COMMON STOCK PURCHASE AGREEMENT
Exhibit
10.32
This
Common Stock Purchase Agreement (the “Agreement”) is made
as of August 1, 2008 (the “Effective Date”), by and between Cytori Therapeutics,
Inc., a Delaware corporation (the “Company”), and
Olympus Corporation, a Japan corporation with its principal executive office
located at 00-0 Xxxxxxxx 0-xxxxx, Xxxxxxx-xx, Xxxxx, Xxxxx
(“Purchaser”)
(the Company and Purchaser are referred to collectively as the “Parties”).
1. Sale of
Stock. Subject to the
terms and conditions of this Agreement, the Company will issue and sell to
Purchaser, and Purchaser agrees to purchase from the Company, [923,077]
unregistered shares of the Company’s Common Stock (the “Shares”) at a
purchase price of US$[6.50] per Share for a total of US $6,000,000 (the “Purchase Price”). The
Purchase Price per share shall be subject to any adjustment that is more
favorable to Purchaser in accordance with the terms of Section 13 of this
Agreement.
2. Closing. The purchase and
sale of the Shares under Section 1 of this Agreement shall occur at the
principal office of the Company within seven (7) days of the Effective Date of
this Agreement (the “Closing”) at a date
and time agreed between the Parties. At the Closing, Purchaser shall
deliver the Purchase Price to the Company by wire transfer, or by alternate
means agreed between the Parties, and the Company shall deliver a certificate
representing the Shares to Purchaser.
3. Limitations
on Transfer. Purchaser shall
not assign, encumber or dispose of any interest in the Shares except in
compliance with applicable securities laws and regulations of applicable
countries and stock exchanges. It is Purchaser’s responsibility to
familiarize itself with such laws and regulations.
4. Company’s
Representations and Warranties. The Company represents and
warrants the following to Purchaser as of the Effective Date and as of the date
of the Closing:
(a) The
Company is duly organized, validly existing and in good standing under the laws
of the State of Delaware, with full corporate power and authority to conduct its
business as it is now being conducted to own or use the properties and assets
that it purports to own or use. The Company is duly qualified to do
business as a foreign corporation and is in good standing under the laws of each
state or other jurisdiction in which either the ownership or use of the
properties owned or used by it, or the nature of the activities conducted by it,
requires such qualification.
(b) The
Company has the right and power to enter into and perform its obligations under
this Agreement and to consummate the transactions contemplated hereby; has taken
or will take prior to the Closing all necessary corporate actions required for
the Company to enter into and perform its obligations under this Agreement; and
this Agreement constitutes the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms, except as enforcement may be
limited by general principles of equity whether applied in a court of law or a
court of equity and by bankruptcy, insolvency and similar laws affecting
creditors’ rights and remedies generally.
(c) The
execution of this Agreement and the consummation of the transactions
contemplated hereby will not result in a breach of any of the terms or
provisions of, or constitute a default under, the Company’s certificate of
incorporation or bylaws, as now in effect, or any agreement, or other instrument
to which the Company is a party or by which it is bound.
(d) The
sale and issuance of the Shares will not require any notice to, action of,
filing with or consent, authorization, order or approval from, any governmental
entity or other person that has not already been provided or obtained, as the
case may be. Without limiting the foregoing, no action is required to
be taken by the Company to effect the sale and issuance of the Shares under any
state corporate or any other laws, rules or regulations that has not already
been taken. The Company has not entered into any agreement to pay
commissions to any persons with respect to the purchase or sale of the Shares,
except commissions for which the Company will be responsible.
(e) The
authorized capital of the Company consists solely of 95,000,000 authorized
shares of common stock, and 5,000,000 shares of preferred stock.
(f) The
Shares, when issued, sold and delivered in accordance with the terms of this
Agreement for the Purchase Price, will be duly and validly issued, fully paid
and non-assessable, issued in compliance with all applicable federal, state and
foreign laws, free of any preemptive or similar rights that entitle or would
entitle any person to acquire any shares of capital stock of the Company upon
issuance thereof by the Company, and free and clear of all liens, mortgages,
security interests, encumbrances (other than applicable securities laws
restrictions), equities or claims.
