EXHIBIT 4.2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made as of the 7th day of June 2000, by
and between Fusion Medical Technologies, Inc. (the "Company"), a corporation
organized under the laws of the State of Delaware, with its principal offices at
00000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxx 00000, and the purchaser whose
name and address is set forth on the signature page hereof (the "Purchaser").
IN CONSIDERATION of the mutual covenants contained in this Agreement, the
Company and the Purchaser agree as follows:
SECTION 1. Authorization of Sale of the Shares. Subject to the terms and
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conditions of this Agreement, the Company has authorized the sale of up to
1,200,000 shares of common stock (the "Shares"), par value $0.001 per share (the
"Common Stock"), of the Company. The Company proposes to enter into an agreement
with another purchaser (the "Other Purchaser"), which agreement shall be in
substantially identical form to this Agreement (the "Other Purchase Agreement").
SECTION 2. Agreement to Sell and Purchase the Shares. At the Closing (as
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defined in Section 3), the Company shall sell to the Purchaser, and the
Purchaser shall buy from the Company, upon the terms and conditions hereinafter
set forth, the number of Shares (at the purchase price) shown below:
Price Per
Number Shares to Be Share In Aggregate
Purchased Dollars Price
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SECTION 3. Delivery of the Shares at the Closing. (a) The completion of
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the purchase and sale of the portion of the Shares to be purchased by the
Purchaser (the "Closing") shall occur on the date immediately following
execution and delivery of this Agreement at the offices of Xxxxxxxxxxxx Xxxxxxxx
& Prince, LLP, 000 Xxxxxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000 at such time
and date to be agreed upon by the Company and the Purchaser (the "Closing
Date").
(b) At the Closing, the Company shall deliver to the Purchaser a
certificate representing the number of Shares set forth in Section 2 above. The
name in which the stock certificate is to be registered is set forth in the
Stock Certificate Questionnaire attached hereto as part of Appendix I. Prior to
the Purchaser's delivery of payment for the Shares, the Company shall deliver
via facsimile a copy of the stock certificates to be issued to the Purchaser
upon the Closing. The Company's obligation to complete the purchase and sale of
the Shares and deliver such stock certificates to the Purchaser at the Closing
shall be subject to the following conditions: (i) receipt by the Company of
same-day funds in the full amount of the purchase price for the Shares being
purchased hereunder; (ii) completion of the purchase and sale under the Other
Purchase Agreement with the Other Purchaser; and (iii) the accuracy of the
representations and warranties made by the Purchaser as if made on the day of
such Closing and
the fulfillment of those undertakings of the Purchaser to be fulfilled prior to
the Closing. The Purchaser's obligation to accept delivery of such stock
certificates and to pay for the Shares evidenced thereby shall be subject only
to the following conditions: (A) the accuracy in all material respects of the
representations and warranties made by the Company herein and the fulfillment in
all material respects of those undertakings of the Company to be fulfilled prior
to Closing and (B) the delivery by Xxxxxxxxxxxx Xxxxxxxx & Prince, LLP, counsel
to the Company, to the Purchaser of a legal option.
SECTION 4. Representations and Warranties of the Company. The Company
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hereby represents and warrants as of the date hereof and as of the Closing to
the Purchaser as follows:
4.1 Organization and Standing. The Company is a corporation duly
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organized and validly existing under the laws of the State of Delaware and is in
good standing under such laws. The Company has all requisite corporate power to
own and operate its properties and assets, and to carry on its business as
presently conducted. The Company is qualified to do business as a foreign
corporation in the State of California. Such qualification is not presently
required in any other jurisdiction where a failure to so qualify would have a
material adverse effect on the business, financial position or results of
operations of the Company ("Material Adverse Effect").
4.2 Capitalization. The authorized capital stock of the Company
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consists of 50,000,000 shares of Common Stock and 5,000,000 shares of Preferred
Stock. A total of 10,118,011 shares of Common Stock are issued and outstanding.
