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EXHIBIT 10.16
SeaMed Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
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Preferred Stock Purchase Agreement
As of March 28, 1984
To Each of the
Persons Listed on the
Schedule of Purchasers
attached hereto:
The undersigned, SeaMed Corporation, a Delaware corporation (the
"Company"), hereby agrees with you as follows:
SECTION 1
Authorization and Sale of the Shares
1.1 Authorization of the Shares. The Company has, or before the Closing
(as hereinafter defined) will have, authorized the sale and issuance of One
Million Four Hundred Twenty Thousand (1,420,000) shares (the "Shares") of its
Convertible Class A Preferred Stock, of par value one cent ($0.01) per share
("Preferred"), having the rights, restrictions, privileges and preferences as
set forth in the Preferred Stock Resolution of the Company (the "Preferred
Resolution") attached to this Agreement as Exhibit A.
1.2 Sale of The Shares. Subject to the terms and conditions hereof and
in reliance upon the representations, warranties and agreements contained
herein, the Company will issue and sell to each of you, severally and not
jointly, and each of you will purchase from the Company, severally and not
jointly, at the Closing, the number of the Shares set forth opposite your name
on the Schedule of Purchasers attached hereto (the "Schedule of Purchasers")
under the column labelled "Shares," at a purchase price of one dollar ($1.00)
per Share. The persons listed on the Schedule of Purchasers are sometimes
hereinafter referred to as the "Purchasers" and individually as a "Purchaser."
1.3 Sales of Shares to Other Purchasers. The Company also proposes to
enter into purchase agreements (the "Other Agreements"), identical with this
Agreement, with the other purchasers named on the Schedule of Purchasers (the
"Other Purchasers"), providing for the sale of shares of Preferred to the Other
Purchasers as set forth opposite their respective names on the Schedule of
Purchasers. The Company's Agreements with you and each of the Other Purchasers
are separate agreements and the sales of the Shares to you and each of the Other
Purchasers are separate sales. If any Other Purchaser does not purchase any
Shares to be purchased by such
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Other Purchaser as set forth on the Schedule of Purchasers, the Company shall
offer to issue and sell such Shares to you and the Other Purchasers (excluding
such defaulting Other Purchaser), pro rata, on the same terms and conditions as
set forth herein; you and each such Other Purchaser shall have a right of
over-allotment such that if you or any such Other Purchaser fails to accept such
offer in full to purchase his pro rata portion of the Shares to have been
purchased by the defaulting Other Purchaser, you and such Other Purchasers may
purchase such Shares on a pro rata basis.
SECTION 2
Closing Date; Delivery
2.1 Closing Date. The closing of the purchase and sale of the Shares
hereunder (the "Closing") shall be held immediately following the execution and
delivery of this Agreement at the place set forth in Section 2.3 hereof (the
"Closing Date") or at such other time and place as shall be mutually agreed upon
by the Company and the Purchasers. If the Closing does not occur by March 31,
1984, this Agreement will be terminated forthwith and the parties hereto will
have no further obligations to each other under this Agreement, except that the
Company shall nevertheless be obligated to make such payments as provided for in
Section 9.10 hereof.
2.2 Delivery. At the Closing, the Company will deliver to each of you
certificates, in such denominations and registered in your names as set forth in
the Schedule of Purchasers attached, representing the number of the Shares to be
purchased by you from the Company, against payment of the purchase price
therefor by check, wire transfer, cancellation of indebtedness or such other
form of payment as shall be mutually agreed upon by you and the Company, payable
to the order of the Company.
2.3 Place of Closing. The place of the Closing (including the place of
delivery to the Purchasers by the Company of the certificates evidencing all
Shares being purchased and the place of payment to the Company by the Purchasers
of the purchase price therefor) shall be at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
SECTION 3
Representations and Warranties of the Company
The Company hereby represents and warrants to you as follows, except as
set forth on the "Schedule of Exceptions" delivered to you prior to the
execution hereof and attached hereto.
3.1 Organization and Standing, Certificate of Incorporation and
By-Laws. The Company is a corporation duly organized and validly existing under
the laws of its state of organization and is in good standing under such laws.
The Company has requisite corporate power to own properties owned by it and to
conduct business as being conducted by it and as contemplated by its business
plan initially prepared in September 1983 in the form heretofore distributed to
each Purchaser (the "Business Plan"). The Company does not own or lease
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property or engage in any activity in any jurisdiction which presently requires
its qualification to do business as a foreign corporation in any jurisdiction
other than the State of Washington. The Company has furnished you with true,
correct and complete copies of its Certificate of Incorporation, By-Laws and all
amendments to each to date. Prior to the Closing, the Company shall have
properly executed, acknowledged, filed and recorded the Preferred Resolution
with the Secretary of State of the State of Delaware.
3.2 Corporate Power. The Company has all requisite corporate power to
enter into this Agreement and will have at the Closing Date all requisite
corporate power to sell the Shares and to carry out and perform its obligations
under the terms of this Agreement, the Other Agreements and the agreements
contemplated hereby and thereby.
3.3 Subsidiaries. The Company has no subsidiaries other than SeaMed
International Corporation, a domestic international sales corporation, add does
not own of record or beneficially any capital stock or equity interest or
investment in any other corporation, association or business entity.
3.4 Capitalization. Immediately prior to the Closing, the Company's
authorized capital stock will consist of (a) Three Million Five Hundred Thousand
(3,500,000) shares of Common Stock, $0.01 par value (the "Common Stock"), of
which One Million Eighty-One Thousand Nine Hundred Fifty-Two (1,081,952) shares
will be issued and outstanding immediately prior to the Closing, and (b) One
Million Five Hundred Thousand (1,500,000) shares of Preferred, none of which
will be issued and outstanding prior to the Closing. All the aforesaid issued
and outstanding shares will have been duly authorized and validly issued, will
be fully paid and nonassessable, will be owned of record and (to the best of the
Company's knowledge and belief) beneficially by the shareholders and in the
amounts set forth in the Schedule of Exceptions, and will have been offered,
issued, sold and delivered by the Company in compliance with applicable federal
and state securities laws. There are no outstanding preemptive, conversion or
other rights, options, warrants or agreements granted or issued by or binding
upon the Company for the purchase or acquisition of any shares of its capital
stock, except with respect to the Preferred in accordance with the provisions of
this Agreement and the Other Agreements and the Preferred Resolution. To the
best of the Company's knowledge and belief, no shareholder has granted options
or other rights to purchase any shares of Common Stock from such shareholder
other than as set forth in the Schedule of Exceptions. The Company does not hold
any shares of its capital stock in its treasury.
3.5 Authorization. All corporate action on the part of the Company, its
directors and shareholders necessary for the authorization, execution, delivery
and performance by the Company of this Agreement and the consummation of the
transactions contemplated herein, and for the authorization, issuance and
delivery of the Shares and of the Common Stock issuable upon conversion thereof
has been taken or will be taken prior to the Closing. This Agreement is a valid
and binding obligation of the Company, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization and moratorium laws
and other laws of general application affecting enforcement of creditors' rights
generally. The execution, delivery and performance by the Company of this
Agreement and compliance therewith and the issuance and
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sale of the Shares and Common Stock issuable upon conversion of the Shares will
not result in any violation of and will not conflict with, or result in a breach
of. any of the terms of, or constitute a default under, any provision of state
or federal law to which the Company is subject, the Company's Certificate of
Incorporation, .as amended, or By-Laws, as amended, or any mortgage, indenture,
agreement, instrument, judgment, decree, order, rule or regulation or other
restriction to which the Company is a party or by which it is bound, or result
in the creation of any mortgage, pledge, lien, encumbrance or charge upon any of
the properties or assets of the Company pursuant to any thereof. No shareholder
has any preemptive rights or rights of first refusal by reason of the issuance
of the Shares. The Shares, when issued in compliance with the provisions of this
Agreement and the Other Agreements, will be validly issued, fully paid and
nonassessable, and will be free of any liens or encumbrances. The shares of
Common Stock issuable upon conversion of the Shares have been duly and validly
reserved and are not subject to any preemptive rights or rights of first refusal
and, upon issuance, will be validly issued, fully paid and nonassessable.
3.6 Financial Information. The unaudited financial statements of the
Company as of January 31, 1984 attached as Exhibit B-1 hereto (the "Financial
Statements"), including the balance sheet as of January 31, 1984 (the "Balance
Sheet"), present fairly the financial position and results of operations of the
Company at the dates and for the periods to which they relate, have been
prepared in accordance with generally accepted accounting principles consistent
with principles followed in preparation of the audited financial statements of
the Company as of June 30, 1983 attached as Exhibit B-2 hereto and show all
material liabilities, absolute or contingent, of the Company required to be
recorded thereon in accordance with generally accepted accounting principles as
at the respective dates thereof.
