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EXHIBIT 10.24
PUT OPTION AGREEMENT
THIS PUT OPTION AGREEMENT ("Agreement") is made as of October 26, 1999,
between Micro Therapeutics, Inc., a Delaware corporation ("the Company"), and
Xxxxxx Laboratories, an Illinois corporation ("Abbott").
RECITALS
WHEREAS, Abbott has agreed to grant to the Company, and the Company has
agreed to accept, the option to issue, sell and deliver to Abbott shares of the
Company's Common Stock; and
WHEREAS, the Company and Abbott desire to make certain representations,
warranties, and covenants in connection with said grant to the Company of the
option to issue, sell and deliver to Abbott the Company's Common Stock and to
prescribe conditions precedent to such sale, issuance and delivery;
AGREEMENT
NOW THEREFORE, in consideration of the premises and the respective
promises made in this Agreement, and in consideration of the representations,
warranties, and covenants contained herein, the parties hereto agree as follows:
1. Certain Definitions. Unless the context otherwise requires, the terms
hereafter set forth when used in this Agreement shall have the following
meanings and the following definitions shall be equally applicable to both the
singular and plural forms of any of the terms herein defined:
1.1 "Business Day" means any day except a Saturday, Sunday, or other day
on which commercial banks in the City of Chicago are authorized by law to close.
1.2 "Closing" has the meaning set forth in Section 2.6 of this
Agreement.
1.3 "Common Stock" means the shares of Common stock of the Company, par
value $0.001 per share.
1.4 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
1.5 "Material Adverse Effect" has the meaning set forth in SECTION 3.1
of this Agreement.
1.6 "Option Limit" means $3,000,000.
1.7 "Option Shares" means shares of Common Stock acquired by Abbott
under the terms of this Agreement and any other securities received on account
of such shares as have been issued at any time in any stock split, stock
dividend, recapitalization, merger, consolidation or similar event.
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1.8 "Price Per Option Share" means $12 (as adjusted pursuant to Section
2.3).
1.9 "Purchase Price" has the meaning set forth in SECTION 2.5 of this
Agreement.
1.10 "Put Option" has the meaning set forth in SECTION 2.1 of this
Agreement.
1.11 "SEC" means the United States Securities and Exchange Commission.
1.12 "SEC Documents" has the meaning set forth in SECTION 3.10 of this
Agreement.
1.13 "Securities Act" means the Securities Act of 1933, as amended.
2. Put Option.
2.1 Grant of Put Option. The Company shall have the right, at its sole
discretion, but subject to the terms and conditions of this Agreement and on the
basis of the representations, warranties and covenants set forth herein, to
require Abbott to purchase up to the number of shares of Common Stock obtained
by dividing the Option Limit by the Price Per Option Share and rounding down to
the nearest whole number (the "Put Option"). The Put Option may be exercised,
whether in whole or in part, on only one occasion.
2.2 Term of the Put Option. The Put Option shall terminate immediately
after the Closing or on October 31, 1999, whichever occurs first.
2.3 Price and Certain Adjustment. The price per share of Common Stock to
be paid by Abbott shall be the Price Per Option Share. If the Company at any
time effects a subdivision or combination of the outstanding Common Stock, the
Price Per Option Share shall be decreased, in the case of a subdivision
(including by way of any stock split or recapitalization), or increased, in the
case of a combination (including by way of any reverse stock split or
recapitalization), in the same proportions as the Common Stock is subdivided or
combined, in each case effective automatically upon, and simultaneously with,
the effectiveness of the subdivision or combination which gives rise to the
adjustment. If the Company at any time pays a dividend, or makes any other
distribution, to holders of Common Stock payable in shares of Common Stock, or
fixes a record date for the determination of holders of Common Stock entitled to
receive a dividend or other distribution payable in shares of Common Stock, the
Price Per Option Share shall be adjusted by multiplying it by a fraction:
(a) the numerator of which shall be the total number of shares of
Common Stock outstanding immediately prior to such dividend or
distribution; and
(b) the denominator of which shall be the total number of shares of
Common Stock outstanding immediately after such dividend (plus,
if the Company paid cash instead of fractional shares otherwise
issuable in such dividend or distribution, the number of
additional shares which would have been outstanding had the
Company issued
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fractional shares instead of cash).