No shares of Preferred Stock are issued and outstanding. All such issued and
outstanding shares have been duly authorized and validly issued, and are fully
paid and nonassessable. Options to purchase 2,273,175 shares of the Company's
Common Stock are outstanding under the Company's 1993 Stock Option Plan and
789,294 shares are available for future grant. Options to purchase 56,668 shares
of the Company's Common Stock are outstanding under the Company's 1996 Director
Option Plan and 60,800 shares are available for future grant. The Company has
issued 107,778 shares of Common Stock under its Employee Stock Purchase Plan and
172,222 shares are available for future issuance. The Company also has warrants
outstanding for 12,785 shares of its Common Stock. Except as disclosed in the
Company SEC Documents (as defined below), there are no other options, warrants,
conversion privileges, or preemptive or other rights or agreements presently
outstanding to purchase or otherwise acquire any authorized but unissued shares
of the capital stock or other securities of the Company.
4.3 Authority. The Company has full power and authority to execute
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and deliver this Agreement, and to consummate the transactions contemplated by
this Agreement. All corporate action on the part of the Company, its officers,
directors and stockholders necessary for the execution and delivery of, and the
consummation of the transactions contemplated by, this Agreement. This
Agreement, upon execution and delivery by the Company and assuming the due and
proper execution and delivery by the Purchaser, constitutes a legal, valid and
binding obligation of the Company, enforceable in accordance with its respective
terms, except as may be limited by (i) applicable bankruptcy, insolvency,
reorganization or other laws of general application relating to or affecting the
enforcement of creditors rights generally, and (ii) the effect of rules of law
governing the availability of specific performance and other equitable remedies.
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4.4 Valid Issuance of Common Stock. The Common Stock to be sold
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hereby has been duly authorized and, when issued, delivered and paid for in the
manner set forth in this Agreement, shall be duly authorized, validly issued,
fully paid and nonassessable, and shall be free of restrictions on transfer
other than restrictions on transfer under this Agreement and under applicable
state and federal securities laws. No preemptive rights, anti-dilution rights or
other rights to subscribe for or purchase exist with respect to the issuance and
sale of the Common Stock by the Company pursuant to this Agreement. No
stockholder of the Company has any right (which has not been waived or has not
expired by reason of lapse of time following the notification of the Company's
intent to file the Registration Statement (as defined below)) to request or
require the Company to register the sale of any shares owned by such stockholder
under the Securities Act of 1933, as amended (the "Securities Act"), in the
Registration Statement.
4.5 Governmental Consents. Other than compliance with the Securities
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Act and other state or federal securities laws, and such filings as may be
required to be made under such laws or with the National Association of
Securities Dealers (the "NASD"), which shall be complied with and made at or
prior to the Closing, no consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of the Company is
required in connection with the consummation of the transactions contemplated by
this Agreement.
4.6 Conflicts. The execution and delivery of this Agreement shall
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not conflict with or result in a material breach of the terms, conditions or
provisions of, or constitute a material default under, any material contract,
material covenant or material instrument under which the Company is now
obligated.
4.7 SEC Documents. The Company has filed each statement, annual,
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quarterly and other report, registration statement and definitive proxy
statement ("Company SEC Documents") required to be filed (other than preliminary
material) by the Company with the SEC. As of their respective filing dates, the
Company SEC Documents complied in all material respects with the requirements of
the Securities Act or the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as the case may be, and none of the Company SEC Documents
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements made
therein, in light of the circumstances in which they were made, not misleading,
except to the extent corrected by any subsequently filed Company SEC Document.
4.8 Changes. Since March 31, 2000, there has not been any event or
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condition that would reasonably likely result in a Material Adverse Effect.