(g) The Company has timely
filed all registration statements, prospectuses, forms, reports and documents
required to be filed by it under the Securities Act of 1933, as amended (the
“Securities
Act”), or the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as
the case may be, since December 31, 2004 (each a “Company SEC Filing,”
and collectively the “Company SEC
Filings”). Each Company SEC Filing (i) as of its date complied
in all material respects with the requirements of the Securities Act or the
Exchange Act, as the case may be, and (ii) did not, at the time it was filed,
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements made
therein, in the light of the circumstances under which they were made, not
misleading. Each of the consolidated financial statements (including,
in each case, any notes thereto) contained in the Company SEC Filings was
prepared in accordance with generally accepted accounting principles applied
(except as may be indicated in the notes thereto and, in the case of unaudited
quarterly financial statements, as permitted by Form 10-Q under the Exchange
Act) on a consistent basis throughout the periods indicated (except as may be
indicated in the notes thereto), and each presented fairly the consolidated
financial position of the Company as of the respective date thereof and for the
respective periods indicated therein (subject, in the case of unaudited
statements, to normal and recurring year-end adjustments.) The books
and records of the Company have been, and are being, maintained in accordance
with applicable legal and accounting requirements.
(h) Except
as disclosed in the Company SEC Filings, since December 31, 2007, the Company
has conducted its business in the ordinary course, consistent with past
practice, and there has not been:
(i) any
event, occurrence or development which would, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the Company or its
subsidiaries, taken as a whole, other than developments generally in the
industries in which the Company operates its business, provided that such
developments have not disproportionately affected the Company or any of its
subsidiaries individually or taken as a whole; or
(ii) any
event or development that would, individually or in the aggregate, reasonably be
expected to prevent or materially delay the performance of the Company of its
obligations hereunder.
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5. Investment
Representations and Warranties. In connection
with the purchase of the Shares, Purchaser makes the following representations
and warranties to the Company as of the Effective Date and as of the date of the
Closing:
(a) This
Agreement has been duly authorized and executed by Purchaser and, when delivered
by Purchaser in accordance with its terms, will constitute the valid and legally
binding obligation of Purchaser, enforceable against it in accordance with its
terms, except as enforcement may be limited by general principles of equity
whether applied in a court of law or a court of equity and by bankruptcy,
insolvency and similar laws affecting creditors’ rights and remedies
generally.
(b) Purchaser
understands that the Company is a reporting company under the Exchange Act, and
the Company’s various periodic reports and other SEC filings are available for
public inspection on the XXXXX system at xxx.xxx.xxx. Purchaser
further acknowledges that Purchaser and Purchaser’s advisors have had the
opportunity to ask questions of and receive answers from the Company’s
management concerning this investment. Purchaser is aware of the
Company’s business affairs and financial condition based on the said public
available information and the answers from the Company’s management (the “Information”), and
Purchaser and Purchaser’s advisors have evaluated the merits and risks of an
investment in the Company and decided to acquire the Shares based on such
Information and on the Company’s representations and warranties set forth in
Section 4 above.
(c) Purchaser
understands that the Shares have not been registered under the U.S. Securities
Act by reason of a specific exemption therefrom, which exemption depends upon,
among other things, the bona fide nature of Purchaser’s investment intent as
expressed herein.
(d) Purchaser
understands that the Shares are “restricted securities” as defined in Rule 144
promulgated under the Securities Act and that, consequently, Purchaser must hold
the Shares indefinitely unless they are registered with the Securities and
Exchange Commission (the “Commission”) and
qualified by state authorities and resold pursuant to the requirements of such
registration/qualification, or an exemption from such registration and
qualification requirements is available. Purchaser further
acknowledges that if an exemption from registration or qualification is
available, it may be conditioned on various requirements including, but not
limited to, the time and manner of sale, the holding period for the Shares, and
requirements relating to the Company which are outside of Purchaser’s control,
and which the Company is under no obligation and may not be able to
satisfy.
