Exhibit 10.27
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated as of March
28, 2000 is made by and among NOVOSTE CORPORATION, Florida corporation, with
headquarters located at 0000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, XX 00000 (the
"Company"), the selling shareholders of the Company named on the signature pages
hereto (the "Selling Shareholders") and the investors named on the signature
pages hereto, together with their permitted transferees (the "Investors").
RECITALS:
A. The Company, the Selling Shareholders and the Investors are executing
and delivering this Agreement in reliance upon the exemption from securities
registration afforded by Section 4(2) of the Securities Act and Rule 506 under
Regulation D.
B. The Investors desire, upon the terms and conditions stated in this
Agreement, to purchase shares of the Company's Common Stock, for an aggregate
purchase price of $52,500,000. The purchase price per share of the Common Stock
is $35.00.
C. Contemporaneously with the execution and delivery of this Agreement,
the Company and the Investors are executing and delivering a Registration Rights
Agreement under which the Company has agreed to provide certain registration
rights under the Securities Act, the rules and regulations promulgated
thereunder and applicable state securities laws.
D. The capitalized terms used herein and not otherwise defined have the
meanings given them in Article X hereof.
In consideration of the premises and the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Company and the Investors hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF SECURITIES
1.1 Purchase and Sale of Securities. At the Closing, subject to the terms
of this Agreement and the satisfaction or waiver of the conditions set forth in
Articles VII and VIII hereof, the Company will issue and sell, and the Selling
Shareholders (on a several and not a joint basis) will sell, to each Investor,
and each Investor will (on a several and not a joint basis) purchase from the
Company and the Selling Shareholders, the number of shares of Common Stock set
forth beneath such Investor's name on the signature pages hereof. Schedule I
sets forth the total number of shares of Common Stock being issued and sold by
the Company and being sold by the Selling Shareholders pursuant to this
Agreement. Subject to adjustment to eliminate fractional shares, the number of
shares of Common Stock being purchased by each Investor from the Company and
from each Selling Shareholder shall bear the same ratio to the total number of
shares being sold by the Company and such Selling Shareholder as the total
number of shares of Common Stock being purchased by such Investor bears to the
total number of shares being purchased hereunder by all Investors.
1.2 Payment. Each Investor will pay the purchase price for the number of
Securities set forth beneath its name on the signature pages hereof, by wire
transfer of immediately available funds
in accordance with the Company's and the Selling Shareholders' written wire
instructions, upon delivery by the Company and the Selling Shareholders to each
Investor of certificates representing the Securities so purchased by such
Investor and the Company and the Selling Shareholders will deliver such
certificates against delivery of the purchase price as described above.
1.3 Closing Date. Subject to the satisfaction or waiver of the conditions
set forth in Articles VII and VIII hereof, the Closing will take place at 10:00
a.m., New York City Time on March 31, 2000 or at another date or time agreed
upon by the parties to this Agreement (the "Closing Date"). The Closing will be
held at the offices of Xxxxxx & Xxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 or at such other place as the parties agree.
ARTICLE II
INVESTOR'S REPRESENTATIONS AND WARRANTIES
Each Investor represents and warrants to the Company and the Selling
Shareholders, severally and solely with respect to itself and its purchase
hereunder and not with respect to any other Investor, that:
2.1 Investment Purpose. The Investor is purchasing the Securities for its
own account and not with a present view toward the public sale or distribution
thereof, except pursuant to sales registered or exempted from registration under
the Securities Act; provided, however, that by making the representation herein,
the Investor does not agree to hold any of the Securities for any minimum or
other specific term and reserves the right to dispose of the Securities at any
time in accordance with or pursuant to a registration statement or an exemption
under the Securities Act.
2.2 Accredited Investor Status. The Investor is an "accredited investor"
as defined in Rule 501(a) of Regulation D. The Investor has delivered an
Investor Questionnaire in the form of Exhibit A to the Company and to U.S.
Bancorp Xxxxx Xxxxxxx Inc.
2.3 Reliance on Exemptions. The Investor understands that the Securities
are being offered and sold to it in reliance upon specific exemptions from the
registration requirements of United States federal and state securities laws and
that the Company is relying upon the truth and accuracy of, and the Investor's
compliance with, the representations, warranties, agreements, acknowledgments
and understandings of the Investor set forth herein in order to determine the
availability of such exemptions and the eligibility of the Investor to acquire
the Securities.
2.4 Information. The Investor and its advisors, if any, have been
furnished with all materials relating to the business, finances and operations
of the Company, and materials relating to the offer and sale of the Securities,
that have been requested by the Investor or its advisors, if any. The Investor
and its advisors, if any, have been afforded the opportunity to ask questions of
the Company. Neither such inquiries nor any other due diligence investigation
conducted by Investor or any of its advisors or representatives modify, amend or
affect the Investor's right to rely on the Company's representations and
warranties contained in Article III below. The Investor acknowledges and
understands that its investment in the Securities involves a significant degree
of risk, including the risks reflected in the SEC Documents, copies of which
have been made available to the Investor.
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2.5 Governmental Review. The Investor 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 Securities or an
investment therein.
