets, financial condition, or operations of the
Company or any of its properties or assets, including without limitation its
patents, patent rights, copyrights, trademarks, trade secrets and other
intellectual property rights, have not been adversely affected as the result of
any legislative or regulatory change or any revocation or change in any material
franchise, permit, license or right to do business, whether or not
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insured against; and (iii) the Company has not entered into any material
transaction other than in the ordinary course of business, made any distribution
on its capital stock, or redeemed or repurchased any of its capital stock.
3.12 Real Property Leases. The Company's real property identified on
Schedule 2 is leased as described in such Schedule, having been leased on what
the Company believes to be customary terms and conditions in view of the nature
and location of the properties.
3.13 Insurance. The Company carries insurance with financially sound
and reputable insurance companies or associations and in such amounts and
covering such risks as are adequate and customary for the type and scope of its
properties and business.
3.14 Transactions with Affiliates. Except as set forth in Schedule 3,
the Company is not a party to or bound by any agreement with any officer,
director, or holder of more than 5% of the Company's outstanding capital stock
on a fully diluted basis ("Affiliate"). All of the agreements identified on
Schedule 3 hereto were entered into by the Company in good faith and are on
terms no less favorable to the Company than those which the Company could have
obtained from non-Affiliates.
3.15 Assumptions or Guaranties of Indebtedness of Other Persons. The
Company has not assumed, guaranteed, endorsed or otherwise become directly or
contingently liable on (including, without limitation, liability by way of
agreement, contingent or otherwise, to purchase, to provide funds for payments,
to supply funds to or otherwise invest in the debtor or otherwise to assure the
creditor against loss) any indebtedness of any other person.
3.16 Investments in Other Persons. The Company has not made any loan or
advance to any person which is outstanding on the date of this Agreement, nor is
the Company obligated or committed to make any such loan or advance, nor does
the Company own any capital stock or assets comprising the business of,
obligations of, or any interest in, any person. The Company has no subsidiaries.
3.17 Authority for Agreements. The execution, delivery and performance
by the Company of the Financing Agreements have been duly authorized by all
necessary corporate action, and the Financing Agreements have been duly executed
and delivered by the Company. The Financing Agreements constitute the valid and
binding obligations of the Company enforceable against the Company in accordance
with their respective terms, subject to applicable bankruptcy, insolvency,
moratorium and similar laws affecting the rights and remedies of creditors
generally and also by general principles of equity.
3.18 Conflicting Agreements and Violations of Charter Provisions. The
Company is not in violation of its charter, by-laws or of any agreement or
instrument by which it is bound, except for violations which, individually or
in the aggregate, would not
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materially and adversely affect the business, properties, operations or
condition, financial or otherwise, of the Company. Neither the authorization,
execution and delivery of the Financing Agreements, the consummation of the
transactions therein contemplated, nor the fulfillment of or compliance with the
terms thereof, will conflict with or result in a material breach of any of the
terms of the charter or by-laws, or of any statute, law, rule or regulation, or
of any judgment, decree, writ, injunction, order or award of any arbitrator,
court or governmental authority specifically naming the Company, or of any
agreement or instrument which is applicable to the Company or by which the
Company is bound, or constitute a default thereunder.
3.19 Consents and Approvals. The Company has obtained or made all
necessary (i) governmental consents, approvals and authorizations, and
registrations and filings with governmental authorities, and (ii) consents,
approvals, waivers and notifications of stockholders, creditors, lessors and
other non-governmental persons, in each case, which are required to be obtained
or made by the Company in connection with the execution and delivery of the
Financing Agreements, and the consummation of the transactions herein and
therein contemplated.
3.20 Compliance with Laws. The Company is not in violation of any
statute, law, rule or regulation, or in default with respect to any judgment,
writ, injunction, decree, rule or regulation of any court or governmental agency
or instrumentality specifically naming the Company, including, without
limitation, laws relating to environmental protection, except for such
violations or defaults which do not, individually or in the aggregate,
materially and adversely affect the business, assets, operations or condition,
financial or otherwise, of the Company.