(e) Purchaser
is an “accredited investor,” as defined in Rule 501 promulgated under the
Securities Act.
(f) Purchaser
has not entered into any agreement to pay commissions to any persons with
respect to the purchase or sale of the Shares, except commissions for which
Purchaser will be responsible.
(g) Purchaser
understands and acknowledges that no Japanese or United States federal or state
agency, governmental authority, regulatory body, stock exchange or other entity
has made any finding or determination as to the merits of this investment, nor
have any such agencies, governmental authorities, regulatory bodies, stock
exchanges or other entities made any recommendation or endorsement with respect
to the Shares.
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(h) Purchaser,
in evaluating the merits of an investment in the Shares, is not relying on the
Company, its counsel, or any financial or other advisor to the Company for an
evaluation of the tax, legal or other consequences of an investment in the
Shares.
(i) Purchaser
is purchasing the Shares for investment for its own account only and not with a
view to, or for resale in connection with, any “distribution” thereof within the
meaning of Section 2(11) of the Securities Act.
6. Closing Conditions.
(a) Purchaser’s
obligation to consummate the transactions to be performed by it at the Closing
is subject to satisfaction of the following conditions:
(i) No
preliminary or permanent injunction or other binding order, decree or ruling
issued by a court or government authority shall be in effect which shall have
the effect of preventing the consummation of the transactions contemplated by
this Agreement;
(ii) The
representations and warranties of the Company contained in Section 4 hereof
shall be true and correct on and as of the Closing with the same effect as
though such representations and warranties had been made on and as of the
Closing;
(iii) The
Company shall have performed and complied in all material respects with all
agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the
Closing;
(iv) The
Company shall have obtained any and all consents, permits and waivers necessary
or appropriate for consummation of the sale of the Shares to Purchaser;
and
(v) The
Company shall have obtained all necessary permits and qualifications, if any, or
secured an exemption therefrom, required by any governmental authority prior to
the offer and sale of the Shares to Purchaser.
(b) The
Company’s obligation to consummate the transactions to be performed by it at the
Closing is subject to satisfaction of the following conditions:
(i) The
representations and warranties of Purchaser contained in Section 5 hereof shall
be true and correct on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the Closing;
and
(ii) Purchaser
shall have delivered the Purchase Price against delivery of the
Shares.
7. Legends. The certificates
representing the Shares shall bear the following legends:
“The
shares of common stock of Cytori Therapeutics, Inc. represented hereby have not
been registered under the United States Securities Act of 1933, as amended (the
“Securities Act”). These securities may not be offered, sold, pledged
or otherwise transferred (nor may exposure with respect to the shares otherwise
be hedged) except (A)(1) pursuant to an effective registration statement under
the Securities Act, (2) pursuant to an exemption from registration under the
Securities Act provided by Rule 144 thereunder (if available), or (3) pursuant
to another valid exemption from registration under the
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Securities
Act (if available), and (B) in each case in accordance with all applicable
securities laws of the States of the United States. No representation
is made hereby as to the availability of the exemption provided by Rule 144
under the Securities Act for resales of the shares.
This
certificate evidences and entitles the holder hereof to certain rights as set
forth in a Rights Agreement between Cytori Therapeutics, Inc. and Computershare
Trust Company, Inc., a Colorado corporation, as Rights Agent, dated as of May
29, 2003, as amended (the “Rights Agreement”), the terms of which are hereby
incorporated herein by reference and a copy of which is on file at the principal
executive offices of Cytori Therapeutics, Inc. Under certain circumstances, as
set forth in the Rights Agreement, such rights will be evidenced by separate
certificates and will no longer be evidenced by this certificate. Cytori
Therapeutics, Inc. will mail to the holder of this certificate a copy of the
Rights Agreement without charge after receipt of a written request therefor.
Under certain circumstances set forth in the Rights Agreement, rights issued to,
or held by, any Person who is, was or becomes an Acquiring Person or an
Affiliate or Associate thereof (as such terms are defined in the Rights
Agreement) and certain related Persons, whether currently held by or on behalf
of such Person or by any subsequent holder, may become null and
void.”
