SECURITIES PURCHASE AGREEMENT
Exhibit 10.24
This Securities Purchase Agreement (this “Agreement”) is dated as of September 25,
2009, by and among Cardica, Inc., a Delaware corporation (the “Company”), and each purchaser
identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser”
and collectively, the “Purchasers”).
Recitals
A. The Company and each Purchaser is executing and delivering this Agreement in reliance upon
the exemption from securities registration afforded by Section 4(2) of the Securities Act of 1933,
as amended (the “Securities Act”), and Rule 506 of Regulation D (“Regulation D”) as promulgated by
the United States Securities and Exchange Commission (the “Commission”) under the Securities Act.
B. Each Purchaser, severally and not jointly, wishes to purchase, and the Company wishes to
sell, upon the terms and conditions stated in this Agreement, (i) that aggregate number of shares
of the common stock, par value $0.001 per share (the “Common Stock”), of the Company, set forth
below such Purchaser’s name on the signature page of this Agreement (which aggregate amount for all
Purchasers together shall be 8,142,082 shares of Common Stock and shall be collectively referred to
herein as the “Shares”) and (ii) warrants, in substantially the form attached hereto as Exhibit A
(the “Warrants”), to acquire up to that number of additional shares of Common Stock equal to 50% of
the number of Shares purchased by such Purchaser (rounded up to the nearest whole share) (the
shares of Common Stock issuable upon exercise of or otherwise pursuant to the Warrants collectively
are referred to herein as the “Warrant Shares”).
C. The Shares, the Warrants and the Warrant Shares collectively are referred to herein as the
“Securities”.
D. Contemporaneously with the execution and delivery of this Agreement, the parties hereto are
executing and delivering a Registration Rights Agreement, substantially in the form attached hereto
as Exhibit B (the “Registration Rights Agreement”), pursuant to which, among other things, the
Company will agree to provide certain registration rights with respect to the Shares and the
Warrant Shares under the Securities Act and the rules and regulations promulgated thereunder and
applicable state securities laws.
Now, Therefore, In Consideration of the mutual covenants contained in this
Agreement, and for other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Company and the Purchasers hereby agree as follows:
1.1 DEFINITIONS
(a) Definitions. In addition to the terms defined elsewhere in this Agreement, for all
purposes of this Agreement, the following terms shall have the meanings indicated in this
Section 1.1:
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“Action” means any action, suit, inquiry, notice of violation, proceeding (including any
partial proceeding such as a deposition) or investigation pending or, to the Company’s Knowledge,
threatened in writing (or otherwise) against the Company or any of their respective properties or
any officer, director or employee of the Company acting in his or her capacity as an officer,
director or employee before or by any federal, state, county, local or foreign court, arbitrator,
governmental or administrative agency, regulatory authority, stock market, stock exchange or
trading facility.
“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly
through one or more intermediaries, Controls, is controlled by or is under common control with such
Person, as such terms are used in and construed under Rule 144. With respect to a Purchaser, any
investment fund or managed account that is managed on a discretionary basis by the same investment
manager as such Purchaser will be deemed to be an Affiliate of such Purchaser.
“Agreement” shall have the meaning ascribed to such term in the Preamble.
“Business Day” means a day, other than a Saturday or Sunday, on which banks in New York City
are open for the general transaction of business.
“Buy-In” has the meaning set forth in Section 4.1(f).
“Buy-In Price” has the meaning set forth in Section 4.1(f).
“Closing” means the closing of the purchase by the Purchasers listed on Annex A hereto and
sale by the Company of Shares and Warrants to such Purchasers pursuant to this Agreement on the
Closing Date as provided in Section 2.1(a) hereof.
“Closing Bid Price” means, for any security as of any date, the last closing price for such
security on the Principal Trading Market, as reported by Bloomberg, or, if the Principal Trading
Market begins to operate on an extended hours basis and does not designate the closing bid price
then the last bid price of such security prior to 4: 00 p.m., New York City Time, as reported by
Bloomberg, or, if the Principal Trading Market is not the principal securities exchange or trading
market for such security, the last closing price of such security on the principal securities
exchange or trading market where such security is listed or traded as reported by Bloomberg, or if
the foregoing do not apply, the last closing price of such security in the over-the-counter market
on the electronic bulletin board for such security as reported by Bloomberg, or, if no closing bid
price is reported for such security by Bloomberg, the average of the bid prices of any market
makers for such security as reported in the “pink sheets” by Pink Sheets LLC (formerly the National
Quotation Bureau, Inc.). If the Closing Bid Price cannot be calculated for a security on a
particular date on any of the foregoing bases, the Closing Bid Price of such security on such date
shall be the fair market value as mutually determined by the Company and the holder. If the Company
and the holder are unable to agree upon the fair market value of such security, then such dispute
shall be resolved pursuant to Section 11 of the Warrants. All such determinations shall be
appropriately adjusted for any stock dividend, stock split, stock combination or other similar
transaction during the applicable calculation period.
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“Closing Date” means the second (2nd) Trading Day after the date on which this
Agreement has been executed and delivered by all parties hereto, unless on such date the conditions
set forth in Sections 2.1, 2.2, 5.1 and 5.2 (other than those to be satisfied at the Closing) shall
not have been satisfied or waived, in which case the Closing Date shall be on the second
(2nd) Trading Day after the date on which the last to be satisfied or waived of the
conditions set forth in Sections 2.1, 2.2, 5.1 and 5.2 (other than those to be satisfied at the
Closing) shall have been satisfied or waived.
“Common Stock” has the meaning set forth in the Recitals, and also includes any securities
into which the Common Stock may hereafter be reclassified or changed.
“Common Stock Equivalents” means any securities of the Company which would entitle the holder
thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred
stock, rights, options, warrants or other instrument that is at any time convertible into or
exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock or other
securities that entitle the holder to receive, directly or indirectly, Common Stock.
“Company Counsel” means Xxxxxx Godward Kronish LLP.
“Company Deliverables” has the meaning set forth in Section 2.2(a).
“Company’s Knowledge” means with respect to any statement made to the knowledge of the
Company, that the statement is based upon the actual knowledge of the officers of the Company
having responsibility for the matter or matters that are the subject of the statement.
“Control” (including the terms “controlling”, “controlled” by or “under common control with”)
means the possession, direct or indirect, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
“Disclosure Materials” has the meaning set forth in Section 3.1(h).
“Effective Date” means the date on which the initial Registration Statement required by
Section 2(a) of the Registration Rights Agreement is first declared effective by the Commission.
“Effectiveness Deadline” means the date on which the initial Registration Statement is
required to be declared effective by the Commission under the terms of the Registration Rights
Agreement.
“Environmental Laws” has the meaning set forth in Section 3.1(l).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor
statute, and the rules and regulations promulgated thereunder.
“GAAP” means U.S. generally accepted accounting principles, as applied by the Company.
“Intellectual Property” has the meaning set forth in Section 3.1(r).
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“Irrevocable Transfer Agent Instructions” means, with respect to the Company, the Irrevocable
Transfer Agent Instructions, in the form of Exhibit E, executed by the Company and delivered to and
acknowledged in writing by the Transfer Agent.
“Lien” means any lien, charge, claim, encumbrance, security interest, right of first refusal,
preemptive right or other restrictions of any kind.
“Material Adverse Effect” means a material adverse effect on the results of operations,
assets, business or financial condition of the Company, except that any of the following, either
alone or in combination, shall not be deemed a Material Adverse Effect: (i) effects caused by
changes or circumstances affecting general market conditions in the U.S. economy or which are
generally applicable to the industry in which the Company operates, (ii) effects resulting from or
relating to the announcement or disclosure of the sale of the Securities or other transactions
contemplated by this Agreement, or (iii) effects caused by any event, occurrence or condition
resulting from or relating to the taking of any action in accordance with this Agreement.
“Material Contract” means any contract of the Company that has been filed or was required to
have been filed as an exhibit to the SEC Reports pursuant to Item 601(b)(4) or Item 601(b)(10) of
Regulation S-K.
“Material Permits” has the meaning set forth in Section 3.1(p).
“New York Courts” means the state and federal courts sitting in the City of New York, Borough
of Manhattan.
“Outside Date” means October 23, 2009.
“Person” means an individual, corporation, partnership, limited liability company, trust,
business trust, association, joint stock company, joint venture, sole proprietorship,
unincorporated organization, governmental authority or any other form of entity not specifically
listed herein.
“Principal Trading Market” means the Trading Market on which the Common Stock is primarily
listed on and quoted for trading, which, as of the date of this Agreement and the Closing Date,
shall be the Nasdaq Global Market.
“Proceeding” means an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition), whether commenced or
threatened.
“Purchase Price” means $1.2525 per unit.
“Purchaser Deliverables” has the meaning set forth in Section 2.2(b).
“Registration Rights Agreement” has the meaning set forth in the Recitals.
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“Registration Statement” means a registration statement meeting the requirements set forth in
the Registration Rights Agreement and covering the resale by the Purchasers of the Registrable
Securities (as defined in the Registration Rights Agreement).
“Required Approvals” has the meaning set forth in Section 3.1(e).
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same effect as such Rule.
“SEC Reports” has the meaning set forth in Section 3.1(h).
“Secretary’s Certificate” has the meaning set forth in Section 2.2(a)(vii).
“Securities Act” means the Securities Act of 1933, as amended.
“Short Sales” include, without limitation, (i) all “short sales” as defined in Rule 200
promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all
types of direct and indirect stock pledges, forward sale contracts, options, puts, calls, short
sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and
similar arrangements (including on a total return basis), and (ii) sales and other transactions
through non-U.S. broker dealers or foreign regulated brokers.
“Subscription Amount” means with respect to each Purchaser, the aggregate amount to be paid
for the Shares and the related Warrants purchased hereunder as indicated on such Purchaser’s
signature page to this Agreement next to the heading “Aggregate Purchase Price (Subscription
Amount)”.
“Subsidiary” means any entity in which the Company, directly or indirectly, owns capital stock
or holds an equity or similar interest.
“Trading Affiliate” has the meaning set forth in Section 3.2(h).
“Trading Day” means (i) a day on which the Common Stock is listed or quoted and traded on its
Principal Trading Market (other than the OTC Bulletin Board), or (ii) if the Common Stock is not
listed on a Trading Market (other than the OTC Bulletin Board), a day on which the Common Stock is
traded in the over-the-counter market, as reported by the OTC Bulletin Board, or (iii) if the
Common Stock is not quoted on any Trading Market, a day on which the Common Stock is quoted in the
over-the-counter market as reported in the “pink sheets” by Pink Sheets LLC (or any similar
organization or agency succeeding to its functions of reporting prices); provided , that in the
event that the Common Stock is not listed or quoted as set forth in (i), (ii) and (iii) hereof,
then Trading Day shall mean a Business Day.
“Trading Market” means whichever of the New York Stock Exchange, the American Stock Exchange,
the Nasdaq Global Select Market, the Nasdaq Global Market, the Nasdaq Capital Market or the OTC
Bulletin Board on which the Common Stock is listed or quoted for trading on the date in question.
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“Transaction Documents” means this Agreement, the schedules and exhibits attached hereto, the
Warrants, the Registration Rights Agreement, the Irrevocable Transfer Agent Instructions and any
other documents or agreements executed in connection with the transactions contemplated hereunder.
“Transfer Agent” means Computershare Trust Company, N.A., or any successor transfer agent for
the Company.
“Warrants” has the meaning set forth in the Recitals to this Agreement.
1.2 PURCHASE AND SALE
(a) Closing.
(i) Amount. Subject to the terms and conditions set forth in this Agreement, at the Closing,
the Company shall issue and sell to each Purchaser listed on Annex A hereto, and each Purchaser
listed on Annex A hereto shall, severally and not jointly, purchase from the Company, such number
of Shares of Common Stock equal to the quotient resulting from dividing (i) the aggregate purchase
price for such Purchaser, as indicated below such Purchaser’s name on the signature page of this
Agreement (the “Subscription Amount”) by (ii) the Purchase Price, rounded down to the nearest whole
Share. In addition, each Purchaser listed on Annex A hereto shall receive a Warrant to purchase a
number of Warrant Shares equal to 50% of the number of Shares purchased by such Purchaser, as
indicated below such Purchaser’s name on the signature page to this Agreement, rounded up to the
nearest whole share. The Warrants shall have an exercise price equal to $1.45 per Warrant Share.
(ii) Closing. The Closing of the purchase and sale of the Shares and Warrants shall take place
at the offices of Company Counsel, 0000 Xxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx on the Closing Date
or at such other locations or remotely by facsimile transmission or other electronic means as the
parties may mutually agree.
(iii) Form of Payment. On the Closing Date, (i) each Purchaser listed on Annex A hereto shall
wire its Subscription Amount, in United States dollars and in immediately available funds, in the
amount set forth as the “Aggregate Purchase Price (Subscription Amount)” indicated below such
Purchaser’s name on the applicable signature page hereto by wire transfer to the Company’s account,
as set forth in instructions previously provided to the Purchasers, (ii) the Company shall
irrevocably instruct the Transfer Agent to deliver to each Purchaser listed on Annex A hereto one
or more stock certificates, free and clear of all restrictive and other legends except as expressly
provided in Section 4.1(b) hereof, evidencing the number of Shares such Purchaser is purchasing as
is set forth on such Purchaser’s signature page to this Agreement next to the heading “Number of
Shares to be Acquired”, within three (3) Business Days after the Closing and (iii) the Company
shall issue to each Purchaser listed on Annex A hereto a Warrant pursuant to which such Purchaser
shall have the right to acquire such number of Warrant Shares as is set forth on such Purchaser’s
signature page to this Agreement next to the heading “Underlying Shares Subject to Warrant”, in the
case of clauses (ii) and (iii), duly executed on behalf of the Company and registered in the name
of such Purchaser.
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(b) Closing Deliveries. (a) On or prior to the Closing with respect to the Purchasers listed
on Annex A hereto the Company shall issue, deliver or cause to be delivered to such Purchaser the
following (the “Company Deliverables”):
(1) this Agreement, duly executed by the Company;
(2) facsimile copies of one or more stock certificates, free and clear of all restrictive and
other legends except as provided in Section 4.1(b) hereof, evidencing the Shares subscribed for by
such Purchaser hereunder, registered in the name of such Purchaser as set forth on the Stock
Certificate Questionnaire included as Exhibit C-2 hereto (the “Stock Certificates”), with the
original Stock Certificates delivered within three (3) Business Days of Closing;
(3) a Warrant, executed by the Company and registered in the name of such Purchaser as set
forth on the Stock Certificate Questionnaire included as Exhibit C-2 hereto, pursuant to which such
Purchaser shall have the right to acquire such number of Warrant Shares equal to 50% of the number
of Shares issuable to such Purchaser pursuant to Section 2.2(a)(ii), rounded up to the nearest
whole share, on the terms set forth therein;
(4) a legal opinion of Company Counsel, dated as of the Closing Date and in the form attached
hereto as Exhibit D, executed by such counsel and addressed to such Purchasers;
(5) the Registration Rights Agreement, duly executed by the Company;
(6) duly executed Irrevocable Transfer Agent Instructions acknowledged in writing by the
Transfer Agent;
(7) a certificate of the Secretary of the Company (the “Secretary’s Certificate”), dated as of
the Closing Date, (a) certifying the resolutions adopted by the Board of Directors of the Company
or a duly authorized committee thereof approving the transactions contemplated by this Agreement
and the other Transaction Documents and the issuance of the Securities, (b) certifying the current
versions of the certificate of incorporation, as amended, and by-laws of the Company and
(c) certifying as to the signatures and authority of persons signing the Transaction Documents and
related documents on behalf of the Company, in the form attached hereto as Exhibit F;
(8) the Compliance Certificate referred to in Section 5.1(g) or Section 5.3(g), as applicable;
(9) a certificate evidencing the formation and good standing of the Company issued by the
Secretary of State of the State of Delaware, as of a date within five (5) days of the Closing Date;
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(10) a certificate evidencing the Company’s qualification as a foreign corporation and good
standing issued by the Secretary of State of the State of California, as of a date within ten
(10) days of the Closing Date; and
(11) a certified copy of the Certificate of Incorporation, as certified by the Secretary of
State of the State of the State of Delaware, as of a date within ten (10) days of the Closing Date.
(ii) On or prior to the Closing with respect to the Purchasers listed on Annex A hereto such
Purchaser shall deliver or cause to be delivered to the Company the following (the “Purchaser
Deliverables”):
(1) this Agreement, duly executed by such Purchaser;
(2) its Subscription Amount, in United States dollars and in immediately available funds, in
the amount set forth as the “Aggregate Purchase Price (Subscription Amount)” indicated below such
Purchaser’s name on the applicable signature page hereto by wire transfer to the Company’s account
as previously provided to the Purchasers;
(3) the Registration Rights Agreement, duly executed by such Purchaser;
(4) a fully completed and duly executed Selling Stockholder Questionnaire in the form attached
as Annex B to the Registration Rights Agreement; and
(5) a fully completed and duly executed Accredited Investor Questionnaire and Stock
Certificate Questionnaire in the forms attached hereto as Exhibits C-1 and C-2, respectively.
1.3 REPRESENTATIONS AND WARRANTIES
(a) Representations and Warranties of the Company. The Company hereby represents and warrants
as of the date hereof and the Closing Date (except for the representations and warranties that
speak as of a specific date, which shall be made as of such date), to each of the Purchasers that,
except as set forth in the Schedules delivered herewith or disclosed in the SEC Reports:
(i) Subsidiaries. The Company has no direct or indirect Subsidiaries.
(ii) Organization and Qualification. The Company is an entity duly incorporated or otherwise
organized, validly existing and in good standing under the laws of the State of Delaware, with the
requisite corporate power and authority to own or lease and use its properties and assets and to
carry on its business as currently conducted. The Company is not in violation of any of the
provisions of its certificate of incorporation or bylaws. The Company is duly qualified to conduct
business and is in good standing as a foreign corporation or other entity in each jurisdiction in
which the nature of the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as the case may be,
would not have a Material Adverse Effect.
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(iii) Authorization; Enforcement; Validity. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by each of the Transaction
Documents to which it is a party and otherwise to carry out its obligations hereunder and
thereunder. The execution and delivery of each of the Transaction Documents to which it is a party
by the Company and the consummation by it of the transactions contemplated hereby and thereby
(including, but not limited to, the sale and delivery of the Shares and the Warrants and the
reservation for issuance and the subsequent issuance of the Warrant Shares upon exercise of the
Warrants) have been duly authorized by all necessary corporate action on the part of the Company,
and no further corporate action is required by the Company, its Board of Directors or its
stockholders in connection therewith other than in connection with the Required Approvals. Each of
the Transaction Documents to which it is a party has been (or upon delivery will have been) duly
executed by the Company and is, or when delivered in accordance with the terms hereof, will
constitute the legal, valid and binding obligation of the Company enforceable against the Company
in accordance with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors’ rights and remedies or by other equitable
principles of general application. Except as set forth on Schedule 3.1(c) hereto, there are no
shareholder agreements, voting agreements, or other similar arrangements with respect to the
Company’s capital stock to which the Company is a party or, to the Company’s Knowledge, between or
among any of the Company’s stockholders.
(iv) No Conflicts. The execution, delivery and performance by the Company of the Transaction
Documents to which it is a party and the consummation by the Company of the transactions
contemplated hereby or thereby (including, without limitation, the issuance of the Shares and
Warrants and the reservation for issuance and issuance of the Warrant Shares) do not and will not
(i) conflict with or violate any provisions of the Company’s certificate of incorporation or bylaws
or otherwise result in a violation of the organizational documents of the Company, (ii) conflict
with, or constitute a default (or an event that with notice or lapse of time or both would become a
default) under, result in the creation of any Lien upon any of the properties or assets of the
Company or give to others any rights of termination, amendment, acceleration or cancellation (with
or without notice, lapse of time or both) of, any Material Contract or (iii) result in a violation
of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court
or governmental authority to which the Company is subject or decree (including federal and state
securities laws and regulations and the rules and regulations, assuming the correctness of the
representations and warranties made by the Purchasers herein, of any self regulatory organization
to which the Company or its securities are subject , including all applicable Trading Markets), or
by which any property or asset of the Company is bound or affected), except in the case of clause
(iii) such as would not, individually or in the aggregate, have a Material Adverse Effect.
(v) Filings, Consents and Approvals. The Company is not required to obtain any consent,
waiver, authorization or order of, give any notice to, or make any filing or registration with, any
court or other federal, state, local or other governmental authority or other Person in connection
with the execution, delivery and performance by the Company of the Transaction Documents (including
the issuance of the Securities), other than (i) the filing with the Commission of one or more
Registration Statements in accordance with the requirements of the Registration Rights Agreement,
(ii) filings required by applicable state securities laws,
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(iii) the filing of a Notice of Sale of Securities on Form D with the Commission under
Regulation D of the Securities Act, (iv) the filing of any requisite notices and/or application(s)
to the Principal Trading Market for the issuance and sale of the Common Stock and the Warrants and
the listing of the Common Stock for trading or quotation, as the case may be, thereon in the time
and manner required thereby, (v) the filings required in accordance with Section 4.10 of this
Agreement and (vi) those that have been made or obtained prior to the date of this Agreement
(collectively, the “Required Approvals”).
(vi) Issuance of the Securities. The Shares have been duly authorized and, when issued and
paid for in accordance with the terms of the Transaction Documents, will be duly and validly
issued, fully paid and nonassessable and free and clear of all Liens, other than restrictions on
transfer provided for in the Transaction Documents or imposed by applicable securities laws, and
shall not be subject to preemptive or similar rights. The Warrants have been duly authorized and,
when issued and paid for in accordance with the terms of the Transaction Documents, will be duly
and validly issued, free and clear of all Liens, other than restrictions on transfer provided for
in the Transaction Documents or imposed by applicable securities laws, and shall not be subject to
preemptive or similar rights of shareholders. The Warrant Shares issuable upon exercise of the
Warrants have been duly authorized and, when issued and paid for in accordance with the terms of
the Transaction Documents and the Warrants will be duly and validly issued, fully paid and
nonassessable, free and clear of all Liens, other than restrictions on transfer provided for in the
Transaction Documents or imposed by applicable securities laws, and shall not be subject to
preemptive or similar rights of shareholders. Assuming the accuracy of the representations and
warranties of the Purchasers in this Agreement, the Shares and the Warrant Shares will be issued in
compliance with all applicable federal and state securities laws. As of the Closing Date, the
Company shall have reserved from its duly authorized capital stock not less than the maximum number
of shares of Common Stock issuable upon exercise of the Warrants (without taking into account any
limitations on the exercise of the Warrants set forth in the Warrants). The Company shall, so long
as any of the Warrants are outstanding, take all action necessary to reserve and keep available out
of its authorized and unissued capital stock, solely for the purpose of effecting the exercise of
the Warrants, the number of shares of Common Stock issuable upon exercise of the Warrants (without
taking into account any limitations on the exercise of the Warrants set forth in the Warrants).