3.21 Litigation. There is no action, suit, proceeding or investigation
pending, or, to the best of the Company's knowledge, any basis therefor or
threat thereof, against the Company, which questions the validity of the
Financing Agreements or the right of the Company to enter into them, or which
might result, either individually or in the aggregate, in any material adverse
change in the assets, condition (financial or otherwise), business or prospects
of the Company.
3.22 Financial Statements. Set forth on Exhibit G is a complete and
correct copy of (i) the unaudited balance sheet of the Company (the "Unaudited
Balance Sheet") as of February 28, 1995 (the "Unaudited Balance Sheet Date") and
the related statements of operations and of changes in financial position for
the eleven-month period then ended, and (ii) the audited balance sheet of the
Company as of March 31, 1994 and the related statements of operations and
changes in financial position for the 12-month period then ended, each together
with the notes thereto (collectively, the "Financial Statements"). The Financial
Statements have been prepared in accordance with generally accepted accounting
principles consistently applied (except as noted) and fairly present the
financial condition of the Company at the date thereof and for the periods
covered thereby.
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3.23 Absence of Liabilities. Except for liabilities incurred from
operations conducted in the ordinary course of business since February 28, 1995,
or as reflected or provided for in the Unaudited Balance Sheet set forth in
Exhibit G, the Company does not have any liabilities or obligations of any type,
whether absolute or contingent, other than as disclosed herein or in the
Schedules or Exhibits hereto.
3.24 Patents and Trademarks. Set forth on Exhibit D is a true and
complete list of all patents, patent applications, trademarks, service marks,
trademark and service xxxx applications, trade names, registered copyrights and
licenses presently owned or licensed by the Company. The licenses set forth on
Exhibit D are the valid, binding and enforceable obligations of the Company and,
to the best of the Company's knowledge, of the other parties thereto, subject to
applicable bankruptcy, insolvency, moratorium and similar laws affecting the
rights and remedies of creditors generally and also by general principles of
equity. The Company is not aware of and has not received any notice of
infringement of any patents, trademarks, service marks, trade names, copyrights,
licenses, trade secrets or other proprietary rights of any other person or
entity. The Company is not aware that any employee is obligated under any
contract (including any license, covenant or commitment of any nature), or under
common law, or subject to any judgment, decree or order of any court or
administrative agency, that would interfere with the use of such employee's best
efforts to promote the interests of the Company or would conflict with the
Company's business as proposed to be conducted. To the best of the Company's
knowledge, no prior employer of any employee of the Company has any right to or
interest in any inventions, improvements, discoveries or other information
assigned to the Company by such employee pursuant to the nondisclosure and
assignment of invention agreement (in the form attached hereto as Exhibit H)
executed by such employee, or otherwise so assigned.
3.25 Material Contracts and Obligations. Exhibit D sets forth a list of
all material agreements of any nature to which the Company is a party or by
which it is bound.
3.26 Employees and Consultants. All employees and consultants of the
Company whose employment responsibility requires access to confidential or
proprietary information of the Company have executed and delivered nondisclosure
and assignment of invention agreements in the forms of Exhibits H and I,
respectively, and all of such agreements are in full force and effect. None of
the employees of the Company is represented by any labor union.
3.27 Books and Records. The minute books of the Company contain
complete and accurate records of all meetings and other corporate actions of its
stockholders and its Board of Directors and committees thereof. The stock ledger
of the Company is complete and reflects all issuances, transfers, repurchases
and cancellations of shares of capital stock of the Company.
3.28 Disclosures. Neither this Agreement nor any Exhibit or Schedule
hereto contains or will contain any material misstatement of fact or omits or
will omit to
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state a material fact necessary to make the statements contained herein or
therein, in light of the circumstances in which they were made, not misleading.
