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EXHIBIT 10.19
COMMON STOCK PLACEMENT AGREEMENT
COMMON STOCK PLACEMENT AGREEMENT ("Agreement") dated as of the 29th day of
December, 1999, by and between LASERSCOPE, a California corporation (the
"Company") and TAGLICH BROTHERS, X'XXXXXX, XXXXXX & COMPANY, INCORPORATED
("Placement Agent").
W I T N E S S E T H :
WHEREAS, in reliance upon the representations, warranties, terms and
conditions hereinafter set forth, Placement Agent will use its best efforts to
privately place shares of Common Stock, no par value per share, of the Company
("Common Stock") for a minimum aggregate purchase price of $1 million ("Minimum
Amount") and a maximum an aggregate price of $2 million ("Maximum Amount"), at a
price of $.80 per share (the "Purchase Price"), and the persons and entities so
purchasing the Common Stock from time to time and the number of shares of Common
Stock being so purchased being as listed on Exhibit A to this Agreement (such
persons and entities being referred to individually as "Purchaser" and
collectively, as "Purchasers"); and
WHEREAS, the shares of Common Stock are being issued pursuant to the
Company's Confidential Private Placement Memorandum and Exhibits thereto dated
December 22, 1999, as the same may be amended and/or supplemented from time to
time (collectively, the "Memorandum"); and
WHEREAS, the shares of Common Stock are being issued pursuant to an
exemption from the registration requirements of the Securities Act of 1933, as
amended (the "1933 Act").
NOW, THEREFORE, in consideration of the premises and the respective
promises hereinafter set forth, the Company and the Placement Agent hereby agree
as follows:
1. SALE AND PURCHASE OF COMMON STOCK.
(a) Subject to the terms and conditions of this Agreement, the
Company shall sell to the Purchasers shares of Common Stock for a minimum
aggregate purchase price of $1 million and a maximum aggregate purchase price of
$2 million.
(b) The initial sale and purchase described in Paragraph 1(a) of
this Agreement shall take place at a closing (the "Closing") at the offices of
XXXXXXXX XXXXXXXXX XXXXXX ARONSHON & XXXXXX LLP, 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, XX 00000 or such other place as shall be acceptable to the Company and
Placement Agent on such date or dates as Placement Agent shall advise the
Company on two (2) business days notice or
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such shorter notice as shall be reasonably acceptable to the Company. In no
event shall the Initial Closing (as defined below) occur unless the Minimum
Amount is sold. Subsequent sales and purchases of Common Stock up to the Maximum
Amount shall take place at one or more Closings held on such dates as the
Company and Placement Agent shall mutually determine. The initial Closing
pursuant to this Agreement shall occur not later than December 31, 1999 unless
such date is extended for up to thirty (30) days by mutual agreement of the
Company and the Placement Agent, in their sole and absolute discretion. The
initial Closing hereunder shall be referred to as the "Initial Closing," the
final Closing hereunder shall be referred to as the "Final Closing" and the date
of the Final Closing shall be referred to as the "Final Closing Date."
(c) All defined terms used in this Agreement that are not
otherwise defined shall have the meanings ascribed to them in the Memorandum.
2. PAYMENT. At each Closing, the Company or its agent shall deliver to
Placement Agent, on behalf of the Purchasers, the original executed and sealed
Common Stock certificates being purchased by the Purchasers, against its receipt
of payment therefor by certified or bank check drawn on a bank located in the
United States, or by Federal wire transfer, in the amount of the aggregate
purchase price for such Common Stock being sold, less the amount of fees payable
to Placement Agent pursuant to Paragraph 10(a) of this Agreement. All Common
Stock being purchased by the Purchasers shall be issued in the respective names
of the Purchasers in accordance with instructions provided by Placement Agent
not later than the day of Closing.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to and covenants and agrees with the Placement Agent, as
of the date hereof and as of the date of each Closing, as follows:
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of California and is qualified
and in good standing as a foreign corporation in each jurisdiction in which the
nature of the business conducted by the Company or the property owned or leased
by the Company requires such qualification. Except as set forth in the
Memorandum and in the exhibits annexed to the Memorandum (collectively, the
"Exhibits"), the Company has no subsidiaries and does not own any equity
interest and has not made any loans or advances to or guarantees of indebtedness
to any person, corporation, partnership or other entity. Each of Laserscope
France S.A., NWL Laser-Technologie, GmbH, a Laserscope Company and Laserscope
(UK) Ltd., each a wholly-owned subsidiary of the Company (collectively, the
"Subsidiaries") is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and each
Subsidiary is qualified and in good standing as a foreign corporation in each
jurisdiction in which the nature of its business or the property owned or leased
by the Subsidiary requires such qualification. Except as disclosed in the
Memorandum and in the attached Schedule of
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Exceptions, no Subsidiary has any subsidiary and no Subsidiary owns any equity
interest in any other entity and no Subsidiary has made any loans or advances to
or guarantees of indebtedness to any person, corporation, partnership or other
entity. Except as disclosed in the attached Schedule of Exceptions, the Company
owns all of the issued and outstanding shares of common stock of each of the
Subsidiaries free and clear of any lien, claim, encumbrance, pre-emptive rights
or contractual rights of first refusal.
(b) The authorized capital of the Company consists of 25,000,000
shares of Common Stock and 5,000,000 shares of preferred stock, of which, as of
the date of this Agreement, (i) 12,611,637 shares of Common Stock are issued and
outstanding, (ii) 0 shares of Common Stock are held in treasury, (iii) no shares
of preferred stock are issued and outstanding (the "Preferred Stock"), and (iv)
4,221,251 shares of Common Stock have been reserved for issuance upon exercise
of outstanding debentures, options, warrants and other rights to acquire Common
Stock and upon the exercise of options granted pursuant to the Company's stock
option plans and pursuant to other agreements, excluding the shares of Common
Stock (the "PAW Exercise Shares") issuable upon exercise of the Placement Agent
Warrants (as defined below). Except as set forth in the Memorandum, the Company
is not a party to any agreement to issue, nor has it issued, any warrants,
options or rights or preferred stock, notes or other evidence of indebtedness or
other securities, instruments or agreements upon the exercise or conversion of
which or pursuant to the terms of which additional shares of capital stock of
the Company may become issuable. No holder of any of the Company's securities
has preemptive rights or contractual rights of first refusal.
