EXHIBIT 10.3
EPIX MEDICAL, INC.
1,112,075 SHARES OF
COMMON STOCK
STOCK PURCHASE AGREEMENT
DATED AS OF JUNE 9, 2000
EPIX MEDICAL, INC.
STOCK PURCHASE AGREEMENT
THIS AGREEMENT, dated as of June 9, 2000, is by and between EPIX MEDICAL,
INC. (the "Company"), a Delaware corporation with its principal offices at 00
Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000, and SCHERING BERLIN VENTURE
CORPORATION, a Delaware corporation with its principal office at 000
Xxxxxxxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx (the "Purchaser").
WHEREAS the Company and an affiliate of the Purchaser are entering into a
Strategic Collaboration Agreement (the "Collaboration Agreement") dated as of
the date hereof, and the Collaboration Agreement contemplates that the parties
hereto shall enter into this Stock Purchase Agreement, and a Standstill
Agreement of even date herewith (the "Standstill Agreement");
NOW, THEREFORE, in consideration of the mutual covenants contained in the
Collaboration Agreement, the Standstill Agreement and this Stock Purchase
Agreement, the parties agree as follows:
SECTION 1. DEFINITIONS. Capitalized terms used herein, unless otherwise
defined herein, shall have the meanings given to them in the Collaboration
Agreement.
SECTION 2. AUTHORIZATION OF SALE OF THE SHARES. The Board of Directors of
the Company has authorized the issuance and sale to the Purchaser of 1,112,075
shares (each, a "Share" and, collectively, the "Shares") of common stock, $.01
par value per share ("Common Stock"), of the Company.
SECTION 3. AGREEMENT TO SELL AND PURCHASE THE SHARES. At the Closing (as
defined in Section 4 hereof), the Company will issue and sell to the Purchaser,
and the Purchaser will buy from the Company, upon the terms and conditions
hereinafter set forth, 1,112,075 shares for an aggregate purchase price of US
$20 million in a private placement.
SECTION 4. DELIVERY OF THE SHARES AT THE CLOSING. The completion of the
purchase and sale of the Shares pursuant to this Stock Purchase Agreement (the
"Closing") shall occur on the tenth (10th) day following the date of this
Agreement (or if such date is not a business day, on the next business day). At
the Closing, the Company shall deliver to Purchaser one or more stock
certificates, pursuant to the Purchaser's reasonable request. Each such
certificate shall be registered in the name of the Purchaser. The Company's
obligation to issue and deliver the Shares shall be subject to the following
conditions, any of which may be waived by the Company: (a) receipt by the
Company of a certified or official bank check or checks or wire transfer of
funds in the full amount of the purchase price for the Shares; and (b) the
accuracy of the representations and warranties made by the Purchaser herein as
though such representations and warranties had been made on and as of Closing,
and the fulfillment of those undertakings of the Purchaser set forth herein to
be fulfilled prior to the Closing and the Company's receipt of a certificate
executed by an officer of the Purchaser certifying as to the same. The
Purchaser's obligation to purchase the Shares shall be subject to the
fulfillment of the following conditions, any of which may be waived by the
Purchaser: the accuracy of the representations and warranties made by the
Company herein as of the Closing as though such representations and warranties
had been made on and as of Closing, and the fulfillment of those undertakings of
the Company set forth herein to be fulfilled prior to Closing, and the
Purchaser's receipt of a certificate executed by an officer of the Company
certifying as to the same.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to the Purchaser as follows:
5.1. ORGANIZATION. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
Company has full corporate power and authority to own, operate and occupy its
properties and to conduct its business as presently conducted and is registered
or qualified to do business and in good standing in each jurisdiction in which
it owns or leases property or transacts business and where the failure to be so
registered or qualified would have a material adverse effect upon the results of
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operations, business, condition (financial or other), prospects, key personnel,
properties or capitalization of the Company. The Company does not own, directly
or indirectly, any interest in any corporation, association, or other entity.
