EXHIBIT 10.1
CARDIMA, INC.
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SUBSCRIPTION AGREEMENT
Cardima, Inc.
00000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn.: President
Ladies and Gentlemen:
1. Subscription. The undersigned is hereby purchasing from Cardima,
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Inc., a Delaware corporation (the "Company"), ________________ shares (the
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"Shares") of the Company's common stock, par value $0.001 (the "Common Stock"),
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for a purchase price of $2.00 per share and an aggregate purchase price of
$___________ (the "Purchase Price"). This Subscription is being made in
connection with the Company's private placement of Shares solely to "Accredited
Investors" (the "Offering"). The Terms of the Offering are more specifically
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described on Annex A hereto.
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2. Closing. On the date hereof (the "Closing"), payment of the Purchase
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Price is being made by electronic wire transfer in accordance with the following
instructions:
Bank Name: Chase, NYC
ABA #: 000000000
Credit: United States Trust Company of New York
Account #: 000-0-000000
Further Credit: Sunrise/Cardima, Inc.
Account #: 00000000
Attention: Xxxxx Xxxxx
or by delivery of a bank check or certified check made payable to "Cardima, Inc.
- Escrow Account," in either case against delivery to the undersigned of a
certificate representing the Shares. All checks should be delivered, together
with an executed copy of this Subscription Agreement, to the Placement Agent for
this Offering as follows:
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Sunrise Securities Corp.
000 Xxxx 00xx Xxxxxx
00xx xxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Xxxx Xxxxxxxxx, Vice President
3. Representations and Warranties of the Company. To induce the
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undersigned to enter into this Agreement and to purchase the Shares, the Company
hereby represents and warrants to the undersigned the following:
(a) Organization Standing, Etc. The Company is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware and has the requisite corporate power and authority to own or lease its
properties and to carry on its business as it is now being conducted. The
Company has the requisite corporate power and authority to issue the Shares and
to perform its obligations under this Subscription Agreement.
(b) Valid Issuance. The Shares, when issued and delivered pursuant to
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terms of this Subscription Agreement, will be duly authorized, validly issued
and enforceable in accordance with their respective terms and the terms of this
Subscription Agreement.
(c) Corporate Acts and Proceedings. This Subscription Agreement and
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the Offering have been duly authorized by all necessary corporate action on
behalf the Company. This Subscription Agreement has been duly executed and
delivered by authorized officers of the Company, is a valid and binding
agreement on the part of the Company and is enforceable against the Company in
accordance with its terms. All corporate actions necessary to the
authorization, creation, issuance and delivery of the Shares and the conducting
of the Offering have been taken by the Company.
(d) Compliance with Applicable Laws and Other Instruments. Neither
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the execution or delivery of, nor the performance of or compliance with this
Subscription Agreement, the issuance of the Shares nor the consummation of the
transactions contemplated hereby will, with or without the giving of notice or
passage of time, result in any material breach of, or constitute a material
default under, or result in the imposition of any material lien or encumbrance
upon any asset or property of the Company pursuant to, any material agreement or
other instrument to which the Company is a party or by which it or any of its
properties, assets or rights is bound or affected, and will not violate the
Company's Certificate of Incorporation or Bylaws.
(e) Securities Laws. Based in part upon the representations of the
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undersigned in Section 5 hereof, no consent, authorization, approval, permit or
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order of or filing with any governmental or regulatory authority is required
under current laws and regulations in
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connection with the execution and delivery of this Agreement or the offer,
issuance, sale or delivery of the Shares, other than (i) the filing of a Form
D pursuant to Regulation D under the Securities Act of 1933, as amended (the
"Act"), (ii) the filing, if required, of any notice with any state whose
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laws require such filing, and (iii) the qualification thereof, if required,
under other applicable state laws, which qualification has been or will be
effected as a condition of the Offering. Under the circumstances contemplated
by this Subscription Agreement, the offer, issuance, sale and delivery of the
Shares will not, under current laws and regulations, require compliance with
the prospectus delivery or registration requirements in the Act.