Whenever the Price Per Option Share shall be adjusted, the Company shall
prepare a certificate signed by a corporate officer setting forth, in reasonable
detail, the event requiring the adjustment, the amount of the adjustment, the
method by which such adjustment was calculated, and the Price Per Option Share
after giving effect to such adjustment, and shall cause a copy of such
certificate to be mailed (by first class mail postage prepaid) to Abbott
promptly after each adjustment.
2.4 Additional Limitation. Notwithstanding any other provision of this
Agreement to the contrary, the Company shall not be entitled to exercise the Put
Option to the extent that such exercise will cause Abbott to become the record
holder of more than 14.9% of the outstanding voting stock of the Company, unless
the purchase of such shares has been approved by the Board of Directors of the
Company prior to the date of such Put Option for the purpose of Section 203 of
the Delaware General Corporation Law, such that on the applicable Closing,
neither Abbott nor any of Xxxxxx'x affiliates will be subject to the
restrictions set forth in said Section 203 with respect to the Company. A
certified copy of the resolution or consent evidencing the approval called for
by this SECTION 2.4 will be provided to Abbott prior to the Company exercising
the Put Option causing Abbott to become the record holder of more than 14.9% of
the outstanding voting stock of the Company (after giving effect to the exercise
of such Put Option).
2.5 Manner of Exercising Put Option. To exercise the Put Option, the
Company shall deliver to Abbott a written notice (the "Exercise Notice"), which
shall set forth: (i) the number of shares of Common Stock to be sold to and
purchased by Abbott in connection with the exercise of the Put Option; (ii) the
aggregate purchase price for such shares determined by multiplying (a) the
number of shares of Common Stock to be sold to and purchased by Abbott in
connection with the exercise of the Put Option by (b) the Price Per Option Share
(the "Purchase Price"), and (iii) the date of the Closing, which shall be no
sooner than the tenth Business Day after Xxxxxx'x receipt of the Exercise Notice
or such other date as shall be agreed to in writing by Abbott and the Company.
The Company shall deliver to Abbott written wire transfer instructions (setting
forth the name and address of the bank, the account number, the ABA routing
number and any other required information for the payment of the Purchase Price)
at least 48 hours prior to the Closing.
2.6 Place of Closing. The closing of the purchase and sale of shares of
Common Stock under this Agreement (the "Closing") shall be held at the time
specified in Section 2.5 at the offices of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, 000
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx Xxxxx, XX 00000, or at such time and
place upon which the Company and Abbott shall agree.
2.7 Delivery. At any Closing, the Company will issue a certificate to
Abbott registered in Xxxxxx'x name representing the number of shares of Common
Stock being purchased by Abbott against payment to the Company of the Purchase
Price therefor. The Purchase Price shall be paid
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by Abbott to the Company by wire transfer to the bank account of the Company
specified by the Company pursuant to Section 2.5.
3. Representations And Warranties of The Company. Except as set forth in
the Schedule of Exceptions attached hereto as EXHIBIT A specifically identifying
the relevant subsection of this Agreement, the Company hereby represents and
warrants to Abbott that:
3.1 Authority.
(a) The Company has full legal right, power and authority to execute
and deliver this Agreement and to consummate the transactions
contemplated hereby.
(b) 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 hereunder have been taken.
(c) This Agreement, upon execution and delivery by the Company and,
assuming the due and proper execution and delivery by Abbott,
constitutes a legal, valid and binding obligation of the
Company, 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.
