Exhibit 10.24
SERIES A PREFERRED STOCK AND WARRANT
PURCHASE AGREEMENT
This SERIES A PREFERRED STOCK PURCHASE AND WARRANT AGREEMENT
(the "Agreement") dated February 24, 2000 is entered into by and between
PharmaNetics, Inc., a North Carolina corporation (together with its successors,
the "Company"), and the investor set forth on the signature page attached hereto
("Investor").
Unless otherwise defined herein, capitalized terms used herein
and not defined herein shall have the meanings given to them under the
Securities Act of 1933, as amended (the "Securities Act").
The parties hereto agree as follows:
1. Purchase and Sale. In consideration of and upon the basis
of the representations, warranties and agreements and subject to the terms and
conditions set forth in this Agreement:
a. Investor agrees to purchase from the Company, and
the Company agrees to sell to Investor, on the Closing Date specified in Section
2 hereof, the number of shares of the Company's Series A Preferred Stock (the
"Preferred Shares") set forth on the signature page attached hereto for a price
per share equal to $100.00 (the "Purchase Price") and a warrant, in the form
attached hereto as Exhibit A, to purchase that number of shares of Common Stock
of the Company equal to two (2) times the number of the Preferred Shares
purchased hereunder (rounded to the nearest whole number) at an exercise price
per share equal to one-tenth (1/10th) of the Purchase Price (the "Warrant"). On
or before the Closing Date (as defined below), the Company will have authorized
the sale and issuance to Investor of the Preferred Shares, having the rights,
preferences and privileges set forth in the Articles of Amendment and
Restatement attached hereto as Exhibit B (the "Articles of Amendment").
b. The term "Conversion Stock" shall mean any shares
of the Company's common stock, no par value per share (the "Common Stock"),
issued or to be issued to Investor upon conversion of the Preferred Shares
pursuant to the terms of this Agreement and the Articles of Amendment, including
shares of Common Stock issued as payment of in-kind dividends, or upon the
exercise of the Warrant.
c. The Company will use the proceeds from the sale of
the Preferred Shares to fund new product and research development and support
working capital needs.
2. Closing.
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a. The closing of the sale of the Preferred Shares
and the Warrant (the "Closing") shall take place on February 25, 2000 upon
satisfaction or, if applicable, waiver of the conditions set forth in Sections 6
and 7 hereof, or at such other date and time as the Investor and the Company
shall mutually agree (such date and time and any subsequent closing being
referred to herein as the "Closing Date").
b. At the Closing, the Company shall deliver to
Investor (i) a certificate representing the Preferred Shares that Investor is
purchasing and (ii) the Warrant, duly registered on the
books of the Company in the name of Investor, against payment by Investor of the
Purchase Price by check or wire transfer of immediately available funds.
c. The Company may sell up to the balance of the
authorized number of shares of Series A Preferred Stock not sold at the Closing
to such purchasers as it shall select, such new purchasers to become parties
hereto by executing a signature page hereto.
3. Representations and Warranties of the Company. The Company
hereby represents and warrants to Investor as follows:
a. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of North
Carolina and has all requisite power and authority to carry on its business as
now conducted and as proposed to be conducted. The Company is duly qualified to
transact business and is in good standing in each jurisdiction in which the
failure to so qualify would have a material adverse effect on its business or
properties.
b. All corporate action on the part of the Company,
its officers and directors necessary for the authorization, execution and
delivery of this Agreement, the performance of all obligations of the Company
hereunder and thereunder, and the authorization, issuance (or reservation for
issuance), sale and delivery of the Preferred Shares and the Warrant being sold
hereunder and the Conversion Stock has been taken or will be taken prior to the
Closing, and this Agreement constitute a valid and legally binding obligation of
the Company, enforceable in accordance with their respective terms, except (i)
as limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors' rights
generally and (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies.