(c) The Company has the full right, power and authority to
execute, deliver and perform under this Agreement, the Common Stock and the
Placement Agent Warrants. This Agreement has been duly executed by the Company
and, at each Closing, the Common Stock and the Placement Agent Warrants being
issued will have been duly executed by the Company, and this Agreement, the
Common Stock and the Placement Agent Warrants and the transactions contemplated
by this Agreement and the Placement Agent Warrants have been duly authorized by
all necessary corporate action and each constitutes, the legal, valid and
binding obligations of the Company, enforceable in accordance with their
respective terms.
(d) All of the issued and outstanding shares of Common Stock and
Preferred Stock of the Company have been duly and validly authorized and issued
and are fully paid and nonassessable, with no personal liability attaching to
the holders thereof, and such shares of Common Stock and Preferred Stock have
not been issued in violation of the preemptive rights or rights of first refusal
of any holder of securities of the Company. All of the issued and outstanding
shares of Common Stock and Preferred Stock of the Company have been issued
pursuant to either a current effective registration statement under the 1933 Act
or an exemption from the registration requirements of the 1933 Act and were
issued in accordance with all applicable Federal and state securities laws. All
of the issued and outstanding shares of common stock of each Subsidiary have
been duly and validly authorized and issued and are fully paid and
nonassessable, with no personal liability attaching to the Company.
(e) The shares of Common Stock to be issued at each Closing and
the PAW Exercise Shares have been validly authorized for issuance and, when
issued pursuant to this
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Agreement and the terms of the Subscription Documents Booklet executed by each
Purchaser or the Placement Agent Warrants, as the case may be, will be duly and
validly authorized and issued, fully paid and nonassessable and free from
preemptive rights or rights of first refusal held by any person.
(f) The following financial statements of the Company (hereinafter
collectively, the "Financial Statements") are included in the Memorandum: (i)
consolidated balance sheets as of December 31, 1998 and consolidated statements
of operations, shareholders' equity and cash flows for the fiscal year ended
December 31, 1998 and the related notes thereto, which have been audited by
Ernst & Young LLP, independent certified public accountants, (ii) consolidated
balance sheets as of December 31, 1997 and consolidated statements of
operations, shareholders' equity and cash flows for the fiscal year ended
December 31, 1997, and the related notes thereto, which have been audited by
Ernst & Young LLP, independent certified public accountants, and (iii) unaudited
balance sheet as of March 31, 1999, June 30, 1999 and September 30, 1999 and
unaudited statement of operations, stockholders' equity and cash flows for the
fiscal quarter ended March 31, 1999, June 30, 1999 and September 30, 1999, and
the related notes thereto, which have been prepared by the Company. The
Financial Statements, which are included in the Company's Form 10-K Annual
Report for the year ended September 30, 1998 ("Form 10-K"), the Company's Form
10-Q Quarterly Report for the fiscal quarter ended March 31, 1999, the Company's
Form 10-Q Quarterly Report for the fiscal quarter ended June 30, 1999 and the
Company's Form 10-Q Quarterly Report for the fiscal quarter ended September 30,
1999 (collectively "Forms 10-Q"), were prepared in accordance with generally
accepted accounting principles consistently applied and present and reflect
fairly the financial position of the Company at the respective balance sheet
dates and the results of its operations and cash flows for the periods then
ended, provided, however, that the financial statements included in the Forms
10-Q are subject to normal year-end adjustments and lack footnotes and other
presentation items. During the period of Ernst & Young LLP's engagement as the
Company's independent certified public accountants, there has been no
disagreements between the accounting firm and the Company on any matters of
accounting principles or practices, financial statement disclosure or auditing
scope or procedure and no events required to be reported on a current report on
Form 8-K relating to the relationship between the Company and the accounting
firm. The Company has made and kept books and records and accounts which are in
reasonable detail and which fairly and accurately reflect the activities of the
Company, subject only to year-end adjustments.
(g) The Company has good and marketable title to all of its
material property and assets and, except as set forth in the Memorandum or the
Financial Statements or as disclosed in the attached Schedule of Exceptions,
none of such property or assets of the Company is subject to any lien, mortgage,
pledge, encumbrance or other security interest.
(h) Except as may be disclosed in the Memorandum, since September
30, 1999, there has not been any material adverse change in the financial
condition or in the operations, business or prospects of the Company or any of
the Subsidiaries from that shown in the Financial
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Statements or any damage or destruction, not covered by insurance, which affects
the business, property or assets of the Company or any of the Subsidiaries.
(i) Except as set forth in the Exhibits to the Memorandum, the
Company has not filed any Current Reports on Form 8-K or other reports filed
with the Securities and Exchange Commission (the "SEC") subsequent to September
30, 1999.
(j) Neither the execution or delivery of this Agreement, the
Common Stock or the Placement Agent Warrants by the Company nor the performance
by the Company of the transactions contemplated by this Agreement or the
Placement Agent Warrants: (i) requires the consent, waiver, approval, license or
authorization of or filing with or notice to any person, entity or public
authority (except any filings required by Federal or state securities laws,
which filings have been or will be made by the Company on a timely basis); (ii)
violates or constitutes a default under or breach of any law, rule or regulation
applicable to the Company; or (iii) conflicts with or results in a breach or
termination of any provision of, or constitutes a default under, or will result
in the creation of any lien, charge or encumbrance upon any of the property or
assets of the Company with or without the giving of notice, the passage of time
or both, pursuant to (A) the Company's articles of incorporation (as amended) or
by-laws, (B) any mortgage, deed of trust, indenture, note, loan agreement,
security agreement, contract, lease, license, alliance agreement, joint venture
agreement, or other agreement or instrument, or (C) any order, judgment, decree,
statute, regulation or any other restriction of any kind or character to which
the Company is a party or by which any of the assets of the Company may be
bound.
(k) Except as disclosed in the Memorandum, neither the Company nor
any of the Subsidiaries has any indebtedness to any officer, director, 5%
stockholder or other Affiliate (as defined in the Rules and Regulations of the
Securities and Exchange Commission (the "SEC") under the 0000 Xxx) of the
Company.
