Exhibit 10.12
Stock and Warrant Purchase Agreement
dated February 4, 2000
The following parties have entered into the Stock and Warrant Purchase
Agreement attached hereto to purchase shares of Common Stock and warrants to
purchase shares of Common Stock of BioSphere Medical, Inc.:
Purchaser Shares Purchased Shares Underlying Warrants
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ABS Employees' Venture 27,777 6,944
Fund Limited Partnership
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ACI Capital / BSMD, LLC 16,666 4,166
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ACI Capital / BSMDI, LLC 177,777 44,444
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Biopergs, LLC 27,777 6,944
-----------------------------------------------------------------------------------------
Cerberus Partners, L.P. 55,556 13,889
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Cerberus International, LTD. 111,112 27,778
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Pequod Investments, L.P. 100,000 25,000
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Pequod International, LTD 66,668 16,667
-----------------------------------------------------------------------------------------
Xxxxxxx Xxxxxx & Co. Pension 11,112 2,778
Trust 002
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Ursus Capital, L.P. 15,000 3,750
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Xxxx X. Xxxxxxxxx 5,555 1,388
-----------------------------------------------------------------------------------------
Xxxx-Xxxxx Xxxxx 5,555 1,388
-----------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxxxx 5,555 1,388
-----------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxxxx 27,777 6,944
-----------------------------------------------------------------------------------------
STOCK AND WARRANT PURCHASE AGREEMENT
STOCK AND WARRANT PURCHASE AGREEMENT (this "Agreement"), dated February
__, 2000, by and between BioSphere Medical, Inc., a Delaware corporation (the
"Company"), and the investor named on the signature page hereof (the
"Investor").
W I T N E S S E T H
WHEREAS, the Company is offering for sale up to 700,000 shares (the
"Shares") of its Common Stock (as defined below) and warrants (the "Warrants")
to purchase up to 175,000 shares of Common Stock, at the aggregate price of
$9.00 for one share of Common Stock and a Warrant to purchase one-fourth of one
share of Common Stock (the "Per Share Purchase Price"), pursuant to a Private
Placement Memorandum dated February 2, 2000 (the "Memorandum"), this transaction
generally being herein referred to as the "Private Placement"; and
WHEREAS, the Investor desires to purchase from the Company shares of
Common Stock on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and for good and valuable consideration the receipt of which
is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS. Unless specifically defined herein, capitalized terms
used herein have the meaning ascribed to such terms in the Memorandum except
that, unless the context requires otherwise, the following terms have the
meanings indicated:
"Business Day" shall mean any day except Saturday, Sunday and any day
which shall be in Boston, Massachusetts a legal holiday or a day on which
banking institutions are authorized or required by law or other government
action to close.
"Common Stock" shall mean the Common Stock, par value $0.01 per share,
of the Company.
"Investor Shares" shall mean the shares of Common Stock subscribed for
hereunder by the Investor and the shares of Common Stock issuable upon exercise
of the warrants purchased hereunder by the Investor, together with any shares of
Common Stock issued in respect of such shares pursuant to a dividend or
distribution, stock split, recapitalization, or similar transaction.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, association, trust or other enterprise or any government or
political subdivision or any agency, department or instrumentality thereof.
"Warrant Certificate " shall mean the Warrant Certificate representing
a warrant to purchase shares of Common Stock issued pursuant to the Warrant
Agreement.
"Warrant Agreement" shall mean that certain Warrant Agreement, dated as
of February __, 2000, by and between the Company and the Investor.
2. PURCHASE OF COMMON STOCK AND WARRANTS; SUBSEQUENT SALE.
(a) PURCHASE. Subject and pursuant to the terms and conditions
set forth in this Agreement, the Company agrees that it will issue and sell to
the Investor and the Investor agrees that it will purchase from the Company, at
the Per Share Purchase Price, (i) __________ shares of Common Stock and (ii) a
Warrant to purchase up to _______ shares of Common Stock on the terms and
conditions set forth in the Warrant Agreement. The aggregate purchase price for
the shares of Common Stock and the Warrant shall be $_______ (the "Aggregate
Purchase Price"). The shares of Common Stock and the Warrant are being offered
pursuant to the Memorandum.
(b) OTHER INVESTORS. The Company proposes to enter into a form
of Stock and Warrant Purchase Agreement with other investors (the "Other
Investors") on terms no more favorable to such other Investors than the terms
set forth herein. The Investor and the Other Investors are hereinafter referred
to collectively as the "Investors."
3. DELIVERIES AT CLOSING.
(a) DELIVERIES BY THE INVESTOR. At the Closing of the
transactions contemplated hereby, the Investor shall deliver to the Company the
following:
(1) the Aggregate Purchase Price by wire transfer of
immediately available funds to an account designated by the Company as set forth
on Annex VI hereto;
(2) an executed Investor Questionnaire in the form
attached as Annex I;
(3) a executed Managed Account Representation Letter,
if applicable, in the form attached as Annex II;
(4) a completed copy of Annex III representing and
warranting as to shares beneficially owned prior to the consummation of the
transactions contemplated hereby; and
(5) a completed Registration Statement Questionnaire
in the form attached as Annex IV.
(b) DELIVERIES BY THE COMPANY.
