EXHIBIT 4.2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made as of the 1st day of November, 1999,
by and between Fusion Medical Technologies, Inc. (the "Company"), a corporation
organized under the laws of the State of Delaware, with its principal offices at
0000 Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000, and the purchaser whose
name and address is set forth on the signature page hereof (the "Purchaser").
IN CONSIDERATION of the mutual covenants contained in this Agreement, the
Company and the Purchaser agree as follows:
SECTION 1. Authorization of Sale of the Shares. Subject to the terms and
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conditions of this Agreement, the Company has authorized the sale of up to
1,200,000 shares of common stock (the "Shares"), par value $0.001 per share (the
"Common Stock"), of the Company.
SECTION 2. Agreement to Sell and Purchase the Shares. At the Closing (as
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defined in Section 3), the Company will sell to the Purchaser, and the Purchaser
will buy from the Company, upon the terms and conditions hereinafter set forth,
the number of Shares (at the purchase price) shown below:
Price Per
Number Shares to Be Share In Aggregate
Purchased Dollars Price
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________________ __________________ _________________
The Company proposes to enter into agreements in substantially identical
form to this Agreement with certain other Purchasers for Shares (the "Other
Purchasers") and expects to complete sales of Shares to them. The Purchaser and
the Other Purchasers are hereinafter sometimes collectively referred to as the
"Purchasers," and this Agreement and the agreements executed by the Other
Purchasers are hereinafter sometimes collectively referred to as the
"Agreements." The term "Placement Agent" shall mean Xxxxxxxx Inc.
SECTION 3. Delivery of the Shares at the Closing. The completion of the
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purchase and sale of the portion of the Shares to be purchased by Purchaser (the
"Closing") shall occur as soon as practicable and as agreed by the parties
hereto following notification by the staff of the Securities and Exchange
Commission (the "Commission") to the Company of the staff's willingness to grant
acceleration of effectiveness of the registration statement to be filed by the
Company pursuant to Section 6.1 hereof (the "Registration Statement") at the
offices of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx,
Xxxxxxxxxx at such time and date to be agreed upon by the Company and the
Placement Agent (the "Closing Date") and of which the Purchasers will be
notified by facsimile transmission or otherwise.
At the Closing, the Company shall deliver to the Purchaser one or more
stock certificates registered in the name of the Purchaser, or in such nominee
name(s) as designated by the Purchaser in writing, representing the number of
Shares set forth in Section 2 above. The name(s) in which the stock
certificates are to be registered are set forth in the Stock Certificate
Questionnaire attached hereto as part of Appendix I. The Company's obligation
to complete the purchase and sale of the Shares and deliver such stock
certificate(s) to the Purchaser at the Closing shall be subject to the following
conditions: (a)
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receipt by the Company of same-day funds in the full amount of the purchase
price for the Shares being purchased hereunder; (b) completion of the purchases
and sales under the Agreements with all of the Other Purchasers; and (c) the
accuracy of the representations and warranties made by the Purchaser as if made
on the day of such Closing and the fulfillment of those undertakings of the
Purchaser to be fulfilled prior to the Closing. The Purchaser's obligation to
accept delivery of such stock certificate(s) and to pay for the Shares evidenced
thereby shall be subject only to the following conditions: (a) the staff of the
Commission having notified the Company of the staff's willingness to accelerate
the effectiveness of the Registration Statement on or prior to the 60th day
after the date the Registration Statement was filed by the Company; and (b) the
accuracy in all material respects of the representations and warranties made by
the Company herein and the fulfillment in all material respects of those
undertakings of the Company to be fulfilled prior to Closing. The Purchaser's
obligations hereunder are expressly not conditioned on the purchase by any or
all of the Other Purchasers of Shares that they have agreed to purchase from the
Company.
3.1 Legal Opinion. At the Closing, Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
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counsel to the Company, will deliver its legal opinion to the Purchasers in the
form and substance reasonably satisfactory to the Placement Agent.
