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EXHIBIT 10.4
ENDOSONICS CORPORATION
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement (the "Agreement") is made as of the
7th day of October, 1998 by and between EndoSonics Corporation, a Delaware
corporation (the "Company") and the Fukuda Denshi Co. Ltd., a Japanese
corporation, (the "Purchaser").
RECITALS
A. On August 5, 1998, the Company completed the acquisition of Navius
Corporation, the purchase price of which included payment by the Company of
approximately $9.5 million in cash. The Company will use the proceeds from the
sale of the Stock (as defined below) primarily to offset cash expenditures by
the Company in connection with the acquisition of Navius Corporation.
B. Contemporaneously with the execution and delivery of this Agreement,
the Company and Purchaser are entering into the Investor's Rights Agreement (as
defined in Section 4.8), Research and Development Agreement (as defined in
Section 4.7), EndoSonics Distribution Agreement (as defined in Section 4.6) and
Navius Distribution Agreement (as defined in Section 4.5).
AGREEMENT
In consideration of the foregoing premises and mutual promises set for the
herein, the parties, intending to be legally bound, hereby agree as follows:
1. PURCHASE AND SALE OF STOCK
1.1 SALE AND ISSUANCE OF STOCK
(a) Subject to the terms and conditions of this Agreement, the
Purchaser agrees to purchase at the Closing and the Company agrees to sell and
issue to the Purchaser at the Closing 965,730 shares Common Stock to a purchase
price of $8.69808 per share, which price has been determined between the Company
and the Purchaser as derived from the average closing price over time of the
Company's common stock as reported on the Nasdaq National Market. The shares of
Common Stock issued to the Purchaser pursuant to this Agreement shall be
hereinafter referred to as the "Stock."
1.2 CLOSING: DELIVERY
(a) The purchase and sale of the Stock shall take place at the
offices of Venture Law Group, 0000 Xxxx Xxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx, at
10:00 a.m., on September ___, 1998, or at such other time and place as the
Company and the Purchasers mutually agree upon, orally or in writing (which time
and place are designated as the "Closing").
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(b) At the Closing, the Company shall deliver to the Purchaser a
certificate, registered in the Purchaser's name, representing the Stock being
purchased thereby against payment of the purchase price therefor by wire
transfer to the Company's designated account or certified or cashier's check
drawn on a United States bank made payable to the order of EndoSonics
Corporation.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to the Purchaser that, except as expressly indicated on
a Schedule of Exceptions attached hereto as Exhibit A (the "Schedule of
Exceptions"), which exceptions shall be deemed to be representations and
warranties as if made hereunder:
2.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company is a
corporation duly organized, validly existing and in good standing under the
laws of Delaware and has all requisite corporate power and authority to own its
property and assets and to carry on its business. The Company is duly qualified
to transact business and is in good standing in all jurisdictions where such
qualification is required, except for such failures to be so qualified or in
good standing as would not, individually or in the aggregate, have a material
adverse effect on the business, condition (financial or otherwise), assets,
liabilities, properties or results of operations of the Company.
2.2 CAPITALIZATION. As of September 24, 1998, the authorized capital
of the Company consisted of:
(a) 5,000,000 shares of Preferred Stock, none of which are
issued and outstanding.
(b) 25,000,000 shares of Common Stock, 16,491,282 shares of
which are issued and outstanding. All of the outstanding shares of Common Stock
have been duly authorized, fully paid and are non-assessable and issued in
compliance with all applicable federal and state securities laws. The Company
has reserved an aggregate of 2,933,766 shares of Common Stock for issuance to
employees, directors and independent contractors upon exercise of outstanding
options to acquire shares of the Company's Common Stock issued under the
Amended and Restated 1988 EndoSonics Stock Option Plan, and the Company has
reserved for issuance 720,000 shares of Common Stock for future grants under
such option plan.
