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EXHIBIT 4.3
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT is made as of the 23rd day of August,
2000, by and between Caliper Technologies Corp. (the "Company"), a corporation
organized under the laws of the State of Delaware, with its principal offices at
000 Xxxxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000-0000, and the purchaser
whose name and address is set forth on the signature page hereof (the
"Purchaser").
IN CONSIDERATION of the mutual covenants contained in this
Agreement, the Company and the Purchaser agree as follows:
1. SALE AND PURCHASE OF THE SHARES. The Company has authorized
the sale of up to 2,500,000 shares (the "Shares") of common stock, par value
$0.001 per share (the "Common Stock"), of the Company on the terms and subject
to the conditions set forth in this Agreement. At the Closing (as defined in
Section 3), the Company will sell to the Purchaser, and the Purchaser will buy
from the Company, upon the terms and conditions contained in this Agreement, the
number of Shares specified below such Purchaser's name on the signature page
attached hereto at the price set forth thereto.
2. OTHER PURCHASERS. The Company intends to enter into this same
form of purchase agreement with certain other investors (the "Other Purchasers")
and expects to complete sales of the Shares to them. The Purchaser's obligations
hereunder are expressly not conditioned on the purchase by any or all of the
Other Purchasers of the Shares that they have agreed to purchase from the
Company.
3. CLOSING; DELIVERY; CONDITIONS.
3.1 Closing. The purchase and sale of the Shares (the "Closing")
shall occur as soon as practicable after the execution of this Agreement by the
Company, and the Purchasers at the time and location (the "Closing Date") agreed
upon by the Company and the Placement Agent. The Placement Agent will promptly
notify the Purchasers of the date, place and time of the Closing by facsimile
transmission or otherwise.
3.2 Delivery of the Shares. At the Closing, the Company will
deliver to each Purchaser certificates, registered in the name of such
Purchaser, representing the number of Company Shares to be purchased by such
Purchaser as set forth opposite such Purchaser's name on the signature page
hereto. Such payment of the purchase price therefor shall be made against
delivery of the certificate by wire transfers of immediately available funds in
the respective amounts set forth on the signature page hereto to the respective
accounts as designated in writing by the Company, as the case may be. The
name(s) in which the stock certificate are to be registered are set forth in the
Stock Certificates Questionnaire attached hereto as part of Appendix I.
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3.3 Closing Conditions.
(a) The Company's respective obligations to complete the
purchase and sale of the Shares and deliver the stock certificates representing
the Shares to the Purchasers at the Closing shall be subject to the following
conditions, any one or more of which may be waived by the Company:
(1) receipt by the Company of same-day funds in the full
amount of the purchase price for the Shares being purchased hereunder;
and
(2) the accuracy of the representations and warranties
made by the Purchasers and the fulfillment of those obligations of the
Purchasers to be fulfilled prior to the Closing.
3.4 The Purchaser's obligation to accept delivery of such stock
certificate(s) and to pay for the Shares evidenced thereby shall be subject to
the accuracy in all material respects of the representations and warranties made
by the Company herein and the fulfillment in all material respects of those
obligations of the Company to be fulfilled prior to Closing.
4. CERTAIN DEFINITIONS. Unless the context otherwise requires,
the terms defined in this Section 4 shall have the meaning herein specified for
purposes of this Agreement.
"Agreement" means this agreement, including the exhibits and
appendices thereto.
"Agreements" means this Agreement and the agreements executed by
the Other Purchasers, collectively.
"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities and Exchange Act of 1934, as
amended from time to time.
"Material Adverse Change" means a material adverse change in the
condition (financial or otherwise), properties, business, or results of
operations of the Company.
"Material Adverse Effect" means a material adverse effect on the
condition (financial or otherwise), properties, business, or results of
operations of the Company.
"Placement Agent" means CIBC World Markets Corp., Chase
Securities Inc., FleetBoston Xxxxxxxxx Xxxxxxxx Inc., and Gruntal & Co. LLC
"Purchasers" means the Purchaser and the Other Purchasers.
"Private Placement Memorandum" means the Confidential Private
Placement Memorandum dated August 14, 2000, including all exhibits thereto.
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"Registration Statement" means the registration statement on
Form S-1, as may be amended, filed with the Commission covering the re-sale of
the Shares.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The
Company hereby represents and warrants to, and covenants with, the Purchaser as
follows:
5.1 Organization and Qualification. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. The Company is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which the nature of
the business conducted by it or location of the assets or properties, owned,
leased or licensed by it requires such qualification, except where failure to so
qualify or to be in good standing would not have a Material Adverse Effect on
the Company.
5.2 Authorized Capital Stock. The Company had the authorized and
outstanding capital stock set forth under the heading "Capitalization" in the
Private Placement Memorandum, as of the date set forth therein. All of the
issued and outstanding shares of the Company's Common Stock have been duly
authorized and validly issued, are fully paid and nonassessable, have been
issued in compliance with all federal and state securities laws, were not issued
in violation of or subject to any preemptive rights or other rights to subscribe
for or purchase securities, and conform in all material respects to the
description thereof contained in the Private Placement Memorandum. Except as
disclosed in or contemplated by the Private Placement Memorandum, the Company
does not have outstanding any options to purchase, or any preemptive rights or
other rights to subscribe for or to purchase, any securities or obligations
convertible into, or any contracts or commitments to issue or sell, shares of
its capital stock.