(vii) Capitalization. The number of shares and type of all authorized, issued and outstanding
capital stock, options and other securities of the Company (whether or not presently convertible
into or exercisable or exchangeable for shares of capital stock of the Company) has been set forth
in the SEC Reports and has changed since the date set forth in such SEC Reports only to reflect
stock option exercises and grants and warrant exercises that have not, individually or in the
aggregate, had a material affect on the issued and outstanding capital stock, options and other
securities. All of the outstanding shares of capital stock of the Company are duly authorized,
validly issued, fully paid and non-assessable, have been issued in compliance in all material
respects with all applicable federal and state securities laws, and none of such outstanding shares
was issued in violation of any preemptive rights or similar rights to subscribe for or purchase any
capital stock of the Company. Except as set forth in the SEC Reports: (i) No shares of the
Company’s capital stock are subject to preemptive rights or any other similar rights or any liens
or encumbrances suffered or permitted by the Company; (ii) there are no outstanding options,
warrants, scrip, rights to subscribe to, calls or commitments of
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any character whatsoever relating to, or securities or rights convertible into, or exercisable
or exchangeable for, any shares of capital stock of the Company, or contracts, commitments,
understandings or arrangements by which the Company is or may become bound to issue additional
shares of capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls
or commitments of any character whatsoever relating to, or securities or rights convertible into,
or exercisable or exchangeable for, any shares of capital stock of the Company; (iii) there are no
outstanding debt securities, notes, credit agreements, credit facilities or other agreements,
documents or instruments evidencing indebtedness of the Company or by which the Company is or may
become bound; (iv) there are no financing statements securing obligations in any material amounts,
either singly or in the aggregate, filed in connection with the Company; (v) there are no
agreements or arrangements under which the Company is obligated to register the sale of any of
their securities under the Securities Act (except the Registration Rights Agreement); (vi) there
are no outstanding securities or instruments of the Company or which contain any redemption or
similar provisions, and there are no contracts, commitments, understandings or arrangements by
which the Company is or may become bound to redeem a security of the Company; (vii) there are no
securities or instruments containing anti-dilution or similar provisions that will be triggered by
the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or
“phantom stock” plans or agreements or any similar plan or agreement; and (ix) the Company has no
liabilities or obligations required to be disclosed in the SEC Reports but not so disclosed in the
SEC Reports, other than those incurred in the ordinary course of the Company’s businesses and
which, individually or in the aggregate, do not or would not have a Material Adverse Effect.
(viii) SEC Reports. The Company has filed all reports, schedules, forms, statements and other
documents required to be filed by it under the Exchange Act, including pursuant to Section 13(a) or
15(d) thereof, for twelve (12) months preceding the date hereof (or such shorter period as the
Company was required by law or regulation to file such material) (the foregoing materials,
including the exhibits thereto and documents incorporated by reference therein, being collectively
referred to herein as the “SEC Reports” and together with this Agreement and the Schedules to this
Agreement (if any), the “Disclosure Materials”), on a timely basis or has received a valid
extension of such time of filing and has filed any such SEC Reports prior to the expiration of any
such extension. As of the date hereof, the Company is not aware of any event occurring on or prior
to the Closing Date (other than the transactions contemplated by the Transaction Documents) that
requires the filing of a Form 8-K after the Closing. As of their respective filing dates, or to the
extent corrected by a subsequent amendment, the SEC Reports complied in all material respects with
the requirements of the Securities Act and the Exchange Act and the rules and regulations of the
Commission promulgated thereunder, and none of the SEC Reports, when filed, contained any untrue
statement of a material fact or omitted 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.
(ix) Financial Statements. The financial statements of the Company included in the SEC Reports
comply in all material respects with applicable accounting requirements and the rules and
regulations of the Commission with respect thereto as in effect at the time of filing. Such
financial statements have been prepared in accordance with GAAP applied on a consistent basis
during the periods involved, except as may be otherwise specified
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in such financial statements or the notes thereto and except that unaudited financial
statements may not contain all footnotes required by GAAP, and fairly present in all material
respects the financial position of the Company and its consolidated subsidiaries taken as a whole
as of and for the dates thereof and the results of operations and cash flows for the periods then
ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments. Each of
the Material Contracts to which the Company is a party or to which the property or assets of the
Company is subject has been filed as an exhibit to the SEC Reports.
(x) Tax Matters. The Company (i) has prepared and filed all foreign, federal and state income
and all other tax returns, reports and declarations required by any jurisdiction to which it is
subject, (ii) has paid all taxes and other governmental assessments and charges that are material
in amount, shown or determined to be due on such returns, reports and declarations, except those
being contested in good faith, with respect to which adequate reserves have been set aside on the
books of the Company and (iii) has set aside on its books provisions reasonably adequate for the
payment of all taxes for periods subsequent to the periods to which such returns, reports or
declarations apply, except, in the case of clauses (i) and (ii) above, where the failure to so pay
or file any such tax, assessment, charge or return would not have a Material Adverse Effect.
(xi) Material Changes. Since the date of the latest financial statements included within the
SEC Reports, except as specifically disclosed in the SEC Reports, (i) there have been no events,
occurrences or developments that have had or would reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect, (ii) the Company has not incurred any
material liabilities (contingent or otherwise) other than (A) trade payables, accrued expenses and
other liabilities incurred in the ordinary course of business consistent with past practice and
(B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP
or to be disclosed in filings made with the Commission, (iii) the Company has not materially
altered its method of accounting or the manner in which it keeps its accounting books and records,
(iv) the Company has not declared or made any dividend or distribution of cash or other property to
its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of
its capital stock (other than in connection with repurchases of unvested stock issued to employees
of the Company), (v) the Company has not issued any equity securities to any officer, director or
Affiliate, except Common Stock issued in the ordinary course as dividends [on outstanding preferred
stock or] pursuant to existing Company stock option or stock purchase plans or executive and
director corporate arrangements disclosed in the SEC Reports and (vi) there has not been any
material change or amendment to, or any waiver of any material right under, any Material Contract
under which the Company or any of its assets is bound or subject. Except for the issuance of the
Securities contemplated by this Agreement, no event, liability or development has occurred or
exists with respect to the Company or its business, properties, operations or financial condition
that would be required to be disclosed by the Company under applicable securities laws at the time
this representation is made that has not been publicly disclosed at least one Trading Day prior to
the date that this representation is made.
(xii) Environmental Matters. To the Company’s Knowledge, the Company (i) is not in violation
of any statute, rule, regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or
12
release of hazardous or toxic substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances (collectively, “Environmental
Laws”), (ii) does not own or operate any real property contaminated with any substance that is in
violation of any Environmental Laws, (iii) is not liable for any off-site disposal or contamination
pursuant to any Environmental Laws, or (iv) is not subject to any claim relating to any
Environmental Laws; which violation, contamination, liability or claim has had or would have,
individually or in the aggregate, a Material Adverse Effect; and there is no pending or, to the
Company’s Knowledge, threatened investigation that might lead to such a claim.
(xiii) Litigation. There is no Action which (i) adversely affects or challenges the legality,
validity or enforceability of any of the Transaction Documents or the Securities, (ii) involves a
claim of violation of or liability under any federal, state, local or foreign laws governing the
Company’s operations, including without limiting the generality of the foregoing, laws regulating
the protection of human health, including without limiting the generality of the foregoing, laws
relating to the manufacture, processing, packaging, labeling, marketing, distribution, use,
inspection, treatment, storage, disposal, transport or handling of the Company’s products, and
regulated or hazardous substances, as well as all authorizations, codes, decrees, demands or demand
letters, injunctions, judgments, licenses, notices or notice letters, orders, permits, plans or
regulations issued, entered, promulgated or approved thereunder, all as may be in effect from time
to time and all successors, replacements and expansions thereof, (iii) involves injury to or death
of any person arising from or relating to any of the Company’s product, or (iv) could, if there
were an unfavorable decision, individually or in the aggregate, have a Material Adverse Effect. The
Commission has not issued any stop order or other order suspending the effectiveness of any
registration statement filed by the Company under the Exchange Act or the Securities Act.
(xiv) Employment Matters. No material labor dispute exists or, to the Company’s Knowledge, is
imminent with respect to any of the employees of the Company which would have a Material Adverse
Effect. None of the Company’s employees is a member of a union that relates to such employee’s
relationship with the Company, and the Company is not a party to a collective bargaining agreement,
and the Company believes that its relationship with its employees is good.
(xv) Compliance. The Company (i) is not in default under or in violation of (and no event has
occurred that has not been waived that, with notice or lapse of time or both, would result in a
default by the Company), nor has the Company received written notice of a claim that it is in
default under or that it is in violation of, any indenture, loan or credit agreement or any other
Material Contract (whether or not such default or violation has been waived), (ii) is not in
violation of any order of any court, arbitrator or governmental body having jurisdiction over the
Company or its properties or assets, or (iii) is not or has not been in violation of, or in receipt
of notice that it is in violation of, any statute, rule or regulation of any governmental authority
applicable to the Company, including without limitation, all applicable rules and regulations of
the Food and Drug Administration (the “FDA”), and all applicable laws, statutes, ordinances, rules
or regulations (including, without limitation, the Federal Food, Drug and Cosmetic Act of 1938, as
amended and similar foreign laws and regulations) enforced by the FDA or equivalent foreign
authorities, except in each case as would not, individually or in the aggregate, have a Material
Adverse Effect.
13
(xvi) Regulatory Permits. The Company possesses all certificates, authorizations and permits
issued by the appropriate federal, state, local or foreign regulatory authorities necessary to
conduct its business as described in the SEC Reports, including without limitation the FDA, except
where the failure to possess such permits, individually or in the aggregate, has not and would not
have, individually or in the aggregate, a Material Adverse Effect ( “Material Permits”), and
(i) the Company has not received any notice of proceedings relating to the revocation or
modification of any such Material Permits and (ii) the Company is unaware of any facts or
circumstances that the Company would reasonably expect to give rise to the revocation or
modification of any Material Permits.
(xvii) Title to Assets. The Company has good and marketable title in fee simple to all real
property owned by it as set forth in the SEC Reports. The Company has good and marketable title to
all tangible personal property owned by it which is material to the business of the Company, in
each case free and clear of all liens, encumbrances and defects except such as do not materially
affect the value of such property and do not interfere with the use made and proposed to be made of
such property by the Company. Any real property and facilities held under lease by the Company are
held by it under valid, subsisting and enforceable leases with such exceptions as are not material
and do not interfere with the use made and proposed to be made of such property and buildings by
the Company.
(xviii) Patents and Trademarks. To the Company’s Knowledge, the Company owns, possesses,
licenses or has other rights to use all foreign and domestic patents, patent applications, trade
and service marks, trade and service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets, technology and other proprietary rights and processes (collectively, the
“Intellectual Property”) necessary for the conduct of its businesses as now conducted. Except where
such violations or infringements would not have, either individually or in the aggregate, a
Material Adverse Effect, to the Company’s Knowledge (a) there are no rights of third parties to any
such Intellectual Property; (b) there is no infringement by third parties of any such Intellectual
Property; (c) there is no pending or threatened action, suit, proceeding or claim by others
challenging the Company’s rights in or to any such Intellectual Property; (d) there is no pending
or threatened action, suit, proceeding or claim by others challenging the validity or scope of any
such Intellectual Property; and (e) there is no pending or threatened action, suit, proceeding or
claim by others that the Company infringes or otherwise violates any patent, trademark, copyright,
trade secret or other proprietary rights of others.
(xix) Insurance. The Company is insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as the Company believes to be prudent in the
businesses and locations in which the Company is engaged. The Company has not received any notice
of cancellation of any such insurance, nor does the Company have any Knowledge that it will be
unable to renew its existing insurance coverage for the Company as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to continue its business
without a significant increase in cost.
(xx) Transactions With Affiliates and Employees. None of the officers or directors of the
Company and, to the Company’s Knowledge, none of the employees of the Company, is presently a party
to any transaction with the Company or to a presently
14
contemplated transaction (other than for services as employees, officers and directors) that
would be required to be disclosed pursuant to Item 404 of Regulation S-K promulgated under the
Securities Act, except as contemplated by the Transaction Documents or set forth in the SEC
Reports.
(xxi) Internal Accounting Controls. The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorizations, (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with GAAP and to maintain
asset and liability accountability, (iii) access to assets or incurrence of liabilities is
permitted only in accordance with management’s general or specific authorization, and (iv) the
recorded accountability for assets and liabilities is compared with the existing assets and
liabilities at reasonable intervals and appropriate action is taken with respect to any
differences.
(xxii) Xxxxxxxx-Xxxxx; Disclosure Controls. To the Company’s Knowledge, the Company is in
compliance in all material respects with all of the provisions of the Xxxxxxxx-Xxxxx Act of 2002
which are applicable to it, except where such noncompliance would not have, individually or in the
aggregate, a Material Adverse Effect. The Company maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15(e) and 15d-15(e) under the Exchange Act).
(xxiii) Certain Fees. No person or entity will have, as a result of the transactions
contemplated by this Agreement, any valid right, interest or claim against or upon the Company or a
Purchaser for any commission, fee or other compensation pursuant to any agreement, arrangement or
understanding entered into by or on behalf of the Company. The Company shall indemnify, pay, and
hold each Purchaser harmless against, any liability, loss or expense (including, without
limitation, attorneys’ fees and out-of-pocket expenses) arising in connection with any such right,
interest or claim.
(xxiv) Private Placement. Assuming the accuracy of the Purchasers’ representations and
warranties set forth in Section 3.2 of this Agreement and the accuracy of the information disclosed
in the Accredited Investor Questionnaires, no registration under the Securities Act is required for
the offer and sale of the Securities by the Company to the Purchasers under the Transaction
Documents.
(xxv) Registration Rights. Other than each of the Purchasers, no Person has any right to cause
the Company to effect the registration under the Securities Act of any securities of the Company
other than those securities which are currently registered on an effective registration statement
on file with the Commission.
(xxvi) No Directed Selling Efforts or General Solicitation. Neither the Company nor any Person
acting on its or its behalf has conducted any “general solicitation” or “general advertising” (as
those terms are used in Regulation D) in connection with the offer or sale of any of the
Securities.
(xxvii) No Integrated Offering. Assuming the accuracy of the Purchasers’ representations and
warranties set forth in Section 3.2, neither the Company nor any
15
Person acting on its behalf has, directly or indirectly, at any time within the past six
months, made any offers or sales of any Company security or solicited any offers to buy any
security under circumstances that would (i) eliminate the availability of the exemption from
registration under Regulation D under the Securities Act in connection with the offer and sale by
the Company of the Securities as contemplated hereby or (ii) cause the offering of the Securities
pursuant to the Transaction Documents to be integrated with prior offerings by the Company for
purposes of any applicable law, regulation or shareholder approval provisions, including, without
limitation, under the rules and regulations of any Trading Market on which any of the securities of
the Company are listed or designated.
(xxviii) Listing and Maintenance Requirements. The Company’s Common Stock is registered
pursuant to Section 12(b) of the Exchange Act, and the Company has taken no action designed to
terminate the registration of the Common Stock under the Exchange Act nor has the Company received
any notification that the Commission is contemplating terminating such registration. Except as set
forth in the SEC Reports, the Company has not, in the 12 months preceding the date hereof, received
written notice from any Trading Market on which the Common Stock is or has been listed or quoted to
the effect that the Company is not in compliance with the listing or maintenance requirements of
such Trading Market. Except as set forth in the SEC Reports, the Company is in compliance in all
material respects with the listing and maintenance requirements for continued trading of the Common
Stock on the Principal Trading Market.
(xxix) Investment Company. The Company is not required to be registered as, and is not an
Affiliate of, and immediately following the Closing will not be required to register as, an
“investment company” within the meaning of the Investment Company Act of 1940, as amended.
(xxx) Application of Takeover Protections; Rights Agreements. The Company and its board of
directors have taken all necessary action, if any, in order to render inapplicable any control
share acquisition, business combination, poison pill (including any distribution under a rights
agreement) or other similar anti-takeover provision under the Company’s charter documents or the
laws of the State of Delaware that is or could reasonably be expected to become applicable to any
of the Purchasers as a result of the Purchasers and the Company fulfilling their obligations or
exercising their rights under the Transaction Documents, including, without limitation, the
Company’s issuance of the Securities and the Purchasers’ ownership of the Securities. The Company
has not adopted a stockholder rights plan or similar arrangement relating to accumulations of
beneficial ownership of Common Stock or a change in control of the Company.
(xxxi) Off Balance Sheet Arrangements. There is no transaction, arrangement, or other
relationship between the Company and an unconsolidated or other off balance sheet entity that is
required to be disclosed by the Company in its SEC Reports and is not so disclosed or that
otherwise would have a Material Adverse Effect.
(xxxii) Acknowledgment Regarding Purchasers’ Purchase of Securities. The Company acknowledges
and agrees that each of the Purchasers is acting solely in the capacity of an arm’s length
purchaser with respect to the Transaction Documents and the
16
transactions contemplated hereby and thereby. The Company further acknowledges that no
Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar capacity)
with respect to the Transaction Documents and the transactions contemplated thereby and any advice
given by any Purchaser or any of their respective representatives or agents in connection with the
Transaction Documents and the transactions contemplated thereby is merely incidental to the
Purchasers’ purchase of the Securities.
(xxxiii) No Additional Agreements. The Company does not have any agreement or understanding
with any Purchaser with respect to the transactions contemplated by the Transaction Documents other
than as specified in the Transaction Documents.
(xxxiv) Shell Company. The Company is not, nor has it ever been, a “shell company” (as such
term is defined in Rule 12b-2 promulgated under the Exchange Act).
(b) Representations and Warranties of the Purchasers. Each Purchaser hereby, for itself and
for no other Purchaser, represents and warrants as of the date hereof and as of the Closing Date in
the case of the Purchasers listed on Annex A hereto to the Company as follows:
(i) Organization; Authority. Such Purchaser is an entity duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization with the requisite
corporate or partnership power and authority to enter into and to consummate the transactions
contemplated by the applicable Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution, delivery and performance by such Purchaser of the
transactions contemplated by this Agreement have been duly authorized by all necessary corporate
or, if such Purchaser is not a corporation, such partnership, limited liability company or other
applicable like action, on the part of such Purchaser. Each of this Agreement and the Registration
Rights Agreement has been duly executed by such Purchaser, and when delivered by such Purchaser in
accordance with the terms hereof, will constitute the valid and legally binding obligation of such
Purchaser, enforceable against it in accordance with its terms, except as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar
laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by
other equitable principles of general application.
(ii) No Conflicts. The execution, delivery and performance by such Purchaser of this Agreement
and the Registration Rights Agreement and the consummation by such Purchaser of the transactions
contemplated hereby and thereby will not (i) result in a violation of the organizational documents
of such Purchaser, (ii) conflict with, or constitute a default (or an event which with notice or
lapse of time or both would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or instrument to which such
Purchaser is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment
or decree (including federal and state securities laws) applicable to such Purchaser, except in the
case of clauses (ii) and (iii) above, for such conflicts, defaults, rights or violations which
would not, individually or in the aggregate, reasonably be expected to have a material adverse
effect on the ability of such Purchaser to perform its obligations hereunder.
17
(iii) Investment Intent. Such Purchaser understands that the Securities are “restricted
securities” and have not been registered under the Securities Act or any applicable state
securities law and is acquiring the Securities and, upon exercise of the Warrants, will acquire the
Warrant Shares issuable upon exercise thereof as principal for its own account and not with a view
to, or for distributing or reselling such Securities or any part thereof in violation of the
Securities Act or any applicable state securities laws, provided, however , that by making the
representations herein, such Purchaser does not agree to hold any of the Securities for any minimum
period of time and reserves the right, subject to the provisions of this Agreement and the
Registration Rights Agreement, at all times to sell or otherwise dispose of all or any part of such
Securities or Warrant Shares pursuant to an effective registration statement under the Securities
Act or under an exemption from such registration and in compliance with applicable federal and
state securities laws. Such Purchaser is acquiring the Securities hereunder in the ordinary course
of its business. Such Purchaser does not presently have any agreement, plan or understanding,
directly or indirectly, with any Person to distribute or effect any distribution of any of the
Securities (or any securities which are derivatives thereof) to or through any person or entity;
such Purchaser is not a registered broker-dealer under Section 15 of the Exchange Act or an entity
engaged in a business that would require it to be so registered as a broker-dealer.
(iv) Purchaser Status. At the time such Purchaser was offered the Securities, it was, and at
the date hereof it is, and on each date on which it exercises the Warrants it will be, an
“accredited investor” as defined in Rule 501(a) under the Securities Act.
(v) General Solicitation. Such Purchaser is not purchasing the Securities as a result of any
advertisement, article, notice or other communication regarding the Securities published in any
newspaper, magazine or similar media or broadcast over television or radio or presented at any
seminar or any other general advertisement.
(vi) Experience of Such Purchaser. Such Purchaser, either alone or together with its
representatives, has such knowledge, sophistication and experience in business and financial
matters so as to be capable of evaluating the merits and risks of the prospective investment in the
Securities, and has so evaluated the merits and risks of such investment. Such Purchaser is able to
bear the economic risk of an investment in the Securities and, at the present time, is able to
afford a complete loss of such investment.