(1) On or more certificates representing the Investor
shares registered in the name of the Investor or its nominee(s), as the Investor
has specified in writing to the Company;
(2) an executed Warrant Agreement; and
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(3) One or more Warrant Certificate representing the
Warrant registered in the name of the Investor or its nominee(s), as the
Investor has specified in writing to the Company.
4. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS.
(a) INVESTOR REPRESENTATIONS, WARRANTIES AND COVENANTS. The
Investor represents, warrants and agrees as follows:
(1) The Investor has received and reviewed a copy of
the Memorandum, and all appendices and supplements (if any) thereto, relating to
the Shares and understands that no Person has been authorized to give any
information or to make any representations that were not contained in the
Memorandum, and the Investor has not relied on any such other information or
representations in making a decision to purchase the Investor Shares. The
Investor has had access to such financial and other information and has had the
opportunity to ask questions and receive answers as deemed necessary in respect
of the decision to purchase the Shares, and has consulted with advisors
concerning the proposed investment in the Company. The Investor understands that
an investment in the Company involves a high degree of risk for the reasons,
among others, set forth under the caption "RISK FACTORS" in the Memorandum.
(2) The Investor has decided to invest in the Shares
and, in making the decision to so invest, is not in any way relying on the fact
that any other Person has decided to invest in the Shares.
(3) The Investor represents that the Investor (or, if
applicable, each managed account on whose behalf the Investor Shares are being
purchased by such Investor) is a sophisticated investor or is an "accredited
investor" as defined in Rule 501 under the Securities Act of 1933, as amended
(the "Securities Act"), as certified by the Investor pursuant to the Investor
Questionnaire attached hereto as ANNEX I. The Investor further represents that
the Investor (or, if applicable, each managed account on whose behalf the
Investor Shares are being purchased) has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risk of an investment in the Shares and can bear the economic risk of loss of
the entire investment in the Shares being purchased.
(4) The Investor understands and expressly
acknowledges and agrees that none of the Shares has been, or will be, registered
or qualified under the Securities Act, or under any applicable securities laws
of any State of the United States ("Applicable State Law") and therefore may not
be offered, sold, transferred, assigned, pledged, hypothecated or otherwise
disposed of, directly or indirectly, unless subsequently registered or qualified
under the Securities Act and under Applicable State Law or unless any exemptions
from the registration requirements of the Securities Act and Applicable State
Law are available, in each case to the extent permitted by the terms of this
Agreement.
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(5) The Investor understands and agrees that all
certificates representing the Investor Shares shall bear a legend which will be
substantially in the form of the following:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT") AND SUCH SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED,
TRANSFERRED OR HYPOTHECATED OR OTHERWISE ASSIGNED EXCEPT
PURSUANT TO (1) A REGISTRATION STATEMENT WITH RESPECT TO SUCH
SECURITIES WHICH IS EFFECTIVE UNDER SUCH ACT OR (2) RULE 144
OR 144A UNDER SUCH ACT OR ANY OTHER AVAILABLE EXEMPTION FROM
REGISTRATION UNDER SUCH ACT RELATING TO DISPOSITION OF
SECURITIES."
(6) The Investor (or, if applicable, each managed
account on whose behalf the Investor Shares are being purchased by the Investor)
will acquire the Investor Shares pursuant to this Agreement for its own account
for investment and not with a view to, or in connection with, the resale or
distribution thereof or in any arrangement or understanding with any other
persons regarding the distribution of such Shares in violation of the Securities
Act. The Investor hereby covenants and agrees to execute a lockup agreement,
containing a ninety (90) day restriction on the sale of Investor Shares, and
other standard terms and conditions, with any requesting underwriter
participating in a primary offering (as defined in Section 5.1(a)(1) below).
(7) The Investor hereby covenants and agrees with the
Company not to make any sale of the Investor Shares without causing the
prospectus delivery requirement under the Securities Act to be satisfied or
otherwise complying with the Securities Act, and the Investor acknowledges and
agrees that the Shares are not transferable on the books of the Company unless
the certificate submitted to the transfer agent evidencing the Investor Shares
is accompanied by (1) a separate certificate (i) in the form of ANNEX V hereto,
(ii) executed by an officer of, or other authorized person designated by, the
Investor, and (iii) to the effect that (A) the Investor Shares have been sold in
accordance with a registration statement pursuant to Section 5 and (B) the
requirement of delivering a current prospectus has been satisfied; or (2) an
opinion of counsel reasonably satisfactory to the Company stating that
registration is not required under the Securities Act. The Investor acknowledges
that there may be times when the Company may suspend the use of the prospectus
forming a part of a registration statement in the event and during such period
pending negotiations relating to, or consummation of, a transaction or the
occurrence of any other event that would require additional disclosure of
material information by the Company in the registration statement and disclosing
such information would adversely affect the Company (as to which the Company
has a BONA FIDE business purpose for preserving confidentiality) that would
make it impractical or inadvisable to cause the registration statement to be
filed or to become effective or to amend or supplement the registration
statement or which otherwise renders the Company unable to comply with the
Securities and Exchange Commission (the "Commission") requirements. In such
event, the Company may suspend the use of such prospectus until such time as
an amendment to such registration statement has been filed by the
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Company and declared effective by the Commission, or until such time as the
Company has filed an appropriate report with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); PROVIDED,
HOWEVER, that such suspension shall not be for a period of more than 30
consecutive trading days during any one (1) suspension period or more than 60
trading days in any one (1) year period. The Investor hereby covenants and
agrees that it will not sell any Investor Shares pursuant to said prospectus
during the period commencing at the time at which the Company gives the Investor
written notice of the suspension of the use of said prospectus and ending the
earlier of 30 consecutive trading days after such notice or the date on which
the Company gives the Investor written notice that the Investor may thereafter
effect sales pursuant to said prospectus.
