EXHIBIT 4.1
STOCK PURCHASE AGREEMENT
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Conceptus, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies & Gentlemen:
The undersigned, __________________(the "Investor"), hereby confirms its
agreement with you as follows:
1. This Stock Purchase Agreement (the "Agreement") is made effective as of
November__, 2001 between Conceptus, Inc., a Delaware corporation (the
"Company"), and the Investor.
2. The Company has authorized the issuance and sale of up to 2,500,000 shares
(the "Shares") of common stock of the Company, $0.003 par value per share (the
"Common Stock"), subject to adjustment by the Company's Board of Directors, to
certain investors in a private placement (the "Offering").
3. The Company and the Investor agree that the Investor will purchase from the
Company and the Company will issue and sell to the Investor __________ Shares,
for a purchase price of $13.25 per share, or an aggregate purchase price of
$___________, pursuant to the Terms and Conditions for Purchase of Shares
attached hereto as Annex I and incorporated herein by reference as if fully set
forth herein. Unless otherwise requested by the Investor, certificates
representing the Shares purchased by the Investor will be registered in the
Investor's name and address as set forth below.
4. The Investor represents that, except as set forth below, (a) it has had no
position, office or other material relationship within the past three years with
the Company or its affiliates, (b) neither it, nor any group of which it is a
member or to which it is related, beneficially owns (including the right to
acquire or vote) any securities of the Company and (c) it has no direct or
indirect affiliation or association with any NASD member. Exceptions:
________________________________________________________________________________
_______________________________________________________________________________.
(If no exceptions, write "none." If left blank, response will be deemed to
be "none.")
Please confirm that the foregoing correctly sets forth the agreement
between us by signing in the space provided below for that purpose.
___________________________________________
"INVESTOR"
By: _______________________________________
Print Name: _______________________________
Title: ____________________________________
Address: __________________________________
Tax ID No.: _______________________________
Contact name: _____________________________
Telephone: ________________________________
Name in which shares should be registered
(if different): ___________________________
AGREED AND ACCEPTED:
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CONCEPTUS, INC.
_______________________________
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇
President and CEO
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
EXHIBIT 4.1
ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
1. Authorization and Sale of the Shares. Subject to the terms and
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conditions of this Agreement, the Company has authorized the sale of up to
2,500,000 Shares. The Company reserves the right to increase or decrease this
number.
2. Agreement to Sell and Purchase the Shares; Subscription Date.
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2.1 At the Closing (as defined in Section 3), the Company will sell
to the Investor, and the Investor will purchase from the Company, upon the terms
and conditions hereinafter set forth, the number of Shares set forth on the
signature page hereto at the purchase price set forth on such signature page.
2.2 The Company is entering into this same form of Stock
Purchase Agreement with certain other investors (the "Other Investors")
effective as of the date hereof (the "Subscription Date") and expects to
complete sales of Shares to them. (The Investor and the Other Investors are
hereinafter sometimes collectively referred to as the "Investors," and this
Agreement and the Stock Purchase Agreements executed by the Other Investors are
hereinafter sometimes collectively referred to as the "Agreements.")
3. Delivery of the Shares at Closing. The completion of the purchase and
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sale of the Shares (the "Closing") shall occur (the "Closing Date") on the third
business day after the Subscription Date (or upon such earlier date as the
Company and the Investors shall agree), at the offices of the Company's counsel.
At the Closing, the Company shall deliver to the Investor one or more stock
certificates representing the number of Shares set forth on the signature page
hereto, each such certificate to be registered in the name of the Investor or,
if so indicated on the signature page hereto, in the name of a nominee
designated by the Investor. The Company's obligation to issue the Shares to the
Investor shall be subject to the following conditions, any one or more of which
may be waived by the Company: (a) receipt by the Company of a certified or
official bank check or wire transfer of funds in the full amount of the purchase
price for the Shares being purchased hereunder as set forth on the signature
page hereto; provided, however, that any Investor subject to the Investment
Company Act of 1940, as amended (the "Investment Act"), shall not be required to
deliver the applicable purchase price prior to the physical delivery of the
certificates representing the Shares purchased by such Investor, in compliance
with the provisions of the Investment Act; (b) completion of the purchases and
sales under the Agreements with the Other Investors; and (c) the accuracy of the
representations and warranties made by the Investors and the fulfillment of
those undertakings of the Investors to be fulfilled prior to the Closing. The
Investor's obligation to purchase the Shares shall be subject to the following
conditions, any one or more of which may be waived by the Investor: (a) receipt
by the Investor of one or more stock certificates representing the number of
Shares set forth on the signature page hereto; (b) receipt by the Investor of an
opinion letter, dated as of the Closing Date, from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to
the Company; (c) the accuracy of the representations and warranties made by the
Company and the fulfillment of those
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undertakings of the Company to be fulfilled prior to the Closing; (d) on the
Closing Date, no legal action, suit or proceeding shall be pending or threatened
which seeks to restrain or prohibit the transactions contemplated by the
Agreements; (e) the Company shall have delivered to the Investors its
certificate, dated the Closing Date, duly executed by its Chief Executive
Officer to the effect set forth in clause (c) above; (f) the receipt by the
Investors of a certificate, dated the Closing Date, of the Secretary or
Assistant Secretary of the Company certifying (i) the certificate of
incorporation and bylaws of the Company as in effect on the Closing Date, (ii)
all resolutions of the board of directors (and committees thereof) of the
Company relating to the Agreements and the transactions contemplated thereby and
(iii) the incumbency of all officers of the Company executing the Agreements and
any other agreement or document contemplated thereby.
4. Representations, Warranties and Covenants of the Company. The Company
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hereby represents and warrants to, and covenants with, the Investor, as follows:
4.1 Organization. Each of the Company and its Subsidiaries is duly
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organized and validly existing in good standing under the laws of the
jurisdiction of its organization. Each of the Company and its Subsidiaries (as
defined in Rule 405 under the Securities Act of 1933, as amended (the
"Securities Act")) has full power and authority to own, operate and occupy its
properties and to conduct its business as presently conducted and is registered
or qualified to do business and in good standing in each jurisdiction in which
it owns or leases property or transacts business and where the failure to be so
qualified would have a material adverse effect upon the financial condition or
business, operations, assets or prospects of the Company and its Subsidiaries,
considered as one enterprise, and no proceeding has been instituted in any such
jurisdiction, revoking, limiting or curtailing, or seeking to revoke, limit or
curtail, such power and authority or qualification.