2.6 Transfer or Resale. The Investor understands that:
(a) except as provided in the Registration Rights Agreement, the
Securities have not been and are not being registered under the Securities Act
or any applicable state securities laws and, consequently, the Investor may have
to bear the risk of owning the Securities for an indefinite period of time
because the Securities may not be transferred unless (i) the resale of the
Securities is registered pursuant to an effective registration statement under
the Securities Act; (ii) the Investor has delivered to the Company an opinion of
counsel (in form, substance and scope customary for opinions of counsel in
comparable transactions) to the effect that the Securities to be sold or
transferred may be sold or transferred pursuant to an exemption from such
registration; (iii) the Securities are sold or transferred pursuant to Rule 144
or (iv) the Securities are sold or transferred to an affiliate (as defined in
Rule 144) of the Investor;
(b) any sale of the Securities made in reliance on Rule 144 may be
made only in accordance with the terms of Rule 144 and, if Rule 144 is not
applicable, any resale of the Securities under circumstances in which the seller
(or the person through whom the sale is made) may be deemed to be an underwriter
(as that term is defined in the Securities Act) may require compliance with some
other exemption under the Securities Act or the rules and regulations of the SEC
thereunder; and
(c) except as set forth in the Registration Rights Agreement,
neither the Company nor any other person is under any obligation to register the
Securities under the Securities Act or any state securities laws or to comply
with the terms and conditions of any exemption thereunder.
2.7 Legends. The Investor understands that until such time as provided in
Section6.2, the certificates representing the Securities will bear a restrictive
legend in substantially the following form (and a stop-transfer order may be
placed against transfer of the certificates for such Securities):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED OR
ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES UNDER APPLICABLE SECURITIES LAWS, OR UNLESS OFFERED, SOLD OR
TRANSFERRED PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THOSE LAWS.
2.8 Authorization; Enforcement. This Agreement and the Registration Rights
Agreement have been duly and validly authorized, executed and delivered on
behalf of the Investor and are valid and binding agreements of the Investor
enforceable in accordance with their terms, subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and the application of general
principles of equity.
2.9 Residency. The Investor is a resident of the jurisdiction set forth
immediately below such Investor's name on the signature pages hereto.
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2.10 Acknowledgements Regarding Placement Agent. Investor acknowledges
that U.S. Bancorp Xxxxx Xxxxxxx Inc. is acting as placement agent (the
"Placement Agent") for the Securities being offered hereby and will be
compensated by the Company and the Selling Shareholders for acting in such
capacity. Investor further acknowledges that the Placement Agent has acted
solely as placement agent in connection with the offering of the Securities by
the Company and the Selling Shareholders, that the information and data provided
to Investor in connection with the transactions contemplated hereby have not
been subjected to independent verification by the Placement Agent, and that the
Placement Agent makes no representation or warranty with respect to the accuracy
or completeness of such information, data or other related disclosure material.
Investor further acknowledges that in making its decision to enter into this
Agreement and purchase the Securities it has relied on its own examination of
the Company and the terms of, and consequences, of holding the Securities.
Investor further acknowledges that the provisions of this Section 2.10 are for
the benefit of, and may be enforced by, the Placement Agent.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Investors that:
3.1 Organization and Qualification. The Company is duly incorporated,
validly existing and in good standing under the laws of the jurisdiction in
which it is incorporated, with full power and authority (corporate and other) to
own, lease, use and operate its properties and to carry on its business as and
where now owned, leased, used, operated and conducted. The Company is duly
qualified to do business and is in good standing in every jurisdiction in which
the nature of the business conducted by it makes such qualification necessary,
except where the failure to be so qualified or in good standing would not have a
Material Adverse Effect.
3.2 Authorization; Enforcement. (a) The Company has all requisite
corporate power and authority to enter into and to perform its obligations under
this Agreement and the Registration Rights Agreement, to consummate the
transactions contemplated hereby and thereby and to issue the Securities being
issued and sold by the Company in accordance with the terms hereof and thereof;
(b) the execution, delivery and performance of this Agreement and the
Registration Rights Agreement by the Company and the consummation by it of the
transactions contemplated hereby and thereby (including without limitation the
issuance of the Securities being issued and sold by the Company) have been duly
authorized by the Company's Board of Directors and no further consent or
authorization of the Company, its Board or Directors, or its shareholders is
required; (c) this Agreement and the Registration Rights Agreement have been
duly executed by the Company; and (d) each of this Agreement and the
Registration Rights Agreement constitutes a legal, valid and binding obligation
of the Company enforceable against the Company in accordance with its terms,
subject to the effect of any applicable bankruptcy, insolvency, reorganization,
or moratorium or similar laws affecting the rights of creditors generally and
the application of general principles of equity.
3.3 Capitalization. As of the date hereof, the authorized capital stock of
the Company consists of (a) 25,000,000 shares of Common Stock, par value $.01
per share, of which 14,384,628 shares are issued and outstanding and 2,077,322
shares are reserved for issuance under the Company's stock option plans; and (b)
5,000,000 shares of preferred stock, par value $.001 per share, 1,000,000 shares
of which have been designated as Series A Participating Preferred Stock, and
none of the authorized shares of preferred stock are issued and outstanding. All
of such outstanding
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shares of capital stock are, or upon issuance will be, duly authorized, validly
issued, fully paid and nonassessable. No shares of capital stock of the Company,
including the Securities issuable pursuant to this Agreement, are subject to
preemptive rights or any other similar rights of the stockholders of the Company
or any liens or encumbrances imposed through the actions or failure to act of
the Company. Except as disclosed in Schedule 3.3 and except for the transactions
contemplated hereby, (i) there are no outstanding options, warrants, scrip,
rights to subscribe for, puts, calls, rights of first refusal, agreements,
understandings, claims or other commitments or rights of any character
whatsoever relating to, or securities or rights convertible into, exercisable
for, or exchangeable for any shares of capital stock of the Company, or
arrangements by which the Company is or may become bound to issue additional
shares of capital stock of the Company; (ii) there are no agreements or
arrangements (other than the Registration Rights Agreement) under which the
Company is obligated to register the sale of any of its securities under the
Securities Act, and (iii) there are no anti-dilution or price adjustment
provisions contained in any security issued by the Company (or in any agreement
providing rights to security holders) that will be triggered by the issuance of
the Securities.