(f) Capital Stock. The authorized and issued capital stock of the
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Company as of the Closing is correctly set forth in the unaudited interim
financial statements for the quarter ended September 30, 1998. All of the
outstanding shares of the Company were duly authorized and validly issued and
are fully paid and nonassessable. Except as described in the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1997, as amended (the
"Form 10-K"), quarterly report on Form 10-Q for the quarter ended March 31,
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1998, as amended, quarterly report on Form 10-Q for the quarter ended June 30,
1998, as amended, or quarterly report on Form 10-Q for the quarter ended
September 30, 1998 (collectively, the "SEC Filings"), in each case as filed with
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the Securities and Exchange Commission (the "Commission"), there are no
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outstanding subscriptions, options, warrants, calls, contracts, demands,
commitments, convertible securities or other agreements or arrangements of any
character or nature whatever, other than in connection with the Offering,
pursuant to which the Company is obligated to issue any securities of any kind
representing an ownership interest in the Company. Neither the offer nor the
issuance or sale of the Shares constitutes an event under any anti-dilution
provisions of any securities issued (or issuable pursuant to outstanding rights,
warrants or options) by the Company or any agreements with respect to the
issuance of securities by the Company, which will either increase the number of
securities issuable pursuant to such provisions or decrease the consideration
per share to be received by the Company pursuant to such provisions. No holder
of any securities of the Company is entitled to any preemptive or similar rights
to purchase any securities of the Company in connection with the Offering.
(g) Executive Summary; SEC Filings. The Company has furnished the
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undersigned a copy of an Executive Summary dated December 9, 1998 (the
"Executive Summary"). The Company has furnished, or made available through the
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XXXXX Internet web site of the Commission, to the undersigned true and complete
copies of the SEC Filings. As of their respective filing dates, the SEC Filings
complied in all material respects with the applicable requirements of the
Exchange Act of 1934, as amended (the "Exchange Act"). Neither the Executive
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Summary nor the SEC Filings 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 in order to make the statements made therein, in the
light of the circumstances under which they were made, not misleading, except to
the extent amendments thereto were made in compliance with Commission rules and
regulations subsequent to the date thereof.
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4. Transfer Restrictions.
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(a) The undersigned realizes that the Shares are not registered under
the Act or any foreign or state securities laws. The undersigned agrees that
the Share will not be sold, offered for sale, pledged, hypothecated or otherwise
transferred (collectively, "Transfer"), except in compliance with the Act and
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applicable foreign and state securities laws. The undersigned understands that
he can only Transfer the Shares pursuant to registration under the Act or
pursuant to an exemption therefrom. The undersigned understands that to
Transfer the Shares may require in certain jurisdictions specific approval by
the appropriate governmental agency or commission in such jurisdiction. The
undersigned has been advised that, except as set forth in Section 6 hereof, the
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Company has no obligation, and does not intend, to cause the Shares to be
registered under the Act or the securities law of any other jurisdiction or to
comply with the requirements for any exemption under the Act, including but not
limited to, those provided by Rule 144 and Rule 144A promulgated under the Act,
or under the securities law of any other jurisdiction.
(b) To enable the Company to enforce the transfer restrictions
contained in Section 4(a) hereof, the undersigned hereby consents to the placing
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of legends upon, and stop-transfer orders with the transfer agent of the Common
Stock with respect to, the Shares.