8. Registration. The
Company shall use reasonable efforts to prepare and file with the Commission
within 30 business days after receipt of written request by Purchaser a
Registration Statement covering the resale of the Shares for an offering to be
made on a continuous basis pursuant to Rule 415. The Registration Statement
shall be on Form S-3 (except if the Company is not then eligible to register for
resale the Shares on Form S-3, in which case such registration shall be on
another appropriate form in accordance with the Securities Act and the rules
promulgated thereunder). The Company shall use reasonable efforts to
cause the Registration Statement to be declared effective under the Securities
Act as soon as practicable after its filing. The Company shall notify Purchaser
when the Registration Statement is available for offer and sale of the
Shares. The Company shall keep such Registration Statement
continuously effective under the Securities Act for a period of two (2) years,
or until the date upon which all of the Shares may be sold pursuant to Rule 144
under the Securities Act, whichever occurs first (the “Effectiveness
Period”).
9. Registration
Procedures; Company’s Obligations. In connection
with, and without limiting in any respect, the Company’s obligations for the
registration of the Shares above, the Company shall, as promptly as
possible:
(a) Furnish
to Purchaser a copy of the Registration Statement as proposed to be
filed.
(b) (i)
Prepare and file with the Commission such amendments, including post-effective
amendments, to the Registration Statement as may be necessary to keep the
Registration Statement continuously effective as to the applicable Shares for
the Effectiveness Period; (ii) cause the related Prospectus to be amended or
supplemented by any required Prospectus supplement, and as so supplemented or
amended to be filed pursuant to Rule 424 (or any similar provisions then in
force) promulgated under the Securities Act; and (iii) respond to any comments
received from the Commission with respect to the Registration Statement or any
amendment thereto and provide Purchaser true and complete copies of all
correspondence from and to the Commission relating to the Registration
Statement.
(c) Notify
Purchaser (i)(A) when a Prospectus or any Prospectus supplement or
post-effective amendment to the Registration Statement is proposed to be filed,
(B) when the Commission notifies the Company whether there will be a “review” of
such Registration Statement and
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whenever
the Commission comments in writing on such Registration Statement, and (C) when
the Registration Statement or post-effective amendment, as the case may be, has
become effective; (ii) of any request by the Commission or any other federal or
state governmental authority for amendments or supplements to the Registration
Statement or Prospectus or for additional information; (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement covering any or all of the Shares or the initiation of
any proceedings for that purpose; (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Shares for sale in any state of the U.S., or
the initiation or threatening of any proceeding for such purpose; and (v) of the
occurrence of any event that makes any statement made in the Registration
Statement or Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires any revisions to the Registration Statement, Prospectus or other
documents so that, in the case of the Registration Statement or the Prospectus,
as the case may be, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(d) Use
its reasonable commercial efforts to avoid the issuance of, or, if issued,
obtain the withdrawal of, (i) any order suspending the effectiveness of the
Registration Statement, or (ii) any suspension of the qualification (or
exemption from qualification) of any of the Shares for sale in any state of the
U.S.
(e) If
requested by Purchaser, (i) incorporate in a Prospectus supplement or
post-effective amendment to the Registration Statement such information as the
Company reasonably agrees should be included therein, and (ii) make all required
filings of such Prospectus supplement or such post-effective amendment after the
Company has received notification of the matters to be incorporated in such
Prospectus supplement or post-effective amendment.
(f) Furnish
to Purchaser, without charge, one copy of the Registration Statement and all
amendments thereto, and such number of copies of the Prospectus and all
amendments and supplements thereto and such other documents as Purchaser may
reasonably request in order to facilitate its disposition of
Shares.