3.7 Outstanding Debt. The Company has no outstanding indebtedness for
borrowed money except as reflected on the Balance Sheet and is not a guarantor
or otherwise contingently liable for any such indebtedness. There exists no
default under the provisions of any instrument evidencing any indebtedness or
otherwise or of any agreement relating thereto.
3.8 Absence of Undisclosed Liabilities. The Company has no material
liabilities (fixed or contingent, including without limitation any tax
liabilities due or to become due) which are not fully reflected or provided for
on the Balance Sheet. The Company does not know of any material liability of any
nature, direct or indirect, contingent or otherwise, or in any amount not
adequately reflected or reserved against in the Balance Sheet.
3.9 Absence of Certain Changes. At all times since the date of the
Financial Statements up to and including the Closing, there has not been any
event or condition, or any combination of events or conditions, of any character
which has had a material adverse effect on the Company's business, plans or
prospects, including but not limited to:
(a) any adverse change in the condition, assets, liabilities or
business of the Company from that shown on the Balance Sheet;
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(b) any damage, destruction or loss of any of the properties or
assets of the Company (whether or not covered by insurance);
(c) any declaration, setting aside or payment or other
distribution in respect of any of the Company's capital stock, or any direct or
indirect redemption, purchase or other acquisition of any of such stock by the
Company; or
(d) any labor trouble.
3.10 Taxes. The Company has filed or will file within the time
prescribed by law (including extensions of time approved by the appropriate
taxing authority) all tax returns and reports required to be filed with the
United States Internal Revenue Service and with the states of Delaware and
Washington, and (except to the extent that the failure to file would not have a
material adverse effect on the condition or operations of the Company) with all
other jurisdictions where such filing is required by law; and the Company has
paid, or made adequate provision in the Balance Sheet for the payment of, all
taxes, interest, penalties, assessments or deficiencies shown to be due or
claimed to be due on or in respect of such tax returns and reports. The Company
does not know of (i) any other tax returns or reports which are required to be
filed which have not been so filed or (ii) any unpaid assessment for additional
taxes for any fiscal period or any basis thereof. The Company's federal income
tax returns have not been audited by the Internal Revenue Service for fiscal
years ending after June 30, 1981.
3.11 Contracts; Insurance. Except as set forth in the Schedule of
Exceptions, the Company does not have any currently existing contract,
obligation, agreement, plan, arrangement, commitment or the like (written or
oral) of any material nature, including without limitation the following:
(a) employment, bonus or consulting agreements, pension, profit
sharing, deferred compensation, stock bonus, retirement, stock option, stock
purchase, phantom stock or similar plans, including agreements evidencing rights
to purchase securities of the Company and agreements among shareholders and the
Company;
(b) loan or other agreements, notes, indentures, or instruments
relating to or evidencing indebtedness for borrowed money, or mortgaging,
pledging or granting or creating a lien or security interest or other
encumbrance on any of the Company's property or any agreement or instrument
evidencing any guaranty by the Company of payment or performance by any other
person;
(c) agreements with dealers, sales representatives, brokers or
other distributors, jobbers, advertisers or sales agencies;
(d) agreements with any labor union or collective bargaining
organization or other labor agreements;
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(e) any contract or series of contracts with the same person for
the furnishing or purchase of machinery, equipment, goods or services, including
without limitation agreements with processors and subcontractors;
(f) any indenture, agreement or other document (-including private
placement brochures) relating to the sale or repurchase of shares;
(g) any joint venture contract or arrangement or other agreement
involving a sharing of profits or expenses to which the Company is a party;
(h) agreements limiting the freedom of the Company to compete in
any line of business or in any geographic area or with any person;
(i) agreements providing for disposition of the business, assets
or shares of the Company, agreements of merger or consolidation to which the
Company is a party or letters of intent with respect to the foregoing;
(j) letters of intent or agreements with respect to the
acquisition of the business, assets or shares of any other business;
(k) insurance policies; and
(l) licenses, assignments and other agreements of any nature
whatsoever, with respect to foreign or domestic patents or applications for
patents, inventions, disclosures, know-how or other proprietary information and
the inventions thereof.
Except as set forth in the Schedule of Exceptions, the Company has
complied with all the material provisions of all said contracts, obligations,
agreements, plans, arrangements, and commitments-and is not in default
thereunder.
The Company maintains insurance which is adequate to protect the
Company and its financial condition against the risks involved in the business
conducted by the Company.
3.12 Shareholders, Directors and Officers; Indebtedness. Set forth on
the Schedule of Exceptions is a correct and complete list or description of all
indebtedness of the Company to its officers, directors or shareholders or any of
their respective relatives and of all indebtedness of such persons to the
Company. To the best of the Company's knowledge and belief, none of the officers
or directors or significant employees or consultants of the Company, or their
respective spouses or relatives, owns directly or indirectly, individually or
collectively, a material interest in any entity which is a competitor, customer
or supplier of (or has any existing contractual relationship with) the Company.
3.13 Litigation and Bankruptcy Proceedings.
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(a) There is neither pending nor, to the Company's knowledge and
belief, threatened any action, suit, proceeding or claim, or any basis therefor
or threat thereof, whether or not purportedly on behalf of the Company, to which
the Company is or may be named as a party or its property is or may be subject
and in which an unfavorable outcome, ruling or finding in any such matter or for
all such matters taken as a whole might have a material adverse effect on the
condition, financial or otherwise, or operations of the Company; and the Company
has no knowledge of any unasserted claim, the assertion of which is likely and
which, if asserted, will seek damages, an injunction or other legal, equitable,
monetary or nonmonetary relief which claim, individually or collectively with
other such unasserted claims, if granted would have a material adverse effect on
the condition, financial or otherwise, or operations of the Company.
(b) The Company has not admitted in writing its inability to pay
its debts generally as they become due, filed or consented to the filing against
it of a petition in bankruptcy or a petition to take advantage of any insolvency
act, made an assignment for the benefit of creditors, consented to the
appointment of a receiver for itself or for the whole or any substantial part of
its property, or had a petition in bankruptcy filed against it, been adjudicated
a bankrupt, or filed a petition or answer seeking reorganization or arrangement
under the federal bankruptcy laws or any other law or statute of the United
States of America or any other jurisdiction.
3.14 Consents. No consent, approval, qualification, order or
authorization of, or filing with, any governmental authority, including the
Securities Commissioners of the States of Washington and New York, is required
in connection with the Company's valid execution, delivery or performance of
this Agreement or the Other Agreements, or the offer, sale or issuance of the
Shares by the Company, the conversion of the Shares, the issuance of Common
Stock upon conversion of the Shares, or the consummation of any other
transaction contemplated on the part of the Company hereby or by the Other
Agreements, except the filing of the Preferred Resolution with the Secretary of
State of the State of Delaware and the recording thereof, and except such
filings listed in the Schedule of Exceptions as have been made prior to the
Closing.
3.15 Title to Properties; Liens and Encumbrances. The Company does not
own any real property. The Company has a valid and indefeasible ownership
interest in all property and assets recorded on the Balance Sheet, free from all
mortgages, pledges, liens, security interests, conditional sale agreements,
encumbrances or charges, except (i) as shown on the Balance Sheet or listed on
the Schedule of Exceptions hereto; and (ii) tax, materialmen's or like liens for
obligations not yet due or payable or being contested in good faith by
appropriate proceedings (for which adequate reserves have been established in
accordance with generally accepted accounting principles), as set forth on the
Schedule of Exceptions.
3.16 Leases. Set forth on the Schedule of Exceptions is a correct and
complete list (including the amount of rents called for and a description of the
leased property) of all material leases under which the Company is a lessee. The
Company enjoys peaceful and undisturbed possession under all such leases, all of
such leases are valid and subsisting and none of them is in default in any
material respect.
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3.17 Business of the Company. There is no pending or to the Company's
knowledge and belief threatened claim or litigation against or affecting the
Company contesting its right to produce, manufacture, sell or use any product,
process, method, substance, part or other material presently produced,
manufactured, sold or used or planned to be produced, manufactured, sold or used
by the Company in connection with the operations of the Company; and the Company
has no knowledge or belief that (i) there exists, or there is pending or
planned, any patent, invention, device, application or principle, or any
statute, rule, law, regulation, standard or code which would materially
adversely affect the condition, financial or otherwise, or the operations of the
Company; or (ii) there is any other factor (other than fire, flood, accident,
act of war or civil commotion, or any other cause or event beyond the control of
the Company) which may materially adversely affect the condition, financial or
otherwise, or the operations of the Company. The Company currently intends to
engage in the business of the type described in the Business Plan.