4.2 Due Authorization. The Company has all requisite power and
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authority to execute, deliver and perform its obligations under the Agreements,
and the Agreements have been duly authorized and validly executed and delivered
by the Company and constitute legal, valid and binding agreements of the Company
enforceable against the Company in accordance with their terms, except as rights
to indemnity and contribution may be limited by state or federal securities laws
or the public policy underlying such laws, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
4.3 Non-Contravention. The execution and delivery of the Agreements,
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the issuance and sale of the Shares to be sold by the Company under the
Agreements, the fulfillment of the terms of the Agreements and the consummation
of the transactions contemplated thereby will not (A) conflict with or
constitute a violation of, or default (with or without the giving of notice or
the passage of time or both) under, (i) any material bond, debenture, note or
other evidence of indebtedness, or under any material lease, indenture,
mortgage, deed of trust, loan agreement, joint venture or other agreement or
instrument to which the Company or any Subsidiary is a party or by which it or
any of its Subsidiaries or their respective properties are bound, (ii) the
charter, by-laws or other organizational documents of the Company or any
Subsidiary, or (iii) any law, administrative
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regulation, ordinance or order of any court or governmental agency, arbitration
panel or authority applicable to the Company or any Subsidiary or their
respective properties, or (B) result in the creation or imposition of any lien,
encumbrance, claim, security interest or restriction whatsoever upon any of the
material properties or assets of the Company or any Subsidiary or an
acceleration of indebtedness pursuant to any obligation, agreement or condition
contained in any material bond, debenture, note or any other evidence of
indebtedness or any material indenture, mortgage, deed of trust or any other
agreement or instrument to which the Company or any Subsidiary is a party or by
which any of them is bound or to which any of the property or assets of the
Company or any Subsidiary is subject. No consent, approval, authorization or
other order of, or registration, qualification or filing with, any regulatory
body, administrative agency, self-regulatory organization, stock exchange or
market, or other governmental body in the United States is required for the
execution and delivery of the Agreements and the valid issuance and sale of the
Shares to be sold pursuant to the Agreements, other than such as have been made
or obtained, and except for any securities filings required to be made under
federal or state securities laws.
4.4 Reporting Status. The Company has filed in a timely manner all
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documents that the Company was required to file under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), during the 12 months preceding the
date of this Agreement. The following documents complied in all material
respects with the SEC's requirements as of their respective filing dates, and
the information contained therein as of the date thereof did not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein in light of the
circumstances under where they were made not misleading, except to the extent
that information contained in any such document has been revised or superseded
by a later filed SEC Document (as defined below):
(i) The Company's Annual Report on Form 10-K for the year ended
December 31, 2000, including the exhibits thereto (the "Form
10-K"); and
(ii) all other documents, including the exhibits thereto, filed by the
Company with the SEC since December 31, 2000 pursuant to the
reporting requirements of the Exchange Act (together with the
Form 10-K, the "SEC Documents").
The SEC Documents (together with press releases and other documents
made publicly available by the Company), when taken together as a whole, as of
the date hereof, do not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they were made not
misleading.
4.5 Capitalization. As of the date hereof, the authorized capital
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stock of the Company consists of 30,000,000 shares of Common Stock and 3,000,000
shares of preferred stock, par value $.003 per share, of the Company (the
"Preferred Stock"). As of June 30, 2001, there were approximately (i) 13,574,316
shares of Common Stock issued and outstanding, (ii) no shares of Preferred Stock
issued and outstanding, (iii) 4,175,000 shares of Common Stock reserved for
issuance under the Company's 2001 Equity Incentive Plan, 1993 Stock Plan and
1995 Directors' Option Plan, including 2,505,034 shares issuable upon exercise
of outstanding stock options issued by the Company to current or former
employees, consultants and directors of the Company and its
4
Subsidiaries, (iv) an aggregate of 200,000 shares of Common Stock reserved for
issuance pursuant to the Company's 1995 Employee Stock Purchase Plan, a portion
of which are issued and outstanding, (v) 25,000 shares of Common Stock reserved
for issuance upon exercise of a warrant issued by the Company to a landlord and
(vi) no other shares or options, warrants or other rights to acquire shares of
capital stock of the Company or securities convertible into capital stock of the
Company. The Company is, directly or indirectly, the registered and beneficial
owner of all of the outstanding shares of capital stock of each of its
Subsidiaries. All outstanding shares of Common Stock are duly authorized,
validly issued, fully paid and nonassessable, free from any liens or any other
encumbrances created by the Company with respect to the issuance and delivery
thereof and not subject to preemptive rights. Other than as disclosed in the SEC
Documents, there are no outstanding rights, options, warrants, preemptive
rights, rights of first refusal agreements, commitments or similar rights for
the purchase or acquisition from the Company of any securities of the Company.
The Shares to be sold pursuant to the Agreements have been duly authorized, and
when issued and paid for in accordance with the terms of the Agreements will be
duly and validly issued, fully paid and nonassessable, free and clear of all
pledges, liens, encumbrances and other restrictions (other than those arising
under federal or state securities laws as a result of the private placement of
the Shares to the Investors). No preemptive right, co-sale right, right of first
refusal or other similar right exists with respect to the Shares or the issuance
and sale thereof. No further approval or authorization of any stockholder, the
Board of Directors of the Company or others is required for the issuance and
sale of the Shares. Except as set forth in the SEC Documents, no holder of any
of the securities of the Company or any of its Subsidiaries has any rights
("demand," "piggyback" or otherwise) to have such securities registered by
reason of the intention to file, filing or effectiveness of a Registration
Statement (as defined in Section 7.1 hereof).