(8) The execution and delivery of this Agreement by
the Investor and the performance of this Agreement and the consummation by the
Investor or the Investor's advisory clients, as the case may be, of the
transactions contemplated hereby have been duly authorized by all necessary
(corporate, in the case of a corporation) action of the Investor and, if
applicable, the Investor's advisory clients; and this Agreement, when duly
executed and delivered by the Investor, will constitute a valid and legally
binding instrument, enforceable in accordance with its terms against the
Investor or any of the Investor's advisory clients, as the case may be, except
as such enforceability may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (regardless of whether the issue of enforceability
is considered in a proceeding in equity or at law) and except as the
indemnification and contribution agreements of the Investor in Section 5(d)
hereof may be legally unenforceable.
(9) The Investor represents that:
(A) If the Investor is a corporation, it
is a corporation duly incorporated, validly existing and in good standing under
the laws of the jurisdiction of its incorporation, with full power and authority
(corporate and other) to perform its obligations under this Agreement. If the
Investor is a limited liability company, it is a limited liability company duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, with full power and authority (limited
liability company and other) to perform its obligations under this Agreement.
The person executing this Agreement on behalf of the Investor is authorized to
act for the Investor in purchasing the Shares.
(B) If the Investor is a corporation
acting in an advisory capacity, it is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, with full power and authority (corporate and other) to act on
behalf of its advisory clients under this Agreement. If the Investor is a
limited liability company acting in an advisory capacity, it is a limited
liability company duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation, with full power and authority
(corporate and other) to act on behalf of its advisory clients under this
Agreement
(C) If the Investor is a trust, the trustee
thereunder has been duly appointed as trustee of such Investor with full power
and authority to act on behalf of such Investor and to perform the obligations
of such Investor under this Agreement. Furthermore, the trustee under such
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trust has independently determined that the purchase of the Investor Shares is a
suitable investment for such trust as authorized by the terms thereof and
applicable laws and regulations.
(D) If the Investor is a limited
partnership, it is a limited partnership duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, with full
power and authority to perform its obligations under this Agreement.
(E) If the Investor is a limited
partnership acting in an advisory capacity, it is a limited partnership duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, with full power and authority to act on behalf
of its advisory clients under this Agreement.
(F) If the Investor is a corporation,
limited liability company, partnership, trust or other form of business entity,
the execution and delivery of this Agreement will not contravene or result in a
default under any provision of existing law or regulations to which the Investor
is subject, the provisions of its trust instrument, charter, by-laws or other
governing documents or any indenture, mortgage or other agreement or instrument
to which it is a party or by which it is bound and does not require on its part
any approval, authorization, license or filing from or with any foreign,
federal, state or municipal board or agency which has not been obtained or duly
made.
(G) If the Investor is an individual,
the Investor has full power and authority to perform its obligations under this
Agreement.
(10) The Investor agrees to complete and execute and
return to the Company (a) the Investor Questionnaire attached as ANNEX I to this
Agreement representing that the Investor is investing in Shares as an
"accredited investor;" (b) if the Investor is acting on behalf of a managed
account in the purchase of any Investor Shares, the Managed Accounts
Representation Letter attached as ANNEX II to this Agreement; and (c) the
Registration Statement Questionnaire attached as ANNEX IV, in each case together
with an executed signature page to this Agreement. The Investor represents and
warrants that the answers thereto are true and correct as of the date hereof and
will be true and correct as of the effective date of the Registration Statement
(as defined in Section 5). The Investor further represents and warrants that it
is not purchasing the Investor Shares on behalf of any managed account other
than as listed in the Managed Account Representation Letter.
(11) The Investor has not entered into any contracts,
arrangements, understandings or relationships (written or otherwise) with any
other Person or Persons (other than the Company or a limited partner/member or
affiliate of Investor, which in any case shall not violate any securities laws)
with respect to any securities of the Company (including but not limited to
transfer or voting of any of the securities, finder's fees, joint ventures, loan
or option arrangements, puts or calls, guarantees of profits, division of
profits or loss, or the giving or withholding of proxies) or the operations,
management or control of the Company; the Investor is not bound together, under
common control with, in a common enterprise with, or otherwise acting in concert
with, any other Person or Persons (other than a limited partner/member or
affiliate of Investor, which in any case shall not violate any securities laws)
in connection with the transactions contemplated by this Agreement; and the
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Investor does not own any securities of the Company which are pledged or
otherwise subject to a contingency the occurrence of which would give another
Person voting power or investment power over such securities.
(12) Except as otherwise set forth in ANNEX III: (i)
as of the date hereof, the Investor did not beneficially own any shares of
Common Stock; and (ii) as of the date of this Agreement, the Investor does not
beneficially own any shares of Common Stock. The Company acknowledges that
certain of the members/limited partners of Investor may own shares of Common
Stock; PROVIDED that such member/limited partner is an "accredited investor" as
defined in Rule 501 of the Securities Act.
