EXHIBIT 99.1
Name: _________________________
SELLING STOCKHOLDER AGREEMENT
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AGREEMENT, dated as of October __, 1997 (the "Agreement"), among ABIOMED,
Inc., a Delaware corporation (the "Company"), and each stockholder of the
Company listed on Exhibit A, attached hereto (collectively the "Selling
Stockholders").
W I T N E S S E T H:
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WHEREAS, the Board of Directors of the Company has determined that a public
offering (the "Public Offering") of the Company's Common Stock, $.01 par value
(the "Common Stock"), would be beneficial to the Company and its stockholders
and proposes to issue shares of Common Stock (the "Company Shares") for such
purpose; and
WHEREAS, the Company also has determined that it would be beneficial to the
Company and its stockholders for certain stockholders to have the opportunity to
sell in the Public Offering a portion of the shares of Common Stock held by such
stockholders; and
WHEREAS, the Company has offered such stockholders such opportunity and the
Selling Stockholders propose to accept such offer and sell in the Public
Offering an aggregate of up to _____ shares of Common Stock (the "Stockholder
Shares").
NOW THEREFORE, in consideration of the premises and the mutual and dependent
promises hereinafter set forth and such other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Payment of Expenses.
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(a) The Company shall pay (i) all of the expenses, other than
underwriting discounts, incurred in connection with the Public Offering
(including, but not limited to, all registration, filing and qualification fees,
transfer agent's fees, printing and engraving fees and legal and accounting
fees), and (ii) the Company's pro rata portion of all underwriting discounts
incurred in connection with the Public Offering, determined in accordance with
the number of Company Shares and Stockholder Shares actually sold by each
respective party in the Public Offering.
(b) Each Selling Stockholder shall pay such Selling Stockholder's pro
rata portion of all underwriting discounts incurred in connection with the
Public Offering, determined in accordance with the number of Company Shares and
Stockholder Shares actually sold by each respective party in the Public
Offering.
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SECTION 2. Indemnification; Contribution.
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(a) The Company shall indemnify each of the Selling Stockholders, and
each person (if any) who controls such Selling Stockholder within the meaning of
Section 15 of the Securities Act of 1933, as amended (the "Act"), against all
losses, claims, damages and liabilities and expense (including all reasonable
fees and disbursements of counsel incurred in defending against any such claim,
damage or liability) caused by any untrue statement or alleged untrue statement
of a material fact contained in the registration statement filed or to be filed
with the Securities and Exchange Commission (the "Commission"), in connection
with the Public Offering, as the same may be amended or supplemented from time
to time (the "Registration Statement") or in any prospectus filed with, or
delivered to, the Commission in connection with the Public Offering, or caused
by any omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading; provided, however,
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insofar as such losses, claims, damages, or liabilities are caused by an untrue
statement of a material fact contained in, or any material fact omitted from,
information relating to a Selling Stockholder furnished in writing to the
Company by such Selling Stockholder, in his capacity as Selling Stockholder, for
use in the Registration Statement or any amendment or supplement thereto, or any
such prospectus, then the Company shall have no obligation hereunder to
indemnify the Selling Stockholder furnishing such information. For purposes
hereof, such information shall be deemed to be the information provided to the
Company by such Selling Stockholder pursuant to such Selling Stockholder's
Questionnaire for Directors, Officers and Certain other Persons.
(b) Each Selling Stockholder shall indemnify each of the Company and
the other Selling Stockholders, and each person (if any) who controls the
Company or such other Selling Stockholder within the meaning of Section 15 of
the Act against all losses, claims, damages and liabilities and expense
(including all reasonable fees and disbursements of counsel incurred in
defending against any such claim, damage or liability) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or in any prospectus filed with, or delivered to, the
Commission in connection with the Public Offering, or caused by any omission or
alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances in
which they were made, not misleading, but only with respect to information
relating to such Selling Stockholder furnished in writing by or on behalf of
such Selling Stockholder expressly for use in the Registration Statement or any
amendment or supplement thereto, or any such prospectus, provided, however, no
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Selling Stockholder shall be liable in an amount that exceeds the aggregate
initial public offering price of the Stockholder Shares sold by the Selling
Stockholder, net of the underwriting discount.