(vii) Access to Information. Such Purchaser acknowledges that it has had the opportunity to
review the Disclosure Materials and has been afforded (i) the opportunity to ask such questions as
it has deemed necessary of, and to receive answers from, representatives of the Company concerning
the terms and conditions of the offering of the Securities and the merits and risks of investing in
the Securities; (ii) access to information about the Company and its respective financial
condition, results of operations, business, properties, management and prospects sufficient to
enable it to evaluate its investment; and (iii) the opportunity to obtain such additional
information that the Company possesses or can acquire without unreasonable effort or expense that
is necessary to make an informed investment decision with respect to the investment. Neither such
inquiries nor any other investigation conducted by or on behalf of such Purchaser or its
representatives or counsel shall modify, amend or affect such Purchaser’s right to rely on the
truth, accuracy and completeness of the Disclosure Materials and the Company’s representations and
warranties contained in the Transaction Documents. Such Purchaser has
18
sought such accounting, legal and tax advice as it has considered necessary to make an
informed decision with respect to its acquisition of the Securities.
(viii) Certain Trading Activities. Other than with respect to the transactions contemplated
herein, since the time that such Purchaser was first contacted by the Company or any other Person
regarding the transactions contemplated hereby, neither the Purchaser nor, to the knowledge of such
Purchaser, any Affiliate of such Purchaser which (x) had knowledge of the transactions contemplated
hereby, (y) has or shares discretion relating to such Purchaser’s investments or trading or
information concerning such Purchaser’s investments, including in respect of the Securities, and
(z) is subject to such Purchaser’s review or input concerning such Affiliate’s investments or
trading (collectively, “Trading Affiliates”) has directly or indirectly, nor has any Person acting
on behalf of or pursuant to any understanding with such Purchaser or Trading Affiliate, effected or
agreed to effect any transactions in the securities of the Company (including, without limitation,
any Short Sales involving the Company’s securities). Notwithstanding the foregoing, in the case of
a Purchaser and/or Trading Affiliate that is, individually or collectively, a multi-managed
investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s
or Trading Affiliate’s assets and the portfolio managers have no direct knowledge of the investment
decisions made by the portfolio managers managing other portions of such Purchaser’s or Trading
Affiliate’s assets, the representation set forth above shall apply only with respect to the portion
of assets managed by the portfolio manager that have knowledge about the financing transaction
contemplated by this Agreement. Other than to other Persons party to this Agreement, such Purchaser
has maintained the confidentiality of all disclosures made to it in connection with this
transaction (including the existence and terms of this transaction). Notwithstanding the foregoing,
and except as otherwise provided in Section 4.12, no Purchaser makes any representation, warranty
or covenant hereby that it will not engage in Short Sales in the securities of the Company after
the effectiveness of the Registration Statement as described in Section 4.12.
(ix) Brokers and Finders. No Person will have, as a result of the transactions contemplated by
this Agreement, any valid right, interest or claim against or upon the Company or any Purchaser for
any commission, fee or other compensation pursuant to any agreement, arrangement or understanding
entered into by or on behalf of the Purchaser.
(x) Independent Investment Decision. Such Purchaser has independently evaluated the merits of
its decision to purchase Securities pursuant to the Transaction Documents, and such Purchaser
confirms that it has not relied on the advice of any other Purchaser’s business and/or legal
counsel in making such decision. Such Purchaser understands that nothing in this Agreement or any
other materials presented by or on behalf of the Company to the Purchaser in connection with the
purchase of the Securities constitutes legal, tax or investment advice. Such Purchaser has
consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed
necessary or appropriate in connection with its purchase of the Securities.
(xi) Reliance on Exemptions. Such Purchaser understands that the Securities being offered and
sold to it in reliance on specific exemptions from the registration requirements of United States
federal and state securities laws and that the Company is relying in
19
part upon the truth and accuracy of, and such Purchaser’s compliance with, the
representations, warranties, agreements, acknowledgements and understandings of such Purchaser set
forth herein in order to determine the availability of such exemptions and the eligibility of such
Purchaser to acquire the Securities.
(xii) No Governmental Review. Such Purchaser understands that no United States federal or
state agency or any other government or governmental agency has passed on or made any
recommendation or endorsement of the Securities or the fairness or suitability of the investment in
the Securities nor have such authorities passed upon or endorsed the merits of the offering of the
Securities.
(xiii) Regulation M. Such Purchaser is aware that the anti-manipulation rules of Regulation M
under the Exchange Act may apply to sales of Common Stock and other activities with respect to the
Common Stock by the Purchasers.
(xiv) Residency. Such Purchaser’s principal executive offices are in the jurisdiction set
forth immediately below Purchaser’s name on the applicable signature page attached hereto.
The Company and each of the Purchasers acknowledge and agree that no party to this Agreement
has made or makes any representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in this Article III and the Transaction Documents.
1.4 OTHER AGREEMENTS OF THE PARTIES
(a) Transfer Restrictions.
(i) Compliance with Laws. Notwithstanding any other provision of this Article IV, each
Purchaser covenants that the Securities may be disposed of only pursuant to an effective
registration statement under, and in compliance with the requirements of, the Securities Act, or
pursuant to an available exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act, and in compliance with any applicable state and federal
securities laws. In connection with any transfer of the Securities other than (i) pursuant to an
effective registration statement, (ii) to the Company, (iii) to an Affiliate of a Purchaser,
(iv) pursuant to Rule 144 ( provided that the Purchaser provides the Company with reasonable
assurances (in the form of seller and broker representation letters) that the securities may be
sold pursuant to such rule) or Rule 144A, (v) pursuant to Rule 144 without restriction following
the applicable holding period or (v) in connection with a bona fide pledge, the Company may require
the transferor thereof to provide to the Company an opinion of counsel selected by the transferor
and reasonably acceptable to the Company, the form and substance of which opinion shall be
reasonably satisfactory to the Company, to the effect that such transfer does not require
registration of such transferred Securities under the Securities Act. As a condition of transfer,
any such transferee shall agree in writing to be bound by the terms of this Agreement and shall
have the rights of a Purchaser under this Agreement and the Registration Rights Agreement.
(ii) Legends. Certificates evidencing the Securities shall bear any legend as required by the
“blue sky” laws of any state and a restrictive legend in substantially the
20
following form until such time as they are not required under Section 4.1(c): (and a stock
transfer order may be placed against transfer of the certificates for the Securities):
[NEITHER THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES HAVE
BEEN REGISTERED] [OR] [THESE SECURITIES HAVE NOT BEEN REGISTERED] UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE
OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED EXCEPT AS PROVIDED BY SECTION 4 OF THAT CERTAIN
SECURITIES PURCHASE AGREEMENT, DATED AS OF SEPTEMBER 25, 2009, BY AND AMONG CARDICA, INC. AND EACH
PURCHASER IDENTIFIED ON THE SIGNATURE PAGES THERETO.
In addition, if any Purchaser is an Affiliate of the Company, certificates evidencing the
Securities issued to such Purchaser shall bear a customary “affiliates” legend.
(iii) Removal of Legends. The legend set forth in Section 4.1(b) above shall be removed and
the Company shall issue a certificate without such legend or any other legend to the holder of the
applicable Shares or Warrant Shares upon which it is stamped or issue to such holder by electronic
delivery at the applicable balance account at DTC, if (i) such Securities are sold pursuant to an
effective Registration Statement and the Purchaser has delivered a signed and completed Purchaser’s
Certificate of Subsequent Sale in substantially the form of Exhibit H attached hereto (the
“Certificate of Sale”) with respect to such Securities, (ii) such Securities are sold or
transferred pursuant to Rule 144 (if the transferor is not an Affiliate of the Company), or (iii)
such Securities are eligible for sale under Rule 144 without restriction. Any fees (with respect to
the Transfer Agent, Company Counsel or otherwise) associated with the removal of such legend shall
be borne by the Company. Following such time as a legend is no longer required for certain
Securities, the Company will no later than three (3) Trading Days following the delivery by a
Purchaser to the Company or the Transfer Agent (with notice to the Company) of a legended
certificate representing such Shares or Warrant Shares (endorsed or with stock powers attached,
signatures guaranteed, and otherwise in form necessary to affect the reissuance and/or transfer),
deliver or cause to be delivered to the transferee of such Purchaser or such Purchaser, as
applicable, a certificate representing such Securities that is free from all restrictive and other
legends. The Company may not make any notation on its records or give instructions to the Transfer
Agent that enlarge the restrictions on transfer set forth in this Section 4.1. Certificates for
Shares or Warrant Shares subject to legend removal hereunder may be transmitted by the Transfer
Agent to the Purchasers, as applicable, by crediting the account of the transferee’s Purchaser’s
prime broker with DTC.
(iv) Irrevocable Transfer Agent Instructions. The Company shall issue irrevocable instructions
to its transfer agent, and any subsequent transfer agent, in the form of Exhibit E attached hereto
(the “Irrevocable Transfer Agent Instructions”). The Company represents and warrants that no
instruction other than the Irrevocable Transfer Agent Instructions or instructions consistent
therewith referred to in this Section 4.1(d) will be given by the Company to its transfer agent in
connection with this Agreement, and that the Securities shall otherwise be freely transferable on
the books and records of the Company as and to the extent provided in this Agreement, the other
Transaction Documents and applicable law. The Company
21
acknowledges that a breach by it of its obligations under this Section 4.1(d) will cause
irreparable harm to a Purchaser. Accordingly, the Company acknowledges that the remedy at law for a
breach of its obligations under this Section 4.1(d) will be inadequate and agrees, in the event of
a breach or threatened breach by the Company of the provisions of this Section 4.1(d), that a
Purchaser shall be entitled, in addition to all other available remedies, to an order and/or
injunction restraining any breach and requiring immediate issuance and transfer, without the
necessity of showing economic loss and without any bond or other security being required.
(v) Acknowledgement. Each Purchaser hereunder acknowledges its primary responsibilities under
the Securities Act and accordingly will not sell or otherwise transfer the Warrants, Shares, the
Warrant Shares or any interest therein without complying with the requirements of the Securities
Act. While the Registration Statement remains effective, each Purchaser hereunder may sell the
Shares and Warrant Shares in accordance with the plan of distribution contained in the Registration
Statement and, if it does so, it will comply therewith and with the related prospectus delivery
requirements unless an exemption therefrom is available. Each Purchaser, severally and not jointly
with the other Purchasers, agrees that if it is notified by the Company in writing at any time that
the Registration Statement registering the resale of the Shares or the Warrant Shares is not
effective or that the prospectus included in such Registration Statement no longer complies with
the requirements of Section 10 of the Securities Act, the Purchaser will refrain from selling such
Shares and Warrant Shares until such time as the Purchaser is notified by the Company that such
Registration Statement is effective or such prospectus is compliant with Section 10 of the Exchange
Act, unless such Purchaser is able to, and does, sell such Shares or Warrant Shares pursuant to an
available exemption from the registration requirements of Section 5 of the Securities Act.
(vi) Buy-In. If the Company shall fail for any reason or for no reason to issue to a Purchaser
unlegended certificates within three (3) Business Days after receipt of all documents necessary for
the removal of the legend set forth above, including, but not limited to the signed and completed
Certificate of Sale (the “Deadline Date”), then, in addition to all other remedies available to
such Purchaser, if on or after the Business Day immediately following such three (3) Business Day
period, such Purchaser purchases (in an open market transaction or otherwise) shares of Common
Stock to deliver in satisfaction of a sale by the holder of shares of Common Stock that such
Purchaser anticipated receiving from the Company without any restrictive legend (a “Buy-In”), then
the Company shall, within three (3) Business Days after such Purchaser’s request and in such
Purchaser’s sole discretion, either (i) pay cash to the Purchaser in an amount equal to such
Purchaser’s total purchase price (including brokerage commissions, if any) for the shares of Common
Stock so purchased (the “Buy-In Price”), at which point the Company’s obligation to deliver such
certificate (and to issue such shares of Common Stock) shall terminate, or (ii) promptly honor its
obligation to deliver to such Purchaser a certificate or certificates representing such shares of
Common Stock and pay cash to the Purchaser in an amount equal to the excess (if any) of the Buy-In
Price over the product of (a) such number of shares of Common Stock, times (b) the Closing Bid
Price on the Deadline Date.
(b) Acknowledgment of Dilution. The Company acknowledges that the issuance of the Securities
may result in dilution of the outstanding shares of Common Stock. The Company further acknowledges
that its obligations under the Transaction Documents, including
22
without limitation its obligation to issue the Shares and the Warrant Shares pursuant to the
Transaction Documents, are unconditional and absolute and not subject to any right of set off,
counterclaim, delay or reduction, regardless of the effect of any such dilution or any claim the
Company may have against any Purchaser and regardless of the dilutive effect that such issuance may
have on the ownership of the other stockholders of the Company.
(c) Reservation of Common Stock. The Company shall take all action necessary to at all times
have authorized, and reserved for the purpose of issuance from and after the Closing Date, no less
than the maximum number of shares of Common Stock issuable upon exercise of the Warrants issued at
the Closing. On the Closing Date, the Company will notify the Transfer Agent of the reservation of
the Warrant Shares as required by this Section 4.3.
(d) Furnishing of Information. In order to enable the Purchasers to sell the Securities under
Rule 144 of the Securities Act, for a period of one year from the Closing Date, the Company shall
use its commercially reasonable efforts to timely file (or obtain extensions in respect thereof and
file within the applicable grace period) all reports required to be filed by the Company after the
date hereof pursuant to the Exchange Act. During such one year period, if the Company is not
required to file reports pursuant to such laws, it will prepare and furnish to the Purchasers and
make publicly available in accordance with Rule 144(c) such information as is required for the
Purchasers to sell the Shares and Warrant Shares under Rule 144.
(e) Form D and Blue Sky. The Company agrees to timely file a Form D with respect to the
Securities as required under Regulation D and to provide a copy thereof to each Purchaser who
requests a copy in writing promptly after such filing. The Company, on or before the Closing Date,
shall take such action as the Company shall reasonably determine is necessary in order to obtain an
exemption for or to qualify the Securities for sale to the Purchasers at the Closing pursuant to
this Agreement under applicable securities or “Blue Sky” laws of the states of the United States
(or to obtain an exemption from such qualification), and shall provide evidence of any such action
so taken to the Purchasers who request in writing such evidence on or prior to the Closing Date.
The Company shall make all filings and reports relating to the offer and sale of the Securities
required under applicable securities or “Blue Sky” laws of the states of the United States
following the Closing Date.
(f) No Integration. The Company shall not, and shall use its commercially reasonable efforts
to ensure that no Affiliate of the Company shall, sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that
will be integrated with the offer or sale of the Securities in a manner that would require the
registration under the Securities Act of the sale of the Securities to the Purchasers, or that will
be integrated with the offer or sale of the Securities for purposes of the rules and regulations of
any Trading Market such that it would require shareholder approval prior to the closing of such
other transaction unless shareholder approval is obtained before the closing of such subsequent
transaction.
(g) Securities Laws Disclosure; Publicity. By 9:00 a.m., New York City time, on the Trading
Day immediately following the execution of this Agreement, the Company shall issue a press release
(the “Press Release”) disclosing all material terms of the transactions contemplated hereby. On or
before 9: 00 a.m., New York City time, on the fourth Trading Day
23
following the execution of this Agreement (or such earlier time as required by law), the
Company will file a Current Report on Form 8-K with the Commission describing the terms of the
Transaction Documents (and including as exhibits to such Current Report on Form 8-K the material
Transaction Documents (including, without limitation, this Agreement, the form of Warrant and the
Registration Rights Agreement)). Notwithstanding the foregoing, the Company shall not publicly
disclose the name of any Purchaser or an Affiliate of any Purchaser, or include the name of any
Purchaser or an Affiliate of any Purchaser in any press release or filing with the Commission
(other than the Registration Statement) or any regulatory agency or Trading Market, without the
prior written consent of such Purchaser, except (i) as required by federal securities law in
connection with (A) any registration statement contemplated by the Registration Rights Agreement
and (B) the filing of final Transaction Documents (including signature pages thereto) with the
Commission or (ii) to the extent such disclosure is required by law, request of the Staff of the
Commission or Trading Market regulations, in which case the Company shall provide the Purchasers
with prior written notice of such disclosure permitted under this subclause (ii). From and after
the issuance of the Press Release, no Purchaser shall be in possession of any material, non-public
information received from the Company or any of its respective officers, directors, employees or
agents, that is not disclosed in the Press Release unless a Purchaser shall have executed a written
agreement regarding the confidentiality and use of such information. Each Purchaser, severally and
not jointly with the other Purchasers, covenants that until such time as the transactions
contemplated by this Agreement are publicly disclosed by the Company as described in this
Section 4.7, such Purchaser will maintain the confidentiality of all disclosures made to it in
connection with this transaction (including the existence and terms of this transaction).
(h) Non-Public Information. Except with respect to the material terms and conditions of the
transactions contemplated by the Transaction Documents, the Company shall not and shall cause each
of its officers, directors, employees and agents, not to, provide any Purchaser with any material,
non-public information regarding the Company from and after the filing of the Press Release without
the express written consent of such Purchaser, unless prior thereto such Purchaser shall have
executed a written agreement regarding the confidentiality and use of such information.
(i) Indemnification.
(i) Indemnification of Purchasers. In addition to the indemnity provided in the Registration
Rights Agreement, the Company will indemnify and hold each Purchaser and its directors, officers,
shareholders, members, partners, employees and agents (and any other Persons with a functionally
equivalent role of a Person holding such titles notwithstanding a lack of such title or any other
title), each Person who controls such Purchaser (within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents,
members, partners or employees (and any other Persons with a functionally equivalent role of a
Person holding such titles notwithstanding a lack of such title or any other title) of such
controlling person (each, a “Purchaser Party”) harmless from any and all losses, liabilities,
obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts
paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any
such Purchaser Party may suffer or incur, as a result of or relating to third party claims against
such Purchaser relating to any breach of any of
24
the representations, warranties, covenants or agreements made by the Company in this Agreement
or in the other Transaction Documents, provided that that such a claim for indemnification
relating to any breach of any of the representations or warranties made by the Company in this
Agreement is made within one year from the Closing. The Company will not be liable to any Purchaser
Party under this Agreement to the extent, but only to the extent that a loss, claim, damage or
liability is attributable to any Purchaser Party’s breach of any of the representations,
warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other
Transaction Documents.
(ii) Conduct of Indemnification Proceedings. Promptly after receipt by any Person (the
“Indemnified Person”) of notice of any demand, claim or circumstances which would or might give
rise to a claim or the commencement of any action, proceeding or investigation in respect of which
indemnity may be sought pursuant to Section 4.9(a), such Indemnified Person shall promptly notify
the Company in writing and the Company shall assume the defense thereof, including the employment
of counsel reasonably satisfactory to such Indemnified Person, and shall assume the payment of all
fees and expenses; provided, however , that the failure of any Indemnified Person so to notify the
Company shall not relieve the Company of its obligations hereunder except to the extent that the
Company is actually and materially prejudiced by such failure to notify. In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless: (i) the Company and the
Indemnified Person shall have mutually agreed to the retention of such counsel; (ii) the Company
shall have failed promptly to assume the defense of such proceeding and to employ counsel
reasonably satisfactory to such Indemnified Person in such proceeding; or (iii) in the reasonable
judgment of counsel to such Indemnified Person, representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between them. The Company
shall not be liable for any settlement of any proceeding effected without its written consent,
which consent shall not be unreasonably withheld, delayed or conditioned. Without the prior written
consent of the Indemnified Person, which consent shall not be unreasonably withheld, delayed or
conditioned, the Company shall not effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement includes an unconditional
release of such Indemnified Person from all liability arising out of such proceeding.
(j) Listing of Securities. In the time and manner required by the Principal Trading Market,
the Company shall prepare and file with such Trading Market an additional shares listing
application covering all of the Shares and Warrant Shares and shall use its commercially reasonable
efforts to take all steps necessary to maintain, so long as any other shares of Common Stock shall
be so listed, such listing.
(k) Use of Proceeds. The Company intends to use the net proceeds from the sale of the
Securities hereunder for working capital and general corporate purposes.
(l) Dispositions and Confidentiality After The Date Hereof. Each Purchaser shall not, and
shall cause its Trading Affiliates not to, prior to the effectiveness of the Registration
Statement: (a) sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or
25
grant any right with respect to (collectively, a “Disposition”) the Securities; or (b) engage
in any hedging or other transaction which is designed or could reasonably be expected to lead to or
result in a Disposition of the Securities by such Purchaser or an Affiliate. In addition, Purchaser
agrees that for so long as it owns any Common Stock, it will not enter into any short sale of
Shares executed at a time when the Purchaser has no equivalent offsetting long position in the
Common Stock. For purposes of determining whether the Purchaser has an equivalent offsetting long
position in the Common Stock, shares that the Purchaser is entitled to receive within sixty
(60) days (whether pursuant to contract or upon conversion or exercise of convertible securities)
will be included as if held long by the Purchaser. Such Purchaser covenants that neither it nor any
Person acting on its behalf or pursuant to any understanding with it will engage in any
transactions in the Company’s securities (including, without limitation, any Short Sales involving
the Company’s securities) during the period from the date hereof until the earlier of such time as
(i) the transactions contemplated by this Agreement are first publicly announced as described in
Section 4.7 or (ii) this Agreement is terminated in full pursuant to Section 6.17. Notwithstanding
the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby
separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio
managers have no direct knowledge of the investment decisions made by the portfolio managers
managing other portions of such Purchaser’s assets, the representation set forth above shall apply
only with respect to the portion of assets managed by the portfolio manager that have knowledge
about the financing transaction contemplated by this Agreement. Each Purchaser understands and
acknowledges, severally and not jointly with any other Purchaser, that the Commission currently
takes the position that covering a short position established prior to effectiveness of a resale
registration statement with shares included in such registration statement would be a violation of
Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Manual
of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief
Counsel, Division of Corporation Finance.