2.3 AUTHORIZATION. The Company has full power to execute, deliver
and perform this Agreement. All corporate action on the part of the Company,
its officers and directors necessary for the authorization, execution and
delivery of this Agreement, the performance of all obligations of the Company
hereunder and the authorization, sale, issuance and delivery of the Stock has
been taken or will be taken prior to the Closing, and the Agreement, when
executed and delivered by the Company, shall constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with its terms except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, and other laws
of general application affecting enforcement of creditors'
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rights generally, as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies.
2.4 VALID ISSUANCE OF SECURITIES. The Stock that is being issued to the
Purchaser hereunder, when issued, sold and delivered in accordance with the
terms hereof for the consideration expressed herein, will be duly and validly
issued and outstanding, fully paid and non-assessable, free of any liens,
encumbrances, preemptive rights or rights of first refusal, and free of
restrictions on transfer other than restrictions on transfer under this
Agreement and applicable state and federal securities laws.
2.5 GOVERNMENTAL CONSENTS. 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 valid and lawful authorization, execution and
delivery by the Company of this Agreement and the consummation of the
transactions contemplated hereby, or for or in connection with the valid and
lawful authorization, issuance, sale and delivery of the Stock in accordance
with this Agreement, other than filings pursuant to Regulation D of the
Securities Act of 1933, as amended (the "Securities Act"), and the qualification
(or taking of such action as may be necessary to secure an exemption from
qualification if available) of the offer and sale of the Stock under all
applicable state securities laws, which filings and qualifications, if required,
will be accomplished in a timely manner so as to comply with such qualification
or exemption from qualification requirements.
2.6 SEC DOCUMENTS; FINANCIAL STATEMENTS. The Company has timely filed all
the documents that it was required to file with the Securities and Exchange
Commission ("SEC") under the Securities Exchange Act of 1934, as amended
("Exchange Act") (the "SEC Documents"), since December 31, 1996. As of their
respective filing dates, the SEC Documents complied in all material respects
with the requirements of the Exchange Act or the Securities Act, as applicable,
and were duly and timely filed with the SEC. None of the SEC Documents as of
their respective dates 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 under which they
were made, not misleading. The consolidated financial statements of the Company
included in the SEC Documents (the "Financial Statements") comply as to form in
all material respects with applicable accounting requirements and with the
published rules and regulations of the SEC with respect thereto. Except as may
be indicated in the notes to the Financial Statements or, in the case of
unaudited statements, as permitted by Form 10-Q of the SEC, the Financial
Statements have been prepared in accordance with generally accepted accounting
principles consistently applied and fairly present the financial position of the
Company and its subsidiary at the dates thereof and the results of its
operations and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal year-end adjustments).
2.7 CHANGES. Except as disclosed in the SEC Documents, since December 31,
1997, the Company has conducted its business only in the ordinary and usual
course and, without limiting the generality of the foregoing, there has not been
a material adverse effect on
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the condition (financial or otherwise), business, net worth, assets,
liabilities, properties or results of operations of the Company.
2.8 NO CONFLICT. The execution and delivery of this Agreement does
not, and the consummation of the transactions contemplated hereby will not, (i)
conflict with, or result in any violation of, or default (with or without notice
or lapse of time, or both), or give rise to a right of termination, cancellation
or acceleration of any obligation or to a loss of a material benefit, under, any
provision of the Certificate of Incorporation or Bylaws of the Company or any
mortgage, indenture, lease or other agreement or instrument, permit, concession,
franchise, license, judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to the Company, its properties or assets, which conflict,
violation, default or right would have a material adverse effect on the Company
or (ii) result in the creation of any lien, security interest, charge or
encumbrance upon any of the properties or assets of the Company or the Stock.
2.9 SECURITIES LAWS. Assuming that the Purchaser's representations
and warranties contained in Section 3 of this Agreement are true and correct,
the offer, issuance and sale of the Securities are and will be exempt from the
registration and prospectus delivery requirements of the Securities Act and 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.
