COMMON STOCK PURCHASE AGREEMENT
Exhibit 99.1
COMMON STOCK PURCHASE AGREEMENT (the “Agreement”), dated as of November 21, 2007 by and
between SUTURA, INC., a Delaware corporation (the “Company”), and Grootkasteel, B.V., a Dutch
corporation (the “Buyer”). Capitalized terms used herein and not otherwise defined herein are
defined in Section 10 hereof.
WHEREAS:
Subject to the terms and conditions set forth in this Agreement, the Company wishes to sell to
the Buyer, and the Buyer wishes to buy from the Company, up to Five Hundred Thousand Dollars
($500,000) of the Company’s common stock, par value $0.001 per share (the “Common Stock”).
NOW THEREFORE, the Company and the Buyer hereby agree as follows:
1. PURCHASE OF COMMON STOCK.
The Company hereby agrees to sell to the Buyer, and the Buyer hereby agrees to purchase from
the Company, shares of Common Stock as follows:
(a) COMMENCEMENT OF PURCHASES OF COMMON STOCK. The purchase and sale of Common Stock
hereunder shall commence (the “Commencement”) within five (5) days following the date that the
Company provides written notice to Buyer of its intent to sell to Buyer at least One Hundred
Thousand Dollars ($100,000) of its Common Stock (the date of such Commencement, the “Commencement
Date”).
(b) BUYER’S PURCHASE RIGHTS AND OBLIGATIONS. The Buyer shall purchase shares of Common Stock
within five (5) days of receipt of written notice from the Company to Buyer of the Company’s intent
to sell Common Stock to Buyer (the “Sale Notice”). The shares of Common Stock shall be purchased
at the Purchase Price (as defined herein). No Sale Notice shall be for less than One Hundred
Thousand Dollars ($100,000), and the obligation of the Buyer to purchase shares of Common Stock
hereunder shall be limited to an aggregate purchase of Five Hundred Thousand Dollars ($500,000).
The Company shall not issue any fraction of a share of Common Stock upon any purchase. All shares
of Common Stock (including fractions thereof) issuable upon a purchase under this Agreement shall
be aggregated for purposes of determining whether, after the aforementioned aggregation, the
issuance would result in the issuance of a fraction of a share of Common Stock. If then such
issuance would result in a fraction, the Company shall round such fraction of a share of Common
Stock up or down to the nearest whole share. All payments made by Buyer under this Agreement shall
be made in lawful money of the United States of America by check or wire transfer of immediately
available funds to such account as the Company may from time to time designate by written notice in
accordance with the provisions of this Agreement.
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(c) TAXES. The Company shall pay any and all transfer, stamp or similar taxes that may be
payable with respect to the issuance and delivery of any shares of Common Stock to the Buyer made
under this Agreement.
2. BUYER’S REPRESENTATIONS AND WARRANTIES.
The Buyer represents and warrants to the Company that as of the date hereof and as of the
Commencement Date:
(a) INVESTMENT PURPOSE. The Buyer is entering into this Agreement and acquiring the Common
Stock hereunder for its own account for investment only and not with a view towards, or for resale
in connection with, the public sale or distribution thereof; provided however, by making the
representations herein, the Buyer does not agree to hold any of the Securities for any minimum or
other specific term.
(b) ACCREDITED INVESTOR STATUS. The Buyer is an “accredited investor” as that term is defined
in Rule 501(a)(3) of Regulation D.
(c) RELIANCE ON EXEMPTIONS. The Buyer understands that the Common Stock is being offered and
sold to it in reliance on specific exemptions from the registration requirements of United States
federal and state securities laws and that the Company is relying in part upon the truth and
accuracy of, and the Buyer’s compliance with, the representations, warranties, agreements,
acknowledgements and understandings of the Buyer set forth herein in order to determine the
availability of such exemptions and the eligibility of the Buyer to acquire the Common Stock.
(d) INFORMATION. The Buyer has been furnished with all materials relating to the business,
finances and operations of the Company and materials relating to the offer and sale of the Common
Stock that have been reasonably requested by the Buyer. The Buyer understands that its investment
in the Common Stock involves a high degree of risk. The Buyer (i) is able to bear the economic
risk of an investment in the Common Stock including a total loss, (ii) has such knowledge and
experience in financial and business matt4ers that it is capable of evaluating the merits and risks
of the proposed investment in the Common Stock and (iii) has had an opportunity to ask questions of
and receive answers from the officers of the Company concerning the financial condition and
business of the Company and other matters related to an investment in the Common Stock. Neither
such inquiries nor any other due diligence investigations conducted by the Buyer or its
representatives shall modify, amend or affect the Buyer’s right to rely on the Company’s
representations and warranties contained in Section 3 below. The Buyer has sought such accounting,
legal and tax advice as it has considered necessary to make an informed investment decision with
respect to its acquisition of the Common Stock.