5. Representations and Warranties of the Undersigned. To induce the
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Company to accept the undersigned's subscription, the undersigned hereby
represents and warrants to the Company that:
(a) the undersigned, if an individual, has reached the age of majority
in the jurisdiction in which he resides, is a bona fide resident of the
jurisdiction contained in the address set forth on the signature page of this
Subscription Agreement, is legally competent to execute this Subscription
Agreement, and does not intend to change residence to another jurisdiction;
(b) the undersigned, if an entity, is duly authorized to execute this
Subscription Agreement and this Subscription Agreement, when executed and
delivered by the undersigned, will constitute a legal, valid and binding
obligation enforceable against he undersigned in accordance with its terms; and
the execution, delivery and performance of this Subscription Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all requisite corporate or other necessary action on the part of the
undersigned;
(c) the Shares subscribed for hereby are being acquired by the
undersigned for investment purposes only, for the account of the undersigned and
not with the view to any resale or distribution thereof, and the undersigned is
not participating, directly or indirectly, in a distribution of such Shares and
will not take, or cause to be taken, any action that would cause the undersigned
to be deemed an "underwriter" of such Shares as defined in Section 2(11) of the
Act;
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(d) the undersigned has had access to all materials, books, records,
documents and information relating to the Company which the undersigned has
requested, including (i) the Executive Summary, (ii) the SEC Filings, and (iii)
the Company's Proxy Statement dated April 23, 1998 (the "Proxy Statement"), and
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has been provided the opportunity to verify the accuracy of the information
contained therein;
(e) the undersigned acknowledges and understands that investment in
the Share involves a high degree of risk, including without limitation, the
risks set forth in the Executive Summary and in the SEC Filings under the
caption "Factors Affecting Future Results" in "Management's Discussion and
Analysis of Financial Condition and Results of Operations";
(f) the undersigned acknowledges that the undersigned has been offered
an opportunity to ask questions of, and receive answers from, officers of the
Company concerning all material aspects of the Company and its business and the
Offering, and that any request for such information has been fully complied with
to the extent the Company possesses such information or can acquire it without
unreasonable effort or expense;
(g) the undersigned has such knowledge and experience in financial and
business matters that the undersigned is capable of evaluating the merits and
risks of an investment in the Company and can afford a complete loss of his
investment in the Company;
(h) The undersigned has, in connection with its decision to purchase
the Shares, relied solely upon this Agreement, the Executive Summary, SEC
Filings and the Proxy Statement.
(i) The undersigned represents and warrants to and covenants with the
Company that the undersigned has not engaged and will not engage in any sales of
the Shares, including a short sale covered by the Shares, prior to the
effectiveness of the Resale Registration Statement (as defined in Section 6),
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except to the extent that any such short sale is fully covered by shares of
Common Stock of the Company other than the Shares, or such sale is otherwise
exempt from registration under the Act.
(j) the undersigned recognizes that no governmental agency has passed
upon the issuance of the Shares or made any finding or determination as to the
fairness of this Offering;
(k) if the undersigned is purchasing the Shares subscribed for hereby
in a representative or fiduciary capacity, the representations and warranties
contained herein shall be deemed to have been made on behalf of the person or
persons for whom such Shares are being purchased;
(l) the undersigned has not entered into any agreement to pay
commissions to any persons with respect to the purchase or sale of the Shares,
except commissions for which the undersigned will be responsible;
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(m) the undersigned acknowledges that the Company will pay to Sunrise
Securities Corp. a commission with respect to the sale of the Shares by the
Company to the undersigned (except to the extent otherwise provided in Annex A)
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of (i) 8.0% of the aggregate Purchase Price, payable at the option of Sunrise
Securities Corp. in cash or shares of Common Stock valued at $2.00 per share,
and (ii) five-year warrants to purchase, at a purchase price of $2.20 per share,
that number of shares of Common Stock equal to 10% of the number of Shares being
purchased by the undersigned hereunder; and
(n) the undersigned is an "Accredited Investor" as that term is
defined in Section 501(a) of Regulation D promulgated under the Act.