1.5 CONDITIONS PRECEDENT TO CLOSING
(a) Conditions Precedent to the Obligations of the Purchasers to Purchase Securities at the
Closing. The obligation of each Purchaser listed on Annex A hereto to acquire Securities at the
Closing is subject to the fulfillment to such Purchaser’s satisfaction, on or prior to the Closing
Date, of each of the following conditions, any of which may be waived by such Purchaser (as to
itself only):
(i) Representations and Warranties. The representations and warranties of the Company
contained herein shall be true and correct in all material respects (except for those
representations and warranties which are qualified as to materiality, in which case such
representations and warranties shall be true and correct in all respects) as of the date when made
and as of the Closing Date, as though made on and as of such date, except for such representations
and warranties that speak as of a specific date.
(ii) Performance. The Company shall have performed, satisfied and complied in all material
respects with all covenants, agreements and conditions required by the Transaction Documents to be
performed, satisfied or complied with by it at or prior to the Closing.
26
(iii) No Injunction. 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 that prohibits the consummation of any of the transactions
contemplated by the Transaction Documents.
(iv) Consents. The Company shall have obtained in a timely fashion any and all consents,
permits, approvals, registrations and waivers necessary for consummation of the purchase and sale
of the Securities at the Closing (including all Required Approvals), all of which shall be and
remain so long as necessary in full force and effect.
(v) No Suspensions of Trading in Common Stock; Listing. The Common Stock (i) shall be
designated for quotation or listed on the Principal Trading Market and (ii) shall not have been
suspended, as of the Closing Date, by the Commission or the Principal Trading Market from trading
on the Principal Trading Market.
(vi) Company Deliverables. The Company shall have delivered the Company Deliverables in
accordance with Section 2.2(a).
(vii) Compliance Certificate. The Company shall have delivered to each Purchaser a
certificate, dated as of the Closing Date and signed by its Chief Executive Officer or its Chief
Financial Officer, dated as of the Closing Date, certifying to the fulfillment of the conditions
specified in Sections 5.1(a) and (b) in the form attached hereto as Exhibit G.
(viii) Termination. This Agreement shall not have been terminated as to such Purchaser in
accordance with Section 6.17 herein.
(b) Conditions Precedent to the Obligations of the Company to sell Securities at the Closing.
The Company’s obligation to sell and issue the Securities to each Purchaser listed on Annex A
hereto at the Closing is subject to the fulfillment to the satisfaction of the Company on or prior
to the Closing Date of the following conditions, any of which may be waived by the Company:
(i) Representations and Warranties. The representations and warranties made by such Purchaser
in Section 3.2 hereof shall be true and correct in all material respects as of the date when made,
and as of the Closing Date as though made on and as of such date, except for representations and
warranties that speak as of a specific date.
(ii) Performance. Such Purchaser shall have performed, satisfied and complied in all material
respects with all covenants, agreements and conditions required by the Transaction Documents to be
performed, satisfied or complied with by such Purchaser at or prior to the Closing Date.
(iii) No Injunction. 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 that prohibits the consummation of any of the transactions
contemplated by the Transaction Documents.
27
(iv) Consents. The Company shall have obtained in a timely fashion any and all consents,
permits, approvals, registrations and waivers necessary for consummation of the purchase and sale
of the Securities, all of which shall be and remain so long as necessary in full force and effect.
(v) Purchasers Deliverables. Such Purchaser shall have delivered its Purchaser Deliverables in
accordance with Section 2.2(b).
(vi) Termination. This Agreement shall not have been terminated as to such Purchaser in
accordance with Section 6.17 herein.
1.6 MISCELLANEOUS
(a) Fees and Expenses. Except as set forth in this Section 6.1, the Company and the Purchasers
shall each pay the fees and expenses of their respective advisers, counsel, accountants and other
experts, if any, and all other expenses incurred by such party in connection with the negotiation,
preparation, execution, delivery and performance of this Agreement. The Company shall pay all
Transfer Agent fees, stamp taxes and other taxes and duties levied in connection with the sale and
issuance of the Securities to the Purchasers. The Company shall pay the reasonable fees and
expenses of one special counsel to the Purchasers, which counsel shall be Golenbock Xxxxxx Xxxxx
Xxxx & Xxxxxx LLP.
(b) Entire Agreement. The Transaction Documents, together with the Exhibits and Schedules
thereto, contain the entire understanding of the parties with respect to the subject matter hereof
and supersede all prior agreements, understandings, discussions and representations, oral or
written, with respect to such matters, which the parties acknowledge have been merged into such
documents, exhibits and schedules. At or after the Closing, and without further consideration, the
Company and the Purchasers will execute and deliver to the other such further documents as may be
reasonably requested in order to give practical effect to the intention of the parties under the
Transaction Documents.
(c) Notices. Any and all notices or other communications or deliveries required or permitted
to be provided hereunder shall be in writing and shall be deemed given and effective on the
earliest of (a) the date of transmission, if such notice or communication is delivered via
facsimile (provided the sender receives a machine-generated confirmation of successful
transmission) at the facsimile number specified in this Section prior to 5: 00 p.m., New York City
time, on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number specified in this Section on a day
that is not a Trading Day or later than 5: 00 p.m., New York City time, on any Trading Day,
(c) the Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight
courier service with next day delivery specified, or (d) upon actual receipt by the party to whom
such notice is required to be given. The address for such notices and communications shall be as
follows:
If to the Company:
|
Cardica, Inc. | |
| 000 Xxxxxxx Xxxxx | ||
| Xxxxxxx Xxxx, Xxxxxxxxxx 00000 | ||
| Telephone No.: (000) 000-0000 | ||
| Facsimile No.: (000) 000-0000 | ||
| Attention: Xxxxxx X. Xxxxxx |
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With a copy to:
|
Xxxxxx Godward Kronish LLP | |
| Five Palo Alto Square | ||
| 0000 Xx Xxxxxx Xxxx | ||
| Xxxx Xxxx, Xxxxxxxxxx 00000-0000 | ||
| Telephone No.: (000) 000-0000 | ||
| Facsimile No.: (000) 000-0000 | ||
| Attention: Xxxxxxx Xxxxxxxx Xxxxxx, Esq. | ||
If to a Purchaser:
|
To the address set forth under such Purchaser’s name on the signature page hereof; | |
| or such other address as may be designated in writing hereafter, in the same manner, by such Person. | ||
With a copy to:
|
Golenbock Xxxxxx Assor Xxxx & Xxxxxx LLP | |
| 000 Xxxxxxx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Telephone No.: (000) 000-0000 | ||
| Facsimile No.: (000) 000-0000 | ||
| Attention: Xxxxxxx X. Price, Esq. |
(d) Amendments; Waivers; No Additional Consideration. No provision of this Agreement may be
waived or amended except in a written instrument signed, in the case of an amendment, by the
Company and the Purchasers holding or having the right to acquire a majority of the Shares and the
Warrant Shares on a fully-diluted basis at the time of such amendment or, in the case of a waiver,
by the party against whom enforcement of any such waiver is sought. No waiver of any default with
respect to any provision, condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any subsequent default or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or omission of either party to
exercise any right hereunder in any manner impair the exercise of any such right. No consideration
shall be offered or paid to any Purchaser to amend or consent to a waiver or modification of any
provision of any Transaction Document unless the same consideration is also offered to all
Purchasers who then hold Securities.
(e) Construction. The headings herein are for convenience only, do not constitute a part of
this Agreement and shall not be deemed to limit or affect any of the provisions hereof. The
language used in this Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be applied against any party. This
Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions
of this Agreement or any of the Transaction Documents.
29
(f) Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and
be binding upon the parties and their successors and permitted assigns. This Agreement, or any
rights or obligations hereunder, may not be assigned by the Company without the prior written
consent of the Purchasers. Any Purchaser may assign its rights hereunder in whole or in part to any
Person to whom such Purchaser assigns or transfers any Securities in compliance with the
Transaction Documents and applicable law, provided such transferee shall agree in writing to be
bound, with respect to the transferred Securities, by the terms and conditions of this Agreement
that apply to the “Purchasers”.
(g) No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties
hereto and their respective successors and permitted assigns and is not for the benefit of, nor may
any provision hereof be enforced by, any other Person.
(h) Governing Law. All questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by and construed and enforced in accordance with
the internal laws of the State of New York, without regard to the principles of conflicts of law
thereof. Each party agrees that all Proceedings concerning the interpretations, enforcement and
defense of the transactions contemplated by this Agreement and any other Transaction Documents
(whether brought against a party hereto or its respective Affiliates, employees or agents) shall be
commenced exclusively in the New York Courts. Each party hereto hereby irrevocably submits to the
exclusive jurisdiction of the New York Courts for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed herein (including with
respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and
agrees not to assert in any Proceeding, any claim that it is not personally subject to the
jurisdiction of any such New York Court, or that such Proceeding has been commenced in an improper
or inconvenient forum. Each party hereto hereby irrevocably waives personal service of process and
consents to process being served in any such Proceeding by mailing a copy thereof via registered or
certified mail or overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall constitute good
and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to
limit in any way any right to serve process in any manner permitted by law. EACH PARTY HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
(i) Survival. The representations and warranties contained herein shall survive the Closing
and the delivery of the Securities for a period of one (1) year from the Closing Date. The
agreements and covenants contained herein shall survive for the applicable statute of limitations.
(j) Execution. This Agreement may be executed in two or more counterparts, all of which when
taken together shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party, it being understood
that both parties need not sign the same counterpart. In the event that any signature is delivered
by facsimile transmission, or by e-mail delivery of a “.pdf” format data
30
file, such signature shall create a valid and binding obligation of the party executing (or on
whose behalf such signature is executed) with the same force and effect as if such facsimile
signature page were an original thereof.
(k) Severability. If any provision of this Agreement is held to be invalid or unenforceable in
any respect, the validity and enforceability of the remaining terms and provisions of this
Agreement shall not in any way be affected or impaired thereby and the parties will attempt to
agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon so
agreeing, shall incorporate such substitute provision in this Agreement.
(l) Replacement of Securities. If any certificate or instrument evidencing any Securities is
mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation thereof, or in lieu of and substitution therefor, a new
certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company
and the Transfer Agent of such loss, theft or destruction and the execution by the holder thereof
of a customary lost certificate affidavit of that fact and an agreement to indemnify and hold
harmless the Company and the Transfer Agent for any losses in connection therewith or, if required
by the Transfer Agent, a bond in such form and amount as is required by the Transfer Agent. The
applicants for a new certificate or instrument under such circumstances shall also pay any
reasonable third-party costs associated with the issuance of such replacement Securities. If a
replacement certificate or instrument evidencing any Securities is requested due to a mutilation
thereof, the Company may require delivery of such mutilated certificate or instrument as a
condition precedent to any issuance of a replacement.
(m) Remedies. In addition to being entitled to exercise all rights provided herein or granted
by law, including recovery of damages, each of the Purchasers and the Company will be entitled to
specific performance under the Transaction Documents. The parties agree that monetary damages may
not be adequate compensation for any loss incurred by reason of any breach of obligations described
in the foregoing sentence and hereby agree to waive in any action for specific performance of any
such obligation (other than in connection with any action for a temporary restraining order) the
defense that a remedy at law would be adequate.
(n) Payment Set Aside. To the extent that the Company makes a payment or payments to any
Purchaser pursuant to any Transaction Document or a Purchaser enforces or exercises its rights
thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any
part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside,
recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the
Company, a trustee, receiver or any other person under any law (including, without limitation, any
bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent
of any such restoration the obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not been made or such
enforcement or setoff had not occurred.
(o) Adjustments in Share Numbers and Prices. In the event of any stock split, subdivision,
dividend or distribution payable in shares of Common Stock (or other securities or rights
convertible into, or entitling the holder thereof to receive directly or indirectly shares of
Common Stock), combination or other similar recapitalization or event occurring after
31
the date hereof, each reference in any Transaction Document to a number of shares or a price
per share shall be deemed to be amended to appropriately account for such event.
(p) Independent Nature of Purchasers’ Obligations and Rights. The obligations of each
Purchaser under any Transaction Document are several and not joint with the obligations of any
other Purchaser, and no Purchaser shall be responsible in any way for the performance of the
obligations of any other Purchaser under any Transaction Document. The decision of each Purchaser
to purchase Securities pursuant to the Transaction Documents has been made by such Purchaser
independently of any other Purchaser and independently of any information, materials, statements or
opinions as to the business, affairs, operations, assets, properties, liabilities, results of
operations, condition (financial or otherwise) or prospects of the Company which may have been made
or given by any other Purchaser or by any agent or employee of any other Purchaser, and no
Purchaser and any of its agents or employees shall have any liability to any other Purchaser (or
any other Person) relating to or arising from any such information, materials, statement or
opinions. Nothing contained herein or in any Transaction Document, and no action taken by any
Purchaser pursuant thereto, shall be deemed to constitute the Purchasers as a partnership, an
association, a joint venture or any other kind of entity, or create a presumption that the
Purchasers are in any way acting in concert or as a group with respect to such obligations or the
transactions contemplated by the Transaction Documents. Each Purchaser acknowledges that no other
Purchaser has acted as agent for such Purchaser in connection with making its investment hereunder
and that no Purchaser will be acting as agent of such Purchaser in connection with monitoring its
investment in the Securities or enforcing its rights under the Transaction Documents. Each
Purchaser shall be entitled to independently protect and enforce its rights, including without
limitation the rights arising out of this Agreement or out of the other Transaction Documents, and
it shall not be necessary for any other Purchaser to be joined as an additional party in any
proceeding for such purpose. The Company acknowledges that each of the Purchasers has been provided
with the same Transaction Documents for the purpose of closing a transaction with multiple
Purchasers and not because it was required or requested to do so by any Purchaser. The Company’s
obligations to each Purchaser under this Agreement are identical to its obligations to each other
Purchaser other than such differences resulting solely from the number of Securities purchased by
such Purchaser, but regardless of whether such obligations are memorialized herein or in another
agreement between the Company and a Purchaser.
(q) Termination. This Agreement may be terminated and the sale and purchase of the Shares and
the Warrants abandoned at any time prior to the Closing by either the Company or any Purchaser
listed on Annex A hereto (with respect to itself only), upon written notice to the other, if the
Closing has not been consummated on or prior to 5: 00 p.m., New York City time, on the Outside
Date; provided, however , that the right to terminate this Agreement under this Section 6.17 shall
not be available to any Person whose failure to comply with its obligations under this Agreement
has been the cause of or resulted in the failure of the Closing to occur on or before such time.
Nothing in this Section 6.17 shall be deemed to release any party from any liability for any breach
by such party of the terms and provisions of this Agreement or the other Transaction Documents or
to impair the right of any party to compel specific performance by any other party of its
obligations under this Agreement or the other Transaction Documents. In the event of a termination
pursuant to this Section, the Company shall promptly notify all non-terminating Purchasers. Upon a
termination in accordance with this
32
Section, the Company and the terminating Purchaser(s) shall not have any further obligation or
liability (including arising from such termination) to the other, and no Purchaser will have any
liability to any other Purchaser under the Transaction Documents as a result therefrom.
(r) Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in
(and without limiting any similar provisions of) the Transaction Documents, whenever any Purchaser
exercises a right, election, demand or option owed to such Purchaser by the Company under a
Transaction Document and the Company does not timely perform its related obligations within the
periods therein provided, then, prior to the performance by the Company of the Company’s related
obligation, such Purchaser may rescind or withdraw, in its sole discretion from time to time upon
written notice to the Company, any relevant notice, demand or election in whole or in part without
prejudice to its future actions and rights.
(s) Conflict Waiver. Each party to this Agreement acknowledges that Cooley Godward Kronish
llp (“Cooley”), outside general counsel to the Company, has in the past performed and is
or may now or in the future represent one or more Purchasers or their affiliates in matters
unrelated to the transactions contemplated by this Agreement (the “Financing”), including
representation of such Purchasers or their affiliates in matters of a similar nature to the
Financing. The applicable rules of professional conduct require that Cooley inform the parties
hereunder of this representation and obtain their consent. Cooley has served as outside general
counsel to the Company and has negotiated the terms of the Financing solely on behalf of the
Company. The Company and each Purchaser hereby (a) acknowledge that they have had an opportunity
to ask for and have obtained information relevant to such representation, including disclosure of
the reasonably foreseeable adverse consequences of such representation; (b) acknowledge that with
respect to the Financing, Cooley has represented solely the Company, and not any Purchaser or any
stockholder, director or employee of the Company or any Purchaser; and (c) gives its informed
consent to Xxxxxx’x representation of the Company in the Financing.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGES FOR PURCHASERS FOLLOW]
[SIGNATURE PAGES FOR PURCHASERS FOLLOW]
33
In Witness Whereof, the parties hereto have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date first indicated
above.
| CARDICA, INC. | ||||||
| By: Name: |
/s/ Xxxxxx X. Xxxxxx
|
|||||
| Title: | Chief Financial Officer | |||||
34
| NAME OF PURCHASER: | Xxxxxx Hill Ventures, a California Limited Partnership |
| By: Name: |
/s/ Xxxxxxx X. Xxxxxxx, Xx.
|
|||||
| Title: | Managing Director of the General Partner | |||||
| Aggregate Purchase Price (Subscription Amount): $1,820,979.69 |
||||||
| Number of Shares to be Acquired: 1,453,876 | ||||||
| Underlying Shares Subject to Warrant: 726,938 (50% of the number of Shares to be acquired) |
||||||
| Tax ID No.: | ||||||
| Address for Notice: | ||||||
| c/o Sutter Hill Ventures 000 Xxxx Xxxx Xxxx, Xxxxx X-000 Xxxx Xxxx, XX 00000 |
||||||
| Telephone No.: (000) 000-0000 | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Attention: Xxxxxx Xxx | ||||||
Delivery Instructions:
(if different than above)
(if different than above)
x/x Xxxxxx Xxxxxx Xxxxxxxx
Xxxxxx: One Xxxxxxxxxx Street, Suite 3700
City/State/Zip: Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxx
Telephone No.: (000) 000-0000
| NAME OF PURCHASER: | G. XXXXXXX XXXXX, XX. AND XXXX XXXX XXXXX, CO-TRUSTEES OF THE XXXXX REVOCABLE TRUST U/A/D 2/3/03 |
| By: Name: |
/s/ Xxxxxx Xxx
|
|||||
| Title: | Power of Attorney | |||||
| Aggregate Purchase Price (Subscription Amount): $65,067.38 |
||||||
| Number of Shares to be Acquired: 51,950 | ||||||
| Underlying Shares Subject to Warrant: 25,975 (50% of the number of Shares to be acquired) |
||||||
| Tax ID No.: | ||||||
| Address for Notice: | ||||||
| c/o Sutter Hill Ventures 000 Xxxx Xxxx Xxxx, Xxxxx X-000 Xxxx Xxxx, XX 00000 |
||||||
| Telephone No.: (000) 000-0000 | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Attention: Xxxxxx Xxx | ||||||
Delivery Instructions:
(if different than above)
(if different than above)
x/x Xxxxxx Xxxxxx Xxxxxxxx
Xxxxxx: One Xxxxxxxxxx Street, Suite 3700
City/State/Zip: Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxx
Telephone No.: (000) 000-0000
| NAME OF PURCHASER: | XXXXXXXX HOLDINGS, L.P. |
| By: Name: |
/s/ Xxxxxx Xxx
|
|||||
| Title: | Power of Attorney | |||||
| Aggregate Purchase Price (Subscription Amount): $91,100.65 |
||||||
| Number of Shares to be Acquired: 72,735 | ||||||
| Underlying Shares Subject to Warrant: 36,368 (50% of the number of Shares to be acquired) |
||||||
| Tax ID No.: | ||||||
| Address for Notice: | ||||||
| c/o Sutter Hill Ventures 000 Xxxx Xxxx Xxxx, Xxxxx X-000 Xxxx Xxxx, XX 00000 |
||||||
| Telephone No.: (000) 000-0000 | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Attention: Xxxxxx Xxx | ||||||
Delivery Instructions:
(if different than above)
(if different than above)
x/x Xxxxxx Xxxxxx Xxxxxxxx
Xxxxxx: One Xxxxxxxxxx Street, Suite 3700
City/State/Zip: Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxx
Telephone No.: (000) 000-0000
| NAME OF PURCHASER: | XXXXXXX X. XXXXXXX, XX., TRUSTEE OF THE XXXXXXX X. XXXXXXX, XX. REVOCABLE TRUST U/A/D 8/5/09 |
| By: Name: |
/s/ Xxxxxxx X. Xxxxxxx, Xx.
|
|||||
| Title: | Trustee | |||||
| Aggregate Purchase Price (Subscription Amount): $99,999.60 |
||||||
| Number of Shares to be Acquired: 79,840 | ||||||
| Underlying Shares Subject to Warrant: 39,920 (50% of the number of Shares to be acquired) |
||||||
| Tax ID No.: | ||||||
| Address for Notice: | ||||||
| c/o Sutter Hill Ventures 000 Xxxx Xxxx Xxxx, Xxxxx X-000 Xxxx Xxxx, XX 00000 |
||||||
| Telephone No.: (000) 000-0000 | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Attention: Xxxxxx Xxx | ||||||
Delivery Instructions:
(if different than above)
(if different than above)
x/x Xxxxxx Xxxxxx Xxxxxxxx
Xxxxxx: One Xxxxxxxxxx Street, Suite 3700
City/State/Zip: Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxx
Telephone No.: (000) 000-0000
| NAME OF PURCHASER: | YOVEST, L.P. |
| By: Name: |
/s/ Xxxxxxx X. Xxxxxxx, Xx.