c. The Company is not in violation or default of any
provision of its Articles of Incorporation or bylaws, or of any judgment, order,
writ or decree by which it is bound. The Company is not in violation or default
in any material respect of any instrument or contract to which it is a party or
by which it is bound, or of any provision of any federal or state statute, rule
or regulation applicable to the Company, which violation or default would have a
material adverse effect on its business or properties. The execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated hereby will not result in any such violation or be in conflict with
or constitute, with or without the passage of time and giving of notice, either
a default under any such provision, instrument, judgment, order, writ, decree or
contract or an event that results in the creation of any lien, charge or
encumbrance upon any assets of the Company or the suspension, revocation,
impairment, forfeiture, or nonrenewal of any material permit, license,
authorization, or approval applicable to the Company, its business or operations
or any of its assets or properties.
d. No consent, approval, order or authorization of,
or registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of the Company is
required in connection with the consummation of the transactions contemplated by
this Agreement, except (i) the filing of the Articles of Amendment with the
Secretary of State of North Carolina; and (ii) the filing pursuant to Regulation
D promulgated by the Securities and Exchange Commission (the "SEC") under the
Securities Act, which filing will be effected within 15 days of the sale of the
Preferred Shares hereunder, or such other post-closing filings as may be
required.
e. There is no action, suit, proceeding or
investigation pending or, to the Company's knowledge, currently threatened
against the Company that questions the validity of this Agreement or the right
of the Company to enter into such agreements, or to consummate the transactions
contemplated hereby, and there is no action, suit, proceeding or public
investigation pending or, to the knowledge of the Company, currently threatened
against the Company, or against any executive officer or director of the Company
which might result, either individually or in the aggregate, in any material
adverse change in the business, properties, financial condition or operating
results of the Company, as such business is presently conducted.
f. The Company has filed all filings with the SEC
under the Securities Act or under Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") or under the rules and
regulations promulgated by the SEC (any such filing, an "SEC Filing") required
to be filed by the Company pursuant to such acts and no SEC Filing contained, on
the date on which such document was filed with the SEC, any untrue statement of
a material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements, in the light of the
circumstances under which they were made, not misleading. The financial
statements of the Company included in SEC Filings (including any similar
documents filed after the date of this Agreement) 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 (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 consolidated financial position of the
Company and its consolidated subsidiaries as of the dates thereof and the
consolidated results of their operations and cash flows for the periods then
ended (subject, in the case of unaudited statements, to normal year-end audit
adjustments).
g. There has not been any development that has not
otherwise been publicly disclosed that is reasonably likely to result in any
material adverse change in the financial condition or results of operations of
the Company.
h. Except as disclosed in the SEC Filings and as
contemplated hereby, the Company has not granted or agreed to grant any
registration rights, including piggyback rights, pre-emptive, subscription or
similar rights to any person or entity, nor has it made any commitments in that
regard.
i. As of February 17, 2000, the authorized capital
stock of the Company consisted of 1,000,000 shares of Preferred Stock, none of
which were issued and outstanding, and 10,000,000 shares of Common Stock,
7,505,681 shares of which were issued and outstanding (the "Preferred Stock" and
the "Common Stock" are collectively referred to herein as the "Capital Stock").
All of the issued and outstanding shares of Capital Stock have been duly
authorized, validly issued and are fully paid and nonassessable. There has been
no change in the capitalization of the Company from February 17, 2000 to the
date of this Agreement.
j. The Preferred Shares and the Warrant that are
being purchased by the Investor hereunder, when issued, sold or delivered in
accordance with the terms hereof, for the consideration expressed herein, and
the Conversion Stock, upon issuance in accordance with the terms of the Articles
of Amendment, will be duly and validly issued, fully paid and nonassessable and
will be free of any liens and encumbrances created by the Company and, subject
to the accuracy of the representations of the Investor in this Agreement, will
be issued in compliance with all applicable federal and state securities laws.