3.18 Franchises, Licenses, Trademarks, Patents and Other Rights. The
Company has all franchises, permits, licenses and other similar authority
necessary for the conduct of its business as now being conducted and as planned
to be conducted, the lack of which could materially and adversely affect the
operations or condition, financial or otherwise, of the Company, and it is not
in default in any material respect under any of such franchises, permits,
licenses or other similar authority. The Company possesses all patents, patent
rights, trademarks, trademark rights, trade names, trade name rights and
copyrights necessary to conduct its business as now being conducted and as
planned to be conducted without conflict with or infringement upon any valid
rights of others or the lack of which could materially and adversely affect the
operations or condition, financial or otherwise, of the Company, and has not
received any notice of infringement upon or conflict with the asserted rights of
others.
3.19 Issuance Taxes. All taxes imposed by law in connection with the
issuance, sale and delivery of the Shares shall have been fully paid, and all
laws imposing such taxes shall have been fully complied with, prior to the
Closing Date.
3.20 Offering. Subject in part to the truth and accuracy of the
Purchasers' representations set forth in this Agreement and the Other
Agreements, the offer, sale and issuance of the Shares as contemplated by this
Agreement and the Other Agreements are exempt from the registration requirements
of the Securities Act of 1933 (the "Securities Act", which term shall include
any successor federal statute) and from the qualification or registration
requirements of the laws of any state or other jurisdiction, and neither the
Company nor anyone acting on its behalf will take any action hereafter that
would cause the loss of such exemption.
3.21 Compliance with Other Instruments. The Company is not in violation
of any term of its Certificate of Incorporation or By-Laws. The Company is not
in violation of any term of any mortgage, indenture, contract, agreement,
instrument, judgment, decree, order, statute, rule or regulation to which the
Company is subject and a violation of which would have a material adverse effect
on the condition, financial or otherwise, or operations of the Company.
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3.22 Employees. To the best of the Company's knowledge and belief, no
employee of the Company is, or is now expected to be, in violation of any term
of any employment contract, patent disclosure agreement, non-competition
agreement, or any other contract or agreement or any restrictive covenant or any
other common law obligation to a former employer relating to the right of any
such employee to be employed by the Company because of the nature of the
business conducted or to be conducted by the Company or to the use of trade
secrets or proprietary information of others, and the employment of the
Company's employees does not subject the Company or any Purchaser to any
liability. There is neither pending nor, to the Company's knowledge and belief,
threatened any actions, suits, proceedings or claims, or, to its knowledge and
belief, any basis therefor or threat thereof with respect to any contract,
agreement, covenant or obligation referred to in the preceding sentence. The
Company does not have any collective bargaining agreement covering any of its
employees.
3.23 Registration Rights. Except as provided for in this Agreement and
the Other Agreements, the Company is not under any obligation to register (as
defined in Section 8.2 below) any of its currently outstanding securities or any
of its securities which may hereafter be issued.
3.24 Disclosure. This Agreement, the Schedule of Exceptions, the
Financial Statements and the audited financial statements of the Company as of
June 30, 1983 delivered to the Purchasers, as well as the Business Plan, do not
contain any untrue statement of a material fact and do not omit to state a
material fact necessary in order to make the statements contained herein or
therein not misleading in the light of the circumstances under which they were
made.
SECTION 4
Representations and Warranties of Purchasers
Each Purchaser represents and warrants to the Company, severally and
not jointly, and only as to itself, as follows:
4.1 Experience. It is experienced in evaluating and investing in newly
organized, high technology companies such as the Company.
4.2 Investment. It is acquiring the Shares for investment for its own
account and not with the view to, or for resale in connection with, any
distribution thereof. It understands that the Shares and the shares of Common
Stock issuable upon conversion of the Shares have not been registered under the
Securities Act by reason of an exemption from the registration provisions of the
Securities Act which depends upon, among other things, the bona fide nature of
its investment intent as expressed herein.
4.3 Rule 144. It acknowledges that the Shares must be held indefinitely
unless they are subsequently registered under the Securities Act or an exemption
from such registration is available. It has been advised or is aware of the
provisions of Rule 144 promulgated under the Securities Act, which permits
limited resale of shares purchased in a private placement subject to
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the satisfaction of certain conditions and has been advised or is aware that
such Rule may not become available for resale of the Shares.
4.4 Access to Data. It has had an opportunity to discuss the Company's
business, management and financial affairs with its management and has had the
opportunity to review the Company's books, records and facilities and has been
given all the information that it has requested in connection therewith.
SECTION 5
Conditions to Purchaser's Obligation to Close
Your obligation to purchase the Shares to be purchased by you at the
Closing is subject to the fulfillment to your satisfaction on or prior to the
Closing Date of each of the following conditions:
5.1 Representations and Warranties Correct. The representations and
warranties made by the Company in Section 3 hereof shall be true and correct in
all respects when made, and shall be true and correct in all respects on the
Closing Date with the same force and effect as if they had been made on and as
of the Closing Date.
5.2 Performance. All covenants, agreements and conditions contained in
this Agreement to be performed or complied with by the Company on or prior to
the Closing Date shall have been performed or complied with in all respects.
5.3 Opinion of Company's Counsel. You shall have received from counsel
to the Company, which counsel must be satisfactory to the Purchasers, an opinion
addressed to you, dated the Closing Date, and in substantially the form attached
as Exhibit C hereto.
5.4 Legal Investment. At the time of the Closing, the purchase of the
Shares to be purchased by you hereunder shall be legally permitted by all laws
and regulations to which you and the Company are subject.
5.5 Compliance Certificate. The Company shall have delivered to you a
certificate of the President of the Company, dated the Closing Date, certifying
to the fulfillment of the conditions specified in Sections 5.1 and 5.2 of this
Agreement and other matters you reasonably request.
5.6 Shareholders Agreement. All Purchasers shall have executed an
agreement in substantially the form attached hereto as Exhibit D.
5.7 Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated hereby and all documents and
instruments incident to such transactions shall be satisfactory in substance and
form to you and your counsel.
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5.8 Proprietary Information and Inventions, and Non-Competition
Agreements.
(a) Messrs. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall have
executed and delivered to the Company a Proprietary Information and Inventions
Agreement in a form substantially the same as Exhibit E hereto.
(b) Messrs. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall have
executed and delivered to the Company an Agreement Not to Compete in
substantially the form of Exhibit F hereto.
5.9 Qualifications. All authorizations, approvals or permits, if any,
including any authorizations, approvals or permits under state securities or
blue sky laws, of any governmental authority or regulatory body that are
required in connection with the lawful issuance and sale of the Shares pursuant
to this Agreement and the Other Agreements, the conversion of the Shares into
Common Stock and the issuance of such Common Stock upon such conversion shall
have been duly obtained and shall be effective on and as of the Closing.
5.10 Certificate of Incorporation. The Preferred Resolution shall have
been filed with the Secretary of State of the State of Delaware and duly
recorded as provided by the Delaware General Corporation Law.
5.11 Minimum Investment. At the Closing, all the Purchasers shall
purchase all the Shares pursuant to this Agreement and the Other Agreements.
5.12 Amendment of By-Laws. The Company shall have amended its By-Laws
to provide that persons owning Twenty Percent (20%) or more of the Preferred and
the Common Stock issued upon conversion of the Preferred, or any combination
thereof, can call special meetings of shareholders and special meetings of the
Board of Directors and the directors elected by the Preferred can call special
meetings of the Board of Directors.
5.13 Key Man Life Insurance. The Company shall have obtained with
financially sound and reputable insurers term life insurance on the life of ▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ in the amount of $1,000,000. This policy shall not be
cancelable by the Company except in accordance with Section 7.7 and upon 30 days
prior written notice to the Purchaser.
5.14 Legal Fees. The Company will pay up to $10,000 of the legal fees,
and will pay disbursements and office expenses, including secretarial charges,
of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel to the Purchasers, with respect to this
Agreement and the transactions contemplated hereby.
5.15 Directors. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall have been elected to the
Board of Directors of the Company as one of the representatives of the
Preferred. The Company shall have amended its By-Laws to fix the number of
directors at eight.
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5.16 Letter Relating to Conversion. Purchasers shall have received a
letter from Pioneer Associates confirming that it will exercise all of its
warrants to purchase Common Stock in January 1985 and prior to the expiration of
such warrants.
SECTION 6
Conditions to Company's Obligation to Close
The Company's obligation to sell the Shares to be purchased at the
Closing is subject to the fulfillment to its satisfaction on or prior to the
Closing Date of each of the following conditions:
6.1 Representations. The representations made by you pursuant to
Section 4 hereof shall be true and correct when made and shall be true and
correct on the Closing Date.
6.2 Legal Investment. At the time of the Closing, the conditions set
forth in Sections 5.9, 5.10 and 5.11 shall have occurred and the purchase of the
Shares to be purchased by you hereunder shall be legally permitted by all laws
and regulations to which you and the Company are subject.