|
|||||
| Title: | Trustee of The Younger Living Trust U/A/D 1/20/95, General Partner | |||||
| Aggregate Purchase Price (Subscription Amount): $99,999.60 |
||||||
| Number of Shares to be Acquired: 79,840 | ||||||
| Underlying Shares Subject to Warrant: 39,920 (50% of the number of Shares to be acquired) |
||||||
| Tax ID No.: | ||||||
| Address for Notice: | ||||||
| c/o Sutter Hill Ventures 000 Xxxx Xxxx Xxxx, Xxxxx X-000 Xxxx Xxxx, XX 00000 |
||||||
| Telephone No.: (000) 000-0000 | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Attention: Xxxxxx Xxx | ||||||
Delivery Instructions:
(if different than above)
(if different than above)
x/x Xxxxxx Xxxxxx Xxxxxxxx
Xxxxxx: One Xxxxxxxxxx Street, Suite 3700
City/State/Zip: Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxx
Telephone No.: (000) 000-0000
| NAME OF PURCHASER: | XXXXXXX X. XXXXX AND XXXXX X.X. XXXXX AS TRUSTEES OF XXXXXXX X. AND XXXXX X.X. XXXXX TRUST AGREEMENT DATED 2/24/99 |
| By: Name: |
/s/ Xxxxxxx X. Xxxxx
|
|||||
| Title: | Trustee | |||||
| Aggregate Purchase Price (Subscription Amount): $47,712.74 |
||||||
| Number of Shares to be Acquired: 38,094 | ||||||
| Underlying Shares Subject to Warrant: 19,047 (50% of the number of Shares to be acquired) |
||||||
| Tax ID No.: | ||||||
| Address for Notice: | ||||||
| c/o Sutter Hill Ventures 000 Xxxx Xxxx Xxxx, Xxxxx X-000 Xxxx Xxxx, XX 00000 |
||||||
| Telephone No.: (000) 000-0000 | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Attention: Xxxxxx Xxx | ||||||
Delivery Instructions:
(if different than above)
(if different than above)
x/x Xxxxxx Xxxxxx Xxxxxxxx
Xxxxxx: One Xxxxxxxxxx Street, Suite 3700
City/State/Zip: Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxx
Telephone No.: (000) 000-0000
| NAME OF PURCHASER: | XXXXX X. XXXXXXX, TRUSTEE OF THE XXXXXXX REVOCABLE TRUST U/A/D 9/28/2000 |
| By: Name: |
/s/ Xxxxxx Xxx
|
|||||
| Title: | Power of Attorney | |||||
| Aggregate Purchase Price (Subscription Amount): $73,779.77 |
||||||
| Number of Shares to be Acquired: 58,906 | ||||||
| Underlying Shares Subject to Warrant: 29,453 (50% of the number of Shares to be acquired) |
||||||
| Tax ID No.: | ||||||
| Address for Notice: | ||||||
| c/o Sutter Hill Ventures 000 Xxxx Xxxx Xxxx, Xxxxx X-000 Xxxx Xxxx, XX 00000 |
||||||
| Telephone No.: (000) 000-0000 | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Attention: Xxxxxx Xxx | ||||||
Delivery Instructions:
(if different than above)
(if different than above)
x/x Xxxxxx Xxxxxx Xxxxxxxx
Xxxxxx: One Xxxxxxxxxx Street, Suite 3700
City/State/Zip: Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxx
Telephone No.: (000) 000-0000
| NAME OF PURCHASER: | XXXXX X. XXXXX AND XXXXXXXX X. X’XXXXX AS TRUSTEES OF THE WHITE FAMILY TRUST U/A/D 4/3/97 |
| By: Name: |
/s/ Xxxxx X. Xxxxx
|
|||||
| Title: | Trustee | |||||
| Aggregate Purchase Price (Subscription Amount): $45,335.49 |
||||||
| Number of Shares to be Acquired: 36,196 | ||||||
| Underlying Shares Subject to Warrant: 18,098 (50% of the number of Shares to be acquired) |
||||||
| Tax ID No.: | ||||||
| Address for Notice: | ||||||
| c/o Sutter Hill Ventures 000 Xxxx Xxxx Xxxx, Xxxxx X-000 Xxxx Xxxx, XX 00000 |
||||||
| Telephone No.: (000) 000-0000 | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Attention: Xxxxxx Xxx | ||||||
Delivery Instructions:
(if different than above)
(if different than above)
x/x Xxxxxx Xxxxxx Xxxxxxxx
Xxxxxx: One Xxxxxxxxxx Street, Suite 3700
City/State/Zip: Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxx
Telephone No.: (000) 000-0000
| NAME OF PURCHASER: | XXXXXXX X. XXXX AND XXXXXXXXX X. XXXX AS TRUSTEES OF XXXXXXX X. AND XXXXXXXXX X. XXXX TRUST AGREEMENT DATED 10/31/00 |
| By: Name: |
/s/ Xxxxxx Xxx
|
|||||
| Title: | Power of Attorney | |||||
| Aggregate Purchase Price (Subscription Amount): $34,854.57 |
||||||
| Number of Shares to be Acquired: 27,828 | ||||||
| Underlying Shares Subject to Warrant: 13,914 (50% of the number of Shares to be acquired) |
||||||
| Tax ID No.: | ||||||
| Address for Notice: | ||||||
| c/o Sutter Hill Ventures 000 Xxxx Xxxx Xxxx, Xxxxx X-000 Xxxx Xxxx, XX 00000 |
||||||
| Telephone No.: (000) 000-0000 | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Attention: Xxxxxx Xxx | ||||||
Delivery Instructions:
(if different than above)
(if different than above)
x/x Xxxxxx Xxxxxx Xxxxxxxx
Xxxxxx: One Xxxxxxxxxx Street, Suite 3700
City/State/Zip: Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxx
Telephone No.: (000) 000-0000
| NAME OF PURCHASER: | XXXXXX X. XXXXXXX AND XXXXXX X. XXXXXXX AS TRUSTEES OF XXXXXXX 2003 TRUST |
| By: Name: |
/s/ Xxxxxx Xxx
|
|||||
| Title: | Power of Attorney | |||||
| Aggregate Purchase Price (Subscription Amount): $30,032.45 |
||||||
| Number of Shares to be Acquired: 23,978 | ||||||
| Underlying Shares Subject to Warrant: 11,989 (50% of the number of Shares to be acquired) |
||||||
| Tax ID No.: | ||||||
| Address for Notice: | ||||||
| c/o Sutter Hill Ventures 000 Xxxx Xxxx Xxxx, Xxxxx X-000 Xxxx Xxxx, XX 00000 |
||||||
| Telephone No.: (000) 000-0000 | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Attention: Xxxxxx Xxx | ||||||
Delivery Instructions:
(if different than above)
(if different than above)
x/x Xxxxxx Xxxxxx Xxxxxxxx
Xxxxxx: One Xxxxxxxxxx Street, Suite 3700
City/State/Zip: Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxx
Telephone No.: (000) 000-0000
| NAME OF PURCHASER: | Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxx X. Xxxxxxxx |
| By: Name: |
/s/ Xxxxx X. Xxxxxx
|
|||||
| Title: | Assistant Vice President Trust Officer | |||||
| Aggregate Purchase Price (Subscription Amount): $155,271.24 |
||||||
| Number of Shares to be Acquired: 123,969 | ||||||
| Underlying Shares Subject to Warrant: 61,985 (50% of the number of Shares to be acquired) |
||||||
| Tax ID No.: | ||||||
| Address for Notice: | ||||||
| c/o Sutter Hill Ventures 000 Xxxx Xxxx Xxxx, Xxxxx X-000 Xxxx Xxxx, XX 00000 |
||||||
| Telephone No.: (000) 000-0000 | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Attention: Xxxxxx Xxx | ||||||
Delivery Instructions:
(if different than above)
(if different than above)
c/o Wells Fargo Bank Institutional Trust Services
Street: 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
MAC A0193-120
City/State/Zip: Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone No.: (000) 000-0000
| NAME OF PURCHASER: | Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxxxx X. Xxxxxxx, Xx. |
| By: Name: |
/s/ Xxxxx X. Xxxxxx
|
|||||
| Title: | Assistant Vice President Trust Officer | |||||
| Aggregate Purchase Price (Subscription Amount): $300,000.12 |
||||||
| Number of Shares to be Acquired: 239,521 | ||||||
| Underlying Shares Subject to Warrant: 119,761 (50% of the number of Shares to be acquired) |
||||||
| Tax ID No.: | ||||||
| Address for Notice: | ||||||
| c/o Sutter Hill Ventures 000 Xxxx Xxxx Xxxx, Xxxxx X-000 Xxxx Xxxx, XX 00000 |
||||||
| Telephone No.: (000) 000-0000 | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Attention: Xxxxxx Xxx | ||||||
Delivery Instructions:
(if different than above)
(if different than above)
c/o Wells Fargo Bank Institutional Trust Services
Street: 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
MAC A0193-120
City/State/Zip: Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone No.: (000) 000-0000
| NAME OF PURCHASER: | Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxx Xxxx |
| By: Name: |
/s/ Xxxxx X. Xxxxxx
|
|||||
| Title: | Assistant Vice President Trust Officer | |||||
| Aggregate Purchase Price (Subscription Amount): $288,290.43 |
||||||
| Number of Shares to be Acquired: 230,172 | ||||||
| Underlying Shares Subject to Warrant: 115,086 (50% of the number of Shares to be acquired) |
||||||
| Tax ID No.: | ||||||
| Address for Notice: | ||||||
| c/o Sutter Hill Ventures 000 Xxxx Xxxx Xxxx, Xxxxx X-000 Xxxx Xxxx, XX 00000 |
||||||
| Telephone No.: (000) 000-0000 | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Attention: Xxxxxx Xxx | ||||||
Delivery Instructions:
(if different than above)
(if different than above)
c/o Wells Fargo Bank Institutional Trust Services
Street: 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
MAC A0193-120
City/State/Zip: Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone No.: (000) 000-0000
| NAME OF PURCHASER: | Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxx X. Xxxxx (Rollover) |
| By: Name: |
/s/ Xxxxx X. Xxxxxx
|
|||||
| Title: | Assistant Vice President Trust Officer | |||||
| Aggregate Purchase Price (Subscription Amount): $13,847.64 |
||||||
| Number of Shares to be Acquired: 11,056 | ||||||
| Underlying Shares Subject to Warrant: 5,528 (50% of the number of Shares to be acquired) |
||||||
| Tax ID No.: | ||||||
| Address for Notice: | ||||||
| c/o Sutter Hill Ventures 000 Xxxx Xxxx Xxxx, Xxxxx X-000 Xxxx Xxxx, XX 00000 |
||||||
| Telephone No.: (000) 000-0000 | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Attention: Xxxxxx Xxx | ||||||
Delivery Instructions:
(if different than above)
(if different than above)
c/o Wells Fargo Bank Institutional Trust Services
Street: 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
MAC A0193-120
City/State/Zip: Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone No.: (000) 000-0000
| NAME OF PURCHASER: | Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxx X. Xxxx |
| By: Name: |
/s/ Xxxxx X. Xxxxxx
|
|||||
| Title: | Assistant Vice President Trust Officer | |||||
| Aggregate Purchase Price (Subscription Amount): $1,500.50 |
||||||
| Number of Shares to be Acquired: 1,198 | ||||||
| Underlying Shares Subject to Warrant: 599 (50% of the number of Shares to be acquired) |
||||||
| Tax ID No.: | ||||||
| Address for Notice: | ||||||
| c/o Sutter Hill Ventures 000 Xxxx Xxxx Xxxx, Xxxxx X-000 Xxxx Xxxx, XX 00000 |
||||||
| Telephone No.: (000) 000-0000 | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Attention: Xxxxxx Xxx | ||||||
Delivery Instructions:
(if different than above)
(if different than above)
c/o Wells Fargo Bank Institutional Trust Services
Street: 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
MAC A0193-120
City/State/Zip: Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone No.: (000) 000-0000
| NAME OF PURCHASER: | Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Yu-Xxxx Xxxx |
| By: | /s/ Xxxxx X. Xxxxxx | |||||
| Name: | Xxxxx X. Xxxxxx | |||||
| Title: | Assistant Vice President Trust Officer | |||||
| Aggregate Purchase Price (Subscription Amount):
$1,500.50 |
||||||
| Number of Shares to be Acquired: 1,198 | ||||||
| Underlying Shares Subject to Warrant: 599 | ||||||
| (50% of the number of Shares to be acquired) | ||||||
| Tax ID No.: | ||||||
| Address for Notice: | ||||||
| c/o Sutter Xxxx Ventures 000 Xxxx Xxxx Xxxx, Xxxxx X-000 Xxxx Xxxx, XX 00000 |
||||||
| Telephone No.: (000) 000-0000 | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Attention: Xxxxxx Xxx | ||||||
| Delivery Instructions: (if different than above) |
||||
| c/o Wells Fargo Bank Institutional Trust Services | ||||
Street:
|
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx | |||
| MAC A0193-120 | ||||
| City/State/Zip: Xxx Xxxxxxxxx, XX 00000 | ||||
| Attention: Xxxxx Xxxxxx | ||||
| Telephone No.: (000) 000-0000 | ||||
| NAME OF PURCHASER: | Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxxxxx Xxx (Rollover) |
| By: | /s/ Xxxxx X. Xxxxxx | |||||
| Name: | Xxxxx X. Xxxxxx | |||||
| Title: | Assistant Vice President Trust Officer | |||||
| Aggregate Purchase Price (Subscription Amount): $5,640.07 |
||||||
| Number of Shares to be Acquired: 4,503 | ||||||
| Underlying Shares Subject to Warrant: 2,252 | ||||||
| (50% of the number of Shares to be acquired) | ||||||
| Tax ID No.: | ||||||
| Address for Notice: | ||||||
| c/o Sutter Hill Ventures 000 Xxxx Xxxx Xxxx, Xxxxx X-000 Xxxx Xxxx, XX 00000 |
||||||
| Telephone No.: (000) 000-0000 | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Attention: Xxxxxx Xxx | ||||||
| Delivery Instructions: (if different than above) |
||||
| c/o Wells Fargo Bank Institutional Trust Services | ||||
Street:
|
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx | |||
| MAC A0193-120 | ||||
| City/State/Zip: Xxx Xxxxxxxxx, XX 00000 | ||||
| Attention: Xxxxx Xxxxxx | ||||
| Telephone No.: (000) 000-0000 | ||||
| NAME OF PURCHASER: | Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxxx Xxx |
| By: | /s/ Xxxxx X. Xxxxxx | |||||
| Name: | Xxxxx X. Xxxxxx | |||||
| Title: | Assistant Vice President Trust Officer | |||||
| Aggregate Purchase Price (Subscription Amount): $750.31 |
||||||
| Number of Shares to be Acquired: 599 | ||||||
| Underlying Shares Subject to Warrant: 300 | ||||||
| (50% of the number of Shares to be acquired) | ||||||
| Tax ID No.: | ||||||
| Address for Notice: | ||||||
| c/o Sutter Xxxx Ventures 000 Xxxx Xxxx Xxxx, Xxxxx X-000 Xxxx Xxxx, XX 00000 |
||||||
| Telephone No.: (000) 000-0000 | ||||||
| Email: xxxxxx@xxx.xxx | ||||||
| Attention: Xxxxxx Xxx | ||||||
| Delivery Instructions: (if different than above) |
||||
| c/o Wells Fargo Bank Institutional Trust Services | ||||
Street:
|
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx | |||
| MAC A0193-120 | ||||
| City/State/Zip: Xxx Xxxxxxxxx, XX 00000 | ||||
| Attention: Xxxxx Xxxxxx | ||||
| Telephone No.: (000) 000-0000 | ||||
| NAME OF PURCHASER: Xxxxxx Partners, L.P. | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||
| Name: | Xxxxxxx X. Xxxxxx | |||||
| Title: | Managing Member | |||||
| Aggregate Purchase Price (Subscription Amount): $99,999.60 |
||||||
| Number of Shares to be Acquired: 79,840 | ||||||
| Underlying Shares Subject to Warrant: 39,920 | ||||||
| (50% of the number of Shares to be acquired) | ||||||
| Tax ID No.: | ||||||
| Address for Notice: | ||||||
| 000 Xxxxxxxxx Xxxxxxx, Xxxxx 000 Xxxxxxx, XX 00000 |
||||||
| Telephone No.: 000-000-0000 | ||||||
| Email: | ||||||
| Attention: | ||||||
| Delivery Instructions: (if different than above) |
||||
c/o
|
||||
Street:
|
||||
City/State/Zip:
|
||||
Attention:
|
||||
| NAME OF PURCHASER: Xxxxx and Xxxxx Xxxxxx | ||||||
| By: | /s/ Xxxxx Delfik and Xxxxx Xxxxxx | |||||
| Signature of Purchaser | ||||||
| Aggregate Purchase Price (Subscription Amount): $300,000.12 | ||||||
| Number of Shares to be Acquired: 239,521 | ||||||
| Underlying Shares Subject to Warrant: 119,761 | ||||||
| (50% of the number of Shares to be acquired) | ||||||
| Tax ID No.: | ||||||
| Address for Notice: | ||||||
| 000 Xx. Xxxxx Xxxxxxxxx, XX 00000 |
||||||
| Telephone No.: 000-000-0000 | ||||||
| Email: | ||||||
| Attention: Xxxxx Xxxxxx | ||||||
| Delivery Instructions: | ||||
| (if different than above) | ||||
c/o
|
||||
Street:
|
||||
City/State/Zip:
|
||||
Attention:
|
||||
| NAME OF PURCHASER: Xxxx Xxxxx | ||||||
| /s/ Xxxx Xxxxx | ||||||
| Signature of Purchaser | ||||||
| Aggregate Purchase Price (Subscription Amount): $500,000.51 |
||||||
| Number of Shares to be Acquired: 399,202 | ||||||
| Underlying Shares Subject to Warrant: 199,601 | ||||||
| (50% of the number of Shares to be acquired) | ||||||
| Tax ID No.: | ||||||
| Address for Notice: | ||||||
| Telephone No.: | ||||||
| Email: | ||||||
| Attention: | ||||||
Delivery Instructions:
(if different than above)
(if different than above)
c/o
|
||||
Street:
|
||||
City/State/Zip:
|
||||
Attention:
|
||||
Telephone
No.:
|
||||
| NAME OF PURCHASER: Xxxxx Xxxxx | ||||||
| /s/ Xxxxx Xxxxx | ||||||
| Signature of Purchaser | ||||||
| Aggregate Purchase Price (Subscription Amount): $449,999.52 | ||||||
| Number of Shares to be Acquired: 359,281 | ||||||
| Underlying Shares Subject to Warrant: 179,641 | ||||||
| (50% of the number of Shares to be acquired) | ||||||
| Tax ID No.: | ||||||
| Address for Notice: | ||||||
| Telephone No.: | ||||||
| Email: | ||||||
| Attention: | ||||||
Delivery Instructions:
(if different than above)
(if different than above)
c/o
|
||||
Street:
|
||||
City/State/Zip:
|
||||
Attention:
|
||||
Telephone
No.:
|
||||
| NAME OF PURCHASER: Xxxx Xxxxxx | ||||||
| /s/ Xxxx Xxxxxx | ||||||
| Signature of Purchaser | ||||||
| Aggregate Purchase Price (Subscription Amount): $49,999.80 |
||||||
| Number of Shares to be Acquired: 39,920 | ||||||
| Underlying Shares Subject to Warrant: 19,960 | ||||||
| (50% of the number of Shares to be acquired) | ||||||
| Tax ID No.: | ||||||
| Address for Notice: | ||||||
| Telephone No.: | ||||||
| Email: | ||||||
| Attention: | ||||||
Delivery Instructions:
(if different than above)
(if different than above)
c/o
|
||||
Street:
|
||||
City/State/Zip:
|
||||
Attention:
|
||||
Telephone
No.:
|
||||
| NAME OF PURCHASER: Xxx Xxxxxx Xxxxxxx Trust | ||||||||
| /s/ Xxx Xxxxxxx, Trustee | ||||||||
| Signature of Purchaser | ||||||||
| Aggregate Purchase Price (Subscription Amount): $200,000.52 |
||||||||
| Number of Shares to be Acquired: 159,681 | ||||||||
| Underlying Shares Subject to Warrant: 79,841 | ||||||||
| (50% of the number of Shares to be acquired) | ||||||||
| Tax ID No.: | ||||||||
| Address for Notice: | ||||||||
| X.X. Xxx 000 | ||||||||
| Xxxxxxxxxxx, XX 00000 | ||||||||
| Telephone No.: | 000-000-0000 | |||||||
| Email: | ||||||||
| Attention: | X.X. Xxxxxxx | |||||||
Delivery Instructions:
(if different than above)
(if different than above)
c/o
|
||||
Street:
|
||||
City/State/Zip:
|
||||
Attention:
|
||||
Telephone
No.:
|
||||
| NAME OF PURCHASER: Prescott Group Capital Management, LLC | ||||||||
| By: | /s/ Xxxx Xxxxxxxx | |||||||
| Name: | Xxxx Xxxxxxxx | |||||||
| Title: | Manager | |||||||
| Aggregate Purchase Price (Subscription Amount): $1,999,999.52 | ||||||||
| Number of Shares to be Acquired: 1,596,806 | ||||||||
| Underlying Shares Subject to Warrant: 798,403 | ||||||||
| (50% of the number of Shares to be acquired) | ||||||||
| Tax ID No.: | ||||||||
| Address for Notice: | ||||||||
| 0000 X. Xxxxx Xxx., Xxxxx 0000 Xxxxx, XX 00000 |
||||||||
| Telephone No.: 000-000-0000 Ext. 3 and Ext 4. | ||||||||
| Email: xxxx@xxxxxxxxxxxxxxx.xxx | ||||||||
| Email: xxxxxxx@xxxxxxxxxxxxxxx.xxx | ||||||||
| Attention: | ||||||||
Delivery Instructions:
(if different than above)
(if different than above)
c/o
|
||||
Street:
|
||||
City/State/Zip:
|
||||
Attention:
|
||||
Telephone
No.:
|
||||
| NAME OF PURCHASER: Wasatch Ultra Growth Fund | ||||||
| By: Name: |
/s/ Xxxxxx Xxxxxxx
|
|||||
| Title: Vice President of Wasatch Advisors, Inc. investment advisor for Wasatch Funds, Inc. on behalf of Wasatch Ultra Growth Fund | ||||||
| Aggregate Purchase Price (Subscription Amount): $413,325.00 | ||||||
| Number of Shares to be Acquired: 330,000 | ||||||
| Underlying Shares Subject to Warrant: 165,000 | ||||||
| (50% of the number of Shares to be acquired) | ||||||
| Tax ID No.: | ||||||
| Address for Notice: | ||||||
| 000 Xxxxxx Xxxx Xxx., 0xx Xxxxx Xxxx Xxxx Xxxx, XX 00000 |