k. The materials delivered to the Investor in
connection with the offer and sale of the Preferred Shares do not contain any
untrue statement of a material fact or omit to state any
material fact required to be stated or necessary to make the statements in such
materials not misleading. If at any time prior to the Closing or other
termination of this Agreement any event shall occur as a result of which it may
be necessary to amend or supplement such materials so that they do not include
any untrue fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances then existing, not
misleading, the Company will supply the Investor with amendments or supplements
correcting such statement or omission. The Company will also provide the
Investor any information, documents and instruments which the Company deems
necessary to comply with applicable state and federal law.
l. The Company owns or possesses all of the patents,
trademarks, service marks, trade names, copyrights, proprietary rights, trade
secrets, and licenses or rights necessary for the conduct of the Company's
business as conducted and as proposed to be conducted. To the best of the
Company's knowledge, the business proposed by the Company will not cause the
Company to infringe or violate any of the patents, trademarks, service marks,
trade names, copyrights, licenses, trade secrets or other proprietary rights of
any other person or entity.
m. The Company is not obligated to pay any finders'
fees, brokerage commissions or similar payments relating to this Agreement or
the transactions contemplated hereby, except for commissions and fees payable to
Xxxxxxxxx & Company LLC as the Company's placement agent.
4. Representations and Warranties of Investor. Investor hereby
represents and warrants to the Company on the date hereof, and agrees with the
Company (unless otherwise specified as provided in the paragraphs below), as
follows:
a. Investor understands that no United States federal
or state agency has passed on, reviewed or made any recommendation or
endorsement of the Preferred Shares, the Warrant or the Conversion Stock.
b. Investor has full power and authority to enter
into this Agreement and such Agreement constitutes its valid and legally binding
obligation, enforceable in accordance with its terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting enforcement of creditors' rights generally and
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies.
c. This Agreement is made with Investor in reliance
upon Investor's representation to the Company, which by Investor's execution of
this Agreement Investor hereby confirms, that the Preferred Shares to be
received by Investor, the Warrant and the Conversion Stock (collectively, the
"Securities") will be acquired for investment for Investor's own account, not as
a nominee or agent, and not with a present view to the resale or distribution of
any part thereof, and that Investor has no present intention of selling,
granting any participation in, or otherwise distributing the same. By executing
this Agreement, Investor further represents that Investor does not have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with
respect to any of the Securities.
d. Investor is an investor in securities of companies
in the development stage and acknowledges that it can bear the economic risk of
its investment, and has such knowledge and experience in financial or business
matters that it is capable of evaluating the merits and risks of the investment
in the Securities. Investor also represents it has not been organized for the
purpose of acquiring the Securities.
e. Investor is an "accredited investor" within the
meaning of SEC Rule 501 (a) of Regulation D, as presently in effect and all
representations made by Investor in that certain Investor Questionnaire
completed by Investor and delivered to the Company are true and correct in all
respects as if made on the date hereof.
f. Investor understands that the Securities are being
offered and sold in reliance on a transactional exemption from the registration
requirements of Federal and state securities laws and that the Company is
relying upon the truth and accuracy of the representations, warranties,
agreements, acknowledgments and understandings of the Investor set forth herein
in order to determine the applicability of such exemptions and the suitability
of the Investor to acquire the Securities.
g. Investor understands that the Securities it is
purchasing are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Securities Act, only in certain limited circumstances. In this connection,
Investor represents that it is familiar with SEC Rule 144, as presently in
effect, and understands the resale limitations imposed thereby and by the
Securities Act.
h. Without in any way limiting the representations
set forth above, Investor further agrees not to make any disposition of all or
any portion of the Securities unless and until the transferee has agreed in
writing for the benefit of the Company to be bound by the terms of this
Agreement provided and to the extent such terms are then applicable, and:
(1) There is then in effect a Registration
Statement under the Securities Act covering such proposed disposition and such
disposition is made in accordance with such Registration Statement; or
(2) (i) Investor shall have notified the
Company of the proposed disposition and shall have furnished the Company with a
detailed statement of the circumstances surrounding the proposed disposition,
and (ii) if reasonably requested by the Company, Investor shall have furnished
the Company with an opinion of counsel, reasonably satisfactory to the Company
that such disposition will not require registration of such shares under the
Securities Act. It is agreed that the Company will not require opinions of
counsel for transactions made pursuant to Rule 144 except in circumstances that
require a designation of an entity's status as an "affiliate".
