EXHIBIT 4.1
STOCK PURCHASE AGREEMENT
Conceptus, Inc.
0000 Xxxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
Ladies & Gentlemen:
The undersigned, _______________________________________ (the "Investor"),
hereby confirms its agreement with you as follows:
1. This Stock Purchase Agreement (the "Agreement") is made effective as of
April 10, 2001 between Conceptus, Inc., a Delaware corporation (the "Company"),
and the Investor.
2. The Company has authorized the issuance and sale of up to 1,645,000
shares (the "Shares") of common stock of the Company, $0.003 par value per share
(the "Common Stock"), subject to adjustment by the Company's Board of Directors,
to certain investors in a private placement (the "Offering").
3. The Company and the Investor agree that the Investor will purchase from
the Company and the Company will issue and sell to the Investor
_________________ Shares, for a purchase price of $7.00 per share, or an
aggregate purchase price of $________________, pursuant to the Terms and
Conditions for Purchase of Shares attached hereto as Annex I and incorporated
herein by reference as if fully set forth herein. Unless otherwise requested by
the Investor, certificates representing the Shares purchased by the Investor
will be registered in the Investor's name and address as set forth below.
4. The Investor represents that, except as set forth below, (a) it has had
no position, office or other material relationship within the past three years
with the Company or its affiliates, (b) neither it, nor any group of which it is
a member or to which it is related, beneficially owns (including the right to
acquire or vote) any securities of the Company and (c) it has no direct or
indirect affiliation or association with any NASD member. Exceptions:
____________________________________________________________________
____________________________________________________________________.
(If no exceptions, write "none." If left blank, response will be deemed to be
"none.")
Please confirm that the foregoing correctly sets forth the agreement
between us by signing in the space provided below for that purpose.
_____________________________________
"INVESTOR"
By:______________________________________
Print Name:______________________________
Title:___________________________________
Address:_________________________________
Tax ID No.:______________________________
Contact name:____________________________
Telephone:_______________________________
Name in which shares should be registered
(if different):__________________________
AGREED AND ACCEPTED:
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CONCEPTUS, INC.
_______________________________
By: Xxxxxx Xxxxxx
President and CEO
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
1. Authorization and 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
1,645,000 Shares. The Company reserves the right to increase or decrease this
number.
2. Agreement to Sell and Purchase the Shares; Subscription Date.
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2.1 At the Closing (as defined in Section 3), the Company will sell
to the Investor, and the Investor will purchase from the Company, upon the terms
and conditions hereinafter set forth, the number of Shares set forth on the
signature page hereto at the purchase price set forth on such signature page.
2.2 The Company is entering into this same form of Stock Purchase
Agreement with certain other investors (the "Other Investors") effective as of
the date hereof (the "Subscription Date") and expects to complete sales of
Shares to them. (The Investor and the Other Investors are hereinafter sometimes
collectively referred to as the "Investors," and this Agreement and the Stock
Purchase Agreements executed by the Other Investors are hereinafter sometimes
collectively referred to as the "Agreements.")
3. Delivery of the Shares at Closing. The completion of the purchase and
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sale of the Shares (the "Closing") shall occur (the "Closing Date") on the third
business day after the Subscription Date (or upon such earlier date as the
Company and the Investors shall agree), at the offices of the Company's counsel.
At the Closing, the Company shall deliver to the Investor one or more stock
certificates representing the number of Shares set forth on the signature page
hereto, each such certificate to be registered in the name of the Investor or,
if so indicated on the signature page hereto, in the name of a nominee
designated by the Investor. The Company's obligation to issue the Shares to the
Investor shall be subject to the following conditions, any one or more of which
may be waived by the Company: (a) receipt by the Company of a certified or
official bank check or wire transfer of funds in the full amount of the purchase
price for the Shares being purchased hereunder as set forth on the signature
page hereto; (b) completion of the purchases and sales under the Agreements with
the Other Investors; and (c) the accuracy of the representations and warranties
made by the Investors and the fulfillment of those undertakings of the Investors
to be fulfilled prior to the Closing. The Investor's obligation to purchase the
Shares shall be subject to the following conditions, any one or more of which
may be waived by the Investor: (a) receipt by the Investor of one or more stock
certificates representing the number of Shares set forth on the signature page
hereto; (b) receipt by the Investor of an opinion letter, dated as of the
Closing Date, from Xxxxxx & Xxxxxxx, counsel to the Company; (c) the accuracy of
the representations and warranties made by the Company and the fulfillment of
those undertakings of the Company to be fulfilled prior to the Closing; (d) on
the Closing Date, no legal action, suit or proceeding shall be pending or
threatened which seeks to restrain or prohibit the transactions contemplated by
the Agreements; (e) the Company shall have delivered to the Investors its
certificate, dated the Closing Date, duly executed by its Chief Executive
Officer to the effect set forth in clause (c) above; (f) the receipt by the
Investors of a certificate, dated the Closing Date, of the Secretary or
Assistant Secretary of the
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Company certifying (i) the certificate of incorporation and bylaws of the
Company as in effect on the Closing Date, (ii) all resolutions of the board of
directors (and committees thereof) of the Company relating to the Agreements and
the transactions contemplated thereby and (iii) the incumbency of all officers
of the Company executing the Agreements and any other agreement or document
contemplated thereby.
4. Representations, Warranties and Covenants of the Company. The Company
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hereby represents and warrants to, and covenants with, the Investor, as follows:
4.1 Organization. Each of the Company and its Subsidiaries is duly
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organized and validly existing in good standing under the laws of the
jurisdiction of its organization. Each of the Company and its Subsidiaries (as
defined in Rule 405 under the Securities Act of 1933, as amended (the
"Securities Act")) has full power and authority to own, operate and occupy its
properties and to conduct its business as presently conducted and is registered
or qualified to do business and in good standing in each jurisdiction in which
it owns or leases property or transacts business and where the failure to be so
qualified would have a material adverse effect upon the financial condition or
business, operations, assets or prospects of the Company and its Subsidiaries,
considered as one enterprise, and no proceeding has been instituted in any such
jurisdiction, revoking, limiting or curtailing, or seeking to revoke, limit or
curtail, such power and authority or qualification.