3.4 Issuance of Securities. The Securities being issued and sold by the
Company are duly authorized and, upon issuance in accordance with the terms of
this Agreement, will be validly issued, fully paid and non-assessable, free from
all taxes, liens, claims, encumbrances and charges with respect to the issue
thereof, will not be subject to preemptive rights or other similar rights of
stockholders of the Company, and will not impose personal liability on the
holders thereof.
3.5 No Conflicts; No Violation.
(a) The execution, delivery and performance of this Agreement and
the Registration Rights Agreement by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby (including, without
limitation, the issuance of the Securities being sold by the Company) will not
(i) conflict with or result in a violation of any provision of the Certificate
of Incorporation or By-laws or (ii) violate or conflict with, or result in a
breach of any provision of, or constitute a default (or an event which with
notice or lapse of time or both could become a default) under, or give to others
any rights of termination, amendment (including without limitation, the
triggering of any anti-dilution provision), acceleration or cancellation of, any
agreement, indenture, patent, patent license, or instrument to which the Company
is a party, or (iii) result in a violation of any law, rule, regulation, order,
judgment or decree (including U.S. federal and state securities laws and
regulations and regulations of any self-regulatory organizations to which the
Company or its securities are subject) applicable to the Company or by which any
property or asset of the Company is bound or affected (except for such
conflicts, breaches, defaults, terminations, amendments, accelerations,
cancellations and violations as would not, individually or in the aggregate,
have a Material Adverse Effect).
(b) The Company is not in violation of its Certificate of
Incorporation, By-laws or other organizational documents and the Company is not
in default (and no event has occurred which with notice or lapse of time or both
could put the Company in default) under any agreement, indenture or instrument
to which the Company is a party or by which any property or assets of the
Company is bound or affected, except for possible defaults as would not,
individually or in the aggregate, have a Material Adverse Effect.
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(c) The Company is not conducting its business in violation of any
law, ordinance or regulation of any governmental entity, the failure to comply
with which would, individually or in the aggregate, have a Material Adverse
Effect.
(d) Except as specifically contemplated by this Agreement and as
required under the Securities Act and any applicable state securities laws or
any listing agreement with any securities exchange or automated quotation
system, the Company is not required to obtain any consent, authorization or
order of, or make any filing or registration with, any court or governmental
agency or any regulatory or self regulatory agency in order for it to execute,
deliver or perform any of its obligations under this Agreement or the
Registration Rights Agreement, in each case in accordance with the terms hereof
or thereof, or to issue and sell the Securities being issued and sold by it in
accordance with the terms hereof. Except as set forth in Schedule 3.5, all
consents, authorizations, orders, filings and registrations which the Company is
required to obtain pursuant to the preceding sentence have been obtained or
effected on or prior to the date hereof. The Company is not in violation of the
listing requirements of Nasdaq.
3.6 SEC Documents, Financial Statements. Since December 31, 1999, the
Company has timely filed all reports, schedules, forms, statements and other
documents required to be filed by it with the SEC pursuant to the reporting
requirements of the Exchange Act (all of the foregoing filed prior to the date
hereof and all exhibits included therein and financial statements and schedules
thereto and documents (other than exhibits) incorporated by reference therein,
being hereinafter referred to herein as the "SEC Documents"). The Company has
delivered to each Investor, or each Investor has had access to, true and
complete copies of the SEC Documents. As of their respective dates, the SEC
Documents complied in all material respects with the requirements of the
Exchange Act or the Securities Act, as the case may be, and the rules and
regulations of the SEC promulgated thereunder applicable to the SEC Documents,
and none of the SEC Documents, at the time they were filed with the SEC,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. As of their respective dates, the financial statements of the
Company included in the SEC Documents complied as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto. Such financial statements have been
prepared in accordance with U.S. generally accepted accounting principles,
consistently applied, during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes thereto, or (ii)
in the case of unaudited interim statements, to the extent they may not include
footnotes or may be condensed or summary statements) and fairly present in all
material respects the financial position of the Company as of the dates thereof
and the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments). Except as set forth in the financial statements included in the
SEC Documents, the Company has no liabilities, contingent or otherwise, other
than liabilities incurred in the ordinary course of business subsequent to
December 31, 1999, and liabilities of the type not required under generally
accepted accounting principles to be reflected in such financial statements.
Such liabilities incurred subsequent to December 31, 1999, are not, in the
aggregate, material to the financial condition or operating results of the
Company.
3.7 Absence of Certain Changes. Except as disclosed in the SEC Documents,
since December 31, 1999, there has been no material adverse change in the
assets, liabilities, business, properties, operations, financial condition,
prospects or results of operations of the Company.