Specifically the undersigned is (check appropriate item(s)):
[ ] (i) a bank as defined in Section 3(a)(2) of the Act, or a
savings and loan association or other institution as defined in Section
3(a)(5)(A) of the Act whether acting in its individual or fiduciary capacity; a
broker or dealer registered pursuant to Section 15 of the Exchange Act; an
insurance company as defined in Section 2(13) of the Act; an investment company
registered under the Investment Company Act of 1940 or a business development
company as defined in Section 2(a)(48) of that Act; a Small Business Investment
Company licensed by the U.S. Small Business Administration under Section 301(c)
of (d) of the Small Business Investment Act of 1958; a plan established and
maintained by a state, its political subdivisions, for the benefit of its
employees, if such plan has total assets in excess of $5,000,000, an employee
benefit plan within the meaning of the Employment Retirement Income Security Act
of 1974, if the investment decision is made by a plan fiduciary, as defined in
Section 3(21) of such Act, which is either a bank, savings and loan association,
insurance company, or registered investment advisor, or if the employee benefit
plan has total assets in excess of $5,000,000, or if a self-directed plan, with
investment decisions made solely by persons that are Accredited Investors;
[ ] (ii) a private business development company as defined in
Section 202(a)(22) of the investment Advisers Act of 1940;
[ ] (iii) an organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended, corporation, Massachusetts or
similar business trust, or partnership, not formed for the specific purpose
of acquiring Shares, with total assets in excess of $5,000,000;
[ ] (iv) a director or executive officer of the Company;
[ ] (v) a natural person whose individual net worth, or joint
net worth with that person's spouse, at the time of his or her purchase exceeds
$1,00,000;
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[ ] (vi) a natural person who had an individual income (not
including his or her spouse's income) in excess of $200,000 in 1996 and 1997 or
joint income with his or her spouse in excess of $300,000 in each of those years
and has a reasonable expectation of reaching such income level in 1998;
[ ] (vii) a trust, with total assets in excess of
$5,000,000, not formed for the specific purpose of acquiring Shares, whose
purchase is directed by a person having such knowledge and experience in
financial and business matters that he or she is capable of evaluating the
merits and risks entailed in the purchase of Shares; or
[ ] (viii) an entity in which all of the equity owners are
Accredited Investors. (If this alternative is checked, the undersigned must
identify each equity owner and provide statements signed by each demonstrating
how each is qualified as an Accredited Investor.)
6. Registration of Shares under the Act.
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(a) By its acceptance hereof, the Company agrees that it shall, at its
expense, (i) not later than 30 business days after the final closing of the
Offering (the "Filing Deadline") file a registration statement or amend an
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existing effective registration statement (in either case, the "Resale
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Registration Statement") with the Commission to register under the Act the
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resale by the undersigned of the Shares, (ii) use its reasonable best efforts to
cause the Resale Registration Statement to become effective under the Act as
promptly as practicable, (iii) after the Resale Registration Statement is
declared effective under the Act, furnish the undersigned with such number of
copies of the final prospectus included in the Resale Registration Statement
(the "Prospectus") as the undersigned may reasonably request to facilitate the
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resale of Shares, and (iv) use its reasonable best efforts to cause such
Registration Statement to remain effective until such time as the undersigned
becomes eligible to resell the Shares pursuant to Rule 144 under the Act.
(b) The Company will prepare and file with the Commission such
amendments and Prospectus supplements, including post-effective amendments to
the Resale Registration Statement, as the Company determines may be necessary or
appropriate, and use its reasonable best efforts to have such post-effective
amendments declared effective as promptly as practicable; cause the Prospectus
to be supplemented by any Prospectus supplement, and as so supplemented, to be
filed with the Commission; and promptly notify the undersigned when a
Prospectus, and any Prospectus supplement or post-effective amendment must be
filed or has been filed (including any filing in response to a Sale Notice) and,
with respect to any post-effective amendment, when the same has become
effective.
(c) In connection with the Resale Registration Statement, the
undersigned shall furnish the Company such information as the Company shall
reasonably request.
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(d) The Company acknowledges that the undersigned and other purchasers
of Shares will suffer damages if the Company fails to fulfill its obligation to
file a Resale Registration Statement by the Filing Deadline, and that it would
not be feasible to ascertain the extent of such damages. Accordingly, in the
event that the Company shall fail to file a timely Resale Registration Statement
in accordance with Section 6(a)(i) above, the Company shall issue to the
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undersigned, as compensation therefor, shares of Common Stock equal to (i) 1% of
the Shares for each 30 days or part thereof the filing is delayed until 60 days
after the Filing Deadline, and (ii) 2% of the Shares for each 30 days or part
thereof the filing is delayed from 60 days after the Filing Deadline; provided,
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however, that the Company shall not be required to issue such shares if such
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failure has been caused by (a) the failure of the undersigned to provide
information in connection with the Resale Registration Statement in accordance
with Section 6(d) above, or (b) the occurrence of a material event not in the
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ordinary course which may delay the filing of the Resale Registration Statement
pending public disclosure, which disclosure shall be promptly made by the
Company.