4.2 Due Authorization. The Company has all requisite power and
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authority to execute, deliver and perform its obligations under the Agreements,
and the Agreements have been duly authorized and validly executed and delivered
by the Company and constitute legal, valid and binding agreements of the Company
enforceable against the Company in accordance with their terms, except as rights
to indemnity and contribution may be limited by state or federal securities laws
or the public policy underlying such laws, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
4.3 Non-Contravention. The execution and delivery of the Agreements,
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the issuance and sale of the Shares to be sold by the Company under the
Agreements, the fulfillment of the terms of the Agreements and the consummation
of the transactions contemplated thereby will not (A) conflict with or
constitute a violation of, or default (with or without the giving of notice or
the passage of time or both) under, (i) any material bond, debenture, note or
other evidence of indebtedness, or under any material lease, indenture,
mortgage, deed of trust, loan agreement, joint venture or other agreement or
instrument to which the Company or any Subsidiary is a party or by which it or
any of its Subsidiaries or their respective properties are bound, (ii) the
charter, by-laws or other organizational documents of the Company or any
Subsidiary, or (iii) any law, administrative regulation, ordinance or order of
any court or governmental agency, arbitration panel or authority applicable to
the Company or any Subsidiary or their respective properties, or (B) result in
the creation or imposition of any lien, encumbrance, claim, security interest or
restriction whatsoever upon any of the material properties or assets of the
Company or any Subsidiary or an acceleration of indebtedness pursuant to any
obligation, agreement or condition contained in any material bond, debenture,
note or any other evidence of indebtedness or any material indenture, mortgage,
deed of
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trust or any other agreement or instrument to which the Company or any
Subsidiary is a party or by which any of them is bound or to which any of the
property or assets of the Company or any Subsidiary is subject. No consent,
approval, authorization or other order of, or registration, qualification or
filing with, any regulatory body, administrative agency, self-regulatory
organization, stock exchange or market, or other governmental body in the United
States is required for the execution and delivery of the Agreements and the
valid issuance and sale of the Shares to be sold pursuant to the Agreements,
other than such as have been made or obtained, and except for any securities
filings required to be made under federal or state securities laws.
4.4 Reporting Status. The Company has filed in a timely manner all
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documents that the Company was required to file under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), during the 12 months preceding the
date of this Agreement. The following documents complied in all material
respects with the SEC's requirements as of their respective filing dates, and
the information contained therein as of the date thereof did not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein in light of the
circumstances under where they were made not misleading, except to the extent
that information contained in any such document has been revised or superseded
by a later filed SEC Document (as defined below):
(i) The Company's Annual Report on Form 10-K for the year ended
December 31, 2000, including the exhibits thereto (the "Form 10-
K"); and
(ii) all other documents, including the exhibits thereto, filed by the
Company with the SEC since December 31, 2000 pursuant to the
reporting requirements of the Exchange Act (together with the
Form 10-K, the "SEC Documents").
The SEC Documents (together with press releases and other documents
made publicly available by the Company), when taken together as a whole, as of
the date hereof, do not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they were made not
misleading.
4.5 Capitalization. As of the date hereof, the authorized capital
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stock of the Company consists of 30,000,000 shares of Common Stock and 3,000,000
shares of preferred stock, par value $.003 per share, of the Company (the
"Preferred Stock"). As of December 31, 2000, there were approximately (i)
11,701,733 shares of Common Stock issued and outstanding, (ii) no shares of
Preferred Stock issued and outstanding, (iii) 2,545,150 shares of Common Stock
reserved for issuance upon exercise of outstanding stock options issued by the
Company to current or former employees, consultants and directors of the Company
and its Subsidiaries, (iv) an aggregate of 200,000 shares of Common Stock
reserved for issuance pursuant to the Company's 1995 Employee Stock Purchase
Plan, a portion of which are issued and outstanding, (v) 25,000 shares of Common
Stock reserved for issuance upon exercise of a warrant issued by the Company to
a landlord and (vi) no other shares or options, warrants or other rights to
acquire shares of capital stock of the Company or securities convertible into
capital stock of the Company. The Company is, directly or indirectly, the
registered and beneficial owner of all of the outstanding shares of capital
stock of each of its Subsidiaries. All outstanding shares of Common Stock are
duly authorized, validly issued,
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fully paid and nonassessable, free from any liens or any other encumbrances
created by the Company with respect to the issuance and delivery thereof and not
subject to preemptive rights. Other than as disclosed in the SEC Documents,
there are no outstanding rights, options, warrants, preemptive rights, rights of
first refusal agreements, commitments or similar rights for the purchase or
acquisition from the Company of any securities of the Company. The Shares to be
sold pursuant to the Agreements have been duly authorized, and when issued and
paid for in accordance with the terms of the Agreements will be duly and validly
issued, fully paid and nonassessable, free and clear of all pledges, liens,
encumbrances and other restrictions (other than those arising under federal or
state securities laws as a result of the private placement of the Shares to the
Investors). No preemptive right, co-sale right, right of first refusal or other
similar right exists with respect to the Shares or the issuance and sale
thereof. No further approval or authorization of any stockholder, the Board of
Directors of the Company or others is required for the issuance and sale of the
Shares. Except as set forth in the SEC Documents, no holder of any of the
securities of the Company or any of its Subsidiaries has any rights ("demand,"
"piggyback" or otherwise) to have such securities registered by reason of the
intention to file, filing or effectiveness of a Registration Statement (as
defined in Section 7.1 hereof).
4.6 Legal Proceedings. There is no material legal or governmental
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proceeding pending or, to the knowledge of the Company, threatened to which the
Company or any Subsidiary or any officer or director of the Company or any
Subsidiary in their capacity as such officer or director is or may be a party or
of which the business or property of the Company or any Subsidiary is subject
that is not disclosed in the SEC Documents. There is no action, suit,
proceeding, inquiry or investigation before or by any court, public board or
body (including, without limitation, the SEC) pending or, to the knowledge of
the Company, threatened against or affecting the Company or any of its
Subsidiaries wherein an unfavorable decision, ruling or finding could adversely
affect the validity or enforceability of, or the authority or ability of the
Company to perform its obligations under the Agreements.