4.9 Litigation. There is no pending or, to the Company's knowledge,
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threatened lawsuit, administrative proceeding, arbitration, patent or licensing
challenge or infringement, labor dispute or governmental investigation to which
the Company is a party or by which any material portion of its assets, taken as
a whole, may be bound, which, if adversely determined, would have a Material
Adverse Effect.
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SECTION 5. Representations and Warranties of the Purchaser. The Purchaser
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hereby represents and warrants as of the date hereof and as of the Closing to
the Company as follows:
5.1 Organization and Standing. The Purchaser is an independent state
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agency created under and validly existing under the laws of the State of
Wisconsin. The Purchaser has all requisite corporate power to own and operate
its properties and assets, and to carry on its business as presently conducted.
5.2 Authority. The Purchaser has full power and authority to
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execute and deliver, and to consummate the transactions contemplated by this
Agreement. All corporate action on the part of the Purchaser, its officers,
directors and stockholders necessary for the execution and delivery of, and the
consummation of the transactions contemplated by, this Agreement. This
Agreement, upon execution and delivery by the Purchaser and assuming the due and
proper execution and delivery by the Company, constitutes a legal, valid and
binding obligation of the Purchaser, enforceable in accordance with its terms,
except as may be limited by (i) applicable bankruptcy, insolvency,
reorganization or other laws of general application relating to or affecting the
enforcement of creditors rights generally, and (ii) the effect of rules of law
governing the availability of equitable remedies.
5.3 Purchase Entirely for Own Account. This Agreement is made with
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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 Shares to be acquired by the Purchaser shall be acquired for
investment for the Purchaser's own account, not as a nominee or agent, and not
with a view to the distribution of any part thereof, and that the Purchaser has
no present intention of selling, granting any participation in, or otherwise
taking an action that would constitute a distribution of the same.
5.4 Disclosure of Information. The Purchaser has received all the
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information it considers necessary or appropriate for deciding whether to
purchase the Common Stock. The Purchaser further represents that it has had an
opportunity to ask questions and receive answers from the Company regarding the
terms and conditions of the offering of the Common Stock and the business,
properties, prospects and financial condition of the Company.
5.5 Investment Experience. The Purchaser acknowledges that it is
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able to fend for itself, can bear the economic risk of its investment, and has
such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment in the Common
Stock. The Purchaser has not been organized for the purpose of acquiring the
Common Stock.
5.6 Accredited Investor. The Purchaser is an "accredited investor"
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within the meaning of Rule 501 of Regulation D, promulgated under the Securities
Act.
5.7 Restricted Securities. The Purchaser understands that the
---------------------
Shares it is purchasing are characterized as "restricted securities" under the
federal securities laws inasmuch as they are being acquired from the Company in
a transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Securities Act only in certain limited circumstances. In this connection,
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the Purchaser represents that it is familiar with SEC Rule 144 or Rule 144A, as
presently in effect, and understands the resale limitations imposed thereby and
by the Securities Act.
SECTION 6. Survival of Representations, Warranties and Agreements.
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Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
the Purchaser herein shall survive until the third anniversary of the Closing.
SECTION 7. Covenants of the Company.
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7.1 Sale of Common Stock. The Company shall not, from the Closing
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Date until after the date which is 90 days after the Closing Date, sell (a)
shares of Common Stock at a price per share less than $12.00 or (b) options,
warrants, convertible securities or any other instruments convertible or
otherwise exchangeable into shares of Common Stock at a price per share less
than $12.00 (other than at a price per share equal to the then fair market value
pursuant to the Company's 1993 Stock Option Plan, 1996 Director Option Plan or
Employee Stock Purchase Plan).
7.2 Option Pricing. The Company shall, within 30 days after the
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Closing Date, adopt such amendments to the Company's 1993 Stock Option Plan and
1996 Director Option Plan and the Company's By-laws to provide that: (a) the
exercise price of any option grants made under such Plans, or pursuant to other
arrangements or agreements, shall be equal to, or in excess of, the fair market
value of the Company's Common Stock on the date of such the grant; and (b) the
Company shall not, without the consent of the stockholders entitled vote
thereon, decrease the exercise price of any stock option grants made under the
such Plans or any other arrangements or agreements.