(13) No state, federal or foreign regulatory
approvals, permits, licenses or consents or other contractual or legal
obligations are required for the Investor to enter into this Agreement or
otherwise purchase the Investor Shares.
(b) COMPANY REPRESENTATIONS, WARRANTIES AND COVENANTS. The
Company hereby represents, warrants and agrees as follows:
(1) The Company and each of its subsidiaries has been
duly organized and is validly existing in good standing under the laws of the
jurisdiction of its organization, with full power and authority (corporate and
other) to perform its obligations under this Agreement and the Warrant Agreement
and to consummate the transactions contemplated hereby and thereby.
(2) The execution, delivery and performance of this
Agreement and the Warrant Agreement by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby have been duly
authorized by all necessary action of the Company and each of the Agreement and
the Warrant Agreemet has been duly executed and delivered by the Company; and
this Agreement and the Warrant Agreement, when duly executed and delivered by
the Investor, will constitute a valid and legally binding instrument of the
Company enforceable in accordance with their terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (regardless of whether the issue of enforceability
is considered in a proceeding in equity or at law) and except as the
indemnification and contribution agreements of the Company in Section 5(d)
hereof may be legally unenforceable.
(3) The Investor Shares have been duly authorized by
the Company, and when issued and delivered by the Company against payment
therefor as contemplated hereby and in accordance with the terms of the
Memorandum, the Investor Shares will be validly issued, fully paid and
nonassessable, free of preemptive rights and free from all taxes, liens, charges
and security interests in respect of the issuance thereof.
(4) The execution and delivery of this Agreement and
the Warrant Agreement, the consummation by the Company of the transactions
herein and therein contemplated and the compliance by the Company with the terms
hereof and thereof do not and will not violate the
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Certificate of Incorporation of the Company, or the By-Laws of the Company, or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of their properties or assets are subject, or any
applicable statute or any order, judgment, decree, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties or assets; and no consent,
approval, authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the valid
authorization, execution, delivery and performance by the Company of this
Agreement, the issue of the Investor Shares or the consummation by the Company
of the other transactions contemplated by this Agreement, except for such
consents, approvals, authorizations, registrations or qualifications as may be
required under Federal or state securities or "blue sky" laws or, with respect
to requirements applicable to the Investor.
(5) The information contained in the following
documents, which the Company has furnished to the Investor does not contain any
untrue statement of material fact or omit to state any material fact necessary
in order to make the statements therein in light of the circumstances in which
they were made not misleading as of the respective final dates of the documents.
Each of the documents listed in (A) through (F) below complied as to form in all
material respects with the applicable requirements of the Securities Act or
Exchange Act.
(A) the Company's Annual Report to Stockholders
on Form 10-K for the fiscal year ended
December 31, 1998 (without exhibits);
(B) Amendment No. 1 to the Company's Annual
Report for the fiscal year ended December
31, 1998 on Form 10-K/A;
(C) Notice to Shareholders and Proxy Statement
for its Annual Meeting of Shareholders held
June 16, 1999;
(D) the Company's Quarterly Report on Form 10-Q
for the quarterly period ended September 30,
1999;
(E) the Company's Current Report on Form 8-K,
filed with the SEC as of June 2, 1999;
(F) Amendment No. 1 to Current Report on Form
8-K/A, filed with the SEC on August 2, 1999;
(G) the Company's January 31, 2000 Press Release
regarding Fourth Quarter and Year End
Financial Results; and
(H) the Memorandum.
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(6) The balance sheets attached to the Company's January
31, 2000 Press Release regarding Fourth Quarter and Year End Financial Results
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis, are consistent in all material respects with the
books and records of the Company and accurately present in all material respects
the financial position of the Company and its subsidiaries as of December 31,
1999. There has been no material adverse change in the financial condition or
business or results of operations of the Company or its subsidiaries since
September 30, 1999.
(7) Except as disclosed in the documents referred to in
paragraph (5) above, there is no action, suit, proceeding, inquiry or
investigation before or by any court, public board or body pending or, to the
knowledge of the Company or any of its subsidiaries, threatened against or
affecting the Company or any of its subsidiaries, wherein an unfavorable
decision, ruling or finding would have a material adverse effect on the
properties, business, condition (financial or other), or results of operations
of the Company and its subsidiaries taken as a whole or the transactions
contemplated by this Stock and Warrant Purchase Agreement or any of the
documents contemplated hereby or which would adversely affect the validity or
enforceability of, or the authority or ability of the Company to perform its
obligations under this Stock and Warrant Purchase Agreement or any of such other
documents.
(c) SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
the Investor herein and in the certificates for the Investor Shares delivered
pursuant hereto shall survive the execution of this Agreement, the delivery to
the Investor of the Investor Shares being purchased and the payment therefor.
5. REGISTRATION OF THE SHARES; COMPLIANCE WITH THE SECURITIES ACT.
(a) REGISTRATION RIGHTS; REGISTRATION PROCEDURES AND EXPENSES.
(1) If at any time or times after the date hereof, the
Company shall determine or be required to register any shares of its Common
Stock or other equity securities for sale under the Securities Act (whether in
connection with a public offering of securities by the Company (a "primary
offering"), a public offering of securities by stockholders of the Company (a
"secondary offering") or both), but not in connection with a registration
effected solely to implement an employee benefit plan or a transaction to which
Rule 145 or any other similar rule of the Commission under the Securities Act is
applicable, the Company shall:
(i) Promptly give written notice thereof to each of the
Investors.