4.7 No Violations. Neither the Company nor any Subsidiary is in
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violation of its charter, bylaws, or other organizational document, or in
violation of any law, administrative regulation, ordinance or order of any court
or governmental agency, arbitration panel or authority applicable to the Company
or any Subsidiary, which violation, individually or in the aggregate, would be
reasonably likely to have a material adverse effect on the business, operations,
assets or prospects or financial condition of the Company and its Subsidiaries,
considered as one enterprise, or is in default (and there exists no condition
which, with or without the passage of time or giving of notice or both, would
constitute a default) in any material respect in the performance of any bond,
debenture, note or any other evidence of indebtedness in any indenture,
mortgage, deed of trust or any other material agreement or instrument to which
the Company or any Subsidiary is a party or by which the Company or any
Subsidiary is bound or by which the properties of the Company or any Subsidiary
are bound, which would be reasonably likely to have a material adverse effect
upon the business, operations, assets or prospects or financial condition of the
Company and its Subsidiaries, considered as one enterprise.
4.8 Governmental Permits, Etc. With the exception of the matters
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which are dealt with separately in Section 4.1, 4.4, 4.12 and 4.13, each of the
Company and its Subsidiaries has all necessary franchises, licenses,
certificates and other authorizations from any foreign, federal, state
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or local government or governmental agency, department, or body that are
currently necessary for the operation of the business of the Company and its
Subsidiaries as currently conducted, except where the failure to currently
possess could not reasonably be expected to have a material adverse effect upon
the business, operations, assets or prospects or financial condition of the
Company and its Subsidiaries, considered as one enterprise.
4.9 Intellectual Property. Each of the Company and its Subsidiaries
---------------------
owns or possesses sufficient rights to use all patents, patent rights,
trademarks, copyrights, licenses, inventions, trade secrets, trade names and
know-how (collectively, "Intellectual Property") that are necessary for the
conduct of its business as now conducted except where the failure to currently
own or possess would not have a material adverse effect on the financial
condition or business of the Company and its Subsidiaries considered as one
enterprise. Except as set forth in the SEC Documents, (i) neither the Company
nor any of its Subsidiaries has received any notice of, or has any knowledge of,
any infringement of asserted rights of a third party with respect to any
Intellectual Property that, individually or in the aggregate, would have a
material adverse effect on the financial condition or business, operations,
assets or prospects of the Company and its Subsidiaries considered as one
enterprise and (ii) neither the Company nor any of its Subsidiaries has received
any notice of any infringement rights by a third party with respect to any
Intellectual Property that, individually or in the aggregate, would have a
material adverse effect upon the business, operations, assets or prospects or
financial condition of the Company and its Subsidiaries, considered as one
enterprise.
4.10 Financial Statements. The financial statements of the Company
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and the related notes thereto included in the SEC Documents present fairly, in
accordance with generally accepted accounting principles, the financial position
of the Company and its Subsidiaries as of the dates indicated, and the results
of its operations and cash flows for the periods therein specified. Such
financial statements (including the related notes) have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods therein specified, except as set forth in the SEC
Documents and subject in the case of unaudited financial statements, to normal
year-end audit adjustments.
4.11 No Material Adverse Change. Except as disclosed in the SEC
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Documents, since December 31, 2000 there has not been (i) any material adverse
change in the financial condition, earnings or prospects of the Company and its
Subsidiaries considered as one enterprise nor has any material adverse event
occurred to the Company or its Subsidiaries, (ii) any material adverse event
affecting the Company or any of its Subsidiaries, (iii) any obligation, direct
or contingent, that is material to the Company and its Subsidiaries considered
as one enterprise, incurred by the Company, except obligations incurred in the
ordinary course of business, (iv) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company or any of its
Subsidiaries, or (v) any loss or damage (whether or not insured) to the physical
property of the Company or any of its Subsidiaries which has been sustained
which has a material adverse effect on the condition (financial or otherwise),
earnings, operations, business or business prospects of the Company and its
Subsidiaries considered as one enterprise. Except as disclosed in the SEC
Documents, neither the Company nor any of its Subsidiaries has (i) sold,
assigned, transferred, abandoned, mortgaged, pledged or subjected to lien any of
its material properties, tangible or intangible, or rights under any material
contract, permit, license, franchise or other agreement or
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(ii) waived or cancelled any indebtedness or other obligations owed to the
Company or any such Subsidiary.
4.12 NASDAQ Listing. The Company's Common Stock is registered
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pursuant to Section 12(g) of the Exchange Act and is listed on The Nasdaq Stock
Market, Inc. National Market (the "Nasdaq National Market"), and the Company has
taken no action designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or de-listing the Common
Stock from the Nasdaq National Market, nor to the Company's knowledge is the
National Association of Securities Dealers, Inc. ("NASD") currently
contemplating terminating such listing. The Company and the Common Stock meet
the criteria for continued listing and trading on the Nasdaq National Market.
4.13 Listing of the Shares. The Company shall comply with all
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requirements of the National Association of Securities Dealers, Inc. with
respect to the issuance of the Shares and the listing thereof on the Nasdaq
National Market. In furtherance thereof, the Company shall use its best efforts
to take such actions as may be necessary and as soon as practicable and in no
event later than 20 days after the Closing Date to file with the Nasdaq National
Market an application or other document required by the Nasdaq National Market
and pay all applicable fees for the listing of the Shares with the Nasdaq
National Market and shall provide evidence of such filing to the Investors. The
Company knows of no reason why the Shares will not be eligible for listing on
the Nasdaq National Market.
4.14 No Manipulation of Stock. The Company has not taken and will
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not, in violation of applicable law, take, any action designed to or that might
reasonably be expected to cause or result in stabilization or manipulation of
the price of the Common Stock to facilitate the sale or resale of the Shares.
4.15 S-3 Status. The Company meets the requirements for the use of
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Form S-3 for the registration of the resale of the Shares by the Investors and
will use its best efforts to maintain S-3 status with the SEC during the
Registration Period (as defined in Section 7.1(c)).
4.16 Insurance. The Company maintains and will continue to maintain
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insurance against loss or damage by fire or other casualty and such other
insurance, including, but not limited to, product liability insurance, in such
amounts and covering such risks as is reasonably adequate consistent with
industry practice for the conduct of its business and the value of its
properties, all of which insurance is in full force and effect.
4.17 Tax Matters. The Company has filed all material federal, state
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and local income and franchise and other tax returns required to be filed and
has paid all taxes due in accordance therewith, and no tax deficiency has been
determined adversely to the Company which has had (nor does the Company have any
knowledge of any tax deficiency which, if determined adversely to the Company,
might have) a material adverse effect on the condition (financial or otherwise),
earnings, operations, business or prospects of the Company and its Subsidiaries
considered as one enterprise .