(d) The making and performance of the Agreement by the Company and
the consummation of the transactions contemplated by the
Agreement: (i) will not violate any provision of the
organizational documents of the Company or any of its
subsidiaries; (ii) will not result in the creation of any lien,
charge, security interest or encumbrance upon any assets of the
Company pursuant to the terms or provisions of, and will not
conflict with, result in the breach or violation of, or
constitute, either by itself or upon notice or the passage of
time or both, a default under any agreement, mortgage, deed of
trust, lease, franchise, licence, indenture, permit or other
instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries or any
of their respective properties may be bound or affected, except,
in each such case, as would not reasonably be expected to have a
material adverse affect on the condition (financial or
otherwise), properties, business, prospects, or results of
operations of the Company and its subsidiaries taken as a whole
(a "Material Adverse Effect"); and (iii) will not conflict with,
or result in the breach or violation of, any statute or any
authorization, judgment, decree, order, rule or regulation of
any court or any regulatory body, administrative agency or other
governmental body applicable to the Company or any of its
subsidiaries or any of their respective properties.
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3.2 Organization, Good Standing and Qualification.
(a) The Company and each of its subsidiaries, has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation,
with full power and authority (corporate and other) to own and
lease its properties and conduct its businesses as presently
conducted and as proposed to be conducted. The Company and each
of its subsidiaries, is duly qualified to do business and in
good standing as a foreign corporation in each jurisdiction in
which the ownership or leasing of properties or the conduct of
its business requires such qualification, except for
jurisdictions in which the failure to so qualify would not have
a Material Adverse Effect; and no proceeding has been instituted
in any such jurisdiction, revoking, limiting or curtailing, or
seeking to revoke, limit or curtail such power and authority or
qualification.
(b) The Company has delivered to Xxxxxx complete and correct copies
of its Certificate of Incorporation and Bylaws, as amended to
the date hereof, and will furnish to Abbott true and correct
copies of any amendments thereto throughout the term of this
Agreement.
3.3 Capitalization.
(a) The authorized capital stock of the Company consists of
20,000,000 shares of Common Stock $0.001 par value and 5,000,000
shares of Preferred Stock, $0.001 par value.
(b) As of the date hereof, there were 7,926,659 shares of Common
Stock issued and outstanding and no shares of Preferred Stock
issued and outstanding. All such issued an outstanding shares
have been duly authorized and validly issued and are fully paid
and non-assessable and no issued and outstanding shares are
subject to preemptive rights created by statute, the Certificate
of Incorporation or Bylaws, or any agreement to which the
Company is a party or by which the Company may be bound.
(c) All outstanding shares of the Company's capital stock have been
issued in compliance with applicable federal and state
securities laws.
(d) There are no other options, warrants, conversion privileges or
other contractual rights presently outstanding or in existence
to purchase or otherwise acquire any authorized but unissued
shares of the Company's capital stock or other securities or the
capital stock or other securities of any subsidiary of the
Company.
3.4 Valid Issuance of Common Stock. The Option Shares shall have 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, at the Closing, Abbott shall receive good and marketable
title to the Option Shares free of any liens or restrictions (unless created
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by Abbott), other than the restrictions expressly set forth in this Agreement or
under applicable state and federal securities laws. No preemptive rights or
other subscription or purchase rights exist with respect to the issuance and
sale of the Option Shares by the Company pursuant to this Agreement.
3.5 Governmental Consents. Other than compliance with the Securities Act
and such filings as may be required to be made with the National Association of
Securities Dealers, 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.
3.6 Offering. Subject in part to the truth and accuracy of Xxxxxx'x
representations set forth in SECTION 4 of this Agreement, the offer, sale and
issuance of the Option Shares as contemplated by this Agreement are exempt from
the registration requirements of the Securities Act, and neither the Company nor
any authorized agent acting on its behalf will take any action hereafter that
would cause the loss of such exemption.