(ii) Use reasonable best efforts to effect the
registration under the Securities Act of all Investor Shares (but not any other
shares) which such Investors request to be registered in a writing delivered to
the Company within 20 days after such Investors' receipt of the notice referred
to above, subject to subparagraph (iii) below.
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(iii) In the case of the registration of shares of
Common Stock by the Company in connection with an underwritten public offering,
(i) the Company shall not be required to include any Investor Shares in such
underwriting unless the Investors thereof accept the terms of the underwriting
as agreed upon between the Company and the underwriter or underwriters selected
by it, and (ii) if the underwriter(s) determines that marketing factors require
a limitation on the number of Investor Shares to be offered, the Company shall
not be required to register Investor Shares of the Investors in excess of the
amount, if any, of shares of the capital stock which the principal underwriter
of such underwritten offering shall reasonably and in good faith agree to
include in such offering in excess of any amount to be registered for the
Company, and in the event of any such limitation the number of Investor Shares
of any Investor requesting inclusion in such registration shall be based upon
the relative holdings of Common Stock of all Investors requesting such
registration (and if any Investor would thus be entitled to include more
Investor Shares than such Investor requested to be registered, the excess shall
be allocated among other requesting Investors PRO RATA based upon their relative
holdings of Common Stock). All expenses relating to the registration and
offering of Investor Shares pursuant to this Section 5(a)(1) and pursuant to
Section 5(a)(2) below shall be borne by the Company, except that the Investors
shall bear underwriting and selling commissions attributable to their Investor
Shares being registered and any transfer taxes on shares being sold by such
Investors.
(2) The Company shall:
(a) Subject to the provisions of Section 5(c) below,
prepare and file with the Commission within 120 days of the Closing a
registration statement (the "Registration Statement") to enable the public
offering and sale of the Investor Shares by the Investor from time to time
through the over-the-counter market or in privately-negotiated transactions or
otherwise.
(b) Use reasonable best efforts, subject to receipt of
necessary information from the Investor, to cause the Registration Statement to
become effective as promptly as practicable after filing thereof and in any
event not more than 75 days after such filing.
(c) Promptly prepare and file with the Commission such
amendments and supplements to the Registration Statement and the prospectus used
in connection therewith as may be necessary to keep the Registration Statement
effective for a period not exceeding the second anniversary of the Closing, or
such shorter period which will terminate on the earlier of the date when (i) the
Shares held by the Investor may be sold without registration under the
Securities Act or (ii) all of the Shares covered by such Registration Statement
have been sold pursuant to such Registration Statement or otherwise.
(d) Promptly furnish to the Investor with respect to
the Investor Shares registered under the Registration Statement (and to each
underwriter, if any, of such Investor Shares) such number of copies of the
Registration Statement and any amendment or supplement thereto and of
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 keep the Investor
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apprised of the progress of the registration process and to facilitate the
public sale or other disposition of all or any of the Investor Shares by the
Investor.
(e) Promptly file documents required of the Company for
customary "blue sky" clearance in states specified in writing by the Investor
and reasonably required by the Investor in order to resell its Investor Shares;
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) Promptly inform the Investor when any stop order by
the Commission has been issued with respect to the Investor Shares and use its
best efforts to promptly cause such stop order to be withdrawn.
(g) Take such other actions as may reasonably be
necessary to effect the registration of the resale of the Investor Shares in
accordance with the terms of this Agreement and to allow such Investor Shares to
trade in the same market system or exchange where the Company's Common Stock
then trades.
(h) File the reports required to be filed by it under
the Securities Act and the Exchange Act (or, if the Company is not required to
file such reports, it will, upon the request of any holder of Investor Shares,
make publicly available other information so long as necessary to permit sales
under Rule 144 under the 1933 Act), all to the extent required from time to time
to enable the Investor to sell Investor Shares without registration under the
Securities Act within the limitations provided by (i) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the Commission; PROVIDED,
HOWEVER, that nothing in this Agreement shall require the Company to file
reports under the Securities Act or the Exchange Act, to register any of its
securities under the Exchange Act, or to make publicly available any information
concerning the Company at any time when it is not required by law or by any
agreement by which it is bound to do any of the foregoing.
A questionnaire related to the Registration Statement to be completed by the
Investor is attached hereto as ANNEX IV.
(b) TRANSFER OF SHARES. The Investor agrees not to effect any
disposition of the Shares or the right to purchase the Shares that would
constitute a sale within the meaning of the Securities Act except as
contemplated in Sections 5(a)(1) and (2) or pursuant to an exemption from
registration under the Securities Act. The Investor agrees to promptly notify
the Company of any changes in the information set forth in any registration
statement regarding the Investor Shares or the Investor.
(c) The Investor hereby acknowledges and agrees that in the
event that the Company makes any filing with the SEC in connection with a
primary underwritten offering within 120 days following the Closing Date, the
time period for preparing and filing a Registration Statement as
11
contemplated by Section 5(a)(2) above shall be extended until September 30, 2000
and the Company shall use its reasonable best efforts, subject to the receipt of
necessary information from the Investor, to cause the Registration Statement to
become effective as promptly thereafter as practicable and in any event not more
than 75 days after such filing.