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4.18 Investment Company. The Company is not an "investment company"
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within the meaning of such term under the Investment Company Act of 1940 and the
rules and regulations of the SEC thereunder.
4.19 No Registration. Assuming the accuracy of the representations
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and warranties made by, and compliance with the covenants of, the Investors in
Section 5 hereof, no registration of the Shares under the Securities Act is
required in connection with the offer and sale of the Shares by the Company to
the Investors as contemplated by the Agreements.
4.20 Internal Accounting Controls. The Company and its Subsidiaries
----------------------------
maintain a system of internal accounting controls sufficient, in the judgment of
the Company's board of directors, to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
4.21 Form D. The Company agrees to file one or more Forms D with
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respect to the Shares on a timely basis as required under Regulation D under the
Securities Act to claim the exemption provided by Rule 506 of Regulation D and
to provide a copy thereof to the Investors and their counsel promptly after such
filing.
4.22 Certain Future Financings and Related Actions.
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(a) The Company will not sell, offer to sell, solicit offers to
buy or otherwise negotiate in respect of any "security" (as defined in the
Securities Act) that is or could be integrated with the sale of the Shares in a
manner that would require the registration of the Shares under the Securities
Act.
(b) The Company shall not offer, sell, contract to sell or issue
(or engage any person to assist the Company in taking any such action) any
equity securities or securities convertible into, exchangeable for or otherwise
entitling the holder to acquire, any Common Stock at a price below the market
price of the Common Stock during the period from the date of this Agreement to
the effective date of the Registration Statement; provided, however, that
nothing in this Section 4.22(b) shall prohibit the Company from issuing
securities (v) to employees, directors, officers, advisors or consultants of the
Company; (w) upon exercise of conversion, exchange, purchase or similar rights
issued, granted or given by the Company and outstanding as of the date of this
Agreement; (x) pursuant to a public offering underwritten on a firm commitment
basis registered under the Securities Act; (y) for the purpose of funding the
acquisition of securities or assets of any entity in a single transaction or a
series of related transactions; or (z) pursuant to a strategic partnership or
alliance agreement, loan agreement, equipment lease or similar commercial
agreement (including licensing and similar arrangements).
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4.23 Use of Proceeds. The Company will use the net proceeds from the
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sale of the Shares for working capital and other general corporate purposes.
4.24 Disclosure. The parties hereto acknowledge that the Investors,
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without limiting the Investors reliance on any of the representations,
warranties, covenants and agreements of the Company contained herein, have
neither requested of nor received from the Company any non-public information
relating to the Company or the business affairs or business prospects of the
Company.
5. Representations, Warranties and Covenants of the Investor.
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5.1 The Investor represents and warrants to, and covenants with, the Company
that: (i) the Investor is an "accredited investor" as defined in Regulation D
under the Securities Act and the Investor has the knowledge, sophistication and
experience necessary to make, and is qualified to make decisions with respect
to, investments in shares presenting an investment decision like that involved
in the purchase of the Shares, including investments in securities issued by the
Company and investments in comparable companies, and has requested, received,
reviewed and considered all information it deemed relevant in making an informed
decision to purchase the Shares; (ii) the Investor is acquiring the number of
Shares set forth on the signature page hereto for its own account for investment
only and with no present intention of distributing any of such Shares in
violation of the Securities Act or any arrangement or understanding with any
other persons regarding the distribution of such Shares; provided, however, that
the foregoing shall not obligate the Investor to hold the Shares for any period
of time or to otherwise restrict the disposition thereof; (iii) the Investor
will not, directly or indirectly, offer, sell, pledge, transfer or otherwise
dispose of (or solicit any offers to buy, purchase or otherwise acquire or take
a pledge of) any of the Shares except in compliance with the Securities Act,
applicable state securities laws and the respective rules and regulations
promulgated thereunder; (iv) the Investor has filled in all requested
information on the signature page hereto for use in preparation of the
Registration Statement and the answers thereto are true and correct as of the
date hereof and will be true and correct as of the Closing Date; (v) the
Investor will notify the Company promptly of any change in any of such
information until such time as the Investor has sold all of its Shares or until
the Company is no longer required to keep the Registration Statement effective;
and (vi) the Investor has, in connection with its decision to purchase the
number of Shares set forth on the signature page hereto, relied only upon the
SEC Documents, other publicly available information and the representations and
warranties of the Company contained herein. The Investor understands that its
acquisition of the Shares has not been registered under the Securities Act or
registered or qualified under any state securities law in reliance on specific
exemptions therefrom, which exemptions may depend upon, among other things, the
bona fide nature of the Investor's investment intent as expressed herein.
5.2 The Investor acknowledges that the Company has represented that
no action has been or will be taken in any jurisdiction outside the United
States by the Company that would permit an offering of the Shares, or possession
or distribution of offering materials in connection with the issue of the
Shares, in any jurisdiction outside the United States where action for that
purpose is required. If the Investor is located or domiciled outside the United
States it agrees to comply with all applicable laws and regulations in each
foreign jurisdiction in which it purchases,
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offers, sells or delivers Shares or has in its possession or distributes any
offering material, in all cases at its own expense.
5.3 The Investor hereby covenants with the Company not to make any
sale of the Shares without complying with the provisions of this Agreement,
including Section 7.2 hereof, provided that the Company complies with its
obligations under Section 7.1, without effectively causing the prospectus
delivery requirement under the Securities Act to be satisfied, if applicable,
and the Investor acknowledges that the certificates evidencing the Shares will
be imprinted with a legend that prohibits their transfer except in accordance
therewith. The Investor acknowledges that there may occasionally be times when
the Company, based on the advice of its counsel, determines that, subject to the
limitations of Section 7.2, it 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 SEC or until the Company has amended or supplemented such Prospectus.
5.4 The Investor further represents and warrants to, and covenants
with, the Company that (i) the Investor has full right, power, authority and
capacity to enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement and (ii) this Agreement
constitutes a valid and binding obligation of the Investor enforceable against
the Investor in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and except as the indemnification and contribution agreements
of the Investors herein may be legally unenforceable.