3.7 Litigation. There are no legal or governmental actions, suits or
proceedings pending or, to the Company's knowledge, threatened to which the
Company or any of its subsidiaries is or may be a party or of which property
owned or leased by the Company or any of its subsidiaries is or may be the
subject, which actions, suits or proceedings might, individually or in the
aggregate, prevent or adversely affect the transactions contemplated by this
Agreement or result in a Material Adverse Effect. The Company is not a party or
subject to the provisions of any material injunction, judgment, decree or order
of any court, regulatory body, administrative agency or other governmental body.
There are no material legal or governmental actions, suits or proceedings
pending or, to the Company's knowledge, threatened against any executive
officers or directors of the Company.
3.8 Disclosure. Neither this Agreement, nor any other statements or
certificates made or delivered in connection herewith or therewith contains any
untrue statement of a material fact or omits to state a material fact necessary
to make the statements herein or therein not misleading.
3.9 Changes. Since June 30, 1999:
(a) the Company has not incurred any material liabilities or
obligations, indirect, direct or contingent, or entered into any
material verbal or written agreement or other transaction which
is not in the ordinary course of business;
(b) the Company has not sustained any material loss or interference
with its business or properties from fire, flood, storm,
accident or other calamity, whether or not covered by insurance;
(c) the Company has not paid or declared any dividends or other
distributions with respect to its capital stock and the Company
is not in default in the payment of principal or interest on any
outstanding debt obligations;
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(d) there has not been any change in the capital stock or, other
than in the ordinary course of business, indebtedness material
to the Company; and
(e) there has not been any event, change or development resulting in
or which may reasonably be expected to result in a Material
Adverse Effect.
3.10 Financial and SEC Documents.
(a) The Company has furnished to Abbott its audited consolidated
statement of operations, statement of stockholders' equity and
statement of cash flows for the fiscal year ended December 31,
1998 and the Company's audited consolidated balance sheet at
December 31, 1998; and the unaudited consolidated statement of
operations and statement of cash flows for the six (6) months
ended June 30, 1999 and the unaudited consolidated balance sheet
at June 30, 1999. The balance sheet at June 30, 1999 is
hereinafter referred to as the "Company Balance Sheet," and all
such financial statements are hereinafter referred to
collectively as the "Company Financial Statements." The Company
Financial Statements have been and will be prepared in
accordance with generally accepted accounting principles in the
United States applied on a consistent basis, except for any
change due to the adoption of an accounting principle
established by the FASB, AICPA, SEC or any other accounting
standard setting board, during the periods involved, and fairly
present the consolidated financial position of the Company and
the results of its operations as of the date and for the periods
indicated thereon. At the date of the Company Balance Sheet (the
"Company Balance Sheet Date"), neither the Company nor its
consolidated subsidiaries had any material liabilities or
obligations, secured or unsecured (whether accrued, absolute,
contingent or otherwise) not reflected on the Company Balance
Sheet or the accompanying notes thereto.
(b) The Company has furnished to Abbott a true and complete copy of
the Company's Form 10-KSB for the year ended December 31, 1998
and Form 10-QSB for each of the quarters ended March 31, 1999
and June 30, 1999 (the "Company SEC Documents"). The Company has
filed in a timely manner each statement, annual, quarterly and
other report, registration statement and definitive proxy
statement required to be filed (other than preliminary material)
by the Company with the SEC. As of their respective filing
dates, the Company SEC Documents comply in all material respects
with the requirements of the Exchange Act or the Securities Act,
and none of the Company SEC Documents contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements made therein, in light of the circumstances under
which they were made, not misleading, except to the extent
corrected by a subsequently filed Company SEC Document.
(c) Since June 30, 1999, there have been no events or transactions
that would require adjustment to, or disclosure in, the audited
financial statements of the Company for the period then ended in
order to keep them from being misleading.
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3.11 DGCL. The issue, sale and delivery of the Common Stock under the
terms if this Agreement shall not cause Abbott to become an "interested
shareholder" (as defined in Section 203 of the Delaware General Corporation
Law).