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3.8 Absence of Litigation. There is no action, suit, claim, proceeding,
inquiry or investigation before or by any court, public board, government
agency, self-regulatory organization or body pending or, to the knowledge of the
Company, threatened against or affecting the Company or any of its officers or
directors acting as such that could, individually or in the aggregate, have a
Material Adverse Effect.
3.9 Intellectual Property Rights. The Company owns or possesses the
licenses or rights to use all patents, patent applications, patent rights,
inventions, know-how, trade secrets, trademarks, trademark applications, service
marks, service names, trade names and copyrights necessary to enable it to
conduct its business as now operated (the "Intellectual Property"). Except as
set forth in the SEC Documents, there is no claim or action or proceeding
pending or, to the Company's knowledge, threatened that challenges the right of
the Company with respect to any Intellectual Property.
3.10 Tax Status. Except as set forth on Schedule 3.10, the Company has
made or filed all federal, state and foreign income and all other tax returns,
reports and declarations required by any jurisdiction to which it is subject
(unless and only to the extent that the Company has set aside on its books
provisions reasonably adequate for the payment of all unpaid and unreported
taxes) and has paid all taxes and other governmental assessments and charges
that are material in amount, shown or determined to be due on such returns,
reports and declarations, except those being contested in good faith, and has
set aside on its books provisions reasonably adequate for the payment of all
taxes for periods subsequent to the periods to which such returns, reports or
declarations apply. To the knowledge of the Company, there are no unpaid taxes
in any material amount claimed to be due by the taxing authority of any
jurisdiction, and the officers of the Company know of no basis for any such
claim. The Company has not executed a waiver with respect to the statute of
limitations relating to the assessment or collection of any foreign, federal,
state or local tax. Except as set forth on Schedule 3.10, none of the Company's
tax returns is presently being audited by any taxing authority.
3.11 Environmental Laws. The Company (i) is in compliance with all
applicable foreign federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii)
has received all permits, licenses or other approvals required of it under
applicable Environmental Laws to conduct its business and (iii) is in compliance
with all terms and conditions of any such permit, license or approval where, in
each of the three foregoing clauses, the failure to so comply would have,
individually or in the aggregate, a Material Adverse Effect.
3.12 No Integrated Offering. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf, has directly or
indirectly made any offers or sales in any security or solicited any offers to
buy any security under circumstances that would require registration under the
Securities Act of the issuance of the Securities to the Investors. The issuance
of the Securities to the Investors will not be integrated with any other
issuance of the Company's securities (past, current or future) for purposes of
the Securities Act or any applicable rules of Nasdaq.
3.13 No Brokers. The Company has taken no action which would give rise to
any claim by any person for brokerage commissions, finder's fees or similar
payments relating to this Agreement or the transactions contemplated hereby,
except for dealings with U.S. Bancorp Xxxxx Xxxxxxx Inc., whose commissions and
fees with respect to the Securities being issued and sold by the Company will be
paid for by the Company.
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3.14 Insurance. The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as management
of the Company believes to be prudent and customary in the businesses in which
the Company is engaged.
3.15 Employment Matters. The Company is in compliance with all federal,
state, local and foreign laws and regulations respecting employment and
employment practices, terms and conditions of employment and wages and hours
except where failure to be in compliance would not have a Material Adverse
Effect.
3.16 Investment Company Status. The Company is not and upon consummation
of the sale of the Securities will not be an "investment company," a company
controlled by an "investment company" or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company" as such terms
are defined in the Investment Company Act of 1940, as amended.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDERS
Each of the Selling Shareholders represents and warrants to the Investors
that:
4.1 Authorization; Enforcement. (a) This Agreement, the Registration
Rights Agreement, the Custody Agreement attached in the form of Exhibit E hereto
and signed by such Selling Shareholder and American Stock Transfer & Trust
Company, as Custodian, relating to the deposit of the Securities to be sold by
such Selling Shareholder (the "Custody Agreement") and the Power of Attorney in
the form attached as Exhibit F hereto appointing certain individuals as such
Selling Shareholder's attorneys-in-fact to the extent set forth therein,
relating to the transactions contemplated hereby (the "Power of Attorney") have
been duly executed by such Selling Shareholder; and (b) each of this Agreement,
the Registration Rights Agreement, the Custody Agreement and the Power of
Attorney constitutes a legal, valid and binding obligation of such Selling
Shareholder enforceable against such Selling Shareholder in accordance with its
terms, subject to the effect of any applicable bankruptcy, insolvency,
reorganization, or moratorium or similar laws affecting the rights of creditors
generally and the application of general principles of equity.
4.2 Ownership of Securities. Such Selling Shareholder has and on the
Closing Date will have valid title to the Securities being sold by such Selling
Shareholder and the legal right and power, and all authorizations and approvals
required by law, to enter into this Agreement, the Registration Rights
Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer
and deliver the Securities being sold by such Selling Shareholder. The
Securities being sold by such Selling Shareholder have been duly authorized and,
upon sale in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable. Delivery of the Securities being sold by
such Selling Shareholder pursuant to this Agreement will pass title to such
Securities free and clear of any security interests, claims, liens, equities or
other encumbrances.
