EXHIBIT 99.1
PURCHASE AGREEMENT
December __, 2001
INTRODUCTORY. Matritech Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions herein, to issue and sell an
aggregate of ________ (the "Shares") of its common stock, par value $.01 per
share (the "Common Stock") to _________ ("Purchaser"). The Company hereby
confirms its agreement with Purchaser as follows:
SECTION 1. AGREEMENT TO SELL AND PURCHASE SHARES.
On the basis of the representations, warranties and agreements of the
Company herein contained, and subject to all the terms and conditions of this
Agreement the Company and Purchaser agree as follows:
(a) At the Closing (as defined below), the Company will sell
to Purchaser, and Purchaser will buy from the Company, upon the terms
and conditions hereinafter set forth, the Shares at a purchase price
per Share equal to $____ (subject to stock splits and the like).
(b) Upon the completion of the purchase and sale of the Shares
(the "Closing") which shall occur on the date hereof (the "Closing
Date"), at the offices of the Company's counsel, the Company shall
deliver the Shares purchased by the Purchaser to the Purchaser or to
the Depositary Trust Company ("DTC") on the Purchaser's behalf via the
Deposit Withdrawal Agent Commission system ("DWAC"), and upon receipt
of the Shares Purchaser shall cause payment therefor to be made to the
account designated by the Company of the full amount of the aggregate
Purchase Price for the Shares purchased hereunder by check or wire
transfer of immediately available funds. The Shares must be unlegended
and free of any resale restrictions. Both parties hereby agree and
acknowledge that delivery of the Shares via DTC's DWAC system, free of
any resale restrictions, is a material obligation of the Seller and
furthermore, with respect to each parties obligations hereunder, time
is of the essence.
SECTION 2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY.
The Company hereby represents, warrants and covenants to Purchaser as
follows:
(a) Securities Law Filings. The Company has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on Form
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S-3 (Registration File No. 333-40942), pursuant to the Securities Act
of 1933, as amended (the "Act") which has become effective, for the
registration under the Act of the Shares and which has remained
effective ever since. The Company will file with the Commission
pursuant to Rule 424(b) under the Act a supplement to the form of
prospectus included in such registration statement relating to a sale
of the Shares and the plan of distribution thereof and has advised the
Purchaser of all further information (financial and other) with respect
to the Company to be set forth therein. Such registration statement,
including the exhibits thereto, as amended at the date of this
Agreement, is hereinafter called the "Registration Statement"; such
prospectus in the form in which it appears in the Registration
Statement is hereinafter called the "Basic Prospectus"; and the
supplemented form of prospectus, in the form in which it will be filed
with the Commission pursuant to Rule 424(b) (including the Basic
Prospectus as so supplemented) is hereinafter called a "Prospectus
Supplement". Any reference herein to the Registration Statement, the
Basic Prospectus or the Prospectus Supplement shall be deemed to refer
to and include the documents incorporated by reference therein (the
"Incorporated Documents") pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") on or before the date of this Agreement, or the issue
date of the Basic Prospectus or Prospectus Supplement, as the case may
be; and any reference herein to the terms "Amend", "Amendment" or
"Supplement" with respect to the Registration Statement, the Basic
Prospectus or the Prospectus Supplement shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
date of this Agreement, or the issue date of the Basic Prospectus or
the Prospectus Supplement, as the case may be, deemed to be
incorporated therein by reference. All references in this Agreement to
financial statements and schedules and other information which is
"contained", "included" or "stated" in the Registration Statement or
the Prospectus Supplement (and all other references of like import)
shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be
incorporated by reference in the Registration Statement or the
Prospectus Supplement, as the case may be.
(b) No Stop Order. No stop order suspending the effectiveness
of the Registration Statement or the use of the Basic Prospectus or the
Prospectus Supplement has been issued and no proceeding for that
purpose has been initiated or, to the Company's knowledge, threatened
by the Commission.
(c) Prospectus Supplement. No order preventing or suspending
the use of the Prospectus Supplement has been issued by the Commission.