||||||
| Telephone No.: 000-000-0000 | ||||||
| Email: xxxxxxxx@xxxxxxxxxxxxxxx.xxx | ||||||
| Email: xxxxxxxx@xxxxxxxxxxxxxxx.xxx | ||||||
| Attention: Xxxxx Xxxxxxxx/Xxx Xxxxxxx | ||||||
Delivery Instructions:
(if different than above)
(if different than above)
x/x XXXX/Xxx Xxxx Xxxxxx
Xxxxxx: 00 Xxxxx Xxxxxx
Xxxx/Xxxxx/Xxx: Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx for the account of State Street W4A7
Telephone No.:
| NAME OF PURCHASER: Wasatch Micro Cap Fund | ||||||
| By: Name: |
/s/ Xxxxxx Xxxxxxx
|
|||||
| Title: Vice President of Wasatch Advisors, Inc. investment advisor for Wasatch Funds, Inc. on behalf of Wasatch Micro Cap Fund | ||||||
| Aggregate Purchase Price (Subscription Amount): $807,862.50 | ||||||
| Number of Shares to be Acquired: 645,000 | ||||||
| Underlying Shares Subject to Warrant: 322,500 | ||||||
| (50% of the number of Shares to be acquired) | ||||||
| Tax ID No.: | ||||||
| Address for Notice: | ||||||
| 000 Xxxxxx Xxxx Xxx., 0xx Xxxxx Xxxx Xxxx Xxxx, XX 00000 |
||||||
| Telephone No.: 000-000-0000 | ||||||
| Email: xxxxxxxx@xxxxxxxxxxxxxxx.xxx | ||||||
| Email: xxxxxxxx@xxxxxxxxxxxxxxx.xxx | ||||||
| Attention: Xxxxx Xxxxxxxx/Xxx Xxxxxxx | ||||||
Delivery Instructions:
(if different than above)
(if different than above)
x/x XXXX/Xxx Xxxx Xxxxxx
Xxxxxx: 00 Xxxxx Xxxxxx
Xxxx/Xxxxx/Xxx: Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx for the account of State Street W4A4
Telephone No.:
| NAME OF PURCHASER: Wasatch Global Science & Technology Fund | ||||||
| By: Name: |
/s/ Xxxxxx Xxxxxxx
|
|||||
| Title: Vice President of Wasatch Advisors, Inc. investment advisor for Wasatch Funds, Inc. on behalf of Global Science & Technology Fund | ||||||
| Aggregate Purchase Price (Subscription Amount): $179,107.50 | ||||||
| Number of Shares to be Acquired: 143,000 | ||||||
| Underlying Shares Subject to Warrant: 71,500 | ||||||
| (50% of the number of Shares to be acquired) | ||||||
| Tax ID No.: | ||||||
| Address for Notice: | ||||||
| 000 Xxxxxx Xxxx Xxx., 0xx Xxxxx Xxxx Xxxx Xxxx, XX 00000 |
||||||
| Telephone No.: 000-000-0000 | ||||||
| Email: xxxxxxxx@xxxxxxxxxxxxxxx.xxx | ||||||
| Email: xxxxxxxx@xxxxxxxxxxxxxxx.xxx | ||||||
| Attention: Xxxxx Xxxxxxxx/Xxx Xxxxxxx | ||||||
Delivery Instructions:
(if different than above)
(if different than above)
x/x XXXX/Xxx Xxxx Xxxxxx
Xxxxxx: 00 Xxxxx Xxxxxx
Xxxx/Xxxxx/Xxx: Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx for the account of State Street W4A2
Telephone No.:
| NAME OF PURCHASER: Wasatch Micro Cap Value Fund | ||||
| By: Name: |
/s/ Xxxxxx Xxxxxxx
|
|||
| Title: Vice President of Wasatch Advisors, Inc. investment advisor for Wasatch Funds, Inc. on behalf of Wasatch Micro Cap Value Fund | ||||
| Aggregate Purchase Price (Subscription Amount): $276,802.50 |
||||
| Number of Shares to be Acquired: 221,000 | ||||
| Underlying Shares Subject to Warrant: 110,500 | ||||
| (50% of the number of Shares to be acquired) | ||||
| Tax ID No.: | ||||
| Address for Notice: | ||||
| 000 Xxxxxx Xxxx Xxx., 0xx Xxxxx Xxxx Xxxx Xxxx, XX 00000 |
||||
| Telephone No.: 000-000-0000 | ||||
| Email: xxxxxxxx@xxxxxxxxxxxxxxx.xxx | ||||
| Email: xxxxxxxx@xxxxxxxxxxxxxxx.xxx | ||||
| Attention: Xxxxx Xxxxxxxx/Xxx Xxxxxxx | ||||
Delivery Instructions: (if different than above) |
x/x XXXX/Xxx Xxxx Xxxxxx |
Xxxxxx: 00 Xxxxx Xxxxxx |
Xxxx/Xxxxx/Xxx: Xxx Xxxx, XX 00000 |
Attention: Xxxxxx Xxxxxx for the account of State Street W4A9 |
Telephone No.: |
| NAME OF PURCHASER: Wasatch Global Opportunities Fund | ||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Title: Vice President of Wasatch Advisors, Inc. investment advisor for Wasatch Funds, Inc. on behalf of Wasatch Global Opportunities Fund | ||||
| Aggregate Purchase Price (Subscription Amount): $100,200.00 |
||||
| Number of Shares to be Acquired: 80,000 | ||||
| Underlying Shares Subject to Warrant: 40,000 | ||||
| (50% of the number of Shares to be acquired) | ||||
| Tax ID No.: | ||||
| Address for Notice: | ||||
| 000 Xxxxxx Xxxx Xxx., 0xx Xxxxx Xxxx Xxxx Xxxx, XX 00000 |
||||
| Telephone No.: 000-000-0000 | ||||
| Email: xxxxxxxx@xxxxxxxxxxxxxxx.xxx | ||||
| Email: xxxxxxxx@xxxxxxxxxxxxxxx.xxx | ||||
| Attention: Xxxxx Xxxxxxxx/Xxx Xxxxxxx | ||||
Delivery Instructions: (if different than above) |
x/x XXXX/Xxx Xxxx Xxxxxx |
Xxxxxx: 00 Xxxxx Xxxxxx |
Xxxx/Xxxxx/Xxx: Xxx Xxxx, XX 00000 |
Attention: Xxxxxx Xxxxxx for the account of State Street W4B4 |
Telephone No.: |
| NAME OF PURCHASER: DAFNA Life Science Ltd. | ||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx, CFA | |||
| Title: Chief Compliance Officer and Director of Risk Management on behalf of DAFNA Life Science Ltd. | ||||
| Aggregate Purchase Price (Subscription Amount): $93,937.50 |
||||
| Number of Shares to be Acquired: 75,000 | ||||
| Underlying Shares Subject to Warrant: 37,500 | ||||
| (50% of the number of Shares to be acquired) | ||||
| Tax ID No.: | ||||
| Address for Notice: | ||||
| c/o DAFNA Capital Management | ||||
| 00000 Xxxxxxxx Xxxx., Xxxxx 0000 | ||||
| Xxx Xxxxxxx, XX 00000 | ||||
| Telephone No.: (000) 000-0000 | ||||
| Email: xxxxxxxx@XXXXXxxxxxxx.xxx | ||||
| Attention: Xxxxx Xxxxxxx | ||||
| Delivery Instructions: (if different than above) |
||
c/o
|
|
Street:
|
|
City/State/Zip:
|
|
Attention:
|
|
Telephone No.:
|
|
| NAME OF PURCHASER: DAFNA Life Science Market Neutral Ltd. | ||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx, CFA | |||
| Title: Chief Compliance Officer and Director of Risk Management for investment Manager on behalf of DAFNA Life Science Market Neutral Ltd. | ||||
| Aggregate Purchase Price (Subscription Amount): $64,128.00 |
||||
| Number of Shares to be Acquired: 51,200 | ||||
| Underlying Shares Subject to Warrant: 25,600 | ||||
| (50% of the number of Shares to be acquired) | ||||
| Tax ID No.: | ||||
| Address for Notice: | ||||
| c/o DAFNA Capital Management | ||||
| 00000 Xxxxxxxx Xxxx., Xxxxx 0000 | ||||
| Xxx Xxxxxxx, XX 00000 | ||||
| Telephone No.: (000) 000-0000 | ||||
| Email: xxxxxxxx@XXXXXxxxxxxx.xxx | ||||
| Attention: Xxxxx Xxxxxxx | ||||
| Delivery Instructions: (if different than above) |
||
c/o
|
|
Street:
|
|
City/State/Zip:
|
|
Attention:
|
|
Telephone No.:
|
|
| NAME OF PURCHASER: DAFNA Life Science Select Ltd. | ||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx, CFA | |||
| Title: Chief Compliance Officer and Director of Risk Management for Investment Manager on behalf of DAFNA Life Science Select Ltd. | ||||
| Aggregate Purchase Price (Subscription Amount): $341,935.01 |
||||
| Number of Shares to be Acquired: 273,002 | ||||
| Underlying Shares Subject to Warrant: 136,501 | ||||
| (50% of the number of Shares to be acquired) | ||||
| Tax ID No.: | ||||
| Address for Notice: | ||||
| c/o DAFNA Capital Management | ||||
| 00000 Xxxxxxxx Xxxx., Xxxxx 0000 | ||||
| Xxx Xxxxxxx, XX 00000 | ||||
| Telephone No.: (000) 000-0000 | ||||
| Email: xxxxxxxx@XXXXXxxxxxxx.xxx | ||||
| Attention: Xxxxx Xxxxxxx | ||||
| Delivery Instructions: (if different than above) |
||
c/o
|
|
Street:
|
|
City/State/Zip:
|
|
Attention:
|
|
Telephone No.:
|
|
| NAME OF PURCHASER: Xxxxx Xxx Corporation | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxx Xxx Corporation | ||||
| Xxxxxxx Capital Management Inc., Attorney-In-Fact By Xxxxxxx X. Xxxxxxx, Executive Vice President |
||||
| Aggregate Purchase Price (Subscription Amount): $44,999.82 |
||||
| Number of Shares to be Acquired: 35,928 | ||||
| Underlying Shares Subject to Warrant: 17,964 | ||||
| (50% of the number of Shares to be acquired) | ||||
| Tax ID No.: | ||||
| Address for Notice: | ||||
| 000 Xxxx Xxxx Xxxxxx | ||||
| Xxxxxxx, XX 00000-0000 | ||||
| Telephone No.: 952 / 000-0000 | ||||
| Email: xxxxxx@xxxxxxxxxx.xxx | ||||
| Attention: Xxxxxxx X. Xxxxxxx | ||||
Delivery Instructions: (if different than above) |
c/o |
Xxxxx Xxxxxxx |
Corp & Venture Services |
Mr. Xxxx Xxxxxxx |
000 Xxxxxxxx Xxxx |
Xxxxxxxxxxx, XX 00000 |
Telephone No.: |
| NAME OF PURCHASER: Xxxxxx X. Xxxxxxx | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxx X. Xxxxxxx | ||||
| Xxxxxxx Capital Management Inc., Attorney-In-Fact
By Xxxxxxx X. Xxxxxxx, Executive Vice President |
||||
| Aggregate Purchase Price (Subscription Amount): $99,999.60 |
||||
| Number of Shares to be Acquired: 79,840 | ||||
| Underlying Shares Subject to Warrant: 39,920 | ||||
| (50% of the number of Shares to be acquired) | ||||
| Tax ID No.: | ||||
| Address for Notice: | ||||
| 000 Xxxx Xxxx Xxxxxx | ||||
| Xxxxxxx, XX 00000-0000 | ||||
| Telephone No.: 952 / 000-0000 | ||||
| Email: xxxxxx@xxxxxxxxxx.xxx | ||||
| Attention: Xxxxxxx X. Xxxxxxx | ||||
Delivery Instructions: (if different than above) |
c/o |
Xxxxx Xxxxxxx |
Corp & Venture Services |
Mr. Xxxx Xxxxxxx |
000 Xxxxxxxx Xxxx |
Xxxxxxxxxxx, XX 00000 |
Telephone No.: |
| NAME OF PURCHASER: | Xxxxxxx X. Xxxxxx Trustee FBO Xxxxxxx X. Xxxxxx Revocable Trust u/a/ dtd 7/3/96 | |||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxxx X. Xxxxxx Trustee FBO Xxxxxxx X. Xxxxxx Revocable Trust u/a/ dtd 7/3/96 | ||||
| Xxxxxxx Capital Management Inc., Attorney-In-Fact By Xxxxxxx X. Xxxxxxx, Executive Vice President |
||||
| Aggregate Purchase Price (Subscription Amount): $29,999.88 |
||||
| Number of Shares to be Acquired: 23,952 | ||||
| Underlying Shares Subject to Warrant: 11,976 | ||||
| (50% of the number of Shares to be acquired) | ||||
| Tax ID No.: | ||||
| Address for Notice: | ||||
| 000 Xxxx Xxxx Xxxxxx Xxxxxxx, XX 00000-0000 |
||||
| Telephone No.: 952 / 000-0000 | ||||
| Email: xxxxxx@xxxxxxxxxx.xxx | ||||
| Attention: Xxxxxxx X. Xxxxxxx | ||||
Delivery Instructions: (if different than above) |
c/o |
Xxxxx Xxxxxxx |
Corp & Venture Services |
Mr. Xxxx Xxxxxxx
000 Xxxxxxxx Xxxx |
Xxxxxxxxxxx, XX 00000 |
Telephone No.: |
| NAME OF PURCHASER: Xxxx X. Xxxxxxx | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxx X. Xxxxxxx | ||||
| Xxxxxxx Capital Management Inc., Attorney-In-Fact
By Xxxxxxx X. Xxxxxxx, Executive Vice President |
||||
| Aggregate Purchase Price (Subscription Amount): $34,999.86 |
||||
| Number of Shares to be Acquired: 27,944 | ||||
| Underlying Shares Subject to Warrant: 13,972 | ||||
| (50% of the number of Shares to be acquired) | ||||
| Tax ID No.: | ||||
| Address for Notice: | ||||
| 000 Xxxx Xxxx Xxxxxx Xxxxxxx, XX 00000-0000 |
||||
| Telephone No.: 952 / 000-0000 | ||||
| Email: xxxxxx@xxxxxxxxxx.xxx | ||||
| Attention: Xxxxxxx X. Xxxxxxx | ||||
Delivery Instructions: (if different than above) |
c/o |
Xxxxx Xxxxxxx |
Corp & Venture Services |
Mr. Xxxx Xxxxxxx |
000 Xxxxxxxx Xxxx X00X00 |
Xxxxxxxxxxx, XX 00000 |
Telephone No.: |
| NAME OF PURCHASER: | Xxxxx Xxxxxxx as Custodian FBO Xxxxxx X. Xxxxxxxxx XXX |
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxx Xxxxxxx as Custodian FBO Xxxxxx X. Xxxxxxxxx XXX
Xxxxxxx Capital Management Inc., Attorney-In-Fact |
||||
| By Xxxxxxx X. Xxxxxxx, Executive Vice President | ||||
| Aggregate Purchase Price (Subscription Amount): $39,999.84 |
||||
| Number of Shares to be Acquired: 31,936 | ||||
| Underlying Shares Subject to Warrant: 15,968 | ||||
| (50% of the number of Shares to be acquired) | ||||
| Tax ID No.: | ||||
| Address for Notice: | ||||
| 000 Xxxx Xxxx Xxxxxx Xxxxxxx, XX 00000-0000 |
||||
| Telephone No.: 952 / 000-0000 | ||||
| Email: xxxxxx@xxxxxxxxxx.xxx | ||||
| Attention: Xxxxxxx X. Xxxxxxx | ||||
Delivery Instructions: (if different than above) |
c/o |
Xxxxx Xxxxxxx Corp & Venture Services |
Mr. Xxxx Xxxxxxx |
000 Xxxxxxxx Xxxx X00X00 |
Xxxxxxxxxxx, XX 00000 |
Telephone No.: |
| NAME OF PURCHASER: Xxxxxx X. Xxxxxx | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxx X. Xxxxxx | ||||
| Xxxxxxx Capital Management Inc., Attorney-In-Fact
By Xxxxxxx X. Xxxxxxx, Executive Vice President |
||||
| Aggregate Purchase Price (Subscription Amount): $39,999.84 |
||||
| Number of Shares to be Acquired: 31,936 | ||||
| Underlying Shares Subject to Warrant: 15,968 | ||||
| (50% of the number of Shares to be acquired) | ||||
| Tax ID No.: | ||||
| Address for Notice: | ||||
| 000 Xxxx Xxxx Xxxxxx Xxxxxxx, XX 00000-0000 |
||||
| Telephone No.: 952 / 000-0000 | ||||
| Email: xxxxxx@xxxxxxxxxx.xxx | ||||
| Attention: Xxxxxxx X. Xxxxxxx | ||||
Delivery Instructions: (if different than above) |
c/o |
Xxxxx Xxxxxxx |
Corp & Venture Services |
Mr. Xxxx Xxxxxxx |
000 Xxxxxxxx Xxxx X00X00 |
Xxxxxxxxxxx, XX 00000 |
| NAME OF PURCHASER: Preventive Cardiovascular Nurses Association | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Preventive Cardiovascular Nurses Association Xxxxxxx Capital Management Inc., Attorney-In-Fact By Xxxxxxx X. Xxxxxxx, Executive Vice President |
||||
| Aggregate Purchase Price (Subscription Amount): $64,999.74 |
||||
| Number of Shares to be Acquired: 51,896 | ||||
| Underlying Shares Subject to Warrant: 25,948 | ||||
| (50% of the number of Shares to be acquired) | ||||
| Tax ID No.: | ||||
| Address for Notice: | ||||
| 000 Xxxx Xxxx Xxxxxx Xxxxxxx, XX 00000-0000 |
||||
| Telephone No.: 952 / 000-0000 | ||||
| Email: xxxxxx@xxxxxxxxxx.xxx | ||||
| Attention: Xxxxxxx X. Xxxxxxx | ||||
Delivery Instructions:
(if different than above)
(if different than above)
c/o
Xxxxx Xxxxxxx
Corp & Venture Services
Mr. Xxxx Xxxxxxx
000 Xxxxxxxx Xxxx X00X00
Xxxxxxxxxxx, XX 00000
Corp & Venture Services
Mr. Xxxx Xxxxxxx
000 Xxxxxxxx Xxxx X00X00
Xxxxxxxxxxx, XX 00000
| NAME OF PURCHASER: | Xxxxxx X. & Xxxxx X. Xxxxxx TTEE’s FBO Xxxxx X. Xxxxxx Trust U/A dtd 8/29/96 |
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxx X. & Xxxxx X. Xxxxxx TTEE’s FBO Xxxxx X. Xxxxxx Trust U/A dtd 8/29/96 | ||||
| Xxxxxxx Capital Management Inc., Attorney-In-Fact | ||||
| By Xxxxxxx X. Xxxxxxx, Executive Vice President | ||||
| Aggregate Purchase Price (Subscription Amount): $34,999.86 |
||||
| Number of Shares to be Acquired: 27,944 | ||||
| Underlying Shares Subject to Warrant: 13,972 | ||||
| (50% of the number of Shares to be acquired) | ||||
| Tax ID No.: | ||||
| Address for Notice: | ||||
| 000 Xxxx Xxxx Xxxxxx Xxxxxxx, XX 00000-0000 |
||||
| Telephone No.: 952 / 000-0000 | ||||
| Email: xxxxxx@xxxxxxxxxx.xxx | ||||
| Attention: Xxxxxxx X. Xxxxxxx | ||||
Delivery Instructions:
(if different than above)
(if different than above)
c/o
Xxxxx Xxxxxxx
Corp & Venture Services
Mr. Xxxx Xxxxxxx
000 Xxxxxxxx Xxxx X00X00
Xxxxxxxxxxx, XX 00000
Corp & Venture Services
Mr. Xxxx Xxxxxxx
000 Xxxxxxxx Xxxx X00X00
Xxxxxxxxxxx, XX 00000
| NAME OF PURCHASER: | Xxxxx & Xxxxxx Xxxxxx Trustees FBO Xxxxx & Xxxxxx Xxxxx Revocable Trust u/a/ dtd 10/23/97 |
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxx & Xxxxxx Xxxxxx Trustees FBO Xxxxx & Xxxxxx Xxxxx Revocable Trust u/a/ dtd 10/23/97 | ||||
| Xxxxxxx Capital Management Inc., Attorney-In-Fact | ||||
| By Xxxxxxx X. Xxxxxxx, Executive Vice President | ||||
| Aggregate Purchase Price (Subscription Amount): $29,999.88 |
||||
| Number of Shares to be Acquired: 23,952 | ||||
| Underlying Shares Subject to Warrant: 11,976 | ||||
| (50% of the number of Shares to be acquired) | ||||
| Tax ID No.: | ||||
| Address for Notice: | ||||
| 000 Xxxx Xxxx Xxxxxx Xxxxxxx, XX 00000-0000 |
||||
| Telephone No.: 952 / 000-0000 | ||||
| Email: xxxxxx@xxxxxxxxxx.xxx | ||||
| Attention: Xxxxxxx X. Xxxxxxx | ||||
Delivery Instructions:
(if different than above)
(if different than above)
c/o
Xxxxx Xxxxxxx
Corp & Venture Services
Mr. Xxxx Xxxxxxx
000 Xxxxxxxx Xxxx X00X00
Xxxxxxxxxxx, XX 00000
Corp & Venture Services
Mr. Xxxx Xxxxxxx
000 Xxxxxxxx Xxxx X00X00
Xxxxxxxxxxx, XX 00000
| NAME OF PURCHASER: Xxxxxxx X. Xxxxxxx | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | ||||
| Aggregate Purchase Price (Subscription Amount): $300,000.12 |
||||
| Number of Shares to be Acquired: 239,521 | ||||
| Underlying Shares Subject to Warrant: 119,761 | ||||
| (50% of the number of Shares to be acquired) | ||||
| Tax ID No.: | ||||
| Address for Notice: | ||||
| c/o Xxxxxxx Xxxxx & Co. | ||||
| 000 Xxxx Xxxxx Xx. | ||||
| Xxxxxxx, XX 00000 | ||||
| Telephone No.: (000) 000-0000 | ||||
| Email: xxx@xxxxxxx.xxx | ||||
| Attention: | ||||
Delivery Instructions:
(if different than above)
(if different than above)
c/o
|
|
Street:
|
|
City/State/Zip:
|
|
Attention:
|
|
Telephone No.:
|
|
| NAME OF PURCHASER: Xxxxx Xxxxxx | ||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | ||||
| Aggregate Purchase Price (Subscription Amount): $99,999.60 |
||||
| Number of Shares to be Acquired: 79,840 | ||||
| Underlying Shares Subject to Warrant: 39,920 | ||||
| (50% of the number of Shares to be acquired) | ||||
| Tax ID No.: | ||||
| Address for Notice: | ||||
| 0 Xxxxxxxxxx Xxxxx Xxx Xxxxxxxx, XX 00000 |
||||
| Telephone No.: (000) 000-0000 | ||||
| Email: Xxxxx@xxxxxx.xxx | ||||
| Attention: | ||||
Delivery Instructions:
(if different than above)
(if different than above)
c/o
|
|
Street:
|
|
City/State/Zip:
|
|
Attention:
|
|
Telephone No.:
|
|
| NAME OF PURCHASER: Xxxxxxx X. Xxxxxx | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | ||||
| Aggregate Purchase Price (Subscription Amount): $24,999.90 |
||||
| Number of Shares to be Acquired: 19,960 | ||||
| Underlying Shares Subject to Warrant: 9,980 | ||||
| (50% of the number of Shares to be acquired) | ||||
| Tax ID No.: | ||||
| Address for Notice: | ||||
| c/o Cardica, Inc. 000 Xxxxxxx Xxxxx Xxxxxxx Xxxx, XX 00000 |
||||
| Telephone No.: (000) 000-0000 | ||||
| Email: xxxxxx@xxxxxxx.xxx | ||||
| Attention: | ||||
Delivery Instructions:
(if different than above)
(if different than above)
c/o
|
|
Street:
|
|
City/State/Zip:
|
|
Attention:
|
|
Telephone No.:
|
|
| NAME OF PURCHASER: Xxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx, Trustees Xxxxxx Family 1999 Trust UA Dated 10/12/99 | ||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
| Aggregate Purchase Price (Subscription Amount): $14,999.94 |
||||
| Number of Shares to be Acquired: 11,976 | ||||
| Underlying Shares Subject to Warrant: 5,988 | ||||
| (50% of the number of Shares to be acquired) | ||||
| Tax ID No.: | ||||
| Address for Notice: | ||||
| c/o Cardica, Inc. 000 Xxxxxxx Xxxxx Xxxxxxx Xxxx, XX 00000 |
||||
| Telephone No.: (000) 000-0000 | ||||
| Email.: xxxxxx@xxxxxxx.xxx | ||||
| Attention: | ||||
Delivery Instructions:
(if different than above)
(if different than above)
c/o
|
|
Street:
|
|
City/State/Zip:
|
|
Attention:
|
|
Telephone No.:
|
|
| NAME OF PURCHASER: Xxxxx X. Xxxxxx | ||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | ||||
| Aggregate Purchase Price (Subscription Amount): $225,000.42 |
||||
| Number of Shares to be Acquired: 179,641 | ||||
| Underlying Shares Subject to Warrant: 89,821 | ||||
| (50% of the number of Shares to be acquired) | ||||
| Tax ID No.: | ||||
| Address for Notice: | ||||