4. Representations, Warranties and Covenants of Xxxxxx. Xxxxxx hereby
represents and warrants to the Company that:
4.1 Authority.
(a) Abbott has full legal right, power and authority to execute and
deliver this Agreement and to consummate the transactions
contemplated hereby.
(b) All corporate action on the part of Abbott, 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 Abbott hereunder have been taken.
(c) This Agreement, upon execution and delivery by Abbott and,
assuming the due and proper execution and delivery by the
Company, constitutes a legal, valid and binding obligation of
Abbott, 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.
(d) The making and performance of the Agreement by Abbott and the
consummation of the transactions contemplated by Abbott will not
violate any provision of the organizational documents of Abbott
or any of its subsidiaries.
4.2 Purchase Entirely for Own Account. The Option Shares to be received
by Abbott at the Closing will be acquired for investment for Xxxxxx'x own
account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and Abbott has no present intention of
selling, granting any participation in, or otherwise distributing the same.
Abbott does not have any contract, undertaking, agreement or arrangement with
any person to sell, transfer or grant participation to such person or to any
third person, with respect to any of the Option Shares.
4.3 Disclosure of Information. Abbott 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 Option Shares 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 3 of this Agreement or the right of Abbott to rely thereon.
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4.4 Investment Experience. Abbott acknowledges that it can bear the
economic risk of its investment and has such knowledge and experience in
financial or business matters that it is capable of evaluating the merits and
risks of the investment in the Option Shares.
4.5 Restricted Securities. Abbott understands that the Option Shares are
characterized as "restricted securities" under the federal securities laws
inasmuch as they are acquired from the Company in a transaction not involving a
registered offering and that such securities may be resold without registration
under the Securities Act, only in compliance with the federal securities laws
and the regulations thereunder.
4.6 Accredited Investor. Abbott is an "accredited investor" within the
meaning of SEC Rule 501 of Regulation D, as presently in effect.
4.7 Shares of Common Stock. As of the date hereof, excluding the number
of Option Shares to be acquired by Abbott under the terms of this Agreement,
Abbott is the beneficial owner of 962,628 shares of Common Stock.
5. Additional Covenants.
5.1 Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the SEC which may permit the sale of restricted
Common Stock to the public without registration, as long as a public market
exists for the Common Stock, the Company agrees to use its best efforts to:
(a) Make and keep available adequate current public information, as
those terms are understood and defined in Rule 144 under the
Securities Act;
(b) File with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and
the Exchange Act; and
(c) For the two year period following the Closing and for so long as
Abbott owns any restricted Common Stock, furnish to Abbott
forthwith upon request a written statement by the Company as to
its compliance with the reporting requirements of Rule 144, and
of the Securities Act and the Exchange Act, a copy of the most
recent annual or quarterly report of the Company, and such other
reports and documents of the Company and other information in
the possession of or reasonably obtainable by the Company as
Abbott may reasonably request in availing itself of any rule or
regulation of the SEC allowing Abbott to sell any such
securities without registration.
5.2 Press Releases. Any press release or other public announcement
concerning this Agreement or the transactions contemplated hereby shall be
mutually satisfactory to the Company and Abbott, except that the Company and
Abbott may issue such press releases or make such public statements as it
reasonably believes to be required by law or the rules of any national
securities
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exchange or inter-dealer quotation system.
5.3 Legends. Each certificate or instrument representing the Option
Shares shall bear legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (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 REASONABLY SATISFACTORY TO THE ISSUER OF THESE SECURITIES THAT
SUCH REGISTRATION OR COMPLIANCE IS NOT REQUIRED AS TO SUCH SALE, OFFER
OR DISTRIBUTION".
6. Conditions of Xxxxxx'x Obligations at Closing. Xxxxxx'x obligation to
purchase Option Shares at the Closing is subject to fulfillment, on or prior to
such Closing of each of the following conditions unless waived by Abbott.