SECTION 7
Covenants of the Company
The Company hereby covenants and agrees as follows:
7.1 Basic Financial Information. The Company will furnish the
following reports to each Purchaser so long as the Purchaser (or its
representative) is a holder of Preferred or Common Stock:
(a) As soon as practicable after the end of each fiscal year of
the Company, and in any event within ninety (90) days thereafter, a consolidated
balance sheet of the Company and its subsidiaries, if any, as at the end of such
fiscal year, and consolidated statements of income and sources and applications
of funds of the Company and its subsidiaries, if any, for such year, prepared in
accordance with generally accepted accounting principles consistently applied
and setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and certified by independent public
accountants of recognized national standing selected by the Company.
(b) As soon as practicable after the end of the first, second and
third quarterly accounting periods in each fiscal year of the Company, and in
any event within forty-five (45) days thereafter, a consolidated balance sheet
of the Company and its subsidiaries, if any, as of the end of each such
quarterly period, and consolidated statements of income of the Company and its
subsidiaries for such period and for the current fiscal year to date, prepared
in accordance with generally accepted accounting principles consistently applied
and setting forth in comparative
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form the figures for the corresponding periods of the previous fiscal year,
subject only to normally occurring accruals, all in reasonable detail and
certified by the principal financial or accounting officer of the Company.
(c) From the date the Company becomes subject to the reporting
requirements of the Securities Exchange Act of 1934 (the "Exchange Act"), and in
lieu of the financial information required pursuant to Sections 7.1(a) and (b),
copies of its annual reports on Form 10-K and its quarterly reports on Form
10-Q, respectively.
7.2 Additional Information. The Company will permit any person who owns
(or has been designated as the representative of a holder of) 100,000 or more of
the Shares or such number of shares of Common Stock issued upon conversion of
100,000 or more of the Shares, or any combination thereof, to visit and inspect
any of the properties of the Company, including its books of account, and to
discuss its affairs, finances and accounts with the Company's officers and its
independent public accountants, all at such reasonable times and as often as any
such person may reasonably request, provided that such person shall provide the
Company with reasonable advance notice of his desire to so visit and inspect.
Until the earlier to occur of (i) the date on which the Company is subject to
the reporting requirements of Section 13(a) of the Exchange Act, or (ii) the
date on which quotations for the Common Stock of the Company are reported by the
automated quotations system operated by the National Association of Securities
Dealers, Inc., or by an equivalent quotations system, the Company will deliver
the reports described below in this Section 7.2 to each such person:
(a) As soon as practicable after the end of each month and in any
event within thirty (30) days thereafter, a consolidated balance sheet of the
Company and its subsidiaries, if any, as at the end of such month, and the
consolidated statements of income of the Company and its subsidiaries, for each
month and for the current fiscal year of the Company to date, prepared in
accordance with generally accepted accounting principles consistently applied,
together with a comparison of such statements to the Company's operating plan
then in effect and approved by its Board of Directors, and certified, subject
only to normally occurring accruals, by the principal financial or accounting
officer of the Company.
(b) As soon as available (but in any event within sixty (60) days
after the commencement of its fiscal year) a summary of the financial plan of
the Company, as contained in its operating plan approved by the Company's board
of directors. Any material changes in such financial plan shall be delivered as
promptly as practicable after such changes have been approved by the board of
directors.
(c) With reasonable promptness, such other information and data
with respect to the Company and its subsidiaries as any such person may from
time to time reasonably request.
The foregoing provisions of this Section 7.2 shall not be in limitation of any
rights which a Purchaser may have with respect to the books and records of the
Company and its subsidiaries, or to inspect their properties or discuss their
affairs, finances and accounts, under the laws of the jurisdictions in which
they are incorporated.
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7.3 Right of First Refusal. The Company hereby grants to each Purchaser
the right of first refusal to purchase, pro rata, all (or any part) of New
Securities (as defined in this Section 7.3) which the Company may, from time to
time, propose to sell and issue. A Purchaser's pro rata share, for purposes of
this right of first refusal, is the ratio of the number of the Shares purchased
by such Purchaser under this Agreement and the Other Agreements to the total
number of Shares. Each Purchaser shall have a right of over-allotment such that
if any Purchaser fails to exercise his right hereunder to purchase his pro rata
portion of New Securities, the Other Purchasers may purchase the non-purchasing
Purchaser's portion on a pro rata basis within five (5) days from the date such
non-purchasing Purchaser fails to exercise his right hereunder to purchase his
pro rata share of New Securities. This right of first refusal shall be subject
to the following provisions:
(a) "New Securities" shall mean any capital stock (including the
Common Stock or the Preferred) of the Company whether or not presently
authorized, and rights, options or warrants to purchase capital stock, and
securities of any type whatsoever that are, or may become, convertible into
capital stock; provided that the term "New Securities" does not include (i)
securities purchased under this Agreement; (ii) securities offered to the public
pursuant to a registration statement filed pursuant to the Securities Act; (iii)
securities issued pursuant to the acquisition of another corporation by the
Company by merger, purchase of substantially all the assets or other
reorganization whereby the Company owns not less than fifty-one percent (51%) of
the voting power of such corporation following the completion of such
transaction; (iv) any borrowings, direct or indirect, from financial
institutions or other persons by the Company, whether or not presently
authorized, including any type of loan or payment evidenced by any type of debt
instrument, provided such borrowings do not have any equity features, including
warrants, options, equity participations or "kickers" or other rights to
purchase capital stock, and are not convertible into capital stock of the
Company; or (v) securities issued to employees, consultants or directors of the
Company pursuant to any stock option plan or stock purchase or stock bonus
arrangement.
(b) In the event the Company proposes to undertake an issuance of
New Securities, it shall give each Purchaser written notice of its intention,
describing the type of New Securities, the price and the general terms upon
which the Company proposes to issue the same. Each Purchaser shall have thirty
(30) days from the date of receipt of any such notice to agree to purchase the
Purchaser's pro rata share of such New Securities for the price and upon the
general terms specified in the notice by giving written notice to the Company
and stating therein the quantity of New Securities to be purchased.
(c) In the event the Purchasers fail to exercise the right of first
refusal within said thirty (30) day period and after the expiration of the 5-day
period for the exercise of the over-allotment provisions of this Section 7.3,
the Company shall have one hundred eighty (180) days thereafter to sell or enter
into an agreement (pursuant to which the sale of New Securities covered thereby
shall be closed, if at all, within one hundred eighty (180) days from the date
of said agreement) to sell the New Securities in respect of which the
Purchasers' option was not exercised, at a price and upon general terms no more
favorable to the purchasers thereof than
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specified in the Company's notice. In the event the Company has not sold within
said 180-day period or entered into an agreement to sell the New Securities
within said 180-day period (or sold and issued New Securities in accordance with
the foregoing within one hundred eighty (180) days from the date of said
agreement), the Company shall not thereafter issue or sell any New Securities,
without first offering such securities to the Purchasers in the manner provided
above.
(d) The right of first refusal granted under this Agreement shall
expire upon the first sale of Common Stock of the Company to the public at a per
share offering price of at least five times the then existing conversion price
for the Preferred, which sale is effected pursuant to a registration statement
filed with, and declared effective by, the Securities and Exchange Commission
(the "Commission") under the Securities Act in a firm commitment underwritten
public offering, with an aggregate offering price to the public of not less than
$5,000,000.
(e) The right of first refusal set forth in this Section 7.3 is
nonassignable, except that (i) such right is assignable by each Purchaser to any
wholly-owned subsidiary or parent of, or to any corporation or entity which is,
within the meaning of the Securities Act, controlling, controlled by or under
common control with, any such Purchaser, (ii) such right is assignable between
and among any of the Purchasers, and (iii) upon the death of a Purchaser, such
right shall pass with the Shares to the beneficiaries under the deceased
Purchaser's last will and testament or to the distributees of the deceased
Purchaser's estate.
7.4 Prompt Payment of Taxes, etc. The Company will promptly pay and
discharge, or cause to be paid and discharged, when due and payable, all lawful
taxes, assessments and governmental charges or levies imposed upon the income,
profits, property or business of the Company or any subsidiary; provided,
however, that any such tax, assessment, charge or levy need not be paid if the
validity thereof shall currently be contested in good faith by appropriate
proceedings and if the Company shall have set aside on its books adequate
reserves with respect thereto, and provided, further, that the Company will pay
all such taxes, assessments, charges or levies forthwith upon the commencement
of proceedings to foreclose any lien which may have attached as security
therefor. The Company will promptly pay or cause to be paid when due, or in
conformance with customary trade terms, all other indebtedness incident to
operations of the Company.
7.5 Maintenance of Properties and Leases. The Company will keep its
properties and those of its subsidiaries in good repair, working order and
condition, reasonable wear and tear excepted, and from time to time make all
needful and proper repairs, renewals, replacements, additions and improvements
thereto; and the Company and its subsidiaries will at all times comply with each
provision of all leases to which any of them is a party or under which any of
them occupies property if the breach of such provision might have a material
adverse effect on the condition, financial or otherwise, or operations of the
Company.