4.6 Legal Proceedings. There is no material legal or governmental
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proceeding pending or, to the knowledge of the Company, threatened to which the
Company or any Subsidiary or any officer or director of the Company or any
Subsidiary in their capacity as such officer or director is or may be a party or
of which the business or property of the Company or any Subsidiary is subject
that is not disclosed in the SEC Documents. There is no action, suit,
proceeding, inquiry or investigation before or by any court, public board or
body (including, without limitation, the SEC) pending or, to the knowledge of
the Company, threatened against or affecting the Company or any of its
Subsidiaries wherein an unfavorable decision, ruling or finding could adversely
affect the validity or enforceability of, or the authority or ability of the
Company to perform its obligations under the Agreements.
4.7 No Violations. Neither the Company nor any Subsidiary is in
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violation of its charter, bylaws, or other organizational document, or in
violation of any law, administrative regulation, ordinance or order of any court
or governmental agency, arbitration panel or authority applicable to the Company
or any Subsidiary, which violation, individually or in the aggregate, would be
reasonably likely to have a material adverse effect on the business, operations,
assets or prospects or financial condition of the Company and its Subsidiaries,
considered as one enterprise, or is in default (and there exists no condition
which, with or without the passage of time or giving of notice or both, would
constitute a default) in any material respect in the performance of any bond,
debenture, note or any other evidence of indebtedness in any indenture,
mortgage, deed of trust or any other material agreement or instrument to which
the Company or any Subsidiary is a party or by which the Company or any
Subsidiary is bound or by which the properties of the Company or any
5
Subsidiary are bound, which would be reasonably likely to have a material
adverse effect upon the business, operations, assets or prospects or financial
condition of the Company and its Subsidiaries, considered as one enterprise.
4.8 Governmental Permits, Etc. With the exception of the matters
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which are dealt with separately in Section 4.1, 4.4, 4.12 and 4.13, each of the
Company and its Subsidiaries has all necessary franchises, licenses,
certificates and other authorizations from any foreign, federal, state or local
government or governmental agency, department, or body that are currently
necessary for the operation of the business of the Company and its Subsidiaries
as currently conducted, except where the failure to currently possess could not
reasonably be expected to have a material adverse effect upon the business,
operations, assets or prospects or financial condition of the Company and its
Subsidiaries, considered as one enterprise.
4.9 Intellectual Property. Each of the Company and its Subsidiaries
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owns or possesses sufficient rights to use all patents, patent rights,
trademarks, copyrights, licenses, inventions, trade secrets, trade names and
know-how (collectively, "Intellectual Property") that are necessary for the
conduct of its business as now conducted except where the failure to currently
own or possess would not have a material adverse effect on the financial
condition or business of the Company and its Subsidiaries considered as one
enterprise. Except as set forth in the SEC Documents, (i) neither the Company
nor any of its Subsidiaries has received any notice of, or has any knowledge of,
any infringement of asserted rights of a third party with respect to any
Intellectual Property that, individually or in the aggregate, would have a
material adverse effect on the financial condition or business, operations,
assets or prospects of the Company and its Subsidiaries considered as one
enterprise and (ii) neither the Company nor any of its Subsidiaries has received
any notice of any infringement rights by a third party with respect to any
Intellectual Property that, individually or in the aggregate, would have a
material adverse effect upon the business, operations, assets or prospects or
financial condition of the Company and its Subsidiaries, considered as one
enterprise.
4.10 Financial Statements. The financial statements of the Company and
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the related notes thereto included in the SEC Documents present fairly, in
accordance with generally accepted accounting principles, the financial position
of the Company and its Subsidiaries as of the dates indicated, and the results
of its operations and cash flows for the periods therein specified. Such
financial statements (including the related notes) have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods therein specified, except as set forth in the SEC
Documents and subject in the case of unaudited financial statements, to normal
year-end audit adjustments.
4.11 No Material Adverse Change. Except as disclosed in the SEC
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Documents, since June 30, 2001 there has not been (i) any material adverse
change in the financial condition, earnings or prospects of the Company and its
Subsidiaries considered as one enterprise nor has any material adverse event
occurred to the Company or its Subsidiaries, (ii) any material adverse event
affecting the Company or any of its Subsidiaries, (iii) any obligation, direct
or contingent, that is material to the Company and its Subsidiaries considered
as one enterprise, incurred by the Company, except obligations incurred in the
ordinary course of business, (iv) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company or any of its
Subsidiaries, or (v) any loss or damage (whether or not insured) to the physical
property of the Company or any of
6
its Subsidiaries which has been sustained which has a material adverse effect on
the condition (financial or otherwise), earnings, operations, business or
business prospects of the Company and its Subsidiaries considered as one
enterprise. Except as disclosed in the SEC Documents, neither the Company nor
any of its Subsidiaries has (i) sold, assigned, transferred, abandoned,
mortgaged, pledged or subjected to lien any of its material properties, tangible
or intangible, or rights under any material contract, permit, license, franchise
or other agreement or (ii) waived or cancelled any indebtedness or other
obligations owed to the Company or any such Subsidiary.
4.12 NASDAQ Listing. The Company's Common Stock is registered pursuant
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to Section 12(g) of the Exchange Act and is listed on The Nasdaq Stock Market,
Inc. National Market (the "Nasdaq National Market"), and the Company has taken
no action designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or de-listing the Common
Stock from the Nasdaq National Market, nor to the Company's knowledge is the
National Association of Securities Dealers, Inc. ("NASD") currently
contemplating terminating such listing. The Company and the Common Stock meet
the criteria for continued listing and trading on the Nasdaq National Market.
4.13 Listing of the Shares. The Company shall comply with all
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requirements of the National Association of Securities Dealers, Inc. with
respect to the issuance of the Shares and the listing thereof on the Nasdaq
National Market. In furtherance thereof, the Company shall use its best efforts
to take such actions as may be necessary and as soon as practicable and in no
event later than 20 days after the Closing Date to file with the Nasdaq National
Market an application or other document required by the Nasdaq National Market
and pay all applicable fees for the listing of the Shares with the Nasdaq
National Market and shall provide evidence of such filing to the Investors. The
Company knows of no reason why the Shares will not be eligible for listing on
the Nasdaq National Market.
4.14 No Manipulation of Stock. The Company has not taken and will not,
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in violation of applicable law, take, any action designed to or that might
reasonably be expected to cause or result in stabilization or manipulation of
the price of the Common Stock to facilitate the sale or resale of the Shares.
