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EXHIBIT 4.1
___________, 2000
[Purchaser]
[Address]
Dear Sirs:
This letter sets forth the agreement between _________________________
(the "Purchaser") and_________ (the "Company") regarding the purchase by the
Purchaser from the Company of the Company's common stock (the "Common Stock") on
the date hereof. The parties agree as follows:
1. This Agreement relates to the purchase by the Purchaser of
_________ shares (the "Shares") of the Company's Common Stock for an
aggregate purchase price of $____________, which purchase is being
settled by the parties on the date hereof.
2. The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of _____________________. The
Company has the requisite corporate power and authority to enter into
and perform this Agreement and to issue and sell the Shares in
accordance with the terms hereof. The execution, delivery and
performance of this Agreement by the Company and the consummation by it
of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action. This Agreement has been
duly executed and delivered on behalf of the Company by a duly
authorized officer. A copy of a duly executed secretary's certificate of
the Company, including, among other things, duly executed resolutions of
the Board of Directors of the Company, is attached hereto as Exhibit
"A". This Agreement constitutes, or shall constitute when executed and
delivered, a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms.
3. The Shares have been duly authorized by all necessary corporate
action and, when paid for or issued in accordance with the terms hereof,
the Shares shall be validly issued and outstanding, fully paid and
nonassessable, and the Purchaser shall be entitled to all rights
accorded to a holder of Common Stock.
4. The Company represents and warrants that (a) the Shares have been
registered under the Securities Act of 1933, as amended (the "Securities
Act"), pursuant to a registration statement on Form S-3, Commission File
Number 333-__________ (the "Registration Statement"); and (b) the
Company has filed a prospectus supplement to the Registration Statement
(the "Prospectus Supplement") in connection with this transaction.
Copies of the Registration Statement and the Prospectus Supplement, each
as filed and, in the case of the Registration Statement, declared
effective by the Securities and Exchange Commission, are annexed hereto
as Exhibits "B" and "C", respectively.
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5. The Company has taken all action necessary on its part to list
the Shares for trading on the NASDAQ system or any relevant market or
system, if applicable. A copy of the Company's listing application with
NASDAQ or any other relevant market or system is attached hereto as
Exhibit "D".
6. The Company will continue to take all action necessary to
continue the listing or trading of its Common Stock on the [Name of
Exchange] or any relevant market or system, if applicable, and will
comply in all respects with the Company's reporting, listing (including,
without limitation, the listing of the Shares) or other obligations
under the rules of the [Name of Exchange] or any relevant market or
system.
7. The Company has delivered or made available to the Purchaser true
and complete copies of the filings on Forms 10-K, 10-Q and 8-K filed by
the Company with the Securities and Exchange Commission since
_______________ (collectively, the "Commission Filings"). The Company
has not provided to the Purchaser any information which, according to
applicable law, rule or regulation, should have been disclosed publicly
by the Company but which has not been so disclosed, other than with
respect to the transactions contemplated by this Agreement. As of their
respective dates, each of the Commission Filings complied in all
material respects with the requirements of the Securities Exchange Act
of 1934 (the "Exchange Act") and the rules and regulations of the
Commission promulgated thereunder and other federal, state and local
laws, rules and regulations applicable to such documents, and, as of
their respective dates, none of the Commission Filings referred to above
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. The financial statements of the Company
included in the Commission Filings comply as to form in all material
respects with applicable accounting requirements and the published rules
and regulations of the Commission or other applicable rules and
regulations with respect thereto. No event or circumstance has occurred
or exists with respect to the Company or its subsidiaries or their
respective businesses, properties, prospects, operations or financial
condition, which, under applicable law, rule or regulation, requires
public disclosure or announcement by the Company but which has not been
so publicly announced or disclosed.
8. The Company will promptly notify the Purchaser of (a) any stop
order or other suspension of the effectiveness of the Registration
Statement and (b) the happening of any event as a result of which the
prospectus included in the Registration Statement includes an untrue
statement of a material fact or omits to state a material fact required
to be stated therein, or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
9. The Company may not issue a press release or otherwise make a
public statement or announcement with respect to the completion of the
transaction contemplated hereby, without the prior consent of the
Purchaser.