4.3 No Conflicts; No Violation.
(a) The execution, delivery and performance of this Agreement, the
Registration Rights Agreement, the Custody Agreement and the Power of Attorney
by such Selling Shareholder and the consummation by such Selling Shareholder of
the transactions contemplated hereby and thereby (including, without limitation,
the sale of the Securities being sold by such Selling
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Shareholder) will not (i) violate or conflict with, or result in a breach of any
provision of, or constitute a default (or an event which with notice or lapse of
time or both could become a default) under, or give to others any rights of
termination, amendment (including without limitation, the triggering of any
anti-dilution provision), acceleration or cancellation of, any agreement,
indenture, patent, patent license, or instrument to which such Selling
Shareholder is a party, or (iii) result in a violation of any law, rule,
regulation, order, judgment or decree (including U.S. federal and state
securities laws and regulations and regulations of any self-regulatory
organizations to which such Selling Shareholder is subject) applicable to such
Selling Shareholder or by which any property or asset of such Selling
Shareholder is bound or affected.
(b) Except as specifically contemplated by this Agreement and as
required under the Securities Act and any applicable state securities laws or
any listing agreement with any securities exchange or automated quotation
system, such Selling Shareholder is not required to obtain any consent,
authorization or order of, or make any filing or registration with, any court or
governmental agency or any regulatory or self regulatory agency in order for it
to execute, deliver or perform any of its obligations under this Agreement, the
Registration Rights Agreement, the Custody Agreement and the Power of Attorney,
in each case in accordance with the terms hereof or thereof, or to sell the
Securities being sold by it in accordance with the terms hereof. Except as set
forth in Schedule 4.3, all consents, authorizations, orders, filings and
registrations which such Selling Shareholder is required to obtain pursuant to
the preceding sentence have been obtained or effected on or prior to the date
hereof.
4.4 No Brokers. Such Selling Shareholder has taken no action which would
give rise to any claim by any person for brokerage commissions, finder's fees or
similar payments relating to this Agreement or the transactions contemplated
hereby, except for dealings with U.S. Bancorp Xxxxx Xxxxxxx Inc., whose
commissions and fees with respect to the sale of Securities by such Selling
Shareholder will be paid for by such Selling Shareholder.
ARTICLE V
COVENANTS
5.1 Best Efforts. Each party will use its best efforts to satisfy in a
timely fashion each of the conditions to be satisfied by it under Articles VII
and VIII of this Agreement.
5.2 Form D; Blue Sky Laws. The Company will file a Notice of Sale of
Securities on Form D with respect to the Securities, as required under
Regulation D, and to provide a copy thereof to each Investor promptly after such
filing. The Company will take such action as it reasonably determines to be
necessary to qualify the Securities for sale to the Investors under this
Agreement under applicable securities (or "blue sky") laws of the states of the
United States (or to obtain an exemption from such qualification), and will
provide evidence of any such action so taken to the Investors. The Company will
file with the SEC a Current Report on Form 8-K disclosing this Agreement and the
transactions contemplated hereby within 10 business days after the Closing Date.
5.3 Reporting Status; Eligibility to Use Form S-3. The Company's Common
Stock is registered under Section 12 of the Exchange Act. Throughout the
Registration Period (as defined in the Registration Rights Agreement), the
Company will timely file all reports, schedules, forms, statements and other
documents required to be filed by it with the SEC under the reporting
requirements of the Exchange Act, and the Company will not terminate its status
as an issuer required to file reports under the Exchange Act even if the
Exchange Act or the rules and regulations
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thereunder would permit such termination. The Company currently meets, and will
take all reasonably necessary action to continue to meet, the "registrant
eligibility" requirements set forth in the general instructions to Form S-3 to
enable the registration of the Registrable Securities as defined in the
Registration Rights Agreement.
5.4 Expenses. The Company, each Selling Shareholder and each Investor is
liable for, and will pay, its own expenses incurred in connection with the
negotiation, preparation, execution and delivery of this Agreement and the other
agreements to be executed in connection herewith, including, without limitation,
attorneys' and consultants' fees and expenses.
5.5 Financial Information. The financial statements of the Company will be
prepared in accordance with United States generally accepted accounting
principles, consistently applied, and will fairly present in all material
respects the consolidated financial position of the Company and results of its
operations and cash flows as of, and for the periods covered by, such financial
statements (subject, in the case of unaudited statements, to normal year-end
audit adjustments).
5.6 Listing. On or before the tenth business day after the date of this
Agreement, the Company will secure the listing of the Securities upon each
national securities exchange or automated quotation system, if any, upon which
shares of Common Stock are then listed (subject to official notice of issuance)
and, so long as any Investor owns any of the Securities, will maintain such
listing of the Securities. The Company will use its best efforts to obtain and,
so long as any Investor owns any of the Securities, maintain the listing and
trading of its Common Stock on Nasdaq, the American Stock Exchange or the New
York Stock Exchange and will comply in all respects with the Company's
reporting, filing and other obligations under the bylaws or rules of the
National Association of Securities Dealers, Inc. and such exchanges, as
applicable. Until an Investor transfers, assigns or sells all of the Securities
owned by it, the Company will promptly provide to each Investor copies of any
notices it receives regarding the continued eligibility of the Common Stock for
listing on Nasdaq or other principal exchange or quotation system on which the
Common Stock is listed or traded.
5.7 Compliance with Law. As long as an Investor owns any of the
Securities, the Company will conduct its business in compliance with all
applicable laws, rules and regulations of the jurisdictions in which it is
conducting business, including, without limitation, all applicable local, state
and federal environmental laws and regulations, the failure to comply with which
would have a Material Adverse Effect.