2.10 DISCLOSURE. Neither this Agreement, nor any other written
document, certificate, instrument or statement furnished or made available in
connection with the transactions contemplated hereby contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein and therein not misleading. There
is no fact known to the Company materially affecting the Company or its business
or the existence of which could have a material adverse effect on the Company,
which has not been set forth in this Agreement or in the Schedule of Exceptions
prepared by the Company.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby
represents and warrants to the Company that:
3.1 AUTHORIZATION. The Purchaser has full power and authority to
enter into this Agreement. The Agreements, when executed and delivered by the
Purchaser, will constitute valid and legally binding obligations of the
Purchaser, enforceable in accordance with their terms, except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, and any other laws of general application affecting enforcement of
creditors' rights generally, and as limited by laws relating to the availability
of a specific performance, injunctive relief, or other equitable.
3.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made with
the Purchaser in reliance upon the Purchaser's representation to the Company,
which by the Purchaser's execution of this Agreement, the Purchaser hereby
confirms, that the Securities to be
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acquired by the Purchaser will be acquired for investment for the Purchaser's
own account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof.
3.3 DISCLOSURE OF INFORMATION. The Purchaser has had an opportunity
to discuss the Company's business, management, financial affairs and the terms
and conditions of the offering of the Stock with the Company's management and
has had an opportunity to review the Company's facilities. The Purchaser has
received and has had the opportunity to review the Company's Annual Report for
the year ended December 31, 1997, the Company's Report on Form 10-K for the year
ended December 31, 1997, the Company's Proxy Statement dated April 30, 1998 and
the Company's Report on Form 10-Q for the quarters ended March 31, 1998 and June
30, 1998. The Purchaser understands that such discussions, and any other written
information delivered by the Company to the Purchaser, were intended to describe
the aspects of the Company's business which it believes to be material. The
foregoing, however, does not limit or modify the representations and warranties
of the Company in Section 2 of this Agreement or the right of the Purchasers to
rely thereon.
3.4 RESTRICTED SECURITIES. The Purchaser understands that the
Securities have not been, and will not be, registered under the Securities Act,
by reason of a specific exemption from the registration provisions of the
Securities Act which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of the Purchaser's representations as
expressed herein. The Purchaser understands that the Securities are "restricted
securities" under applicable U.S. federal and state securities laws and that,
pursuant to these laws, the Purchaser must hold the Securities indefinitely
unless they are registered with the Securities and Exchange Commission and
qualified by state authorities, or an exemption from such registration and
qualification requirements is available. The Purchaser acknowledges that the
Company has no obligation to register or qualify the Securities for resale
except as set forth in the Investors' Rights Agreement. The Purchaser further
acknowledges that if an exemption from registration or qualification is
available, it may be conditioned on various requirements including, but not
limited to, the time and manner of sale, the holding period for the Securities,
and on requirements relating to the Company which are outside of the
Purchaser's control, and, subject to the Company's obligations under the
Investors' Rights Agreement, which the Company is under no obligation and may
not be able to satisfy.
3.5 LEGENDS. The Purchaser understands that the Securities and any
securities issued in respect of or exchange for the Securities, may bear one or
all of the following legends:
(a) "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAVE BEEN ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A
FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
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REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNLESS SOLD PURSUANT
TO RULE 144 OF SUCH ACT."
(b) Any legend required by the Blue Sky laws of any state to the
extent such laws are applicable to the shares represented by the certificate so
legended.
3.6 ACCREDITED INVESTOR. The Purchaser is an accredited investor as
defined in Rule 501(a) of Regulation D promulgated under the Securities Act.
3.7 FOREIGN INVESTORS. If the Purchaser is not a United States person
(as defined by Section 7701(a)(30) of the Internal Revenue Code of 1986, as
amended), such Purchaser hereby represents that it has satisfied itself as to
the full observance of the laws of its jurisdiction in connection with any
invitation to subscribe for the Stock or any use of this Agreement, including
(i) the legal requirements within its jurisdiction for the purchase of the
Stock, (ii) any foreign exchange restrictions applicable to such purchase, (iii)
any governmental or other consents that may need to be obtained, and (iv) the
income tax and other tax consequences, if any, that may be relevant to the
purchase, holding, redemption, sale, or transfer of the Stock. Such Purchaser's
subscription and payment for and continued beneficial ownership of the Stock,
will not violate any applicable securities or other laws of the Purchaser's
jurisdiction.