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10. The Company and the Purchaser will indemnify each other as
provided in Exhibit "E" attached hereto against liability with respect
to the Registration Statement (including, without limitation, the
Prospectus Supplement) relating to the Shares which were sold by the
Company to the Purchaser. For purposes of said Exhibit E, capitalized
terms used therein without definition shall have the same meanings
therein as are ascribed to said terms in this agreement.
11. This Agreement and the legal relations between the parties hereto
with respect to any purchase of Common Stock by the Purchaser hereunder
shall be governed and construed in accordance with the substantive laws
of the State of New York without giving effect to the conflicts of law
principles thereunder.
Delivery of an executed copy of a signature page to this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
copy of this Agreement and shall be effective and enforceable as the original.
Please execute a copy of this letter which, when executed by the
Purchaser, will constitute an agreement between the Company and the Purchaser.
Very truly yours,
[COMPANY NAME]
By:______________________________
Name:
Title:
AGREED TO:
PURCHASER:
[NAME]
By:______________________________
Name:
Title:
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EXHIBIT 'A'
SECRETARY'S CERTIFICATE
as of August __, 2000
The undersigned, ______________________, Secretary of [COMPANY], a
___________ corporation (the "Company"), delivers this certificate in connection
with the issuance and sale of shares of common stock, par value $.001 per share
(the "Common Stock"), of the Company and warrants to purchase shares of Common
Stock to _________________ (the "Purchaser") pursuant to the Purchase Agreement,
dated as of August __, 2000 (the "Agreement"), by and among the Company and the
Purchaser, and hereby certifies on the date hereof, that (capitalized terms used
herein without definition have the meanings assigned to them in the Agreement):
1. Attached hereto as EXHIBIT I is a true and correct copy of all
written actions and resolutions of the Board of Directors (including any
committees thereof) of the Company relating to the transactions contemplated by
the Agreement; said actions and resolutions have not been amended, rescinded or
modified since their adoption and remain in full force and effect as of the date
hereof; said actions and resolutions are the only resolutions adopted by the
Board of Directors of the Company, or any committee thereof, pertaining to (A)
the offering of the Common Stock to be sold by the Company pursuant to the
Agreement, (B) the execution and delivery of the Agreement and (C) all other
transactions in connection with the foregoing.
2. Each person who, as an officer of the Company, or as attorney-in-fact
of an officer of the Company, signed the Agreement and any other document
delivered prior hereto or on the date hereof in connection with the transactions
contemplated by the Agreement, was duly elected, qualified and acting as such
officer or duly appointed and acting as such attorney-in-fact, and the signature
of each such person appearing on any such document is his genuine signature.
3. The actions, resolutions and other records of the Company relating to
all of the proceedings of the Stockholders of the Company, the Board of
Directors of the Company and any committees thereof made available to the
Purchaser and their counsel are the true, correct and complete copies thereof,
with respect to all proceedings of said Stockholders, Board of Directors and
committees thereof. Such records and other documents of the Company made
available to the Purchaser and their counsel were true and complete in all
respects. There have been no material changes, additions or alterations in said
records and other documents that have not been disclosed to the Purchaser.
IN WITNESS WHEREOF, I have signed my name as of the date first above
written.
By:______________________________
Name:
Title: Secretary
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I, __________________, Chief Executive Officer of [COMPANY], do hereby
certify that ______________________ is the duly elected, qualified and acting
Secretary of the above mentioned company, and that the signature set forth above
is her true and genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name as of the date first
above written.
By:______________________________
Name:
Title: Chief Executive Officer
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EXHIBIT 'E'
TERMS OF INDEMNIFICATION
(1) INDEMNIFICATION BY THE COMPANY. The Company will indemnify and hold
harmless the Purchaser and each person, if any, who controls the
Purchaser within the meaning of Section 15 of the Securities Act of
1933, as amended (the "Securities Act"); or Section 20(a) of the
Securities Exchange Act, as amended (the "Exchange Act"); from and
against any losses, claims, damages, liabilities, costs and expenses
(including, without limitation, reasonable costs of defense and
investigation and all attorneys' fees and expenses) to which the
Purchaser and each person, if any, who controls the Purchaser may become
subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages, liabilities and expenses (or actions in respect
thereof) arise out of; or are based upon (i) any untrue statement or
alleged untrue statement of a material fact contained, or incorporated
by reference, in the Registration Statement relating to Shares being
sold to the Purchaser (including the prospectus dated
____________________, 2000, and the prospectus supplement dated
_________________ (the "Prospectus Supplement") which are a part of the
Registration Statement), or any amendment or supplement to the
Registration Statement, or (ii) the omission or alleged omission to
state in that Registration Statement or any document incorporated by
reference in the Registration Statement, a material fact required to be
stated therein or necessary to make the statements therein not
misleading (an "Indemnifiable Matter").