SECTION 4. Representations, Warranties and Covenants of the Company. The
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Company hereby represents and warrants to, and covenants with, the Purchaser, as
of the date hereof, as follows:
4.1 Organization and Standing. The Company is a corporation duly
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organized and validly existing under the laws of the State of Delaware and is in
good standing under such laws. The Company has all requisite corporate power to
own and operate its properties and assets, and to carry on its business as
presently conducted. The Company is qualified to do business as a foreign
corporation in the State of California. Such qualification is not presently
required in any other jurisdiction where a failure to so qualify would have a
material adverse effect on the business, financial position, or results of
operations of the Company ("Material Adverse Effect").
4.2 Capitalization. The authorized capital stock of the Company
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consists of 50,000,000 shares of Common Stock and 5,000,000 shares of Preferred
Stock. 9,104,716 shares of Common Stock are issued and outstanding. No shares of
Preferred Stock are issued and outstanding. All such issued and outstanding
shares have been duly authorized and validly issued, and are fully paid and
nonassessable. Options to purchase 1,259,267 shares of the Company's Common
Stock are outstanding under the Company's 1993 Stock Option Plan and 467,621
shares are available for future grant. 56,668 options to purchase shares of the
Company's Common Stock are outstanding under the Company's 1996 Director Option
Plan and 60,800 shares are available for future grant. The Company has issued
90,141 shares of Common Stock under its Employee Stock Purchase Plan and 189,859
shares are available for future issuance. The Company also has warrants
outstanding for 12,785 shares of its Common Stock. Except as disclosed in the
Company SEC Documents (as defined below), there are no other options, warrants,
conversion privileges, or preemptive or other rights or agreements presently
outstanding to purchase or otherwise acquire any authorized but unissued shares
of the capital stock or other securities of the Company.
4.3 Authority. The Company has full power and authority to execute
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and deliver this Agreement, and to consummate the transactions contemplated by
this Agreement. All corporate action on the part of the Company, its officers,
directors and stockholders necessary for the execution and delivery of, and the
consummation of the transactions contemplated by this Agreement and the
performance of all obligations of the Company under this Agreement has been
taken. This Agreement,
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upon execution and delivery by the Company and assuming the due and proper
execution and delivery by Purchaser, constitutes a legal, valid and binding
obligation of the Company, enforceable in accordance with its respective terms,
except as may be limited by (i) applicable bankruptcy, insolvency,
reorganization or other laws of general application relating to or affecting the
enforcement of creditors rights generally, and (ii) the effect of rules of law
governing the availability of specific performance and other equitable remedies.
4.4 Valid Issuance of Common Stock. The Common Stock to be sold
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hereby has been duly authorized and, when issued, delivered and paid for in the
manner set forth in this Agreement, will be duly authorized, validly issued,
fully paid and nonassessable, and will be free of restrictions on transfer other
than restrictions on transfer under this Agreement and under applicable state
and federal securities laws. No preemptive rights or other rights to subscribe
for or purchase exist with respect to the issuance and sale of the Common Stock
by the Company pursuant to this Agreement. No stockholder of the Company has any
right (which has not been waived or has not expired by reason of lapse of time
following the notification of the Company's intent to file the Registration
Statement) to request or require the Company to register the sale of any shares
owned by such stockholder under the Securities Act of 1933, as amended (the
"Securities Act"), in the Registration Statement.
4.5 Governmental Consents. Other than compliance with the Securities
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Act and other state or federal securities laws, and such filings as may be
required to be made under such laws or with the National Association of
Securities Dealers (the "NASD"), no consent, approval, order or authorization
of, or registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of the Company is
required in connection with the consummation of the transactions contemplated by
this Agreement.
4.6 Conflicts. The execution and delivery of this Agreement will not
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conflict with or result in a material breach of the terms, conditions or
provisions of, or constitute a material default under, any material contract,
material covenant or material instrument under which the Company is now
obligated.