5.8 No Integration. The Company will not make any offers or sales of any
security (other than the Securities) under circumstances that would cause the
offering of the Securities to be integrated with any other offering of
securities by the Company (i) for the purpose of any stockholder approval
provision applicable to the Company or its securities or (ii) for purposes of
any registration requirement under the Securities Act.
5.9 Sales by Investors. Each Investor will sell any Securities sold by it
in compliance with applicable prospectus delivery requirements, if any, or
otherwise in compliance with the requirements for an exemption from registration
under the Securities Act and the rules and regulations promulgated thereunder.
No Investor will make any sale, transfer or other disposition of the Securities
in violation of federal or state securities laws.
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ARTICLE VI
TRANSFER AGENT INSTRUCTIONS; REMOVAL OF LEGENDS
6.1 Issuance of Certificates. The Company will instruct its transfer agent
to issue certificates, registered in the name of each Investor or its nominee,
for the Securities. All such certificates will bear the restrictive legend
described in Section 2.7, except as otherwise specified in this Article VI. In
addition, the Company will issue irrevocable Transfer Agent Instructions to the
transfer agent in the form of Exhibit B hereto. The Company will not give to its
transfer agent any instruction other than as described in this Article VI and
stop transfer instructions to give effect to Section 2.7 hereof (prior to
registration of the Securities under the Securities Act). Nothing in this
Section will affect in any way the Investor's obligations and agreement set
forth in Section 2.7 hereof to comply with all applicable prospectus delivery
requirements, if any, upon resale of the Securities.
6.2 Unrestricted Securities. If, unless otherwise required by applicable
state securities laws, (a) the Securities represented by a certificate have been
registered under an effective registration statement filed under the Securities
Act and sold under such registration statement, (b) a holder of Securities
provides the Company and the Transfer Agent with reasonable assurances that such
Securities can be sold under Rule 144, or (c) the Securities represented by a
certificate can be sold without restriction as to the number of securities sold
under Rule 144(k), the Company will permit the transfer of the Securities, and
the Transfer Agent will issue one or more certificates, free from any
restrictive legend, in such name and in such denominations as specified by such
holder. Notwithstanding anything herein to the contrary, the Securities may be
pledged as collateral in connection with a bona fide margin account or other
lending arrangement; provided that such pledge will not alter the provisions of
this Article VI with respect to the removal of restrictive legends.
ARTICLE VII
CONDITIONS TO THE COMPANY'S AND SELLING SHAREHOLDERS' OBLIGATIONS TO SELL
The obligation of the Company to issue and sell the Securities being sold
by it, and of the Selling Shareholders to sell the Securities being sold by
them, to each Investor at the Closing is subject to the satisfaction by such
Investor, on or before the Closing Date, of each of the following conditions.
These conditions are for the sole benefit of the Company and the Selling
Shareholders and may be waived by the Company at any time in its sole
discretion:
7.1 The Investor will have executed this Agreement and the Registration
Rights Agreement and will have delivered those agreements to the Company.
7.2 The Investor will have delivered the purchase price for the Securities
to the Company and the Selling Shareholders in accordance with this Agreement.
7.3 The representations and warranties of the Investor must be true and
correct in all material respects as of the Closing Date as though made at that
time (except for representations and warranties that speak as of a specific
date, which representations and warranties must be correct as of such date), and
the Investor will have performed and complied in all material respects with the
covenants and conditions required by this Agreement to be performed or complied
with by the Investor at or prior to the Closing.
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7.4 No statute, rule, regulation, executive order, decree, ruling or
injunction will have been enacted, entered, promulgated or endorsed by or in any
court or governmental authority of competent jurisdiction or any self-regulatory
organization having authority over the matters contemplated hereby which
prohibits the consummation of any of the transactions contemplated by this
Agreement.
ARTICLE VIII
CONDITIONS TO THE INVESTOR'S OBLIGATION TO PURCHASE
The obligation of each Investor hereunder to purchase the Securities from
the Company and the Selling Shareholders at the Closing is subject to the
satisfaction, on or before the Closing Date, of each of the following
conditions. These conditions are for each Investor's respective benefit and may
be waived by any Investor at any time in its sole discretion:
8.1 The Company and the Selling Shareholders will have executed this
Agreement and the Registration Rights Agreement and will have delivered those
Agreements to the Investor.
8.2 The Company and the Selling Shareholders will have delivered (or
caused to be delivered) to the Investors duly executed certificates representing
the Securities in the amounts specified in Section 1.1 hereof.
8.3 The representations and warranties of the Company and the Selling
Shareholders must be true and correct in all material respects as of the Closing
as though made at that time (except for representations and warranties that
speak as of a specific date, which representations and warranties must be true
and correct as of such date) and the Company and the Selling Shareholders must
have performed and complied in all material respects with the covenants and
conditions required by this Agreement to be performed or complied with by the
Company and the Selling Shareholders at or prior to the Closing. The Investor
must have received a certificate or certificates dated as of the Closing Date
and executed by the Chief Executive Officer or the Chief Financial Officer of
the Company certifying, as to the Company, the matters in contained in this
Section 8.3 and as to such other matters as may be reasonably requested by such
Investor, including, but not limited to, the Company's Certificate of
Incorporation, By-laws, Board of Directors' resolutions relating to the
transactions contemplated hereby and the incumbency and signatures of each of
the officers of the Company who may execute on behalf of the Company any
document delivered at the Closing.