4.15 S-3 Status. The Company meets the requirements for the use of
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Form S-3 for the registration of the resale of the Shares by the Investors and
will use its best efforts to maintain S-3 status with the SEC during the
Registration Period (as defined in Section 7.1(c)).
4.16 Insurance. The Company maintains and will continue to maintain
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insurance against loss or damage by fire or other casualty and such other
insurance, including, but not limited to, product liability insurance, in such
amounts and covering such risks as is reasonably adequate consistent with
industry practice for the conduct of its business and the value of its
properties, all of which insurance is in full force and effect.
4.17 Tax Matters. The Company has filed all material federal, state
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and local income and franchise and other tax returns required to be filed and
has paid all taxes due in accordance therewith, and no tax deficiency has been
determined adversely to the Company which has had (nor does the Company have any
knowledge of any tax deficiency which, if determined
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adversely to the Company, might have) a material adverse effect on the condition
(financial or otherwise), earnings, operations, business or prospects of the
Company and its Subsidiaries considered as one enterprise.
4.18 Investment Company. The Company is not an "investment company"
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within the meaning of such term under the Investment Company Act of 1940 and the
rules and regulations of the SEC thereunder.
4.19 No Registration. Assuming the accuracy of the representations and
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warranties made by, and compliance with the covenants of, the Investors in
Section 5 hereof, no registration of the Shares under the Securities Act is
required in connection with the offer and sale of the Shares by the Company to
the Investors as contemplated by the Agreements.
4.20 Internal Accounting Controls. The Company and its Subsidiaries
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maintain a system of internal accounting controls sufficient, in the judgment of
the Company's board of directors, to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
4.21 Form D. The Company agrees to file one or more Forms D with
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respect to the Shares on a timely basis as required under Regulation D under the
Securities Act to claim the exemption provided by Rule 506 of Regulation D and
to provide a copy thereof to the Investors and their counsel promptly after such
filing.
4.22 Certain Future Financings and Related Actions.
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(a) The Company will not sell, offer to sell, solicit offers to
buy or otherwise negotiate in respect of any "security" (as defined in the
Securities Act) that is or could be integrated with the sale of the Shares in a
manner that would require the registration of the Shares under the Securities
Act.
(b) The Company shall not offer, sell, contract to sell or issue
(or engage any person to assist the Company in taking any such action) any
equity securities or securities convertible into, exchangeable for or otherwise
entitling the holder to acquire, any Common Stock at a price below the market
price of the Common Stock during the period from the date of this Agreement to
the effective date of the Registration Statement; provided, however, that
nothing in this Section 4.22(b) shall prohibit the Company from issuing
securities (v) to employees, directors, officers, advisors or consultants of the
Company; (w) upon exercise of conversion, exchange, purchase or similar rights
issued, granted or given by the Company and outstanding as of the date of this
Agreement; (x) pursuant to a public offering underwritten on a firm commitment
basis registered under the Securities Act; (y) for the purpose of funding the
acquisition of securities or assets of any entity in a single transaction or a
series of related transactions; or (z) pursuant to a strategic
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partnership or alliance agreement, loan agreement, equipment lease or similar
commercial agreement (including licensing and similar arrangements).
4.23 Use of Proceeds. The Company will use the net proceeds from the
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sale of the Shares for working capital and other general corporate purposes.
5. Representations, Warranties and Covenants of the Investor.
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5.1 The Investor represents and warrants to, and covenants with, the Company
that: (i) the Investor is an "accredited investor" as defined in Regulation D
under the Securities Act and the Investor has the knowledge, sophistication and
experience necessary to make, and is qualified to make decisions with respect
to, investments in shares presenting an investment decision like that involved
in the purchase of the Shares, including investments in securities issued by the
Company and investments in comparable companies, and has requested, received,
reviewed and considered all information it deemed relevant in making an informed
decision to purchase the Shares; (ii) the Investor is acquiring the number of
Shares set forth on the signature page hereto for its own account for investment
only and with no present intention of distributing any of such Shares in
violation of the Securities Act or any arrangement or understanding with any
other persons regarding the distribution of such Shares; (iii) the Investor will
not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose
of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge
of) any of the Shares except in compliance with the Securities Act, applicable
state securities laws and the respective rules and regulations promulgated
thereunder; (iv) the Investor has filled in all requested information on the
signature page hereto for use in preparation of the Registration Statement and
the answers thereto are true and correct as of the date hereof and will be true
and correct as of the Closing Date; (v) the Investor will notify the Company
promptly of any change in any of such information until such time as the
Investor has sold all of its Shares or until the Company is no longer required
to keep the Registration Statement effective; and (vi) the Investor has, in
connection with its decision to purchase the number of Shares set forth on the
signature page hereto, relied only upon the SEC Documents, other publicly
available information and the representations and warranties of the Company
contained herein. The Investor understands that its acquisition of the Shares
has not been registered under the Securities Act or registered or qualified
under any state securities law in reliance on specific exemptions therefrom,
which exemptions may depend upon, among other things, the bona fide nature of
the Investor's investment intent as expressed herein.
5.2 The Investor acknowledges that the Company has represented that
no action has been or will be taken in any jurisdiction outside the United
States by the Company that would permit an offering of the Shares, or possession
or distribution of offering materials in connection with the issue of the
Shares, in any jurisdiction outside the United States where action for that
purpose is required. If the Investor is located or domiciled outside the United
States it agrees to comply with all applicable laws and regulations in each
foreign jurisdiction in which it purchases, offers, sells or delivers Shares or
has in its possession or distributes any offering material, in all cases at its
own expense.
5.3 The Investor hereby covenants with the Company not to make any
sale of the Shares without complying with the provisions of this Agreement,
including Section 7.2 hereof,
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provided that the Company complies with its obligations under Section 7.1,
without effectively causing the prospectus delivery requirement under the
Securities Act to be satisfied, if applicable, and the Investor acknowledges
that the certificates evidencing the Shares will be imprinted with a legend that
prohibits their transfer except in accordance therewith. The Investor
acknowledges that there may occasionally be times when the Company, based on the
advice of its counsel, determines that, subject to the limitations of Section
7.2, it must suspend the use of the Prospectus forming a part of the
Registration Statement until such time as an amendment to the Registration
Statement has been filed by the Company and declared effective by the SEC or
until the Company has amended or supplemented such Prospectus.