(g) Use
its reasonable commercial efforts to register or qualify, and to cooperate with
Purchaser in connection with the registration or qualification (or exemption
from such registration or qualification) of, the Shares for offer and sale under
the securities or Blue Sky laws of each state of the U.S. as Purchaser
reasonably requests in writing, to keep each such registration or qualification
(or exemption therefrom) effective during the Effectiveness Period and to do any
and all other acts or things necessary or advisable to enable the disposition in
such states of the Shares covered by a Registration Statement; provided, however, that the
Company shall not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action that would
subject it to general service of process in any such jurisdiction where it is
not then so subject.
(h) Upon
the occurrence of any event contemplated by Section 9(c)(v) hereof, prepare a
supplement or amendment, including a post-effective amendment, to the
Registration Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, and file any
other required document so that, as thereafter delivered, neither the
Registration Statement nor such Prospectus will contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
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(i) Use
its reasonable efforts to cause all Shares to be listed on any U.S. national
securities exchange (such as the NASDAQ Global Market), U.S. quotation system,
or U.S. over-the-counter bulletin board, if any, on which the same securities
issued by the Company are then listed.
(j) If
(i) there is material non-public information regarding the Company which the
Company’s Board of Directors reasonably determines not to be in the Company’s
best interest to disclose and which the Company is not otherwise required to
disclose, or (ii) there is a significant business opportunity (including, but
not limited to, the acquisition or disposition of assets (other than in the
ordinary course of the Company’s business consistent with past practice) or any
merger, consolidation, tender offer or other similar transaction) available to
the Company which the Company’s Board of Directors reasonably determines in the
Company’s best interest should not be disclosed and which the Company would be
required to disclose under the Registration Statement, then the Company may
suspend effectiveness of the Registration Statement and suspend the sale of
Shares under the Registration Statement one time in any three-month period or
three times in any 12-month period upon written notice of such suspension to
Purchaser, provided that the Company may not suspend its obligations for more
than 60 days in the aggregate in any 12-month period.
10. Registration
Procedures; Purchaser’s Obligations. In connection with the
registration of the Shares, Purchaser shall:
(a) (i)
not sell any Shares under the Registration Statement until Purchaser has
received copies of the Prospectus as then amended or supplemented and notice
from the Company that such Registration Statement and any post-effective
amendments thereto have become effective as contemplated by Section 9(c) hereof,
(ii) comply with any prospectus delivery requirements of the Securities Act as
applicable to Purchaser in connection with sales of Shares pursuant to the
Registration Statement, and (iii) furnish to the Company such information
regarding Purchaser and the distribution of the Shares as is required by law to
be disclosed in the Registration Statement.
(b) upon
receipt of a notice from the Company of the occurrence of any event of the kind
described in Section 9(c)(ii), 9(c)(iii), 9(c)(iv), 9(c)(v) or 9(j) hereof,
forthwith discontinue disposition of the Shares under the Registration Statement
until Purchaser’s receipt of the copies of the supplemented Prospectus and/or
amended Registration Statement contemplated by Section 9(i), or until it is
advised in writing by the Company that the use of the applicable Prospectus may
be resumed, and, in either case, has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus or Registration Statement.
11. Registration
Expenses.
All fees
and expenses incident to the performance of or compliance with the obligations
under Section 9 of this Agreement, including, without limitation, registration
and filing fees, printing expenses, and fees and expenses of counsel and
independent public accountants for the Company, shall be borne by the Company
whether or not any Shares are sold pursuant to the Registration
Statement.