(l) The Company and each of the Subsidiaries is in compliance with
all laws, rules and regulations of all Federal, state and local government
agencies having jurisdiction over the Company and each of the Subsidiaries or
affecting the business, assets or properties of the Company or any of the
Subsidiaries, except where the failure to comply does not and will not have a
material adverse effect on the business, financial condition or results of
operations of the Company or its Subsidiaries, taken as a whole (a "Material
Adverse Effect"). The Company and each of the Subsidiaries possesses all
licenses, permits, consents, approvals and agreements which are required to be
issued by any and all applicable Federal, state or local authorities necessary
for the operation of their respective business and/or in connection with their
respective assets or properties, except where the failure to possess such
licenses, permits, consents, approvals or agreements does not and will not have
a Material Adverse Effect.
(m) Neither the Company nor any of the Subsidiaries is in default
under any note, loan agreement, security agreement, mortgage, contract,
franchise agreement, distribution agreement, lease, alliance agreement, joint
venture agreement, agreement, license, permit,
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consent, approval or instrument to which it is a party, and no event has
occurred which, with or without the lapse of time or giving of notice, or both,
would constitute such default thereof by the Company or any of the Subsidiaries
or would cause acceleration of any obligation of the Company or any of the
Subsidiaries or would adversely affect the business, operations, financial
condition or prospects of the Company or any of the Subsidiaries, except where
such default or event, whether with or without the lapse of time or giving of
notice, or both, does not and will not have a Material Adverse Effect. To the
best of the knowledge of the Company, no party to any note, loan agreement,
security agreement, mortgage, contract, franchise agreement, distribution
agreement, lease, alliance agreement, joint venture agreement, agreement,
license, permit, consent, approval or instrument with or given to the Company or
any of the Subsidiaries is in default thereunder and no event has occurred with
respect to such party, which, with or without the lapse of time or giving of
notice, or both, would constitute a default by such party or would cause
acceleration of any obligations of such party.
(n) To the best of the Company's knowledge, except as set forth in
the Memorandum, no officer, director or 5% stockholder of the Company and no
Affiliate of any such person either (i) holds any interest in any corporation,
partnership, business, trust, sole proprietorship or any other entity which is
engaged in a business similar to that conducted by the Company or any of the
Subsidiaries (other than a passive immaterial interest in a public company
engaged in any such business) or (ii) engages in business with the Company or
any of the Subsidiaries.
(o) Except as set forth in the Memorandum or disclosed in the
attached Schedule of Exceptions, there are no material (i.e., involving an
asserted liability in excess of one hundred thousand dollars ($100,000)) claims,
actions, suits, proceedings or labor disputes, inquiries or investigations
(whether or not purportedly on behalf of the Company or any of the
Subsidiaries), pending or, to the best of the Company's knowledge, threatened,
against the Company or any of the Subsidiaries, at law or in equity or by or
before any Federal, state, county, municipal or other governmental department,
SEC, National Association of Securities Dealers, Inc. ("NASD"), board, bureau,
agency or instrumentality, domestic or foreign, whether legal or administrative
or in arbitration or mediation, nor is there any basis for any such action or
proceeding. Neither the Company, any of the Subsidiaries nor any of their
respective assets are subject to, nor is the Company or any of the Subsidiaries
in default with respect to, any order, writ, injunction, judgment or decree that
could adversely affect the financial condition, business, assets or prospects of
the Company or any of the Subsidiaries.
(p) The accounts receivable of the Company and the Subsidiaries
represent receivables generated from the sale of goods and services in the
ordinary course of business. The Company knows of no material disputes
concerning accounts receivable of the Company and the Subsidiaries not disclosed
in the Memorandum.
(q) Except as set forth in the Memorandum or disclosed in the
attached Schedule of Exceptions, neither the Company nor any of the Subsidiaries
has (i) any written employment
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contracts and no oral employment contracts not terminable at will by the Company
or any Subsidiary, as applicable, with any 5% percent shareholder, officer or
director of the Company or any Subsidiary, as applicable, (ii) any consulting
agreement or other compensation agreement with any 5% percent shareholder,
officer or director of the Company or any Subsidiary, as applicable, or (iii)
any agreement or contract with any 5% percent shareholder, officer or director
of the Company or any Subsidiary, as applicable, that will result in the payment
by the Company or any Subsidiary, as applicable, or the creation of any
commitment or obligation (absolute or contingent), of the Company or any
Subsidiary, as applicable, to pay any severance, termination, "golden
parachute," or similar payment to any present or former personnel of the Company
or any Subsidiary, as applicable, following termination of employment. No
director, executive officer or other key employee of the Company or any
Subsidiary, as applicable, has advised the Company that he or she intends to
resign as director and/or executive officer of the Company or any Subsidiary, as
applicable, or to terminate his or her employment with the Company or the
Subsidiary, as applicable.
(r) The accounts payable of the Company and the Subsidiaries
represent bona fide payables to third parties incurred in the ordinary course of
business and represent bona fide debts for services and/or goods provided to the
Company and the Subsidiaries.
(s) Except as set forth in the Memorandum, neither the Company nor
any of the Subsidiaries is a party to a labor agreement with respect to any of
their respective employees with any labor organization, union, group or
association and there are no employee unions (nor any similar labor or employee
organizations). There is no labor strike or labor stoppage or slowdown pending,
or, to the knowledge of the Company, threatened against the Company or any of
the Subsidiaries nor has the Company or any of the Subsidiaries experienced in
the last five (5) years any work stoppage or other labor difficulty. The Company
is in compliance with all applicable laws, rules and regulations regarding
employment practices, employee documentation, terms or conditions of employment
and wage and hours and the Company is not engaged in any unfair labor practices,
except where the failure to comply has not and will not have a Material Adverse
Effect. There are no unfair labor practice charges or complaints against the
Company or any of the Subsidiaries pending before the National Labor Relations
Board or any other governmental agency.
(t) Except as disclosed in the Memorandum or the attached Schedule
of Exceptions, there are no employee pension, retirement or other benefit plans,
maintained, contributed to or required to be contributed to by the Company or
any of the Subsidiaries covering any employee or former employee of the Company
or any of the Subsidiaries. Neither the Company nor any of the Subsidiaries has
any material liability or obligation of any kind or nature, whether accrued or
contingent, matured or unmatured, known or unknown, under any provision of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA") or any
provision of the Internal Revenue Code of 1986, as amended, specifically
relating to persons subject to ERISA.