The Company knows of no information or fact which has or would have a material
adverse effect on the financial condition, business or prospects of the Company
which has not been disclosed to the Purchasers.
4. Representations of the Purchasers. Each of the Purchasers severally
represents and warrants to the Company as follows:
4.1 Investment. Such Purchaser is acquiring the Notes, the Shares into
which the Notes may be converted, and the shares of Conversion Stock into which
the Shares may be converted, for its own account for investment and not with a
view to, or for sale in connection with, any distribution thereof, nor with any
present intention of distributing or selling the same; and, except as
contemplated by this Agreement and the Exhibits hereto, such Purchaser has no
present or contemplated agreement, undertaking, arrangement, obligation,
indebtedness or commitment providing for the disposition thereof.
4.2 Authority. Such Purchaser has full power and authority to enter
into and to perform the Financing Agreements in accordance with their respective
terms. Any Purchaser which is a corporation, partnership or trust represents
that it has not been organized, reorganized or recapitalized specifically for
the purpose of investing in the Company.
4.3 Experience. Such Purchaser has carefully reviewed the
representations concerning the Company contained in this Agreement, and has had
the opportunity to make detailed inquiry concerning the Company, its business
and its personnel; the officers of the Company have made available to such
Purchaser any and all written information which he or it has requested and have
answered to such Purchaser's satisfaction all inquiries made by such Purchaser;
and such Purchaser has adequate net worth and means of providing for its current
needs and personal contingencies to sustain a complete loss of its investment in
the Company; such Purchaser's overall commitment to investments which are not
readily marketable is not disproportionate to its net worth and such Purchaser's
investment in the Notes will not cause such overall commitment to become
excessive; and such Purchaser has sufficient knowledge and experience to
evaluate the risk of its investment in the Company.
4.4 Accredited Investor. Except as set forth on Schedule 4 hereto, each
Purchaser is an "accredited investor" within the meaning of Rule 501(a) of
Regulation D under the Securities Act of 1933, as amended.
5. Conditions to the Obligations of the Purchasers. The obligation of
each of the Purchasers to purchase Notes at the Closing is subject to the
fulfillment, or the waiver by such Purchaser, of the following conditions on or
before the Closing Date:
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5.1 Accuracy of Representations and Warranties. Each representation and
warranty contained in Section 3 shall be true on and as of the Closing Date with
the same effect as though such representation and warranty had been made on and
as of that date.
5.2 Performance. The Company shall have performed and complied with all
agreements and conditions contained in this Agreement required to be performed
or complied with by the Company prior to or at the Closing.
5.3 Financing Agreements. The Financing Agreements contemplated hereby
shall have been executed and delivered by the Company, by each of the Purchasers
and by each of the other parties thereto.
5.4 Certificates and Documents. The Company shall have delivered to the
Purchasers:
(i) The Restated Certificate of the Company, as in effect prior to
the Closing Date, certified by the Secretary of State of the State of Delaware;
(ii) Certificates, as of the most recent practicable dates, as to
the corporate good standing of the Company issued by the Secretary of State of
the State of Delaware and the Secretary of the Commonwealth of Massachusetts,
confirming such good standing on or immediately prior to the Closing Date;
(iii) By-laws of the Company, certified by its Secretary or
Assistant Secretary as of the Closing Date; and
(iv) Resolutions of the Board of Directors and stockholders of the
Company, authorizing and approving all matters in connection with this Agreement
and the transactions contemplated hereby, certified by the Secretary or
Assistant Secretary of the Company as of the Closing Date.
5.5 Compliance Certificate. The Company shall have delivered to the
Purchasers a certificate, executed by the President of the Company, dated the
Closing Date, certifying to the fulfillment of the conditions specified in
subsections 5.1 through 5.4 of this Agreement.