4. CONDITIONS OF THE PURCHASERS' OBLIGATIONS AT CLOSING. The obligations
of each Purchaser to the Company under this Agreement are subject to the
fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived in writing by each Purchaser:
4.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company contained in Section 2 shall be true and correct in
all material respects (disregarding for this purpose any qualifications with
respect to materiality), on and as of the Closing with the same effect as
though such representations and warranties had been made on and as of the date
of the Closing.
4.2 PERFORMANCE. The Company shall have performed and complied with
all covenants, agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Closing.
4.3 COMPLIANCE CERTIFICATE. The President of the Company shall
deliver to the Purchasers at the Closing a certificate certifying that the
conditions specified in Sections 4.1, 4.2 and 4.4 have been fulfilled.
4.4 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 Stock pursuant to this Agreement shall be obtained and effective as of
the Closing.
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4.5 NAVIUS DISTRIBUTION AGREEMENT. Navius Corporation ("Navius") and
Purchaser shall have agreed to amend that certain Distribution Agreement by and
between Navius and Purchaser dated as of June 28, 1997, according to the terms
attached hereto as Exhibit B (the "Navius Distribution Agreement").
4.6 ENDOSONICS DISTRIBUTION AGREEMENT. The Company and the Purchaser
shall have executed and delivered the Distribution Agreement in the form
attached hereto as Exhibit C (the "EndoSonics Distribution Agreement").
4.7 RESEARCH AND DEVELOPMENT AGREEMENT. The Company and the Purchaser
shall have executed and delivered the Distribution Agreement in the form
attached hereto as Exhibit D (the "Research and Development Agreement").
4.8 INVESTOR'S RIGHTS AGREEMENT. The Company and the Purchaser shall
have executed and delivered the Investor's Rights Agreement in the form attached
hereto as Exhibit E (the "Investor's Rights Agreement").
4.9 BOARD OF DIRECTORS. [Xxxxx Xxxxxxx], the Purchaser's designee,
shall have been appointed to the Company's Board of Directors.
4.10 LEGAL INVESTMENT. The sale of the Shares pursuant to the terms
of this Agreement shall be permitted by all laws to which Purchaser is subject.
4.11 OPINION OF COUNSEL. Purchaser shall have received an opinion of
Venture Law Group, counsel to the Company, dated as of the Closing, in
substantially the form attached hereto as Exhibit F.
5. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING. The obligations of
the Company to the Purchaser under this Agreement are subject to the
fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived in writing.
5.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Purchaser contained in Section 3 shall be true and correct in
all material respects on and as of the Closing with the same effect as though
such representations and warranties had been made on and as of the Closing.
5.2 PERFORMANCE. All covenants, agreements and conditions contained
in this Agreement to be performed by the Purchaser on or prior to the Closing
shall have been performed or complied with in all material respects.
5.3 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
Stock pursuant to this Agreement shall be obtained and effective as of the
Closing.
6. COVENANTS OF COMPANY AND PURCHASER.
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6.1 NOMINATION OF PURCHASER DESIGNEE TO COMPANY BOARD OF DIRECTORS.
For so long as Purchaser owns at least 650,000 shares of the Company's Common
Stock, the Company shall nominate a designee of Purchaser reasonably acceptable
to the Company's Board of Directors to serve as a member of the Company's Board
of Directors.
6.2 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to
making available to the Purchaser the benefits of Rule 144 promulgated under
the Securities Act and any other rule or regulation of the SEC that may at any
time permit the Purchaser to sell securities of the Company to the public
without registration, for so long as Purchaser owns shares of the Company's
Common Stock, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144 at all times;
(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) furnish to the Purchaser, so long as the Purchaser owns any
of the Shares, forthwith upon request (i) a written statement by the Company
that it has complied with the reporting requirements of SEC Rule 144, the
Securities Act and the Exchange At and (ii) such other information as may be
reasonably requested in availing the Purchaser of any rule or regulation of the
SEC which permits the selling of any such securities without registration.