12. Indemnification.
(a) Indemnification by the
Company. The Company shall defend, indemnify and hold harmless Purchaser,
Purchaser’s permitted assignees, officers, directors, agents, brokers,
investment advisors and employees, each person who controls Purchaser or a
permitted assignee (within the meaning
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of
Section 15 of the Securities Act or Section 20 of the Exchange Act) and the
officers, directors, agents and employees of each such controlling person, and
the respective successors, heirs, assigns, estate and personal representatives
of each of the foregoing, to the fullest extent permitted by applicable law,
from and against any and all claims, losses, damages, liabilities, penalties,
judgments, costs (including, without limitation, costs of investigation) and
expenses (including, without limitation, reasonable attorneys’ fees and
expenses) (collectively, “Losses”), as
incurred, arising out of or relating to any breach by the Company of any of its
representations, warranties, covenants or agreements contained in or made
pursuant to this Agreement or arising out of or relating to any untrue or
alleged untrue statement of a material fact contained in the Registration
Statement or any Prospectus, each as supplemented or amended, if applicable, or
arising out of or relating to any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
(in the case of any Prospectus or amendment or supplement thereto, in the light
of the circumstances under which they were made) not misleading, except (i) to
the extent, but only to the extent, that such untrue statements or omissions are
based solely upon information regarding Purchaser furnished in writing to the
Company by Purchaser expressly for use therein, or (ii) as a result of the
failure of Purchaser to deliver a Prospectus, as amended or supplemented, to a
purchaser in connection with an offer or sale. The Company shall notify
Purchaser in writing promptly of the institution, threat or assertion of any
Proceeding of which the Company is aware in connection with the transactions
contemplated by this Agreement and provide a reasonable description of such
institution, threat or assertion. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of an
Indemnified Party (as defined in Section 12(b) hereof) and shall survive the
transfer of the Shares by Purchaser.
(b) Conduct of Indemnification
Proceedings. If any Proceeding shall be brought or asserted against any
person who may be entitled to indemnity pursuant to Section 12(a) hereunder (an
“Indemnified
Party”), such Indemnified Party promptly shall notify the Company (the
“Indemnifying
Party”) in writing, and the Indemnifying Party shall assume the defense
thereof, including the employment of counsel reasonably satisfactory to the
Indemnified Party and the payment of all fees and expenses incurred in
connection with defense thereof; provided, that the
failure of any Indemnified Party to give such notice shall not relieve the
Indemnifying Party of its obligations or liabilities pursuant to this Agreement,
except (and only) to the extent that it shall be finally determined by a court
of competent jurisdiction (which determination is not subject to appeal or
further review) that such failure shall have materially and adversely prejudiced
the Indemnifying Party; provided further,
that the Indemnified Party shall be entitled to assume the defense of the
Proceeding if (i) the Indemnifying Party fails to notify the Indemnified Party
in writing within ten (10) days after the Indemnified Party has given to the
Indemnifying Party the notice required by this Section 12(b) that the
Indemnifying Party will defend the Indemnified Party in the Proceeding and will
indemnify, defend, and hold harmless the Indemnified Party from and against the
Losses related thereto; (ii) the Indemnifying Party fails to provide the
Indemnified Party with reasonable evidence that the Indemnifying Party will have
the financial resources to defend the Indemnified Party in the Proceeding and
fulfill all the Indemnifying Party’s indemnification obligations hereunder;
(iii) the Indemnified Party reasonably concludes that there is a conflict of
interest between the Indemnifying Party and the Indemnified Party in the conduct
of any such defense of the Proceeding; or (iv) the Indemnifying Party fails to
conduct the defense of the Indemnified Party in the Proceeding actively and
diligently. In the event any of the conditions described in clauses
(i)-(iv) above occur, (A) the Indemnified Party may defend against, consent to
the entry of any judgment or enter into any settlement with respect to the
Proceeding in any manner the Indemnified Party reasonably may deem appropriate
(and the Indemnified Party need not consult with or obtain any consent from the
Indemnifying Party in connection therewith provided that the Indemnified Party
has provided to the Indemnifying Party notice of Indemnified Party’s intent to
defend, consent to entry of judgment or enter into settlement at least two (2)
business days prior thereto); (B) the Indemnifying Party will reimburse the
Indemnified Party promptly and periodically, but in no event later than twenty
(20) days after a
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written
request for payment therefor first been made by the Indemnified Party, for the
costs of defense of the Proceeding (including reasonable attorneys’ fees and
expenses); and (C) the Indemnifying Party will remain responsible for any
Losses, including damages, attorneys’ fees, costs, judgments, fines and amounts
paid in settlement, that the Indemnified Party may incur resulting from, arising
out of, relating to, in the nature of, or caused by the investigation, defense,
settlement or appeal of the Proceeding to the fullest extent provided in Section
12(a) above.