5.2. DUE AUTHORIZATION. The Company has all requisite corporate power
and authority to execute, deliver and perform its obligations under this Stock
Purchase Agreement and to consummate the transactions contemplated hereby. This
Stock Purchase Agreement has been duly authorized, executed and delivered by,
and constitutes a valid and binding obligation of, the Company enforceable
against the Company in accordance with its terms, except as rights to indemnity
and contribution may be limited by state, federal or foreign laws or the public
policy underlying such laws, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' and contracting parties' rights generally, and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
5.3. NON-CONTRAVENTION. The execution and delivery of this Stock
Purchase Agreement, the issuance and sale of the Shares to be sold by the
Company hereunder, the fulfillment of the terms of this Stock Purchase Agreement
and the consummation of the transactions contemplated hereby will not conflict
with or constitute a violation of, or default (with the passage of time or
otherwise) under, any material agreement or instrument to which the Company is a
party or by which it is bound or the charter, by-laws or other organizational
documents of the Company nor result in the creation or imposition of any lien,
encumbrance, claim, security interest or restriction whatsoever upon any of the
material properties or assets of the Company or an acceleration of indebtedness
pursuant to any obligation, agreement or condition contained in any material
bond, debenture, note or any other evidence of indebtedness or any material
indenture, mortgage, deed of trust or any other agreement or instrument to which
the Company is a party or by which it is bound or to which any of the property
or assets of the Company is subject, nor conflict with, or result in a violation
of, any law, administrative regulation, ordinance or order of any court or
governmental agency, arbitration panel or authority
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applicable to the Company. No consent, approval, authorization or other order
of, or registration, qualification or filing with, any regulatory body,
administrative agency, or other governmental body is required for the valid
issuance and sale of the Shares to be sold pursuant to this Stock Purchase
Agreement, other than such as have been made or obtained.
5.4. NO MATERIAL ADVERSE CHANGE. Subsequent to the last day of the
fiscal quarter covered by the most recent Quarterly Report on Form 10-Q filed by
the Company with the Securities and Exchange Commission (the "SEC"), the Company
has not incurred any material liabilities or obligations, direct or contingent,
other than in the ordinary course of business, and there has not been any
material adverse change in its condition (in each case, financial or other),
results of operations, business, prospects, key personnel, properties or
capitalization.
5.5 CAPITALIZATION. As of May 3, 2000, the Company had a total
authorized capitalization consisting of (i) 40,000,000 shares of Common Stock,
of which 11,740,244 shares were outstanding, and (ii) 1,000,000 shares of
preferred stock, $.01 par value per share, of which no shares were outstanding.
As of such date, there were outstanding options to acquire a total of 2,679,973
shares of Common Stock and outstanding warrants to acquire a total of 26,665
shares of Common Stock. Except as set forth above, no shares of capital stock or
other voting securities of the Company are issued, reserved for issuance or
outstanding. Except as set forth above, as of the date of this Stock Purchase
Agreement, there are not any options, warrants, rights, convertible or
exchangeable securities, "phantom" stock rights, stock appreciation rights,
stock-based performance units, commitments, contracts, arrangements or
undertakings of any kind to which the Company is a party or by which it is bound
(i) obligating the Company to issue, deliver or sell, or cause to be issued,
delivered or sold, additional shares of capital stock or other equity interests
in, or any security convertible or exercisable for or exchangeable into any
capital stock of or other equity interest in, the Company or any indebtedness of
the Company entitled to vote on any matters on which holders of shares of Common
Stock may vote or (ii) obligating the Company to issue, grant, extend or enter
into any such option, warrant, call, right, security, commitment, contract,
arrangement or undertaking. The outstanding shares of capital stock of
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the Company have been duly and validly issued and are fully paid and
nonassessable. The Shares have been duly authorized and, when issued and paid
for pursuant to the terms of this Stock Purchase Agreement, will be validly
issued, fully paid and nonassessable.
5.6 SEC DOCUMENTS. The Company has filed all reports, schedules, forms,
statements and other documents required to be filed by the Company with the SEC
since December 31, 1997 (the "Company SEC Documents"). As of its respective
filing date, each Company SEC Document complied in all material respects with
the requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or the Securities Act of 1933, as amended (the "Securities
Act"), as the case may be, and the rules and regulations of the SEC promulgated
thereunder applicable to such Company SEC Document, and did not 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 therein, in light
of the circumstances under which they were made, not misleading. The
consolidated financial statements of the Company included in the Company SEC
Documents comply as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect
thereto, have been prepared in accordance with generally accepted accounting
principles ("GAAP") (except, in the case of unaudited statements, as permitted
by Form 10-Q of the SEC) applied on a consistent basis during the periods
involved (except as may be indicated in the notes thereto) and fairly present
the financial position of the Company as of the dates thereof and the results of
its operations and cash flows for the periods then ended (subject, in the case
of unaudited statements, to normal year-end audit adjustments).
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
6.1. SECURITIES ACT EXEMPTION. The Purchaser hereby represents and
warrants to the Company as follows: (i) the Purchaser is an "accredited
investor" as defined in Regulation D under the Securities Act and also is
knowledgeable and experienced in making investments in private placement
transactions such as the purchase of the Shares; (ii) the Purchaser is acquiring
the Shares for its own account for investment and with no present intention of
distributing any of
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such Shares, and no arrangement or understanding exists with any other person
regarding the distribution of any of such Shares (this representation and
warranty not limiting the Purchaser's right to sell pursuant to an effective
registration statement registering the Shares for resale or pursuant to any
other means of sale legally available); and (iii) the Purchaser has had an
opportunity to ask questions of and receive answers from the management of the
Company regarding the Company, its business and the offering of the Shares.