6.3 NASDAQ NOTIFICATION. The Company shall file such forms and take
such other actions as are required under the rules of Nasdaq National Market in
connection with the issuance of the Shares.
6.4 RESTRICTIONS ON CERTAIN ACTIONS BY PURCHASER. Purchaser agrees
that it shall not, nor shall it permit any of its affiliates (as such term is
defined in Rule 12b-2 of the General Rules and Regulations promulgated under
the Exchange Act) (Purchaser, together with such affiliates, the "Purchaser
Group") to, directly or indirectly, without the prior written consent of the
Company duly authorized by a majority of its Board of Directors (the "Board of
Directors"):
(a) acquire, directly or indirectly, by purchase or otherwise,
any securities of the Company entitled to vote generally for the election of
directors, or securities convertible into, or entitling the holder thereof to
acquire, such voting securities (collectively, "Voting Securities"), except for
the Stock and except by way of stock dividends or other distributions or
offerings made available to holders of Voting Securities generally, provided,
however, that:
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(i) in the event that (A)(1) a tender or exchange offer shall be
commenced as evidenced by the filing with the SEC of a statement on Schedule
14D-1, or any successor schedule or form promulgated or adopted for adopted for
such purpose by the SEC, by any Person or 13D Group (each as hereinafter
defined) (other than an affiliate of, or any Person acting in concert with, any
member of the Purchaser Group), or (2) any Person or 13D Group shall file with
the SEC a statement on Schedule 13D, or any successor schedule or form
promulgated or adopted for such purpose by the SEC, or shall file any amendment
thereto, proposing, in each such case to acquire Voting Securities which, if
added to the Voting Securities already beneficially owned by such Person or 13D
Group, would represent more than 15.0% of the total combined voting power of all
Voting Securities then outstanding, and (B) either of the following events shall
have occurred: (1) such tender or exchange offer by such Person or 13D Group
shall have been consummated, or (2) the Company shall have taken all actions
necessary to ensure that such Person or 13D Group shall not be deemed an
"interested stockholder" under Section 203 of the Delaware General Corporation
Law, then the Purchaser Group shall be permitted to (i) commence a tender or
exchange offer on its own behalf for Voting Securities without regard to the
foregoing limitation, or (ii) make an Acquisition Proposal (as hereinafter
defined) to the Board of Directors without regarding to the limitation set forth
in paragraph (f) below; and
(ii) no member of the Purchaser Group shall be obligated to
dispose of any Voting Securities if the aggregate percentage ownership of such
Voting Securities of the Purchaser Group shall be increased as a result of a
recapitalization of the Company or any other action taken by the Company or its
affiliates (other than the Purchaser Group), including, without limitation, any
repurchase of Voting Securities by the Company;
(b) deposit any Voting Securities in a voting trust or subject them
to any arrangement or agreement with respect to the voting thereof;
(c) "solicit" proxies with respect to Voting Securities under any
circumstances or become a "participant" in a "solicitation" (as such terms are
defined in Regulation 14A of the General Rules and Regulations promulgated under
the Exchange Act) in opposition to the recommendation of a majority of the
directors of the Company with respect to any matter;
(d) initiate, propose or otherwise solicit stockholders of the
Company for the approval of one or more stockholder proposals relating to the
Company at any time, or induce or attempt to induce any other Person to initiate
any stockholder proposal with respect to the Company;
(e) join a partnership, limited partnership, syndicate or other
group, or otherwise act in concert with any other Person, for the purpose of
acquiring, holding, voting or disposing of Voting Securities, or otherwise
become a "person" within the meaning of Section 13(d)(3) of the Exchange Act (in
each case, other than solely with members of the Purchaser Group); or
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(f) make any proposal to the Board of Directors or
otherwise with respect to the purchase of additional Voting Securities by any
member of the Purchaser Group or with respect to a merger or consolidation with,
or a sale of a substantial portion of the Company's assets to, any member of the
Purchaser Group, if such proposal would be of a kind such that public disclosure
thereof might reasonably be required under applicable law (each such proposal,
an "Acquisition Proposal").