i. It is understood that the certificates evidencing
the Securities will bear the following legends:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THEY MAY NOT
BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT
AND APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO
RULE 144 OF SUCH ACT."
j. The execution, delivery and performance of this
Agreement and the consummation by Investor of the transactions contemplated
hereby do not and will not (i) with respect to Investor's that are entities
result in a violation of Investor's charter documents or bylaws or (ii) conflict
with any material agreement, indenture or instrument to which Investor is a
party, or (iii) result in a violation of any order, judgment or decree of any
court or governmental agency applicable to Investor or, to the Investor's
knowledge, of any law, rule or regulation. Investor is not required to obtain
any consent or authorization or any governmental agency in order for it to
perform its obligations under this Agreement.
5. Covenants.
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a. The Company covenants and agrees with Investor as
follows:
(1) For so long as any of the Preferred
Shares are outstanding, and in any case for a period of 40 calendar days
thereafter, the Company will undertake best efforts to cause its Common Stock to
continue to be registered under Sections 12(b) or 12(g) of the Exchange Act,
will comply in all material respects with its reporting and filing obligations
under said act, and will not knowingly and voluntarily take any action or file
any document (whether or not permitted by the Securities Act or the Exchange Act
or the rules thereunder) to terminate or suspend its reporting and filing
obligations under said acts, except as permitted herein. For so long as any of
the Preferred Shares are outstanding, and in any case for a period of 40
calendar days thereafter, the Company will use commercially reasonable efforts
to continue the listing of trading of its Common Stock on the Nasdaq Stock
Market ("Nasdaq") or on a national securities exchange (as defined in the
Exchange Act) and will comply in all material respects with the Company's
reporting, filing and other obligations under the bylaws or rules of the
National Association of Securities Dealers and Nasdaq. Notwithstanding the
foregoing, the provisions of this subsection shall not in any way restrict the
Company's ability to negotiate and consummate the consolidation, reorganization
or merger of the Company with or into any other corporation or corporations or a
sale, conveyance, or other disposition of all or substantially all of the
Company's property or business.
(2) For so long as any of the Preferred
Shares and the Warrant are outstanding, the Company shall at all times reserve
and keep available, free from preemptive rights, out of its authorized but
unissued Common Stock, for issuance upon conversion of such Preferred Shares or
upon exercise of such Warrant, not less than the maximum number of shares of
Conversion Stock then so issuable.
b. The Investor covenants and agrees with the Company
that (i) neither Investor nor any of Investor's affiliates nor any person acting
on its or their behalf will at any time offer or sell any Preferred Shares, the
Warrant or any Conversion Stock other than pursuant to registration under the
Securities Act or pursuant to an available exemption therefrom, and (ii) that
such Investor shall report to the Company sales made pursuant to a registration
statement under Section 6 below.
c. The covenants contained in this Section 5 shall
terminate upon the consummation of any consolidation, reorganization or merger
of the Company with and into any other corporation or corporations or a sale,
conveyance or other disposition of all or substantially all of the Company's
property or business.
d. With a view to making available the benefits of
certain rules and regulations of the SEC that may at any time permit the sale of
the restricted securities to the public without registration, the Company agrees
to:
(1) Use its best efforts to make and keep
public information available, as those terms are understood and defined in Rule
144 under the Securities Act;
(2) 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
(3) So long as Investor owns any Preferred
Shares, to furnish to the Investor upon request, a written statement by the
Company as to its compliance with the reporting requirements of said Rule 144
and of the Securities Act and of the Exchange Act, a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents
of the Company as the Investor may reasonably request in availing itself of any
rule or regulation of the SEC allowing the Investor to sell any such securities
without registration.