5.4 The Investor further represents and warrants to, and covenants
with, the Company that (i) the Investor has full right, power, authority and
capacity to enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement and (ii) this Agreement
constitutes a valid and binding obligation of the Investor enforceable against
the Investor in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and except as the indemnification and contribution agreements
of the Investors herein may be legally unenforceable.
5.5 Investor will not, prior to the effectiveness of the Registration
Statement, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge
or grant any right with respect to (collectively, a "Disposition") the Shares in
violation of the Securities Act, nor will Investor engage in any hedging or
other transaction which is designed to or could reasonably be expected to lead
to or result in a Disposition of Shares by the Investor or any other person or
entity in violation of the Securities Act.
5.6 The Investor understands that nothing in this Agreement or any
other materials presented to the Investor in connection with the purchase and
sale of the Shares constitutes legal, tax or investment advice. The Investor has
consulted such legal, tax and investment advisors as it, in its sole discretion,
has deemed necessary or appropriate in connection with its purchase of Shares.
6. Survival of Representations, Warranties and Agreements. Notwithstanding
------------------------------------------------------
any investigation made by any party to this Agreement, all covenants,
agreements, representations and warranties made by the Company and the Investor
herein shall survive the execution of this Agreement, the delivery to the
Investor of the Shares being purchased and the payment therefor.
7. Registration of the Shares; Compliance with the Securities Act.
--------------------------------------------------------------
7.1 Registration Procedures and Expenses. The Company shall:
------------------------------------
(a) subject to receipt of necessary information from the
Investors, use its best efforts to prepare and file with the SEC, within 30 days
after the Closing Date, a registration
10
statement (the "Registration Statement") on Form S-3 to enable the resale of the
Registrable Shares (as defined below) by the Investors on a delayed or
continuous basis under Rule 415 of the Securities Act. "Registrable Shares"
means (a) all shares of Common Stock purchased in the Offering, (b) Penalty
Shares (as defined below), if any, and (c) any shares of capital stock issued or
issuable, from time to time, upon any reclassification, share combination, share
subdivision, stock split, share dividend, merger, consolidation or similar
transaction or event or otherwise as a distribution on, in exchange for or with
respect to any of the foregoing, in each case held at the relevant time by an
Investor;
(b) use its best efforts, subject to receipt of necessary
information from the Investors, to cause the Registration Statement to become
effective within 120 days after the Closing Date;
(c) use its best efforts to prepare and file with the SEC such
amendments and supplements to the Registration Statement and the Prospectus used
in connection therewith and take all such other actions as may be necessary to
keep the Registration Statement current and effective for a period (the
"Registration Period") not exceeding, with respect to each Investor's
Registrable Shares, the earlier of (i) the second anniversary of the Closing
Date, (ii) the date on which the Investor may sell all Shares then held by the
Investor without restriction by the volume limitations of Rule 144(e) of the
Securities Act, and (iii) such time as all Registrable Shares held by such
Investor have been sold (A) pursuant to a registration statement, (B) to or
through a broker or dealer or underwriter in a public distribution or a public
securities transaction, and/or (C) in a transaction exempt from the registration
and prospectus delivery requirements of the Securities Act under Section 4(1)
thereof so that all transfer restrictions and restrictive legends with respect
thereto, if any, are removed upon the consummation of such sale.
(d) promptly furnish to the Investor with respect to the Shares
registered under the Registration Statement such number of copies of the
Registration Statement, Prospectuses and Preliminary Prospectuses in conformity
with the requirements of the Securities Act and such other documents as the
Investor may reasonably request, in order to facilitate the public sale or other
disposition of all or any of the Shares by the Investor;
(e) promptly take such action as may be necessary to qualify, or
obtain, an exemption for the Registrable Shares under such of the state
securities laws of United States jurisdictions as shall be necessary to qualify,
or obtain an exemption for, the sale of the Registrable Shares in states
specified in writing by the Investor; provided, however, that the Company shall
not be required to qualify to do business or consent to service of process in
any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in
paragraph (a) through (e) of this Section 7.1 and the registration of the Shares
pursuant to the Registration Statement, regardless of whether a Registration
Statement becomes effective, including without limitation: (i) all registration
and filing fees and expenses (including filings made with the NASD); (ii) fees
and expenses of compliance with federal securities and state "blue sky" or
securities laws; (iii) expenses of printing (including printing certificates for
the Registrable Securities and Prospectuses), messenger and delivery services
and telephone; (iv) all application and filing fees in
11
connection with listing the Registrable Securities on a national securities
exchange or automated quotation system pursuant to the requirements hereof; and
(v) all fees and disbursements of counsel of the Company and independent
certified public accountants of the Company (including the expenses of any
special audit and "cold comfort" letters required by or incident to such
performance); provided, however, that each Investor shall be responsible for
paying the underwriting commissions or brokerage fees, and taxes of any kind
(including, without limitation, transfer taxes) applicable to any disposition,
sale or transfer of such Investor's Registrable Securities. The Company shall,
in any event, bear its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit, rating agency fees and the
fees and expenses of any person, including special experts, retained by the
Company;
(g) advise the Investors, within two business days by e-mail, fax
or other type of communication, and, if requested by such person, confirm such
advice in writing: (i) after it shall receive notice or obtain knowledge of the
issuance of any stop order by the SEC delaying or suspending the effectiveness
of the Registration Statement or of the initiation or threat of any proceeding
for that purpose, or any other order issued by any state securities commission
or other regulatory authority suspending the qualification or exemption from
qualification of such Registrable Securities under state securities or "blue
sky" laws; and it will promptly use its best efforts to prevent the issuance of
any stop order or other order or to obtain its withdrawal at the earliest
possible moment if such stop order or other order should be issued; (ii) when
the Prospectus or any Prospectus Supplement or post-effective amendment has been
filed, and, with respect to the Registration Statement or any post-effective
amendment thereto, when the same has become effective; and (iii) after the
Company shall receive notice or obtain knowledge of the existence of any fact or
the happening of any event that makes any statement of a material fact made in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any document incorporated by reference therein untrue, or that requires the
making of any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading;
(h) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC;
(i) use its best efforts to cause all Registrable Shares to be
listed on each securities exchange or market, if any, on which equity securities
issued by the Company are then listed; and
(j) use its best efforts to take all other steps necessary to
effect the registration of the Registrable Shares contemplated hereby and to
enable the Investors to sell the Shares under Rule 144.