As used in this Agreement, the term "13D Group" shall mean any
group of Persons formed for the purpose of acquiring, holding, voting or
disposing of Voting Securities which would be required under Section 13(d) of
the Exchange Act and the rules and regulations thereunder to file a statement
with the SEC on Schedule 13D as a "person" within the meaning of Section
13(d)(3) of the Exchange Act if such group shall beneficially own Voting
Securities representing more than 5% of the total combined voting power of all
Voting Securities then outstanding, and the term "Person" shall mean an
individual, a partnership, a joint venture, a corporation, a trust, an
unincorporated organization and a government or any department, agency or other
political subdivision thereof.
6.5 RESTRICTIONS ON RESALES OF SHARES. Purchaser agrees that,
subject to the further provisions of this Agreement, it shall not, nor shall it
permit any member of the Purchaser Group to, directly or indirectly, without the
prior written consent of the Company, offer, sell or transfer any Voting
Securities, other than:
(a) to a wholly owned subsidiary of Purchaser, or by any
such subsidiary to Purchaser;
(b) pursuant to Rule 144 ("Rule 144") of the General
Rules and Regulations promulgated under the Securities Act of 1933 (the
"Securities Act") (provided, however, that no opinion of counsel shall be
required for sales by Purchaser pursuant to Rule 144, except for such transfers
as reasonably requested by the Company based on the advice of outside counsel);
(c) pursuant to any tender or exchange offer that shall
have been recommended to the stockholders of the Company by the Board of
Directors; or
(d) pursuant to any bona fide public offering of Voting
Securities (including any sale pursuant to Rule 144).
With respect to permitted sales or other transfers of Voting
Securities by Purchaser pursuant to paragraph (a) above, any buyer or transferee
of such Voting Securities shall as a precondition to the consummation of the
proposed sale or transfer be required to execute in writing an agreement to be
bound by the terms of this Agreement, which agreement to be bound shall be in
form and substance reasonably satisfactory to the Company.
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7. MISCELLANEOUS
7.1 SURVIVAL OF WARRANTIES. Unless otherwise set forth in this Agreement,
the warranties, representations and covenants of the Company and the Purchaser
contained in or made pursuant to this Agreement shall survive the execution and
delivery of this Agreement for a period of one year following the Closing and
shall in no way be affected by an investigation of the subject matter thereof
made by or on behalf of the Company or the Purchaser.
7.2 TRANSFER; SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement shall inure to the benefit of and binding upon the respective
successors and assigns of the parties. 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.
7.3 GOVERNING LAW. This Agreement and all acts and transactions pursuant
hereto and the rights and obligations of the parties hereto shall be governed,
construed and interpreted in accordance with the laws of the State of
California, without giving effect to principles of conflicts of law.
7.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
7.5 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.
7.6 NOTICES. Any notice required or permitted by this Agreement shall be
in writing and shall be deemed sufficient (i) upon personal delivery to the
party to be notified, (ii) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient (if not, then on the next business
day), (iii) ten (10) days after having been sent by registered or certified
airmail, return receipt requested, postage's prepaid, or (iv) four (4) business
days, after being properly deposited with an internationally recognized
overnight courier, specifying express delivery, with written verification of
receipt addressed to the party to be notified at such party's address as set
forth on the signature pages, or as subsequently modified by written notice with
a copy to Xxxxxxxx Xxxxx, Esq., Kojima Law Offices, Gobancho Kataoka Xxxxxxxx
0X, Xxxxxxxx 0-0 Xxxxxxx-xx, Xxxxx 000, Xxxxx, and if to the Company, with a
copy to Xxxxxxx X. Xxxx, Venture Law Group, 0000 Xxxx Xxxx Xxxx, Xxxxx Xxxx, XX
00000.