SECTION 8. Covenants of the Purchaser.
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8.1 Limitations on Disposition. Without in any way limiting any
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other provision set forth herein, the Purchaser further agrees not to make any
disposition of all or any portion of the Shares unless and until:
(a) There is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such Registration Statement;
(b) Such disposition shall be permitted under the provisions of
Rule 144; or
(c) There is a valid exemption from registration under the
Securities Act and other applicable securities laws and, if requested by the
Company, the Purchaser shall have furnished the Company with an opinion of
counsel, reasonably satisfactory to the Company, that such disposition shall not
require registration.
8.2 Prospectus Delivery. The Purchaser hereby covenants with the
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Company not to make any sale of any Shares under a registration statement
without effectively causing the prospectus delivery requirement under the
Securities Act to be satisfied. The Purchaser
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acknowledges and agrees that such Shares are not transferable on the books of
the Company pursuant to a resale under a registration statement unless the
certificate submitted to the transfer agent evidencing such Shares is
accompanied by a separate officer's certificate, (a) which may be in the form of
Appendix II hereto, (b) executed by an officer of, or other authorized person
designated by, the Purchaser, and (c) to the effect that (i) such Shares have
been sold in accordance with the registration statement and (ii) the requirement
of delivering a current prospectus has been satisfied. The Purchaser
acknowledges that there may occasionally be times when the Company must suspend
the use of the prospectus forming a part of the registration statement until
such time as an amendment to the registration statement has been filed by the
Company and declared effective by the Securities and Exchange Commission (the
"Commission"), or until such time as the Company has filed an appropriate report
with the Commission pursuant to the Exchange Act. The Purchaser hereby covenants
that it shall not sell any Shares pursuant to such prospectus during the period
commencing at the time at which the Company gives the Purchaser written notice
of the suspension of the use of such prospectus and ending at the time the
Company gives the Purchaser written notice that the Purchaser may thereafter
effect sales pursuant to such prospectus and any amendments thereto. In no event
shall the Company suspend the use of the Prospectus for periods exceeding 45
days during any 12-month period.
SECTION 9. Legends. Each certificate or instrument representing Shares
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delivered at the Closing shall bear legends in substantially the following
forms:
(i) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE 'SECURITIES ACT')
AND ARE 'RESTRICTED SECURITIES' AS DEFINED IN RULE 144 PROMULGATED UNDER
THE SECURITIES ACT. THE SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE OR
OTHERWISE DISTRIBUTED EXCEPT (I) IN CONJUNCTION WITH AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT, OR (II)
IN COMPLIANCE WITH RULE 144, OR (III) PURSUANT TO AN OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER OF THESE SECURITIES THAT SUCH REGISTRATION OR
COMPLIANCE IS NOT REQUIRED AS TO SUCH SALE, OFFER OR DISTRIBUTION."
(ii) Any other legends required by California law or other
applicable blue sky or state securities laws.
The Company need not register a transfer of any Shares, and may also instruct
its transfer agent not to register a transfer of any Shares, unless the
conditions specified in the foregoing legends are satisfied to the extent
applicable.
SECTION 10. Registration of the Shares; Compliance with the Securities Act.
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10.1 Registration Procedures and Expenses. The Company shall:
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(a) within 15 business days after the Closing Date, prepare and
file with the Commission a registration statement on Form S-
3 (the "Registration Statement") relating to the sale of
Shares by the Purchaser on the Nasdaq National Market or the
facilities of any national securities exchange on which the
Common Stock is then traded or in privately-negotiated
transactions;
(b) use its reasonable best efforts, subject to receipt of
necessary information from the Purchaser and the Other
Purchaser, to cause the staff of the Commission to notify
the Company of the staff's willingness to grant acceleration
of the effective date of the Registration Statement within
60 days after the Registration Statement is filed by the
Company;
(c) promptly notify the Purchaser upon the Registration
Statement being declared effective by the Commission;
(d) provide to the Purchaser any information necessary to permit
sale of Shares under Rule 144 or Rule 144A of the Securities
Act.