7.6 Insurance. The Company will keep its assets and those of its
subsidiaries which are of an insurable character insured by financially sound
and reputable insurers against loss or damage by fire, explosion and other risks
customarily insured against by companies in the Company's line of business, in
amounts sufficient to prevent the Company or any subsidiary from
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becoming a co-insurer and not in any event less than 100% of the insurable value
of the property insured; and the Company will maintain, with financially sound
and reputable insurers, insurance against other hazards and risks and liability
to persons and property to the extent and in the manner customary for companies
in similar businesses similarly situated.
7.7 Key Man Life Insurance. The Company will cause to be maintained
the term life insurance required by Sections 5.13 and 7.17 hereof under the
terms and conditions set forth therein, unless otherwise agreed by both the
representatives of the Purchasers on the Board of Directors.
7.8 Accounts and Records. The Company will keep true records and books
of account in which full, true and correct entries will be made of all dealings
or transactions in relation to its business and affairs in accordance with
generally accepted accounting principles applied on a consistent basis.
7.9 Independent Accountants. The Company will retain independent
public accountants of recognized national standing who shall certify the
Company's financial statements at the end of each fiscal year. In the event the
services of the independent public accountants, so selected, or any firm of
independent public accounts hereafter employed by the Company are terminated,
the Company will promptly thereafter notify the Purchasers and will request the
firm of independent public accountants whose services are terminated to deliver
to the Purchasers a letter of such firm setting forth the reasons for the
termination of their services. In the event of such termination, the Company
will promptly thereafter engage another such firm of independent public
accountants. In its notice to the Purchasers the Company shall state whether the
change of accountants was recommended or approved by the Board of Directors or
any committee thereof.
7.10 Compliance with Requirements of Governmental Authorities. The
Company and all its subsidiaries shall duly observe and conform to all valid
requirements of governmental authorities relating to the conduct of their
businesses or to their properties or assets.
7.11 Maintenance of Corporate Existence, etc. The Company shall
maintain in full force and effect its corporate existence, rights and franchises
and all licenses and other rights to use patents, processes, licenses,
trademarks, trade names or copyrights owned or possessed by it or any subsidiary
and deemed by the Company to be necessary to the conduct of their business.
7.12 Availability of Common Stock for Conversion. The Company will,
from time to time, in accordance with the laws of the state of its
incorporation, increase the authorized amount of Common Stock if at any time the
number of shares of Common Stock remaining unissued and available for issuance
shall be insufficient to permit conversion of all the then outstanding shares of
Preferred.
7.13 Notice of Record Dates. In the event of any taking by the Company
of a record of the holders of any class of securities (other than the Preferred)
for the purpose of determining the holders thereof who are entitled to receive
any dividend or other distribution, the Company shall mail to each Purchaser at
least ten (10) days prior to such record date, specified herein, a notice
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specifying the date on which any such record is to be taken for the purpose of
such dividend or distribution.
7.14 Proprietary Information and Inventions, and Non-Competition
Agreements. The Company and each person hereafter employed by it or any
subsidiary with access to confidential information will enter into a Proprietary
Information and Inventions Agreement in substantially the form of Exhibit E
hereto. The Company will require all persons employed by the Company or a
subsidiary, and designated as a "key person" by either of the representatives of
the Purchasers (or the Purchasers' transferees) on the Company's Board to
execute an agreement in substantially the form annexed hereto as Exhibit F as a
condition precedent to the employment of such individuals.
7.15 Employee Stock Purchase Agreement. The Company will not issue any
of its capital stock, or grant an option to purchase any of its capital stock,
to any employee or officer of the Company or a subsidiary except (i) pursuant to
options for 161,489 shares of Common Stock outstanding at the date of this
Agreement under the 1982 Incentive Stock Option Plan of the Company, a copy of
which has been provided to the Purchasers, (ii) pursuant to the Stock
Subscription Agreements described in the Schedule of Exceptions, (iii) up to an
additional 61,011 shares pursuant to options which may be granted under the 1982
Incentive Stock Option Plan as currently in effect, (iv) pursuant to the Special
Incentive Plans, which Plans shall, among other things, provide for the purchase
by Messrs. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ of an aggregate of 72,017
shares of Common Stock at the Closing subject to the execution of an Employee
Stock Purchase Agreement in the form set forth as Exhibit H to this Agreement
and of up to an additional 70,000 shares of Common Stock subject to the
achievement of certain financial goals by the Company or (v) pursuant to a plan
adopted by the Board of Directors, with both representatives of the Purchasers
on the Board of Directors having voted in favor thereof (a "New Plan"). No
issuance or grant shall be made to Messrs. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
under the 1982 Incentive Stock Option Plan or any New Plan unless both
representatives of the Purchasers on the Board of Directors shall have
specifically approved such grant. All grants of additional options under the
1982 Incentive Stock Option Plan or under a New Plan shall be approved by a
committee consisting of four directors, two of whom shall be the nominees of the
holders of Preferred.
7.16 Use of Proceeds. The Company will use the proceeds from the sale
of the Shares to retire the Company's outstanding indebtedness and to provide
additional funding for operations, research and development, capital equipment
and working capital.
7.17 Key Man Life Insurance. The Company shall, as soon as practicable,
obtain with financially sound and reputable insurers term life insurance on the
life of ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ in the amount of $1,000,000. This policy shall not
be cancellable by the company except in accordance with Section 7.7 and then
only upon 30 days prior notice to the Purchasers.
7.18 Duration of Certain Covenants. The covenants and agreements
contained in Sections 7.4 through 7.11, 7.13 through 7.15 and 7.17 shall expire
upon the earlier of (i) the first sale of Common Stock of the Company to the
public at a per share offering price of at least five
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times the existing conversion price for the Preferred, which sale is effected
pursuant to a registration statement filed with and declared effective by the
Commission under the Securities Act in a firm commitment underwritten public
offering, with an aggregate offering price to the public of not less than
$5,000,000 and (ii) March 21, 1990, provided that the Company has theretofore
completed a sale of Common Stock of the Company to the public pursuant to a
registration statement filed with and declared effective by the Commission under
the Securities Act with net proceeds to the Company of at least $2,000,000 and
provided further that the Company continues to be subject to the reporting
requirements of the Exchange Act.
SECTION 8
Restrictions on Transferability of Securities; Compliance with Securities Act
8.1 Restrictions on Transferability. The Shares shall not be
transferable, except upon the conditions specified in this Section 8, which
conditions are intended to insure compliance with the provisions of the
Securities Act or, in the case of Section 8.15 hereof, to assist in an orderly
distribution. Each Purchaser will cause any proposed transferee of Shares held
by that Purchaser to agree to take and hold those securities subject to the
provisions and upon the conditions specified in this Section 8.
8.2 Certain Definitions. As used in this Section 8, the following terms
shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Restricted Securities" shall mean the securities of the Company
required to bear or bearing the legend set forth in Section 8.3. hereof.
"Registrable Securities" shall mean (i) the Preferred, (ii) shares of
Common Stock issued or issuable pursuant to the conversion of the Preferred and
(iii) any Common Stock issued in respect of securities issued pursuant to the
conversion of the Shares upon any stock split, stock dividend, recapitalization
or similar event.
The terms "register", "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement.
"Registration Expenses" shall mean all expenses incurred by the Company
in compliance with Sections 8.5 and 8.6 hereof, including, without limitation,
all registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, blue sky fees and expenses, reasonable fees and
disbursements of one counsel for all the selling Holders and other security
holders for a "due diligence" examination of the Company, and the expense of any
special
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audits incident to or required by any such registration (but excluding the
compensation of regular employees of the Company, which shall be paid in any
event by the Company).
"Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and all fees and
disbursements of counsel for any Holder.
"Holder" shall mean any holder of the outstanding Shares or Registrable
Securities which have not been sold to the public.
"Initiating Holders" shall mean any Purchasers or their assignees under
Section 8.14 hereof who in the aggregate are Holders of more than fifty percent
(50%) of the Shares or such number of shares of Common Stock issued to the
Purchasers or their assignees under Section 8.14 hereof upon conversion of said
percentage of the Shares, or any combination thereof.
8.3 Restrictive Legend. Each certificate representing (i) the Shares,
or (ii) shares of the Company's Common Stock issued upon conversion of
Preferred, or (iii) any other securities issued in respect of Preferred or the
Common Stock issued upon conversion of Preferred, upon any stock split, stock
dividend, recapitalization, merger, consolidation or similar event, shall
(unless otherwise permitted or unless the securities evidenced by such
certificate shall have been registered under the Securities Act) be stamped or
otherwise imprinted with a legend in the following form (in addition to any
legend required under applicable state securities laws):
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD OR OFFERED FOR
SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE
SECURITIES UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAW OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION
IS NOT REQUIRED.