5.3 Shares. The Shares have been duly authorized and, when
issued, delivered and paid for in the manner set forth in this Agreement, will
be duly authorized, validly issued, fully paid and nonassessable, and will
conform in all material respects to the description thereof set forth in the
Private Placement Memorandum. No preemptive rights or other rights to subscribe
for or purchase exist with respect to the issuance and sale of the Shares by the
Company pursuant to this Agreement. No stockholder of the Company has any right
(which has not been waived or has not expired by reason of lapse of time
following notification of the Company's intent to file the Registration
Statement) to require the Company to register the sale of any shares owned by
such stockholder under the Securities Act in the Registration Statement. No
further approval or authority of the stockholders or the Board of Directors of
the Company will be required for the issuance and sale of the Shares to be sold
by the Company as contemplated herein.
5.4 Corporate Acts and Proceedings. The Company has full legal
right, corporate power and authority to enter into the Agreements and perform
the transactions contemplated hereby. The Agreements have been duly and validly
authorized, executed and delivered by the Company. The making and performance of
the Agreements by the Company and the consummation of the transactions herein
contemplated will not violate any provision of the organizational documents of
the Company and will not result in the creation of any lien, charge, security
interest or encumbrance
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upon any assets of the Company pursuant to the terms or provisions of, or will
not conflict with, result in the breach or violation of, or constitute, either
by itself or upon notice or the passage of time or both, a default under any
agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit
or other instrument to which the Company is a party or by which the Company or
its properties may be bound or affected and in each case which would have a
Material Adverse Effect or, to the Company's knowledge, any statute or any
authorization, judgment, decree, order, rule or regulation of any court or any
regulatory body, administrative agency or other governmental body applicable to
the Company or its properties. No consent, approval, authorization or other
order of any court, regulatory body, administrative agency or other governmental
body is required for the execution and delivery of this Agreement or the
consummation of the transactions contemplated by this Agreement, except for
compliance with the Blue Sky laws and federal securities laws applicable to the
offering of the Shares. Upon their execution and delivery, and assuming the
valid execution thereof by the respective Purchasers, the Agreements will
constitute valid and binding obligations of the Company, enforceable in
accordance with their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of 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 agreements of the Company
in Section 9 hereof may be legally unenforceable.
5.5 No Actions. Except as disclosed in the Private Placement
Memorandum, there are no legal or governmental actions, suits or proceedings
pending or, to the Company's knowledge, overtly threatened to which the Company
or may be a party or of which property owned or leased by the Company or may be
the subject, or related to environmental or discrimination matters, which
actions, suits or proceedings, individually or in the aggregate, might prevent
or might reasonably be expected to materially and adversely affect the
transactions contemplated by this Agreement or result in a Material Adverse
Change; and no labor disturbance by the employees of the Company exists, to the
Company's knowledge, or is imminent which might reasonably be expected to have a
Material Adverse Effect. Except as disclosed in the Private Placement
Memorandum, the Company is not a party to or subject to the provisions of any
material injunction, judgment, decree or order of any court, regulatory body
administrative agency or other governmental body.
5.6 Proprietary Rights. Except as disclosed in the Private
Placement Memorandum, (i) to the Company's knowledge, the Company has filed for
or holds licenses or options for the inventions, patent applications, patents,
trademarks (both registered and unregistered), trade names, copyrights and trade
secrets necessary for the conduct of the Company's business as currently
conducted and as the Private Placement Memorandum indicates the Company
contemplates conducting (collectively, the "Intellectual Property") except where
the failure to have such rights would not reasonably be expected to have a
Material Adverse Effect; and (ii) to the Company's knowledge (for each of the
following subsections (a) through (e)): (a) there are no third parties who have
any ownership rights to any Intellectual Property that is owned by, or has been
licensed to the Company for the product indications described in the Private
Placement Memorandum in the case of any business the Company has or intends to
conduct during the year ending December 31, 2000 that would preclude the Company
from conducting its business as currently conducted and as the
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Private Placement Memorandum indicates the Company contemplates conducting; (b)
there are currently no sales of any products that would constitute an
infringement by third parties of any Intellectual Property owned, licensed or
optioned by the Company; (c) there is no pending or threatened action, suit,
proceeding or claim by others challenging the rights of the Company in or to any
Intellectual Property owned, licensed or optioned by the Company, other than
non-material claims; (d) there is no pending or threatened action, suit,
proceeding or claim by others challenging the validity or scope of any
Intellectual Property owned, licensed or optioned by the Company, other than
non-material claims; and (e) there is no pending or threatened action, suit,
proceeding or claim by others that the Company infringes or otherwise violate
any patent, trademark, copyright, trade secret or other proprietary right of
others, other than non-material claims.
5.7 No Material Adverse Change. Since June 30, 2000, and except
as disclosed in the Private Placement Memorandum, (i) the Company has not
incurred any material liabilities or obligations, indirect, or contingent, or
entered into any material verbal or written agreement or other transaction which
is not in the ordinary course of business or which could reasonably be expected
to have a Material Adverse Effect; (ii) the Company has not sustained any
material loss or interference with its businesses or properties from fire,
flood, windstorm, accident or other calamity not covered by insurance; (iii) the
Company has not paid or declared any dividends or other distributions with
respect to its capital stock and the Company is not in default in the payment of
principal or interest on any outstanding debt obligations; (iv) there has not
been any change in the capital stock of the Company other than the sale of the
Shares hereunder and shares or options issued pursuant to employee equity
incentive plans or purchase plans, or indebtedness material to the Company
(other than in the ordinary course of business); and (v) there has not been a
Material Adverse Change.