The Company will reimburse the Purchaser and each such controlling
person promptly upon demand for any legal or other costs or expenses
reasonably incurred by the Purchaser or the controlling person in
investigating, defending against, or preparing to defend against any
claim relating to an Indemnifiable Matter, except that the Company will
not be liable to the extent such claim, suit or proceeding which results
in a loss, claim, damage, liability or expense arises out of, or is
based upon, an untrue statement, alleged untrue statement, omission or
alleged omission, included in any Prospectus Supplement or any amendment
or supplement to the Prospectus Supplement in reliance upon, and in
conformity with, written information furnished by the Purchaser to the
Company for inclusion in the Prospectus Supplement.
(2) INDEMNIFICATION PROCEDURES. Promptly after a person receives notice of a
claim or the commencement of an action, suit or proceeding for which the
person intends to seek indemnification under Paragraph (a) or (b), the
person will notify the indemnifying party in writing of the claim or
commencement of the action, suit or proceeding, but failure to notify
the indemnifying party will not relieve the indemnifying party from
liability under Paragraph (a) or (b), except to the extent the
indemnifying party has been materially prejudiced by the failure to give
notice. The indemnifying party will be entitled to participate in the
defense of any claim, action, suit or proceeding as to which
indemnification is being sought, and if the indemnifying party
acknowledges in writing the obligation to indemnify the party against
whom the claim, action, suit or proceeding
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is brought, the indemnifying party may (but will not be required to)
assume the defense against the claim, action, suit or proceeding with
legal counsel chosen by the indemnifying party. After an indemnifying
party notifies an indemnified party that the indemnifying party wishes
to assume the defense of a claim, action, suit or proceeding the
indemnifying party will not be liable for any legal or other expenses
incurred by the indemnified party in connection with the defense against
the claim, action, suit or proceeding, except that if, in the opinion of
legal counsel to the indemnifying party, one or more of the indemnified
parties should be separately represented in connection with a claim,
action, suit or proceeding the indemnifying party will pay the fees and
expenses of one separate counsel for the indemnified parties. Each
indemnified party, as a condition precedent to receiving indemnification
as provided in Paragraph (a) or (b), will, at the cost and expense of
the indemnifying party, cooperate in all reasonable respects with the
indemnifying party in the defense of the claim, action, suit or
proceeding as to which indemnification is sought. No indemnifying party
will be liable for any settlement of any claim, action, suit or
proceeding effected without its prior written consent. No indemnifying
party will, without the prior written consent of the indemnified party,
effect any settlement of a pending or threatened claim, action or
proceeding with respect which an indemnified party is, or is informed
that it may be, made a party and for which it would be entitled to
indemnification, unless the settlement includes an unconditional release
of the indemnified party from all liability and claims which are the
subject matter of the pending or threatened action.
(3) CONTRIBUTION. If for any reason the indemnification provided for in this
agreement is not available to, or is not sufficient to hold harmless, an
indemnified party in respect of any loss, claim, damage, liability, cost
or expense referred to in Paragraph (a) or (b), each indemnifying party
will, in lieu of indemnifying the indemnified party, contribute to the
amount paid or payable by the indemnified party, contribute to the
amount paid or payable by the indemnified party as a result of the loss,
claim, damage, liability, cost or expense (i) in the proportion which is
appropriate to reflect the relative benefits received by the
indemnifying party, on the one hand, and by the indemnified party, on
the other hand, from the sale of stock which is the subject of the
claim, action, suit or proceeding which resulted in the loss, claim,
liability, cost or expense or (ii) if that allocation is not permitted
by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits of the sale of stock, but also the relative
fault of the indemnifying party and the indemnified party with respect
to the statements or omissions which are the subject of the claim,
action, suit or proceeding that resulted in the loss, claim, damage,
liability, cost or expense as well as any other relevant equitable
considerations.