4.7 SEC Documents; Material Contracts; Financial Statements. The
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Company has filed each statement, annual, quarterly and other report,
registration statement and definitive proxy statement ("Company SEC Documents")
required to be filed (other than preliminary material) by the Company with the
SEC subsequent to June 6, 1996 (the date of effectiveness of the Company's
registration statement on Form S-1 for the Company's initial public offering of
its Common Stock). As of their respective filing dates, the Company SEC
Documents complied in all material respects with the requirements of the Act or
the Securities Exchange Act of 1934 (the "1934 Act"), as the case may be, and
none of the Company SEC Documents contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements made therein, in light of the circumstances in
which they were made, not misleading, except to the extent corrected by any
subsequently filed Company SEC Document. The Company's Registration Statement on
Form S-1, which became effective on April 1, 1999, and the Company SEC
Documents, include certain contracts as required by the SEC's rules and
regulations. Neither the Company nor any of its subsidiaries, nor to the
Company's knowledge, any other party is in breach of or default under any of
such contracts, except as to breaches or defaults which, in any single case or
in the aggregate would not have a Material Adverse Effect.
The financial statements of the Company and the notes thereto included in
the Company SEC Documents (collectively, the "Financial Statements") comply as
to form in all material respects with
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applicable accounting requirements and with the published rules and regulations
of the SEC with respect thereto. The Financial Statements have been prepared in
accordance with generally accepted accounting principles consistently applied
and fairly present the consolidated financial position of the Company and any
subsidiaries at the dates thereof and the consolidated results of operations and
consolidated cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal, recurring adjustments).
4.8 Changes. Since June 30, 1999 (the date of the most recent
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Financial Statements), there has not been any event or condition of any
character that would reasonably likely result in a Material Adverse Effect (as
such business is presently conducted and as it is proposed to be conducted).
4.9 Litigation. There is no pending or, to the Company's knowledge,
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threatened lawsuit, administrative proceeding, arbitration, labor dispute or
governmental investigation ("Litigation") to which the Company is a party or by
which any material portion of its assets, taken as a whole, may be bound and
which Litigation, if adversely determined, would have a Material Adverse Effect.
4.10 Disclosure. The Company has fully delivered or made available to
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the Purchasers or their counsel all of the information (including the Company
SEC Documents) that the Company reasonably believes is necessary for such
Purchasers' purchase decision. Neither this Agreement nor any agreement,
instrument or other documents delivered by the Company to the Purchasers in
connection herewith or filed with the SEC subsequent to June 6, 1996, when read
together, contains any untrue statement of a material fact, or, to the knowledge
of the Company, omits to state a material fact necessary to be stated to make
the statements contained herein or therein not misleading in light of the
circumstances in which they were made.
4.11 Offering Materials. The Company has not distributed and will not
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distribute prior to the Closing Date any offering material in connection with
the offering and sale of the Shares other than the Private Placement Memorandum
or any amendment or supplement thereto. The Company has not nor will it take any
action independent of the Placement Agent to sell, offer for sale or solicit
offers to buy any securities of the Company which would reasonably be expected
to cause the offer or sale of the Shares, as contemplated by this Agreement, to
not be exempted from the provisions of Section 5 of the Securities Act.
4.12 Year 2000 Compliance. The Company has reviewed its operations to
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evaluate the extent to which the business or operations of the Company might be
affected by the Year 2000 computer problem. As a result of such internal review,
the Company does not believe that Year 2000 computer related problems will have
a Material Adverse Effect.
SECTION 5. Representations and Warranties of the Purchasers. Each Purchaser
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hereby represents and warrants to, and covenants, that:
5.1 Authorization. Purchaser has full power and authority to execute
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and deliver, and to consummate the transactions contemplated by the Closing and
this Agreement. All corporate action on the part of such Purchaser, its
officers, directors and stockholders necessary for (i) the execution and
delivery of, and the consummation of the transactions contemplated by, this
Agreement, and (ii) as of the Closing, the performance of all obligations of
such Purchaser under this Agreement, has been taken. This Agreement, upon
execution and delivery by such Purchaser and assuming the due and proper
execution and delivery by the Company, constitutes a legal, valid and binding
obligation of such
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Purchaser, enforceable in accordance with its terms, except as may be limited by
(i) applicable bankruptcy, insolvency, reorganization or other laws of general
application relating to or affecting the enforcement of creditors rights
generally, and (ii) the effect of rules of law governing the availability of
equitable remedies.