(e) At any time the Company may refuse to permit the undersigned to
resell any Shares pursuant to the Resale Registration Statement; provided,
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however, that in order to exercise this right, the Company must deliver a
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certificate in writing to the undersigned to the effect that withdrawal of such
Resale Registration Statement is necessary because a sale pursuant to the Resale
Registration Statement in its then-current form could constitute a violation of
the federal securities laws. In such an event, the Company shall use its best
efforts to amend the Resale Registration Statement if necessary and take all
other actions necessary to allow such sale under the federal securities laws,
and shall notify the undersigned promptly after it has determined that such sale
has become permissible under the federal securities laws. The undersigned
hereby covenants and agrees that it will not sell any Shares pursuant to the
Resale Registration Statement during the periods the Resale Registration
Statement is withdrawn as set forth in this Section 6(e).
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7. Indemnification.
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(a) The undersigned understands the meaning and legal consequences of
the representations and warranties made by the undersigned in this Subscription
Agreement, and agrees to indemnify and hold harmless the Company and each of the
Company's directors, officers, stockholders, employees, counsel, agents,
successors and assignees from and against any and all loss, damage, liability or
expenses (including, without limitation, attorneys' fees), as and when incurred,
due to or arising out of (in such case in whole or in part) any breach of any
representation or warranty made by the undersigned set forth herein or in any
other agreement or other document furnished by the undersigned to any of the
foregoing in connection with the Offering, any failure by the undersigned to
fulfill any of its covenants or agreements set forth herein, or arising out of
the resale or distribution by the undersigned of the Shares or any portion
thereof in violation of the Act or any applicable foreign or state securities or
"blue sky" law.
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(b) The Company understands the meaning and legal consequences of the
representations and warranties made by it in this Subscription Agreement, and
agrees to indemnify and hold harmless the undersigned and each of the
undersigned's directors, officers, stockholders, employees, counsel, agents,
successors and assigns from and against any and all loss, damage, liability or
expense (including, without imitation, attorneys' fees), as and when incurred,
due to or arising out of (in each case in whole or in part) any breach of any
representation or warranty made by the Company set forth herein, or any failure
by the Company to fulfill any of its covenants or agreements set forth herein.
(c) To the extent permitted by law, the Company will indemnify and
hold harmless each holder of Shares included in the Resale Registration
Statement (a "Holder"), the directors, if any, of such Holder, the officers, if
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any, of such Holder, and each person, if any, who controls such Holder within
the meaning of the Act or the Exchange Act, against any losses, claims, damages,
expenses or liabilities to which any of them may become subject, under the Act,
the Exchange Act or otherwise, insofar as such losses, claims, damages, expenses
or liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any of the following statements,
omissions or violation (collectively, a "Violation"): (i) any untrue statement
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or alleged untrue statement of a material fact contained in the Resale
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, in light of the circumstances in
which they were made, not misleading, or (iii) any violation or alleged
violation by the Company of the Act, the Exchange Act, any state securities law
or any rule or regulation promulgated under the Act, the Exchange Act or any
state securities law; and the Company will reimburse the Holders and each such
controlling person, promptly as such expenses are incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, action or proceeding.
(d) To the extent permitted by law, each Holder, severally and not
jointly, will indemnify and hold harmless, to the same extent and in the same
manner set forth in Section 7(c), the Company, each of its directors and
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officers who have signed the Resale Registration Statement, and each person, if
any, who controls the Company within the meaning of the Act or the Exchange Act,
against any losses, claims, damages or liabilities to which any of them may
become subject, under the Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened in respect thereof) 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 such Holder expressly for use in connection with the Resale
Registration Statement; and such Holder will reimburse such persons for any
legal or other expenses reasonably incurred by any of them in connection with
investigating or defending any such loss, claim, damage, liability or action.