5.5 Investor will not, prior to the effectiveness of the Registration
Statement, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge
or grant any right with respect to (collectively, a "Disposition"), the Common
Stock of the Company in violation of the Securities Act, nor will Investor
engage in any hedging or other transaction which is designed to or could
reasonably be expected to lead to or result in a Disposition of Common Stock of
the Company by the Investor or any other person or entity in violation of the
Securities Act. Such prohibited hedging or other transactions would include
without limitation effecting any short sale or having in effect any short
position (whether or not such sale or position is against the box and regardless
of when such position was entered into) or any purchase, sale or grant of any
right (including without limitation any put or call option) with respect to the
Common Stock of the Company or with respect to any security (other than a broad-
based market basket or index) that includes, relates to or derives any
significant part of its value from the Common Stock of the Company.
5.6 The Investor understands that nothing in this Agreement or any
other materials presented to the Investor in connection with the purchase and
sale of the Shares constitutes legal, tax or investment advice. The Investor
has consulted such legal, tax and investment advisors as it, in its sole
discretion, has deemed necessary or appropriate in connection with its purchase
of Shares.
10
6. Survival of Representations, Warranties and Agreements.
------------------------------------------------------
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
the Investor herein shall survive the execution of this Agreement, the delivery
to the Investor of the Shares being purchased and the payment therefor.
7. Registration of the Shares; Compliance with the Securities Act.
--------------------------------------------------------------
7.1 Registration Procedures and Expenses. The Company shall:
------------------------------------
(a) subject to receipt of necessary information from the
Investors, use its best efforts to prepare and file with the SEC, within 20 days
after the Closing Date, a registration statement (the "Registration Statement")
on Form S-3 to enable the resale of the Registrable Shares (as defined below) by
the Investors on a delayed or continuous basis under Rule 415 of the Securities
Act. "Registrable Shares" means (a) all shares of Common Stock purchased in the
Offering, (b) Penalty Shares (as defined below), if any, and (c) any shares of
capital stock issued or issuable, from time to time, upon any reclassification,
share combination, share subdivision, stock split, share dividend, merger,
consolidation or similar transaction or event or otherwise as a distribution on,
in exchange for or with respect to any of the foregoing, in each case held at
the relevant time by an Investor;
(b) use its best efforts, subject to receipt of necessary
information from the Investors, to cause the Registration Statement to become
effective within 105 days after the Closing Date;
(c) use its best efforts to prepare and file with the SEC such
amendments and supplements to the Registration Statement and the Prospectus used
in connection therewith and take all such other actions as may be necessary to
keep the Registration Statement current and effective for a period (the
"Registration Period") not exceeding, with respect to each Investor's
Registrable Shares, the earlier of (i) the second anniversary of the Closing
Date, (ii) the date on which the Investor may sell all Shares then held by the
Investor without restriction by the volume limitations of Rule 144(e) of the
Securities Act, and (iii) such time as all Registrable Shares held by such
Investor have been sold (A) pursuant to a registration statement, (B) to or
through a broker or dealer or underwriter in a public distribution or a public
securities transaction, and/or (C) in a transaction exempt from the registration
and prospectus delivery requirements of the Securities Act under Section 4(1)
thereof so that all transfer restrictions and restrictive legends with respect
thereto, if any, are removed upon the consummation of such sale.
(d) promptly furnish to the Investor with respect to the Shares
registered under the Registration Statement such number of copies of the
Registration Statement, Prospectuses and Preliminary Prospectuses in conformity
with the requirements of the Securities Act and such other documents as the
Investor may reasonably request, in order to facilitate the public sale or other
disposition of all or any of the Shares by the Investor;
(e) promptly take such action as may be necessary to qualify, or
obtain, an exemption for the Registrable Shares under such of the state
securities laws of United States jurisdictions as shall be necessary to qualify,
or obtain an exemption for, the sale of the Registrable
11
Shares in states specified in writing by the Investor; provided, however, that
the Company shall not be required to qualify to do business or consent to
service of process in any jurisdiction in which it is not now so qualified or
has not so consented;
(f) bear all expenses in connection with the procedures in
paragraph (a) through (e) of this Section 7.1 and the registration of the Shares
pursuant to the Registration Statement, regardless of whether a Registration
Statement becomes effective, including without limitation: (i) all registration
and filing fees and expenses (including filings made with the NASD); (ii) fees
and expenses of compliance with federal securities and state "blue sky" or
securities laws; (iii) expenses of printing (including printing certificates for
the Registrable Securities and Prospectuses), messenger and delivery services
and telephone; (iv) all application and filing fees in connection with listing
the Registrable Securities on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and (v) all fees and
disbursements of counsel of the Company and independent certified public
accountants of the Company (including the expenses of any special audit and
"cold comfort" letters required by or incident to such performance); provided,
however, that each Investor shall be responsible for paying the underwriting
commissions or brokerage fees, and taxes of any kind (including, without
limitation, transfer taxes) applicable to any disposition, sale or transfer of
such Investor's Registrable Securities. The Company shall, in any event, bear
its internal expenses (including, without limitation, all salaries and expenses
of its officers and employees performing legal or accounting duties), the
expense of any annual audit, rating agency fees and the fees and expenses of any
person, including special experts, retained by the Company;
(g) advise the Investors, within two business days by e-mail, fax
or other type of communication, and, if requested by such person, confirm such
advice in writing: (i) after it shall receive notice or obtain knowledge of the
issuance of any stop order by the SEC delaying or suspending the effectiveness
of the Registration Statement or of the initiation or threat of any proceeding
for that purpose, or any other order issued by any state securities commission
or other regulatory authority suspending the qualification or exemption from
qualification of such Registrable Securities under state securities or "blue
sky" laws; and it will promptly use its best efforts to prevent the issuance of
any stop order or other order or to obtain its withdrawal at the earliest
possible moment if such stop order or other order should be issued; (ii) when
the Prospectus or any Prospectus Supplement or post-effective amendment has been
filed, and, with respect to the Registration Statement or any post-effective
amendment thereto, when the same has become effective; and (iii) after the
Company shall receive notice or obtain knowledge of the existence of any fact or
the happening of any event that makes any statement of a material fact made in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any document incorporated by reference therein untrue, or that requires the
making of any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading;
(h) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC;
12
(i) use its best efforts to cause all Registrable Shares to be
listed on each securities exchange or market, if any, on which equity securities
issued by the Company are then listed; and
(j) use its best efforts to take all other steps necessary to
effect the registration of the Registrable Shares contemplated hereby and to
enable the Investors to sell the Shares under Rule 144.