5.8 Financial Statement. Ernst & Young LLP (a) have expressed
their opinion with respect to the consolidated financial statements included in
the Company's Annual Report on Form 10-K for the fiscal year ended December 31,
1999, (b) have not given the Company any indication that they will not include
such opinion in the Registration Statement and the Prospectus, and (c) have
confirmed to the Company that they are independent accountants as required by
the Securities Act and the rules and regulations promulgated thereunder.
5.9 No Defaults. Except as to defaults, violations and breaches
which individually or in the aggregate would not be material to the Company, the
Company is not in violation or default of any provision of its certificate of
incorporation or bylaws, or other organizational documents, or in breach of, or
default with respect to, any provision of any material agreement filed as an
exhibit to the Company's filings with the Commission, judgment, decree, order,
mortgage, deed of trust, lease, franchise, license, indenture, or permit to
which it is a party or by which it or any of its properties are bound; and there
does not exist any state of fact which, with notice or lapse of time or both,
would constitute an event of breach or default on the part of the Company as
defined in such documents, except such breaches or defaults which individually
or in the aggregate would not reasonably be expected to have a Material Adverse
Effect on the Company.
5.10 Compliance. The Company believes that it is conducting its
business in compliance with all applicable laws, rules and regulations of the
jurisdictions in which it is
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conducting business, including, without limitation, all applicable local, state
and federal environmental laws and regulations; except where failure to be so in
compliance would not have a Material Adverse Effect.
5.11 Disclosure. No facts have come to the Company's attention
which cause the Company to believe that the statements in the Private Placement
Memorandum, including the Exhibits thereto as of their respective dates, when
taken together contain an untrue or misleading statement of material fact, or
omit a material fact necessary to make the statements therein not misleading.
5.12 Additional Information. The Company represents and warrants
that the information contained in the following documents, which the Placement
Agent has furnished to the Purchaser, or will furnish prior to the Closing, is
true and correct in all material respects as of the respective dates that they
were filed with the Commission, or their final dates, if not filed with the
Commission:
(a) the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1999;
(b) the Company's Quarterly Report on Form 10-Q for
the quarterly period ended March 31, 2000;
(c) the Company's Proxy Statement for the 2000
Annual Meeting of Stockholders;
(d) the Company's Quarterly Report on Form 10-Q for
the quarterly period ended June 30, 2000;
(e) the Registration Statement;
(f) the Private Placement Memorandum, including all
addenda and exhibits thereto (other than the
Appendices); and
(g) all other documents, if any, filed by the
Company with the Commission since August 11,
2000 pursuant to the reporting requirements of
the Exchange Act.
5.13 Legal Opinions. Prior to the Closing, Xxxxxx Godward LLP,
counsel to the Company, will deliver its legal opinion to the Placement Agent
solely for the benefit of the Placement Agent, substantially in such form as
such counsel rendering the opinion and the Placement Agent may agree upon.
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6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER.
6.1 Investment Intent and Expense. The Purchaser represents and
warrants to, and covenants with, the Company that: (i) the Purchaser is
knowledgeable, sophisticated and experienced in making, and is qualified to
make, decisions with respect to investments in shares representing an investment
decision like that involved in the purchase of the Shares, including investments
in securities issued by the Company, and has requested, received, reviewed and
considered all information it deems relevant in making an informed decision to
purchase the Shares; (ii) the Purchaser is acquiring the number of Shares set
forth in Section 2 above in the ordinary course of its business and for its own
account for investment (as defined for purposes of the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvement Act of 1976 and the regulations thereunder) only and with
no present intention of distributing any of such Shares or any arrangement or
understanding with any other persons regarding the distribution of such Shares
within the meaning of Section 2(11) of the Securities Act of 1933; (iii) the
Purchaser 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 Act
and the Rules and Regulations; (iv) the Purchaser has completed or caused to be
completed the Registration Statement Questionnaire and the Stock Certificate
Questionnaire, both attached hereto as Appendix I, 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 effective date of the
Registration Statement; (v) the Purchaser has, in connection with its decision
to purchase the number of Shares set forth in Section 2 above, relied solely
upon the Private Placement Memorandum and the documents included therein and the
representations and warranties of the Company contained herein; and (vi) the
Purchaser is an "qualified institutional buyer" within the meaning of Rule 144A
promulgated under the Securities Act.