(d) INDEMNIFICATION AND CONTRIBUTION. For the purpose of this
Section 5(d):
(1) The term "Selling Shareholder" shall include the
Investor, officers, directors, trustees, or any affiliate of such Investor and
each person, if any, who controls the Selling Shareholder within the meaning of
the Securities Act;
(2) The term "Registration Statement" shall include (i) the
Registration Statement and any final prospectus, exhibit, supplement or
amendment included in or relating to the Registration Statement and (ii) any
registration statement filed in connection with Section 5(a)(1) and any final
prospectus, exhibit, supplement or amendment included in or relating to such
registration statement; and
(3) 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.
The Company agrees to indemnify and hold harmless each Selling
Shareholder from and against any losses, claims, damages or liabilities to which
such Selling Shareholder 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 any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading or arise out of any failure by the Company to fulfill any
undertaking included in the Registration Statement and the Company will
reimburse such Selling Shareholder for any reasonable legal or other expenses
reasonably incurred in investigating, defending 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, any such untrue statement or omission 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 Shareholder
specifically for use in preparation of the Registration Statement, or the
failure of such Selling Shareholder to comply with the covenants and agreements
contained in Sections 3(a) and 5(c) hereof respecting sale of the Shares or any
statement or omission in any prospectus that is corrected or made not misleading
in any subsequent prospectus that was delivered to the Investor prior to the
pertinent sale or sales by the Investor. The Company will reimburse such Selling
Shareholder, 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.
12
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, any failure to
comply with the covenants and agreements contained in Sections 3(a) and 5(b)
hereof respecting sale of the Shares, or any untrue statement of a material fact
contained in the Registration Statement on the effective date thereof 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, PROVIDED, HOWEVER, that such Investor
shall not be liable in any such case to the extent that the Investor has
furnished in writing to the Company information expressly for use in such
Registration Statement or any amendment thereof or supplement thereto which
corrected or made not misleading information previously furnished to the Company
prior to the filing of the Registration Statement, and if thereafter, has
notified the Company of such information immediately upon its occurrence or the
Investor's knowledge of its occurrence. 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. In no event shall the
liability of the Investor hereunder be greater in amount than the dollar amount
of the proceeds received by such Investor upon the sale of the Shares giving
rise to such indemnification obligation.
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 5(d), such indemnified
person shall notify the indemnifying person in writing of such claim or of the
commencement of such action, and, subject to the provisions hereinafter stated,
in case any such action shall be brought against an indemnified person and such
indemnifying person shall be entitled to participate therein, and, to the extent
it shall wish, 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 for all indemnified parties.
If the indemnification provided for in this Section 5(d) from the
indemnifying person is unavailable to an indemnified person hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to herein, then
the indemnifying person, in lieu of indemnifying such indemnified person, shall
contribute to the amount paid or payable by such indemnified person as a result
of such losses, claims, damages, liabilities or expenses in such proportion as
is appropriate to reflect the relative
13
fault of the indemnifying person and indemnified persons in connection with the
actions which resulted in such losses, claims, damages, liabilities or expenses,
as well as any other relevant equitable considerations. The relative fault of
such indemnifying person and indemnified persons shall be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact, has been made by, or
relates to information supplied by, such indemnifying person or indemnified
persons, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid or payable by a
party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in this Section 5(d), any reasonable legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 5(d), no Investor shall be
required to contribute any amount in excess of the dollar amount of the proceeds
received by such Investor upon the sale of the Shares giving rise to such
contribution obligation. 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.
(e) TERMINATION OF CONDITIONS AND OBLIGATIONS. The conditions
precedent imposed by Section 2 or this Section 5 upon the transferability of the
Investor Shares shall cease and terminate as to any particular number of the
Investor Shares when such Investor 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 Investor 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.
(f) INFORMATION AVAILABLE. So long as a registration statement
is effective covering the resale of the Investor Shares, the Company will
furnish to the Investor:
(1) As soon as practicable after available (but in the
case of the Company's Annual Report to Shareholders, within one hundred twenty
(120) days after the end of each fiscal year of the Company), one copy of (i)
its Annual Report to Shareholders (which Annual Report shall contain financial
statements audited in accordance with generally accepted accounting principles
by a national firm of certified public accountants), (ii) if not included in
substance in the Annual Report to Shareholders, its Annual Report on Form 10-K
or equivalent form, (iii) its Quarterly Reports to Shareholders, (iv) if not
included in substance in its Quarterly Reports to Shareholders, its quarterly
reports on Form 10-Q or equivalent form, and (v) a full copy of the particular
registration statement covering the Shares (the foregoing, in each case,
excluding exhibits);
14
(2) Upon the reasonable request of the Investor, all
exhibits excluded by the parenthetical to subparagraph (i) of this Section 5(f)
and all other information that is made available to shareholders; and
(3) 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 Investor 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.