6. Registration Rights.
a. Registration of Shares. The Company shall file
with the SEC, as promptly as practicable following the Closing, a registration
statement under the Securities Act covering the resale to the public by the
Investor of the Conversion Stock (the "Registration Statement"). The Company's
obligation to register the Conversion Stock shall include any shares of Common
Stock issued as an in-kind dividend on the Preferred Shares. The Company shall
use its best efforts to cause the Registration Statement to be declared
effective by the SEC as soon as practicable after the Closing, but in any event
within 120 days following Closing (See Section 6.g for penalties). The Company
shall cause the Registration Statement to remain effective until the earlier of
two (2) years from the Closing Date or such time as all Conversion Stock may be
sold under Rule 144 within a ninety (90) day period (assuming exercise of all
Warrants and conversion of all Preferred Shares) or such earlier time as all of
the Conversion Stock covered by the Registration Statement has been sold
pursuant thereto (the "Registration Period").
b. Limitations on Registration Rights.
(1) The Company may, by written notice to the
Investor, suspend (for up to a total of thirty (30) days within any twelve-month
period) the Registration Statement after effectiveness and require that the
Investor immediately cease sales of shares pursuant to the Registration
Statement, in the event and during such period as the Company determines that
the existence of any fact or the happening of any event (including without
limitation pending negotiations relating to, or the consummation of, a
transaction or the occurrence of any other event) would require additional
disclosure of material information by the Company in the Registration Statement
the confidentiality of which the Company has a business purpose to preserve or
which fact or event would render the Company unable to comply with SEC
requirements (in either case, a "Suspension Event"). In the case of any
Suspension Event occurring prior to and delaying the filing of the Registration
Statement, the Company shall be required to keep the Registration Statement
effective until the earlier of (x) such time as all of the shares offered
thereby have been disposed of in accordance with the intended methods of
distribution set forth in the Registration Statement or (y) the period required
by Section 6.a above plus an extended period equal to the number of days during
which any such suspension was in effect.
(2) If the Company delays or suspends the
Registration Statement or requires the Investor to cease sales of shares
pursuant to paragraph (1) above, the Company shall, as promptly as practicable
following the termination of the circumstance which entitled the Company to do
so, take such actions as may be necessary to file or reinstate the effectiveness
of the Registration Statement and/or give written notice to all Investors
authorizing them to resume sales pursuant to the Registration Statement. If as a
result thereof the prospectus included in the Registration Statement has
been amended to comply with the requirements of the Securities Act, the Company
shall enclose such revised prospectus with the notice to Investor given pursuant
to this paragraph (2), and the Investor shall make no offers or sales of shares
pursuant to the Registration Statement other than by means of such revised
prospectus.
c. Registration Procedures.
(1) In connection with the filing by the
Company of the Registration Statement, the Company shall furnish to each
Investor a copy of the prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act and such additional
copies as are reasonably requested by the Investor.
(2) The Company shall use its best efforts to
register or qualify the Conversion Stock covered by the Registration Statement
under the securities laws of such states as the Investor shall reasonably
request; provided however that the Company shall not be required in connection
with this paragraph (2) to qualify as a foreign corporation or execute a general
consent to service of process in any jurisdiction.
(3) If the Company has delivered final
prospectuses to the Investor and after having done so the prospectus is amended
to comply with the requirements of the Securities Act, the Company shall
promptly notify the Investor and, if requested by the Company, the Investor
shall immediately cease making offers or sales of shares under the Registration
Statement and return all prospectuses to the Company. The Company shall promptly
provide the Investor with revised prospectuses and, following receipt of the
revised prospectuses, the Investor shall be free to resume making offers and
sales under the Registration Statement.