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(d) Offering Materials Furnished to Purchaser. The Company has
delivered to Purchaser complete conformed copies of the Registration
Statement (without exhibits) and the Basic Prospectus and will as
promptly as practicable deliver the Prospectus Supplement, as amended
or supplemented, in such quantities and at such places as Purchaser
reasonably requires.
(e) The Purchase Agreement. The Company has full right, power,
authority and capacity to enter into this Agreement and to consummate
the transactions contemplated hereby and has taken all necessary action
to authorize the execution, delivery and performance of the Agreement.
Upon the execution and delivery of this Agreement, this Agreement shall
constitute a valid and binding agreement of the Company enforceable
against the Company in accordance with its terms, except as rights to
indemnification and contribution hereunder may be limited by applicable
law and except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors' and contracting parties rights
generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and except as the
indemnification agreements of the Company herein may be legally
unenforceable.
(f) Stock Exchange Listing. The Shares are registered under
the Exchange Act and are listed on the Nasdaq National Market, and the
Company has taken no action designed to, or likely to have the effect
of terminating the registration of the Shares under the Exchange Act or
delisting the Shares from Nasdaq, nor has the Company received any
information that the Commission or the National Association of
Securities Dealers, LLC ("NASD") is contemplating terminating such
registration or listing.
(g) No Consents, Approvals or Authorizations Required. No
consent, approval, authorization, filing with or order of any court or
governmental agency or regulatory body is required in connection with
the performance by the Company of its obligations under this Agreement,
except such as have been obtained or made or are contemplated by
Section 2(a) to be obtained or made.
SECTION 3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF PURCHASER.
(a) Foreign Sale of the Shares by the Purchaser. Purchaser
acknowledges, represents and agrees that no action has been or will be
taken in any jurisdiction outside the United States by the Company that
would permit an offering of the Shares, or possession or distribution
of offering material in connection with the issue of the Shares, in any
country or jurisdiction outside the United States where action for that
purpose is required. If outside the United States, Purchaser agrees to
comply with all applicable laws and regulations in each foreign
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jurisdiction in which it purchases, offers, sells or delivers Shares or
has in its possession or distributes any offering material, in all
cases at its own expense.
(b) The Purchase Agreement. Purchaser has full right, power,
authority and capacity to enter into this Agreement and to consummate
the transactions contemplated hereby and has taken all necessary action
to authorize the execution, delivery and performance of this Agreement.
Upon the execution and delivery of this Agreement, this Agreement shall
constitute a valid and binding obligation of Purchaser enforceable
against the Purchaser in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting
creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law) and except as the indemnification
agreements of the Purchaser herein may be legally unenforceable.
(c) Documents Received by Purchaser. Purchaser hereby
acknowledges receipt of the following documents:
(i) The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 2000, its Quarterly Reports on
Form 10-Q for the three-month periods ended March 31, 2001,
June 30, 2001 and September 30, 2001, and its Proxy Statement
for the Annual Meeting of Stockholders held on June 15, 2001;
(ii) All other documents, if any, filed by the
Company with the Securities and Exchange Commission (the
"SEC") since the filing of the Quarterly Report on Form 10-Q
for the three-month period ended September 30, 2001 pursuant
to the reporting requirements of the Exchange Act; and
(iii) The Basic Prospectus and the Registration
Statement.
(d) No Consents, Approvals or Authorizations Required. No
consent, approval, authorization, filing with or order of any court or
governmental agency or regulatory body is required in connection with
the performance by Purchaser of its obligations under this Agreement,
except such as have been obtained or made or are contemplated by
Section 3 to be obtained or made.
SECTION 4. CONDITIONS TO CLOSING.