8.4 No litigation, statute, rule, regulation, executive order, decree,
ruling or injunction will have been enacted, entered, promulgated or endorsed by
or in any court or governmental authority of competent jurisdiction or any
self-regulatory organization having authority over the matters contemplated
hereby which prohibits the consummation of any of the transactions contemplated
by this Agreement.
8.5 Trading and listing of the Common Stock on Nasdaq shall not have been
suspended by the SEC or Nasdaq.
8.6 The Investors will have received an opinion of the counsel to the
Company and the Selling Shareholders, dated as of the Closing Date, in form,
scope and substance reasonably satisfactory to the Investors and in
substantially the form attached hereto as Exhibit C.
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8.7 The Irrevocable Transfer Agent Instructions, in the form attached
hereto as Exhibit B, shall have been delivered to the Company's transfer agent
and acknowledged in writing by such transfer agent.
ARTICLE IX
INDEMNIFICATION
9.1 In consideration of each Investor's execution and delivery of this
Agreement and its acquisition of the Securities hereunder, and in addition to
all of the Company's other obligations under this Agreement and the Registration
Rights Agreement, the Company will defend, protect, indemnify and hold harmless
each Investor and each other holder of the Securities and all of their
stockholders, officers, directors, employees and direct or indirect investors
and any of the foregoing person's agents or other representatives (including,
without limitation, those retained in connection with the transactions
contemplated by this Agreement) (collectively, the "Indemnitees") from and
against any and all actions, causes of action, suits, claims, losses, costs,
penalties, fees, liabilities and damages, and expenses in connection therewith
(regardless of whether any such Indemnitee is a party to the action for which
indemnification hereunder is sought), and including reasonable attorneys' fees
and disbursements (the "Indemnified Liabilities"), incurred by an Indemnitee as
a result of, or arising out of, or relating to (a) any breach of any
representation or warranty made by the Company herein or in any other
certificate, instrument or document contemplated hereby or thereby, (b) any
breach of any covenant, agreement or obligation of the Company contained herein
or in any other certificate, instrument or document contemplated hereby or
thereby or (c) any cause of action, suit or claim brought or made against such
Indemnitee and arising out of or resulting from the execution, delivery,
performance, breach or enforcement of this Agreement or the Registration Rights
Agreement by the Company. To the extent that the foregoing undertaking by the
Company is unenforceable for any reason, the Company will make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities that is permissible under applicable law.
9.2 In consideration of each Investor's execution and delivery of this
Agreement and its acquisition of the Securities hereunder, and in addition to
all of the Selling Shareholders' other obligations under this Agreement, each
Selling Shareholder will defend, protect, indemnify and hold harmless each
Indemnitee from and against any and all Indemnified Liabilities incurred by an
Indemnitee as a result of, or arising out of, or relating to (a) any breach of
any representation or warranty made by such Selling Shareholder herein or in any
other certificate, instrument or document contemplated hereby or thereby, (b)
any breach of any covenant, agreement or obligation of such Selling Shareholder
contained herein or in any other certificate, instrument or document
contemplated hereby or thereby or (c) any cause of action, suit or claim brought
or made against such Indemnitee and arising out of or resulting from the
execution, delivery, performance, breach or enforcement of this Agreement by
such Selling Shareholder. To the extent that the foregoing undertaking by such
Selling Shareholder is unenforceable for any reason, such Selling Shareholder
will make the maximum contribution to the payment and satisfaction of each of
the Indemnified Liabilities that is permissible under applicable law. The
liability of each Selling Shareholder under this Agreement shall be limited to
an amount equal to the gross proceeds received by the Selling Shareholder.
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ARTICLE X
DEFINITIONS
10.1 "Closing" means the closing of the purchase and sale of the
Securities under this Agreement.
10.2 "Closing Date" has the meaning set forth in Section 1.3.
10.3 "Common Stock" means the common stock, par value $.01 per share, of
the Company.
10.4 "Company" means Novoste Corporation, a Florida corporation.
10.5 "Exchange Act" means the Securities Exchange Act of 1934, as amended.
10.6 "Indemnified Liabilities" has the meaning set forth in Article IX.
10.7 "Indemnitees" has the meaning set forth in Article IX.
10.8 "Investors" means the investors whose names are set forth on the
signature pages of this Agreement, and their permitted transferees.
10.9 "Material Adverse Effect" means a material adverse effect on (a) the
business, operations, assets or financial condition of the Company or (b) the
ability of the Company to perform its obligations pursuant to the transactions
contemplated by this Agreement or under the agreements or instruments to be
entered into or filed in connection herewith.
10.10 "Nasdaq" means the Nasdaq National Market System.
10.11 "Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date of this Agreement and among the parties to this
Agreement, in the form attached hereto as Exhibit D.
10.12 "Regulation D" means Regulation D as promulgated under by the SEC
under the Securities Act.
10.13 "Rule 144" and "Rule 144(k)" mean Rule 144 and Rule 144(k),
respectively, promulgated under the Securities Act, or any successor rule.
10.14 "SEC" means the United States Securities and Exchange Commission.
10.15 "SEC Documents" has the meaning set forth in Section 3.6.