(c) The indemnity agreements of the Company and the Selling
Stockholders contained in this Section 2 shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of any
indemnified party and shall survive delivery of shares of Common Stock pursuant
to the Public Offering.
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(d) In order to provide for just and equitable contribution in
circumstances in which indemnification provided for in paragraph (a) of this
Section 2 is unavailable, the Company and each of the Selling Stockholders shall
contribute to the aggregate losses, claims, damages, liabilities and expenses
(including all reasonable fees and disbursements of counsel incurred in
defending against any claim, damage, or liability), to which one or more of the
Selling Stockholders may be subject in such proportion as is appropriate to
reflect the relevant fault of the Company and the respective Selling
Stockholders in connection with the statements or omissions that resulted in
such losses, claims, damages, liabilities and expenses as well as any other
relevant equitable considerations; provided, however, that:
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(i) in any case where any Selling Stockholder is seeking
contribution hereunder such Selling Stockholder shall be entitled to
contribution from the remaining Selling Stockholders pursuant to this Agreement
only after first seeking contribution from the Company;
(ii) no Selling Stockholder shall in any case be required to
contribute or make any payments under this paragraph (d) which in the aggregate
exceed his pro rata share of such losses, claims, damages, liabilities and
expenses determined in accordance with the total number of Company Shares and
Stockholder Shares sold by each respective party hereto provided, however, that,
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except as set forth in subparagraph (iii) of this paragraph (d), no Selling
Stockholder shall be liable to contribute an amount that exceeds the aggregate
public offering price of the Stockholder Shares sold by the Selling Stockholder,
net of the underwriting discount;
(iii) in the event the Company or any Selling Stockholder
defaults on its obligation to make any contribution pursuant to this paragraph
(d), the amount by which each of the remaining parties is obligated to
contribute hereunder shall be increased in accordance with the relation of the
number of shares of Common Stock being sold by each such remaining party to the
aggregate number of shares of Common Stock being sold by all such remaining
parties;
(iv) neither the Company nor any Selling Stockholder will be
required to make any contribution to another Selling Stockholder with respect to
matters for which the other Selling Stockholder would not otherwise be entitled
to be indemnified under paragraph (a) of this Section 2 had such indemnification
been available; and
(v) for purposes of this paragraph (d), each person, if any,
who controls a Selling Stockholder within the meaning of Section 15 of the Act,
and each director, officer or partner (if any) of such Selling Stockholder,
shall have the same rights to contribution under this Agreement as such Selling
Stockholder.
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SECTION 3. Governing Law.
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This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware.
SECTION 4. Invalidity.
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If any provision of this Agreement shall be determined by a court of
competent jurisdiction to be invalid or unenforceable, such determination shall
not affect the remaining provisions of the Agreement, all of which shall remain
in full force and effect.
SECTION 5. Counterparts.
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This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which together shall be deemed to
be one and the same instrument.
SECTION 6. Notices.
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Any notice given pursuant to this Agreement shall be sent by certified mail,
return receipt requested, to the address set forth under each party's name on
the signature page of this Agreement, or to such other address as may be
designated by notice given to each party pursuant to the provisions hereof.
SECTION 7. Headings.
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The headings contained in this Agreement are for descriptive purposes only
and shall not be given substantive effect.
[Signature Page to Follow]
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IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
under seal as of the day and year first written above.
ABIOMED, INC., a Delaware corporation
By:
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Xxxx X. Xxxxx, Vice President - Finance
Chief Financial Officer, Treasurer and
Assistant Secretary
SELLING STOCKHOLDER
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Address:
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EXHIBIT A
SELLING STOCKHOLDERS
Xxxxx X. Xxxxxxxx
Xxxxxx T.V. Kung
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