(a) The obligations of Purchaser hereunder shall be subject
to:
(i) Accuracy of Representations and Warranties. The
accuracy of the representations and warranties on the part of
the Company set forth in
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Section 2 as of the date hereof and as of the Closing Date as
though then made and the timely performance by the Company of
its covenants and other obligations hereunder; and
(ii) Compliance with Registration Requirements; No
Stop Order; The Prospectus Supplement shall have been filed
with the Commission in accordance with Rule 424(b) prior to
the Closing Date; no stop order suspending the effectiveness
of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; no order preventing
or suspending the use of the Prospectus Supplement shall have
been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; no order having the
effect of ceasing or suspending the distribution of the Shares
or any other securities of the Company shall have been issued
by any securities commission, securities regulatory authority
or stock exchange and no proceedings for that purpose shall
have been instituted or shall be pending or, to the knowledge
of the Company, shall be contemplated by any securities
commission, securities regulatory authority or stock exchange;
and all requests for additional information on the part of the
Commission shall have been complied with.
(b) The obligations of the Company hereunder shall be subject
to:
(i) Accuracy of Representations and Warranties. The
accuracy of the representation and warranties on the part of
Purchaser set forth in Section 3 as of the date hereof and as
of the Closing Date as though then made; and the timely
performance by the Company of its covenants and other
obligations hereunder; and
(ii) Purchase Price. Purchaser shall have paid the
Purchase Price in accordance with Section 1.
(c) If any condition specified in this Section 4 is not
satisfied when and as required to be satisfied, this Agreement may be
terminated by Purchaser by notice to the Company at any time on or
prior to the Closing Date, which termination shall be without liability
on the part of any party to any other party, except that Section 5
(Payment of Expenses), Section 6 (Indemnification and Contribution) and
Section 8 (Representations and Indemnities to Survive Delivery) shall
at all times be effective and shall survive such termination.
SECTION 5. PAYMENT OF EXPENSES. The Company agrees to pay all costs,
fees and expenses incurred in connection with the performance of its obligations
hereunder and in connection with the transactions contemplated hereby, including
without limitation: (i) all expenses incident to the issuance, delivery and
qualification of the Shares (including all printing and engraving costs); (ii)
all fees and expenses of the registrar and transfer agent
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of the Common Stock; (iii) all necessary issue, transfer and other stamp taxes
in connection with the issuance and sale of the Shares to Purchaser; (iv) all
fees and expenses of the Company's counsel, independent public or certified
public accountants and other advisors; (v) all costs and expenses incurred in
connection with the preparation, printing, filing, shipping and distribution of
the Registration Statement (including financial statements, exhibits, schedules,
consents and certificates of experts), the Basic Prospectus and the Prospectus
Supplement, and all amendments and supplements thereto, and this Agreement; (vi)
all filing fees, reasonable attorneys' fees and expenses incurred by the Company
in connection with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Shares for offer and
sale under the state securities or blue sky laws; (vii) the fees and expenses
associated with including the Common Stock on the Nasdaq National Market; (viii)
all other fees, costs and expenses referred to in Part II of the Registration
Statement. Except as provided in this Section 5, Section 6, and Section 7,
Purchaser shall pay its own expenses, including the fees and disbursements of
its counsel.
SECTION 6. INDEMNIFICATION AND CONTRIBUTION.