An
Indemnified Party shall have the right to employ separate counsel in any
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties
unless: (i) the Indemnifying Party has agreed in writing to pay such fees and
expenses; or (ii) the Indemnifying Party shall have failed promptly to assume
the defense of such Proceeding and to employ counsel reasonably satisfactory to
such Indemnified Party in any such Proceeding; or (iii) any of the conditions
described in clauses (i)-(iv) above occur. Except as expressly
provided otherwise herein, the Indemnifying Party shall not be liable for any
settlement of any such Proceeding effected without its written consent, which
consent shall not be unreasonably withheld, conditioned or
delayed. The Indemnifying Party shall not, without the prior written
consent of the Indemnified Party, which consent shall not unreasonably be
withheld, conditioned or delayed, effect any settlement of any pending
Proceeding in respect of which any Indemnified Party is a party, unless such
settlement includes an unconditional release of such Indemnified Party from all
liability on claims that are the subject matter of such Proceeding.
All
reasonable fees and expenses of the Indemnified Party (including reasonable fees
and expenses to the extent incurred in connection with investigating or
preparing to defend a Proceeding in a manner not inconsistent with this Section)
shall be paid to the Indemnified Party, as incurred, within 20 business days of
written notice thereof to the Indemnifying Party (regardless of whether it is
ultimately determined that an Indemnified Party is not entitled to
indemnification hereunder; provided, that the
Indemnifying Party may require such Indemnified Party to undertake to reimburse
all such fees and expenses to the extent it is finally judicially determined
that such Indemnified Party is not entitled to indemnification hereunder or
pursuant to applicable law).
(c) The
indemnity agreement contained in this Section is in addition to any liability
that the Indemnifying Party may have to the Indemnified Parties.
13. Other
Purchasers; Best Financial Terms . Purchaser acknowledges that the Company
intends to seek to enter into other purchase or subscription agreements on terms
substantially similar to the terms of this Agreement with certain other
investors. The Company intends to offer up to an aggregate of 5,200,000 shares
of Common Stock (including those sold to Purchaser and any such other investors)
with a closing date on or before August 8, 2008 (the “Offering”). The Company shall reduce the
Purchase Price per Share provided in this Agreement to match the purchase price
per Share agreed to by any other investors in the Offering if the Company and
such other investors agree to a lower price. In addition, to the extent the
Company provides warrant coverage or any other terms more favorable to any other
investors in the Offering, the Company shall provide Purchaser the same
percentage of warrant coverage (and on the same terms) and such other favorable
terms, if any.
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14. Miscellaneous.
(a) Governing
Law. This Agreement
and all acts and transactions pursuant hereto and the rights and obligations of
the Parties hereto shall be governed, construed and interpreted in accordance
with the laws of the State of California, without giving effect to principles of
conflicts of law.
(b) Entire
Agreement; Enforcement of Rights. This Agreement
sets forth the entire agreement and understanding of the Parties relating to the
subject matter herein and merges all prior discussions between them with regard
to such subject matter. No modification of or amendment to this
Agreement, nor any waiver of any rights under this Agreement, shall be effective
unless in writing signed by the Parties. The forbearance in any one
or more instances of a Party to insist upon performance of any of the terms,
covenants or conditions of this Agreement or to exercise any right or privilege
conferred by this Agreement shall not be construed as a waiver of any such
terms, covenants, conditions, rights or privileges, but the same shall continue
and remain in full force and effect as if no such forbearance or waiver had
occurred. The waiver by a Party of any breach of any of the terms,
covenants or conditions of this Agreement or of any right or privilege conferred
by this Agreement shall not be construed as a subsequent waiver of any such
terms, covenants, conditions, rights or privileges. No waiver shall
be effective unless it is in writing and signed by an authorized representative
of the waiving Party.