10.16 "Securities" means the Common Stock sold pursuant to this agreement.
10.17 "Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations thereunder, or any similar successor statute.
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ARTICLE XI
GOVERNING LAW; MISCELLANEOUS
11.1 Governing Law; Jurisdiction. This Agreement will be governed by and
interpreted in accordance with the laws of the State of New York without regard
to the principles of conflict of laws. The parties hereto hereby submit to the
exclusive jurisdiction of the United States federal and state courts located in
the State of New York with respect to any dispute arising under this Agreement,
the agreements entered into in connection herewith or the transactions
contemplated hereby or thereby.
11.2 Counterparts; Signatures by Facsimile. This Agreement may be executed
in two or more counterparts, all of which are considered one and the same
agreement and will become effective when counterparts have been signed by each
party and delivered to the other parties. This Agreement, once executed by a
party, may be delivered to the other parties hereto by facsimile transmission of
a copy of this Agreement bearing the signature of the party so delivering this
Agreement.
11.3 Headings. The headings of this Agreement are for convenience of
reference only, are not part of this Agreement and do not affect its
interpretation.
11.4 Severability. If any provision of this Agreement is invalid or
unenforceable under any applicable statute or rule of law, then such provision
will be deemed modified in order to conform with such statute or rule of law.
Any provision hereof that may prove invalid or unenforceable under any law will
not affect the validity or enforceability of any other provision hereof.
11.5 Entire Agreement; Amendments. This Agreement and the Registration
Rights Agreement (including all schedules and exhibits thereto) constitute the
entire agreement among the parties hereto with respect to the subject matter
hereof and thereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein or therein. This
Agreement supersedes all prior agreements and understandings among the parties
hereto with respect to the subject matter hereof. No provision of this Agreement
may be waived or amended other than by an instrument in writing signed by the
party to be charged with enforcement.
11.6 Notices. Any notices required or permitted to be given under the
terms of this Agreement must be sent by certified or registered mail (return
receipt requested) or delivered personally or by courier (including a recognized
overnight delivery service) or by facsimile and will be effective five days
after being placed in the mail, if mailed by regular U.S. mail, or upon receipt,
if delivered personally, by courier (including a recognized overnight delivery
service) or by facsimile, in each case addressed to a party. The addresses for
such communications are:
If to the Company: Novoste Corporation
0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attention: Chief Executive Officer
(000) 000-0000
With a copy to: Xxxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
00
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Esq.
(000) 000-0000
If to an Investor: To the address set forth immediately below such
Investor's name on the signature pages hereto.
Each party will provide written notice to the other parties of any change
in its address.
11.7 Successors and Assigns. This Agreement is binding upon and inures to
the benefit of the parties and their successors and assigns. The Company will
not assign this Agreement or any rights or obligations hereunder without the
prior written consent of the Investors, and no Investor may assign this
Agreement or any rights or obligations hereunder without the prior written
consent of the Company. Notwithstanding the foregoing, an Investor may assign
all or part of its rights and obligations hereunder to any of its "affiliates,"
as that term is defined under the Securities Act, without the consent of the
Company so long as the affiliate is an accredited investor (within the meaning
of Regulation D under the Securities Act) and agrees in writing to be bound by
this Agreement. This provision does not limit the Investor's right to transfer
the Securities pursuant to the terms of this Agreement or to assign the
Investor's rights hereunder to any such transferee pursuant to the terms of this
Agreement.
11.8 Third Party Beneficiaries. This Agreement is intended for the benefit
of the parties hereto and their respective permitted successors and assigns, and
is not for the benefit of, nor may any provision hereof be enforced by, any
other person.
11.9 Survival. The representations and warranties of the Company and the
agreements and covenants set forth herein will survive the Closing hereunder.
The Company makes no representations or warranties in any oral or written
information provided to Investors, other than the representations and warranties
included herein.
11.10 Further Assurances. Each party will do and perform, or cause to be
done and performed, all such further acts and things, and will execute and
deliver all other agreements, certificates, instruments and documents, as
another party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
11.11 No Strict Construction. The language used in this Agreement is
deemed to be the language chosen by the parties to express their mutual intent,
and no rules of strict construction will be applied against any party.
11.12 Equitable Relief. The Company recognizes that, if it fails to
perform or discharge any of its obligations under this Agreement, any remedy at
law may prove to be inadequate relief to the Investors. The Company therefore
agrees that the Investors are entitled to temporary and permanent injunctive
relief in any such case without the necessity of proving actual damages.
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IN WITNESS WHEREOF, the undersigned Investors and the Company have caused
this Agreement to be duly executed as of the date first above written.
COMPANY:
NOVOSTE CORPORATION
By:______________________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
The Selling Shareholders Named in Schedule I
hereto, acting severally:
By:______________________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Attorney-in-Fact
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OMNIBUS SIGNATURE PAGE TO
NOVOSTE CORPORATION
SECURITIES PURCHASE AGREEMENT
The undersigned hereby executes and delivers the Securities Purchase
Agreement to which this Signature Page is attached, which, together with all
counterparts of the Agreement and Signature Pages of the other parties named in
said Agreement, shall constitute one and the same document in accordance with
the terms of the Agreement.
Sign Name: ____________________________
Print Name: ____________________________
Address: ____________________________
____________________________
____________________________
Telephone: ____________________________
Facsimile: ____________________________
Number of Securities Being Purchased: _____________
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