Upon request of a holder of such a certificate, the Company shall remove the
foregoing legend from the certificate or issue to such holder a new certificate
therefor free of any transfer legend, if, with such request, the Company shall
have received either the opinion referred to in Section 8.4(i) or the
"no-action" letter referred to in Section 8.4(ii) to the effect that any
transfer by such holder of the securities evidenced by such certificate will not
violate the Securities Act and applicable state securities laws.
8.4 Notice of Proposed Transfers. The holder of each certificate
representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 8.4. Prior to any proposed transfer
of any Restricted Securities (other than under circumstances described in
Sections 8.5, 8.6, 8.8 and 8.16 hereof), the holder thereof shall give written
notice to the Company of such holder's intention to effect such transfer. Each
such notice shall describe the manner and circumstances of the proposed transfer
in sufficient detail, and shall
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be accompanied (except in transactions in compliance with Rule 144) by either
(i) a written opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ or legal counsel who shall be
reasonably satisfactory to the Company, addressed to the Company and reasonably
satisfactory in form and substance to the Company's counsel, to the effect that
the proposed transfer of the Restricted Securities may be effected without
registration under the Securities Act, or (ii) a "no action" letter from the
Commission to the effect that the distribution of such securities without
registration will not result in a recommendation by the staff of the Commission
that action be taken with respect thereto, whereupon the holder of such
Restricted Securities shall be entitled to transfer such Restricted Securities
in accordance with the terms of the notice delivered by the holder to the
Company. Each certificate evidencing the Restricted Securities transferred as
above provided shall bear the appropriate restrictive legend set forth in
Section 8.3 above, except that such certificate shall not bear such restrictive
legend if the opinion of counsel or "no-action" letter referred to above is to
the further effect that such legend is not required in order to establish
compliance with any provisions of the Securities Act.
8.5 Requested Registration.
(a) Request for Registration. If the Company shall receive from
Initiating Holders, at any time or times not earlier than eighteen months
following the Closing a written request that the Company effect any registration
with respect to all or a part of the Registrable Securities, provided such
request includes more than 50% of the Shares or such number of shares of Common
Stock issued upon conversion of more than 50% of the Shares, or any combination
thereof, the Company will:
(i) promptly give written notice of the proposed
registration to all other Holders; and
(ii) as soon as practicable, use its diligent best efforts to
effect such registration (including, without limitation, the execution of an
undertaking to file post-effective amendments, appropriate qualification under
applicable blue sky or other state securities laws and appropriate compliance
with applicable regulations issued under the Securities Act) as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written request given
within thirty (30) days after receipt of such written notice from the Company;
provided that the Company shall not be obligated to effect, or to take any
action to effect, any such registration pursuant to this Section 8.5:
(A) in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in
effecting such registration, qualification or compliance, unless the
Company is already subject to service in such jurisdiction and except
as may be required by the Securities Act or applicable rules or
regulations thereunder; or
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(B) after the Company has effected two such registrations
pursuant to this Section 8.5(a) and such registrations have been
declared or ordered effective and the sales of such Registrable
Securities shall have closed.
Subject to the foregoing clauses (A) and (B), the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable after receipt of the request or requests of
the Initiating Holders.
The registration statement filed pursuant to the request of the
Initiating Holders may, subject to the provisions of Section 8.5(b) below,
include other securities of the Company which are held by officers or directors
of the Company or which are held by persons who, by virtue of agreements with
the Company, are entitled to include their securities in any such registration,
but the Company shall have no right to include any of its securities in any such
registration.
(b) Underwriting. If the Initiating Holders intend to distribute
the Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
Section 8.5 and the Company shall include such information in the written notice
referred to in Section 8.5(a)(i) above. The right of any Holder to registration
pursuant to Section 8.5 shall be conditioned upon such Holder's participation in
such underwriting and the inclusion of such Holder's Registrable Securities in
the underwriting (unless otherwise mutually agreed by a majority in interest of
the Initiating Holders and such Holder with respect to such participation and
inclusion) to the extent provided herein. A Holder may elect to include in such
underwriting all or a part of the Registrable Securities he holds.
If officers or directors of the Company holding other securities of the
Company shall request inclusion in any registration pursuant to Section 8.5, or
if holders of securities of the Company who are entitled, by contract with the
Company, to have securities included in such a registration (the "Other
Shareholders") request such inclusion, the Initiating Holders shall, on behalf
of all Holders, offer to include the securities of such officers, directors and
Other Shareholders in the underwriting and may condition such offer on their
acceptance of the further applicable provisions of this Section 8. The Company
shall (together with all Holders, officers, directors and Other Shareholders
proposing to distribute their securities through such underwriting) enter into
an underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for such underwriting by a majority in
interest of the Initiating Holders and reasonably acceptable to the Company.
Notwithstanding any other provision of this Section 8.5, if the representative
advises the Initiating Holders in writing that marketing factors require a
limitation on the number of shares to be underwritten, the securities of the
Company held by officers or directors (other than Registrable Securities) of the
Company shall be excluded from such registration to the extent so required by
such limitation and if a limitation of the number of shares is still required,
the securities of the Company issued pursuant to the Purchase and Sale Agreement
dated January 24, 1978, between the Company and Pioneer Investors Corporation
and ▇▇▇▇ Resources Corporation (the "Pioneer Securities") shall be excluded from
such registration to the extent so required by such limitation and, if a
limitation of the number of shares is still required, the Initiating Holders
shall so advise all Holders of Registrable Securities and Other Shareholders
whose securities would otherwise be underwritten
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pursuant hereto, and the number of shares of Registrable Securities and other
securities that may be included in the registration and underwriting shall be
allocated among all such Holders and Other Shareholders in proportion, as nearly
as practicable, to the respective amounts of Registrable Securities and other
securities which they had requested to be included in such registration at the
time of filing the registration statement, provided that there shall not in any
event be a reduction in the number of shares to be included in the registration
and underwriting in respect of the 10,000 shares of Common Stock issued pursuant
to the Subscription Agreement dated July 9, 1977 between the Company and ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., or the 10,000 shares of Common Stock issued pursuant to the
Subscription Agreement dated July 19, 1977 between the Company and ▇▇▇▇▇ ▇.
▇▇▇▇▇ (the "▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ Securities"). No Registrable Securities or any
other securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration. If any Holder of
Registrable Securities, officer, director or Other Shareholder who has requested
inclusion in such registration as provided above disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, the underwriter and the Initiating Holders. The securities so
withdrawn shall also be withdrawn from registration. If the underwriter has not
limited the number of Registrable Securities or other securities to be
underwritten, the Company may include its securities for its own account in such
registration if the underwriter so agrees and if the number of Registrable
Securities and other securities which would otherwise have been included in such
registration and underwriting will not thereby be limited.
8.6 Company Registration.
(a) If the Company shall determine to register any of its
securities either for its own account or the account of a security holder or
holders exercising their respective demand registration rights, other than a
registration relating solely to employee benefit plans, or a registration
relating solely to a Commission Rule 145 transaction, or a registration on any
registration form which does not permit secondary sales or does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of Registrable Securities, the Company
will:
(i) promptly give to each Holder written notice thereof
(which shall include a list of the jurisdictions in which the Company intends to
attempt to qualify such securities under the applicable blue sky or other state
securities laws); and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made by any Holder within fifteen (15) days after receipt of the
written notice from the Company described in clause (i) above, except as set
forth in Section 8.6(b) below. Such written request may specify all or a part of
a Holder's Registrable Securities.
(b) Underwriting. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 8.6(a)(i). In such event the right of any
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Holder to registration pursuant to Section 8.6 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
(together with the Company and the Other Shareholders distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for underwriting by
the Company. Notwithstanding any other provision of this Section 8.6, if the
underwriter determines that marketing factors require a limitation on the number
of shares to be underwritten, and (a) if such registration is the first
registered offering of the Company's securities to the public, the underwriter
may (subject to the allocation priority set forth below) exclude from such
registration and underwriting some or all of the Registrable Securities which
would otherwise be underwritten pursuant hereto, and (b) if such registration is
other than the first registered offering of the sale of the Company's securities
to the public, the underwriter may (subject to the allocation priority set forth
below) limit the number of Registrable Securities to be included in the
registration and underwriting to not less than fifty percent (50%) of the
securities included therein (based on aggregate market values). The Company
shall so advise all holders of securities requesting registration, and the
number of shares of securities that are entitled to be included in the
registration and underwriting shall be allocated in the following manner. The
securities of the Company held by officers and directors of the Company (other
than Registrable Securities) shall be excluded from such registration and
underwriting to the extent required by such limitation, and, if a limitation on
the number of shares is still required, the Pioneer Securities shall be excluded
from such registration and underwriting to the extent so required by such
limitation and, if a limitation of the number of shares is still required, the
number of shares that may be included in the registration and underwriting shall
be allocated among all such Holders and Other Shareholders in proportion, as
nearly as practicable, to the respective amounts of Registrable Securities and
other securities which they had requested to be included in such registration at
the time of filing the registration statement, provided that there shall not in
any event be a reduction in the number of ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ Securities
included in the registration and underwriting. If any Holder of Registrable
Securities or any officer, director or Other Shareholder disapproves of the
terms of any such underwriting, he may elect to withdraw therefrom by written
notice to the Company and the underwriter. Any Registrable Securities or other
securities excluded or withdrawn from such underwriting shall be withdrawn from
such registration.