(k) The Company further agrees that, in the event that the
Registration Statement has not (i) been filed with the SEC within 20 days after
the Closing Date or (ii) been declared effective by the SEC within 105 days
after the Closing Date (each such event referred to in clauses (i) and (ii), a
"Registration Default"), for all or part of each 30-day period (a "Penalty
Period") during which the Registration Default remains uncured, the Company
shall issue or pay, as applicable, to each Investor 1% for each Penalty Period
of the aggregate purchase price paid by the Investor for its Shares, payable in
validly issued, fully paid and nonassessable shares of Common Stock (valued at
the average of the closing price of the Common Stock for the three trading days
ending on the last trading day of such Penalty Period) (the "Penalty Shares") or
cash, at the option of the Company; provided, that if the issuance of Penalty
Shares by the Company would result in the Company being required under NASDAQ
rules or other applicable rules to obtain the approval of the Company's
shareholders, then the Company shall pay cash rather than issue such Penalty
Shares to the extent needed to avoid such shareholder approval. The Company
shall deliver said shares or cash payment to the Investor by the fifth business
day after the end of each such Penalty Period. Notwithstanding anything to the
contrary in Section 7.3 or any other provision of this Agreement, the issuance
of the Penalty Shares or cash as provided in this Section 7.1(k) shall be the
Investor's sole and exclusive remedy in the event of any Registration Default;
provided, however, that if the foregoing remedy is deemed unenforceable by a
court of competent jurisdiction then the Investor shall have all other remedies
available at law or in equity.
7.2 Transfer of Shares; Suspension.
------------------------------
(a) The Investor agrees that it will not effect any Disposition of
the Shares or its right to purchase the Shares that would constitute a sale
within the meaning of the Securities Act except as contemplated in the
Registration Statement referred to in Section 7.1 and as described below or
otherwise in accordance with the Securities Act, and that it will promptly
notify the Company of any changes in the information set forth in the
Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the
Company shall, at all times during the Registration Period, promptly (i) prepare
and file from time to time with the SEC a post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or a supplement
or amendment to any document incorporated therein by reference or file any other
required document so that such Registration Statement will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
so that, as thereafter delivered to purchasers of the Shares being sold
thereunder, such Prospectus will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in
13
light of the circumstances under which they were made, not misleading; (ii)
provide the Investor copies of any documents filed pursuant to Section
7.2(b)(i); and (iii) inform each Investor that the Company has complied with its
obligations in Section 7.2(b)(i) (or that, if the Company has filed a post-
effective amendment to the Registration Statement which has not yet been
declared effective, the Company will notify the Investor to that effect, will
use its best efforts to secure the effectiveness of such post-effective
amendment as promptly as possible and will promptly notify the Investor pursuant
to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event (i) of any
request by the SEC or any other federal or state governmental authority during
the period of effectiveness of the Registration Statement for amendments or
supplements to a Registration Statement or related Prospectus or for additional
information; (ii) of the issuance by the SEC or any other federal or state
governmental authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that purpose;
(iii) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Shares for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose; or (iv) of any event or circumstance which
necessitates the making of any changes in the Registration Statement or
Prospectus, or any document incorporated or deemed to be incorporated therein by
reference, so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or any omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it will not
contain any untrue statement of a material fact or any omission to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; then the Company shall deliver a certificate in writing to the
Investor (the "Suspension Notice") to the effect of the foregoing and, upon
receipt of such Suspension Notice, the Investor will refrain from selling any
Registrable Shares pursuant to the Registration Statement (a "Suspension") until
the Investor's receipt of copies of a supplemented or amended Prospectus
prepared and filed by the Company, or until it is advised in writing by the
Company that the current Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed incorporated
by reference in any such Prospectus. In the event of any Suspension, the Company
will use its best efforts to cause the use of the Prospectus so suspended to be
resumed as soon as reasonably practicable after the delivery of a Suspension
Notice to the Investor. In addition to and without limiting any other remedies
(including, without limitation, at law or at equity) available to the Investor,
the Investor shall be entitled to specific performance in the event that the
Company fails to comply with the provisions of this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.2,
the Investor shall not be prohibited from selling Registrable Shares under the
Registration Statement as a result of Suspensions on more than two occasions
(for two separate suspension events) of not more than 30 days each in any twelve
month period.
(e) Provided that a Suspension is not then in effect, the Investor
may sell Registrable Shares under the Registration Statement, provided that it
arranges for delivery of a current Prospectus to the transferee of such Shares.
Upon receipt of a request therefor, the Company has agreed to provide, at its
own expense, an adequate number of current Prospectuses (including
14
documents incorporated by reference therein) to the Investor and to supply
copies to any other parties requiring such Prospectuses.
(f) In the event of a sale of Registrable Shares by the Investor
under the Registration Statement, the Investor must also deliver to the
Company's transfer agent, with a copy to the Company, a Certificate of
Subsequent Sale substantially in the form attached hereto as Exhibit A, so that
---------
the Registrable Shares may be properly transferred.
(g) The Investor hereby: (a) agrees that; and (b) agrees to
execute and deliver to the Company an agreement providing that, such Investor
shall not offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any Common Stock of the Company or enter into any swap, hedging or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of any Common Stock of the Company held by
such Investor for a period specified by the representative of the underwriters
of Common Stock of the Company not to exceed thirty (30) days, following the
effective date of a registration statement of the Company filed under the
Securities Act; provided, however, that said lockup restriction shall not in any
event extend beyond December 31, 2001.