5.6 Other Matters. All corporate and other proceedings in connection with
the transactions contemplated by this Agreement and all documents and
instruments incident to such transactions shall be reasonably satisfactory in
substance and form to the Purchasers, and the Purchasers shall have received all
such counterpart originals or certified or other copies of such documents as
they may reasonably request.
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5.7 Opinion of Counsel. Each Purchaser shall have received an opinion from
Xxxxxx & Dodge, counsel for the Company, dated the Closing Date, addressed to
the Purchasers, substantially in the form attached hereto as Exhibit J.
6. Conditions to the Obligations of the Company. The obligations of the
Company under subsection 1.3 of this Agreement are subject to fulfillment, on or
before the Closing Date, of each of the following conditions:
6.1 Accuracy of Representations and Warranties. The representations and
warranties of the Purchasers contained in Section 4 shall be true on and as of
the Closing Date with the same effect as though such representations and
warranties had been made on and as of that date.
6.2 Performance. The Purchasers shall have performed and complied with all
agreements and conditions contained in this Agreement required to be performed
or complied with by them prior to or at the Closing.
7. Annual Financial Reports. The Company will furnish to each Purchaser,
within 120 days after the end of each fiscal year of the Company, an audited
balance sheet of the Company as at the end of such year and audited statements
of income and of changes of cash flows of the Company for such year, certified
by certified public accountants of established national reputation selected by
the Company, and prepared in accordance with generally accepted accounting
principles.
8. Successors and Assigns. Except as provided in Section 9, the provisions of
this Agreement shall be binding upon, and inure to the benefit of, the
respective successors, assigns, heirs, executors and administrators of the
parties hereto
9. Transfers of Certain Rights.
9.1 Permitted Transfers. The rights granted to a Purchaser under this
Agreement may be transferred by such Purchaser to another Purchaser, to any
officer, director or partner of such Purchaser or to any person or entity
acquiring Notes convertible into at least fifty thousand (50,000) Shares or
Registrable Shares (as such terms are defined in the Amended and Restated
Stockholders' Rights Agreement (Exhibit F)); provided, however, that (i) the
Company is given written notice by the transferee at the time of such transfer
stating the name and address of the transferee and identifying the securities
with respect to which such rights are being assigned, and (ii) any transferee
(other than a Purchaser) to whom rights under this Agreement are transferred
shall, as a condition to such transfer, deliver to the Company a written
instrument by which such transferee agrees to be bound by the obligations
imposed upon Purchasers under Section 10 to the same extent as if such
transferee were a Purchaser hereunder.
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9.2 Subsequent Transferees. A transferee to whom rights are transferred
pursuant to this Section 9 may not again transfer such rights to any other
person or entity, other than as provided in 9.1 above.
10. Confidentiality. Each Purchaser agrees that it will keep confidential and
will not disclose or divulge any confidential, proprietary or secret information
which such Purchaser may obtain from the Company pursuant to financial
statements, reports and other materials submitted by the Company to such
Purchaser pursuant to this Agreement or pursuant to visitation or inspection
rights granted hereunder, unless such information is known, or until such
information becomes known, to the public.
11. Survival of Representations and Warranties. All agreements,
representations and warranties contained herein shall survive the execution and
delivery of this Agreement and the closing of the transactions contemplated
hereby.
12. Notices. All notices, requests, consents, and other communications under
this Agreement shall be in writing and shall be delivered by hand or mailed by
first class certified or registered mail, return receipt requested, postage
prepaid:
If to the Company, at Metasyn, Inc., c/o Xxxxxxx X. Xxxx, President, 00
Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000, or at such other address or
addresses as may have been furnished in writing by the Company to the
Purchasers, with a copy to Xxxxx Xxxxx, Esq., Xxxxxx & Dodge, Xxx Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000;
If to a Purchaser, at its address set forth on Exhibit A, or at such other
address or addresses as may have been furnished to the Company in writing by
such Purchaser, with a copy to Xxxxx X. Xxxxxx, Esq., Mintz, Levin, Cohn,
Ferris, Glovsky & Popeo, Xxx Xxxxxxxxx Xxxxxx, Xxxxxx, XX 00000.