| c/o Cardica, Inc. 000 Xxxxxxx Xxxxx Xxxxxxx Xxxx, XX 00000 |
||||
| Telephone No.: (000) 000-0000 | ||||
| Email.: xxxxxx@xxxxxxx.xxx | ||||
| Attention: | ||||
Delivery Instructions:
(if different than above)
(if different than above)
c/o
|
|
Street:
|
|
City/State/Zip:
|
|
Attention:
|
|
Telephone No.:
|
|
| NAME OF PURCHASER: Xxxxxxxxx X. Xxxxx | ||||
| By: | /s/ Xxxxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxxxx X. Xxxxx | |||
| Title: | ||||
| Aggregate Purchase Price (Subscription Amount): $9,999.96 |
||||
| Number of Shares to be Acquired: 7,984 | ||||
| Underlying Shares Subject to Warrant: 3,992 | ||||
| (50% of the number of Shares to be acquired) | ||||
| Tax ID No.: | ||||
| Address for Notice: | ||||
| c/o Cardica, Inc. 000 Xxxxxxx Xxxxx Xxxxxxx Xxxx, XX 00000 |
||||
| Telephone No.: | ||||
| Email.: xxxxxx@xxxxxxx.xxx | ||||
| Attention: | ||||
Delivery Instructions:
(if different than above)
(if different than above)
c/o
|
|
Street:
|
|
City/State/Zip:
|
|
Attention:
|
|
Telephone No.:
|
|
| NAME OF PURCHASER: J. Xxxxxxx Xxxx | |||||
| By: | /s/ J. Xxxxxxx Xxxx | ||||
| Name: J. Xxxxxxx Xxxx | |||||
| Title: | |||||
| Aggregate Purchase Price (Subscription Amount): $49,999.80 |
|||||
| Number of Shares to be Acquired: 39,920 | |||||
| Underlying Shares Subject to Warrant: 19,960 | |||||
| (50% of the number of Shares to be acquired) | |||||
| Tax ID No.: | |||||
| Address for Notice: | |||||
| c/o Xxxxxxxx Xxxxxxx Research Foundation 000 Xxxx Xxxxxxx Xxxxx, Xxxxx 0000 Xxxx, XX 00000 |
|||||
| Telephone No.: (000) 000-0000 | |||||
| Email: xxxx.xxxx@xxxxx.xxx | |||||
| Attention: Xxxx Xxxx | |||||
Delivery Instructions:
(if different than above)
(if different than above)
c/o
|
|
Street:
|
|
City/State/Zip:
|
|
Attention:
|
|
Telephone No.:
|
|
EXHIBITS:
A:
|
Form of Warrant | |
B:
|
Form of Registration Rights Agreement | |
C-1:
|
Accredited Investor Questionnaire | |
C-2:
|
Stock Certificate Questionnaire | |
D:
|
Form of Opinion of Company Counsel | |
E:
|
Irrevocable Transfer Agent Instructions | |
F:
|
Form of Secretary’s Certificate | |
G:
|
Form of Officer’s Certificate | |
H:
|
Purchaser’s Certificate of Subsequent Sale |
EXHIBIT A
FORM OF WARRANT
[See Exhibit 4.6 to Form 8-K filed on September 29, 2009]
EXHIBIT B
FORM OF REGISTRATION RIGHTS AGREEMENT
[See Exhibit 10.25 to Form 8-K filed on September 29, 2009]
INSTRUCTION SHEET
(TO BE READ IN CONJUNCTION WITH THE ENTIRE SECURITIES PURCHASE
AGREEMENT AND REGISTRATION RIGHTS AGREEMENT)
| A. | Complete the following items in the Securities Purchase Agreement and/or Registration Rights Agreement: |
| 1. | Provide the information regarding the Purchaser requested on the signature pages. The Securities Purchase Agreement and the Registration Rights Agreement must be executed by an individual authorized to bind the Purchaser. | ||
| 2. | Exhibit C-1 – Accredited Investor Questionnaire: | ||
| Provide the information requested by the Accredited Investor Questionnaire | |||
| 3. | Exhibit C-2 Stock Certificate Questionnaire: | ||
| Provide the information requested by the Stock Certificate Questionnaire | |||
| 4. | Annex B to the Registration Rights Agreement — Selling Securityholder Notice and Questionnaire | ||
| Provide the information requested by the Selling Securityholder Notice and Questionnaire | |||
| 5. | Return the signed Securities Purchase Agreement and Registration Rights Agreement to: |
Xxxx X. Xxxxxxx, Esq.
Xxxxxx Godward Kronish LLP
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Xxxxxx Godward Kronish LLP
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxxxx@xxxxxx.xxx
Fax: (000) 000-0000
Email: xxxxxxxx@xxxxxx.xxx
| B. | Instructions regarding the transfer of funds for the purchase of Securities have been provided to the Purchasers. |
EXHIBIT C-1
ACCREDITED INVESTOR QUESTIONNAIRE
(ALL INFORMATION WILL BE TREATED CONFIDENTIALLY)
(ALL INFORMATION WILL BE TREATED CONFIDENTIALLY)
To: Cardica, Inc.
This Investor Questionnaire (“Questionnaire”) must be completed by each potential investor in
connection with the offer and sale of the shares of the common stock, par value $0.001 per share,
and shares of common stock that may be issued upon exercise of certain warrants (collectively, the
“Securities”), of Cardica, Inc., a Delaware corporation (the “Corporation”). The Securities are
being offered and sold by the Corporation without registration under the Securities Act of 1933, as
amended (the “Act”), and the securities laws of certain states, in reliance on the exemptions
contained in Section 4(2) of the Act and on Regulation D promulgated thereunder and in reliance on
similar exemptions under applicable state laws. The Corporation must determine that a potential
investor meets certain suitability requirements before offering or selling Securities to such
investor. The purpose of this Questionnaire is to assure the Corporation that each investor will
meet the applicable suitability requirements. The information supplied by you will be used in
determining whether you meet such criteria, and reliance upon the private offering exemptions from
registration is based in part on the information herein supplied.
This Questionnaire does not constitute an offer to sell or a solicitation of an offer to buy
any security. Your answers will be kept strictly confidential. However, by signing this
Questionnaire, you will be authorizing the Corporation to provide a completed copy of this
Questionnaire to such parties as the Corporation deems appropriate in order to ensure that the
offer and sale of the Securities will not result in a violation of the Act or the securities laws
of any state and that you otherwise satisfy the suitability standards applicable to purchasers of
the Securities. All potential investors must answer all applicable questions and complete, date and
sign this Questionnaire. Please print or type your responses and attach additional sheets of paper
if necessary to complete your answers to any item.
PART
A. BACKGROUND INFORMATION
Name of Beneficial Owner of the Securities:
Business
Address:
(Number and Street)
| (City) | (State) | (Zip Code) |
Telephone
Number: ( )
If a corporation, partnership, limited liability company, trust or other entity:
Type of entity:
State of formation:
Approximate Date of formation:
Set forth in the space provided below the (i) state(s), if any, in the United States in which you
maintained your principal office during the past two years and the dates during which you
maintained your office in each state, and (ii) state(s), if any, in which you pay income taxes:
Were you formed for the purpose of investing in the securities being offered?
Yes
|
No |
If an individual:
Residence Address:
(Number and Street)
| (City) | (State) | (Zip Code) |
Telephone Number: ( )
Age:
|
Citizenship: | Where registered to vote: |
Set forth in the space provided below the state(s), if any, in the United States in which you
maintained your residence during the past two years and the dates during which you resided in each
state:
Are you a director or executive officer of the Corporation?
Yes
|
No |
Social Security or Taxpayer Identification No.
PART B. ACCREDITED INVESTOR QUESTIONNAIRE
In order for the Company to offer and sell the Securities in conformance with state and federal
securities laws, the following information must be obtained regarding your investor status. Please
initial each category applicable to you as a Purchaser of Securities of the Company.
| (1 | ) | A bank as defined in Section 3(a)(2) of the Securities Act, or any savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Securities Act whether acting in its individual or fiduciary capacity; | ||||
| (2 | ) | A broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934; | ||||
| (3 | ) | An insurance company as defined in Section 2(13) of the Securities Act; | ||||
| (4 | ) | An investment company registered under the Investment Company Act of 1940 or a business development company as defined in Section 2(a)(48) of that Act; | ||||
| (5 | ) | A Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958; | ||||
| (6 | ) | A plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, if such plan has total assets in excess of $5,000,000; | ||||
| (7 | ) | An employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, if the investment decision is made by a plan fiduciary, as defined in Section 3(21) of such act, which is either a bank, savings and loan association, insurance company, or registered investment adviser, or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons that are accredited investors; | ||||
| (8 | ) | A private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940; | ||||
| (9 | ) | An organization described in Section 501(c)(3) of the Internal Revenue Code, a corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the Securities, with total assets in excess of $5,000,000; | ||||
| (10 | ) | A trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the Securities, whose purchase is directed by a sophisticated person who has such knowledge and experience in financial and business matters that such person is capable of evaluating the merits and risks of investing in the Company; | ||||
| (11 | ) | A natural person whose individual net worth, or joint net worth with that person’s spouse, at the time of his purchase exceeds $1,000,000; | ||||
| (12 | ) | A natural person who had an individual income in excess of $200,000 in each of the two most recent years, or joint income with that person’s spouse in excess of $300,000, in each of those years, and has a reasonable expectation of reaching the same income level in the current year; | ||||
| (13 | ) | An executive officer or director of the Company; | ||||
| (14 | ) | An entity in which all of the equity owners qualify under any of the above subparagraphs. If the undersigned belongs to this investor category only, list the equity owners of the undersigned, and the investor category which each such equity owner satisfies: |
(Continue on a separate piece of paper, if necessary.)
| A. | FOR EXECUTION BY AN INDIVIDUAL: | |||||||
| Date | By: | |||||||
| Print Name: | ||||||||
| B. | FOR EXECUTION BY AN ENTITY: | |||||||
| Entity Name: | ||||||||
| Date | By | |||||||
| Print Name: | ||||||||
| Title: | ||||||||
| C. | ADDITIONAL SIGNATURES (if required by partnership, corporation or trust document): | |||||||
| Entity Name: | ||||||||
| Date | By | |||||||
| Print Name: | ||||||||
| Title: | ||||||||
| Entity Name: | ||||||||
| Date | By | |||||||
| Print Name: | ||||||||
| Title: | ||||||||
EXHIBIT C-2
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 2.2(b) of the Agreement, please provide us with the following information:
| 1. | The exact name that the Securities are to be registered in (this is the name that will appear
on the stock certificate(s)). You may use a nominee name if appropriate: |
|
| 2. | The relationship between the Purchaser of the Securities and the Registered Holder listed in
response to Item 1 above: |
|
| 3. | The mailing address, telephone and telecopy number of the Registered Holder listed in
response to Item 1 above: |
|
| 4. | The Tax Identification Number (or, if an individual, the Social Security Number) of the
Registered Holder listed in response to Item 1 above: |
EXHIBIT D
FORM OF OPINION OF COMPANY COUNSEL
We have acted as counsel for Cardica, Inc., a Delaware corporation (the “Company”), in
connection with the issuance and sale of up to shares
(the “Shares”) of the Company’s common stock, $0.001 par value per share (the “Common Stock”), and
warrants (the “Warrants”) to purchase up to shares of the
Common Stock (the “Warrant Shares,” and, collectively with the Shares and Warrants, the
“Securities”), to the Purchasers under the Securities Purchase Agreement dated as of September
, 2009 (the “Purchase Agreement”). We are rendering this opinion pursuant to Section 2.2(iv) of
the Purchase Agreement. Except as otherwise defined herein, capitalized terms used but not defined
herein have the respective meanings given to them in the Purchase Agreement.
In connection with this opinion, we have examined and relied upon the representations and
warranties as to factual matters contained in and made pursuant to the Purchase Agreement by the
various parties and originals or copies certified to our satisfaction, of such records, documents,
certificates, opinions, memoranda and other instruments as in our judgment are necessary or
appropriate to enable us to render the opinion expressed below.
As to certain factual matters, we have relied upon certificates of officers of the Company and
have not sought to independently verify such matters. Where we render an opinion “to our knowledge”
or concerning an item “known to us” or “of which we are aware” or our opinion otherwise refers to
our knowledge, it is based solely upon (i) an inquiry of attorneys within this firm who have
represented the Company in this transaction, (ii) receipt of a certificate executed by an officer
of the Company covering such matters and (iii) such other investigation, if any, that we
specifically set forth herein.
In rendering this opinion, we have assumed: the authenticity of all documents submitted to
us as originals; the conformity to originals of all documents submitted to us as copies; the
accuracy, completeness and authenticity of certificates of public officials; the due authorization,
execution and delivery of all documents (except the due authorization, execution and delivery by
the Company of the Purchase Agreement, the Registration Rights Agreement and the Warrants
(together, the “Transaction Documents”)), where authorization, execution and delivery are
prerequisites to the effectiveness of such documents; and the genuineness and authenticity of all
signatures on original documents (except the signatures on behalf of the Company on the Transaction
Documents). We have also assumed: that all individuals executing and delivering documents had the
legal capacity to so execute and deliver; that the Transaction Documents are obligations binding
upon the parties thereto other than the Company; that the parties to the Transaction Documents
other than the Company have filed any required California franchise or income tax returns and have
paid any required California franchise or income taxes; and that there are no extrinsic agreements
or understandings among the parties to the Transaction Documents of the Material Agreements (as
defined below) that would modify or interpret the terms of any of the Transaction Documents or the
Material Agreements or the respective rights or obligations of the parties thereunder.
Our opinion is expressed only with respect to the federal laws of the United States of America
and the laws of the States of California and New York and the General Corporation Law of the State
of Delaware.
We express no opinion as to whether the laws of any particular jurisdiction apply, no opinion
to the extent that the laws of any jurisdiction other than those identified above are applicable to
the subject matter hereof and no opinion as to the enforceability of the waiver of jury trial set
forth in section 6.8 of the Purchase Agreement or any liquidated damages provisions in the
Transaction Documents.
We are not rendering any opinion as to any statute, rule, regulation, ordinance, decree or
decisional law relating to antitrust, banking, land use, environmental, pension, employee benefits,
tax, fraudulent conveyance or usury, laws governing the legality of investments for regulated
entities, Regulations T, U or X of the Board of Governors of the Federal Reserve System, local
laws, any law, rules or regulations relating to the clinical development, manufacture, distribution
or sale of medical device products or the bylaws, rules or regulations of the Financial Industry
Regulatory Association (“FINRA”). Furthermore, we express no opinion with respect to compliance
with antifraud laws, rules or regulations relating to securities or the offer and sale thereof;
compliance with fiduciary duties by the Company’s Board of Directors or stockholders; compliance
with safe harbors for disinterested Board of Director or stockholder approvals; compliance with
state securities or blue sky laws except as specifically set forth below; compliance with the
Investment Company Act of 1940; or compliance with laws that place limitations on corporate
distributions.
With regard to our opinion in paragraphs 1 and 3 below with respect to the good standing and
due qualification as the case may be, of the Company, we have relied solely upon certificates of
the Secretaries of State of the indicated jurisdictions as of a recent date.
With regard to our opinion in paragraph 6 below with respect to securities of the Company to
be issued after the date hereof, we express no opinion to the extent that, notwithstanding its
current reservation of shares of Common Stock, future issuance of securities of the Company and/or
antidilution adjustments to outstanding securities of the Company cause the Warrants to be
exercisable for more shares of Common Stock than the number that then remain authorized but
unissued.
With regard to our opinion in paragraph 7 below concerning defaults under and any material
breaches of any Material Agreement, we have relied solely upon (i) inquiries of officers of the
Company and (ii) an examination of the contracts filed by the Company in its SEC Reports, a list of
which is attached hereto as Schedule B (the “Material Agreements”), in the form provided to us by
the Company. We have made no further investigation. Further, with regard to our opinions in
paragraphs 6 and 7 below concerning Material Agreements, we express no opinion as to (i) financial
covenants or similar provisions therein requiring financial calculations or determinations to
ascertain compliance, (ii) provisions therein relating to the occurrence of a “material adverse
event” or words of similar import or (iii) any statement or writing that may constitute parol
evidence bearing on interpretation or construction. To the extent that laws other than those of
California and New York govern any of the Material
Agreements, we assume that the Material Agreements would be interpreted in accordance with
their plain meaning.
With regard to our opinion in paragraph 8 below with respect to pending or overtly threatened
litigation, we have made an inquiry of the attorneys within this firm who have represented the
Company in this transaction, examined and relied upon a certificate executed by an officer of the
Company covering such matters and checked the records of this firm to ascertain that we are not
acting as counsel of record for the Company in any such matter. We have made no further
investigation.