(e) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus
used in connection therewith as may be necessary to keep the
Registration Statement effective until the date on which the
Purchaser's Shares may be resold in any three-month period
by the Purchaser without registration and without any
restrictions by reason of Rule 144(k) under the Securities
Act or any other rule of similar effect;
(f) promptly furnish to the Purchaser with respect to the Shares
registered under the Registration Statement (and to each
underwriter, if any, of such Shares) such number of copies
of prospectuses and such other documents as the Purchaser
may reasonably request, in order to facilitate the public
sale or other disposition of all or any of the Purchaser's
Shares by the Purchaser; provided, however, that the
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obligation of the Company to deliver copies of prospectuses
to the Purchaser shall be subject to the receipt by the
Company of reasonable assurances from the Purchaser that the
Purchaser shall comply with the applicable provisions of the
Securities Act and of such other securities or blue sky laws
as may be applicable in connection with any use of such
prospectuses;
(g) file documents required of the Company for normal blue sky
clearance in all states requiring blue sky clearance;
provided, however, that the Company shall not be required to
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qualify to do
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business or consent to service of process in any
jurisdiction in which it is not now so qualified or has not
so consented; and
(h) bear all expenses in connection with the procedures in
paragraphs (a) through (g) of this Section 10.1 and the
registration of the Shares pursuant to the Registration
Statement, other than fees and expenses, if any, of counsel
or other advisers to the Purchaser or underwriting
discounts, brokerage fees and commissions incurred by the
Purchaser, if any.
10.2 Transfer of Shares After Registration. The Purchaser agrees that
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it shall not effect any disposition of any Shares or its right to purchase any
Shares that would constitute a sale within the meaning of the Securities Act,
except as contemplated in the Registration Statement referred to in Section 10.1
or as otherwise permitted by law, and that it shall promptly notify the Company
of any changes in the information set forth in the Registration Statement
regarding the Purchaser or its plan of distribution.
10.3 Indemnification. In the event any securities are included in a
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registration statement under this Section 10:
(a) To the extent permitted by law, the Company shall indemnify
and hold harmless the Purchaser and each person, if any, who controls the
Purchaser within the meaning of the Securities Act or the Exchange Act, against
any losses, claims, damages, or liabilities (joint or several) to which they may
become subject under the Securities Act or the Exchange Act or other federal or
state law, insofar as such losses, claims, damages, or liabilities (or actions
in respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively a "Violation"): (i) any untrue
statement or alleged untrue statement of a material fact contained in such
Registration Statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, (ii) the omission or
alleged omission to state therein a material fact required to be stated therein,
or necessary to make the statements therein not misleading, or (iii) in
connection with the sale or purchase of the Shares, any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
or the Exchange Act or any state securities law; and the Company shall pay to
the Purchaser or controlling person, as incurred, any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this subsection 10.3(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability, or action
if such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be liable in any such
case for any such loss, claim, damage, liability, or action to the extent that
it arises out of or is based upon a Violation which occurs in reliance upon and
in conformity with written information furnished expressly for use in connection
with such registration by the Purchaser or controlling person.
(b) To the extent permitted by law, the Purchaser shall
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the
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Securities Act, its attorneys, its underwriters, and any controlling person of
any such underwriter, against any losses, claims, damages, or liabilities (joint
or several) to which any of the foregoing persons may become subject, under the
Securities Act, or the Exchange Act or other federal or state law, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation, in each case to the extent (and
only to the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished by the Purchaser expressly for use
in connection with such registration; and the Purchaser shall pay, as incurred,
any legal or other expenses reasonably incurred by any person intended to be
indemnified pursuant to this subsection 10.3(b), in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this subsection
10.3(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Purchaser, which consent shall not be unreasonably withheld; provided,
that, in no event shall any indemnity under this subsection 10.3(b) exceed the
gross proceeds from the offering received by the Purchaser.