(e) TRANSFER OR RESALE. The Buyer understands that: (i) the Common Stock has not been and
are not being registered under the 1933 Act or any state securities laws, and may not be offered
for sale, sold, assigned or transferred unless (A)
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subsequently registered hereunder or (B) an exemption exists permitting such Common Stock to be
sold, assigned or transferred without such registration; (ii) any sale of the Securities made in
reliance on Rule 144 may be made only in accordance with the terms of Rule 144 and further, if Rule
144 is not applicable, any resale of the Securities under circumstances in which the seller (or the
person through whom the sale is made) may be deemed to be an underwriter (as that term is defined
in the 0000 Xxx) may require compliance with some other exemption under the 1933 Act or the rules
and regulations of the SEC thereunder; and (iii) neither the Company nor any other person is under
any obligation to register the Securities under the 1933 Act or any state securities laws or to
comply with the terms and conditions of any exemption thereunder.
(f) VALIDITY; ENFORCEMENT. This Agreement has been duly and validly authorized, executed and
delivered on behalf of the Buyer and is a valid and binding agreement of the Buyer enforceable
against the Buyer in accordance with its terms, subject as to enforceability to general principles
of equity and to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and
other similar laws relating to, or affecting generally, the enforcement of applicable creditors’
rights and remedies.
(g) RESIDENCY. The Buyer is a resident of Amsterdam, Netherlands.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to the Buyer that as of the date hereof and as of the
Commencement Date:
(a) AUTHORIZATION; ENFORCEMENT; VALIDITY. (i) The Company has the requisite corporate power
and authority to enter into and perform its obligations under this Agreement and to issue the
Common Stock in accordance with the terms hereof and thereof, (ii) the execution and delivery of
this Agreement by the Company and the consummation by it of the transactions contemplated hereby
have been duly authorized by the Company’s Board of Directors and no further consent or
authorization is required by the Company, its Board of Directors or its shareholders (iii) this
Agreement has been duly executed and delivered by the Company and (iv) this Agreement constitutes
the valid and binding obligations of the Company enforceable against the Company in accordance with
its terms, except as such enforceability may be limited by general principles of equity or
applicable bankruptcy, insolvency, general principles of equity or applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting
generally, the enforcement of creditors’ rights and remedies.
(b) [Intentionally Left Blank]
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4. COVENANTS.
(a) LEGENDS ON COMMON STOCK. The shares of Common Stock purchased pursuant to the Agreement
shall be issued in certificated form and shall bear the following restrictive legend:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR
THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS, OR AN OPINION OF BUYER’S COUNSEL, IN A CUSTOMARY FORM, THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS OR
UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT.”
5. CERTAIN DEFINED TERMS.
For purposes of this Agreement, the following terms shall have the following meanings:
(a) “1933 Act” means the Securities Act of 1933, as amended.
(b) “Closing Sale Price” means, for any security as of any date, the last closing trade price
for such security on the Principal Market as reported by Bloomberg, or, if the Principal Market is
not the principal securities exchange or trading market where such security is listed or traded as
reported by Bloomberg.
(c) “Person” means an individual or entity including any limited liability company, a
partnership, a joint venture, a corporation, a trust, an unincorporated organization and a
government or any department or agency thereof.
(d) “Principal Market” means the Nasdaq OTC Bulletin Board; provided however, that in the
event the Company’s Common Stock is ever listed or traded on the Nasdaq National Market, the Nasdaq
SmallCap Market, the Nasdaq Bulletin Board Exchange, the New York Stock Exchange or the American
Stock Exchange, then the “Principal Market” shall mean such other market or exchange on which the
Company’s Common Stock is then listed or traded.
(e) “Purchase Price” means the arithmetic average of the Closing Sale Prices for the Common
Stock during the thirty (30) consecutive Trading Days ending on the Trading Day immediately
preceding the date of the Agreement.
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(f) “SEC” means the United States Securities and Exchange Commission.
(g) “Trading Day” means any day on which the Principal Market is open for customary trading.