6.2. DUE AUTHORIZATION. The Purchaser further represents and warrants
to the Company that (i) the Purchaser has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Stock
Purchase Agreement and to consummate the transactions contemplated hereby, and
(ii) this Stock Purchase Agreement has been duly executed and delivered by, and
constitutes a valid and binding obligation of, the Purchaser enforceable in
accordance with its terms, except as rights to indemnity and contribution may be
limited by state, federal or foreign laws or the public policy underlying such
laws, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors' and
contracting parties' rights generally, and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
6.3. RESTRICTIONS ON TRANSFER. The Purchaser acknowledges and
understands that the Purchaser must bear the economic risk of its investment in
the Shares for an indefinite period of time because the Shares have not been
registered under the Securities Act and, therefore, cannot voluntarily be
offered, sold, pledged or otherwise disposed of unless registered under the
Securities Act or an exemption from such registration is available and in
compliance with applicable state and foreign securities laws. The certificates
representing the Shares issued to the Purchaser will bear a legend in
substantially the following form:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). SUCH SECURITIES MAY NOT
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BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT
REQUIRED. THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE ALSO
SUBJECT TO THE PROVISIONS OF A STOCK PURCHASE AGREEMENT DATED AS
OF JUNE 9, 2000.
The Purchaser agrees that any sale, transfer, pledge, hypothecation or
other disposition of the Shares shall be made in compliance with such legends.
6.4. LOCK-UP. (a) The Purchaser agrees that it shall, if so requested
by the Company, enter into an agreement providing that it shall not offer, sell
or grant an option for the sale, or otherwise dispose of (collectively,
"transfer") any shares of Common Stock or any securities convertible into or
exercisable for shares of Common Stock (including, without limitation, the
Shares and any options, warrants, stock appreciation rights, or similar rights
with an exercise or conversion privilege at a price related to, or derived from,
the market price of shares of Common Stock), during the 14-day period prior to,
and during the 90-day period beginning on, the date of any underwritten public
offering of Common Stock, without the prior written consent of the managing
underwriters of such public offering; provided, however, that this Section 6.4
shall not apply or be effective unless all executive officers and directors of
the Company and all beneficial owners of a number of shares of Common Stock
greater than or equal to the number of shares of Common Stock beneficially owned
by the Purchaser enter into similar agreements; and, provided further, that in
no event shall the Purchaser, by operation of this Section 6.4 or Section
2.02(a) of the Standstill Agreement, be prohibited from transferring any shares
of Common Stock during the three-month period immediately following the date of
the first anniversary of this Agreement.
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(b) If requested by the underwriter or managing underwriter in any
underwritten offering or by the Purchaser in any offering pursuant to a Demand
Registration Statement (as defined in Section 8.2 hereof) (whether or not an
underwritten offering), the Company shall agree not to effect any public sale or
distribution of Common Stock (or of any securities convertible into or
exchangeable for Common Stock) during the 14-day period prior to, and during the
90-day period beginning on, the date of any public offering of Common Stock.
SECTION 7. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS;
INDEMNIFICATION.
7.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. Notwithstanding
any investigation made by any party to this Stock Purchase Agreement, all
covenants, agreements, representations and warranties made by the Company and
the Purchaser herein shall survive the execution hereof, the delivery to the
Purchaser of the Shares being purchased, and the payment therefor.
7.2 INDEMNIFICATION BY THE COMPANY. The Company hereby agrees to defend,
indemnify and hold the Purchaser and its Affiliates and their respective
officers, directors, employees and agents (collectively, the "Purchaser
Indemnitees") harmless from and against any damages, liabilities, losses and
expenses (including reasonable attorneys' fees and expenses) which are actually
sustained by the Purchaser Indemnitees as a result of or based upon a material
breach of any representation, warranty or agreement of the Company in this Stock
Purchase Agreement, or by reason of any claim, action or proceeding asserted or
arising out of a material breach of any such representation, warranty or
agreement.
7.3 INDEMNIFICATION BY THE PURCHASER. The Purchaser hereby agrees to
defend, indemnify and hold the Company and its Affiliates and their respective
officers, directors, employees and agents (collectively, the "Company
Indemnitees") harmless from and against any damages, liabilities, losses and
expenses (including reasonable attorneys' fees and expenses) which are actually
sustained by the Company Indemnitees as a result of or based upon a material
breach of any representation, warranty or agreement of the Purchaser in this
Stock Purchase
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Agreement, or by reason of any claim, action or proceeding asserted or arising
out of a material breach of any such representation, warranty or agreement.
SECTION 8. REGISTRATION OF THE SHARES; COMPLIANCE WITH THE SECURITIES ACT.