5.2 Purchase Entirely for Own Account. This Agreement is made with
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each Purchaser in reliance upon each Purchaser's representation to the Company,
which by each Purchaser's execution of this Agreement, Purchaser hereby
confirms, that the Common Stock to be received by such Purchaser (collectively,
the "Securities") will be acquired for investment for such Purchaser's own
account, not as a nominee or agent, and not with a view to the distribution of
any part thereof, and that such Purchaser has no present intention of selling,
granting any participation in, or otherwise taking an action that would
constitute a distribution of the same.
5.3 Disclosure of Information. Purchaser has received all the
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information it considers necessary or appropriate for deciding whether to
purchase the Common Stock. Purchaser further represents that it has had an
opportunity to ask questions and receive answers from the Company regarding the
terms and conditions of the offering of the Common Stock and the business,
properties, prospects and financial condition of the Company. The foregoing,
however, does not limit or modify the representations and warranties of the
Company in Section 4 of this Agreement or the right of Purchaser to rely
thereon.
5.4 Investment Experience. Purchaser is an investor in securities of
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companies in the development stage and acknowledges that it is able to fend for
itself, can bear the economic risk of its investment, and has such knowledge and
experience in financial or business matters that it is capable of evaluating the
merits and risks of the investment in the Common Stock. Purchaser has not been
organized for the purpose of acquiring the Common Stock.
5.5 Accredited Purchaser. Purchaser is an "accredited investor"
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within the meaning of Rule 501 of Regulation D, as presently in effect.
5.6 Restricted Securities. Purchaser understands that the Securities
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it is purchasing are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Act only in certain limited circumstances. In this connection, Purchaser
represents that it is familiar with SEC Rule 144 or Rule 144A, as presently in
effect, and understands the resale limitations imposed thereby and by the Act.
5.7 Further Limitations on Disposition. Without in any way limiting
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the representations set forth above, Purchaser further agrees not to make any
disposition of all or any portion of the Securities unless and until:
(a) There is then in effect a Registration Statement under the
Act covering such proposed disposition and such disposition is made in
accordance with such Registration Statement; or
(b) If reasonably requested by the Company, Purchaser shall have
furnished the Company with an opinion of counsel, reasonably satisfactory to the
Company, that such disposition will not require registration of such shares
under the Act. It is agreed that the Company will not require opinions of
counsel for transactions made pursuant to Rule 144 except in unusual
circumstances.
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5.8 Prospectus Delivery. The Purchaser hereby covenants with the
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Company not to make any sale of the Shares under the Registration Statement
without effectively causing the prospectus delivery requirement under the
Securities Act to be satisfied, and the Purchaser acknowledges and agrees that
such Shares are not transferable on the books of the Company unless the
certificate submitted to the transfer agent evidencing the Shares is accompanied
by a separate officer's certificate, (i) which may be in the form of Appendix II
hereto, (ii) executed by an officer of, or other authorized person designated
by, the Purchaser, and (iii) to the effect that (A) the Shares have been sold in
accordance with the Registration Statement and (B) the requirement of delivering
a current prospectus has been satisfied. The Purchaser acknowledges that there
may occasionally be times when the Company must suspend the use of the
prospectus forming a part of the Registration Statement until such time as an
amendment to the Registration Statement has been filed by the Company and
declared effective by the Commission, or until such time as the Company has
filed an appropriate report with the Commission pursuant to the Exchange Act.
The Purchaser hereby covenants that it will not sell any Shares pursuant to said
prospectus during the period commencing at the time at which the Company gives
Purchaser written notice of the suspension of the use of said prospectus and
ending at the time the Company gives the Purchaser written notice that the
Purchaser may thereafter effect sales pursuant to said prospectus and any
amendments thereto. The Purchaser further covenants to notify the Company
promptly of the sale of all of its Shares.
SECTION 6. Survival of Representations, Warranties and Agreements.
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Notwithstanding any investigation made by any party to this Agreement or by the
Placement Agent, all covenants, agreements, representations and warranties made
by the Company and the Purchaser herein and in the certificates for the Shares
delivered pursuant hereto shall survive the execution of this Agreement, the
delivery to the Purchaser of the Shares being purchased and the payment
therefor.