7.3 Indemnification. For the purpose of this Section 7.3:
---------------
(i) the term "Selling Stockholder" shall include the Investor and any
affiliate of such Investor;
(ii) the term "Registration Statement" shall include any final
Prospectus, exhibit, supplement or amendment included in or relating to the
Registration Statement referred to in Section 7.1; and
(iii)the term "untrue statement" shall include any untrue statement or
alleged untrue statement, or any omission or alleged omission to state in the
Registration Statement or Prospectus a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(a) The Company agrees to indemnify and hold harmless each Selling
Stockholder from and against any losses, claims, damages, liabilities or
expenses to which such Selling Stockholder may become subject (under the
Securities Act or otherwise) insofar as such losses, claims, damages,
liabilities or expenses (or actions or proceedings in respect thereof) arise out
of, or are based upon (i) any untrue statement of a material fact contained in
the Registration Statement or Prospectus, (ii) any failure by the Company to
fulfill any undertaking included in the Registration Statement, or (iii) any
breach of any representation, warranty or covenant made by the Company in this
Agreement, and the Company will promptly reimburse such Selling Stockholder for
any reasonable legal or other expenses incurred in investigating, defending or
preparing to defend, settling, compromising or paying any such action,
proceeding or claim, provided, however, that the Company shall not be liable in
-------- -------
any such case to the extent that such loss, claim, damage, liability or expense
arises solely out of, or is based solely upon, an untrue statement made in such
Registration
15
Statement in reliance upon and in conformity with written information furnished
to the Company by such Selling Stockholder specifically for use in preparation
of the Registration Statement or the failure of such Selling Stockholder to
comply with its covenants and agreements contained in Sections 5.3 or 7.2 hereof
respecting sale of the Shares or any statement or omission in any Prospectus
that is corrected in any subsequent Prospectus that was delivered to the
Investor at least three business days prior to the pertinent sale or sales by
the Investor. Notwithstanding the foregoing, the Company shall not be liable to
any Selling Stockholder for any consequential damages, including lost profits,
solely with respect to losses, claims, damages, liabilities or expenses to which
such Selling Stockholder may become subject arising out of, or based upon, any
breach of any representation, warranty or covenant made by the Company in this
Agreement.
(b) The Investor agrees (severally and not jointly with any other
Investor) to indemnify and hold harmless the Company (and each person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act,
each officer of the Company who signs the Registration Statement and each
director of the Company) from and against any losses, claims, damages,
liabilities or expenses to which the Company (or any such officer, director or
controlling person) may become subject (under the Securities Act or otherwise),
insofar as such losses, claims, damages, liabilities or expenses (or actions or
proceedings in respect thereof) arise solely out of, or are based solely upon,
(i) any failure to comply with the covenants and agreements contained in Section
5.3 or 7.2 hereof respecting sale of the Shares, or (ii) any untrue statement of
a material fact contained in the Registration Statement if such untrue statement
was made in reliance upon and in conformity with written information furnished
by the Investor specifically for use in preparation of the Registration
Statement (provided, however, that no Investor shall be liable in any such case
-------- -------
for any untrue statement in any Registration Statement or Prospectus if such
statement has been corrected in writing by such Investor and delivered to the
Company at least three business days prior to the pertinent sale or sales by the
Investor), and the Investor will reimburse the Company (or such officer,
director or controlling person), as the case may be, for any legal or other
expenses reasonably incurred in investigating, defending or preparing to defend,
settling, compromising or paying any such action, proceeding or claim.
Notwithstanding the foregoing, (x) the Investor's aggregate liability pursuant
to this subsection (b) and subsection (d) shall be limited to the net amount
received by the Investor from the sale of the Shares and (y) the Investor shall
not be liable to the Company for any consequential damages, including lost
profits, solely with respect to losses, claims, damages, liabilities or expenses
to which the Company (or any officer, director or controlling person as set
forth above) may become subject (under the Securities Act or otherwise), arising
out of, or based upon, any failure to comply with the covenants and agreements
contained in Section 5.3 or 7.2 hereof respecting sale of the Shares.
(c) Promptly after receipt by any indemnified person of a notice
of a claim or the beginning of any action in respect of which indemnity is to be
sought against an indemnifying person pursuant to this Section 7.3, such
indemnified person shall notify the indemnifying person in writing of such claim
or of the commencement of such action, but the omission to so notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party under this Section 7.3 (except to the extent that such
omission materially and adversely affects the indemnifying party's ability to
defend such action) or from any liability otherwise than under this Section 7.3.
Subject to the provisions hereinafter stated, in case any such action shall be
brought against an indemnified person, the indemnifying person shall be entitled
to participate therein, and,
16
to the extent that it shall elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
shall be entitled to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified person. After notice from the indemnifying
person to such indemnified person of its election to assume the defense thereof,
such indemnifying person shall not be liable to such indemnified person for any
legal expenses subsequently incurred by such indemnified person in connection
with the defense thereof, provided further, however, that if there exists or
-------- ----------------
shall exist a conflict of interest that would make it inappropriate, in the
opinion of counsel to the indemnified person, for the same counsel to represent
both the indemnified person and such indemnifying person or any affiliate or
associate thereof, the indemnified person shall be entitled to retain its own
counsel at the expense of such indemnifying person; provided, however, that no
-------- -------
indemnifying person shall be responsible for the fees and expenses of more than
one separate counsel (together with appropriate local counsel) for all
indemnified parties. In no event shall any indemnifying person be liable in
respect of any amounts paid in settlement of any action unless the indemnifying
person shall have approved the terms of such settlement; provided that such
--------
consent shall not be unreasonably withheld. No indemnifying person shall,
without the prior written consent of the indemnified person, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified person is or could have been a party and indemnification could have
been sought hereunder by such indemnified person, unless such settlement
includes an unconditional release of such indemnified person from all liability
on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section 7.3 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages,
liabilities or expenses (or actions or proceedings in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and the
Investor on the other in connection with the statements or omissions or other
matters which resulted in such losses, claims, damages, liabilities or expenses
(or actions in respect thereof), as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, in the case of an untrue statement, whether the untrue statement
relates to information supplied by the Company on the one hand or an Investor on
the other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement. The Company and the
Investors agree that it would not be just and equitable if contribution pursuant
to this subsection (d) were determined by pro rata allocation (even if the
Investors were treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Investor
shall be required to contribute any amount in excess of the net amount received
by the Investor from the sale of the Shares. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The
17
Investors' obligations in this subsection to contribute are several in
proportion to their sales of Shares to which such loss relates and not joint.
(e) The parties to this Agreement hereby acknowledge that they are
sophisticated business persons who were represented by counsel during the
negotiations regarding the provisions hereof including, without limitation, the
provisions of this Section 7.3, and are fully informed regarding said
provisions.