(c) Promptly after receipt by an indemnified party under this Section
10.3 of notice of the commencement of any action (including any governmental
action), such indemnified party shall, if a claim in respect thereof is to be
made against any indemnifying party under this Section 10.3, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
10.3, but the omission so to deliver written notice to the indemnifying party
shall not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 10.3.
(d) If the indemnification provided for in this Section 10.3 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations; provided that in no event shall any contribution by the
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Purchaser under this subsection 10.3(d) exceed the amount of the gross proceeds
received by the Purchaser from the offering. The relative fault of the
indemnifying party and of the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
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of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information, and opportunity
to correct or prevent such statement or omission.
(e) The obligations of the Company and the Purchaser under this
Section 10.3 shall survive the completion of any offering of securities in a
registration statement under this Section 10 or otherwise.
10.4 Termination of Registration Obligations. The obligations of the
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Company set forth in Section 10.1 shall cease and terminate as to the
Purchaser's Shares on the date on which (i) all such Shares are eligible for
sale during any three-month period without restriction under Rule 144, (ii) all
such Shares have been effectively registered under the Securities Act and sold
or otherwise disposed of by the Purchaser in accordance with the intended method
of disposition set forth in the Registration Statement or (iii) the Company
receives an opinion of counsel satisfactory in form and substance to the Company
to the effect that such conditions are not necessary in order for a transfer of
such Shares to comply with the Securities Act.
10.5 Information Available. So long as the Registration Statement is
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effective covering the resale of Shares owned by the Purchaser, the Company
shall furnish to the Purchaser:
(a) as soon as practicable after the Company has made such
information available to the public through submission to
the SEC (but in the case of the Company's Annual Report to
Stockholders, within 120 days after the end of each fiscal
year of the Company), one copy of (i) its Annual Report to
Stockholders, (ii) if not included in substance in the
Annual Report to Stockholders, its Annual Report on Form 10-
K, (iii) its Quarterly Reports on Form 10-Q, (iv) its
Current Reports on Form 8-K, and (v) a full copy of the
particular Registration Statement covering the Shares (the
foregoing, in each case, excluding exhibits); and
(b) upon the written request of the Purchaser, a reasonable
number of copies of the prospectuses to supply to any other
party requiring such prospectuses in connection with the
Purchaser's prospectus delivery requirements under the
Securities Act;
and the Company, upon the reasonable request of the Purchaser, shall meet with
the Purchaser or a representative thereof at the Company's headquarters to
discuss information relevant for disclosure in the Registration Statement
covering the Shares, subject to appropriate confidentiality limitations as the
Company may require.
SECTION 11. Brokers. Each of the parties hereto hereby represents that,
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on the basis of any actions and agreements by it, there are no brokers or
finders entitled to compensation in connection with the sale of Shares to the
Purchaser.
SECTION 12. Notices. All notices, requests, consents and other
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communications hereunder shall be in writing, shall be mailed by first-class
registered or certified airmail,
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confirmed facsimile or nationally recognized overnight express courier postage
prepaid, and shall be deemed given when so mailed and shall be delivered as
addressed as follows:
(a) if to the Company, to:
Fusion Medical Technologies, Inc.
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxxxxxx Xxxxxxxx & Prince, LLP
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other person at such other place as the Company shall
designate to the Purchaser in writing; and
(b) if to the Purchaser, at its address as set forth at the end
of this Agreement, or at such other address or addresses as
may have been furnished to the Company in writing.
SECTION 13. Changes. This Agreement may not be modified or amended except
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pursuant to an instrument in writing signed by the Company and the Purchaser.