6. MISCELLANEOUS.
(a) GOVERNING LAW; JURISDICTION; JURY TRIAL. The corporate laws of the State of Delaware
shall govern all issues concerning the relative rights of the Company and its shareholders. All
other questions concerning the construction, validity, enforcement and interpretation of this
Agreement shall be governed by the internal laws of the State of California, without giving effect
to any choice of law or conflict of law provision or rule (whether of the State of California or
any other jurisdictions) that would cause the application of the laws of any jurisdictions other
than the State of California. Each party hereby irrevocably submits to the exclusive jurisdiction
of the state and federal courts sitting in the County of Orange, State of California, for the
adjudication of any dispute hereunder or in connection herewith, or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in an inconvenient forum or that
the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such party at the address for such notices to it under this
Agreement and agrees that such service shall constitute good and sufficient service of process and
notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve
process in any matter permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY
HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(b) COUNTERPARTS. This Agreement may be executed in two or more identical counterparts, all
of which shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party; provided that a
facsimile signature shall be considered due execution and shall be binding upon the signatory
thereto with the same force and effect as if the signature were an original, not a facsimile
signature.
(c) HEADINGS. The headings of this Agreement are for convenience of reference and shall not
form part of, or affect the interpretation of, this Agreement.
(d) SEVERABILITY. If any provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability
of the remainder of this Agreement in that jurisdiction or the validity or enforceability of any
provision of this Agreement in any other jurisdiction.
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(e) ENTIRE AGREEMENT; AMENDMENTS. This Agreement supersedes all other prior oral or written
agreements between the Buyer, the Company, their affiliates and persons acting on their behalf with
respect to the matters discussed herein, and this Agreement and the instruments referenced herein
contain the entire understanding of the parties with respect to the matters covered herein and
therein and, except as specifically set forth herein or therein, neither the Company nor the Buyer
makes any representation, warranty, covenant or undertaking with respect to such matters. No
provision of the Agreement may be amended other than by an instrument in writing signed by the
Company and the Buyer, and no provision hereof may be waived other than by an instrument in writing
signed by the party against whom enforcement is sought.
(f) NOTICES. Any notices, consents, waivers or other communications required or permitted to
be given under the terms of this Agreement must be in writing and will be deemed to have been
delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by facsimile
(provided confirmation of transmission is mechanically or electronically generated and kept on file
by the sending party; or (iii) one Trading Day after deposit with a nationally recognized overnight
delivery service, in each case properly addressed to the party to receive the same. The addresses
and facsimile numbers for such communications shall be:
If to the Company:
| Sutura, Inc. | ||||
| 00000 Xxxxxxx Xxxxxx | ||||
| Xxxxxxxx Xxxxxx, XX 00000 | ||||
| Telephone: | 000-000-0000 | |||
| Facsimile: | 000-000-0000 | |||
| Attention: | Chief Financial Officer | |||
If to the Buyer:
| Grootkasteel, B.V. | ||||
| p/a Orange Field Trust Teleport Xxxxxxxxx 000-000 0000XX | ||||
| Xxxxxxxxx Xxxxxxxxxxx | ||||
| Telephone: | ||||
| Facsimile: | ||||
| Attention: | ||||
or at such other address and/or facsimile number and/or to the attention of such other person as
the recipient party has specified by written notice given to each other party three (3) Trading
Days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the
recipient of such notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender’s facsimile machine containing the time, date, and recipient
facsimile number or (C) provided by a nationally recognized overnight delivery service, shall be
rebuttable evidence of
personal service, receipt by facsimile or receipt from a nationally recognized overnight delivery
service in accordance with clause (i), (ii) or (iii) above, respectively.
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(g) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors and assigns. The Company shall not assign this
Agreement or any rights or obligations hereunder without the prior written consent of the Buyer,
including by merger or consolidation. The Buyer may not assign its rights or obligations under
this Agreement.
(h) NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the benefit of the parties
hereto and their respective permitted successors and assigns, and is not for the benefit of, nor
may any provisions hereof be enforced by, any other person.
(i) FURTHER ASSURANCES. Each party shall do and perform, or cause to be done and performed,
all such further acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as the other party may reasonably request in order to
carry out the intent and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(j) TERMINATION. This Agreement automatically terminates on the sooner to occur of (i)
January 31, 2008 or (ii) the date that the aggregate purchases of Common Stock by Buyer under this
Agreement equals or exceeds Five Hundred Thousand Dollars ($500,000).
(k) NO STRICT CONSTRUCTION. The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent, and no rules of strict construction
will be applied against any party.
(l) CHANGES TO THE TERMS OF THIS AGREEMENT. This Agreement and any provision hereof may only
be amended by an instrument in writing signed by the Company and the Buyer. The term “Agreement”
and all reference thereto, as used throughout this instrument, shall mean this instruction as
originally executed, or if later amended or supplemented, then as so amended or supplemented.
[Signatures contained on following page]
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IN WITNESS WHEREOF, The Buyer and the Company have caused this Common Stock Purchase Agreement
to be duly executed as of the date first written above.
| THE COMPANY: SUTURA, INC. |
||||
| By: | ||||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Chief Executive Officer | |||
| BUYER: Grootkasteel, B.V. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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