8. MISCELLANEOUS.
(a) FEES AND EXPENSES. The Company shall reimburse the
Investor for its out-of-pocket expenses incurred in connection with (i) the
transactions contemplated hereby and (ii) the procedures in Section 5(a)(2)(a)
through (h) hereof, other than fees and expenses, if any, of counsel or other
advisors to the Investor upon delivery to the Company of reasonable
documentation setting forth such out-of-pocket expenses. Notwithstanding the
foregoing the Company shall reimburse the Investors for the reasonable fees and
expenses (not to exceed $15,000) of one counsel to the Investors in connection
with (i) the transactions contemplated hereby and (ii) the procedures in Section
5(a)(2)(a) through (h) hereof upon delivery to the Company of reasonable
documentation. The parties hereto acknowledge and agree that the Company shall
have no obligation to reimburse the Investors, and the Investors shall be solely
liable for, all such fees and expenses of counsel in excess of $15,000.
(b) BINDING AGREEMENT; ASSIGNMENT. This Agreement shall be
binding upon, and shall inure solely to the benefit of, each of the parties
hereto, and each of their respective heirs, executors, administrators,
successors and permitted assigns, and no other person shall acquire or have any
right under or by virtue of this Agreement. The Investor may not assign any of
its rights or obligations hereunder to any other person or entity without the
prior written consent of the Company.
(c) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and
may be amended only by written execution by both parties. By executing this
Agreement below, the Investor agrees to be bound by all of the terms,
provisions, warranties, covenants and conditions contained herein. Upon
acceptance by the Company, this Agreement shall be binding on both parties
hereto.
15
(d) CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE ENFORCED,
GOVERNED AND CONSTRUED IN ALL RESPECTS IN ACCORDANCE WITH THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAWS
PRINCIPLES. FURTHERMORE, EACH INVESTOR HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS AND THE UNITED
STATES OF AMERICA FOR THE DISTRICT OF MASSACHUSETTS IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(e) NOTICES. All notices, requests, consents and other
communication hereunder shall be in writing, shall be mailed by first class
registered or certified mail, or nationally recognized overnight express courier
postage prepaid, and shall be deemed given when so mailed and shall be delivered
as addressed as follows:
if to the Company, to:
BioSphere Medical, Inc.
000 Xxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Chief Financial Officer
with a copy mailed to:
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx X. Cable, P.C.
or to such other person at such other place as the Company shall designate to
the Investor in writing; and
if to the Investor, at its address as set forth at the end of this Agreement, or
at such other address or addresses as may have been furnished to the Company in
writing.
(f) COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one in the same agreement.
[Remainder of Page Intentionally Left Blank]
16
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
BIOSPHERE MEDICAL, INC.
By:
------------------------------------
Name:
Title:
Accepted and Agreed as of the date
first above written:
--------------------------------------
Name of Investor (Print)
By:
----------------------------------
Name:
Title
Address:
--------------------------
--------------------------
--------------------------
Telephone:
--------------------------
Facsimile:
Nominee (name in which Investor Shares are to
be registered, if different than name of Investor)
Address of Nominee:
---------------------------------------
---------------------------------------
---------------------------------------
Taxpayer I.D. Number:
---------------------
(if acquired in the name of a nominee, the taxpayer
I.D. number of such nominee)
S-1
(CONTINUED ON NEXT PAGE)
Designated Bank__________________________
Address__________________________________
ABA No.
Account No.______________________________
Attention _______________________________
EACH INVESTOR EXECUTING THESE PURCHASE AGREEMENT SIGNATURE
PAGES ON BEHALF OF ONE OR MORE MANAGED ACCOUNTS SHOULD PROVIDE
THE NAME OF, AND FOREGOING INFORMATION WITH RESPECT TO, EACH
SUCH MANAGED ACCOUNT.
S-2
ANNEX I
INVESTOR QUESTIONNAIRE
The Shares are being offered for sale to "accredited investors" as that
term is defined in Rule 501 under the Securities Act of 1933, as amended (the
"Act").
The undersigned entity certifies that it (and each managed account on
whose behalf Investor Shares are being purchased by it) is an "accredited
investor" because it is (check one or more items below):
_____ i. a bank as defined in section 3(a)(2) of the Act whether acting
in its individual or fiduciary capacity;
_____ ii. a savings and loan association or other institution as defined
in section 3(a)(5)(A) of the Act whether acting in its
individual or fiduciary capacity;
_____ iii. a broker dealer registered pursuant to section 15 of the
Securities Exchange Act of 1934, as amended;
_____ iv. an insurance company as defined in section 2(13) of the Act;
_____ v. an investment company registered under the Investment Company
Act of 1940, as amended (the "1940 Act");
_____ vi. a business development company as defined in section 2(a)(48) of
the 1940 Act;
_____ vii. a Small Business Investment Company licensed by the U.S. Small
Business Administration under section 301(c) or (d) of the Small
Business Investment Act of 1958;
_____ viii. a plan established and maintained by a state or its political
subdivision for the benefit of its employees, provided that such
plan has total assets in excess of $5,000,000;
_____ ix. an employee benefit plan within the meaning of Title I of the
Employee Retirement Income Security Act of 1974 ("ERISA"),
provided that the investment decision is made by a plan
fiduciary, as defined in section 3(21) of ERISA, and the plan
fiduciary is either a bank, savings and loan association,
insurance company or registered investment adviser or provided
that the employee benefit plan has total assets in excess of
$5,000,000; or if a self-directed plan, with investment
decisions made solely by persons that are accredited investors;
ANNEX I
Page 2
_____ x. a private business development company as defined in section
202(a)(22) of the Investment Advisers Act of 1940;
_____ xi. an organization described in section 501(c)(3) of the Internal
Revenue Code, not formed for the specific purpose of acquiring
the Investor Shares, with total assets in excess of $5,000,000;
_____ xii. a director or executive officer, or general partner of the
Company;
_____ xiii. a corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring
the Investor Shares, with total assets in excess of $5,000,000;
_____ xiv. a trust, with total assets in excess of $5,000,000, not formed
for the specific purpose of acquiring the Investor Shares, and
the purchase of the Investor Shares is directed by a
sophisticated person as described in Rule 506(b)(2)(ii) under
the Act;
_____ xv. a natural person whose individual net worth, or joint net worth
with that person's spouse, at the time of his purchase exceeds
$1,000,000;
_____ xvi. a natural person who had an individual income in excess of
$200,000 in each of 1998 and 1999 or joint income with that
person's spouse in excess of $300,000 in each of those years
and has a reasonable expectation of reaching the same income
level in 2000;
_____ xvii. an entity in which all of the equity owners are accredited
investors (described in any of (i) - (xvi) above).