6.1 Representations And Warranties. The representations and warranties
of the Company contained in SECTION 3 shall be true and correct when made and at
the Closing with the same effect as though such representations and warranties
had been made on and as of the date of the Closing.
6.2 Performance. The Company shall have performed and complied with all
agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
6.3 Qualifications. All authorizations, approvals, or permits, if any,
of any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of the
Option Shares pursuant to this Agreement shall be duly obtained and effective as
of the Closing.
6.4 Proceedings And Documents. All corporate and other proceedings in
connection with the transactions contemplated at the Closing and all documents
incident thereto shall be reasonably satisfactory in form and substance to
Abbott, and it shall have received all such counterpart original and certified
or other copies of such documents as it may reasonably request.
6.5 No Order Pending. There shall not then be in effect any order
enjoining or restraining the transactions contemplated by this Agreement.
6.6 Compliance Certificate. The Company shall have delivered to Abbott a
certificate, executed on behalf of the Company by the Chief Executive Officer of
the Company, dated as of the
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date of the Closing and certifying to the fulfillment of the conditions
specified in SECTION 6.1 and SECTION 6.2.
6.7 Opinion of Counsel. Counsel for the Company shall have delivered to
Abbott an opinion, dated as of the Closing, substantially to the effect that, on
the basis of facts and representations set forth in such opinion or set forth in
writing elsewhere and referred to therein:
(a) The Company has been duly incorporated and is a validly existing
corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its
properties and conduct its business as described in SECTION 3.2
of this Agreement.
(b) The Company has corporate power to enter into and perform its
obligations under this Agreement.
(c) The Option Shares have been duly authorized and validly issued
and are fully paid and nonassessable and, to the best of their
knowledge and information, have not been issued in violation of
or not otherwise subject to any preemptive rights or other
similar rights.
(d) Assuming the accuracy of the representations, warranties and
covenants of Abbott contained in SECTION 4 of this Agreement,
the offer, issue and sale of the Option Shares will be exempt
from the registration and prospectus delivery requirements of
the Securities Act, and the Option Shares have been registered
or qualified (or are exempt from registration and qualification)
under the registration, permit, or qualification requirements of
all applicable state securities laws.
(e) The form of certificate used to evidence the Option Shares is in
proper form and complies with all applicable statutory
requirements.
7. Conditions of the Company's Obligations at Closing. The Company's
obligation to issue and sell Option Shares at any Closing are subject to
fulfillment, on or prior to the Closing with respect to the Option Shares, of
each of the following conditions unless waived by the Company.
7.1 Representations And Warranties. The representations and warranties
of Abbott contained in SECTION 4 shall be true and correct when made and at the
Closing with the same effect as though such representations and warranties had
been made on and as of the date of the Closing.
7.2 Payment of Purchase Price. Abbott shall have delivered the Purchase
Price.
7.3 Qualifications. All authorizations, approvals, or permits, if any,
of any governmental
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authority or regulatory body of the United States or of any state that are
required in connection with the lawful issuance and sale of the Option Shares
pursuant to this Agreement shall be duly obtained and effective as of the
Closing.
7.4 No Order Pending. There shall not then be in effect any order
enjoining or restraining the transactions contemplated by this Agreement.
8. Miscellaneous.
8.1 Survival of Warranties. The warranties, representations and
covenants of the Company and Abbott contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
Closings and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of Abbott or the Company.
8.2 Assignment: Successors and Assigns. No provision of this Agreement
may be assigned without the prior written consent of the other party hereto.
Except as otherwise provided herein, the terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and
assigns of the parties (including transferees of any of the Option Shares).
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
8.3 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Delaware without regard to conflicts of law
principles.
8.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.5 Titles And Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
8.6 Notices, Etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be sent by personal delivery,
facsimile, overnight courier or mailed by certified or registered mail, postage
prepaid, return receipt requested, to the address or facsimile number as
follows:
If to the Company:
Micro Therapeutics, Inc.