7.4 Rule 144. For a period of two years following the date hereof,
--------
the Company agrees with each holder of Registrable Shares to:
(a) comply with the requirements of Rule 144(c) under the
Securities Act with respect to current public information about the Company;
(b) use its best efforts to 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 (at any time it is subject to such reporting requirements);
and
(c) furnish to any holder of Registrable Shares upon request (i) a
written statement by the Company as to its compliance with the requirements of
said Rule 144(c) and the reporting requirements of the Securities Act and the
Exchange Act (at any time it is subject to such reporting requirements), (ii) a
copy of the most recent annual or quarterly report of the Company, and (iii)
such other reports and documents of the Company as such holder may reasonably
request to avail itself of any similar rule or regulation of the SEC allowing it
to sell any such securities without registration.
7.5 Termination of Conditions and Obligations. The conditions
-----------------------------------------
precedent imposed by Section 5 or this Section 7 (other than Section 7.2(g))
upon Dispositions of the Registrable Shares by the Investor shall cease and
terminate as to any particular number of the Registrable Shares and the
restrictive legend shall be removed when such Registrable Shares shall have been
effectively registered under the Securities Act and sold or otherwise disposed
of in accordance with the intended method of disposition set forth in the
Registration Statement covering such Registrable Shares or at such time as an
opinion of counsel reasonably satisfactory to the Company shall have been
rendered to the effect that such conditions are not necessary in order to comply
with the Securities Act (provided that such opinion shall not be required if the
Company shall be furnished with written documentation reasonably satisfactory to
it that such Registrable Shares are being transferred in a customary transaction
exempt from registration under Rule 144 under the Securities Act).
8. Notices. Except as specifically permitted by Section 7.1(g), all
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notices, requests, consents and other communications hereunder shall be in
writing, shall be mailed (A) if within domestic United States by first-class
registered or certified airmail, or nationally recognized overnight express
courier, postage prepaid, or by facsimile, or (B) if delivered from outside the
United States, by International Federal Express or facsimile, and shall be
deemed given (i) if delivered by first-class registered or certified mail
domestic, three business days after so mailed, (ii) if delivered by nationally
recognized overnight carrier, one business day after so mailed, (iii) if
18
delivered by International Federal Express, two business days after so mailed,
and (iv) if delivered by facsimile, upon electric confirmation of receipt and
shall be delivered as addressed as follows:
(a) if to the Company, to:
Conceptus, Inc.
0000 Xxxxxx Xxx.
Xxx Xxxxxx, XX 00000
Attn: President and CEO
Phone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attn: Xxx X. Xxxxxx, Esq.
Phone: (000) 000-0000
Telecopy: (000) 000-0000
(b) if to the Investor, at its address on the signature page hereto,
or at such other address or addresses as may have been furnished
to the Company in writing,
with a copy to:
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Phone: (000) 000-0000
Telecopy: (000) 000-0000
9. Changes. This Agreement may not be modified or amended except pursuant
-------
to an instrument in writing signed by the Company and the Investor.
10. Headings. The headings of the various sections of this Agreement have
--------
been inserted for convenience of reference only and shall not be deemed to be
part of this Agreement.
11. Severability. In case any provision contained in this 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.
12. Governing Law. This Agreement shall be governed by, and construed in
-------------
accordance with, the internal laws of the State of California, without giving
effect to the principles of conflicts of law.
19
13. Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the parties hereto pertaining to the subject matter hereof, and any and
all other written or oral agreements relating to such subject matter are
expressly cancelled.
14. Finders Fees. Each of the Company and the Investor represents that it
------------
neither is nor will be obligated for any finder's fee or commission in
connection with this transaction other than those certain fees payable solely by
the Company to UBS PaineWebber.
15. 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, 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.
16. Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the successors and permitted assigns of the Company and the
Investors, including without limitation and without the need for an express
assignment, affiliates of the Investors. With respect to transfers that are not
made pursuant to the Registration Statement, the rights and obligations of an
Investor under this Agreement shall be automatically assigned by such Investor
to any transferee of all or any portion of such Investor's Registrable Shares
who is a Permitted Transferee (as defined below); provided, however, that within
two business days prior to the transfer, (i) the Company is provided notice of
the transfer including the name and address of the transferee and the number of
Registrable Shares transferred; and (ii) that such transferee agrees in writing
to be bound by the terms of this Agreement. (For purposes of this "Agreement, a
"Permitted Transferee" shall mean any Person who (a) is an "accredited
investor," as that term is defined in Rule 501(a) of Regulation D under the
Securities Act and (b) is a transferee of at least 20,000 Registrable Shares as
permitted under the securities laws of the United States). Upon any transfer
permitted by this Section 16, the Company shall be obligated to such transferee
to perform all of its covenants under this Agreement as if such transferee were
an Investor.
17. Expenses. Each of the Company and the Investors shall bear its own
--------
expenses in connection with the preparation and negotiation of the Agreement;
provided, that, notwithstanding the foregoing, the Company agrees to pay the
reasonable fees and disbursements, up to $35,000, of Xxxxx Xxxxxxxxxx LLP,
counsel to the Investors, in connection with the negotiation, documentation and
consummation of the Agreement and the transactions contemplated thereby.
20
Exhibit A
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CERTIFICATE OF SUBSEQUENT SALE
------------------------------
ChaseMellon Shareholder Services
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
RE: Sale of Shares of Common Stock of Conceptus, Inc. (the "Company")
pursuant to the Company's Prospectus dated _____________ (the
"Prospectus")
Ladies and Gentlemen:
The undersigned hereby certifies, in connection with the sale of shares of
Common Stock of the Company included in the table of Selling Stockholders in the
Prospectus, that the undersigned has sold the shares pursuant to the Prospectus
and in a manner described under the caption "Plan of Distribution" in the
Prospectus and that such sale complies with all applicable securities laws,
including, without limitation, the Prospectus delivery requirements of the
Securities Act of 1933, as amended.
Selling Stockholder (the beneficial owner):_____________________________________
Record Holder (e.g., if held in name of nominee):_______________________________
Restricted Stock Certificate No.(s):____________________________________________
Number of Shares Sold:__________________________________________________________
Date of Sale____________________________________________________________________
In the event that you receive a stock certificate(s) representing more
shares of Common Stock than have been sold by the undersigned, then you should
return to the undersigned a newly issued certificate for such excess shares in
the name of the Record Holder and BEARING A RESTRICTIVE LEGEND. Further, you
should place a stop transfer on your records with regard to such certificate.
Very truly yours,
Dated: By:
____________________ _____________________________
Print Name:
__________________
Title:
_______________________
cc: President and CEO
Conceptus, Inc.
0000 Xxxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