SECTION 7. Legends. Each certificate or instrument representing Shares
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delivered at the Closing shall bear legends in substantially the following
forms:
(i) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE 'SECURITIES
ACT') AND ARE 'RESTRICTED SECURITIES' AS DEFINED IN RULE 144 PROMULGATED UNDER
THE SECURITIES ACT. THE SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE OR
OTHERWISE DISTRIBUTED EXCEPT (I) IN CONJUNCTION WITH AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT, OR (II) IN COMPLIANCE
WITH RULE 144, OR (III) PURSUANT TO AN OPINION OF COUNSEL SATISFACTORY TO THE
ISSUER OF THESE SECURITIES THAT SUCH REGISTRATION OR COMPLIANCE IS NOT
REQUIRED AS TO SUCH SALE, OFFER OR DISTRIBUTION."
(ii) Any other legends required by California law or
other applicable blue sky or state securities laws.
The Company need not register a transfer of any Shares, and may also instruct
its transfer agent not to register a transfer of any Shares, unless the
conditions specified in the foregoing legends are satisfied to the extent
applicable.
SECTION 8. Registration of the Shares; Compliance with the Securities Act.
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8.1 Registration Procedures and Expenses. The Company shall:
(a) as soon as practicable after execution of this Agreement and all
similar agreements with Other Purchasers, prepare and file with the
Commission the Registration Statement on Form S-3 relating to the
sale of the Shares by the Purchaser on the Nasdaq National Market or
the facilities of any national securities exchange on which the
Common Stock is then traded or in privately-negotiated transactions;
(b) use its reasonable efforts, subject to receipt of necessary
information from the Purchasers, to cause the staff of the
Commission to notify the Company of the staff's willingness to grant
acceleration of the effective date of the Registration Statement
within 60 days after the Registration Statement is filed by the
Company;
(c) prepare and file with the Commission such amendments and supplements
to the Registration Statement and the prospectus used in connection
therewith as may be necessary to keep the Registration Statement
effective until the date on which the Shares may be resold by the
Purchasers without registration by reason of Rule 144(k) under the
Securities Act or any other rule of similar effect;
(d) furnish to the Purchaser with respect to the Shares registered under
the Registration Statement (and to each underwriter, if any, of such
Shares) such number of copies of prospectuses and such other
documents as the Purchaser may reasonably request, in order to
facilitate the public sale or other disposition of all or any of the
Shares by the Purchaser; provided, however, that the obligation of
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the Company to deliver copies of prospectuses to the Purchaser shall
be subject to the receipt by the Company of reasonable assurances
from the Purchaser that the Purchaser will comply with the
applicable provisions of the Securities Act and of such other
securities or blue sky laws as may be applicable in connection with
any use of such prospectuses;
(e) file documents required of the Company for normal blue sky clearance
in states specified in writing by the Purchaser; provided, however,
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that the Company shall not be required to qualify to do business or
consent to service of process in any jurisdiction in which it is not
now so qualified or has not so consented; and
(f) bear all expenses in connection with the procedures in paragraphs
(a) through (e) of this Section 6.1 and the registration of the
Shares pursuant to the Registration Statement, other than fees and
expenses, if any, of counsel or other advisers to the Purchasers or
underwriting discounts, brokerage fees and commissions incurred by
the Purchasers, if any.
8.2 Transfer of Shares After Registration. The Purchaser agrees that it will
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not effect any disposition of the Shares or its right to purchase the Shares
that would constitute a sale within the meaning of the Securities Act, except as
contemplated in the Registration Statement referred to in
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Section 6.1, and that it will promptly notify the Company of any changes in the
information set forth in the Registration Statement regarding the Purchaser or
its plan of distribution.
8.3 Indemnification. In the event any securities are included in a
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registration statement under this Section 6:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Purchaser and each person, if any, who controls such
Purchaser within the meaning of the Act or the 1934 Act, against any losses,
claims, damages, or liabilities (joint or several) to which they may become
subject under the Act or the 1934 Act or other federal or state law, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such Registration Statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) in connection with the sale
or purchase of the Shares, any violation or alleged violation by the Company of
the Act, the 1934 Act, any state securities law or any rule or regulation
promulgated under the Act, or the 1934 Act or any state securities law; and the
Company will pay to each Purchaser or controlling person, as incurred, any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability, or action; provided,
however, that the indemnity agreement contained in this subsection 6.3(a) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability,
or action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any Purchaser or
controlling person.