0 Xxxxxxxx
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00
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
With a copy (which will not constitute notice) to:
Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
If to Xxxxxx:
Xxxxxx Laboratories
D-960, AP30
000 Xxxxxx Xxxx Xxxx
Xxxxxx Xxxx, XX 00000-0000
Attention: President, Hospital Products Division
Facsimile: (000) 000-0000
With a copy (which will not constitute notice) to:
Xxxxxx Laboratories
Legal Division
D-322, AP6D
000 Xxxxxx Xxxx Xxxx
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00
Xxxxxx Xxxx, XX 00000-0000
Attention: Divisional Vice President
Domestic Legal Operations
Facsimile: (000) 000-0000
or to such other facsimile number or address provided to the parties to this
Agreement in accordance with this SECTION 8.6. Such notices or other
communications shall be deemed delivered only upon receipt.
8.7 Finder's Fee.
(a) Each party represents that it neither is nor will be obligated
for any finders' fee or commission in connection with this
transaction.
(b) Abbott agrees to indemnify and hold harmless the Company from
any liability for any commission or compensation in the nature
of a finders' fee (and the costs and expenses of defending
against such liability or asserted liability) for which Abbott
or any of its officers, partners, employees or representatives
is responsible.
(c) The Company agrees to indemnify and hold harmless Abbott from
any liability for any commission or compensation in the nature
of a finders' fee (and the costs and expenses of defending
against such liability or asserted liability) for which the
Company or any of its officers, employees or representatives is
responsible.
8.8 Expenses. Irrespective of whether the Closing is effected, each
party shall pay all costs and expenses that it incurs with respect to the
negotiation, execution, delivery and performance of this Agreement.
8.9 Alternative Dispute Resolution. The parties agree to effectuate all
reasonable efforts to resolve in an amicable manner any and all disputes between
them in connection with this Agreement. The parties agree that any dispute that
arises in connection with this Agreement, which cannot be amicably resolved
informally shall be finally settled as set forth in the Alternative Dispute
Resolution provisions of EXHIBIT B attached hereto.
8.10 Amendments and Waivers. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively) only with
the written consent of the Company and Abbott.
8.11 Severability. If one or more provisions of this Agreement are held
to be
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unenforceable under applicable law, such provision shall be excluded from this
Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
8.12 Entire Agreement. This Agreement and the documents referred to
herein and constitute the entire agreement among the parties with respect to the
transactions contemplated by this Agreement and supersedes any prior
understandings, agreements, or representations by or between the parties,
written or oral, that may have related in any way to the subject matter of this
Agreement, and no party shall be liable or bound to any other party in any
manner by any warranties, representations, or covenants except as specifically
set forth herein.
8.13 Further Assurances. The Company and Abbott shall do and perform or
cause to be performed all such further acts and things and shall execute and
deliver all such other agreements, certificates, instruments or documents as the
other party may reasonably request from time to time in order to carry out the
intent and purposes of this Agreement and the consummation of the transactions
contemplated by the Agreement. Neither the Company nor Abbott shall voluntarily
undertake any course of action inconsistent with the satisfaction of the
requirements applicable to them as set forth in this Agreement, and each shall
promptly do all such acts and take all such measures as may be appropriate to
enable them to perform as early as practicable their obligations under this
Agreement.
8.14 No Third Party Rights. Nothing in this Agreement shall create or be
deemed to create any rights in any person or entity not a party to his
Agreement.
8.15 Mutual Drafting. This Agreement is the joint product of the Company
and Abbott and each provision of the Agreement has been subject to consultation,
negotiation and agreement of the Company and Abbott and their respective legal
counsel and advisers and any rule of construction that a document shall be
interpreted or construed against the drafting party shall not apply.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
MICRO THERAPEUTICS, INC.
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Title: President and Chief Executive
Officer
XXXXXX LABORATORIES
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Title: President, H.P.D.
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