8.1 "PIGGYBACK" REGISTRATION. (a) If at any time the Company shall
initiate a registration under the Securities Act of any of its Common Stock for
its own account or for the account of any stockholder of the Company that holds
registration rights, and subject to the terms of any agreements relating to
those third-party registration rights, other than securities to be issued (i) in
connection with any acquisition of any entity or business, (ii) upon the
exercise of stock options, or (iii) pursuant to employee benefit plans
(including registrations on Form S-8 or Form S-4 or their then equivalents), it
shall send to the Purchaser written notice of such determination and, if within
fifteen (15) days after the giving of such notice, the Purchaser shall so
request in a writing received by the Company, the Company shall include in such
registration statement any or all the Shares that the Purchaser requests to be
registered therein; except that, if in connection with any underwritten public
offering of Common Stock, the managing underwriter shall recommend that the
number of Shares to be included in such registration statement be limited
because, in the underwriter's judgment, such limitation is necessary to permit
the public distribution of the shares of Common Stock being sold by the Company,
then the number of Shares to be included in such registration statement shall be
limited to the extent so recommended (which may be the complete exclusion of
such Shares); provided, however, that such limitation shall be proportionate
(based on the number of shares to be included) to the limitation applied to any
other holders of Common Stock with registration rights who request the inclusion
of shares in the registration statement. The rights granted by the Company under
this Section 8.1 shall terminate on the fifth anniversary of the date hereof.
(b) The Company will use commercially reasonable efforts to maintain
the effectiveness of any registration statement under which any of the Shares
are being offered pursuant to this Section 8.1 until the earlier to occur of (i)
the completion of the distribution pursuant to such registration statement and
(ii) thirty (30) days after the effectiveness of such
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registration statement; provided, however, that such 30-day period will be
deemed to be suspended for so long as the Purchaser is prohibited from using
such registration statement pursuant to the third sentence of this Section
8.1(b). The Company will promptly notify the Purchaser and each underwriter
under such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the happening
of any event of which the Company has knowledge as a result of which the
prospectus contained in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing. The Purchaser agrees
upon receipt of such notice forthwith to cease making offers and sales of Shares
pursuant to such registration statement or deliveries of the prospectus
contained therein for any purpose until the Company has prepared and furnished
such amendment or supplement to the prospectus as may be necessary so that, as
thereafter delivered to a purchaser of Shares, such prospectus shall not include
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
in the light of the circumstances then existing. The Purchaser further agrees
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in this Section 8.1(b), the Purchaser will, if requested
by the Company, deliver to the Company (at the Company's expense) all copies,
other than permanent file copies, then in the Purchaser's possession of the
prospectus current at the time of receipt of such notice from the Company.
8.2 DEMAND REGISTRATION. (a) At any time and from time to time, the
Purchaser shall have the right to request in writing (which request shall
specify the Shares intended to be disposed of and the intended method of
distribution thereof) that the Company register any or all of the Shares by
filing with the SEC a registration statement covering such Shares (a "Demand
Registration Statement"). Upon the receipt of such a request, the Company shall,
not later than the 60th calendar day after the receipt of such a request, cause
to be filed a Demand Registration Statement providing for the registration under
the Securities Act of the Shares which the Company has been so requested to
register by the Purchaser, to the extent necessary to permit the disposition of
such Shares in accordance with the intended methods of distribution thereof
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specified in such request, and shall use its best efforts to have such Demand
Registration Statement declared effective by the SEC as soon as practicable
thereafter (but in no event later than the 90th calendar day after the date of
filing the Demand Registration Statement with the SEC) and to keep such Demand
Registration Statement continuously effective for a period of time necessary
following the date on which such Demand Registration Statement is declared
effective to permit the sale of all the Shares covered by such Demand
Registration Statement or such shorter period which will terminate when all the
Shares covered by such Demand Registration Statement have been sold pursuant
thereto (including, if necessary, by filing with the SEC a post-effective
amendment or a supplement to the Demand Registration Statement or the related
prospectus or any document incorporated therein by reference or by filing any
other required document or otherwise supplementing or amending the Demand
Registration Statement, if required by the rules, regulations or instructions
applicable to the registration form under the Securities Act used by the Company
for such Demand Registration Statement or by the Securities Act, any state
securities or "blue sky" laws, or any other rules and regulations thereunder).
(b) A Demand Registration Statement shall be deemed not to have become
effective (and the related registration shall be deemed not to have been
effected) unless it has been declared effective by the SEC; provided, however,
that if, after it has been declared effective, the offering of any Shares
pursuant to such Demand Registration Statement is interfered with by any stop
order, injunction or other order or requirement of the SEC or any other
governmental agency or court (other than any such stop order or injunction
issued as a result of (i) the inclusion in such Demand Registration Statement of
any information supplied to the Company for inclusion therein by the Purchaser
or (ii) the conduct of the offering by the Purchaser or its agents) such Demand
Registration Statement will be deemed not to have become effective.