(a) Indemnification of the Purchaser. The Company agrees to
indemnify and hold harmless Purchaser, its officers and employees, and
each person, if any, who controls Purchaser within the meaning of the
Act and the Exchange Act against any loss, claim, damage, liability or
expense, as incurred, to which Purchaser or such controlling person may
become subject, under the Act, the Exchange Act, or other federal or
state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is
effected with the written consent of the Company, which consent shall
not be unreasonably withheld), insofar as such loss, claim, damage,
liability or expense (or actions in respect thereof as contemplated
below) arises out of or is based: (i) upon any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement, as the same may be amended or supplemented from
time to time (including, without limitation, by the Prospectus
Supplement), or the omission or alleged omission therefrom of 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; or (ii) in whole or in part upon any
inaccuracy in the representations and warranties of the Company
contained herein; or (iii) in whole or in part upon any failure of the
Company to perform its obligations hereunder or under law; and to
reimburse Purchaser and each such controlling person for any and all
expenses (including the fees and disbursements of counsel chosen by
Purchaser) as such expenses are reasonably incurred by Purchaser or
such controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage,
liability, expense or action; provided, however, that the foregoing
indemnity agreement shall not apply to any loss, claim, damage,
liability or expense to the extent, but only to the extent, arising out
of or based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in reliance upon and in conformity
with written information furnished to the Company by Purchaser
expressly for use in the
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Registration Statement, the Basic Prospectus or the Prospectus
Supplement (or any amendment or supplement thereto); and provided,
further, that with respect to any preliminary prospectus, the foregoing
indemnity agreement shall not inure to the benefit of Purchaser from
whom the person asserting any loss, claim, damage, liability or expense
purchased Shares, or any person controlling Purchaser, if copies of the
Prospectus Supplement were timely delivered to Purchaser pursuant to
Section 3 and a copy of the Prospectus Supplement (as then amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of Purchaser
to such person, if required by law so to have been delivered, and if
the Prospectus Supplement (as so amended or supplemented) would have
cured the defect giving rise to such loss, claim, damage, liability or
expense. The indemnity agreement set forth in this Section 6(a) shall
be in addition to any liabilities that the Company may otherwise have.
(b) Indemnification of the Company, its Directors and
Officers. Purchaser agrees, to indemnify and hold harmless the Company,
each of its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the
meaning of the Act or the Exchange Act, against any loss, claim,
damage, liability or expense, as incurred, to which the Company, or any
such director, officer or controlling person may become subject, under
the Act, the Exchange Act, or other federal, state statutory law or
regulation, or at common law or otherwise (including in settlement of
any litigation, if such settlement is effected with the written consent
of the Purchaser), insofar as such loss, claim, damage, liability or
expense (or actions in respect thereof as contemplated below) arises
out of or is based upon any untrue or alleged untrue statement of a
material fact contained in the Registration Statement, as the same may
be amended or supplemented from time to time, including, without
limitation, by the Prospectus Supplement), or arises out of or is based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement,
the Basic Prospectus or the Prospectus Supplement (or any amendment or
supplement thereto), in reliance upon and in conformity with written
information furnished to the Company by such the Purchaser expressly
for use therein and to reimburse the Company, or any such director,
officer or controlling person for any legal and other expense
reasonably incurred by the Company, or any such director, officer or
controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage,
liability, expense or action; provided, however, in no event shall the
aggregate payment of the Purchaser hereunder be in excess of the net
compensation actually received by the Purchaser pursuant to this
Agreement. The indemnity agreement set forth in this Section 6(b) shall
be in addition to any liabilities that the purchaser may otherwise
have.
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(c) Information Provided by the Purchaser. The Company and
each person, if any, who controls the Company within the meaning of the
Act or the Exchange Act, hereby acknowledges that the only information
that Purchaser has furnished to the Company expressly for use in the
Registration Statement, the Basic Prospectus or the Prospectus
Supplement (or any amendment or supplement thereto) are the statements
set forth under the caption "Plan of Distribution" in the Prospectus
Supplement, and the Purchaser confirms that such statements are
correct.
(d) Notifications and Other Indemnification Procedures.
Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against an indemnifying
party under this Section 6, notify the indemnifying party in writing of
the commencement thereof, but the omission so to notify the
indemnifying party will not relieve it from any liability, which it may
have to any indemnified party for contribution to the extent it is not
prejudiced as a proximate result of such failure. In case any such
action is brought against any indemnified party and such indemnified
party seeks or intends to seek indemnity from an indemnifying party,
the indemnifying party will be entitled to participate in, and, to the
extent that it shall elect, jointly with all other indemnifying parties
similarly notified, by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel
reasonably satisfactory to such indemnified party; provided, however,
if the defendants in any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have
reasonably concluded that a conflict may arise between the positions of
the indemnifying party and the indemnified party in conducting the
defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate
counsel to assume such legal defenses and to otherwise participate in
the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such
indemnified party of such indemnifying party's election so to assume
the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified
party under this Section 6 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof unless: (i) the indemnified party shall have employed separate
counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel (together
with local counsel), approved by the indemnifying party), representing
the indemnified parties who are parties to such action); (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a
reasonable time after notice of commencement of the action; or (iii)
the indemnifying party has authorized the
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employment of counsel for the indemnified party at the expense of the
indemnifying party, in each of which cases the fees and expenses of
counsel shall be at the expense of the indemnifying party.