INVESTOR:
By:
--------------------------
Name:
Title:
ANNEX II
[Form of Managed Accounts Representation Letter]
BioSphere Medical, Inc.
000 Xxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Ladies and Gentlemen:
Reference is hereby made to (i) that certain Stock and Warrant Purchase
Agreement, dated as of February __, 2000 (the "Agreement"), by and between you
and the undersigned relating to the purchase of shares of the common stock, par
value $0.01 per share (the "Common Stock"), of BioSphere Medical, Inc.
("BioSphere"), and warrants (the "Warrants") to purchase shares of Common Stock
and (ii) the certain Warrant Agreement, dated as of February __, 2000 (the
"Warrant Agreement"), by and between BioSphere and the Investor regarding the
Warrants. Capitalized terms used herein that are not defined herein have the
meaning set forth in the Agreement.
The undersigned has executed or is executing the Agreement and the
Warrant Agreement as an Investor.
This Managed Accounts Representation Letter will serve to advise you
that in executing the Agreement, the undersigned has acted for or on behalf of
one or more persons ("Accounts") pursuant to authority granted to the
undersigned by each such Account.
The undersigned hereby represents and warrants to, and covenants and
agrees with, you that:
i. the shares of Common Stock and Warrants being purchased
under the Agreement by or for an Account are being purchased
for the benefit of the Account and the undersigned is not
acting for itself but is acting as a fiduciary on behalf of
such Account;
ii. the representations and warranties of the Investor set forth
in Section 3(a)(iii) of the Agreement are true and correct
as to each Account and the Investor Shares being purchased
by or for such Account;
iii. each such Account will be fully bound by and subject to the
Agreement in all respects as an Investor;
iv. the undersigned is fully authorized by each such Account to
enter into the Agreement with full authority regarding the
investment in and disposition of the Investor Shares, the
evaluation of the merits and risks of the investment and to
execute this Managed Accounts Representation Letter for or
on behalf of such Account;
v. the undersigned is registered or licensed as either an
investment adviser or a dealer or broker and is in
compliance with all investment adviser or dealer and broker
requirements, as the case may be, in connection with the
sale of the Investor Shares and with all the statutes, rules
and regulations with respect to registration or licensing in
each state in which the Investor Shares are sold by the
undersigned; and
Executed as of the date as of which the Agreement is executed by the
undersigned.
ACCOUNT MANAGER:
-------------------------------------
By:
---------------------------------
Name:
Title:
On behalf of the following accounts:
ANNEX III
NUMBER OF SHARES BENEFICIALLY OWNED
ANNEX IV
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration Statement,
please provide us with the following information:
1. Pursuant to the "Selling Shareholder" section of the Registration
Statement, please state your or your organization's name exactly as it should
appear in the Registration Statement:
2. Please provide the following information, as of the Closing Date:
(1) (2)
Number of shares
Number of Shares if any, which will
which are being be owned after
included in the completion of sale
Registration of Shares included
Statement (if all in the Registration
purchased, put all) statement
------------------- ---------
3 Have you or your organization had any position, office or other
material relationship within the past three (3) years with the Company or its
affiliates other than as disclosed in the Memorandum?
___ Yes ___ No
If yes, please indicate the nature of any such relationship below:
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
ANNEX V
Attention:
INVESTOR'S CERTIFICATE OF SUBSEQUENT SALE
The undersigned, [an officer of, or other person duly authorized by]
______________ [fill in official name of individual or institution] hereby
certifies that he/she [said institution] is the Investor in the shares evidenced
by the attached certificate, and as such, sold such shares on ________ [date] in
accordance with registration statement number ___________________ [fill in the
number of or otherwise identify registration statement] and the requirement
of delivering a current prospectus and current annual and quarterly reports
by the Company has been complied with in connection with such sale.
Print or Type:
Name of Investor
(Individual or
Institution) ______________________________
Name of Individual
representing
Investor (if an
Institution): ______________________________
Title of Individual
representing
Investor (if an
Institution): ______________________________
Signature by:
Individual Investor or
Individual representing
Investor: ______________________________
ANNEX VI
WIRE INSTRUCTIONS
Fleet Bank
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
ABA #: 000-000-000
Acct Name: BioSepra Inc.
Acct Officer: Xxx Xxxxxxx
Acct #: 0000000000