(c) The Purchaser shall only be entitled to two effective Demand
Registration Statements pursuant to Section 8.2(a); provided, however, that if
the Purchaser requests a second Demand Registration Statement, (i) the Purchaser
must propose to include in such Demand Registration Statement Shares
representing a minimum of the least of (a) US $10 million in
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value, (b) fifty percent (50%) of the total number of Shares acquired by the
Purchaser hereunder, and (c) the remainder of the Shares owned by the Purchaser,
(ii) such Demand Registration Statement may not become effective within a period
of six (6) months of the date of effectiveness of the registration statement
covering any other registration of shares of Common Stock (other than a
registration on Form S-8 or any comparable form), and (iii) the Company may
postpone compliance with such request once, for a period not to exceed 90 days,
if, at the time of the request, the Board of Directors of the Company has
adopted resolutions approving a registered offering of Common Stock by the
Company and the Company is actively engaged in the process of effecting such
registration. The Purchaser may, at any time prior to the effectiveness of a
Demand Registration Statement, revoke such demand by providing written notice to
the Company. In such event at the option of the Purchaser either (i) such Demand
Registration Statement shall be deemed to have become effective for purposes of
the first sentence of this Section 8.2(c) or (ii) the Purchaser shall reimburse
the Company for its out-of-pocket expenses incurred in the preparation, filing
and processing of such Demand Registration Statement.
(d) If a registration pursuant to this Section 8.2 involves an
underwritten offering of Common Stock, and the underwriter or the managing
underwriter, as the case may be, of such underwritten offering shall inform the
Company, the Purchaser and any other holders of shares of Common Stock
requesting registration of Common Stock pursuant to registration rights granted
by the Company to such holders (collectively, "Selling Stockholders"), on or
before the date five days prior to the date then scheduled for such offering,
that, in its opinion, the number of shares of Common Stock requested to be
included in such registration would materially adversely affect the
underwriter's ability to effect such offering, then the Company will include in
such registration only the amount of shares of Common Stock that the Purchaser
is so advised can be sold without material adverse effect; provided, however,
that the Company shall be required to include in such required registration:
FIRST, all securities initially proposed to be sold pursuant to such Demand
Registration Statement by the Purchaser; and SECOND, the number of shares of
Common Stock requested to be included in such registration by the Selling
Stockholders that the Purchaser is so advised can be sold without material
adverse affect, allocated pro rata among the Selling Stockholders requesting
such registration on the basis of the
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number of shares of Common Stock requested to be included by all such Selling
Stockholders. No securities other than shares of Common Stock requested to be
included by the Purchaser and the Selling Stockholders, if any, shall be
included in any Demand Registration Statement without the prior written consent
of the Purchaser.
(e) If at any time or from time to time the Purchaser desires to sell
Shares in an underwritten offering pursuant to a Demand Registration Statement,
the underwriters, including the managing underwriter, shall be selected by the
Purchaser and shall be subject to the Company's approval, which will not be
unreasonably withheld.
8.3 EXPENSES OF REGISTRATION. All costs and expenses incurred in
connection with any registration pursuant to this Section 8, including, without
limitation, all registration, filing and qualification fees, printing expenses,
fees and disbursements of counsel for the Company, and expenses of any special
audits of the Company's financial statements incidental to or required by such
registration shall be paid by the Company; provided, however, that the Company
shall have no obligation to pay any stock transfer taxes, underwriters' fees,
discounts or commissions with respect to the sale of the Shares, or the fees and
expenses of any counsel or advisor to the Purchaser.