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(e) With respect to the indemnification set forth in Sections 7(c) or
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(d) above, to the extent any indemnification by an indemnifying party is
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prohibited or limited by law, the indemnifying party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be liable
under said Sections 7(c) or (d) to the extent permitted by law; provided that
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(i) no contribution shall be made under circumstances where the maker would not
have been liable for indemnification under the fault standards set forth in said
Sections 7(c) or (d), and (ii) no party guilty of fraudulent misrepresentation
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(within the meaning of Section 11 of the Act) shall be entitled to contribution
from any party who was not guilty of such fraudulent misrepresentation.
8. Further Documents. The undersigned agrees that it will execute such
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other documents as may be necessary or desirable in connection with the
transactions contemplated hereby.
9. Modification. Neither this Subscription Agreement nor any provisions
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hereof shall be waived, modified, discharged or terminated except by an
instrument in writing signed by the party against whom any such waiver,
modification, discharge or termination is sought.
10. Notices. Any notice or other communication required or permitted to
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be given hereunder shall be in writing and shall be mailed by certified mail,
return receipt requested, or by Federal Express, Express Mail or similar
overnight delivery or courier service and delivered against receipt to the
party to whom it is to be given, (i) if to the Company, at the address set forth
on the first page hereof, (ii) if to the undersigned, at its address set forth
on the signature page hereto, or (iii) in either case, to such other address as
the party shall have furnished in writing in accordance with the provisions of
this Section 10. Notice to the estate of any party shall be sufficient if
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addressed to the party as provided in Section 10. Any notice or other
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communication given by certified mail shall be deemed given at the time of
certification thereof, except for a notice changing a party's address which
shall be deemed given at the time of receipt thereof. Any notice given by other
means permitted by this Section 10 shall be deemed given at the time of receipt
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thereof.
11. Counterparts. This Subscription Agreement may be executed through the
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execution of separate signature pages or in any number of counterparts, and each
such counterpart shall, for all purposes, constitute one agreement binding on
all parties, notwithstanding that all parties are not signatories to the same
counterpart.
12. Entire Agreement. This Subscription Agreement contains the entire
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agreement of the parties with respect to the subject matter hereof and there are
no representations, covenants or other agreements except as stated or referred
to herein.
13. Severability. Each provision of this Subscription Agreements is
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intended to be severable from every other provision, and the invalidity or
illegality of any portion hereof shall not affect the validity or legality of
the remainder hereof.
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14. Assignability. This Subscription Agreement is not transferable or
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assignable by the undersigned.
15. Applicable Law. This Subscription Agreement has been negotiated
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and consummated in the State of New York and shall be governed by and construed
in accordance with the laws of the State of New York, without giving effect to
conflict of laws.
16. Choice of Jurisdiction. Any action or proceeding arising directly,
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indirectly or otherwise, in connection with, out of or from this Subscription
Agreement, any breach hereof or any transaction covered hereby shall be resolved
within New York, New York. Accordingly, the parties consent and submit to the
jurisdiction of the United States federal and state courts located within New
York, New York.
17. Taxpayer Identification Number. The undersigned verifies under
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penalties of perjury that any Taxpayer Identification Number or Social Security
Number shown on the signature page hereto is true, correct and complete.
18. Pronouns. Any personal pronoun shall be considered to mean the
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corresponding masculine, feminine or neuter personal pronoun, as the context
requires.
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IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement this day of , 199 .
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Number of Shares Subscribed for: Shares
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INDIVIDUAL SUBSCRIBER: ENTITY SUBSCRIBER:
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(Signature of Subscriber) (Print Name of Subscriber)
By:
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(Typed or Printed Name) Name:
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Title:
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(Residence Address) (Address)
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(City, State and Zip Code) (City, State and Zip Code)
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(Telephone Number) (Telephone Number)
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(Telecopier Number) (Telecopier Number)
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(Tax I.D. or Social Security Number) (Tax I.D. or Social Security Number)
ACCEPTED:
CARDIMA, INC. For entities desiring that certificates
for Shares be delivered to an address
By: other than that set forth above, set
---------------------------------- for the delivery address:
Name:
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Title:
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Dated: December , 199 -------------------------------------
----- -- (Address)
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(City, State and Zip Code)
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