Exhibit 4
STOCK PURCHASE AND SALE AGREEMENT
BETWEEN
INTEGRAMED AMERICA, INC.
AND
XXXXXX XXXXXXX VENTURE PARTNERS III, X.X.
XXXXXX XXXXXXX VENTURE INVESTORS III, L.P.
THE XXXXXX XXXXXXX VENTURE PARTNERS ENTREPRENEUR FUND, L.P.
THIS AGREEMENT is made and entered into this 26th day of January, 2001,
by and between Xxxxxx Xxxxxxx Venture Partners III, L.P. ("MSVP III Fund"),
Xxxxxx Xxxxxxx Venture Investors III, L.P. ("Employee Fund") and The Xxxxxx
Xxxxxxx Venture Partners Entrepreneur Fund, L.P. ("Entrepreneur Fund")(MSVP III
Fund, Employee Fund and Entrepreneur Fund are collectively referred to herein as
the "Funds") and IntegraMed America, Inc., a Delaware corporation, with its
principal place of business at Xxx Xxxxxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000
(the "Company").
WHEREAS, MSVP III Fund is the record owner and holder of 709,929 shares
of common stock, $.01 par value, of the Company (the "Common Stock"), Employee
Fund is the record owner and holder of 68,163 shares of Common Stock, and
Entrepreneur Fund is the record owner and holder of 30,730 shares of Common
Stock, and such Funds own and hold, in the aggregate, 808,822 shares of Common
Stock (collectively, the "Shares");
WHEREAS, MSVP III Fund is the record owner and holder of a warrant to
acquire 52,664 shares of Common Stock, Employee Fund is the record owner and
holder of a warrant to acquire 5,057 shares of Common Stock and Entrepreneur
Fund is the record owner and holder of a warrant to acquire 2,279 shares of
Common Stock, and such Funds own and hold, in the aggregate, warrants to acquire
60,000 shares of Common Stock (collectively, the "Warrants");
Whereas, none of the Warrants has been exercised by the Funds; and
WHEREAS, the Funds desire to sell the Shares and Warrants to the
Company and the Company desires to purchase the Shares and Warrants from the
Funds, upon the terms and subject to the conditions hereinafter set forth;
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, and in order to consummate the purchase and the
sale of the Shares and Warrants, it is hereby agreed as follows:
1. PURCHASE AND SALE. Subject to the terms and conditions hereinafter set forth,
concurrently with the execution of this Agreement, the Funds shall sell, convey
and transfer the Shares and the original unexercised Warrants to the Company and
deliver to the Company certificates representing the Shares and Warrants, and
the Company shall purchase from the Funds the Shares and Warrants in
consideration of the Purchase Price set forth in this Agreement. The
certificates representing the Shares shall be duly endorsed for transfer or
accompanied by appropriate stock transfer powers duly executed in blank, in
either case with signatures guaranteed in the customary fashion, and necessary
transfer tax stamps or funds therefor. The Warrants shall be delivered to the
Company unexercised. The closing of the transactions contemplated by this
Agreement ("Closing"), shall be held simultaneously with the execution of this
Agreement.
2. AMOUNT AND PAYMENT OF PURCHASE PRICE. The Purchase Price and method of
payment thereof are fully set out in Exhibit A attached hereto.
3. REPRESENTATIONS AND WARRANTIES OF THE FUNDS. Each of MSVP III Fund, Employee
Fund and Entrepreneur Fund, jointly and severally, represents, warrants and
agrees that, the following representations and warranties are, as of the date
hereof, true and correct:
3.1 ORGANIZATION AND STANDING. Each of MSVP III Fund, Employee Fund and
Entrepreneur Fund is a limited partnership duly organized, validly existing and
in good standing under the laws of the State of Delaware.
3.2 POWER AND AUTHORITY. Each of MSVP III Fund, Employee Fund and
Entrepreneur Fund has the power and authority to execute and deliver this
Agreement and to carry on its business as it is now being conducted.
3.3 RESTRICTIONS ON THE SHARES AND WARRANTS.
i. Neither MSVP III Fund, Employee Fund nor Entrepreneur Fund is a
party to any agreement, written or oral, creating any right in respect
of the Shares or the Warrants in any person or relating to the voting
of the Shares.
ii. Each of MSVP III Fund, Employee Fund and Entrepreneur Fund is the
record, beneficial and lawful owner of the Shares and Warrants set
forth opposite such Fund's name on Exhibit A, free and clear of all
security interests, liens, encumbrances, equities and other charges.
iii. There are no existing warrants, options, stock purchase
agreements, redemption agreements, restrictions of any nature, calls or
rights to subscribe of any character to, the Shares or the Warrants,
nor are there any securities convertible into the Shares.