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(u) The Company and each of the Subsidiaries has timely filed with
the appropriate taxing authorities all returns in respect of taxes required to
be filed through the date hereof and each has timely paid all taxes that each is
required to pay or has established an adequate reserve therefor, except where
the Company or the Subsidiary, as applicable, has timely filed for extensions.
There are no pending or, to the knowledge of the Company, threatened audits,
investigations or claims for or relating to any liability of the Company or any
of the Subsidiaries in respect of taxes.
(v) Neither the Company nor any of the Subsidiaries has any
liabilities of any kind or nature whether accrued or contingent, matured or
unmatured, known or unknown, except as set forth in the Financial Statements,
the Memorandum and those liabilities incurred by the Company and each of the
Subsidiaries in the ordinary course of business since September 30, 1999.
(w) Except as set forth in the Memorandum, no customer of the
Company or any of the Subsidiaries during fiscal year 1998 accounted for more
than 5% of the revenues of the Company (on a consolidated basis) and to the best
of the Company's knowledge, no customer, other than the customers identified in
the Memorandum, will account for more than 5% of the Company's revenues (on a
consolidated basis) during fiscal year 1999 or fiscal year 2000.
(x) There are no finder's fees or brokerage commissions payable
with respect to the transactions contemplated by this Agreement, except as
provided in Paragraph 10 of this Agreement, and the Company agrees to indemnify
and hold harmless the Placement Agent from and against any and all cost, damage,
liability, judgment and expense (including reasonable fees and expenses of
counsel) arising out of or relating to claims for such fees or commissions (and
to pay the Placement Agent pursuant to a separate agreement between the Company
and the Placement Agent).
(y) Except as set forth in the Memorandum or the attached Schedule
of Exceptions, the Company is not currently and has not during the past six (6)
months been engaged in negotiations with respect to: (i) any merger or
consolidation of the Company where the Company would not be the surviving
entity; or (ii) the sale of the Company, any of its Subsidiaries or any of their
assets other than sales in the ordinary course of business.
(z) The Company and each of the Subsidiaries has the right to
conduct their respective business in the manner in which their respective
business has been heretofore conducted. To the knowledge of the Company, the
conduct of such businesses by the Company and each of the Subsidiaries does not
violate or infringe upon the patent, copyright, trade secret or other
proprietary rights of any third party, and neither the Company nor any of the
Subsidiaries has received any notice of any claim of any such violation or
infringement.
(aa) The Company and each of the Subsidiaries is currently in
compliance in all respects with all applicable Environmental Laws (as defined
below), including, without
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limitation, obtaining and maintaining in effect all permits, licenses, consents
and other authorizations required by applicable Environmental Laws and the
Company and each Subsidiary is currently in compliance with all such permits,
licenses, consents and other authorizations, except where the failure to comply
does not and will not have a Material Adverse Effect. Neither the Company nor
any of its Subsidiaries has received notice from any property owner, landlord,
tenant or Governmental Authority (as defined below) that Hazardous Wastes (as
defined below) are being improperly used, stored or disposed of at any property
currently or formerly owned or leased by the Company or any of its Subsidiaries
or that any soil or ground water contamination has emanated from any such
property. For purposes hereof, the term "Environmental Laws" means,
collectively, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, the Superfund Amendments and Reauthorization
Act of 1986, the Resource Conservation and Recovery Act, the Toxic Substances
Act, as amended, the Clean Air Act, as amended, the Clean Water Act, as amended,
any other "Superfund" or "Superlien" law or any other federal, state or local
statute, law, ordinance, code, rule, regulation, order or decree regulating,
relating to, or imposing liability or standards of conduct concerning any
hazardous, toxic or dangerous waste, substance or material, as now or at any
time hereafter in effect. For purposes hereof, the term "Governmental Authority"
shall mean the Federal Government of the United States of America, any state or
any political subdivision of the Federal Government or any state, including but
not limited to courts, departments, commissions, boards, bureaus, agencies,
ministries or other instrumentalities. For purposes hereof, the term "Hazardous
Wastes" shall mean any regulated quantity of hazardous substances as listed by
the United States Environmental Protection Agency ("EPA") and the list of toxic
pollutants designated by the United States Congress and/or the EPA or defined by
any other Federal, state or local statute, law, ordinance, code, rule,
regulation, order, or decree regulating, relating to or imposing liability for
standards of conduct concerning any hazardous, toxic substance or material.
(bb) The information contained in the Financial Statements and the
Memorandum, taken together, describe in all material respects the business and
financial condition of the Company and its Subsidiaries, and such material,
taken together, does not contain any misstatement of a material fact or omit to
state a material fact necessary to make the information not misleading. The
Purchasers and Placement Agent shall be entitled to rely on such material
notwithstanding any investigation they or any of them may have made.
4. SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND INDEMNIFICATION. The
representations and warranties of the Company set forth in Section 3 of this
Agreement shall survive the execution and delivery of the Common Stock. The
indemnification obligations of the Company as set forth in the indemnification
rider identified as Exhibit B (the "Indemnification Rider") to the December 15,
1999 engagement letter between the Company and the Placement Agent, as same
shall be supplemented and/or amended, is hereby incorporated herein by reference
in its entirety as if more fully set forth herein and the provisions of the
Indemnification Rider shall apply and be applicable to, among other things, all
representations and warranties of the Company.
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5. USE OF PROCEEDS. The net proceeds from the sale of the Common Stock
will be used by the Company as disclosed in the Memorandum.
6. UNREGISTERED SECURITIES. None of the Common Stock, the Placement
Agent Warrants or the PAW Exercise Shares have been registered under the 1933
Act, in reliance upon the applicability of Section 4(2), 4(6) and/or Rule 506 of
Regulation D of the 1933 Act to the transactions contemplated hereby. The
certificates representing the Common Stock and the Placement Agent Warrants will
bear an investment legend and the certificate representing the PAW Exercise
Shares issued prior to their respective registration under Section 3 of the
Common Stock Purchase Agreement (a copy of which is annexed as an exhibit to the
Memorandum) and Section 7 below will also bear investment legends.