8.4 REGISTRATION PROCEDURES. Whenever the Purchaser has requested that
any Shares be included in a Company registration statement pursuant to this
Section 8, the Company will use commercially reasonable efforts to effect the
registration and sale of such Shares upon the terms and conditions hereof, and
in connection with any such request, the Company will:
(a) promptly prepare and file with the SEC and furnish to the Purchaser
copies of such registration statement as filed and each amendment and supplement
thereto, as many copies of the prospectus included in such registration
statement and any amendments or supplements thereto as the Purchaser may
reasonably request (including any preliminary prospectus contained therein and
shall reflect in each such document such comments as the Purchaser may
reasonably propose);
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(b) use its best efforts to ensure that (i) such registration statement
and any amendment thereto and such prospectus forming part thereof and any
amendment or supplement thereto complies as to form in all material respects
with the Securities Act, (ii) such registration statement and any amendment
thereto does not, when it becomes effective, 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 contained therein not misleading and (iii) any
prospectus forming part of such registration statement, and any amendment or
supplement to such prospectus, does not include an 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 contained therein not misleading in
light of the circumstances in which they were made; provided, however, that the
Company shall have no liability under clauses (ii) or (iii) of this paragraph
(b) with respect to any such untrue statement or omission made therein in
reliance upon and conformity with information furnished to the Company by or on
behalf of the Purchaser or any underwriter for inclusion therein;
(c) use its best efforts to register or qualify such Shares under the
securities or blue sky laws of such jurisdictions as the managing underwriter of
such offering, if any, or the selling shareholders under such registration
statement if there is no underwriter, may reasonably request and do any and all
other acts and things which may be reasonably necessary or advisable to enable
the Purchaser to consummate the disposition in such jurisdictions of the Shares;
provided, that the Company will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this paragraph (c), or (ii) take any action that would subject it to the
service of process in suits other than relating to the sale of the Shares or any
violation of state securities laws in any jurisdiction where it is not now so
subject;
(d) use its best efforts to cause the Shares covered by such
registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the Purchaser
or the underwriter or underwriters, if any, to
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consummate the disposition of such Shares subject to the proviso contained in
paragraph (c) above;
(e) promptly advise the Purchaser and, if requested by the Purchaser,
promptly confirm such advice in writing:
(i) when such registration statement or prospectus and any
amendment or supplement thereto has been filed with the SEC and when
such registration statement or any post-effective amendment thereto
has become effective;
(ii) of any request by the SEC for amendments or supplements to
such registration statement or the prospectus included therein or for
additional information;
(iii) of the issuance by the SEC of any stop order suspending the
effectiveness of such registration statement or the initiation or
threat of any actions or proceeding 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 the Shares included in such registration statement
for sale in any jurisdiction or the initiation or threatening of any
action nor proceeding for such purpose; and
(v) of the happening of any event that requires the amendment or
supplementation of such registration statement or prospectus (or
documents incorporated or deemed to be incorporated therein) are not
misleading and do not contain any untrue statement of material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements contained therein (in the case of the
prospectus, in light of the circumstances under which they were made)
not misleading;
(f) use all reasonable efforts required to prevent the entry or obtain
the withdrawal of any stop order, as applicable;
(g) furnish to the Purchaser and its counsel and the underwriter, if
any, and its counsel, without charge, a conformed copy of such registration
statement and any and all post-effective amendments thereto, including financial
statements and schedules, and all exhibits thereto (including those incorporated
therein by reference);
(h) deliver to the Purchaser, without charge, as many copies of the
prospectus included in such registration statement, and any amendment or
supplement thereto, as the
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Purchaser shall reasonably request; and subject to Sections 8.1(b) and 8.2(b)
hereof, the Company consents to the use of the prospectus or any amendment or
supplement thereto by the Purchaser in connection with the offering and sale of
the Shares covered by the prospectus or any amendment or supplement thereto;
(i) enter into customary agreements (including an underwriting
agreement in customary form) and take such other actions (including obtaining
customary opinions of counsel for the Company) as are reasonably required in
order to expedite or facilitate the disposition of such Shares;
(j) to the extent customary for an offering of the type registered by
such registration statement, use its best efforts to obtain a comfort letter
from the Company's independent public accountants in customary form and covering
matters of the type customarily covered by comfort letters with respect to such
type of offering;
(k) otherwise comply with all applicable rules and regulations of the
SEC, and make generally available to its security holders, as soon as reasonably
practicable, an earnings statement covering a period of 12 months after the
effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
(l) cause all such Shares to be listed on each securities exchange or
quotation system on which similar securities issued by the Company are then
listed;
(m) cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD") and in the
performance of any due diligence investigation that is required in accordance
with the rules and regulations of the NASD); and
(n) make reasonably available for inspection during normal business
hours by the Purchaser and any attorney, accountant or other agent retained by
the Purchaser (collectively,
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the "Inspectors"), all financial and other records and other information,
pertinent corporate documents and properties of any of the Company and its
Affiliates (collectively, the "Records"), as shall be reasonably necessary to
enable the Inspectors to exercise their due diligence responsibility; provided,
however, that the Records that the Company determines, in good faith, to be
confidential and which it notifies any Inspectors are confidential shall not be
disclosed to any Inspector unless such Inspector signs a confidentiality
agreement reasonably satisfactory to the Company.
The Company may require the Purchaser to furnish to the Company such
information regarding the distribution of the Shares as the Company may from
time to time reasonably request in writing. The rights granted by the Company
under Section 8.2 shall terminate on the date of the fifth anniversary of this
Agreement.