(b) To the extent permitted by law, each Purchaser will indemnify
and hold harmless the Company, each of its directors, each of its officers who
has signed the registration statement, each person, if any, who controls the
Company within the meaning of the Act, any underwriter, and any controlling
person of any such underwriter or Purchaser, against any losses, claims,
damages, or liabilities (joint or several) to which any of the foregoing persons
may become subject, under the Act, or the 1934 Act or other federal or state
law, insofar as such losses, claims, damages, or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by each Purchaser expressly
for use in connection with such registration; and each Purchaser will pay, as
incurred, any legal or other expenses reasonably incurred by any person intended
to be indemnified pursuant to this subsection 6.3(b), in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this subsection
6.3(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of such Purchaser, which consent shall not be unreasonably withheld; provided,
that, in no event shall any indemnity under this subsection 6.3(b) exceed the
gross proceeds from the offering received by such Purchaser.
(c) Promptly after receipt by an indemnified party under this
Section 6.3 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 6.3, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying
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party shall have the right to participate in, and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
6.3, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 6.3.
(d) If the indemnification provided for in this Section 6.3 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
(e) The obligations of the Company and Purchaser under this Section
6.3 shall survive the completion of any offering of securities in a registration
statement under this Section 6, and otherwise.
8.4 Termination of Conditions and Obligations. The conditions precedent
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imposed by Section 5 or this Section 6 upon the transferability of the Shares
shall cease and terminate as to any particular number of the Shares on the date
all such Shares (i) are eligible for sale under Rule 144(k), (ii) have been
effectively registered under the Securities Act and sold or otherwise disposed
of in accordance with the intended method of disposition set forth in the
Registration Statement, or (iii) the Company receives an opinion of counsel
satisfactory in form and substance to the Company to the effect that such
conditions are not necessary in order to comply with the Securities Act.
8.5 Information Available. So long as the Registration Statement is
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effective covering the resale of Shares owned by the Purchaser, the Company will
furnish to the Purchaser:
(a) as soon as practicable after the Company has made such
information available to the public through submission to the
SEC (but in the case of the Company's Annual Report to
Stockholders, within 120 days after the end of each fiscal year
of the Company), one copy of (i) its Annual Report to
Stockholders (which Annual Report shall contain financial
statements audited in accordance with generally accepted
accounting
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principles by a national firm of certified public
accountants), (ii) if not included in substance in the Annual
Report to Stockholders, its Annual Report on Form 10-K, (iii)
its Quarterly Reports on Form 10-Q, (iv) its Current Reports
on Form 8-K, and (v) a full copy of the particular
Registration Statement covering the Shares (the foregoing, in
each case, excluding exhibits);
(b) upon the written request of the Purchaser, all exhibits
excluded by the parenthetical to subparagraph (a)(v) of this
Section 6.5; and
(c) upon the written request of the Purchaser, a reasonable
number of copies of the prospectuses to supply to any other
party requiring such prospectuses in connection with the
Purchaser's prospectus delivery requirements under the
Securities Act;
and the Company, upon the reasonable request of the Purchaser, will meet with
the Purchaser or a representative thereof at the Company's headquarters to
discuss information relevant for disclosure in the Registration Statement
covering the Shares, subject to appropriate confidentiality limitations as the
Company may require.
SECTION 9. Broker's Fee. The Purchaser acknowledges that the Company intends
------------
to pay to the Placement Agent a fee in respect of the sale of the Shares to the
Purchaser. Each of the parties hereto hereby represents that, on the basis of
any actions and agreements by it, there are no other brokers or finders entitled
to compensation in connection with the sale of the Shares to the Purchaser. The
purchaser also acknowledges that an affiliate of the Placement Agent may have an
opportunity to purchase Shares on substantially the same terms and conditions as
the Purchaser and the Other Purchasers.