6.2 Restrictions on Transfer. The Purchaser hereby covenants
with the Company not to make any sale of the Shares without satisfying the
prospectus delivery requirement under the Securities Act, and the Purchaser
acknowledges and agrees that such Shares are not transferable on the books of
the Company unless the certificate submitted to the transfer agent evidencing
the Shares is accompanied by a separate Purchaser's Certificate: (i) in the form
of Appendix II hereto, (ii) executed by an officer of, or other authorized
person designated by, the Purchaser, and (iii) to the effect that (A) the Shares
have been sold in accordance with the Registration Statement, the Securities Act
and the Rules and Regulations and any applicable state securities or blue sky
laws and (B) the requirement of delivering a current prospectus has been
satisfied. The Purchaser acknowledges that there may occasionally be times when
the Company, in good faith and with consideration by the Board of Directors or a
committee thereof, determines the use of the prospectus forming a part of the
Registration Statement should be suspended until such time as an amendment or
supplement to the Registration Statement or the Prospectus has been filed by the
Company and any such amendment to the Registration Statement is declared
effective by the Commission, or until such time as the Company has filed an
appropriate report with the Commission pursuant to the Exchange Act. The
Purchaser hereby covenants that it will not sell any Shares pursuant to said
prospectus during the period commencing at the time at which the Company gives
the Purchaser written notice of the suspension of the use of said prospectus and
ending at the time the Company gives the Purchaser written notice that the
Purchaser may thereafter effect sales pursuant to said
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prospectus. The Purchaser further covenants to notify the Company promptly of
the sale of all of its Shares. Notwithstanding the above, the Purchaser shall be
entitled to make any transfer or sale of the Shares pursuant to an available
exemption from the prospectus delivery requirements under the federal securities
laws if the Purchaser shall provide to the Company a detailed statement of the
circumstances surrounding the proposed transfer and an opinion of counsel
reasonably satisfactory to the Company stating that registration is not required
and that the transfer is in accordance with all applicable federal and state
securities laws; provided, however, that (i) no such notice or opinion of
counsel shall be necessary for a transfer made in compliance with Rule 144 and
(ii) no such opinion of counsel shall be necessary for a transfer by the
undersigned to an entity controlling, controlled by or under common control with
the Purchaser.
6.3 Authorization. The Purchaser further represents and warrants
to, and covenants with, the Company that (i) the Purchaser 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) upon the
execution and delivery of this Agreement, this Agreement shall constitute a
valid and binding obligation of the Purchaser enforceable 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 agreements of the Purchaser in Section 9 hereof may be
legally unenforceable.
6.4 Restriction on Sales, Short Sales and Hedging Transactions.
Purchaser represents and agrees that during the period of five business days
immediately prior to the execution of this Agreement by Purchaser, Purchaser did
not, and from such date through the effectiveness of the Registration Statement
(as defined below), Purchaser will not, directly or indirectly, execute or
effect or cause to be executed or effected any short sale, option or equity swap
transactions in or with respect to the Common Stock or any other derivative
security transaction the purpose or effect of which is to hedge or transfer to a
third party all or any part of the risk of loss associated with the ownership of
the Shares by the Purchaser; provided however, that the Purchaser shall be
allowed to effectuate such above described transactions after the Closing Date,
but only up to the aggregate number of Shares purchased by such Purchaser
hereunder, and then only in compliance with all applicable state and federal
securities laws and the rules and regulations thereunder.
6.5 No Legal, Tax or Investment Advice. Purchaser understands
that nothing in the Private Placement Memorandum, the Agreement or any other
materials presented to Purchaser in connection with the purchase and sale of the
Shares constitutes legal, tax or investment advice. Purchaser 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 the Shares.
6.6 Further Agreements of Purchaser
(a) The Purchaser understands that the Shares are being offered
and sold to it in reliance upon specific exemptions from the registration
requirements of the Securities Act, the Rules
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and Regulations and state securities laws and that the Company is relying upon
the truth and accuracy of, and the Purchaser's compliance with, the
representations, warranties, agreements, acknowledgments and understandings of
the Purchaser set forth herein in order to determine the availability of such
exemptions and the eligibility of the Purchaser to acquire the Shares.
(b) The Purchaser understands that its investment in the Shares
involves a significant degree of risk and that the market price of the Common
Stock has been volatile and that no representation is being made as to the
future value of the Common Stock. The Purchaser has the knowledge and experience
in financial and business matters as to be capable of evaluating the merits and
risks of an investment in the Shares and has the ability to bear the economic
risks of an investment in the Shares.
(c) The Purchaser understands that no United States federal or
state agency or any other government or governmental agency has passed upon or
made any recommendation or endorsement of the Shares.
(d) The Purchaser understands that, until such time as the
Registration Statement has been declared effective or the Shares may be sold
pursuant to Rule 144 under the Securities Act without any restriction as to the
number of securities as of a particular date that can then be immediately sold,
the Shares may bear a restrictive legend in substantially the following form
(and a stop-transfer order may be placed against transfer of the certificates
for the Shares):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE
SECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES UNDER SAID ACT, OR AN OPINION OF COUNSEL, IN FORM,
SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE COMPANY, THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR UNLESS SOLD
PURSUANT TO RULE 144 UNDER SAID ACT."
(e) The Purchaser's principal executive offices are in the
jurisdiction set forth immediately below the Purchaser's name on the signature
pages hereto.
7. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement or by the
Placement Agent, all covenants, agreements, representations and warranties made
by the Company and the Purchaser herein and in the certificates for the Shares
delivered pursuant hereto shall survive the execution of this Agreement, the
delivery to the Purchaser of the Shares being purchased and the payment
therefor.
8. COVENANTS.
8.1 Registration Procedures and Expenses. The Company shall:
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(a) as soon as practicable, but in any event no
later than September 15, 2000, prepare and file
with the Commission the Registration Statement
on Form S-1 relating to the sale of the Shares
by the Purchaser from time to time through the
automated quotation system of the Nasdaq
National Market or the facilities of any
national securities exchange on which the
Company's Common Stock is then traded or in
privately-negotiated transactions;
(b) use its reasonable efforts subject to receipt of
necessary information from the Purchasers, to
cause the Commission to notify the Company of
the Commission's willingness to declare the
Registration Statement effective and shall
therewith notify the Purchasers of the
declaration of effectiveness and shall also
promptly notify the Purchasers of any stop
orders issued by the Commission;
(c) prepare and file with the Commission such
amendments and supplements to the Registration
Statement and the prospectus used in connection
therewith as may be necessary to keep the
Registration Statement effective until the
earlier of (i) twenty-four (24) months after the
effective date of the Registration Statement or
(ii) the date on which all of the Shares have
been sold by the Purchasers or on which the
Shares may be sold pursuant to Rule 144 under
the Securities Act without any restriction as to
the number of securities as of a particular date
that can then be immediately sold;
(d) furnish to the Purchaser with respect to the
Shares registered under the Registration
Statement (and to each underwriter, if any, of
such Shares) such reasonable number of copies of
prospectuses in order to facilitate the public
sale or other disposition of all or any of the
Shares by the Purchaser;
(e) file documents required of the Company for
normal blue sky clearance in states specified in
writing by the Purchaser; 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 paragraphs (a) through (e) of this
Section 8.1 and the registration of the Shares
pursuant to the Registration Statement, other
than fees and expenses, if any, of counsel or
other advisers to the Purchaser or the Other
Purchasers or underwriting discounts, brokerage
fees and commissions incurred by the Purchaser
or the Other Purchasers, if any; and
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(g) With a view to making available to Purchaser the
benefits of Rule 144 (or its successor rule) and
any other rule or regulation of the Commission
that may at any time permit Purchaser to sell
the Shares to the public without registration,
the Company covenants and agrees to: (i) make
and keep public information available, as those
terms are understood and defined in Rule 144,
until the earlier of (A) such date as all of
Purchaser's Shares may be resold within a given
three-month period pursuant to Rule 144 or any
other rule or similar effect or (B) such date as
all of Purchaser's Shares shall have been
resold; and (ii) file with the Commission in a
timely manner all reports and other documents
required of the Company under the Securities Act
and under the Exchange Act.
8.2 Transfer of Shares After Registration. The Purchaser 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
8.1 or pursuant to a valid exemption from the prospectus delivery requirements
in accordance with Section 8.1, and that it will promptly notify the Company of
any changes in the information set forth in the Registration Statement regarding
the Purchaser or its Plan of Distribution.
8.3 Termination of Conditions and Obligations. The restrictions
imposed by Section 6 or this Section 8 upon the transferability of the Shares
shall cease and terminate as to any particular number of the Shares upon the
passage of twenty-four (24) months from the Closing Date or at such time as an
opinion of counsel satisfactory in form and substance to the Company shall have
been rendered to the effect that such conditions are not necessary in order to
comply with the Securities Act.
8.4 Information Available. So long as the Registration Statement
is effective covering the resale of Shares owned by the Purchaser, the Company
will furnish to the Purchaser:
(a) upon request, as soon as practicable after
available (but in the case of the Company's
Annual Report to Stockholders, within 120 days
after the end of each fiscal year of the
Company), one copy of (i) its Annual Report to
Stockholders (which Annual Report shall contain
financial statements audited in accordance with
generally accepted accounting principles by a
national firm of certified public accountants),
(ii) if not included in substance in the Annual
Report to Stockholders, its Annual Report on
Form 10-K, (iii) if not included in substance in
its Quarterly Reports to Shareholders, its
quarterly reports on Form 10-Q, and (iv) a full
copy of the particular Registration Statement
covering the Shares (the foregoing, in each
case, excluding exhibits);
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(b) upon the reasonable request of the Purchaser, a
reasonable number of copies of the prospectuses
to supply to any other party requiring such
prospectuses;
and the Company, upon the reasonable request of the Purchaser, will meet with
the Purchaser or a representative thereof at the Company's headquarters to
discuss information relevant for disclosure in the Registration Statement
covering the Shares subject to appropriate confidentiality limitations.
8.5 Subsequent Registration Rights. Until such time as the
Registration Statement is declared effective by the Commission, the Company
shall not grant any person or entity registration rights which are superior to,
or inconsistent with, the registration rights of the Purchasers hereunder.
9. INDEMNIFICATION. For the purpose of this Section 9 only:
(a) the term "Purchaser" shall include the Purchaser
and any affiliate, officer, employee, director,
limited partner, general partner or member of
such Purchaser; and 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 8.1.
(b) The Company agrees to indemnify and hold
harmless each of the Purchasers and each person,
if any, who controls any Purchaser within the
meaning of the Securities Act, against any and
all losses, claims, damages, liabilities or
expenses, joint or several, to which such
Purchasers or such controlling person may become
subject, under the Securities Act, the Exchange
Act, or any other federal or state statutory law
or regulation, or at common law or otherwise
(including in settlement of any litigation, if
such settlement is effected with the written
consent of the Company), insofar as such losses,
claims, damages, liabilities or expenses (or
actions in respect thereof as contemplated
below) arise out of or are based upon any untrue
statement or alleged untrue statement of any
material fact contained in the Registration
Statement, including the prospectus, financial
statements and schedules, and all other
documents filed as a part thereof, as amended at
the time of effectiveness of the Registration
Statement (the "Prospectus"), or any amendment
or supplement thereto, or arise out of or are
based upon the omission or alleged omission to
state in any of them a material fact required to
be stated therein or necessary to make the
statements in any of them, in light of the
circumstances under which they were made, not
misleading, or arise out of or are based in
whole or in part on any inaccuracy in the
representations and warranties of the Company
contained in this Agreement, or any failure of
the Company to perform in all material
12.
13
respects its obligations hereunder or under law,
and will reimburse each Purchaser and each such
controlling person for any legal and other
expenses as such expenses are reasonably
incurred by such Purchaser or such controlling
person in connection with investigating,
defending, settling, compromising or paying any
such loss, claim, damage, liability, expense or
action; provided, however, that the Company will
not be liable in any such case to the extent
that any such loss, claim, damage, liability or
expense arises out of or is based upon (i) an
untrue statement or alleged untrue statement or
omission or alleged omission made in the
Registration Statement, the Prospectus or any
amendment or supplement thereto in reliance upon
and in conformity with written information
furnished to the Company by or on behalf of the
Purchaser expressly for use therein, or (ii) the
failure of such Purchaser to comply with the
covenants and agreements contained in Sections
6.2 or 8.2 hereof respecting sale of the Shares,
or (iii) the inaccuracy of any representations
made by such Purchaser herein or (iv) any
statement or omission in any Prospectus that is
corrected in any subsequent Prospectus that was
delivered to the Purchaser prior to the
pertinent sale or sales by the Purchaser.
(c) Each Purchaser will severally indemnify and hold
harmless the Company, each of its directors,
each of its officers who signed the Registration
Statement and each person, if any, who controls
the Company within the meaning of the Securities
Act, against any losses, claims, damages,
liabilities or expenses to which the Company,
each of its directors, each of its officers who
signed the Registration Statement or controlling
person may become subject, under the Securities
Act, the Exchange Act, or any other federal or
state statutory law or regulation, or at common
law or otherwise (including in settlement of any
litigation, if such settlement is effected with
the written consent of such Purchaser) insofar
as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof as
contemplated below) arise out of or are based
upon any untrue or alleged untrue statement of
any material fact contained in the Registration
Statement, the Prospectus, or any amendment or
supplement thereto, or arise out of or are based
upon the omission or alleged omission to state
therein a material fact required to be stated
therein or necessary to make the statements
therein not misleading, in each case to the
extent, but only to the extent, that such untrue
statement or alleged untrue statement or
omission or alleged omission was made in the
Registration Statement, the Prospectus, or any
amendment or supplement thereto, in reliance
upon and in conformity with written information
furnished to the Company by or on behalf of any
Purchaser expressly for use therein, and will
reimburse the Company, each of its directors,
each of its officers who signed the
13.
14
Registration Statement or controlling person for
any legal and other expense reasonably incurred
by the Company, each of its directors, each of
its officers who signed the Registration
Statement or controlling person in connection
with investigating, defending, settling,
compromising or paying any such loss, claim,
damage, liability, expense or action. The
liability of a Purchaser under this Section 9(c)
shall be limited to an amount equal to the
aggregate amount such Purchaser paid for the
Shares purchased to this Agreement.
(d) Promptly after receipt by an indemnified party
under this Section 9 of notice of the threat or
commencement of any action, such indemnified
party will, if a claim in respect thereof is to
be made against an indemnifying party under this
Section 9 promptly notify the indemnifying party
in writing thereof; but the omission so to
notify the indemnifying party will not relieve
it from any liability which it may have to any
indemnified party for contribution or otherwise
than under the indemnity agreement contained in
this Section 9 or to the extent it is not
materially prejudiced as a result of such
failure. In case any such action is brought
against any indemnified party and such
indemnified party seeks or intends to seek
indemnity from an indemnifying party, the
indemnifying party will be entitled to
participate in, and, to the extent that it may
wish, jointly with all other indemnifying
parties similarly notified, to assume the
defense thereof with counsel reasonably
satisfactory to such indemnified party;
provided, however, if the defendants in any such
action include both the indemnified party and
the indemnifying party, based upon the advice of
such indemnified party's counsel, the
indemnified party shall have reasonably
concluded that there may be a conflict of
interest between the positions of the
indemnifying party and the indemnified party in
conducting the defense of any such action or
that there may be legal defenses available to it
and/or other indemnified parties which are
different from or additional to those available
to the indemnifying party, the indemnified party
or parties shall have the right to select
separate counsel to assume such legal defenses
and to otherwise participate in the defense of
such action on behalf of such indemnified party
or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of
its election so to assume the defense of such
action and approval by the indemnified party of
counsel, the indemnifying party will not be
liable to such indemnified party under this
Section 9 for any legal or other expenses
subsequently reasonably incurred by such
indemnified party in connection with the defense
thereof unless (i) the indemnified party shall
have employed such counsel in connection with
the assumption of legal defenses in accordance
with the proviso to the preceding
14.
15
sentence (it being understood, however, that the
indemnifying party shall not be liable for the
expenses of more than one separate counsel,
approved by such indemnifying party in the case
of paragraph (b), representing all of the
indemnified parties who are parties to such
action) or (ii) the indemnified party shall not
have employed counsel reasonably satisfactory to
the indemnified party to represent the
indemnified party within a reasonable time after
notice of commencement of action, in each of
which cases the reasonable fees and expenses of
counsel shall be at the expense of the
indemnifying party.
(e) If the indemnification provided for in this
Section 9 is required by its terms but is for
any reason held to be unavailable to or
otherwise insufficient to hold harmless an
indemnified party under paragraphs (b), (c) or
(d) of this Section 9 in respect to any losses,
claims, damages, liabilities or expenses
referred to herein, then each applicable
indemnifying party shall contribute to the
amount paid or payable by such indemnified party
as a result of any losses, claims, damages,
liabilities or expenses referred to herein (i)
in such proportion as is appropriate to reflect
the relative benefits received by the Company
and the Purchaser from the placement of Common
Stock or (ii) if the allocation provided by
clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to
reflect not only the relative benefits referred
to in clause (i) above but the relative fault of
the Company and the Purchaser in connection with
the statements or omissions or inaccuracies in
the representations and warranties in this
Agreement which resulted in such losses, claims,
damages, liabilities or expenses, as well as any
other relevant equitable considerations. The
respective relative benefits received by the
Company on the one hand and each Purchaser on
the other shall be deemed to be in the same
proportion as the amount paid by such Purchaser
to the Company pursuant to this Agreement for
the Shares purchased by such Purchaser that were
sold pursuant to the Registration Statement
bears to the difference (the "Difference")
between the amount such Purchaser paid for the
Shares that were sold pursuant to the
Registration Statement and the amount received
by such Purchaser from such sale. The relative
fault of such Selling Stockholders and each
Purchaser shall be determined by reference to,
among other things, whether the untrue or
alleged statement of a material fact or the
omission or alleged omission to state a material
fact or the inaccurate or the alleged inaccurate
representation and/or warranty relates to
information supplied by the Company or by such
Purchaser and the parties' relative intent,
knowledge, access to information and opportunity
to correct or prevent such statement or
omission. The amount paid or payable by
15.
16
a party as a result of the losses, claims,
damages, liabilities and expenses referred to
above shall be deemed to include, subject to the
limitations set forth in paragraph (c) of this
Section 9, any legal or other fees or expenses
reasonably incurred by such party in connection
with investigating or defending any action or
claim. The provisions set forth in paragraph (c)
of this Section 9 with respect to the notice of
the threat or commencement of any threat or
action shall apply if a claim for contribution
is to be made under this paragraph (e);
provided, however, that no additional notice
shall be required with respect to any threat or
action for which notice has been given under
paragraph (d) for purposes of indemnification.
The Company and each Purchaser agree that it
would not be just and equitable if contribution
pursuant to this Section 9 were determined
solely by pro rata allocation (even if the
Purchaser were treated as one entity for such
purpose) or by any other method of allocation
which does not take account of the equitable
considerations referred to in this paragraph.
Notwithstanding the provisions of this Section
9, no Purchaser shall be required to contribute
any amount in excess of the amount by which the
Difference exceeds the amount of any damages
that such Purchaser 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 Securities Act) shall be entitled
to contribution from any person who was not
guilty of such fraudulent misrepresentation. The
Purchasers' obligations to contribute pursuant
to this Section 9 are several and not joint.
10. BROKER'S FEE. The Purchaser acknowledges that the Company
intends to pay to the Placement Agent a fee in respect of the sale of the Shares
to the Purchaser. Each of the parties hereto hereby represents that, on the
basis of any actions and agreements by it, there are no other brokers or finders
entitled to compensation in connection with the sale of the Shares to the
Purchaser.
11. NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing, shall be mailed by first-class
registered or certified airmail, confirmed facsimile or nationally recognized
overnight express courier postage prepaid, and shall be deemed given when so
mailed and shall be delivered as addressed as follows:
(a) if to the Company, to:
Xxxxxx X. Xxxxxx, M.D.
President & CEO
Caliper Technologies Corp.
000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000-0000
16.
17
with a copy to:
Cooley Godward LLP
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Xxxxx X. Xxxxx, Esq.
or to such other person at such other place
as the Company shall designate to the
Purchaser in writing; and
(b) if to the Purchaser, at its address as set forth
at the end of this Agreement, or at such other
address or addresses as may have been furnished
to the Company in writing.
12. CHANGES. This Agreement may not be modified or amended
except pursuant to an instrument in writing signed by the Company and the
Purchaser.
13. 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.
14. 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.
15. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
the conflict of laws and the federal law of the United States of America.
16. SPECIFIC PERFORMANCE. The parties hereto hereby declare that
it is impossible to measure in money the damages which will accrue to party
hereto or to their assigns by reason of a failure to perform any of the
obligations under this Agreement and agree that the terms of this Agreement
shall be specifically enforceable. If any party hereto or their assigns
institutes any action or proceeding to specifically enforce the provisions
hereof, any person against whom such action or proceeding is brought hereby
waives the claim or defense therein that such party has an adequate remedy at
law, and such person shall not offer in any such action or proceeding the claim
or defense that such remedy at law exists.
17. 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.
17.
18
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as of the day
and year first above written.
CALIPER TECHNOLOGIES CORP.
--------------------------------
By: Xxxxxx X. Xxxxxx, M.D.
Its: President and Chief Executive
Officer
-------------------------------- --------------------------------
Name of Purchaser (Individual or Name of Individual representing
Institution) Purchaser (if an Institution)
-------------------------------- --------------------------------
Title of Individual representing Signature of Individual Purchaser or
Purchaser (if an Institution) Individual representing Purchaser
Address:
--------------------------------
Telephone:
--------------------------------
Telecopier:
--------------------------------
Price Per
Number to Be Share In Aggregate
Purchased Dollars Price
--------- ------- -----
$
18.
19
APPENDIX I
(one of two)
CALIPER TECHNOLOGIES CORP.
STOCK CERTIFICATE QUESTIONNAIRE
Please provide us with the following information as per Section 3 of the
Agreement.
1. The exact name that your Shares are to be registered in (this is the
name that will appear on your stock certificate(s)). You may use a
nominee name if appropriate:
------------------------------------------
2. The relationship between the Purchaser of the Shares and the Registered
Holder listed in response to item 1 above:
------------------------------------------
3. The mailing address of the Registered Holder listed in response to item
1 above:
------------------------------------------
------------------------------------------
------------------------------------------
------------------------------------------
4. The Social Security Number or Tax Identification Number of the
Registered Holder listed in response to item 1 above:
------------------------------------------
19.
20
APPENDIX I
(two of two)
CALIPER TECHNOLOGIES CORP.
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration
Statement, please provide us with the following information:
1. Pursuant to the "Selling Shareholder" section of the
Registration Statement, please state your or your organization's name exactly as
it should appear in the Registration Statement:
------------------------------------------------------------------
2. Please provide the number of shares that you or your
organization will own immediately after Closing, including those Shares
purchased by you or your organization pursuant to this Purchase Agreement and
those shares purchased by you or your organization through other transactions:
-------------------------------------------------------------------
3. Have you or your organization had any position, office or
other material relationship within the past three years with the Company or its
affiliates?
[ ] Yes [ ] No
If yes, please indicate the nature of any such relationships
below:
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
20.
21
APPENDIX II
Attention:
--------------------------
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
The undersigned, [an officer of, or other person duly authorized by]
-----------------------------------------------------------------
[fill in official name of individual or institution]
hereby certifies that he/she [said institution] is the Purchaser of the shares
evidenced by the attached certificate,
and as such, sold such shares on in accordance
------------------
Registration Statement number
--------------------------------------------------
[fill in the number of or otherwise
-------------------------------- and the requirement of delivering a identify
Registration Statement] current prospectus by the Company has been complied with
in connection with such sale.
Print or Type:
Name of Purchaser
(Individual or Institution):
-------------------------------
Name of Individual representing
Purchaser (if an Institution):
-------------------------------
Title of Individual representing
Purchaser (if an Institution):
-------------------------------
Signature by:
Individual Purchaser or Individual representing Purchaser:
---------------------------------
21.
22
SCHEDULE OF PURCHASERS
PURCHASER NUMBER OF SHARES
--------- ----------------
Caduceus Capital Trust 35,000
Caduceus Capital II, L.P. 48,500
PW Eucalyptus Fund, LLC 75,000
PW Eucalyptus Fund, Ltd. 5,000
Finsbury Worldwide Pharmaceutical Trust 36,500
Xxxxx Xxxxx Worldwide Health Sciences Portfolio 200,000
DWS Investment 250,000
Alliance Select Investors Series-Biotechnology Portfolio 200,000
Xxxxxx Small Company Growth Fund 150,000
Xxxxxx IPT - Small Company Growth Fund 500
Xxxxxx New Generation Fund 37,250
Xxxxxx IPT - New Generation Fund 250
Xxxxxx Mid Cap Growth Fund 12,000
SMALLCAP World Fund, Inc. 200,000
The Xxxxxxxx Fund 200,000
Lone Balsam, L.P. 15,800
Lone Sequoia, L.P. 13,200
Lone Spruce, L.P. 7,200
Lone Cypress, Ltd. 163,800
Baystar International, LTD 37,500
Baystar Capital, L.P. 87,500
UBS X'Xxxxxx LLC f/b/o UBS Global Equity Arbitrage Master Limited 100,000
Galleon Healthcare Offshore, Ltd. 42,500
Galleon Healthcare Partners, L.P. 42,500
Phoenix - Xxxxxxxx Small & Mid-Cap Growth Fund 45,780
Phoenix - Xxxxxxxx Small Cap Fund 39,000
The Phoenix Edge Series Fund: Phoenix - Xxxxxxxx Small & Mid-Cap Growth Series 220
S.A.C. Capital Associates, LLC 45,000
S.A.C. Healthco Fund, LLC 30,000
Clariden Biotechnology Equity Fund 40,000
3i Bioscience Investment Trust PLC 30,000
United Capital Management, Inc. 30,000
Investment 10 LLC 1,600
Biotechnology Value Fund II, L.P. 8,000
Biotechnology Value Fund, L.P. 10,400
KBC Asset Management 20,000
Narragansett I, LP 8,600
Narragansett Offshore, Ltd. 11,400
The Aries Master Fund II 11,673
Aries Domestic Fund, L.P. 6,347
Aries Domestic Fund II, L.P. 1,980
22.