7. REGISTRATION RIGHTS AND "PIGGY-BACK" REGISTRATION RIGHTS.
(a) The Company shall prepare and file with the SEC, within sixty
(60) days following the Final Closing Date, a registration statement
("Registration Statement") on the appropriate form under the 1933 Act, with
respect to the shares of Common Stock sold in the Private Placement, any
Placement Agent Shares (as defined below) and the PAW Exercise Shares
(collectively, the "Registrable Securities"). The Company shall use its best
efforts to have the Registration Statement declared effective as soon as
possible after filing, but in no event later than one hundred and thirty-five
(135) days following the Final Closing Date and shall keep such Registration
Statement effective and current continuously for three (3) years or until such
earlier date as all of the Registrable Securities have been sold. If the
Registration Statement is not filed within sixty (60) days following the Final
Closing Date, each holder of such Registrable Securities (including transferees
authorized under applicable securities laws) (each a "Registered Holder") shall
be entitled to receive from the Company in cash a payment (the "Filing Payment")
equal to (A) the product of the number of Registrable Securities held by the
Registered Holder and the Purchase Price, multiplied by (B) the product of three
percent (3%) and the number of thirty (30) day periods, or any part thereof,
beyond said sixty (60) day period until the Registration Statement is filed with
the SEC. In addition, if the Registration Statement has been filed but is not
declared effective within one hundred and thirty-five (135) days following the
Final Closing Date, each Registered Holder also shall be entitled to receive in
cash from the Company a payment (the "Effectiveness Payment" and together with
the Filing Payment, the "Registration Payments") equal to (Y) the product of the
number of Registrable Securities held by the Registered Holder and the Purchase
Price, multiplied by (Z) the product of two percent (2%) and the number of
thirty (30) day periods, or any part thereof, beyond said one hundred and
thirty-five (135) day period until the Registration Statement is declared
effective. The Company shall pay the Registration Payments, if any, to the
Registered Holders within thirty (30) days after the earlier to occur of (i) the
filing or effectiveness of the Registration Statement, as applicable, or (ii)
the end of the calendar quarter during which the sixty (60) day or one hundred
and thirty-five day period expired, as applicable, and then quarterly
thereafter.
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(b) If the Company effects any registration under the 1933 Act of
any Registrable Securities pursuant to Paragraphs 7(a) above or 7(g) below, the
Company shall indemnify, to the extent permitted by law, and hold harmless each
Registered Holder whose Registrable Securities are included in such registration
statement (each, a "Seller"), any underwriter, any officer, director, employee
or agent of any Seller or underwriter, and each other person, if any, who
controls any Seller or underwriter within the meaning of Section 15 of the 1933
Act, against any losses, claims, damages or liabilities, judgment, fines,
penalties, costs and expenses, joint or several, or actions in respect thereof
(collectively, the "Claims"), to which each such indemnified party becomes
subject, under the 1933 Act or otherwise, insofar as such Claims arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the registration statement or prospectus or any amendment or
supplement thereto or any document filed under a state securities or blue sky
law (collectively, the "Registration Documents") or insofar as such Claims arise
out of or are based upon the omission or alleged omission to state in any
Registration Document a material fact required to be stated therein or necessary
to make the statements made therein not misleading, and will reimburse any such
indemnified party for any legal or other expenses reasonably incurred by such
indemnified party in investigating or defending any such Claim; provided that
the Company shall not be liable in any such case to a particular indemnified
party to the extent such Claim is based upon an untrue statement or alleged
untrue statement of a material fact or omission or alleged omission of a
material fact made in any Registration Document in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such indemnified party specifically for use in the preparation of such
Registration Document.
(c) In connection with any registration statement in which any
Seller is participating, each Seller, severally and not jointly, shall
indemnify, to the extent permitted by law, and hold harmless the Company, each
of its directors, each of its officers who have signed the registration
statement, each other person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act, each other Seller and each underwriter,
any officer, director, employee or agent of any such other Seller or underwriter
and each other person, if any, who controls such other Seller or underwriter
within the meaning of Section 15 of the 1933 Act against any Claims to which
each such indemnified party may become subject under the 1933 Act or otherwise,
insofar as such Claims (or actions in respect thereof) are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
Registration Document, or insofar as any Claims are based upon the omission or
alleged omission to state in any Registration Document a material fact required
to be stated therein or necessary to make the statements made therein not
misleading, and will reimburse any such indemnified party for any legal or other
expenses reasonably incurred by such indemnified party in investigating or
defending any such claim; provided, however, that such indemnification or
reimbursement shall be payable only if, and to the extent that, any such Claim
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Registration Document in reliance
upon and in conformity with written information furnished to the Company by the
Seller specifically for use in the preparation thereof.
12
(d) Any person entitled to indemnification under Paragraphs 7(b)
or 7(c) above shall notify promptly the indemnifying party in writing of the
commencement of any Claim if a claim for indemnification in respect thereof is
to be made against an indemnifying party under this Paragraph 7(d), but the
omission of such notice shall not relieve the indemnifying party from any
liability which it may have to any indemnified party otherwise than under
Paragraph 7(b) or 7(c) above, except to the extent that such failure shall
materially adversely affect any indemnifying party or its rights hereunder. In
case any action is brought against the indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in, and, to the extent that it chooses, to assume the
defense thereof with counsel reasonably satisfactory to the indemnified party;
and, after notice from the indemnifying party to the indemnified party that it
so chooses, the indemnifying party shall not be liable for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, however,
that (i) if the indemnifying party fails to take reasonable steps necessary to
defend diligently the Claim within twenty (20) days after receiving notice from
the indemnified party that the indemnified party believes it has failed to do
so; (ii) if the indemnified party who is a defendant in any action or proceeding
which is also brought against the indemnifying party reasonably shall have
concluded that there are legal defenses available to the indemnified party which
are not available to the indemnifying party; or (iii) if representation of both
parties by the same counsel is otherwise inappropriate under applicable
standards of professional conduct, the indemnified party shall have the right to
assume or continue its own defense as set forth above (but with no more than one
firm of counsel for all indemnified parties in each jurisdiction, except to the
extent any indemnified party or parties reasonably shall have concluded that
there are legal defenses available to such party or parties which are not
available to the other indemnified parties or to the extent representation of
all indemnified parties by the same counsel is otherwise inappropriate under
applicable standards of professional conduct) and the indemnifying party shall
be liable for any reasonable expenses therefor; provided, that no indemnifying
party shall be subject to any liability for any settlement of a Claim made
without its consent (which may not be unreasonably withheld, delayed or
conditioned). If the indemnifying party assumes the defense of any Claim
hereunder, such indemnifying party shall not enter into any settlement without
the consent of the indemnified party if such settlement attributes liability to
the indemnified party.