With regard to our opinion in paragraph 10 below, we have assumed the following: (a) that
the representations made by each Purchaser in the Purchase Agreement are true and correct; (b) that
neither the Company nor any person acting on behalf of either the Company has offered or sold the
Securities by any form of general solicitation or general advertising within the meaning of Rule
502(c) of Regulation D promulgated under the Securities Act; and (c) that there will be no
offerings or sales of securities of the Company after the date hereof in a transaction that can be
“integrated” with any sales of the Securities.
| On the basis of the foregoing, in reliance thereon and with the foregoing qualifications, we are of the opinion that: | |||
| 1. | The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. | ||
| 2. | The Company has the requisite corporate power to own, lease and operate its property and assets, and to conduct its business as described in the SEC Reports, to execute and deliver the Transaction Documents and to perform its obligations to performed at the Closing thereunder, including, without limitation, to issue, sell and deliver the Shares and the Warrants under the agreement and to issue the Warrant Shares issuable upon exercise of the Warrants. | ||
| 3. | The Company is duly qualified to do business as a foreign corporation and is in good standing under the laws of the State of California. | ||
| 4. | The Company has the requisite corporate power to execute, deliver and perform its obligations under the Transaction Documents. | ||
| 5. | All corporate action on the part of the Company necessary for the authorization, execution and delivery of the Transaction Documents by the Company, the authorization, sale, issuance and delivery of the Securities and the performance by the Company of its obligations to be performed at the Closing under the Transaction Documents has been taken. Each of the Transaction Documents has been duly and validly authorized, executed and delivered by the Company and each such agreement constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its respective terms, except that we express no opinion as to the validity of rights to indemnity and contribution under section 4.9 of the Purchase Agreement and section 5 of the Registration Rights Agreement and except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent | ||
| conveyance, reorganization, arrangement, moratorium or other similar laws affecting creditors’ rights generally, and subject to general equity principles and to limitations on availability of equitable relief, including specific performance. | |||
| 6. | The Company’s authorized capital stock consists of (a) forty-five million (45,000,000) shares of Common Stock, par value $0.001 and (b) five million (5,000,000) shares of Preferred Stock, par value $0.001. The Shares and Warrant Shares have been duly authorized and the Warrant Shares have been reserved for issuance upon exercise of the Warrants. The Shares and Warrants, when issued, sold and delivered against payment therefor in accordance with the terms of the Purchase Agreement and the Warrant Shares, if issued on the date hereof upon exercise of the Warrants and payment therefor in accordance with the terms of the Warrants, will be validly issued, outstanding, fully paid and nonassessable and free of any pre-emptive right or similar rights contained in the Company’s Certificate of Incorporation or Bylaws or any Material Agreement. The Warrant Shares have been duly and validly reserved for issuance. | ||
| 7. | The execution and delivery of the Transaction Documents, the issuance of the Shares and the Warrants pursuant thereto do not violate any provision of the Company’s Certificate of Incorporation or Bylaws, do not constitute a default under or a material breach of any Material Agreement and do not violate (a) any governmental statute, rule or regulation which in our experience is typically applicable to transactions of the nature contemplated by the Transaction Documents or (b) any order, writ, judgment, injunction, decree, determination or award which has been entered against the Company and of which we are aware, in each case to the extent the violation of which would materially and adversely affect the Company. | ||
| 8. | To our knowledge, there is no action, proceeding or investigation pending or overtly threatened against the Company before any court or administrative agency that questions the validity of the Transaction Documents or that could reasonably be expected to result, either individually or in the aggregate, in a material adverse effect on the Company. | ||
| 9. | All consents, approvals, authorizations, or orders of, and filings, registrations and qualifications with any U.S. Federal or California or New York regulatory authority or governmental body required for the issuance of the Shares have been made or obtained, except (a) for the filing of a Form D pursuant to Securities and Exchange Commission Regulation D and (b) for the filing of the notice to be filed under California Corporations Code Section 25102.1(d). | ||
| 10. | The offer and sale of the Shares and the Warrants are exempt from the registration requirements of the Securities Act of 1933, as amended, subject to the timely filing of a Form D pursuant to Securities and Exchange Commission Regulation D. |
| 11. | To our knowledge, there are no written contracts, agreements or understandings between the Company and any person granting such person the right (other than rights which have been waived in writing or otherwise satisfied) to require the Company to include any securities of the Company in any registration statement contemplated by Section 2 of the Registration Rights Agreement. |
This opinion is intended solely for your benefit and is not to be made available to or be
relied upon by any other person, firm, or entity without our prior written consent.
| Very truly yours, | ||||
| Xxxxxx Godward Kronish LLP | ||||
By: |
||||
SCHEDULE A
Xxxxxx Hill Ventures, a California Limited Partnership
G. XXXXXXX XXXXX, XX. AND XXXX XXXX XXXXX, CO-TRUSTEES OF THE XXXXX REVOCABLE TRUST U/A/D 2/3/03 XXXXXXXX HOLDINGS, L.P.
Xxxxxxx X. Xxxxxxx, Xx., Trustee of The Xxxxxxx X. Xxxxxxx, Xx. Revocable Trust U/A/D 8/5/09
Yovest, L.P.
XXXXXXX X. XXXXX AND XXXXX X.X. XXXXX AS TRUSTEES OF XXXXXXX X. AND XXXXX X.X. XXXXX TRUST AGREEMENT DATED 2/24/99
XXXXX X. XXXXXXX, TRUSTEE OF THE XXXXXXX REVOCABLE TRUST U/A/D 9/28/2000
XXXXX X. XXXXX AND XXXXXXXX X. X’XXXXX AS TRUSTEES OF THE WHITE FAMILY TRUST U/A/D 4/3/97
XXXXXXX X. XXXX AND XXXXXXXXX X. XXXX AS TRUSTEES OF XXXXXXX X. AND XXXXXXXXX X. XXXX TRUST AGREEMENT DATED 10/31/00
XXXXXX X. XXXXXXX AND XXXXXX X. XXXXXXX AS TRUSTEES OF XXXXXXX 2003 TRUST
Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxx X. Xxxxxxxx
Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxxxx X. Xxxxxxx, Xx.
Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxx Xxxx
Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxx X. Xxxxx (Rollover)
Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxx X. Xxxx
Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Yu-Xxxx Xxxx
Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxxxxx Xxx (Rollover)
Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxxx Xxx
Xxxxxx Partners XX
Xxxxx & Xxxxx Xxxxxx
Xxxx Xxxxx
Xxxxx Xxxxx
Xxxx Xxxxxx
Xxx Xxxxxx Xxxxxxx Trust
Xxxxxxxx Capital
Wasatch Ultra Growth Fund
Wasatch Micro Cap Fund
Wasatch Global Science & Technology Fund
Wasatch Micro Cap Value Fund
Wasatch Global Opportunities Fund
DAFNA Life Science Ltd.
DAFNA Life Science Market Neutral Ltd.
DAFNA Life Science Select Ltd.
Xxxxx Xxx Corporation
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx Trustee FBO Xxxxxxx X. Xxxxxx Revocable Trust u/a dtd 7/3/96
Xxxx X. Xxxxxxx
Xxxxx Xxxxxxx as Custodian FBO Xxxxxx X. Xxxxxxxxx XXX
Xxxxxx X. Xxxxxx
G. XXXXXXX XXXXX, XX. AND XXXX XXXX XXXXX, CO-TRUSTEES OF THE XXXXX REVOCABLE TRUST U/A/D 2/3/03 XXXXXXXX HOLDINGS, L.P.
Xxxxxxx X. Xxxxxxx, Xx., Trustee of The Xxxxxxx X. Xxxxxxx, Xx. Revocable Trust U/A/D 8/5/09
Yovest, L.P.
XXXXXXX X. XXXXX AND XXXXX X.X. XXXXX AS TRUSTEES OF XXXXXXX X. AND XXXXX X.X. XXXXX TRUST AGREEMENT DATED 2/24/99
XXXXX X. XXXXXXX, TRUSTEE OF THE XXXXXXX REVOCABLE TRUST U/A/D 9/28/2000
XXXXX X. XXXXX AND XXXXXXXX X. X’XXXXX AS TRUSTEES OF THE WHITE FAMILY TRUST U/A/D 4/3/97
XXXXXXX X. XXXX AND XXXXXXXXX X. XXXX AS TRUSTEES OF XXXXXXX X. AND XXXXXXXXX X. XXXX TRUST AGREEMENT DATED 10/31/00
XXXXXX X. XXXXXXX AND XXXXXX X. XXXXXXX AS TRUSTEES OF XXXXXXX 2003 TRUST
Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxx X. Xxxxxxxx
Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxxxx X. Xxxxxxx, Xx.
Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxx Xxxx
Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxx X. Xxxxx (Rollover)
Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxx X. Xxxx
Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Yu-Xxxx Xxxx
Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxxxxx Xxx (Rollover)
Xxxxx Fargo Bank, N.A. FBO SHV Profit Sharing Plan FBO Xxxxxx Xxx
Xxxxxx Partners XX
Xxxxx & Xxxxx Xxxxxx
Xxxx Xxxxx
Xxxxx Xxxxx
Xxxx Xxxxxx
Xxx Xxxxxx Xxxxxxx Trust
Xxxxxxxx Capital
Wasatch Ultra Growth Fund
Wasatch Micro Cap Fund
Wasatch Global Science & Technology Fund
Wasatch Micro Cap Value Fund
Wasatch Global Opportunities Fund
DAFNA Life Science Ltd.
DAFNA Life Science Market Neutral Ltd.
DAFNA Life Science Select Ltd.
Xxxxx Xxx Corporation
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx Trustee FBO Xxxxxxx X. Xxxxxx Revocable Trust u/a dtd 7/3/96
Xxxx X. Xxxxxxx
Xxxxx Xxxxxxx as Custodian FBO Xxxxxx X. Xxxxxxxxx XXX
Xxxxxx X. Xxxxxx
Preventive Cardiovascular Nurses Association
Xxxxxx X. & Xxxxx X. Xxxxxx TTEE’s FBO Xxxxx X. Xxxxxx Trust U/A dtd 8/29/96
Xxxxx & Xxxxxx Xxxxx Trustees FBO Xxxxx & Xxxxxx Xxxxx Revocable Trust u/a dtd 10/23/97
Xxxxxxx X. Xxxxxxx
Xxxxx Xxxxxx
Xxxxxxx Xxxxxx
Xxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx, Trustees Xxxxxx Family 1999 Trust UA Dated 10/12/99
Xxxxx X. Xxxxxx
Xxxxxxxxx X. Xxxxx
J. Xxxxxxx Xxxx
Xxxxxx X. & Xxxxx X. Xxxxxx TTEE’s FBO Xxxxx X. Xxxxxx Trust U/A dtd 8/29/96
Xxxxx & Xxxxxx Xxxxx Trustees FBO Xxxxx & Xxxxxx Xxxxx Revocable Trust u/a dtd 10/23/97
Xxxxxxx X. Xxxxxxx
Xxxxx Xxxxxx
Xxxxxxx Xxxxxx
Xxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx, Trustees Xxxxxx Family 1999 Trust UA Dated 10/12/99
Xxxxx X. Xxxxxx
Xxxxxxxxx X. Xxxxx
J. Xxxxxxx Xxxx
SCHEDULE B
MATERIAL AGREEMENTS
| 1. | 1997 Equity Incentive Plan and forms of related agreements and documents. | |
| 2. | 2005 Equity Incentive Plan and forms of related agreements and documents. | |
| 3. | Amended and Restated Investor Rights Agreement, dated August 19, 2003, by and among Cardica, Inc. and certain stockholders. | |
| 4. | Benefit Agreement with Xxxxxxx Xxxxxx, M.D., Ph.D. | |
| 5. | Office Lease Agreement, dated April 25, 2003, and First Amendment to Office Lease Agreement, dated January 21, 2004. | |
| 6. | Second Amendment to Office Lease Agreement, effective November 19, 2007. | |
| 7. | Distribution Agreement, by and between Cardica, Inc. and Century Medical, Inc., dated June 16, 2003 | |
| 8. | First Amendment to Distribution Agreement, dated March 30, 2007, by and between Cardica, Inc. and Century Medical, Inc. | |
| 9. | Subordinated Convertible Note Agreement with Century Medical, Inc., dated June 16, 2003, and Amendment No. 1 thereto, dated August 6, 2003. | |
| 10. | Amendment No. 2 to Subordinated Convertible Note Agreement, dated March 30, 2007, by and between Cardica, Inc. and Century Medical, Inc. | |
| 11. | Amended and Restated Note issued pursuant to Amendment No. 2 to Subordinated Convertible Note Agreement with Century Medical, Inc. | |
| 12. | Xxxxx & Company LLC Letter of Intent dated September 12, 2005. | |
| 13. | Consent to Grant of Registration Rights and Amendment to Amended and Restated Investor Rights Agreement, dated November 7, 2006, by and between Cardica, Inc. and the investors set forth therein. | |
| 14. | Registration Rights Agreement, dated June 7, 2007, by and among Cardica, Inc., and the purchasers listed on the signature pages thereto. | |
| 15. | Letter Agreement with Xxxxxxxx X. Xxxxx. | |
| 16. | Cardica, Inc. Change in Control and Severance Benefit Plan. | |
| 17. | License, Development and Commercialization Agreement by and between the Company and Xxxx Incorporated, dated June 12, 2007. |
| 18. | Amendment to License, Development and Commercialization Agreement by and between Cardica, Inc. and Xxxx Incorporated, dated September 19, 2007. | |
| 19. | Second Amendment to License, Development and Commercialization Agreement by and between Cardica, Inc. and Xxxx Incorporated, dated June 19, 2009. |
EXHIBIT E
[Form of Irrevocable Transfer Agent Instructions]
As of September , 2009
Computershare Investor Services, N.A.
Transfer Agent and Registrar
Attn: Xxxxxx Xxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn:
Transfer Agent and Registrar
Attn: Xxxxxx Xxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn:
Ladies and Gentlemen:
Reference is made to that certain Securities Purchase Agreement, dated as of September 25,
2009 (the “Agreement”), by and among Cardica, Inc., a Delaware corporation (the “Company”), and the
purchasers named on the signature pages thereto (collectively, and including permitted transferees,
the “Holders”), pursuant to which the Company is issuing to the Holders shares (the “Shares”) of
Common Stock of the Company, par value $0.001 per share (the “Common Stock”), and warrants (the
“Warrants”), which are exercisable into shares of Common Stock.
This letter shall serve as our irrevocable authorization and direction to you (provided that
you are the transfer agent of the Company at such time and the conditions set forth in this letter
are satisfied), subject to any stop transfer instructions that we may issue to you from time to
time, if any:
(i) to issue certificates representing shares of Common Stock upon transfer or resale of the
Shares; and
(ii) to issue shares of Common Stock upon the exercise of the Warrants (the “Warrant Shares”)
to or upon the order of a Holder from time to time upon delivery to you of a properly completed and
duly executed Exercise Notice, in the form attached hereto as Annex I , which has been acknowledged
by the Company as indicated by the signature of a duly authorized officer of the Company thereon
together with indication of receipt of the exercise price therefor.
You acknowledge and agree that so long as you have received (a) written confirmation from the
Company’s legal counsel that a registration statement covering resales of the Shares and the
Warrant Shares has been declared effective by the Securities and Exchange Commission (the
“Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), a copy of such
registration statement and a completed and signed Purchaser’s Certificate of Subsequent Sale with
respect to a sale pursuant to such effective registration statement, (b) written confirmation from
the Company’s legal counsel that the Shares and the Warrant Shares are eligible for sale in
conformity with Rule 144 under the Securities Act (“Rule 144”) and
customary documentation from a Holder’s broker with respect to a sale pursuant to Rule 144 or
(c) written confirmation from the Company’s legal counsel that the Shares and the Warrant Shares
are eligible for sale without restriction in conformity with Rule 144, then, unless otherwise
required by law, within five (5) business days of your receipt of a notice of sale and
documentation required pursuant to clause (a) or (b) above, as applicable, or a request from a
Holder for the issuance of an unlegended certificate in the event that the Shares and the Warrant
Shares are eligible for sale without restriction in conformity with Rule 144 under the Securities
Act, you shall issue the certificates representing the Shares and/or the Warrant Shares, as the
case may be, registered in the names of the purchaser of such Shares or Warrant Shares or the
Holder, as the case may be, and such certificates shall not bear any legend restricting transfer of
the Shares or the Warrant Shares thereby and should not be subject to any stop-transfer
restriction.
In the event that you have not received the documentation required pursuant to clause (a) or
(b) of the immediately preceding paragraph or such Shares and Warrant Shares are not eligible for
sale without restriction in conformity with Rule 144 under the Securities Act, then the
certificates for such Shares and/or Warrant Shares shall bear the following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES
MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED EXCEPT AS PROVIDED BY
SECTION 4 OF THAT CERTAIN SECURITIES PURCHASE AGREEMENT, DATED AS OF SEPTEMBER 25,
2009, BY AND AMONG CARDICA, INC. AND EACH PURCHASER IDENTIFIED ON THE SIGNATURE
PAGES THERETO.
Please be advised that the Holders are relying upon this letter as an inducement to enter into
the Agreement and, accordingly, each Holder is a third party beneficiary to these instructions.
Please execute this letter in the space indicated to acknowledge your agreement to act in
accordance with these instructions.
| Very truly yours, | ||||||
| CARDICA, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Acknowledged and Agreed: | ||||
| COMPUTERSHARE TRUST COMPANY, N.A. | ||||
By: |
||||
Name:
|
||||
Title:
|
||||
Date:
|
||||
ANNEX I
FORM OF EXERCISE NOTICE
(To be executed by the Holder to exercise the right to purchase shares
of Common Stock under the Warrants)
(To be executed by the Holder to exercise the right to purchase shares
of Common Stock under the Warrants)
To: Cardica, Inc.
| (1) | The undersigned holder hereby exercises the right to purchase of the shares of Common Stock (the “Warrant Shares”) of Cardica, Inc., a Delaware corporation (the “Company”), pursuant to the Warrant (the “Warrant”). Capitalized terms used herein and not otherwise defined herein have the respective meanings set forth in the Warrant. | |
| (2) | The Holder intends that payment of the Exercise Price shall be made as (check one): |
| o | “Cash Exercise” with respect to Warrant Shares; and/or | ||
| o | “Cashless Exercise” with respect to Warrant Shares. |
| (3) | If the Holder has elected a Cash Exercise, the holder shall pay the sum of $ to the Company in accordance with the terms of the Warrant. | |
| (4) | Pursuant to this Exercise Notice, the Company shall deliver to the Holder Warrant Shares in accordance with the terms of the Warrant. | |
| (5) | By its delivery of this Exercise Notice, the undersigned represents and warrants to the Company that in giving effect to the exercise evidenced hereby, the Holder will not beneficially own in excess of the number of shares of Common Stock (as determined in accordance with Section 13(d) of the Securities Exchange Act of 1934) permitted to be owned under Section 12 of this Warrant to which this notice relates. |
Dated: |
||||
Name of Holder: |
||||
By: |
||||
Name: |
||||
Title: |
||||
(Signature must conform in all respects to name of Holder as specified on the face of the Warrant)
ACKNOWLEDGEMENT
The Company hereby acknowledges this Exercise Notice and receipt of the appropriate exercise
price and hereby directs Computershare Trust Company, N.A. to issue the above indicated number of
shares of Common Stock in accordance with the Transfer Agent Instructions dated
, 2009, from the Company and acknowledged and agreed to by Computershare
Trust Company, N.A..
| CARDICA, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
EXHIBIT F
FORM OF SECRETARY’S CERTIFICATE
The undersigned hereby certifies that he is the duly elected, qualified and acting Secretary
of Cardica, Inc., a Delaware corporation (the “Company”), and that as such he is authorized to
execute and deliver this certificate in the name and on behalf of the Company and in connection
with the Securities Purchase Agreement, dated as of September 25, 2009, by and among the Company
and the investors party thereto (the “Securities Purchase Agreement”), and further certifies in
his official capacity, in the name and on behalf of the Company, the items set forth below.
Capitalized terms used but not otherwise defined herein shall have the meaning set forth in the
Securities Purchase Agreement.
1. Attached hereto as Exhibit A is a true, correct and complete copy of the resolutions duly
adopted by the Board of Directors of the Company at a meeting of the Board of Directors held on
September 25th, 2009. Such resolutions have not in any way been amended, modified, revoked or
rescinded, have been in full force and effect since their adoption to and including the date hereof
and are now in full force and effect.
2. Attached hereto as Exhibit B is a true, correct and complete copy of the Certificate of
Incorporation of the Company, together with any and all amendments thereto currently in effect, and
no action has been taken to further amend, modify or repeal such Certificate of Incorporation, the
same being in full force and effect in the attached form as of the date hereof.
3. Attached hereto as Exhibit C is a true, correct and complete copy of the Bylaws of the
Company and any and all amendments thereto currently in effect, and no action has been taken to
further amend, modify or repeal such Bylaws, the same being in full force and effect in the
attached form as of the date hereof.
4. Each person listed below has been duly elected or appointed to the position(s) indicated
opposite his name and is duly authorized to sign the Securities Purchase Agreement and each of the
Transaction Documents on behalf of the Company, and the signature appearing opposite such person’s
name below is such person’s genuine signature.
| Name | Position | Signature | ||
| Xxxxxxx X. Xxxxxx, M.D., Ph.D. | Chief Executive Officer | |||
| Xxxxxx X. Xxxxxx | Chief Financial Officer | |||
In Witness Whereof, the undersigned has hereunto set his hand as of this
day of September, 2009.
| Secretary |
I, Xxxxxxx X. Xxxxxx, M.D., Ph.D., Chief Executive Officer, hereby certify that Xxxxxx X.
Xxxxxx is the duly elected, qualified and acting Secretary of the Company and that the signature
set forth above is his true signature.
| Chief Executive Officer |
EXHIBIT G
FORM OF OFFICER’S CERTIFICATE
The undersigned Chief Executive Officer of Cardica, Inc., a Delaware corporation (the
“Company”), pursuant to Section 5.1(g) of the Securities Purchase Agreement, dated as of September
25, 2009, by and among the Company and the Purchasers signatory thereto (the “Agreement”), hereby
represents, warrants and certifies to such investors as follows (capitalized terms used but not
otherwise defined herein shall have the meaning set forth in the Agreement):
1. The representations and warranties of the Company contained in the Agreement are true and
correct in all material respects (except for those representations and warranties which are
qualified as to materiality, in which case such representations and warranties are true and correct
in all respects) as of the date when made and as of the Closing Date, as though made on and as of
such date, except for such representations and warranties that speak as of a specific date.
2. The Company has performed, satisfied and complied in all material respects with all
covenants, agreements and conditions required by the Transaction Documents to be performed,
satisfied or complied with by it at or prior to the Closing.
In Witness Whereof, the undersigned has executed this certificate this
day of September, 2009.
| Chief Executive Officer |
EXHIBIT H
PURCHASER’S CERTIFICATE OF SUBSEQUENT SALE
To: Cooley Godward Kronish LLP
| Attention: | Xxxx X. Xxxxxxx, Esq. Five Palo Alto Square 0000 Xx Xxxxxx Xxxx Xxxx Xxxx, XX 00000-0000 Fax: 000-000-0000 Email: xxxxxxxx@xxxxxx.xxx |
The undersigned, the selling securityholder or an officer of, or other duly authorized person,
hereby certifies that represents that it has sold
shares of the Common Stock of Cardica, Inc. and that such shares were sold on
either (i) in accordance with the registration statement on Form S-3 with file
number , in which case the selling securityholder certifies that such selling
securityholder has delivered a current prospectus in connection with such sale, provided, however,
that if Rule 172 under the Securities Act of 1933, as amended, is then in effect, such selling
securityholder has confirmed that a current prospectus is deemed to be delivered in connection with
such sale, or (ii) in accordance with Rule 144 under the Securities Act of 1933 ( “Rule 144”), in
which case the selling securityholder certifies that it has complied with the requirements of Rule
144. Print or type:
Name of individual representing selling
securityholder (if an institution): |
||||||
Title of individual representing selling
securityholder (if an institution): |
||||||
Signature by: |
||||||
Selling securityholder or individual representative :
|
By: | |||||
| Name: | ||||||
| Title: | ||||||