(k) The Company further agrees that, in the event that the
Registration Statement has not (i) been filed with the SEC within 30 days after
the Closing Date or (ii) been declared effective by the SEC within 120 days
after the Closing Date (each such event referred to in clauses (i) and (ii), a
"Registration Default"), for all or part of each 30-day period (a "Penalty
Period") during which the Registration Default remains uncured, the Company
shall issue or pay, as applicable, to each Investor 1% for each Penalty Period
of the aggregate purchase price paid by the
12
Investor for its Shares, payable in validly issued, fully paid and nonassessable
shares of Common Stock (valued at the average of the closing price of the Common
Stock for the three trading days ending on the last trading day of such Penalty
Period) (the "Penalty Shares") or cash, at the option of the Company; provided,
that if the issuance of Penalty Shares by the Company would result in the
Company being required under NASDAQ rules or other applicable rules to obtain
the approval of the Company's stockholders, then the Company shall pay cash
rather than issue such Penalty Shares to the extent needed to avoid such
stockholder approval. The Company shall deliver said shares or cash payment to
the Investor by the fifth business day after the end of each such Penalty
Period. Notwithstanding anything to the contrary in Section 7.3 or any other
provision of this Agreement, the issuance of the Penalty Shares or cash as
provided in this Section 7.1(k) shall be the Investor's sole and exclusive
remedy in the event of any Registration Default; provided, however, that if the
foregoing remedy is deemed unenforceable by a court of competent jurisdiction
then the Investor shall have all other remedies available at law or in equity.
7.2 Transfer of Shares; Suspension.
------------------------------
(a) The Investor agrees that it will not effect any Disposition
of the Shares or its right to purchase the Shares that would constitute a sale
within the meaning of the Securities Act except as contemplated in the
Registration Statement referred to in Section 7.1 and as described below or
otherwise in accordance with the Securities Act, and that it will promptly
notify the Company of any changes in the information set forth in the
Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the
Company shall, at all times during the Registration Period, promptly (i) prepare
and file from time to time with the SEC a post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or a supplement
or amendment to any document incorporated therein by reference or file any other
required document so that such Registration Statement will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
so that, as thereafter delivered to purchasers of the Shares being sold
thereunder, such Prospectus will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading; (ii) provide the Investor copies of any documents
filed pursuant to Section 7.2(b)(i); and (iii) inform each Investor that the
Company has complied with its obligations in Section 7.2(b)(i) (or that, if the
Company has filed a post-effective amendment to the Registration Statement which
has not yet been declared effective, the Company will notify the Investor to
that effect, will use its best efforts to secure the effectiveness of such
post-effective amendment as promptly as possible and will promptly notify the
Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become
effective).
(c) Subject to paragraph (d) below, in the event (i) of any
request by the SEC or any other federal or state governmental authority during
the period of effectiveness of the Registration Statement for amendments or
supplements to a Registration Statement or related Prospectus or for additional
information; (ii) of the issuance by the SEC or any other federal or state
governmental authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that purpose;
(iii) of the receipt by the Company of any
13
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Shares for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose; or (iv) of
any event or circumstance which necessitates the making of any changes in the
Registration Statement or Prospectus, or any document incorporated or deemed to
be incorporated therein by reference, so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact or any
omission to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement of a material fact or any
omission to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; then the Company shall deliver a certificate in
writing to the Investor (the "Suspension Notice") to the effect of the foregoing
and, upon receipt of such Suspension Notice, the Investor will refrain from
selling any Registrable Shares pursuant to the Registration Statement (a
"Suspension") until the Investor's receipt of copies of a supplemented or
amended Prospectus prepared and filed by the Company, or until it is advised in
writing by the Company that the current Prospectus may be used, and has received
copies of any additional or supplemental filings that are incorporated or deemed
incorporated by reference in any such Prospectus. In the event of any
Suspension, the Company will use its best efforts to cause the use of the
Prospectus so suspended to be resumed as soon as reasonably practicable after
the delivery of a Suspension Notice to the Investor. In addition to and without
limiting any other remedies (including, without limitation, at law or at equity)
available to the Investor, the Investor shall be entitled to specific
performance in the event that the Company fails to comply with the provisions of
this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.2,
the Investor shall not be prohibited from selling Registrable Shares under the
Registration Statement as a result of Suspensions on more than two occasions
(for two separate suspension events) of not more than 30 days each in any twelve
month period.
(e) Provided that a Suspension is not then in effect, the
Investor may sell Registrable Shares under the Registration Statement, provided
that it arranges for delivery of a current Prospectus to the transferee of such
Shares. Upon receipt of a request therefor, the Company has agreed to provide,
at its own expense, an adequate number of current Prospectuses (including
documents incorporated by reference therein) to the Investor and to supply
copies to any other parties requiring such Prospectuses.
(f) In the event of a sale of Registrable Shares by the Investor
under the Registration Statement, the Investor must also deliver to the
Company's transfer agent, with a copy to the Company, a Certificate of
Subsequent Sale substantially in the form attached hereto as Exhibit A, so that
---------
the Registrable Shares may be properly transferred.