8.7 Expenses of Registration. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to this
Section 8 shall be borne by the Company, and all Selling Expenses shall be borne
by the holders of the securities so registered pro rata on the basis of the
number of their shares so registered; provided, however, that the Company shall
not be required to pay any Registration Expenses if, as a result of the
withdrawal of a request for registration by Initiating Holders, the registration
statement does not become effective, in which case the Holders and Other
Shareholders requesting registration shall bear such Registration Expenses pro
rata on the basis of the number of their shares so included in the registration
request, and provided, further, that such registration shall not be counted as a
registration pursuant to Section 8.5(a)(ii)(B).
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8.8 Registration on Form S-2 or Form S-3. The Company shall use its
best efforts to qualify for registration on Form S-2 and Form S-3 or any
comparable or successor form or forms; and to that end the Company shall
register (whether or not required by law to do so) the Common Stock under the
Exchange Act in accordance with the provisions of that Act following the
effective date of the first registration of any securities of the Company on
Form S-1 or Form S-18 or any comparable or successor form or forms. After the
Company has qualified for the use of either Form S-2 or Form S-3 or both, in
addition to the rights contained in the foregoing provisions of this Section 8,
the Holders of Registrable Securities shall have the right to request
registrations on Form S-2 or Form S-3 (such requests shall be in writing and
shall state the number of shares of Registrable Securities to be disposed of and
the intended methods of disposition of such shares by such Holder or Holders).
8.9 Registration Procedures. In the case of each registration effected
by the Company pursuant to Section 8, the Company will keep each Holder advised
in writing as to the initiation of each registration and as to the completion
thereof. At its expense, the Company will:
(a) Keep such registration effective for a period of one hundred
twenty (120) days or until the Holder or Holders have completed the distribution
described in the registration statement relating thereto, whichever first
occurs; provided, however, that (i) such 120-day periods shall be extended for a
period of time equal to the period the Holder refrains from selling any
securities included in such registration in accordance with provisions in
paragraph 8.15 hereof; and (ii) in the case of any registration of Registrable
Securities on Form S-3 which are intended to be offered on a continuous or
delayed basis, such 120 day-period shall be extended, if necessary, to keep the
registration statement effective until all such Registrable Securities are sold,
provided that Rule 415, or any successor rule under the Securities Act, permits
an offering on a continuous or delayed basis, and provided further that
applicable rules under the Securities Act governing the obligation to file a
post-effective amendment, permit, in lieu of filing a post-effective amendment
which (y) includes any prospectus required by Section 10(a)(3) of the Securities
Act or (z) reflects facts or events representing a material or fundamental
change in the information set forth in the registration statement, the
incorporation by reference of information required to be included in (y) and (z)
above to be contained in periodic reports filed pursuant to Section 13 or 15(d)
of the Exchange Act in the registration statement;
(b) Furnish such number of prospectuses and other documents
incident thereto as a Holder from time to time may reasonably request; and
(c) In connection with any underwritten offering pursuant to a
registration statement filed pursuant to Section 8.5 hereof, the Company will
enter into any underwriting agreement reasonably necessary to effect the offer
and sale of Common Stock, provided such underwriting agreement contains
customary underwriting provisions and provided further that if the underwriter
so requests the underwriting agreement will contain customary contribution
provisions.
8.10 Indemnification.
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(a) The Company will indemnify each Holder, each of its officers,
directors and partners, and each person controlling such Holder, with respect to
which registration, qualification or compliance has been effected pursuant to
this Section 8, and each underwriter, if any, and each person who controls any
underwriter, against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any prospectus, offering
circular or other document (including any related registration statement,
notification or the like) incident to any such registration, qualification or
compliance, or based on any 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 any violation by the Company of the Securities Act or
any rule or regulation thereunder applicable to the Company and relating to
action or inaction required of the Company in connection with any such
registration, qualification or compliance, and will reimburse each such Holder,
each of its officers, directors and partners, and each person controlling such
Holder, each such underwriter and each person who controls any such underwriter,
for any legal and any other expenses reasonably incurred in connection with
investigating and defending any such claim, loss, damage, liability or action,
provided that the Company will not be liable in any such case to the extent that
any such claim, loss, damage, liability or expense arises out of or is based on
any untrue statement or omission based upon written information furnished to the
Company by such Holder or underwriter and stated to be specifically for use
therein.
(b) Each Holder and Other Shareholder will, if Registrable
Securities held by him are included in the securities as to which such
registration, qualification or compliance is being effected, indemnify the
Company, each of its directors and officers and each underwriter, if any, of the
Company's securities covered by such a registration statement, each person who
controls the Company or such underwriter within the meaning of the Securities
Act and the rules and regulations thereunder, each other such Holder and Other
Shareholder and each of their officers, directors and partners, and each person
controlling such Holder or Other Shareholder, against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any such registration statement, prospectus, offering circular or
other document, or any omission (or alleged omission) to state therein a
material fact required to' be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Company and such Holders, Other
Shareholders, directors, officers, partners, persons, underwriters or control
persons for any legal or any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information furnished
to the Company by such Holder or Other Shareholder and stated to be specifically
for use therein; provided, however, that the obligations of .such Holders and
Other Shareholders hereunder shall be limited to an amount equal to the proceeds
to each such Holder or Other Shareholder of securities sold as contemplated
herein.
(c) Each party entitled to indemnification under this Section 8.10
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as
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to which indemnity may be sought, and shall permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting therefrom,
provided that counsel for the Indemnifying Party, who shall conduct the defense
of such claim or any litigation resulting therefrom, shall be approved by the
Indemnified Party (whose approval shall not unreasonably be withheld), and the
Indemnified Party may participate in such defense at such party's expense, and
provided further that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its obligations
under this Section 8. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. Each Indemnified Party shall furnish such information regarding
itself or the claim in question as an Indemnifying Party may reasonably request
in writing and as shall be reasonably required in connection with defense of
such claim and litigation resulting therefrom.
8.11 Information by Holder. Each Holder of Registrable Securities, and
each Other Shareholder holding securities included in any registration, shall
furnish to the Company such information regarding such Holder or Other
Shareholder and the distribution proposed by such Holder or Other Shareholder as
the Company may reasonably request in writing and as shall be reasonably
required in connection with any registration, qualification or compliance
referred to in this Section 8.
8.12 Limitations on Registration of Issues of Securities. From and
after the date of this Agreement, the Company shall not enter into any agreement
with any holder or prospective holder of any securities of the Company giving
such holder or prospective holder the right to require the Company to initiate
any registration of any securities of the Company, provided that this Section
8.12 shall not limit the right of the Company to enter any agreements with any
holder or prospective holder of any securities of the Company giving such holder
or prospective holder the right to require the Company, upon any registration of
any of its securities, to include, among the securities which the Company is
then registering, securities owned by such holder. Any right given by the
Company to any holder or prospective holder of the Company's securities in
connection with the registration of securities shall be conditioned such that it
shall be consistent with the provisions of this Section 8 and with the rights of
the Holders provided in this Agreement.
8.13 Rule 144 Reporting. With a view to making available the benefits
of certain rules and regulations of the Commission which may permit the sale of
the Restricted Securities to the public without registration, the Company agrees
to:
(a) Make and keep public information available as those terms are
understood and defined in Rule 144 under the Securities Act, at all times from
and after ninety (90) days following the effective date of the first
registration under the Securities Act filed by the Company for an offering of
its securities to the general public;
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(b) Use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act at any time after it has become subject to
such reporting requirements;
(c) So long as a Purchaser owns any Restricted Securities, furnish
to the Purchaser forthwith upon request a written statement by the Company as to
its compliance with the reporting requirements of Rule 144 (at any time from and
after ninety (90) days following the effective date of the first registration
statement filed by the Company for an offering of its securities to the general
public), and of the Securities Act and the Exchange Act (at any time after it
has become subject to such reporting requirements), a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents
so filed as a Purchaser may reasonably request in availing itself of any rule or
regulation of the Commission allowing a Purchaser to sell any such securities
without registration.