(e) If for any reason the indemnity provided in Paragraphs 7(b) or
7(c) above is unavailable, or is insufficient to hold harmless, an indemnified
party, then the indemnifying party shall contribute to the amount paid or
payable by the indemnified party as a result of any Claim in such proportion as
is appropriate to reflect the relative benefits received by the indemnifying
party on the one hand and the indemnified party on the other from the
transactions contemplated by this Agreement. If, however, the allocation
provided in the immediately preceding sentence is not permitted by applicable
law, or if the indemnified party failed to give the notice required by Paragraph
7(d) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
indemnifying party and the indemnified party as
13
well as any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable in respect of any Claim shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such Claim. Notwithstanding the
foregoing, no underwriter or controlling person thereof, if any, shall be
required to contribute, in respect of such underwriter's participation as an
underwriter in the offering, any amount in excess of the amount by which the
total price at which the Registrable Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The obligation of any
underwriters to contribute pursuant to this paragraph (e) shall be several in
proportion to their respective underwriting commitments and not joint.
(f) The provisions of Paragraphs 7(b) through 7(e) of this
Agreement shall be in addition to any other rights to indemnification or
contribution which any indemnified party may have pursuant to law or contract
and shall remain operative and in full force and effect regardless of any
investigation made or omitted by or on behalf of any indemnified party and shall
survive the transfer of the Registrable Securities by any such party.
(g) The Registered Holders shall have certain "piggy-back"
registration rights with respect to the Registrable Securities as hereinafter
provided:
A. If at any time after the Final Closing Date, the Company
shall file with the SEC a registration statement under the 1933 Act registering
any shares of Common Stock, the Company shall give written notice to each Seller
thereof prior to such filing.
B. Within fifteen (15) days after such notice from the
Company, each Registered Holder shall give written notice to the Company whether
or not the Registered Holder desires to have all of the Registered Holder's
Registrable Securities included in the registration statement. If a Registered
Holder fails to give such notice within such period, such Registered Holder
shall not have the right to have Registered Holder's Registrable Securities
registered pursuant to such registration statement. If a Registered Holder gives
such notice, then the Company shall include such Registered Holder's Registrable
Securities in the registration statement, at the Company's sole cost and
expense, subject to the remaining terms of this Paragraph 7(g).
C. If the registration statement relates to an underwritten
offering, and the underwriter shall determine in writing that the total number
of shares of Common Stock to be
14
included in the offering, including the Registrable Securities, shall exceed the
amount which the underwriter deems to be appropriate for the offering, the
number of shares of the Registrable Securities shall be reduced in the same
proportion as the remainder of the shares in the offering and each Registered
Holder's Registrable Securities included in such registration statement will be
reduced proportionately. For this purpose, if other securities in the
registration statement are derivative securities, their underlying shares shall
be included in the computation. The Registered Holders shall enter into such
agreements as may be reasonably required by the underwriters and the Registered
Holders shall pay to the underwriters commissions relating to the sale of their
respective Registrable Securities.
D. Each Registered Holder shall have two (2) opportunities
to have the Registrable Securities registered under this Paragraph 7(g).
E. A Registered Holder shall furnish in writing to the
Company such information as the Company shall reasonably require in connection
with a registration statement.
(h) If and whenever the Company is required by the provisions of
this Paragraph 7 to use its best efforts to register any Registrable Securities
under the 1933 Act, the Company shall, as expeditiously as possible under the
circumstances:
A. Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective as soon as possible after filing
and remain effective.
B. Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement current and
effective and to comply with the provisions of the 1933 Act, and any regulations
promulgated thereunder, with respect to the sale or disposition of all
Registrable Securities covered by the registration statement required to effect
the distribution of the securities, but in no event shall the Company be
required to do so for a period of more than five (5) years following the
effective date of the registration statement.
C. Furnish to the Registered Holders participating in the
offering, copies (in reasonable quantities) of summary, preliminary, final,
amended or supplemented prospectuses, in conformity with the requirements of the
1933 Act and any regulations promulgated thereunder, and other documents as
reasonably may be required in order to facilitate the disposition of the
securities, but only while the Company is required under the provisions hereof
to keep the registration statement current.
D. Use its best efforts to register or qualify the
Registrable Securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions of the United States as the
Registered Holders participating in the offering shall reasonably request, and
do any and all other acts and things which may be reasonably necessary
15
to enable each participating Registered Holder to consummate the disposition of
the Registrable Securities in such jurisdictions.
E. Notify each Registered Holder selling Registrable
Securities, at any time when a prospectus relating to any such Registrable
Securities covered by such registration statement is required to be delivered
under the 1933 Act, of the Company's becoming aware that the prospectus included
in such registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing, and promptly prepare and furnish to each
such Registered Holder selling Registrable Securities a reasonable number of
copies of a prospectus supplemented or amended so that, as thereafter delivered
to the purchasers of such Registrable Securities, such prospectus shall not
include 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 in the light of the circumstances then existing.
F. As soon as practicable after the effective date of the
registration statement, and in any event within eighteen (18) months thereafter,
make generally available to Registered Holders participating in the offering an
earnings statement (which need not be audited) covering a period of at least
twelve (12) consecutive months beginning after the effective date of the
registration statement which earnings statement shall satisfy the provisions of
Section 11(a) of the 1933 Act, including, at the Company's option, Rule 158
thereunder. To the extent that the Company files such information with the SEC
in satisfaction of the foregoing, the Company need not deliver the above
referenced earnings statement to Registered Holders.
G. Upon request, deliver promptly to counsel for each
Registered Holder participating in the offering copies of all correspondence
between the SEC and the Company, its counsel or auditors and all memoranda
relating to discussions with the SEC or its staff with respect to the
registration statement and permit each such Registered Holder to do such
investigation at such Registered Holder's sole cost and expense, upon reasonable
advance notice, with respect to information contained in or omitted from the
registration statement as it deems reasonably necessary. Each Registered Holder
agrees that it will use its best efforts not to interfere unreasonably with the
Company's business when conducting any such investigation and each Registered
Holder shall keep any such information received pursuant to this Paragraph 7G
confidential.