7.7 FINDER'S FEE. Each party represents that it neither is nor will be
obligated for any finder's fee or commission in connection with this
transaction. The Purchaser agrees to indemnify and to hold harmless the Company
from any liability for any commission or compensation in the nature of a
finder's fee (and the costs and expenses of defending against such liability or
asserted liability) for which the Purchaser or any of its officers, employees,
or representatives is responsible. The Company agrees to indemnify and hold
harmless the
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Purchaser from any liability for any commission or compensation in the nature
of a finder's 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.
7.8 ATTORNEY'S FEES. If any action at law or in equity (including
arbitration) is necessary to enforce or interpret the terms of any of the
Agreements, the prevailing party shall be entitled to reasonable attorney's
fees, costs and necessary disbursements in addition to any other relief to
which such party may be entitled.
7.9 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended or waived only with the written consent of the Company and the
Purchaser. Any amendment or waiver effected in accordance with this Section 7.9
shall be binding upon the Purchaser and each transferee of the Stock (or the
Common Stock issuable upon conversion thereof), each future holder of all such
securities, and the Company.
7.10 SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (a)
such provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provisions were so excluded and (c)
the balance of the Agreement shall be enforceable in accordance with its terms.
7.11 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to any party under this Agreement, upon any breach or
default of any other party under this Agreement, shall impair any such right,
power or remedy of such non-breaching or non-defaulting party nor shall it be
construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any
other breach or default theretofore or thereafter occurring. Any waiver,
permit, consent or approval of any kind or character on the part of any party
of any breach or default under this Agreement, or any waiver on the part of any
party of any provisions or conditions of this Agreement, must be in writing and
shall be effective only to the extent specifically set forth in such writing.
All remedies, either under this Agreement or by law or otherwise afforded to
any party, shall be cumulative and not alternative.
7.12 ENTIRE AGREEMENT. This Agreement, and the documents referred to
herein constitute the entire agreement between the parties hereto pertaining to
the subject matter hereof, and any and all other written or oral agreements
relating to the subject matter hereof existing between the parties hereto are
expressly canceled.
7.13 CORPORATE SECURITIES LAW. THE SALE OF THE SECURITIES WHICH ARE
THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF
CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF THE SECURITIES OR
THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO THE
QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM THE
QUALIFICATION BY
-12-
13
EXHIBIT 10.4
SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS
OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON THE
QUALIFICATION BEING OBTAINED UNLESS THE SALE IS SO EXEMPT.
7.14 CONFIDENTIALITY. Each party hereto agrees that, except with the
prior written permission of the other party, it shall at all times keep
confidential and not divulge, furnish or make accessible to anyone any
confidential information, knowledge or data concerning or relating to the
business or financial affairs of the other parties to which such party has been
or shall become privy by reason of this Agreement, discussions or negotiations
relating to this Agreement, the performance of its obligations hereunder or the
ownership of Stock purchased hereunder. The provisions of this Section 7.14
shall be in addition to, and not in substitution for, the provisions of any
separate nondisclosure agreement executed by the parties hereto with respect to
the transactions contemplated hereby.
7.15 PUBLICITY. No party shall originate any publicity, news release or
other public announcement, written or oral (a "Release"), whether relating to
the performance under this Agreement or the existence of any arrangement
between the parties, without the prior written consent of the other party,
except where such Release is required by law.
[SIGNATURE PAGE FOLLOWS]
14
EXHIBIT 10.4
The parties have executed this Common Stock Purchase Agreement as of the
date first written above.
COMPANY:
EndoSonics Corporation
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
----------------------------------
(print)
Title: President and CEO
---------------------------------
Address: 0000 Xxxxxxx Xxxx
Xxxxxx Xxxxxxx, Xxxxxxxxxx 00000
PURCHASER:
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
-----------------------------------
(print)
Title: President
----------------------------------
Address: 0-00-0 Xxxxx Xxxxxx-Xx
Xxxxx, 000, Xxxxx
SIGNATURE PAGE TO PURCHASE AGREEMENT