(e) Settlements. The indemnifying party under this Section 6
shall not be liable for any settlement of any proceeding effected
without its written consent, which consent shall not be unreasonably
withheld, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify
the indemnified party against any loss, claim, damage, liability or
expense by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for
fees and expenses of counsel as contemplated by Section 6(d), the
indemnifying party agrees that it shall be liable for any settlement of
any proceeding effected without its written consent if: (i) such
settlement is entered into more than 60 days after receipt by such
indemnifying party of the aforesaid request; and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying
party shall, without the prior written consent of the indemnified
party, effect any settlement, compromise or consent to the entry of
judgment in any pending or threatened action, suit or proceeding in
respect of which any indemnified party is or could have been a party
and indemnity was or could have been sought hereunder by such
indemnified party, unless such settlement, compromise or consent
includes: (i) an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such action,
suit or proceeding; and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(f) Contribution. If the indemnification provided for in this
Section 6 is unavailable to or insufficient to hold harmless an
indemnified party under Section 6(a) or (b) above in respect of any
losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) then each indemnifying party shall contribute to the
aggregate amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect the relative benefits received
by such party on the one hand and the Purchaser on the other from the
offering of the Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law then
each indemnifying party shall contribute to such amount paid or payable
by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of
such indemnifying party on the one hand and the Purchaser on the other
in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions or proceedings in
respect thereof), as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to
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information supplied by the Company or the "control" stockholders on
the one hand or the Purchaser on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and Purchaser agree
that it would not be just and equitable if contributions pursuant to
this Section 6(f) were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 6(f). The amount paid
or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions or proceedings in respect thereof)
referred to above in this Section 6(f) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (f) no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. Furthermore,
notwithstanding the provisions of this subsection (f), in no event
shall the aggregate contribution of the Purchaser hereunder be in
excess of the net compensation actually received by the Purchaser
pursuant to this Agreement.
(g) Timing of Any Payments of Indemnification. Any losses,
claims, damages, liabilities or expenses for which an indemnified party
is entitled to indemnification or contribution under this Section 6
shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred, but
in all cases, no later than forty-five (45) days of invoice to the
indemnifying party.
(h) Survival. The indemnity and contribution agreements
contained in this Section 6 and the representations and warranties set
forth in this Agreement shall remain operative and in full force and
effect, regardless of: (i) any investigation made by or on behalf of
Purchaser or any person controlling Purchaser, the Company, its
directors or officers or any persons controlling the Company; (ii)
acceptance of any Shares and payment therefor hereunder; and (iii) any
termination of this Agreement. A successor to Purchaser, or to the
Company, its directors or officers or any person controlling the
Company, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 6.
(i) Acknowledgements of Parties. The parties to this Agreement
hereby acknowledge that they are sophisticated business persons who
were represented by counsel during the negotiations regarding the
provisions hereof including, without limitation, the provisions of this
Section 6, and are fully informed regarding said provisions. They
further acknowledge that the provisions of this Section 6 fairly
allocate the risks in light of the ability of the parties to
investigate the Company and its business in order to assure that
adequate disclosure is made in the Registration
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Statement and the Prospectus Supplement as required by the Act and the
Exchange Act.