8.5 INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. In connection with any registration
statement in which the Purchaser includes Shares pursuant to this Section 8, the
Company will indemnify and hold harmless the Purchaser, together with each of
the Purchaser's officers and directors, and each underwriter of the Shares, if
any, and each person who controls the Purchaser or any underwriter within the
meaning of the Securities Act, against all claims, losses, expenses, damages and
liabilities (or actions in respect thereof) insofar as such claims, losses,
expenses, damages and liabilities (or action in respect thereof) arise out of or
are based on any untrue statement or alleged untrue statement of a material fact
contained in any such registration statement or prospectus, or arise out of or
are based on any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each such person for any reasonable legal and any
other expenses incurred in connection with investigating, defending or settling
any such claim, loss, damage, liability or action; provided that the Company
will not be liable in any such case to the extent that any such claim, loss,
damage or liability (or actions in respect thereof) arise out of or is based on
any untrue statement or alleged untrue statement or omission or alleged omission
-17-
made therein based upon written information furnished to the Company by the
Purchaser or underwriter, specifically for use therein.
(b) INDEMNIFICATION BY THE PURCHASER. The Purchaser will, if any of the
Purchaser's Shares are included in a registration pursuant hereto, indemnify the
Company, each of its directors and officers, each underwriter, if any, of the
Shares covered by such registration statement, and each person who controls the
Company and any underwriter within the meaning of the Securities Act, and each
other holder of securities registered under the registration statement, each of
its officers, directors and partners and each person controlling such holder,
against all claims, losses, expenses, damages and liabilities (or actions in
respect thereof) insofar as such claims, losses, expenses, damages and
liabilities (or actions in respect thereof) arise out of or are based on any
untrue statement or alleged untrue statement of a material fact contained in any
such registration statement or prospectus, or based on any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
such person for any reasonable legal and any other expenses incurred in
connection with investigating, defending or settling any such claim, loss,
damage, liability or action, in each case to the extent, but only to the extent,
that such untrue statement or omission or alleged untrue statement or omission
is made in such registration statement or prospectus in reliance upon and in
conformity with written information furnished to the Company by the Purchaser
specifically for use therein.
(c) CONTRIBUTION. In order to provide for just and equitable
contribution in any case in which any person exercising rights under this
Section 8.5 makes a claim for indemnification, but it is judicially determined
(by the entry of a final judgment or decree by a court of competent jurisdiction
and the expiration of time to appeal or the denial of the last right of appeal)
that such indemnification may not be enforced in such case notwithstanding the
fact that this Section 8.5 provides for indemnification in such case, then, the
Company and the Purchaser will contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject (after contribution from
others) in such proportion as is appropriate to reflect the relative fault of
the Company on the one hand and of the Purchaser on the other in connection
-18-
with the statements or omissions which resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and of the Purchaser on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company on the one
hand or by the Purchaser on the other, and each party's relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided, however, that, in any such case, (i) the
Purchaser will not be required to contribute any amount in excess of the public
offering price of all Shares offered by it pursuant to such registration
statement; and (ii) no person or entity guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
(d) INDEMNIFICATION PROCEDURES. Each party entitled to indemnification
under this Section 8.5 (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly after
such Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the defense of
any such claim or any litigation resulting therefrom; provided that counsel for
the Indemnifying Party who shall conduct the defense of such claim or litigation
shall be approved by the Indemnified Party (which approval shall not be
unreasonably withheld), and the Indemnified Party may participate in such
defense at such party's expense; provided, further, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations hereunder, except to the extent such
failure resulted in actual detriment to the Indemnifying Party. No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect of such claim or litigation.
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8.6 CONDITIONS TO REGISTRATION OBLIGATIONS. The Company shall not be
obligated to effect the registration of the Purchaser's Shares pursuant to this
Section 8 unless the Purchaser consents to such reasonable conditions imposed by
the Company as the Company shall determine with the advice of counsel to be
required by law, including, without limitation:
(a) conditions requiring the Purchaser to comply with all prospectus
delivery requirements of the Securities Act and with all
anti-stabilization, anti-manipulation and similar provisions of Section 10
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and any rules issued thereunder by the SEC, and to furnish to the Company
information about sales made in such public offering;
(b) conditions prohibiting the Purchaser upon receipt of telegraphic
or written notice required by law from the Company from effecting sales of
Shares until further notice; and
(c) conditions requiring that at the end of the period during which
the Company is obligated to keep the registration statement effective under
this Section 8, the Purchaser shall discontinue sales of Shares pursuant to
such registration statement upon receipt of notice from the Company of its
intention to remove from registration the securities covered by such
registration statement that remain unsold, and requiring the Purchaser to
notify the Company of the number of Shares registered that remain unsold
promptly upon receipt of notice from the Company.
In addition, the Company shall not be obligated to effect a registration of
the Purchaser's Shares pursuant to this Section 8 unless the Purchaser consents
to reasonable conditions requested by the Company requiring the Purchaser to
enter into an underwriting agreement with customary terms and conditions and in
form and substance reasonably satisfactory to the Company.