H. Provide a transfer agent and registrar located in the
United States for all such Registrable Securities covered by such registration
statement not later than the effective date of such registration statement.
I. List the Registrable Securities covered by such
registration statement on such exchanges and/or on the NASDAQ Stock Market as
the Common Stock is then currently listed upon.
16
J. Pay all Registration Expenses (as defined below)
incurred in connection with a registration of Registrable Securities, whether or
not such registration statement shall become effective; provided that each
Registered Holder shall pay all underwriting discounts, commissions and transfer
taxes, and their own counsel and accounting fees, if any, relating to the sale
or disposition of such Registered Holder's Registrable Securities pursuant to a
registration statement. As used herein, "Registration Expenses" means any and
all reasonable and customary expenses incident to performance of or compliance
with the registration rights set forth herein, including, without limitation,
(i) all SEC and stock exchange or NASDAQ Stock Market registration and filing
fees, (ii) all fees and expenses of complying with state securities or blue sky
laws (including reasonable fees and disbursements of counsel for the
underwriters in connection with blue sky qualifications of the Registrable
Securities but no other expenses of the underwriters or their counsel), (iii)
all printing, messenger and delivery expenses, and (iv) the reasonable fees and
disbursements of counsel for the Company and the Company's independent public
accountants.
(i) The Company acknowledges that there is no adequate remedy at
law for failure by it to comply with the provisions of this Paragraph 7 and that
such failure would not be adequately compensable in damages, and therefore
agrees that its agreements contained in this Paragraph 7 may be specifically
enforced. In the event that the Company shall fail to file such registration
statement when required pursuant to Paragraph 7(a) above or to keep any
registration statement effective as provided in this Paragraph or otherwise
fails to comply with its obligations and agreements in this Paragraph 7, then,
in addition to any other rights or remedies Sellers may have at law or in
equity, including without limitation, the right of rescission, the Company shall
indemnify and hold harmless each holder of Placement Agent Warrants from and
against any and all manner or loss which they may incur as a result of such
failure. In addition, the Company shall also reimburse such holders for any and
all reasonable legal fees and expenses incurred by them in enforcing their
rights pursuant to this Paragraph 7, regardless of whether any litigation was
commenced; provided, however, that the Company shall not be liable for the fees
and expenses of more than one law firm, which firm shall be designated by the
Placement Agent.
8. CONDITIONS. The following obligations of the Company shall be
satisfied or fulfilled on or prior to the date of each Closing, unless otherwise
agreed to in writing by the Placement Agent:
(a) The Company shall have delivered to the Placement Agent, at
the Initial Closing, (i) a currently-dated long-form good standing certificate
or telegram from the Secretary of State where the Company is incorporated and
each other jurisdiction in which the Company is qualified to do business as a
foreign corporation; (ii) the articles of incorporation (as amended) of the
Company and each Subsidiary, as currently in effect, certified by the Secretary
of State of the state where the Company and each Subsidiary is incorporated;
(iii) by-laws of the Company certified by the secretary of the Company; and (iv)
certified resolutions of the Board of Directors
17
of the Company approving this Agreement, the sale of the Common Stock and the
Placement Agent Warrants, and the registration of the Registrable Securities.
(b) There shall have occurred no event which has a Material
Adverse Effect on the Company or any of the Subsidiaries or any of their
respective businesses, assets, prospects or the Company's securities since the
date of this Agreement.
(c) No litigation or administrative proceeding shall have been
threatened or commenced against the Company or any of the Subsidiaries which (i)
seeks to enjoin or otherwise prohibit or restrict the consummation of the
transactions contemplated by this Agreement or (ii) if adversely determined,
would have a Material Adverse Effect on the Company or the Company's securities.
(d) The Company shall have delivered to the Placement Agent a
certificate of its principal executive and financial officers as to the matters
set forth in Paragraphs 8(a), (b) and (c) of this Agreement and to the further
effect that (i) neither the Company nor any Subsidiary is in default, in any
respect, under any note, loan agreement, security agreement, mortgage, deed of
trust, indenture, contract, alliance agreement, lease, license, joint venture
agreement, agreement or other instrument to which it is a party, except as
disclosed in the Financial Statements or the Memorandum and except where such
default has not and will not have a Material Adverse Effect; (ii) the Company's
representations and warranties contained in this Agreement are true and correct
in all respects on such date with the same force and effect as if made on such
date; (iii) there has been no amendment or changes to the Company's or
Subsidiaries' articles of incorporation or by-laws or authorizing resolutions
from those delivered pursuant to Paragraph 8(a) of this Agreement; and (iv) no
event has occurred which, with or without the lapse of time or giving of notice,
or both, would constitute a breach or default thereof by the Company or any
Subsidiary or would cause acceleration of any obligation of the Company or any
Subsidiary, or could adversely affect the business, operations, financial
condition or prospects of the Company.
(e) The Placement Agent shall have received the opinion of Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP, counsel for the Company, dated as of the Closing
date in form and substance reasonably satisfactory to the Placement Agent and
its counsel.
(f) The Company shall have prepared and filed or delivered to
counsel for filing with the SEC and any states in which such filing is required,
a Form D relating to the sale of the Common Stock and such other documents and
certificates as are required.
(g) Subscriptions for at least the Minimum Amount of Common Stock
shall have been accepted by the Company.