SECTION 14. Headings. The headings of the various sections of this
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Agreement have been inserted for convenience of reference only and shall not be
deemed to be part of this Agreement.
SECTION 15. Severability. In case any provision contained in this
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Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
SECTION 16. Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of California.
SECTION 17. No Conflicts of Interest. The Company represents, warrants
------------------------
and covenants that, to the knowledge of the Company, no trustee, officer or
employee of the of the Purchaser will receive, directly or indirectly, any
personal interest in the Company or its property of anything of substantial
economic value for his or her private benefit from the Company, or anyone acting
its behalf, in connection with the investment made pursuant to this Agreement.
SECTION 18. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall constitute an original, but all of which, when
taken together,
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shall constitute but one instrument, and shall become effective when one or more
counterparts have been signed by each party hereto and delivered to the other
parties.
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement or caused this Agreement to be executed by its duly authorized
representative as of the day and year first above written.
FUSION MEDICAL TECHNOLOGIES, INC.
By_________________________________
Name:
Title:
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Print or Type:
Name of the Purchaser
(Individual or Institution):
_________________________________
Name of Individual representing
the Purchaser (if an Institution):
_________________________________
Title of Individual representing
the Purchaser (if an Institution):
_________________________________
Signature by:
Individual Purchaser or Individual
representing the Purchaser:
__________________________________________
Address: ___________________________
Telephone: ___________________________
Facsimile: ___________________________
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Appendix I
(page one of two)
FUSION MEDICAL TECHNOLOGIES, INC.
STOCK CERTIFICATE QUESTIONNAIRE
-------------------------------
Pursuant to Section 3 of the Agreement, please provide us with the
following information:
1. The exact name in which your Shares are
to be registered (this is the name that
shall appear on your stock certificate(s));
you may use a nominee name if appropriate: _______________________
2. The relationship between the Purchaser of
the Shares and the Registered Holder
listed in response to item 1 above: _______________________
3. The mailing address of the Registered Holder
listed in response to item 1 above: _______________________
_______________________
_______________________
_______________________
4. The Social Security Number or Tax
Identification Number of the Registered
Holder listed in response to item 1 above: _______________________
Appendix I
(page two of two)
FUSION MEDICAL TECHNOLOGIES, INC.
REGISTRATION STATEMENT QUESTIONNAIRE
------------------------------------
In connection with the preparation of the Registration Statement, please
provide us with the following information:
1. Pursuant to the "Selling Stockholder" section of the Registration
Statement, please state your or your organization's name exactly as it should
appear in the Registration Statement:
______________________________________________________________________
2. Please provide the number of shares that you shall beneficially own
immediately after Closing, including those Shares purchased by you pursuant to
the Agreement and those shares purchased by you or your affiliates through other
transactions:
______________________________________________________________________
3. Have you or your organization had any position, office or other
material relationship within the past three years with the Company or its
affiliates?
_____ Yes _____ No
If yes, please indicate the nature of any such relationships below:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
APPENDIX II
Attention:
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
------------------------------------------
PURSUANT TO A REGISTERATION STATEMENT
-------------------------------------
The undersigned, [an officer of, or other person duly authorized by]
________________________________________________________________________________
[fill in official name of individual or institution]
hereby certifies that he/she [said institution] is the Purchaser of the shares
evidenced by the attached certificate, and as such, sold such shares on
__________________ in accordance with Registration Statement number
[date]
______________ and the requirement of delivering a current prospectus by the
[fill in the number of or otherwise identify Registration Statement]
Company has been complied with in connection with such sale.
Print or Type:
Name of the Purchaser
(Individual or
Institution): ______________________
Name of Individual
representing the
Purchaser (if an
Institution) ______________________
Title of Individual
representing the
Purchaser (if an
Institution): ______________________
Signature by:
Individual Purchaser
or Individual
representing the Purchaser: ______________________