SECTION 7. TERMINATION OF THIS AGREEMENT. This Agreement may be
terminated by the Purchaser by notice given to the Company if: (a) at any time
after the execution and delivery of this Agreement and prior to the Closing
Date: (i) trading or quotation in any of the Company's securities shall have
been suspended or limited by the Commission or by the NASD, or trading in
securities generally on the Nasdaq Stock Market, the New York Stock Exchange
shall have been suspended or limited, or minimum or maximum prices shall have
been generally established on any of such stock exchanges by the Commission or
the NASD; (ii) a general banking moratorium shall have been declared by any
United States federal or New York authorities; or (iii) the Company shall have
sustained a loss by strike, fire, flood, earthquake, accident or other calamity
of such character as in the judgment of the Purchaser may interfere materially
with the conduct of the business and operations of the Company regardless of
whether or not such loss shall have been insured; or (b) in the case of any of
the events specified Section 7(a)(i)-(iii), such event singly or together with
any other event, makes it, impracticable or inadvisable to market the Shares in
the manner and on the terms contemplated in the Prospectus Supplement. Any
termination pursuant to this Section 7 shall be without liability on the part of
any party hereto to any other party except that the provisions of Sections 5 and
6 shall at all times be effective and shall survive such termination.
SECTION 8. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or any person controlling the company, of its officers, and of the
Purchaser set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of the
Purchaser or the Company or any of its or their partners, officers or directors
or any controlling person, as the case may be, and will survive delivery of and
payment for the Shares sold hereunder and any termination of this Agreement.
SECTION 9. NOTICES. All communications hereunder shall be in writing and shall
be mailed, hand delivered or telecopied and confirmed to the parties hereto as
follows:
If to Purchaser:
As set forth on the signature page hereto.
If to the Company:
Matritech, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Xx.
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Any party hereto may change the address for receipt of communications
by giving written notice to the others.
SECTION 10. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto, and to the benefit of the employees, officers
and directors and controlling persons referred to in Section 6, and to their
respective successors, and personal representatives, and no other person will
have any right or obligation hereunder.
SECTION 11. PARTIAL UNENFORCEABILITY. The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity
or enforceability of any other Section, paragraph or provision hereof. If any
Section, paragraph or provision of this Agreement is for any reason determined
to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as are necessary to make it valid and
enforceable.
SECTION 12. GOVERNING LAW PROVISIONS. This agreement shall be governed by and
construed in accordance with the internal laws of the state of New York
applicable to agreements made and to be performed in such state.
SECTION 13. PUBLICITY. Unless otherwise required by law, the Company shall not
issue a press release or otherwise make a public statement, announcement or
filing with respect to the transaction contemplated hereby without the prior
written consent of the Purchaser. Notwithstanding anything herein to the
contrary, the Company shall not disclose the name of the Purchaser or any of
their respective affiliates, representatives, members, agents, associates,
employees, consultants, companies, subsidiaries, businesses and/or entities or
agents without their express written consent.
SECTION 14. GENERAL PROVISIONS. This Agreement constitutes the entire agreement
of the parties to this Agreement and supersedes all prior written or oral and
all contemporaneous oral agreements, understandings and negotiations with
respect to the subject matter hereof. This Agreement may be executed in two or
more counterparts, each one of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. Execution
may be made by delivery by facsimile. This Agreement may not be amended or
modified unless in writing by all of the parties hereto, and no condition herein
(express or implied) may be waived unless waived in writing by each party whom
the condition is meant to benefit. Section headings herein are for the
convenience of the parties only and shall not affect the construction or
interpretation of this Agreement.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
Page 16 of 27 Pages
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company the enclosed copies hereof,
whereupon this instrument, along with all counterparts hereof, shall become a
binding agreement in accordance with its terms.
Very truly yours,
Wire Instructions: MATRITECH, INC.,
------------------
State Street Bank & Trust, Co. a Delaware corporation
Boston, MA
ABA #0110 0002 8
ATTN: Xxxxxxx Group
Credit MLIF# 3218569
N/O Matritech, Inc. By: ___________________________________
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
The foregoing Purchase Agreement is hereby confirmed and accepted by
the Purchaser as of the date first above written.
DTC Instructions:
-----------------------------------------
Name:
Address of Purchaser:
Page 17 of 27 Pages