8.14 Transfer or Assignment of Registration Rights. The rights granted
to Purchasers under Sections 8.5, 8.6 and 8.8 to cause the Company to register
their securities may be transferred or assigned by a Purchaser to a transferee
or assignee of any of his Restricted Securities, provided that the Company is
given written notice by the Purchaser at the time of or within a reasonable time
after said transfer or assignment, stating the name and address of said
transferee or assignee and identifying the securities with respect to which such
registration rights are being transferred or assigned, and provided further that
the transferee or assignee of such rights is not deemed by the board of
directors of the Company, in its reasonable judgment, to be a competitor of the
Company; and provided further that the transferee or assignee of such rights
assumes the obligations of such Purchaser under this Section 8.
8.15 "Market Stand-off" Agreement. Each Purchaser agrees, if requested
by the Company and an underwriter of Common Stock (or other securities) of the
Company, not to sell or otherwise transfer or dispose of any Common Stock (or
other securities) of the Company during the ninety (90) day period (or such
longer period not to exceed one hundred eighty (180) days as may be requested by
the Company and any such underwriter) following the effective date of a
registration statement of the Company filed under the Securities Act, provided
that:
(a) such agreement only applies to the first such registration
statement of the Company including securities to be sold on its behalf to the
public in an underwritten offering; and
(b) all Holders, Other Shareholders and officers and directors of
the Company enter into similar agreements.
Such agreement shall be in writing in a form satisfactory to the
Company and such underwriter. The Company may impose stop-transfer instructions
with respect to the shares (or securities) subject to the foregoing restriction
until the end of any said period.
8.16 ▇▇▇▇▇▇▇ Enterprises Shares. Notwithstanding any provision of this
Agreement to the contrary, ▇▇▇▇▇▇▇ Enterprises, if it is a Purchaser hereunder,
shall be permitted to transfer, within one year of the date of this Agreement,
free of any limitations on transfer contained in this
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Agreement, all or any of the Shares it acquires hereunder, to a limited
partnership, the general partner of which is ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Company or
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇ or any entity owned or controlled by ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇, provided that such transferee agrees to be bound as a
Purchaser by the terms of this Agreement.
SECTION 9
Miscellaneous
9.1 Governing Law. This Agreement shall be governed in all respects by
the laws of the State of New York.
9.2 Survival. The representations, warranties, covenants and agreements
made herein shall survive (i) any investigation made by any Purchaser and (ii)
the Closing.
9.3 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto; provided, however, the Company may not assign its rights
hereunder.
9.4 Entire Agreement; Amendment. This Agreement (including the
Schedules and Exhibits hereto) and the other documents delivered pursuant hereto
constitute the full and entire understanding and agreement between the parties
with regard to the subjects hereof and thereof. Neither this Agreement nor any
term hereof may be amended, waived, discharged or terminated, except by a
written instrument signed by the Company and the Purchasers; provided, however,
that holders of sixty-seven percent (67%) or more of the Shares sold under this
Agreement and the Other Agreements or such number of shares of Common Stock
issued upon conversion of those sixty-seven percent (67%) of the Shares and not
sold to the public pursuant to Section 8, or any combination thereof, may by
written instrument waive satisfaction of any term or condition which operates
for the benefit of the Purchasers, but in no event shall the obligation of any
Purchaser hereunder be increased, except upon the written consent of such
Purchaser.
9.5 Notices, etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by first-class mail,
postage prepaid, or delivered either by hand or by messenger, addressed (a) if
to a Purchaser, as indicated on the Schedule of Purchasers attached hereto, or
at such other address as such Purchaser shall have furnished to the Company in
writing, or (b) if to any other holder of any Shares or any Common Stock issued
upon conversion of Shares, at such address as such holder shall have furnished
the Company in writing, or, until any such holder so furnishes an address to the
Company, then to and at the address of the last holder thereof who has so
furnished an address to the Company, or (c) if to the Company, at its address
set forth at
9.6 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any holder of any Shares, upon any breach or default
of the Company under this Agreement, shall impair any such right, power or
remedy of such holder nor shall it be
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construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any holder of any
breach or default under this Agreement, or any waiver on the part of any holder
of any provisions or conditions of this Agreement must be made in writing and
shall be effective only to the extent specifically set forth in such writing.
All remedies, either under this Agreement or by law or otherwise afforded to any
holder, shall be cumulative and not alternative.
9.7 Rights; Separability. Unless otherwise expressly provided herein,
your rights hereunder are several rights, not rights jointly held with any of
the other Purchasers. In case any provision of the Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
9.8 Agent's Fees.
(a) The Company hereby agrees to indemnify and to hold each
Purchaser harmless of and from any liability for commission or compensation in
the nature of an agent's fee to any broker or other person or firm (and the
costs and expenses of defending against such liability or asserted liability)
arising from any act by the Company or any of its employees or representatives.
(b) You (i) represent and warrant that you have retained no finder
or broker in connection with the transactions contemplated by this Agreement and
(ii) hereby agree to indemnify and to hold the Company and the other Purchasers
harmless from any liability for any commission or compensation in the nature of
an agent's fee to any broker or other person or firm (and the costs and expenses
of defending against such liability or asserted liability) for which you, or any
of your employees or representatives, are responsible.
9.9 Information Confidential. You acknowledge that the information
received by you pursuant hereto may be confidential and for your use only, and
you will not use such confidential information in violation of the Exchange Act
or reproduce, disclose or disseminate such information to any other person
(other than your employees or agents having a need to know the contents of such
information, and your attorneys), except in connection with the exercise of
rights under this Agreement, unless the Company has made such information
available to the public generally or you are required to disclose such
information by a governmental body.
9.10 Expenses. The Company shall bear its own expenses and legal fees
incurred on its behalf with respect to this Agreement and the transactions
contemplated hereby, and the Company will pay the legal fees and disbursements
and office expenses, including secretarial charges, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ with
respect to this Agreement and the transactions contemplated hereby to the extent
provided in Section 5.14 hereof.
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9.11 Titles and Subtitles. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
9.12 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
If you are in agreement with the foregoing, please sign where indicated
below and thereupon this letter shall become a binding agreement between you and
the Company.
Very truly yours,
SeaMed Corporation
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
President
ACCEPTED AND AGREED TO:
Purchasers:
Pioneer Associates
By /s/ R. ▇▇▇▇▇ ▇▇▇▇ - General Partner
----------------------------------------
Pioneer III
By /s/ R. ▇▇▇▇▇ ▇▇▇▇ - General Partner
----------------------------------------
By /s/ R. ▇▇▇▇▇ ▇▇▇▇ - General Partner
----------------------------------------
R. ▇▇▇▇▇ ▇▇▇▇
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If you are in agreement with the foregoing, please sign where indicated
below and thereupon this letter shall become a binding agreement between you and
the Company.
Very truly yours,
SeaMed Corporation
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
President
ACCEPTED AND AGREED TO:
Purchasers:
▇▇▇▇▇▇▇ Enterprises
By /s/ [unreadable]
--------------------------------
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If you are in agreement with the foregoing, please sign where indicated
below and thereupon this letter shall become a binding agreement between you and
the Company.
Very truly yours,
SeaMed Corporation
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
President
ACCEPTED AND AGREED TO:
Purchasers:
▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
/s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇
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If you are in agreement with the foregoing, please sign where indicated
below and thereupon this letter shall become a binding agreement between you and
the Company.
Very truly yours,
SeaMed Corporation
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
President
ACCEPTED AND AGREED TO:
By /s/ Duff ▇▇▇▇▇▇▇
--------------------------------
Purchaser
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If you are in agreement with the foregoing, please sign where indicated
below and thereupon this letter shall become a binding agreement between you and
the Company.
Very truly yours,
SeaMed Corporation
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
President
ACCEPTED AND AGREED TO:
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Purchaser
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If you are in agreement with the foregoing, please sign where indicated
below and thereupon this letter shall become a binding agreement between you and
the Company.
Very truly yours,
SeaMed Corporation
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
President
ACCEPTED AND AGREED TO:
By /s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Purchaser
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If you are in agreement with the foregoing, please sign where indicated
below and thereupon this letter shall become a binding agreement between you and
the Company.
Very truly yours,
SeaMed Corporation
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
President
ACCEPTED AND AGREED TO:
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Purchaser
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If you are in agreement with the foregoing, please sign where indicated
below and thereupon this letter shall become a binding agreement between you and
the Company.
Very truly yours,
SeaMed Corporation
By /s/ Bangt Svensson
---------------------------------
Vice-President
ACCEPTED AND AGREED TO:
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Purchaser
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If you are in agreement with the foregoing, please sign where indicated
below and thereupon this letter shall become a binding agreement between you and
the Company.
Very truly yours,
SeaMed Corporation
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
President
ACCEPTED AND AGREED TO:
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Purchaser
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