(4) The Company shall pay the expenses
incurred by it in complying with its obligations under this Section 6, including
all registration and filing fees, exchange listing fees, fees and expenses of
counsel for the Company, and fees and expenses of accountants for the Company,
but excluding (x) any brokerage fees, selling commissions or underwriting
discounts incurred by the Investor in connection with sales under the
Registration Statement and (y) the fees and expenses of any counsel retained by
Investor.
d. Requirements of Investor. The Company shall not be
required to include any Conversion Stock in the Registration Statement unless
the Investor owning such shares furnishes to the Company in writing such
information regarding such Investor and the proposed sale of Conversion Stock by
such Investor as the Company may reasonably request in writing in connection
with the Registration Statement or as shall be required in connection therewith
by the SEC or any state securities law authorities.
e. Assignment of Rights. An Investor may assign any
of its rights under this Section 6 in connection with the transfer of some or
all of its Preferred Shares or Conversion Stock to any party so long as the
transfer complies with the provisions of Section 4 of this Agreement.
f. Indemnification.
(1) To the extent permitted by law, the
Company shall indemnify and hold each Investor, the partners or officers,
directors and stockholders of each Investor, legal counsel and accountants for
each Investor, any underwriter (as defined in the Securities Act) for such
Investor and each person, if any, who controls such Investor or underwriter
within the meaning of the Securities
Act or the Exchange Act, against any losses, claims, damages or liabilities
(joint or several) to which they may become subject under the Securities Act,
the Exchange Act or any state securities laws, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations in
connection with the Registration Statement (collectively a "Violation"): (i) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the Securities Act,
the Exchange Act, any state securities laws or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any state securities
laws; and the Company will reimburse each such Investor, underwriter or
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained
in this subsection 6.f(l) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any such case for any such loss,
claim, damage, liability or action to the extent that it arises out of or is
based upon a Violation that occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Investor, underwriter or controlling person; provided
further, however, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Investor or
underwriter, or any person controlling such Investor or underwriter, from whom
the person asserting any such losses, claims, damages or liabilities purchased
shares in the offering, if the Company shall have furnished to the Investor a
revised prospectus (by amendment or supplement) which cures the defect giving
rise to such loss, claim, damage or liability and if a copy of such revised
prospectus (as then amended or supplemented) was not sent or given by or on
behalf of such Investor or underwriter to such person, if required by law so to
have been delivered, at or prior to the written confirmation of the sale of the
shares to such person.
(2) To the extent permitted by law, each
selling Investor shall indemnify and hold harmless the Company, each of its
directors, each of its officers who has signed the registration statement, each
person, if any, who controls the Company within the meaning of the Securities
Act, legal counsel and accountants for the Company, any underwriter, any other
Investor selling securities in such registration statement and any controlling
person of any such underwriter or other Investor, against any losses, claims,
damages or liabilities (joint or several) to which any of the foregoing persons
may become subject, under the Securities Act, the Exchange Act or any state
securities laws, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Investor expressly for use in connection with such registration; and each such
Investor will reimburse any person intended to be indemnified pursuant to this
subsection 6.f(2), for any legal or other expenses reasonably incurred by such
person in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the indemnity agreement
contained in this subsection 6.f(2) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Investor (which consent shall
not be unreasonably withheld), provided that in no event shall any indemnity in
the aggregate under this subsection 6.f(2) exceed the gross proceeds from the
offering received by such Investor.
(3) Promptly after receipt by an indemnified
party under this Section 6.f of notice of the commencement of any action
(including any governmental action), such
indemnified party will, if a claim in respect thereof is to be made against any
indemnifying party under this Section 6.f, deliver to the indemnifying party a
written notice of the commencement thereof and the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties. The
failure to deliver written notice to the indemnifying party within a reasonable
time of the commencement of any such action, if prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 6.f, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section 6.f.