3.4 KNOWLEDGE OF THE FUNDS
i. The sale to the Company of the Shares and Warrants is a free,
voluntary act of each Fund. Each Fund has had an opportunity to have
any and all questions relating to the Company answered by the Company
to its satisfaction prior to execution of this Agreement. Each Fund
acknowledges that it has not received the final audited financial
reports and other results relating to the Company for the year ended
December 31, 2000 (the "Year End Reports").
ii. Each Fund is an "accredited investor" as that term is defined in
Regulation D promulgated under the Securities Act of 1933, as amended.
4. Representations and Warranties of the Company. None of the information
supplied by the Company to the Funds or M. Xxxxx Xxxxxx contained any untrue
statement of a material fact or omitted to state any material fact required or
necessary to be stated in order to make the statements, in light of the
circumstances in which they were made, not misleading.
5. REPRESENTATIONS AND WARRANTIES OF THE FUNDS AND THE COMPANY.
Each Fund and the Company hereby represent and warrant that there has
been no act or omission by the Funds or the Company which would give rise to any
valid claim against any of the parties hereto for a brokerage commission,
finder's fee, or other like payment in connection with the transactions
contemplated hereby.
6. GENERAL PROVISIONS.
6.1 ENTIRE AGREEMENT. This Agreement (including the exhibits hereto and
any written amendments hereof executed by the parties) constitutes the entire
Agreement and supersedes all prior agreements and understandings, oral and
written, between the parties hereto with respect to the subject matter hereof.
6.2 SECTIONS AND OTHER HEADINGS. The section and other headings
contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
6.3 GOVERNING LAW. This agreement, and all transactions contemplated
hereby, shall be governed by, construed and enforced in accordance with the laws
of the State of New York, without regards to the conflict of law rules of such
state.
6.4 MISCELLANEOUS.
i. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective heirs, successors and
assigns.
ii. The representations and warranties contained herein shall survive
the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby and remain in full force and
effect, notwithstanding any investigation at any time made by or on
behalf of the parties.
iii. This Agreement may be signed in any number of counterparts, each
of which together shall constitute one and the same instrument.
6.5 RESIGNATION OF M. XXXXX XXXXXX. Contemporaneous with the completion
of the transaction provided for herein, M. Xxxxx Xxxxxx will provide Xxxxxx X.
Xxxxx, Secretary of the Company, with a written resignation as a member of the
Board of Directors of the Company.
[THIS SPACE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this Agreement has been executed by each of the
individual parties hereto on the date first above written.
IntegraMed America, Inc.
By: /s/ Xxxx X. Xxxxxx, Xx.
------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Sr. Vice President and Chief
Financial Officer
Xxxxxx Xxxxxxx Venture Partners III, L.P.
By: Xxxxxx Xxxxxxx Venture Partners III,
L.L.C., its General Partner
By: Xxxxxx Xxxxxxx Venture Capital III,
Inc., its Institutional Managing Member
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President and Treasurer
Xxxxxx Xxxxxxx Venture Investors III, L.P.
By: Xxxxxx Xxxxxxx Venture Partners III,
L.L.C., its General Partner
By: Xxxxxx Xxxxxxx Venture Capital III,
Inc., its Institutional Managing Member
By: /s/ Xxxxx Xxxxxxxxxx
---------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President and Treasurer
The Xxxxxx Xxxxxxx Venture Partners
Entrepreneur Fund, L.P.
By: Xxxxxx Xxxxxxx Venture Partners III,
L.L.C., its General Partner
By: Xxxxxx Xxxxxxx Venture Capital III,
Inc., its Institutional Managing Member
By: /s/ Xxxxx Xxxxxxxxxx
---------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President and Treasurer
EXHIBIT A
AMOUNT AND PAYMENT OF PURCHASE PRICE
CONSIDERATION.
For the purchase and sale of the Shares and Warrants, pursuant to this
Agreement, the Company shall pay the Funds an aggregate of $2,000,000.00 (the
"Purchase Price").
PAYMENT
The Purchase Price shall be paid by federal wire transfer, in
immediately available funds, to accounts, allocated as above, specified in
writing to the Company prior to the Closing Date.