Notices provided in accordance with this Section 12 shall be deemed delivered
upon personal delivery or 48 hours after deposit in the mail.
13. Brokers. The Company and each Purchaser (i) represents and warrants to
the other parties hereto that it has retained no finder or broker in connection
with the transactions contemplated by this Agreement, and (ii) will indemnify
and save the other parties harmless from and against any and all claims,
liabilities or obligations with respect to brokerage or finders' fees or
commissions, or consulting fees in connection with the transactions contemplated
by this Agreement asserted by any person on the basis of any statement or
representation alleged to have been made by such indemnifying party.
14. Legal Expenses. The Company will reimburse the Purchasers for the
reasonable fees, expenses and disbursements of legal counsel in connection with
the transactions contemplated hereby, up to an aggregate maximum amount of
$20,000.
11
15. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter.
16. Amendments and Waivers. Except as otherwise expressly set forth in this
Agreement, any term of this Agreement may be amended and the observance of any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), with the written consent of
the Company and the holders of Securities (as such term is defined in the
Amended and Restated Stockholders' Rights Agreement) converted or convertible
into not less than 66 2/3% of the Registrable Shares. Any amendment or waiver
effected in accordance with this Section 16 shall be binding upon each holder of
any Notes or Shares (including Conversion Stock) and each future holder of all
such securities and the Company. No waivers of or exceptions to any term,
condition or provision of this Agreement, in any one or more instances, shall be
deemed to be, or construed as, a further or continuing waiver of any such term,
condition or provision.
17. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
18. Headings. The headings of the sections, subsections, and paragraphs of
this Agreement have been added for convenience only and shall not be deemed to
be a part of this Agreement.
19. Severability. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision.
20. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
12
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the
day and year first above written.
METASYN, INC.
By: /s/ Xxxxxxx X. Xxxx
-------------------------
Name: Xxxxxxx X. Xxxx
Title: President
13
SIGNATURE PAGE TO
CONVERTIBLE PROMISSORY NOTE PURCHASE AGREEMENT
ACCEL IV L.P.
By: Accel IV Associates L.P.,
its General Partner
By: /s/ X. Xxxxxx Sednaoui
---------------------------------
Name:
Title: General Partner
ACCEL INVESTORS '93 L.P.
By: /s/ X. Xxxxxx Sednaoui
--------------------------------
Name:
Title: General Partner
ACCEL KEIRETSU L.P.
By: Accel Partners & Co., Inc.,
its General Partner
By: /s/ X. Xxxxxx Sednaoui
------------------------------
Name:
Title: General Partner
XXXXXXX X. XXXXXXXXX PARTNERS
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Name:
Title: General Partner
14
SIGNATURE PAGE TO
CONVERTIBLE PROMISSORY NOTE PURCHASE AGREEMENT
PROSPER PARTNERS
By: /s/ X. Xxxxxx Sednaoui
--------------------------------
Name:
Title: Attorney-in-Fact
BESSEMER VENTURE PARTNERS III L.P.
By: Deer III & Co.,
General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: General Partner
BVP III SPECIAL SITUATIONS L.P.
By: Deer III & Co.,
General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: General Partner
*
--------------------------------
Xxxxx X. Xxxxx
*
--------------------------------
C. Xxxxxxxx Xxxx
15
SIGNATURE PAGE TO
CONVERTIBLE PROMISSORY NOTE PURCHASE AGREEMENT
*
--------------------------------
Xxxxxx X. Xxxxx
*
--------------------------------
Xxxxxxx X. Xxxxx
*
--------------------------------
Xxxx X. Xxxxxxx
*
--------------------------------
Xxxxxx X. Xxxxxxx
*
--------------------------------
Xxxx X. Xxxxx, Xx.
/s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxx
* By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Attorney-in-Fact
16