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8.7 TRANSFERABILITY OF REGISTRATION RIGHTS. The registration rights
granted hereunder may be transferred by the Purchaser (i) with the prior written
consent of the Company, or (ii) without the prior written consent of the Company
in connection with the transfer of all or substantially all of the Shares;
provided, however, that each transferee of registration rights shall be subject
to the same obligations as the Purchaser, and provided, further, that if any of
such transferees are Affiliates of the Purchaser, one entity (which may be the
Purchaser) shall be designated by the Purchaser to act on behalf of the
Purchaser and such Affiliates to give and receive all notices and other
communications pursuant to this Section 8.
SECTION 9. RULE 144 REPORTING
With a view to making available the benefits of certain rules and
regulations of the SEC which may at any time permit the sale of the Shares to
the public without registration, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the SEC in a timely manner
all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to any holder of Shares forthwith upon request a
written statement by the Company as to its compliance with the
reporting requirements of Rule 144 and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of
the Company, and such other reports and documents so filed by the
Company as such holder may reasonably request in availing itself of
any rule or regulation of the SEC allowing such holder to sell any
Shares without registration.
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SECTION 10. NO FEE. The parties hereto hereby represent that there are no
brokers or finders entitled to compensation in connection with the transactions
contemplated hereby.
SECTION 11. NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing, shall be addressed to the
receiving party's address set forth below or to such other address as a party
may designate by notice hereunder, and shall be either (i) delivered by hand,
(ii) made by facsimile transmission, (iii) sent by overnight courier, or (iv)
sent by registered or certified mail, return receipt requested, postage prepaid:
if to the Company, to:
EPIX Medical, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Chief Executive Officer
with a copy to:
Xxxxxxx X. Xxxxxx, Esq.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
if to the Purchaser, to:
Schering Berlin Venture Corporation
000 Xxxxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Treasurer
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All notices, requests, consents and other communications hereunder shall be
deemed to have been given either (i) if by hand, at the time of the delivery
thereof to the receiving party at the address of such party set forth above,
(ii) if made by facsimile transmission, at the time that receipt thereof has
been acknowledged by electronic confirmation or otherwise, (iii) if sent by
overnight courier, on the next business day following the day such notice is
delivered to the courier service, or (iv) if sent by registered or certified
mail, on the 5th business day following the day such mailing is made.
SECTION 12. CHANGES. Any term of this Stock Purchase Agreement may be
amended or compliance therewith waived with the written consent of the parties
hereto; provided, however, that any provision of Section 8 hereof may be amended
or compliance therewith waived by the written consent of the Company and the
Purchaser.
SECTION 13. ASSIGNMENT. Subject to Section 8.7 hereof, the rights and
obligations under this Stock Purchase Agreement may not be assigned by any party
hereto without the prior written consent of the other party; provided, however,
that the Purchaser may, without such prior written consent of the Company,
assign its rights and obligations hereunder to an Affiliate. Any assignee of the
rights and obligations under this Stock Purchase Agreement pursuant to this
Section 13 shall agree to be bound by the terms and conditions contained in this
Stock Purchase Agreement.
SECTION 14. BENEFIT. All statements, representations, warranties,
covenants and agreements in this Stock Purchase Agreement shall be binding on,
and inure to the benefit of, the respective parties hereto and their respective
successors and permitted assigns. Other than Sections 7.2, 7.3, 8.5(a) and
8.5(b) hereof, nothing herein shall be construed to create any rights or
obligations except among the parties hereto, and no person or entity shall be
regarded as a third-party beneficiary of this Stock Purchase Agreement.
SECTION 15. EXPENSES. Subject to Section 8.3 hereof, each of the
parties hereto shall pay its own fees and expenses (including the fees of any
attorneys, accountants, appraisers or
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others engaged by such party) in connection with this Stock Purchase Agreement,
the Standstill Agreement and the transactions contemplated hereby and thereby
whether or not the transactions contemplated hereby or thereby are consummated.
SECTION 16. HEADINGS. The headings of the various sections of this
Stock Purchase Agreement have been inserted for convenience of reference only
and shall not be deemed to be part hereof.
SECTION 17. SEVERABILITY. In case any provision contained in this Stock
Purchase Agreement should be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
SECTION 18. GOVERNING LAW. This Stock Purchase Agreement shall be
governed by and construed in accordance with (a) the internal laws of the State
of Delaware without giving effect to principles of conflicts of law, and (b)
with respect to Section 8 hereof, United States federal securities law.
SECTION 19. COUNTERPARTS. This Stock Purchase Agreement may be executed
in counterparts, each of which shall constitute an original, but all of which,
when taken together, shall constitute one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Stock
Purchase Agreement as of the 9TH day of June, 2000.
SCHERING BERLIN VENTURE CORPORATION
By: /S/ XXXX XXXXXXXXX
--------------------------------------------
Xxxx Xxxxxxxxx
Treasurer
EPIX MEDICAL, INC.
By:/S/ XXXXXXX X. XXXX
--------------------------------------------
Xxxxxxx X. Xxxx
Chief Executive Officer