(h) In addition to the right of the Placement Agent to terminate
this Agreement and not consummate the transactions contemplated by this
Agreement as a result of the failure of the Company to comply with any of its
obligations set forth in this Agreement, this Agreement
18
may be terminated by the Placement Agent by written notice to the Company at any
time prior to the Initial Closing if, in the Placement Agent's sole judgment,
(i) the Company and/or Subsidiaries shall have sustained a loss that is material
to the Company or its Subsidiaries, taken as a whole, whether or not insured, by
reason of fire, earthquake, flood, accident or other calamity, or from any labor
dispute or court or government action, order or decree; (ii) trading in
securities on any exchange or system shall have been suspended or limited either
generally or specifically with respect to the Company's Common Stock; (iii)
material governmental restrictions have been imposed on trading in securities
generally or specifically with respect to the Company's Common Stock (not in
force and effect on the date of this Agreement); (iv) a banking moratorium shall
have been declared by Federal or New York State authorities; (v) an outbreak of
major international hostilities or other national or international calamity
shall have occurred; (vi) the Congress of the United States or any state
legislative body shall have passed or taken any action or measure, or such
bodies or any governmental body or any authoritative accounting institute, or
board, or any governmental executive shall have adopted any orders, rules or
regulations, which the Placement Agent reasonably believes is likely to have a
Material Adverse Effect on the business, financial condition or financial
statements of the Company or the market for the Common Stock; (vii) the Common
Stock shall have been delisted from NASDAQ or the Company shall have received
notice from NASDAQ advising the Company of its intention to have the Common
Stock delisted from NASDAQ, whether conditional or otherwise, or the Company
shall fail to meet the requirements for continued listing on NASDAQ; or (viii)
there shall have been, in the Placement Agent's judgment, a material decline in
the Dow Xxxxx Industrial Index or the market price of the Common Stock at any
time subsequent to the date of this Agreement.
9. COVENANTS OF THE COMPANY. The Company agrees at all times as long as
the Placement Agent Warrants may be exercised, to keep reserved from the
authorized and unissued Common Stock, such number of shares of Common Stock as
may be, from time to time, issuable upon exercise of the Placement Agent
Warrants.
10. FEES.
(a) In connection with the offering of the Common Stock the
Company will pay the Placement Agent a commission equal to ten (10%) percent of
the gross cash raised. The Placement Agent, in its sole and absolute discretion
and with the consent of the Company, can elect to receive, in lieu of all or
part of the cash commission, shares of Common Stock valued at the Purchase Price
(the "Placement Agent Shares"). In addition, the Placement Agent shall receive
five (5) year Warrants (the "Placement Agent Warrants") to purchase shares of
the Company's common stock equal to ten (10%) percent of the number of shares of
Common Stock sold. The exercise price of the Placement Agent Warrants will be
equal to 120% of the price at which the Common Stock is sold. Shares of Common
Stock may be offered by certain other broker/dealers and the Placement Agent may
allot a portion of its compensation to such other broker/dealers.
19
(b) In addition, the Company will pay the Placement Agent a fee
equal to 10 percent (10%) of the gross proceeds, if any, received subsequent to
the Closing or subsequent to the termination of this Placement Agreement, as
applicable, from any party introduced to the Company by the Placement Agent;
provided that such proceeds shall have been received by the Company within one
(1) year after the date of such introduction and the Placement Agent shall have
notified the Company by December 31, 1999 that such introduction has been made.
(c) The Company shall reimburse the Placement Agent for up to
twenty-five thousand ($25,000) of its reasonable expenses (including reasonable
fees and expenses of its counsel) incurred directly in connection with the
transaction contemplated by this Agreement.
(d) All payments in connection with the sale of the Common Stock
shall be made pursuant to the terms and conditions of the escrow agreement dated
as of December 29,1999 between the Placement Agent and American Stock Transfer &
Trust Company, an executed copy of which has been delivered to and acknowledged
by the Company.
11. NOTICES. All notices provided for in this Agreement shall be in
writing signed by the party giving such notice, and delivered personally or sent
by overnight courier or messenger against receipt thereof or sent by registered
or certified mail, return receipt requested, or by facsimile transmission, if
confirmed by mail as provided in this Paragraph 11. Notices shall be deemed to
have been received on the date of personal delivery or facsimile or, if sent by
certified or registered mail, return receipt requested, shall be deemed to be
delivered on the third business day after the date of mailing. Notices shall be
sent to the following addresses:
TO THE COMPANY:
LASERSCOPE
0000 Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
TELECOPIER: (000) 000-0000
Attention: Xxxxxx XxXxxxxxxxxx, Chief Financial Officer
WITH A COPY TO:
XXXXXX, XXXXXXXXXX & XXXXXXXXX LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
TELECOPIER: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx, Esq.
TO PLACEMENT AGENT:
TAGLICH BROTHERS, X'XXXXXX, XXXXXX
20
& COMPANY, INCORPORATED
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
TELECOPIER: (000) 000-0000
Attention: Xx. Xxxxxxx X. Oh
WITH A COPY TO:
XXXXXXXX XXXXXXXXX XXXXXX AROHNSON
& XXXXXX LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
TELECOPIER: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
or to such other address as any party shall designate in the manner provided in
this Paragraph 11.
12. MISCELLANEOUS.
(a) This Agreement constitutes the entire agreement between the
parties relating to the subject matter hereof, superseding any and all prior or
contemporaneous oral and prior written agreements and understandings. This
Agreement may not be modified or amended nor may any right be waived except by a
writing which expressly refers to this Agreement, states that it is a
modification, amendment or waiver and is signed by all parties with respect to a
modification or amendment or the party granting the waiver with respect to a
waiver. No course of conduct or dealing and no trade custom or usage shall
modify any provisions of this Agreement.
(b) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed entirely within such state. Each party hereby consents to
the exclusive jurisdiction of the Federal and state courts situated in New York
County, New York in connection with any action arising out of or based upon this
Agreement and the transactions contemplated by this Agreement.
(c) This Agreement shall be binding upon and inure to the benefit
of the parties hereto, and their respective personal representatives, successors
and permitted assigns.
(d) In the event that any provision of this Agreement becomes or
is declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision.
(e) Each party shall, without payment of any additional
consideration by any other party, at any time on or after the date of any
Closings take such further action and execute such other and further documents
and instruments as the other party may request in order to provide the other
party with the benefits of this Agreement.
21
(f) The captions and headings contained herein are solely for
convenience and reference and do not constitute a part of this Agreement.
(g) All references to any gender shall be deemed to include the
masculine, feminine or neuter gender, the singular shall include the plural and
the plural shall include the singular.
(h) This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same document.
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first aforesaid.
LASERSCOPE TAGLICH BROTHERS, X'XXXXXX, XXXXXX
& COMPANY, INCORPORATED
By: /s/ Xxxxxx XxXxxxxxxxxx By: /s/ Xxxxxxx x. Oh
---------------------------------- -------------------------------------
Name: Xxxxxx XxXxxxxxxxxx Name: Xxxxxxx X. Oh
Title: Chief Financial Officer Title: Vice President