(4) If the indemnification provided for in
this Section 6.f is held by a court of competent jurisdiction to be unavailable
to an indemnified party with respect to any loss, liability, claim, damage or
expense referred to herein, then the indemnifying party, in lieu of indemnifying
such indemnified party hereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relevant intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
(5) Notwithstanding the foregoing, to the
extent that the provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with the underwritten public
offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
g. Payments by the Company. The Company shall use its
best efforts to cause the Registration Statement required to be filed pursuant
to Section 6.a hereof to become effective as soon as practicable, but in no
event later than the 120th day after the Closing Date (the "Registration
Deadline"). If (i) the Registration Statement(s) covering the Conversion Stock
required to be filed by the Company pursuant to Section 6.a hereof is not
declared effective by the SEC on or before the Registration Deadline, (ii) after
the Registration Statement has been declared effective by the SEC and prior to
the expiration of the Registration Period, sales of all the Registrable
Securities cannot be made pursuant to the Registration Statement or (iii) the
Common Stock is not listed or included for quotation on the Nasdaq National
Market, the Nasdaq SmallCap Market, the New York Stock Exchange, the America
stock Exchange, the OTC Bulletin Board, or such other exchange or market as the
Company may designate and qualify under as its principal exchange at any time
during the Registration Period, then the Company will make payments to the
Investor in such amounts and at such times as shall be determined pursuant to
this Section 6.g as liquidated damages to the Investor by reason of any such
delay in or reduction of their ability to sell the Conversion Stock. The Company
shall pay to each holder an amount equal to (i) the Purchase Price of the
Preferred Shares then held by such holder (and, in the case of holders of
Conversion Stock, the Purchase Price of Preferred Shares from which such
Conversion Stock was converted) (in each case, the "Aggregate Share Price"),
multiplied by (ii) one percent, multiplied by (iii) the sum of (x) the number of
months (pro rated for partial months) after the Registration Deadline and prior
to the date the Registration Statement filed pursuant to Section 6.a is declared
effective by the SEC, plus (y) the number of months (prorated for partial
months) prior to the expiration of the Registration Period that sales of all the
Registrable Securities cannot be made pursuant
to the Registration Statement after the Registration Statement has been declared
effective (including, without limitation, when sales cannot be made by reason of
the Company's failure to properly supplement or amend the prospectus included
therein in accordance with the terms of this Agreement or otherwise); provided,
however, that there shall be excluded from each such period any delays which are
solely attributable to (i) the Investor's failure to timely provide information
to the Company in accordance with Section 6.d hereof, or (ii) changes required
by the Investor in the Registration Statement with respect to information
relating to the Investor, including, without limitation, changes to the plan of
distribution. For example, if the Registration Statement is not effective by the
Registration Deadline, the Company would pay $10,000 for each $1,000,000 of
Aggregate Share Price for each month after the Registration Deadline until the
Registration Statement becomes effective (prorated for partial months). Such
amount shall be paid in cash with fifteen days after the end of each period that
gives rise to such obligation. If any such payments of cash are not timely made,
each Investor holding Preferred Shares can elect to add the amount of such
payments to the stated value of the Preferred Stock then held by such Investor
and such amounts shall thereafter be convertible into Common Stock at the
"Conversion Price" (as defined in the Articles of Amendment).
7. Conditions Precedent to Investor's Obligations. The
obligations of Investor under subsection 1.a of this Agreement are subject to
the fulfillment on or before the Closing of each of the following conditions,
unless expressly waived in writing by the Investor:
a. The representations and warranties of the Company
contained in Section 3 shall be true on and as of the Closing with the same
effect as though such representations and warranties had been made on and as of
the date of such Closing, except for representations and warranties made as of a
particular date, which shall be true and correct as of such date.
b. The Company shall have performed and complied 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.
c. The President of the Company shall deliver to
Investor at the Closing a certificate stating that the conditions specified in
Sections 7.a and 7.b have been fulfilled and stating that there shall have been
no material adverse change in the business, affairs, operations, properties,
assets or financial condition of the Company since the date of this Agreement.
d. The Company shall have caused the Articles of
Amendment to be filed with the Secretary of State of the State of North Carolina
in accordance with the laws thereof.
e. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction which
prohibits the consummation of any of the transactions contemplated by this
Agreement.
f. The Company shall have delivered to Investor a
certificate representing the Preferred Shares, duly registered on the books of
the Company in the name of the Investor.
g. The Company shall have delivered to Investor the
Warrant.
h. Investor shall have received from Xxxxxx Xxxxxxx
Xxxxx & Xxxxxx LLP, counsel for the Company, an opinion, dated as of the Closing
Date, in form and substance reasonably satisfactory to counsel for the Xxxxxxxxx
& Company LLC.