(c) Severability. If any provision of
this Agreement or the application thereof is prohibited by law or otherwise
determined to be invalid or unenforceable by a court of competent jurisdiction,
such provision shall be deemed amended to apply to the broadest extent that it
would be valid and enforceable, and the invalidity or unenforceability of such
provision shall not affect the validity or enforceability of the remaining
provisions of this Agreement so long as this Agreement as so modified continues
to express, without material change, the original intentions of the Parties as
to the subject matter hereof. The Parties will endeavor in good faith
negotiations to replace the prohibited, invalid or unenforceable provision(s)
with a valid and enforceable provision(s) that will achieve, to the extent
possible, the economic, business and other purposes of the prohibited, invalid
or unenforceable provision(s).
(d) Construction. This Agreement is
the result of negotiations between and has been reviewed by the Parties and
their respective counsel, if any; accordingly, this Agreement shall be deemed to
be the product of both of the Parties, and no ambiguity shall be construed in
favor of or against either one of the Parties.
(e) Survival. The
representations, warranties, covenants and agreements made in this Agreement
shall survive the closing of the transactions contemplated hereby.
(f) Notices. Any notice
required or permitted to given under this Agreement shall be in writing and may
be delivered by hand, by facsimile, or by internationally recognized overnight
private courier. Except as provided otherwise herein, notices
delivered by hand shall be deemed given upon receipt; notices delivered by
facsimile shall be deemed given upon the sender’s receipt of confirmation of
successful transmission; and notices delivered by internationally recognized
overnight private courier shall be deemed given on the first business day
following deposit with the private courier for overnight
delivery. All notices shall be addressed as follows:
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If to
Purchaser:
Olympus
Corporation
0-0 Xxxxxxxx-xxx,
Xxxxxxxx-xxx, Xxxxx
000-0000
Xxxxx
Attn: Yasunobu
Toyoshima
Title:
General Manager
Facsimile:
x00-00-000-0000
with a
copy (which shall not constitute notice) to:
Xxxxxx
Xxxxxxx Gaikokuho Kyodo Jigyo Horitsu Jimusho
Ebisu
Prime Square Tower, 16/F
0-0-00
Xxxxx
Xxxxxxx-xx,
Xxxxx 000-0000
Xxxxx
Attention: Xxxxxxx
X. Xxxxxxxx, Esq.
Facsimile: x00.0.0000.0000
If to the
Company:
0000
Xxxxxx Xxxx
Xxx
Xxxxx, XX 00000
Attn:
Xxxxxxxxxxx X. Xxxxxxx
Facsimile: 000-000-0000
and/or to
such other respective addresses and/or addressees as may be designated by notice
given in accordance with the provisions of this Section 14(f).
(g) Counterparts. This Agreement
may be executed in counterparts, each of which shall be deemed an original and
all of which together shall constitute one instrument.
(h) Facsimile
and E-mail Signatures. Any signature
page hereto delivered by facsimile machine or by e-mail (including in portable
document format (pdf), as a joint photographic experts group (jpg) file, or
otherwise) shall be binding to the same extent as an original signature page,
with regard to any agreement subject to the terms hereof or any amendment
thereto. Any Party who delivers such a signature page agrees to later
deliver an original counterpart to any Party who requests it.
(i) Further
Assurances. Each Party hereby
covenants that it will, at any time and from time to time upon the reasonable
request by the other Party, execute and deliver such further documents and take
such further actions as the other Party may reasonably request in order to
effect the purposes of this Agreement.
[Signature
Page Follows]
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The
Parties have executed this Common Stock Purchase Agreement as of the Effective
Date.
COMPANY:
/s/ Xxxxxxxxxxx X.
Xxxxxxx
By: Xxxxxxxxxxx
X.
Xxxxxxx
Title: Chief
Executive Officer
Date:
August 7,
2008
Address:
0000
Xxxxxx Xxxx
Xxx
Xxxxx, XX 00000
Fax: US
000-000-0000
PURCHASER:
OLYMPUS
CORPORATION
/s/
Xxxxxxxx Xxxxxxxx
By: Xxxxxxxx
Xxxxxxxx
Title:
President
Address:
00-0
Xxxxxxxx 0-xxxxx
Xxxxxxx-xx,
Xxxxx
Xxxxx
Fax:
Japan 00-0000-0000
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