SECTION 10. Notices. All notices, requests, consents and other communications
-------
hereunder shall be in writing, shall be mailed by first-class registered or
certified airmail, confirmed facsimile or nationally recognized overnight
express courier postage prepaid, and shall be deemed given when so mailed and
shall be delivered as addressed as follows:
-10-
(a) if to the Company, to:
Fusion Medical Technologies, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile: 000-000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile: 000-000-0000
or to such other person at such other place as the Company shall
designate to the Purchaser in writing; and
(b) if to the Purchaser, at its address as set forth at the end
of this Agreement, or at such other address or addresses as may
have been furnished to the Company in writing.
SECTION 11. Changes. This Agreement may not be modified or amended except
-------
pursuant to an instrument in writing signed by the Company and the Purchaser.
SECTION 12. Headings. The headings of the various sections of this Agreement
--------
have been inserted for convenience of reference only and shall not be deemed to
be part of this Agreement.
SECTION 13. Severability. In case any provision contained in this Agreement
------------
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
SECTION 14. Governing Law. This Agreement shall be governed by and construed
-------------
under the laws of the State of California as applied to agreements among
California residents entered into and performed entirely within California
without regard to conflict of laws principals.
-11-
SECTION 15. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the day and year
first above written.
FUSION MEDICAL TECHNOLOGIES, INC.
By:_________________________________
Name:
Title:
Print or Type:
Name of Purchaser
(Individual or Institution):
_________________________________
Name of Individual representing
Purchaser (if an Institution):
_________________________________
Title of Individual representing
Purchaser (if an Institution):
_________________________________
Signature by:
Individual Purchaser or Individual
representing Purchaser:
_________________________________
Address: ___________________________
Telephone: ___________________________
Facsimile: ___________________________
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Appendix I
(one of two)
FUSION MEDICAL TECHNOLOGIES, INC.
STOCK CERTIFICATE QUESTIONNAIRE
-------------------------------
Pursuant to Section 3 of this Agreement,
please provide us with the following
information:
1. The exact name that your Shares are to be
registered in (this is the name
that will appear on your stock certificate(s)).
You may use a nominee name if
appropriate: __________________
2. The relationship between the Purchaser of the
Shares and the Registered Holder listed in
response to item 1 above: __________________
3. The mailing address of the Registered Holder
listed in response to item 1 above: __________________
__________________
__________________
__________________
4. The Social Security Number or Tax Identification
Number of the Registered Holder listed in response
to item 1 above: __________________
-14-
Appendix I
(two of two)
FUSION MEDICAL TECHNOLOGIES, INC.
REGISTRATION STATEMENT QUESTIONNAIRE
------------------------------------
In connection with the preparation of the Registration Statement, please
provide us with the following information:
1. Pursuant to the "Selling Stockholder" section of the Registration
Statement, please state your or your organization's name exactly as it should
appear in the Registration Statement:
---------------------------------------------------------------------
2. Please provide the number of shares that you will beneficially own
immediately after Closing, including those Shares purchased by you pursuant to
this Agreement and those shares purchased by you or your affiliates through
other transactions:
---------------------------------------------------------------------
3. Have you or your organization had any position, office or other
material relationship within the past three years with the Company or its
affiliates?
_____ Yes _____ No
If yes, please indicate the nature of any such relationships below:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
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APPENDIX II
Attention:
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
------------------------------------------
The undersigned, [an officer of, or other person duly authorized by]
_____________________________________________________________
[fill in official name of individual or institution]
hereby certifies that he/she [said institution] is the Purchaser of
the shares evidenced by the attached certificate, and as such,
sold such shares on __________________ in accordance with
[date]
Registration Statement number _____________________________________
[fill in the number of or otherwise
________________________________ and the requirement of delivering a
identify Registration Statement]
current prospectus by the Company has been complied with in connection with such
sale.
Print or Type:
Name of Purchaser
(Individual or
Institution): ______________________
Name of Individual
representing
Purchaser (if an
Institution) ______________________
Title of Individual
representing
Purchaser (if an
Institution): ______________________
Signature by:
Individual Purchaser
or Individual
representing Purchaser: ______________________
-16-