7.3 Indemnification. For the purpose of this Section 7.3:
---------------
(i) the term "Selling Stockholder" shall mean the Investor;
14
(ii) the term "Registration Statement" shall include any final
Prospectus, exhibit, supplement or amendment included in or relating to the
Registration Statement referred to in Section 7.1; and
(iii) the term "untrue statement" shall include any untrue statement
or alleged untrue statement, or any omission or alleged omission to state in the
Registration Statement or Prospectus a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(a) The Company agrees to indemnify and hold harmless each
Selling Stockholder from and against any losses, claims, damages, liabilities or
expenses to which such Selling Stockholder may become subject (under the
Securities Act or otherwise) insofar as such losses, claims, damages,
liabilities or expenses (or actions or proceedings in respect thereof) arise out
of, or are based upon (i) any untrue statement of a material fact contained in
the Registration Statement or Prospectus, (ii) any failure by the Company to
fulfill any undertaking included in the Registration Statement, or (iii) any
breach of any representation, warranty or covenant made by the Company in this
Agreement, and the Company will promptly reimburse such Selling Stockholder for
any reasonable legal or other expenses incurred in investigating, defending or
preparing to defend, settling, compromising or paying any such action,
proceeding or claim, provided, however, that the Company shall not be liable in
-------- -------
any such case to the extent that such loss, claim, damage, liability or expense
arises solely out of, or is based solely upon, an untrue statement made in such
Registration Statement in reliance upon and in conformity with written
information furnished to the Company by such Selling Stockholder specifically
for use in preparation of the Registration Statement or the failure of such
Selling Stockholder to comply with its covenants and agreements contained in
Sections 5.3 or 7.2 hereof respecting sale of the Shares or any statement or
omission in any Prospectus that is corrected in any subsequent Prospectus that
was delivered to the Investor at least three business days prior to the
pertinent sale or sales by the Investor. Notwithstanding the foregoing, the
Company shall not be liable to any Selling Stockholder for any consequential
damages, including lost profits, solely with respect to losses, claims, damages,
liabilities or expenses to which such Selling Stockholder may become subject
arising out of, or based upon, any breach of any representation, warranty or
covenant made by the Company in this Agreement.
(b) The Investor agrees (severally and not jointly with any other
Investor) to indemnify and hold harmless the Company (and each person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act,
each officer of the Company who signs the Registration Statement and each
director of the Company) from and against any losses, claims, damages,
liabilities or expenses to which the Company (or any such officer, director or
controlling person) may become subject (under the Securities Act or otherwise),
insofar as such losses, claims, damages, liabilities or expenses (or actions or
proceedings in respect thereof) arise solely out of, or are based solely upon,
(i) any failure to comply with the covenants and agreements contained in Section
5.3 or 7.2 hereof respecting sale of the Shares, or (ii) any untrue statement of
a material fact contained in the Registration Statement if such untrue statement
was made in reliance upon and in conformity with written information furnished
by the Investor specifically for use in preparation of the Registration
Statement (provided, however, that no Investor shall be liable in any such case
-------- -------
for any untrue statement in any Registration Statement or Prospectus if such
statement has been corrected in writing by such Investor and delivered to the
Company at least three business days prior
15
to the pertinent sale or sales by the Investor), and the Investor will reimburse
the Company (or such officer, director or controlling person), as the case may
be, for any legal or other expenses reasonably incurred in investigating,
defending or preparing to defend, settling, compromising or paying any such
action, proceeding or claim. Notwithstanding the foregoing, (x) the Investor's
aggregate liability pursuant to this subsection (b) and subsection (d) shall be
limited to the net amount received by the Investor from the sale of the Shares
and (y) the Investor shall not be liable to the Company for any consequential
damages, including lost profits, solely with respect to losses, claims, damages,
liabilities or expenses to which the Company (or any officer, director or
controlling person as set forth above) may become subject (under the Securities
Act or otherwise), arising out of, or based upon, any failure to comply with the
covenants and agreements contained in Section 5.3 or 7.2 hereof respecting sale
of the Shares.
(c) Promptly after receipt by any indemnified person of a notice
of a claim or the beginning of any action in respect of which indemnity is to be
sought against an indemnifying person pursuant to this Section 7.3, such
indemnified person shall notify the indemnifying person in writing of such claim
or of the commencement of such action, but the omission to so notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party under this Section 7.3 (except to the extent that such
omission materially and adversely affects the indemnifying party's ability to
defend such action) or from any liability otherwise than under this Section 7.3.
Subject to the provisions hereinafter stated, in case any such action shall be
brought against an indemnified person, the indemnifying person shall be entitled
to participate therein, and, to the extent that it shall elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, shall be entitled to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified person. After notice
from the indemnifying person to such indemnified person of its election to
assume the defense thereof, such indemnifying person shall not be liable to such
indemnified person for any legal expenses subsequently incurred by such
indemnified person in connection with the defense thereof, provided further,
-----------------
however, that if there exists or shall exist a conflict of interest that would
-------
make it inappropriate, in the opinion of counsel to the indemnified person, for
the same counsel to represent both the indemnified person and such indemnifying
person or any affiliate or associate thereof, the indemnified person shall be
entitled to retain its own counsel at the expense of such indemnifying person;
provided, however, that no indemnifying person shall be responsible for the fees
-------- -------
and expenses of more than one separate counsel (together with appropriate local
counsel) for all indemnified parties. In no event shall any indemnifying person
be liable in respect of any amounts paid in settlement of any action unless the
indemnifying person shall have approved the terms of such settlement; provided
--------
that such consent shall not be unreasonably withheld. No indemnifying person
shall, without the prior written consent of the indemnified person, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified person is or could have been a party and indemnification could have
been sought hereunder by such indemnified person, unless such settlement
includes an unconditional release of such indemnified person from all liability
on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section 7.3 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages,
liabilities or expenses (or actions or proceedings in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount paid or
payable by
16
such indemnified party as a result of such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the Company on the one hand and the Investor on
the other in connection with the statements or omissions or other matters which
resulted in such losses, claims, damages, liabilities or expenses (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things, in the
case of an untrue statement, whether the untrue statement relates to information
supplied by the Company on the one hand or an Investor on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement. The Company and the Investors agree
that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the Investors
were treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Investor
shall be required to contribute any amount in excess of the net amount received
by the Investor from the sale of the Shares. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Investors' obligations in this subsection to
contribute are several in proportion to their sales of Shares to which such loss
relates and not joint.
(e) The parties to this Agreement hereby acknowledge that they
are sophisticated business persons who were represented by counsel during the
negotiations regarding the provisions hereof including, without limitation, the
provisions of this Section 7.3, and are fully informed regarding said
provisions.