8. Conditions Precedent to the Company's Obligations. The
obligations of the Company to Investor under this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions by the
Investor, unless expressly waived in writing by the Company:
a. The representations and warranties of the Investor
contained in Section 4 shall be true on and as of the Closing with the same
effect as though such representations and warranties had been made on and as of
the date of such Closing, except for representations and warranties made as of a
particular date, which shall be true and correct as of such date.
b. The Investor shall have performed and complied
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.
c. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction which
prohibits the consummation of any of the transactions contemplated by this
Agreement.
d. The Investor shall have delivered the aggregate
Purchase Price for the Preferred Shares and the Warrant.
9. Fees and Expenses. Each of Investor and the Company agrees
to pay its own expenses incident to the performance of its obligations
hereunder, including, but not limited to the fees, expenses and disbursements of
such party's counsel, except as is otherwise expressly provided in this
Agreement.
10. Survival of the Representations, Warranties, etc. The
respective representations, warranties, and agreements made herein by or on
behalf of the parties hereto shall remain in full force and effect for a period
of two years from the Closing Date, regardless of any investigation made by or
on behalf of the other party to this Agreement or any officer, director or
employee of, or person controlling or under common control with, such party and
will survive delivery of and payment for the Preferred Shares and any Conversion
Stock issuable hereunder.
11. Termination.
a. This Agreement may be terminated and the
transactions contemplated by this Agreement may be abandoned at any time prior
to the Closing as follows:
(i) by mutual written consent of the Company
and the Investor; or
(ii) by either the Company or the Investor if
the Closing shall not have occurred on or before April 30, 2000 (the
"Termination Date"); provided, however, that the right to terminate this
Agreement under this Section 11 shall not be available to any party whose
failure to fulfill any obligation under this Agreement has been the cause of, or
resulted in, the failure of the Closing to occur on or before the Termination
Date.
b. In the event of termination of this Agreement by
either the Company or Investor as provided in this Section 11, this Agreement
shall forthwith become void and have no effect, without any liability or
obligation on the part of the Company or Investor, other than the provisions of
this Section 11 and Section 13, and except to the extent that such termination
results from the willful and material breach by a party of any of its
representations, warranties, covenants or agreements set forth in this
Agreement.
12. Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon delivery by confirmed facsimile or reliable international
courier service or upon personal delivery to the party to be notified.
13. Miscellaneous.
a. This Agreement may be executed in one or more
counterparts and it is not necessary that signatures of all parties appear on
the same counterpart, but such counterparts together shall constitute but one
and the same agreement.
b. This Agreement shall inure to the benefit of and
be binding upon the parties hereto, their respective successors and assigns.
c. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware without regard to
principles of conflict of laws.
d. The provisions of this Agreement are severable,
and if any clause or provision hereof shall be held invalid, illegal or
unenforceable in whole or in part, such invalidity or unenforceability shall not
in any manner affect any other clause or provision of this Agreement.
e. The headings of the sections of this document have
been inserted for convenience of reference only and shall not be deemed to be a
part of this Agreement.
f. This Agreement (including the terms and conditions
of the Articles of Amendment relating to the Preferred Shares) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, between the parties hereto with respect to the subject matter
of this Agreement and is not intended to confer upon any person other than the
parties hereto any rights or remedies hereunder.
g. The term "affiliate" is used herein as defined in
Rule 144(a)(1) under the Securities Act.
h. Except as otherwise expressly set forth in this
Agreement, the observance of any term of this Agreement may be waived (either
generally or in a particular in-stance and either retroactively or
prospectively), with the written consent of the Company and the Investor.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement, all as of the day and year first above written.
PHARMANETICS, INC.
By:______________________
Name: Xxxx X. Xxxxxxxxxx
Title: President and CEO
No. of Preferred Shares INVESTOR
--------------------
__________________________
(Print Name)
By:_______________________
Name:
Title:
