STOCK PURCHASE AGREEMENT
The Spectranetics Corporation
00 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Ladies & Gentlemen:
The undersigned, ______________________ (the "Investor"), hereby confirms
its agreement with you as follows:
1. This Stock Purchase Agreement (the "Agreement") is made as of December 22,
1998 between The Spectranetics Corporation, a Delaware corporation (the
"Company"), and the Investor.
2. The Company has authorized the sale and issuance of up to 3,800,000 shares
(the "Shares") of Common Stock of the Company, $.001 par value per share (the
"Common Stock"), subject to adjustment by the Company's Board of Directors, to
certain investors in a private placement conditioned upon registration of the
Shares for resale (the "Offering").
3. The Company and the Investor agree that the Investor will purchase from the
Company and the Company will sell to the Investor, for a purchase price of
$_________ per share, or an aggregate purchase price of $__________, ___________
Shares pursuant to the Terms and Conditions for Purchase of Shares attached
hereto as Annex I and incorporated herein by reference as if fully set forth
herein. Unless otherwise requested by the Investor, certificates representing
the shares purchased by the Investor will be registered in the Investor's name
and address as set forth below.
4. The Investor represents that, except as set forth below, (a) it has had no
position, office or other material relationship within the past three years with
the Company or its affiliates, (b) neither it, nor any group of which it is a
member or to which it is related, beneficially owns (including the right to
acquire or vote) any securities of the Company and (c) it has no direct or
indirect affiliation or association with any NASD member. Exceptions:
________________________________________________________________________________
________________________________________________________________________________
(If no exceptions, write "none." If left blank, response will be deemed to be
"none.")
Please confirm that the foregoing correctly sets forth the agreement
between us by signing in the space provided below for that purpose.
INVESTOR
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:______________________________________
______________________________________________
Tax ID No.:___________________________________
Contact name:_________________________________
Telephone:____________________________________
Name in which shares should be registered
(if different):_______________________________
AGREED AND ACCEPTED:
THE SPECTRANETICS CORPORATION
________________________________________________
By: Xxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
1. Authorization and Sale of the Shares. Subject to the terms and
conditions of this Agreement, the Company has authorized the sale of up to
3,800,000 Shares. The Company reserves the right to increase or decrease this
number.
2. Agreement to Sell and Purchase the Shares; Subscription Date.
2.1 At the Closing (as defined in Section 3), the Company will sell to the
Investor, and the Investor will purchase from the Company, upon the terms and
conditions hereinafter set forth, the number of Shares set forth on the
signature page hereto at the purchase price set forth on such signature page.
2.2 The Company proposes to enter into substantially identical Stock
Purchase Agreements with certain other investors (the "Other Investors") and
expects to complete sales of Shares to them. Other Investors will not receive
more favorable terms than the Investor. (The Investor and the Other Investors
are hereinafter sometimes collectively referred to as the "Investors," and this
Agreement and the Stock Purchase Agreements executed by the Other Investors are
hereinafter sometimes collectively referred to as the "Agreements.") The Company
will accept executed Agreements from Investors for the purchase of Shares
commencing upon the date on which the Company provides the Investors with the
proposed purchase price per Share and concluding upon the date (the
"Subscription Date") on which the Company has (i) executed Agreements with
Investors for the purchase of at least 3,000,000 Shares, and (ii) notified
BancBoston Xxxxxxxxx Xxxxxxxx (the "Placement Agent") in writing that it is no
longer accepting Agreements from Investors for the purchase of Shares. The
Company may not enter into any Agreements after the Subscription Date.
3. Delivery of the Shares at Closing. The completion of the purchase and
sale of the Shares (the "Closing") shall occur at a place and time (the "Closing
Date") to be specified by the Company and the Placement Agent, not later than 90
days after the date the Registration Statement (as hereinafter defined) is filed
with the Securities and Exchange Commission (the "SEC") and of which the
Investors will be notified in advance by the Placement Agent. At the Closing,
the Company shall deliver to the Investor one or more stock certificates
representing the number of Shares set forth on the signature page hereto, each
such certificate to be registered in the name of the Investor or, if so
indicated on the signature page hereto, in the name of a nominee designated by
the Investor.
The Company's obligation to issue the Shares to the Investor shall be
subject to the following conditions, any one or more of which may be waived by
the Company: (a) receipt by the Company of a certified or official bank check or
wire transfer of funds in the full amount of the purchase price for the Shares
being purchased hereunder as set forth on the signature page hereto; and (b) the
accuracy of the representations and warranties made by the Investors and the
fulfillment of those undertakings of the Investors to be fulfilled prior to the
Closing. Notwithstanding anything to the contrary elsewhere herein, the
Company's obligation to close shall be subject to the Company's receipt of at
least $6,000,000 in proceeds from the sale of the Shares.
The Investor's obligation to purchase the Shares shall be subject to the
following conditions, any one or more of which may be waived by the Investor:
(a) Investors shall have executed Agreements for the purchase of at least
3,000,000 Shares; (b) the Company shall have (i) filed a registration statement
(the "Registration Statement") within five (5) business days after the
Subscription Date, (ii) received an indication from the SEC that it has no
further comments with respect to the Registration Statement, and (iii) submitted
an acceleration request providing for the Registration Statement to be declared
effective at a time immediately following the Closing and on or prior to the
90th day after the date of its filing; and (c) satisfaction of all of the
conditions set forth in Section 6 of the Placement Agency Agreement dated as of
December 22, 1998 between the Company and the Placement Agent. The Investor's
obligations hereunder are expressly not conditioned on the purchase by any or
all of the Other Investors of the Shares that they have agreed to purchase from
the Company. Notwithstanding anything to the contrary elsewhere herein, the
Investor's obligation to close shall be subject to the Company's receipt of at
least $6,000,000 in proceeds from the sale of the Shares.
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4. Representations, Warranties and Covenants of the Company. The Company
hereby represents and warrants to, and covenants with, the Investor, as follows:
4.1 Organization. Each of the Company and its Subsidiaries (as defined in
Rule 405 under the Securities Act of 1933, as amended (the "Securities Act")),
is duly organized and validly existing in good standing under the laws of the
jurisdiction of its organization. Each of the Company and its Subsidiaries has
full power and authority to own, operate and occupy its properties and to
conduct its business as presently conducted and as described in the private
placement memorandum, dated November 9, 1998 distributed in connection with the
sale of the Shares (including the documents incorporated by reference therein,
the "Placement Memorandum") and is registered or qualified to do business and in
good standing in each jurisdiction in which it owns or leases property or
transacts business and where the failure to be so qualified would have a
material adverse effect upon the business, financial condition, properties or
operations of the Company and its Subsidiaries, considered as one enterprise,
and no proceeding has been instituted in any such jurisdiction, revoking,
limiting or curtailing, or seeking to revoke, limit or curtail, such power and
authority or qualification. The Company does not have any Subsidiaries nor does
it control, directly or indirectly, or own, directly or indirectly, any shares
of stock or any other equity interest of any corporation, partnership or limited
liability company, other than as disclosed in the Placement Memorandum.
4.2 Due Authorization. The Company has all requisite power and authority to
execute, deliver and perform its obligations under the Agreements, and the
Agreements have been duly authorized and validly executed and delivered by the
Company and constitute legal, valid and binding agreements of the Company
enforceable against the Company in accordance with their terms, except as rights
to indemnity and contribution may be limited by state or federal securities laws
or the public policy underlying such laws, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
4.3 Non-Contravention. The execution and delivery of the Agreements, the
issuance and sale of the Shares to be sold by the Company under the Agreements,
the fulfillment of the terms of the Agreements and the consummation of the
transactions contemplated thereby will not (A) conflict with or constitute a
violation of, or default (with the passage of time or otherwise) under, (i) any
material bond, debenture, note or other evidence of indebtedness, or under any
material lease, contract, indenture, mortgage, deed of trust, loan agreement,
joint venture or other agreement or instrument to which the Company or any
Subsidiary is a party or by which it or any of its Subsidiaries or their
respective properties are bound, (ii) the charter, by-laws or other
organizational documents of the Company or any Subsidiary, or (iii) any law,
administrative regulation, ordinance or order of any court or governmental
agency, arbitration panel or authority applicable to the Company or any
Subsidiary or their respective properties, or (B) result in the creation or
imposition of any lien, encumbrance, claim, security interest or restriction
whatsoever upon any of the material properties or assets of the Company or any
Subsidiary or an acceleration of indebtedness pursuant to any obligation,
agreement or condition contained in any material bond, debenture, note or any
other evidence of indebtedness or any material indenture, mortgage, deed of
trust or any other agreement or instrument to which the Company or any
Subsidiary is a party or by which any of them is bound or to which any of the
property or assets of the Company or any Subsidiary is subject. No consent,
approval, authorization or other order of, or registration, qualification or
filing with, any regulatory body, administrative agency, or other governmental
body in the United States is required for the execution and delivery of the
Agreements and the valid issuance and sale of the Shares to be sold pursuant to
the Agreements, other than such as have been made or obtained, and except for
any securities filings required to be made under federal or state securities
laws.
4.4 Capitalization. The capitalization of the Company as of October 31,
1998 is as set forth in the Placement Memorandum. The Company has not issued any
capital stock since that date other than pursuant to (i) employee benefit plans
disclosed in the Placement Memorandum, or (ii) outstanding warrants or options
disclosed in the Placement Memorandum. The Shares to be sold pursuant to the
Agreements have been duly authorized, and when issued and paid for in accordance
with the terms of the Agreements will be duly and validly issued, fully paid and
nonassessable. The outstanding shares of capital stock of the Company have been
duly and validly issued and are fully paid and nonassessable, have been issued
in compliance with all federal and state securities laws, and were not issued in
violation of any preemptive rights or similar rights to subscribe for or
purchase securities. Except as set forth in or contemplated by the Placement
Memorandum, there are no outstanding rights (including, without limitation,
preemptive rights), warrants or options to acquire, or instruments convertible
into or exchangeable for, any unissued shares of capital stock or other equity
interest in the Company or any Subsidiary, or any contract, commitment,
agreement, understanding or
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arrangement of any kind to which the Company is a party or of which the Company
has knowledge and relating to the issuance or sale of any capital stock of the
Company or any Subsidiary, any such convertible or exchangeable securities or
any such rights, warrants or options. The Company holds no shares of capital
stock in its Treasury. Without limiting the foregoing, no preemptive right,
co-sale right, registration right, right of first refusal or other similar right
exists with respect to the Shares or the issuance and sale thereof. No further
approval or authorization of any stockholder, the Board of Directors of the
Company or others is required for the issuance and sale of the Shares. The
Company owns the entire equity interest in each of its Subsidiaries, free and
clear of any pledge, lien, security interest, encumbrance, claim or equitable
interest, other than as described in the Placement Memorandum. Except as
disclosed in the Placement Memorandum, there are no stockholders agreements,
voting agreements or other similar agreements with respect to the Common Stock
to which the Company is a party or, to the knowledge of the Company, between or
among any of the Company's stockholders.
4.5 Legal Proceedings. There is no material legal or governmental
proceeding pending or, to the knowledge of the Company, threatened to which the
Company or any Subsidiary is or may be a party or of which the business or
property of the Company or any Subsidiary is or may be subject that is not
disclosed in the Placement Memorandum.
4.6 No Violations. Neither the Company nor any Subsidiary is in violation
of its charter, bylaws, or other organizational document, or in violation of any
law, administrative regulation, ordinance or order of any court or governmental
agency, arbitration panel or authority applicable to the Company or any
Subsidiary, which violation, individually or in the aggregate, would be
reasonably likely to have a material adverse effect on the business or financial
condition of the Company and its Subsidiaries, considered as one enterprise, or
is in default in any material respect in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any other
evidence of indebtedness in any indenture, mortgage, deed of trust or any other
agreement or instrument to which the Company or any Subsidiary is a party or by
which the Company or any Subsidiary is bound or by which the properties of the
Company or any Subsidiary are bound or affected, and there exists no condition
which, with the passage of time or otherwise, would constitute a material
default under any such document or instrument or result in the imposition of any
material penalty or the acceleration of any material indebtedness.
4.7 Governmental Permits, Etc. With the exception of the matters which are
dealt with separately in Section 4.1, 4.13, 4.14 and 4.21, each of the Company
and its Subsidiaries has all necessary franchises, licenses, certificates and
other authorizations from any foreign, federal, state or local government or
governmental agency, department, or body that are currently necessary for the
operation of the business of the Company and its Subsidiaries as currently
conducted and as described in the Placement Memorandum except where the failure
to currently possess could not reasonably be expected to have a material adverse
effect.
4.8 Intellectual Property. Subject to the matters discussed under "Risk
Factors" in the Placement Memorandum (i) each of the Company and its
Subsidiaries owns or possesses sufficient rights to use all material patents,
patent rights, trademarks, copyrights, licenses, inventions, trade secrets,
trade names and know-how (collectively, "Intellectual Property") described or
referred to in the Placement Memorandum as owned or used by it or that are
necessary for the conduct of its business as now conducted or as proposed to be
conducted as described in the Placement Memorandum except where the failure to
currently own or possess would not have a material adverse effect on the
condition (financial or otherwise), earnings, operations, business or business
prospects of the Company and its Subsidiaries considered as one enterprise, (ii)
neither the Company nor any of its Subsidiaries has received any notice of, or
has any knowledge of, any infringement of or conflict with asserted rights of
the Company or any of its Subsidiaries by others with respect to any
Intellectual Property and except as described in the Placement Memorandum and
except as would not have a material adverse effect on the condition (financial
or otherwise), earnings, operations, business or business prospects of the
Company and its Subsidiaries considered as one enterprise, (iii) neither the
Company nor any of its Subsidiaries has received any notice of, or has any
knowledge of, any infringement of or conflict with asserted rights of a third
party with respect to any Intellectual Property that, individually or in the
aggregate, would have a material adverse effect on the condition (financial or
otherwise), earnings, operations, business of the Company and its Subsidiaries
considered as one enterprise.
4.9 Financial Statements. The financial statements of the Company and the
related notes contained or incorporated by reference in the Placement Memorandum
present fairly, in accordance with generally accepted accounting principles, the
financial position of the Company and its Subsidiaries as of the dates
indicated, and the results of its operations and cash flows for the periods
therein specified. Such financial statements (including the
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related notes) have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the periods
therein specified, except as disclosed in the Placement Memorandum. The other
financial information contained in the Placement Memorandum has been prepared on
a basis consistent with the financial statements of the Company.
4.10 No Material Adverse Change. Except as disclosed in the Placement
Memorandum, since September 30, 1998, there has not been (i) any material
adverse change in the financial condition or earnings of the Company and its
Subsidiaries considered as one enterprise nor has any material adverse event
occurred to the Company or its Subsidiaries, (ii) any material adverse event
affecting the Company, (iii) any obligation, direct or contingent, that is
material to the Company and its Subsidiaries considered as one enterprise,
incurred by the Company, except obligations incurred in the ordinary course of
business, (iv) any dividend or distribution of any kind declared, paid or made
on the capital stock of the Company or any of its Subsidiaries, or (v) any loss
or damage (whether or not insured) to the physical property of the Company or
any of its Subsidiaries which has been sustained which has a material adverse
effect on the condition (financial or otherwise), earnings, operations, business
or business prospects of the Company and its Subsidiaries considered as one
enterprise.
4.11 Disclosure. The information contained in the Placement Memorandum as
of the date of such information, did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
4.12 Existing Agreements and Physical Property. Except as set forth in the
Placement Memorandum, the agreements to which the Company or any of its
Subsidiaries is a party and which are described in the Placement Memorandum are
valid agreements, enforceable by the Company, and its Subsidiary (as applicable)
except as the enforcement thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles and, to
the best of the Company's knowledge, the other contracting party or parties
thereto are not in material breach or material default under any of such
agreements. Except as set forth in the Placement Memorandum, the Company owns or
leases all such physical properties as are necessary to its operations as now
conducted.
4.13 Regulatory Compliance. Except as described in the Placement Memorandum
and subject to the matters described under "Risk Factors" in the Placement
Memorandum, (i) the Company and its Subsidiaries have operated and currently
operate their businesses in conformity with all applicable laws, rules and
regulations of each jurisdiction in which they are conducting business,
including, without limitation, the United States Food and Drug Administration
(the "FDA") and applicable Environmental Laws (as defined below), except where
the failure to be so in compliance would not have a material adverse effect on
the condition (financial or otherwise), earnings, operations, business or
business prospects of the Company and its Subsidiaries considered as one
enterprise, (ii) the Company and its Subsidiaries have all licenses,
certificates, authorizations, approvals, permits, franchises, orders and
consents from all state, federal and other governmental or regulatory
authorities including, without limitation, the FDA, which are necessary to the
current conduct of their businesses, except where the failure to be so in
compliance would not have a material adverse effect on the condition (financial
or otherwise), earnings, operations, business or business prospects of the
Company and its Subsidiaries considered as one enterprise, (iii) all of such
licenses, certificates, authorizations, approvals, permits, franchises, orders
and consents are valid and in full force and effect, (iv) the Company and its
Subsidiaries have fulfilled and performed, and will fulfill and perform, all of
their obligations with respect to, and are operating in compliance with, all
such licenses, certificates, authorizations, approvals, permits, franchises,
orders and consents and no event has occurred which allows, or after notice or
lapse of time would allow, revocation or termination thereof or result in any
impairment of the rights of the holder thereof, except to the extent that any
such revocation, termination or impairment would not have a material adverse
effect on the financial condition, results of operations, business or business
prospects of the Company and its Subsidiaries considered as one enterprise, (v)
no such licenses, certificates, authorizations, approvals, permits, franchises,
orders or consents contain any restrictions that have or could reasonably be
expected to have a material adverse effect on the financial condition, results
of operations, business or business prospects of the Company and its
Subsidiaries considered as one enterprise, and (vi) the Company is not aware of
any existing or imminent matter which could reasonably be expected to have an
adverse impact on the current operations or business of the Company and its
Subsidiaries considered as one enterprise. For the purposes of this Section
4.13, "Environmental Laws" shall include, without limitation, the Federal
Insecticide, Fungicide, Rodenticide Act, Resource Conservation & Recovery Act,
Clean Water Act, Safe Drinking Water Act, Atomic Energy Act, Occupational Safety
and Health Act, Toxic Substances Control Act, Clean Air Act, Comprehensive
Environmental Response,
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Compensation and Liability Act, Emergency Planning and Community Right-to-Know
Act, Hazardous Materials Transportation Act and all analogous or related
federal, state or local laws, each as amended, all rules and regulations
promulgated pursuant to any of the above statues, and any other foreign,
federal, state or local law, statute, ordinance, rule or regulation governing
environmental matters, as amended from time to time, including any common law
cause of action providing any right or remedy with respect to environmental
matters, and all judicial and administrative decisions, orders and decrees
issued to the Company or its Subsidiaries relating to environmental matters.
4.14 NASDAQ Compliance. The Company's Common Stock is registered pursuant
to Section 12(g) of the Exchange Act and is listed on The Nasdaq Stock Market,
Inc. National Market (the "Nasdaq National Market"), and the Company has taken
no action designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or de-listing the Common
Stock from the Nasdaq National Market, nor has the Company received any
notification that the SEC or the National Association of Securities Dealers,
Inc. ("NASD") is contemplating terminating such registration or listing. As of
the Closing Date, the Company will be in compliance with the listing
requirements for the Nasdaq National Market.
4.15 Foreign Corrupt Practices. Neither the Company nor any of its
Subsidiaries, nor, to the knowledge of the Company or any Subsidiary, any agent
or other person acting on behalf of the Company or any of its Subsidiaries, have
(i) directly or indirectly, used any corporate funds for unlawful contributions,
gifts, entertainment or other unlawful expenses related to foreign or domestic
political activity; (ii) made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political parties or
campaigns from corporate funds; (iii) failed to disclose fully any contribution
made by the Company or made by any person acting on its behalf and of which the
Company is aware in violation of law; (iv) violated in any material respect any
provision of the Foreign Corrupt Practices Act of 1977, as amended; or (v) made
any unlawful bribe, rebate, payoff, influence, kick-back or other unlawful
payment.
4.16 No Manipulation of Stock. The Company has not taken and will not take,
any action designed to or that might reasonably be expected to cause or result
in stabilization or manipulation of the price of the Common Stock to facilitate
the sale or resale of the Shares.
4.17 OSHA. The operations of the Company and its Subsidiaries with respect
to any real property currently leased, owned or by any means controlled by the
Company or any of its Subsidiaries (the "Real Property") are in compliance with
all federal, state, and local laws, ordinances, rules, and regulations relating
to occupational health and safety and the environment except where failure to be
in such compliance could not reasonably be expected to have a material adverse
effect on the current operations or business of the Company and its Subsidiaries
considered as one enterprise; the Company and its Subsidiaries maintain all
licenses, permits and authorizations necessary to operate under all such laws
applicable to the Company and its Subsidiaries except where the failure to so
possess could not reasonably be expected to have a material adverse effect on
the current operations or business of the Company and its Subsidiaries
considered as one enterprise.
4.18 Lock-up Agreements. Lock-up Agreements or similar agreements with the
Placement Agent have been, or will be prior to the Closing Date, executed by
each of the Company and the Company's executive officers and directors providing
that, subject to certain exceptions, such entity or individual will not sell,
offer, contract to sell, pledge, grant any option to purchase or otherwise
dispose of any shares of the Company's Common Stock for a period ending 90 days
after the Registration Statement is declared effective.
4.19 Accounting Controls. The Company and each of its Subsidiaries maintain
a system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with management's
general or specific authorizations, (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets, (iii)
access to assets is permitted only in accordance with management's general or
specific authorization, and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
4.20 Loans to Directors or Officers. There are no outstanding loans,
advances (except normal advances for business expenses in the ordinary course of
business or except in amounts that in the aggregate are not material) or
guarantees of indebtedness by the Company to or for the benefit of any of the
officers or directors of the Company or any of the members of the families of
any of them, except as disclosed in the Placement Memorandum.
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4.21 Compliance with Florida Statutes. The Company has complied with all
provisions of Florida Statutes Section 517.075, and the regulations thereunder,
relating to doing business with the Government of Cuba or with any person or
affiliate located in Cuba.
4.22 Reporting Status. The Company has filed in a timely manner all
documents that the Company was required to file under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") during the 12 months preceding the
date of this Agreement. The following documents complied in all material
respects with the SEC's requirements as of their respective filing dates, and
the information contained therein as of the date thereof did not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein in light of the
circumstances under where they were made not misleading:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1997;
(b) The Company's proxy statement in connection with its 1998 Annual
Meeting of Stockholders; and
(c) All other documents, if any, filed by the Company with the SEC
since December 31, 1997 pursuant to the reporting requirements of the
Exchange Act.
4.23 Listing. The Company shall comply with all requirements of the
National Association of Securities Dealers, Inc. with respect to the issuance of
the Shares and the listing thereof on the Nasdaq National Market.
4.24 Year 2000 Compliance. The information set forth in the Placement
Memorandum with respect to the Company's efforts regarding Year 2000 matters (i)
conforms in all material respects to the guidelines set forth in SEC Release No.
33-7558 and (ii) accurately describes the status of the Company's efforts
regarding Year 2000 matters. To the Company's knowledge, the costs associated
with ensuring that the Company is Year 2000 compliant will not have a material
adverse effect on the operations or business of the Company and its Subsidiaries
considered as one enterprise.
4.25 Taxes. The Company has timely filed all necessary federal, state and
foreign income and franchise tax returns and has paid all taxes shown thereon as
due, except for such filings or payments as to which the failure to so file or
pay would not have a material adverse effect on the Company.
4.27 Press Releases. The Company will not, without the prior approval of
the Investor, issue any press release that mentions the Investor by name.
4.28 Insurance. The Company and its Subsidiaries maintain insurance with
insurers of recognized financial responsibility of the types and in the amounts
generally deemed adequate for their respective businesses and consistent with
insurance coverage maintained by similar companies in similar businesses.
5. Representations, Warranties and Covenants of the Investor.
5.1 The Investor represents and warrants to, and covenants with, the
Company that: (i) the Investor is an "accredited investor" as defined in
Regulation D under the Securities Act and the Investor is also knowledgeable,
sophisticated and experienced in making, and is qualified to make decisions with
respect to investments in shares presenting an investment decision like that
involved in the purchase of the Shares, including investments in securities
issued by the Company and investments in comparable companies, and has
requested, received, reviewed and considered all information it deemed relevant
in making an informed decision to purchase the Shares; (ii) the Investor is
acquiring the number of Shares set forth on the signature page hereto in the
ordinary course of its business and for its own account for investment 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; (iii) the Investor will not, directly or indirectly, offer, sell,
pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase
or otherwise acquire or take a pledge of) any of the Shares except in compliance
with the Securities Act, applicable state securities laws and the respective
rules and regulations promulgated thereunder; (iv) the Investor has answered all
questions on the signature page hereto for use in preparation of the
Registration Statement and the answers thereto are true and correct as of the
date hereof and will be true and correct as of the Closing Date; (v) the
Investor will notify the Company immediately of any
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change in any of such information until such time as the Investor has sold all
of its Shares or until the Company is no longer required to keep the
Registration Statement effective; and (vi) the Investor has, in connection with
its decision to purchase the number of Shares set forth on the signature page
hereto, relied only upon the Placement Memorandum and the representations and
warranties of the Company contained herein. Investor understands that its
acquisition of the Shares has not been registered under the Securities Act or
registered or qualified under any state securities law in reliance on specific
exemptions therefrom, which exemptions may depend upon, among other things, the
bona fide nature of the Investor's investment intent as expressed herein.
Investor has completed or caused to be completed and delivered to the Company
the Investor Questionnaire attached as Exhibit D to the Placement Memorandum,
which questionnaire is true and correct in all material respects.
5.2 The Investor acknowledges, represents and agrees that no action has
been or will be taken in any jurisdiction outside the United States by the
Company or the Placement Agent that would permit an offering of the Shares, or
possession or distribution of offering materials in connection with the issue of
the Shares, in any jurisdiction outside the United States where action for that
purpose is required. Each Investor outside the United States will comply with
all applicable laws and regulations in each foreign jurisdiction in which it
purchases, offers, sells or delivers Shares or has in its possession or
distributes any offering material, in all cases at its own expense. The
Placement Agent is not authorized to make any representation or use any
information in connection with the issue, placement, purchase and sale of the
Shares other than as contained in the Placement Memorandum.
5.3 The Investor hereby covenants with the Company not to make any sale of
the Shares without complying with the provisions of this Agreement, including
Section 7.2 hereof, and without effectively causing the prospectus delivery
requirement under the Securities Act to be satisfied, and the Investor
acknowledges that the certificates evidencing the Shares will be imprinted with
a legend that prohibits their transfer except in accordance therewith. The
Investor acknowledges that there may occasionally be times when the Company,
based on the advice of its counsel, determines that it must suspend the use of
the Prospectus forming a part of the Registration Statement pursuant to Section
7.2 hereof until such time as an amendment to the Registration Statement has
been filed by the Company and declared effective by the SEC or until the Company
has amended or supplemented such Prospectus.
5.4 The Investor further represents and warrants to, and covenants with,
the Company that (i) the Investor has full right, power, authority and capacity
to enter into this Agreement and to consummate the transactions contemplated
hereby and has taken all necessary action to authorize the execution, delivery
and performance of this Agreement, and (ii) this Agreement constitutes a valid
and binding obligation of the Investor enforceable against the Investor in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
and except as the indemnification agreements of the Investors herein may be
legally unenforceable.
5.5 Investor will not, prior to the effectiveness of the Registration
Statement, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge
or grant any right with respect to (collectively, a "Disposition"), the Common
Stock of the Company, nor will Investor engage in any hedging or other
transaction which is designed to or could reasonably be expected to lead to or
result in a Disposition of Common Stock of the Company by the Investor or any
other person or entity. Such prohibited hedging or other transactions would
include without limitation effecting any short sale or having in effect any
short position (whether or not such sale or position is against the box and
regardless of when such position was entered into) or any purchase, sale or
grant of any right (including without limitation any put or call option) with
respect to the Common Stock of the Company or with respect to any security
(other than a broad-based market basket or index) that includes, relates to or
derives any significant part of its value from the Common Stock of the Company.
5.6 The Investor understands that nothing in the Placement Memorandum, this
Agreement or any other materials presented to the Investor in connection with
the purchase and sale of the Shares constitutes legal, tax or investment advice.
The Investor has consulted such legal, tax and investment advisors as it, in its
sole discretion, has deemed necessary or appropriate in connection with its
purchase of Shares.
6. 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
7
by the Company and the Investor herein shall survive the execution of this
Agreement, the delivery to the Investor of the Shares being purchased and the
payment therefor.
7. Registration of the Shares; Compliance with the Securities Act.
7.1 Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from the Investors,
prepare and file with the SEC, within five (5) business days after the
Subscription Date, the Registration Statement to enable the resale of the
Shares by the Investors from time to time through the automated quotation
system of the Nasdaq National Market or in privately-negotiated
transactions;
(b) use its reasonable efforts, subject to receipt of necessary
information from the Investors, to cause the Registration Statement to
become effective within 90 days after the Registration Statement is filed
by the Company;
(c) prepare and file with the SEC such amendments and supplements to
the Registration Statement and the Prospectus used in connection therewith
as may be necessary to keep the Registration Statement current and
effective for a period not exceeding, with respect to each Investor's
Shares purchased hereunder, the earlier of (i) the second anniversary of
the Closing Date, (ii) the date on which the Investor may sell all Shares
then held by the Investor without restriction by the volume limitations of
Rule 144(e) of the Securities Act, or (iii) such time as all Shares
purchased by such Investor in this Offering have been sold pursuant to a
registration statement.
(d) furnish to the Placement Agent and to the Investor with respect to
the Shares registered under the Registration Statement such number of
copies of the Registration Statement, Prospectuses and Preliminary
Prospectuses in conformity with the requirements of the Securities Act and
such other documents as the Investor may reasonably request, in order to
facilitate the public sale or other disposition of all or any of the Shares
by the Investor, provided, however, that the obligation of the Company to
deliver copies of Prospectuses or Preliminary Prospectuses to the Investor
shall be subject to the receipt by the Company of reasonable assurances
from the Investor that the Investor will comply with the applicable
provisions of the Securities Act and of such other securities or blue sky
laws as may be applicable in connection with any use of such Prospectuses
or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky
clearance in states specified in writing by the Investor, provided,
however, that the Company shall not be required to qualify to do business
or consent to service of process in any jurisdiction in which it is not now
so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph
(a) through (e) of this Section 7.1 and the registration of the Shares
pursuant to the Registration Statement; and
(g) advise the Investors, promptly after it shall receive notice or
obtain knowledge of the issuance of any stop order by the SEC delaying or
suspending the effectiveness of the Registration Statement or of the
initiation or threat of any proceeding for that purpose; and it will
promptly use its reasonable efforts to prevent the issuance of any stop
order or to obtain its withdrawal at the earliest possible moment if such
stop order should be issued.
The Company understands that the Investor disclaims being an underwriter,
but the Investor being deemed an underwriter by the SEC shall not relieve the
Company of any obligations it has hereunder, provided, however that if the
Company receives notification from the SEC that the Investor is deemed an
underwriter, then the period by which the Company is obligated to submit an
acceleration request to the SEC shall be extended to the earlier of (i) the 90th
day after such SEC notification, or (ii) 120 days after the initial filing of
the Registration Statement with the SEC.
7.2 Transfer of Shares After Registration; Suspension.
(a) The Investor agrees that it will not effect any disposition of the
Shares or its right to purchase the Shares that would constitute a sale
within the meaning of the Securities Act except as contemplated in the
Registration Statement referred to in Section 7.1 and as described below,
and that it will promptly notify the Company of any changes in the
information set forth in the Registration Statement regarding the Investor
or its plan of distribution.
8
(b) Except in the event that paragraph (c) below applies, the Company
shall (i) if deemed necessary by the Company, prepare and file from time to
time with the SEC a post-effective amendment to the Registration Statement
or a supplement to the related Prospectus or a supplement or amendment to
any document incorporated therein by reference or file any other required
document so that such Registration Statement will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and so that, as thereafter delivered to purchasers of the
Shares being sold thereunder, such Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; (ii) provide
the Investor copies of any documents filed pursuant to Section 7.2(b)(i);
and (iii) inform each Investor that the Company has complied with its
obligations in Section 7.2(b)(i) (or that, if the Company has filed a
post-effective amendment to the Registration Statement which has not yet
been declared effective, the Company will notify the Investor to that
effect, will use its reasonable efforts to secure the effectiveness of such
post-effective amendment as promptly as possible and will promptly notify
the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has
become effective).
(c) Subject to paragraph (d) below, in the event (i) of any request by
the SEC or any other federal or state governmental authority during the
period of effectiveness of the Registration Statement for amendments or
supplements to a Registration Statement or related Prospectus or for
additional information; (ii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose; (iii) of the receipt by the Company of any
notification with respect to the suspension of the qualification or
exemption from qualification of any of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; or (iv) of any event or circumstance which necessitates the making
of any changes in the Registration Statement or Prospectus, or any document
incorporated or deemed to be incorporated therein by reference, so that, in
the case of the Registration Statement, it will not contain any untrue
statement of a material fact or any omission to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and that in the case of the Prospectus, it will not contain
any untrue statement of a material fact or any omission to state a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; then the Company shall deliver a certificate in writing to the
Investor (the "Suspension Notice") to the effect of the foregoing and, upon
receipt of such Suspension Notice, the Investor will refrain from selling
any Shares pursuant to the Registration Statement (a "Suspension") until
the Investor's receipt of copies of a supplemented or amended Prospectus
prepared and filed by the Company, or until it is advised in writing by the
Company that the current Prospectus may be used, and has received copies of
any additional or supplemental filings that are incorporated or deemed
incorporated by reference in any such Prospectus. In the event of any
Suspension, the Company will use its reasonable efforts to cause the use of
the Prospectus so suspended to be resumed as soon as reasonably practicable
within twenty (20) business days after the delivery of a Suspension Notice
to the Investor. In addition to and without limiting any other remedies
(including, without limitation, at law or at equity) available to the
Investor, the Investor shall be entitled to specific performance in the
event that the Company fails to comply with the provisions of this Section
7.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the
Investor shall not be prohibited from selling Shares under the Registration
Statement as a result of Suspensions on more than three (3) occasions of
not more than thirty (30) days each in any twelve month period, unless, in
the good faith judgment of the Company's Board of Directors, upon advice of
counsel, the sale of Shares under the Registration Statement in reliance on
this paragraph 7.2(d) would be reasonably likely to cause a violation of
the Securities Act or the Exchange Act and result in potential liability to
the Company.
(e) Provided that a Suspension is not then in effect the Investor may
sell Shares under the Registration Statement, provided that it arranges for
delivery of a current Prospectus to the transferee of such Shares. Upon
receipt of a request therefor, the Company has agreed to provide an
adequate number of current Prospectuses to the Investor and to supply
copies to any other parties requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor, the Investor
must also deliver to the Company's transfer agent, with a copy to the
Company, a Certificate of Subsequent Sale substantially in the form
attached hereto as Exhibit A, so that the shares may be properly
transferred.
7.3 Indemnification. For the purpose of this Section 7.3:
9
(i) the term "Selling Stockholder" shall include the Investor and any
affiliate of such Investor;
(ii) the term "Registration Statement" shall include any final
Prospectus, exhibit, supplement or amendment included in or relating to the
Registration Statement referred to in Section 7.1; and
(iii) the term "untrue statement" shall include any untrue statement
or alleged untrue statement, or any omission or alleged omission to state
in the Registration Statement a material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(a) The Company agrees to indemnify and hold harmless each Selling
Stockholder from and against any losses, claims, damages or liabilities to
which such Selling Stockholder may become subject (under the Securities Act
or otherwise) insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of, or are based upon
(i) any untrue statement of a material fact contained in the Registration
Statement, or (ii) any failure by the Company to fulfill any undertaking
included in the Registration Statement, and the Company will reimburse such
Selling Stockholder for any reasonable legal or other expenses reasonably
incurred in investigating, defending or preparing to defend any such
action, proceeding or claim, or preparing to defend any such action,
proceeding or claim, provided, however, that the Company shall not be
liable in any such case to the extent that such loss, claim, damage or
liability arises out of, or is based upon, an untrue statement made in such
Registration Statement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Selling
Stockholder specifically for use in preparation of the Registration
Statement or the failure of such Selling Stockholder to comply with its
covenants and agreements contained in Sections 5.3 or 7.2 hereof respecting
sale of the Shares or any statement or omission in any Prospectus that is
corrected in any subsequent Prospectus that was delivered to the Investor
prior to the pertinent sale or sales by the Investor.
(b) The Investor agrees to indemnify and hold harmless the Company
(and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act, each officer of the Company who signs the
Registration Statement and each director of the Company) from and against
any losses, claims, damages or liabilities to which the Company (or any
such officer, director or controlling person) may become subject (under the
Securities Act or otherwise), insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or
are based upon, (i) any failure to comply with the covenants and agreements
contained in Section 5.3 or 7.2 hereof respecting sale of the Shares, or
(ii) any untrue statement of a material fact contained in the Registration
Statement if such untrue statement was made in reliance upon and in
conformity with written information furnished by or on behalf of the
Investor specifically for use in preparation of the Registration Statement,
and the Investor will reimburse the Company (or such officer, director or
controlling person), as the case may be, for any legal or other expenses
reasonably incurred in investigating, defending or preparing to defend any
such action, proceeding or claim. Indemnification under Section 7.3(b)(ii)
above shall be limited to the amount of net proceeds received by Investor
from the sale of the Shares.
(c) Promptly after receipt by any indemnified person of a notice of a
claim or the beginning of any action in respect of which indemnity is to be
sought against an indemnifying person pursuant to this Section 7.3, such
indemnified person shall notify the indemnifying person in writing of such
claim or of the commencement of such action, but the omission to so notify
the indemnifying party will not relieve it from any liability which it may
have to any indemnified party under this Section 7.3 (except to the extent
that such omission materially and adversely affects the indemnifying
party's ability to defend such action) or from any liability otherwise than
under this Section 7.3. Subject to the provisions hereinafter stated, in
case any such action shall be brought against an indemnified person, the
indemnifying person shall be entitled to participate therein, and, to the
extent that it shall elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified
party, shall be entitled to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified person. After notice from the
indemnifying person to such indemnified person of its election to assume
the defense thereof, such indemnifying person shall not be liable to such
indemnified person for any legal expenses subsequently incurred by such
indemnified person in connection with the defense thereof, provided,
however, that if there exists or shall exist a conflict of interest that
would make it inappropriate, in the opinion of counsel to the indemnified
person, for the same counsel to represent both the indemnified person and
such indemnifying person or any affiliate or associate thereof, the
indemnified person shall be entitled to retain its own counsel at the
expense of such indemnifying person; provided, however, that no
indemnifying person shall be responsible for the fees and expenses of more
than one separate counsel (together with appropriate local counsel) for all
indemnified parties. In no event shall any indemnifying person be liable in
respect of any amounts paid in settlement of any action unless the
indemnifying person shall have approved the terms of such
10
settlement; provided that such consent shall not be unreasonably withheld.
No indemnifying person shall, without the prior written consent of the
indemnified person, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified person is or could have been
a party and indemnification could have been sought hereunder by such
indemnified person, unless such settlement includes an unconditional
release of such indemnified person from all liability on claims that are
the subject matter of such proceeding.
(d) If the indemnification provided for in this Section 7.3 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion
as is appropriate to reflect the relative fault of the Company on the one
hand and the Investors on the other in connection with the statements or
omissions or other matters which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative fault shall be determined
by reference to, among other things, in the case of an untrue statement,
whether the untrue statement relates to information supplied by the Company
on the one hand or an Investor on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement. The Company and the Investors agree that it
would not be just and equitable if contribution pursuant to this subsection
(d) were determined by pro rata allocation (even if the Investors were
treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities
(or actions in respect thereof) referred to above in this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this subsection
(d), no Investor shall be required to contribute any amount in excess of
the amount by which the net amount received by the Investor from the sale
of the Shares to which such loss relates exceeds the amount of any damages
which such Investor has otherwise been required to pay by reason of such
untrue statement. 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 Investors' obligations in this subsection to
contribute are several in proportion to their sales of Shares to which such
loss relates and not joint.
(e) The parties to this Agreement hereby acknowledge that they are
sophisticated business persons who were represented by counsel during the
negotiations regarding the provisions hereof including, without limitation,
the provisions of this Section 7.3, and are fully informed regarding said
provisions. They further acknowledge that the provisions of this Section
7.3 fairly allocate the risks in light of the ability of the parties to
investigate the Company and its business in order to assure that adequate
disclosure is made in the Registration Statement as required by the Act and
the Exchange Act. The parties are advised that federal or state public
policy as interpreted by the courts in certain jurisdictions may be
contrary to certain of the provisions of this Section 7.3, and the parties
hereto hereby expressly waive and relinquish any right or ability to assert
such public policy as a defense to a claim under this Section 7.3 and
further agree not to attempt to assert any such defense.
7.4 Termination of Conditions and Obligations. The conditions precedent
imposed by Section 5 or this Section 7 upon the transferability of the Shares
shall cease and terminate as to any particular number of the Shares when such
Shares shall have been effectively registered under the Securities Act and sold
or otherwise disposed of in accordance with the intended method of disposition
set forth in the Registration Statement covering such Shares or at such time as
an opinion of counsel satisfactory to the Company shall have been rendered to
the effect that such conditions are not necessary in order to comply with the
Securities Act.
7.5 Information Available. So long as the Registration Statement is
effective covering the resale of Shares owned by the Investor, the Company will
furnish to the Investor:
(a) as soon as practicable after it is available, one copy of (i) its
Annual Reports to Stockholders (which Annual Reports 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 Reports to Stockholders,
its Annual Reports on Form 10-K and (iii) its Quarterly Reports on Form
10-Q (the foregoing, in each case, excluding exhibits);
11
(b) upon the reasonable request of the Investor, all exhibits excluded
by the parenthetical to subparagraph (a) of this Section 7.5 as filed with
the SEC and all other information that is made available to shareholders;
and
(c) upon the reasonable request of the Investor, an adequate number of
copies of the Prospectuses to supply to any other party requiring such
Prospectuses; and the Company, upon the reasonable request of the Investor,
will meet with the Investor or a representative thereof at the Company's
headquarters to discuss all information relevant for disclosure in the
Registration Statement covering the Shares and will otherwise cooperate
with any Investor conducting an investigation for the purpose of reducing
or eliminating such Investor's exposure to liability under the Securities
Act, including the reasonable production of information at the Company's
headquarters; provided, that the Company shall not be required to disclose
any confidential information to or meet at its headquarters with any
Investor until and unless the Investor shall have entered into a
confidentiality agreement in form and substance reasonably satisfactory to
the Company with the Company with respect thereto.
8. Placement Agent's Fee. The Investor acknowledges that the Company
intends to pay to the Placement Agent a fee in respect of the sale of the Shares
to the Investor.
9. Notices. All notices, requests, consents and other communications
hereunder shall be in writing, shall be mailed (A) if within domestic United
States by first-class registered or certified airmail, or nationally recognized
overnight express courier, postage prepaid, or by facsimile, or (B) if delivered
from outside the United States, by International Federal Express or facsimile,
and shall be deemed given (i) if delivered by first-class registered or
certified mail domestic, three business days after so mailed, (ii) if delivered
by nationally recognized overnight carrier, one business day after so mailed,
(iii) if delivered by International Federal Express, two business days after so
mailed, (iv) if delivered by facsimile, upon electric confirmation of receipt
and shall be delivered as addressed as follows:
(a) if to the Company, to:
The Spectranetics Corporation
00 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attn: Chief Financial Officer
Phone: (000) 000-0000
Telecopy: (000) 000-0000
(b) with a copy mailed to:
Xxxxxx & Xxxxxxx
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxxxxxxxx Xxxxxxx
Phone: (000) 000-0000
Telecopy: (000) 000-0000
(c) if to the Investor, at its address on the signature page hereto,
or at such other address or addresses as may have been furnished to the
Company in writing.
10. Changes. This Agreement may not be modified or amended except pursuant
to an instrument in writing signed by the Company and the Investor.
11. 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.
12. Severability. In case any provision contained in this Agreement should
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
12
13. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of California, without giving
effect to the principles of conflicts of law.
14. 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.
15. Attorneys' Fees. If any party to this Agreement brings an action to
interpret or enforce its rights under this Agreement, the prevailing party shall
be entitled to recover its reasonable attorneys' fees incurred in connection
with such action, including any appeal of such action.
13
INSTRUCTION SHEET FOR INVESTOR
(to be read in conjunction with the entire Stock Purchase Agreement)
A. Complete the following items in the Stock Purchase Agreement:
1. Provide the information regarding the Investor requested on the
signature page (page 1). The Agreement must be executed by an individual
authorized to bind the Investor.
2. Return the signed Stock Purchase Agreement to:
Xxxxxxxxx Xxxxx
BancBoston Xxxxxxxxx Xxxxxxxx Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
An executed original Stock Purchase Agreement or a telecopy thereof must be
received by 5:00 p.m. California time on a date to be determined and distributed
to the Investor at a later date.
B. Instructions regarding the transfer of funds for the purchase of
Shares will be telecopied to the Investor by the Placement Agent at a later
date.
C. To resell the Shares after the Registration Statement covering the
Shares is effective:
(i) Provided that a Suspension of the Registration Statement is not
then in effect pursuant to the terms of the Stock Purchase Agreement, the
Investor may sell Shares under the Registration Statement, provided that it
arranges for delivery of a current Prospectus to the transferee. Upon
receipt of a request therefor, the Company has agreed to provide an
adequate number of current Prospectuses to each investor and to supply
copies to any other parties requiring such Prospectuses.
(ii) The Investor must also deliver to the Company's transfer agent,
with a copy to the Company, a Certificate of Subsequent Sale in the form
attached as Exhibit A to the Stock Purchase Agreement, so that the Shares
may be properly transferred.
14