7.4 Rule 144. For a period of two years following the date hereof,
--------
the Company agrees with each holder of Registrable Shares to:
(a) comply with the requirements of Rule 144(c) under the
Securities Act with respect to current public information about the Company;
(b) use its best efforts to file with the SEC in a timely manner
all reports and other documents required of the Company under the Securities Act
and the Exchange Act (at any time it is subject to such reporting requirements);
and
(c) furnish to any holder of Registrable Shares upon request (i)
a written statement by the Company as to its compliance with the requirements of
said Rule 144(c) and the reporting requirements of the Securities Act and the
Exchange Act (at any time it is subject to such reporting requirements), (ii) a
copy of the most recent annual or quarterly report of the Company, and (iii)
such other reports and documents of the Company as such holder may reasonably
request to avail itself of any similar rule or regulation of the SEC allowing it
to sell any such securities without registration.
17
7.5 Termination of Conditions and Obligations. The conditions
-----------------------------------------
precedent imposed by Section 5 or this Section 7 upon Dispositions of the
Registrable Shares by the Investor shall cease and terminate as to any
particular number of the Registrable Shares and the restrictive legend shall be
removed when such Registrable Shares shall have been effectively registered
under the Securities Act and sold or otherwise disposed of in accordance with
the intended method of disposition set forth in the Registration Statement
covering such Registrable Shares or at such time as an opinion of counsel
reasonably satisfactory to the Company shall have been rendered to the effect
that such conditions are not necessary in order to comply with the Securities
Act (provided that such opinion shall not be required if the Company shall be
furnished with written documentation reasonably satisfactory to it that such
Registrable Shares are being transferred in a customary transaction exempt from
registration under Rule 144 under the Securities Act).
8. Notices. Except as specifically permitted by Section 7.1(g), all
-------
notices, requests, consents and other communications hereunder shall be in
writing, shall be mailed (A) if within domestic United States by first-class
registered or certified airmail, or nationally recognized overnight express
courier, postage prepaid, or by facsimile, or (B) if delivered from outside the
United States, by International Federal Express or facsimile, and shall be
deemed given (i) if delivered by first-class registered or certified mail
domestic, three business days after so mailed, (ii) if delivered by nationally
recognized overnight carrier, one business day after so mailed, (iii) if
delivered by International Federal Express, two business days after so mailed,
and (iv) if delivered by facsimile, upon electric confirmation of receipt and
shall be delivered as addressed as follows:
(a) if to the Company, to:
Conceptus, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President and CEO
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Investor, at its address on the signature page hereto,
or at such other address or addresses as may have been furnished
to the Company in writing,
with a copy to:
▇▇▇▇ and ▇▇▇▇ LLP
18
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
9. Changes. This Agreement may not be modified or amended except pursuant
-------
to an instrument in writing signed by the Company and the Investor.
10. Headings. The headings of the various sections of this Agreement have
--------
been inserted for convenience of reference only and shall not be deemed to be
part of this Agreement.
11. Severability. In case any provision contained in this Agreement should
------------
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
12. Governing Law. This Agreement shall be governed by, and construed in
-------------
accordance with, the internal laws of the State of California, without giving
effect to the principles of conflicts of law.
13. Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the parties hereto pertaining to the subject matter hereof, and any and
all other written or oral agreements relating to such subject matter are
expressly cancelled.
14. Finders Fees. Neither the Company nor the Investor nor any affiliate
------------
thereof has incurred any obligation which will result in the obligation of the
other party to pay any finder's fee or commission in connection with this
transaction.
15. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
16. Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the successors and permitted assigns of the Company and the
Investors, including without limitation and without the need for an express
assignment, affiliates of the Investors. With respect to transfers that are not
made pursuant to the Registration Statement, the rights and obligations of an
Investor under this Agreement shall be automatically assigned by such Investor
to any transferee of all or any portion of such Investor's Registrable Shares
who is a Permitted Transferee (as defined below); provided, however, that within
two business days prior to the transfer, (i) the Company is provided notice of
the transfer including the name and address of the transferee and the number of
Registrable Shares transferred; and (ii) that such transferee agrees in writing
to be bound by the terms of this Agreement. (For purposes of this "Agreement, a
"Permitted Transferee" shall mean any Person who (a) is an "accredited
investor," as that term is defined in Rule 501(a) of Regulation D under the
Securities Act and (b) is a transferee of at least 20,000 Registrable Shares as
permitted under the securities laws of the United States). Upon any transfer
permitted by this Section 16, the
19
Company shall be obligated to such transferee to perform all of its covenants
under this Agreement as if such transferee were an Investor.
17. Expenses. Each of the Company and the Investors shall bear its own
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expenses in connection with the preparation and negotiation of the Agreement;
provided, that, notwithstanding the foregoing, the Company agrees to pay the
reasonable fees and disbursements of ▇▇▇▇ and ▇▇▇▇ LLP, counsel to the
Investors, in connection with the negotiation, documentation and consummation of
the Agreement and the transactions contemplated thereby, not to exceed $50,000
without prior written consent of the Company, which consent shall not be
unreasonably withheld.
20
Exhibit A
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CERTIFICATE OF SUBSEQUENT SALE
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ChaseMellon Shareholder Services, L.L.C.
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Attention: ▇▇▇▇▇ ▇▇▇▇▇
RE: Sale of Shares of Common Stock of Conceptus, Inc. (the
"Company") pursuant to the Company's Prospectus dated
_____________ (the "Prospectus")
Ladies and Gentlemen:
The undersigned hereby certifies, in connection with the sale of shares of
Common Stock of the Company included in the table of Selling Stockholders in the
Prospectus, that the undersigned has sold the shares pursuant to the Prospectus
and in a manner described under the caption "Plan of Distribution" in the
Prospectus and that such sale complies with all applicable securities laws,
including, without limitation, the Prospectus delivery requirements of the
Securities Act of 1933, as amended.
Selling Stockholder (the beneficial owner): ____________________________________
Record Holder (e.g., if held in name of nominee): ______________________________
Restricted Stock Certificate No.(s): ___________________________________________
Number of Shares Sold: _________________________________________________________
Date of Sale: __________________________________________________________________
In the event that you receive a stock certificate(s) representing more
shares of Common Stock than have been sold by the undersigned, then you should
return to the undersigned a newly issued certificate for such excess shares in
the name of the Record Holder and BEARING A RESTRICTIVE LEGEND. Further, you
should place a stop transfer on your records with regard to such certificate.
Very truly yours,
Dated: _______________________________ By: ______________________________
Print Name: ______________________
Title: ___________________________
cc: President and CEO
Conceptus, Inc.
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